Tripura High Court

Defendant No vs Sri Nandan Ghosh on 29 July, 2024

                     HIGH COURT OF TRIPURA
                           AGARTALA
                        RSA No.39 of 2022

  Sri Sushanta Ghosh,
  S/o. Late Nani Gopal Ghosh,
  resident of Golabari, P.S. Teliamura,
  District - Khowai, Tripura.
                                           ------ Defendant No.1 Appellant
                                 Versus
1. Sri Nandan Ghosh,
   S/o. Late Nani Gopal Ghosh,
   resident of Golabari, P.S. Teliamura,
   District - Khowai, Tripura.
                                                ------ Plaintiff Respondent
2. Smti Pushpa Ghosh,
   W/o.Late Ranjit Ghosh,
   D/o.Late Nani Gopal Ghosh,
   resident of A.D. Nagar,
   West Pratapgarh,
   Near Viveknanda School,
   P.S. A.D. Nagar,
   District - West Tripura.
3. On the death of Prafulla Ghosh, respondent No.3 his legal heirs:-
  3 (a) Sri Sribash Ghosh.
  3 (b) Sri Bikash Ghosh.
  3 (c) Sri Nibhash Ghosh.
         All are sons of Late Prafullya Ghosh,
         all are resident of Golabari, P.S. Teliamura,
         District - Khowai, Tripura.
  3 (d) Smti Rita Ghosh,
        W/o. Sri Narayan Ghosh,
        D/o. Late Prafullya Ghosh,
        resident of Golabari, P.S. Teliamura,
        District - Khowai, Tripura.
  3 (e) Smti Laxmi Ghosh,
        W/o. Sri Sadhan Ghosh,
        D/o. Late Prafullya Ghosh,
        resident of Ramchandraghat,
        Near TSR Camp,
        District - Khowai, Tripura.
  3 (f) Smti Mani Ghosh,
        W/o. Sri Uttam Ghosh,
        D/o. Late Prafullya Ghosh,
        resident of Amarpur,
        District - Gomati, Tripura.
4. Smti Mala Singha Roy,
                                  Page 2 of 13


  W/o. Late Babulal Ghosh,
  resident of Golabari, P.S. Teliamura,
  District - Khowai, Tripura.
5. Sri Ardendu Ghosh,
   S/o. Late Babulal Ghosh,
   resident of Golabari, P.S. Teliamura,
   District - Khowai, Tripura.
6. Smti Gita Ghosh,
   W/o. Sri Narayan Ghosh,
   D/o. Late Roymohan Ghosh,
   resident of Shantinagar,
   P.S. Teliamura,
   District - Khowai, Tripura.
7. Smti Sandhya Ghosh,
   W/o.Sri Manik Ghosh,
   D/o.Late Roymohan Ghosh,
   resident of Rangamati,
   P.S. Amarpur,
   District - Gomati, Tripura.
8. Smti Swapna Ghosh,
   W/o. Late Dilip Ghosh,
   resident of Golabari, P.S. Teliamura,
   District - Khowai, Tripura.
9. Sri Nayan Ghosh,
   S/o. Late Dilip Ghosh,
   resident of Golabari, P.S. Teliamura,
   District - Khowai, Tripura.

                                            ------Defendant Respondents

    For Appellant(s)      :      Mr. P. Chakraborty, Adv.
    For Respondent(s)     :      Mr. S. Lodh, Adv,
                                 Ms. S. Deb(Gupta), Adv,
                                 Mr. Subham Majumder, Adv.
    Date of hearing       :      25.07.2024
    Date of delivery of
    Judgment & Order      :      29.07.2024
    Whether fit for
    reporting             :      NO


              HON'BLE MR. JUSTICE BISWAJIT PALIT

                           Judgment & Order

         This second appeal under Section 100 of CPC is

 preferred challenging the judgment dated 01.06.2022 and
                                 Page 3 of 13


decree dated 24.06.2022 delivered by Learned District Judge,

Khowai District, Khowai in connection with case No.T.A. No.3 of

2019. By the said judgment and decree, the Learned 1 st

Appellate Court has affirmed the judgment dated 23.05.2018

and decree dated 02.06.2018 delivered by Learned Civil

Judge(Jr.   Div.),   Court   No.1   Khowai     District,   Khowai   in

connection with case No.T.S.(P) No.1 of 2018.

