Sukumar Acharya & Ors vs Gobinda Mondal & Ors
2023 Latest Caselaw 3603 Cal

19.05.2023 SL No.21 Court No.8 (gc)

SAT 526 of 2016

Sukumar Acharya & Ors.

Vs.

Gobinda Mondal & Ors.

The appellants are not represented, nor any

accommodation is prayed for on behalf of the appellants.

The appeal is of the year 2016. The matter is appearing

in the list from 14th February, 2023. The appellants have

due notice about the listing of the matter.

The appellate judgment and decree dated 19th

September, 2016 affirming the judgment and decree dated

28th March, 2011 and 29th March, 2011 respectively

passed by the Trial Court in a suit for declaration and

rectification of the deed and permanent injunction is a

subject matter of challenge in this second appeal. We

have carefully read the judgment of both the Courts and

the grounds of appeal.

Briefly stated, Nandalal Mondal and Tarani Mondal

were the joint owners of land measuring 52 decimals in

dag no.433 as recorded in D.S.R.O.R. Nandalal Mondal at

different time sold his portion of the suit plot and

ultimately 8 decimals were left. Out of 8 decimals he sold

6 decimals to Rajani Rani Debya, wife of Sashibhushan

Acharya. The said share devolved on Krishnapada on the

death of Rajani Rani Debya. On the death of

Krishnapada, his share devolved upon three sons,

namely, Nanda Acharya, Dulal Acharya and Madan

Acharya in equal share. Nanda Acharya sold 2 decimals

of land to the plaintiffs. The plaintiffs, thus, became the

owner of 4 decimals of share. The plaintiffs claimed that

by mistake in the deed, original dag was retained in place

of new bata plot and the defendants being the legal heirs

of Madan and Dulal, that is the sons of Krishnapada,

taking advantage of the mistake were denying the right,

title, interest and possession of the plaintiffs over the 'ka'

schedule property. The defendant No.1 to 6 contested the

suit. However, they have admitted that the suit dag

originally belonged to Nandalal Mondal and Tarani

Mondal in equal shares of 26 decimals each and this was,

accordingly, recorded in D.S.R.O.R. Nandalal sold 6

decimals in the said doba along with some non suit lands

to Rajani Moyee Acharya, the wife of predecessor in

interest of defendants namely Sashibhushan Acharya vide

a registered deed of sale in the year 1936. Thereafter after

demise of Rajani, the father of the defendants inherited

her share. It is submitted that though in the said deed

the area of the doba was mentioned to be 6 decimals,

actually 8 decimals were transfeered and it was

accordingly recorded in the name of the defendant and his

two brothers in the R.S.R.O.R as plot no.433/1646.

Thereafter, defendant no.1 sold away 2 decimals of land to

Gobindo Mondal (the father of plaintiffs) and plaintiff

nos.2 and 3 vide a registered deed of sale in the year 1968

with a verbal agreement for repurchase. Subsequently,

the defendant no.1 and his two brothers while exercising

right, title, interest and possession over remaining portion

of the said plot, the said two brothers of defendant no.1

namely Dulal and Madan transferred their shares to the 5

sons of defendant no.1, namely, Sukumar, Sambhunath,

Biswanath, Hrishikesh and Tapas. Defendant no.1 along

with his sons claimed to have been exercising their right,

title, interest and possession over the suit plot.

Defendants further contended that they have acquired a

valuable right over the land in the suit plot by exercising

adverse possession therein with complete knowledge and

acquiescence of the plaintiffs since the predecessor in

interest of the plaintiffs sol the land to Rajani Moyee

Debya and this had been reflected in the R.S.R.O.R. and

plaintiffs did not have any right, title, interest and

possession in the suit land.

The defendants alleged that the plaintiffs in

collusion with the settlement officials manipulated the

erroneous recording in the L.R.R.O.R. In the suit, the

plaintiffs relied upon certified copy of the D.S.R.O.R,

R.S.R.O.R, certified copy of deed no.4554 of 1936,

certified copy of L.R.R.O.R, rent receipt and deed no.5305

of 1968 in favour of their right. Similarly, the defendants

have relied upon six documents, which, inter alia, include

the certified copy of deed no.5305 of 1968. This, in fact,

common document that was marked as Exhibit-4 and

Exhibit-B by the respective parties. The learned Trial

Judge as well as the First Appellate Court relied upon

three decisions of our Court, namely:-

i) Ram Krishna Mallick Vs. State of West

Bengal reported at (1975) 1 Cal LJ 154;

ii) Chaturbhuj Misra Vs. State of West Bengal

reported at 82 CWN 335;

iii) Sachin Ghosh Vs. Narayan Ch. Ghosh

reported at (2004) 1 WBLR (Cal) 236.

to hold that the suit was for declaration and

permanent injunction along with the rectification of the

deed is maintainable. Both the Courts are of the view

that when in a suit the principal issue is a question of

title, a prayer for declaration that the record of rights is

wrong, does not bring the suit within the mischief of

Section 57B of the West Bengal Estates Acquisition Act or

51C of the West Bengal Land Reforms Act. The main

issues involved in the suit were:-

"1. Amount of land transferred by Nandalal

Acharya in favour of Rajanimoyee;

2. Amount of land transferred by Nandalal

Acharya to plaintiffs;

3. How much of Plot no.433 or 433/1646 was

sold?"

The plaintiffs claimed right over 4 decimals of land

being plot no.433/1646 which was originally recorded as

plot no.433 in D.S.R.O.R. The plaintiffs claimed that

Nandalal Mondal sold 6 decimals of land to Rajanimoyee

retaining 2 decimals while defendants contended that

Nandalal sold entire 8 decimals and nothing was left for

the plaintiffs to inherit. The Trial Court as well as the

First Appellate Court relying upon Exhibit-3 from side of

the plaintiffs and Exhibit-E from side of the defendants

that is the certified copy of the deed no.4554 of 1936 held

that the said document would show that 6 decimals of

land was sold meaning thereby 2 decimals have remained

with the vendor which the plaintiffs claim to have been

inherited as his legal heirs. This also corroborated by the

admission of D.W.1, Sukumar Acharya, in his cross-

examination where he stated:-

"Nanda Mandal sold 6 decimal to Rajani Deby by

that deed."

It appears from the evidence and more particularly

from R.S.R.O.R (Exhibit-2) that D.S. plot no.433 was sub-

plotted into plot no.433 and plot no.433/1646. It raises a

strong presumption that 2 decimals sold to the plaintiffs

by Nanda Acharya by dint of Exhibit-4 is from plot

no.433/1646 since it was done after the R.S. settlement

at which point of time Nanda Mondal had a share in plot

no.433/1646 and that the 2 decimals sold to the plaintiffs

have come from the said plot no.433/1646 and not from

plot no.433.

The concurrent findings of facts with regard to the

title of the plaintiffs based on such cogent evidence do not

call for any interference.

Accordingly, the second appeal stands dismissed at

the admission stage.

However, there shall be no order as to costs.

(Uday Kumar, J.)                         (Soumen Sen, J.)