Tripura High Court
Smt. Malina Paul vs Smt. Shibani Paul on 5 April, 2021
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HIGH COURT OF TRIPURA
AGARTALA
RFA NO.30 OF 2017
1. Smt. Malina Paul
W/O Lt. Hrishikesh Paul.
2. Sri Surajit Paul
S/o Lt.Hrishikesh Paul.
3. Miss Ananya Paul
D/o Lt. Hrishikesh Paul
-all residents of 151, Motor Stand
Road, Agartala, PS East Agartala
District Tripura West.
-----Plaintiff Appellant(s)
Versus
1. Smt. Shibani Paul
W/o Lt. Subal Paul
Resident of 151 Motor Stand Road,
Agartala, PS East Agartala District
Tripura West.
2. Smt. Samadrita Paul(Roy Chowdhury)
W/o Biswajit Roy Chowdhury
Resident of G.E.(AF), Bagdogra,
Air Force Station, P.29 DGCH
Colony, West Bengal.
3. Smt. Tanmayee Paul (Roy Barman)
W/o Sri Uttam Roy Barman
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Resident of Dhaleswar Road No.3
Agartala, PS East Agartala, District-Tripura West.
-----Respondent(s)
For the Appellant(s) : Mr. D.R. Chowdhury, Sr. Advocate
Mr. D. Debnath, Advocate.
For the Respondent(s) : Mr. S.M. Chakraborty, Sr, Advocate.
Ms. P. Sen, Advocate.
Date of hearing and delivery of
Judgment & Order : 05.04.2021.
Whether fit for reporting : NO.
HON'BLE MR. JUSTICE ARINDAM LODH
J U D G M E N T & O R D E R(ORAL)
Heard Mr. D.R. Chowdhury, learned Sr. Counsel
assisted by Mr. D. Debnath, learned counsel appearing for the
appellants as well as Mr. S.M. Chakraborty, learned Sr. Counsel
assisted by Ms. P. Sen, learned counsel appearing for the
respondents.
2. This is a first appeal filed under Section 96 of the Code
of Civil Procedure, 1908 against the judgment and decree dated
11.07.2017 and 26.07.2017 respectively dismissing the suit of
the plaintiffs vide No.MS42/2013.
3. The facts relevant to decide this appeal may be dealt
with, in brief.
4. The father of the two brothers, namely, Hrishikesh Paul
and Subal Paul i.e. the husband of the present-appellant No.1
and husband of respondent No.1 respectively was the original
owner of the suit land. Their father had a land in Brindaban
which is part and parcel of the suit land. The present suit is filed
by appellant No.1 being the wife of Hrishikesh Paul. In the plaint,
she along with other descendants of Hrishikesh Paul instituted
the present money suit for recovery of 50 % of Rs.10,00,000/-,
which according to them, was the consideration money for
selling of the land and temple at Brindaban. The suit was
contested by respondent No.1 being the wife of Subal Paul and
other legal heirs.
After exchange of pleadings, issues were framed, and
evidences were adduced by the parties.
Thereafter, having heard the learned counsels for the
parties and on consideration of the evidence and materials on
record, the learned Civil Judge, Senior Division dismissed the
suit vide judgment and decree as aforestated.
5. Feeling aggrieved, the plaintiffs have preferred the
instant appeal.
6. Mr. D.R. Chowdhury, learned Sr. Counsel relying upon
the evidence of Smt. Shibani Paul, the wife of Subal Paul (now
deceased), which was adduced in connection with the Title Suit
No. 88 of 2008 has submitted that the cause of action of the suit
arose from the admission of Shibani Paul when she stated in that
suit that " I cannot say whether the value of the property of
Brindaban is Rs.10,00,000/- or not. It is not a fact that my
husband gave the money after selling the property situated at
Brindaban".
7. Mr. Chowdhury, learned Sr. counsel has submitted that
he put a question by way of suggestion that the property
situated at Brindaban, was sold at Rs.10,00,000/- and on that
suggestion, the plaintiff i.e., the respondent No.1 herein had
replied the way as it is quoted here-in-above.
8. On the other hand, Mr. S.M. Chakraborty, learned Sr.
Counsel refuting the said submission of Mr. Chowdhury, learned
Sr. Counsel has submitted that the quotation as extracted here-
in-above from the evidence of P.W.-1 cannot be said to be an
admission and also cannot form the basis of the institution of the
present money suit for recovery of Rs.5,00,000/- i.e. 50 % of
Rs.10,00,000/-.
9. Mr. Chowdhury, learned Sr. Counsel has submitted that
the defendant-respondent No.1 has admitted the transfer.
For a moment, if I consider that respondent No.1 has
admitted that the land was transferred, but the present suit
being money suit, the plaintiffs have to substantiate the
consideration money at which the land was sold. I repel this
submission of the learned counsel also that there is an admission
on behalf of respondent No.1 that the land has been transferred
because there is no iota of evidence or any documentary
evidence that the land was ever transferred.
10. On the basis of the aforesaid facts and the
submissions of the learned counsels appearing for the parties, I
have proceeded to decide the present appeal.
11. Firstly, in my opinion, the reply of P.W.-1 in T.S. No. 88
of 2008 in respect of the fact that she could not say whether the
value of the property at Brindaban was Rs.10,00,000/- or not,
and that it was not a fact that her husband gave her the said
consideration money after selling the property situated at
Brindaban, can not in any way be said to be an admission.
Admission of a fact in issue must be clear and unambiguous. The
entire suit of the plaintiff is based on this statement made by
Smt. Shibani Paul in connection with the suit i.e., T.S. No.88 of
2008.
12. Since, according to Mr. Chowdhury, learned Sr.
Counsel, the instant money suit has been filed on the basis of
the said statement and not on any other ground, in my opinion,
the plaintiff has miserably failed to make out her case of
recovery of money of Rs.5,00,000/. The plaintiff did not produce
or adduce any evidence to substantiate that the property of
Brindaban was sold at a consideration of Rs.10,00,000/-. It was
only the suggestion of the learned counsel in that suit (T.S.88 of
2008) when the respondent No.1 replied to the suggestion in the
manner as quoted here-in-above. According to me, the whole
suit of the plaintiff is based on conjecture and surmises.
13. Consequently, I find no error in the findings recorded
by the Trial Court dismissing the suit of the plaintiff.
Having held so, the instant first appeal is devoid of
merit and, accordingly, stands dismissed.
JUDGE
suhanjit