2.       Heard Learned Counsel for the appellant, Mr. P.

Chakraborty and also heard Learned Counsel, Mr. S. Lodh for

the respondent Nos.1 and 2 and Learned Counsel Ms. S.

Deb(Gupta) for the respondent Nos.3 to 9.

3.      At the time of hearing, Learned Counsel for the

appellant submitted that before the Learned Trial Court, the suit

was decreed ex parte. The present appellant did not get any

scope to file written statement or to adduce evidence in support

of his defence because the present appellant purchased the land

as mentioned in schedule A of the plaint from his deceased

father but the Learned Court below according to Learned

Counsel for the appellant failed to appreciate the same properly

and decreed the suit. So, for proper adjudication of the suit,

Learned Counsel for the appellant urged for remanding back the

suit to the Learned Trial Court for a de novo trial.

4.      On the other hand, Learned Counsel, Mr. S. Lodh

appearing for the respondent Nos.1 and 2 submitted that before

the Learned Trial Court, none of the contesting defendants filed

any written statement nor they adduced any oral/documentary
                                  Page 4 of 13


evidence on record in support of their defence. So, the Learned

Trial Court below considering the evidence on record decreed

the suit in favour of the respondent-plaintiff No.1 which was

affirmed by the Learned 1st Appellate Court and at this stage as

per order 41 rule 23 of CPC, there is no scope to remand back

the suit to the Learned Trial Court. Learned Counsel further

submitted that since the appellant has failed to make out any

substantial question of law to be formulated, so there is no

scope to interfere with the judgment delivered by the Learned

1st Appellate Court and urged for dismissal of this appeal with

costs.

           On the other hand, Learned Counsel Ms. S. Deb(Gupta)

appearing on behalf of the other contesting respondents shared

the same view as made by the Learned Counsel Mr. S. Lodh for

the respondent-plaintiff No.1 and urged for dismissal of this

appeal.

5.         Now, before going to the conclusion of this appeal, let

us discuss the subject matter of dispute amongst the rival

parties.

           The plaintiff Nandan Ghosh i.e. respondent No.1 herein,

son of Late Nani Gopal Ghosh filed one suit before the Learned

Trial Court for declaration and for partition of joint family

properties which was numbered as T.S.(P) No.1 of 2018.

6.         In the plaint, it was asserted by the respondent-

plaintiff that the suit land has been mentioned in schedule-A, B,

C and D of the plaint. According to the plaintiff-respondent, the
                                Page 5 of 13


land as mentioned in schedule-A of the plaint was jointly owned

by his father Nani Gopal Ghosh and his 2 brothers namely

Prafulla Kumar Ghosh and Raimohan Ghosh having record of

rights in their names without any contrary from any corner and

after the death of his father, Nani Gopal Ghosh, the said

plaintiff i.e. the respondent No.1 herein and the defendants

No.1 and 2 being the legal heirs of said Nani Gopal Ghosh

equally inherited the share of Nani Gopal Ghosh and on the

death of Raimohan Ghosh, the other defendant Nos.4 to 10

inherited equal shares in the same property of the share left by

their deceased predecessor Raimohan Ghosh and the defendant

No.3 of the original suit being one of the owners is entitled to

his respective share over the land as mentioned in schedule A

of the plaint.

         It was further asserted by the plaintiff that the land

mentioned in schedule B of the plaint was recorded in the name

of Nani Gopal Ghosh as bargadar and after his death, the said

plaintiff now the respondent No.1 herein and the defendant

Nos.1 and 2 of the original suit being the legal heirs inherited

the same and they were/are each entitled to equal share over

the said land. Similarly, the land as mentioned in schedule C of

the plaint was jointly and equally owned by the plaintiff, now

respondent No.1 herein and the defendant Nos.1 and 2 by way

of inheritance after the death of their original owner Nani Gopal

Ghosh i.e. their predecessor, who was the rayati over the same.
                                Page 6 of 13


7.      It was further asserted by the plaintiff that his mother

owned and possessed the land as mentioned in schedule D of

the plaint as rayati and after her demise, the plaintiff and the

defendant Nos.1 and 2 inherited the same in equal share but

those properties could not be partitioned.

        It was further asserted by the plaintiff that he was

informed by defendant No.1, now the appellant herein that his

father Nani Gopal Ghosh by a registered sale deed bearing

No.1-1317 dated 19.09.2014 transferred land measuring 1.26

acres appertaining to khatian Nos.814, 815, 1979 comprising

RS plot Nos.7727, 8146, 7756, 7760 and 7724. It was the case

of the plaintiff that the said sale deed was executed fraudulently

by the defendant No.1 taking the advantage of long illness of

their father who had no right to transfer that much quantum of

land.

8.      The plaintiff further asserted that he urged for amicable

partition of the land as mentioned in the schedule of the plaint

on 08.12.2016 which was refused by the defendant No.1 i.e.

the appellant herein. Hence, finding no other alternative way,

the respondent No.1 as plaintiff has filed the suit before the

Learned Trial Court. The defendants of the said suit inspite of

receiving summons from the Court did not file any written

statement within the statutory period and even after that, nor

they adduced any oral/documentary evidence on record in

support of their defence. Hence, the suit proceeded ex parte.
                                    Page 7 of 13


9.         To substantiate the suit, the respondent No.1 as

plaintiff was examined as PW-1 and he relied upon certain

documents which were marked as exhibits in the case which

were reproduced herein below:

                    Plaintiff's witness:
                       i) PW-1 : Nandan Ghosh

                    Plaintiff's Exhibits:
                       i) Ext.-1 : Certified copy of khatian No.815.
                       ii) Ext.-2 : Certified copy of the finally
                            published computerized khatian No.1979.
                       iii) Ext.-3 : Certified copy of the finally
                            published compurterized khatian No.814.
                       iv) Ext.-4 : Certified copy of the finally
                            published computerized khatian No.4150.
                       v) Ext.-5 : Certified copy of the finally
                            published computerized khatian No.672.
                       vi) Exbt. 6 : Certified copy of Sale Deed being
                            No:1-1317 dated 19.09.14.


10.        Finally, to determine the case, Learned Trial Court

below framed four numbers of points for decision and on

conclusion of trial, the Learned Trial Court below by judgment

dated 23.05.2018 decreed the suit in favour of the plaintiff i.e.

the respondent No.1 herein. For the sake of convenience, I

would like to refer hereinbelow the relevant portion of the

judgment and order of the Learned Trial Court which runs as

follows:

                                              ORDER

(I) In view of the foregoing discussions and reasons, the suit of the plaintiff is decreed declaring that the predecessor in interest of the plaintiff and the defendants having possession upon the scheduled lands whereby the plaintiff and the defendants numbers 1,2 and 4-10 being the legal heirs of the predecessors in interests have accrued right over the scheduled suit lands by way of inheritance.

(II) It is further ordered and decreed that the sale deed No.1-1317 dated 19.09.14 is hereby

declared void and inoperative in law and it confers no right, title to the defendant No.1 over the land shown in the registered sale deed and a precept be issued to the Circle Officer, Khowai Revenue Circle to delete the name of the defendant No.1 from the land record of schedule lands.

(III) The plaintiff is hereby held entitled to get 1/9th share over the "A" scheduled land, entitled to get 1/3rd share over the "B" and "C", "D" scheduled lands respectively. As pleaded by the plaintiff, the Defendant No.3 is entitled for 1/3rd share over the "A"

scheduled land.

(IV) The defendants are hereby directed to get the quantum of the scheduled suit lands equally partitioned amongst the plaintiff and defendants accordingly.

(V) No order as to costs.

(VI) Prepare preliminary decree accordingly.

11. Challenging that judgment, the defendant No.1 as

appellant filed an appeal before the Court of Learned District

Judge, Khowai District, Khowai which was numbered as T.A.

No.3 of 2019 and after hearing both the sides, Learned 1st

Appellate Court dismissed the appeal affirming the judgment

and decree delivered by Learned Trial Court. The operative

portion of the Judgment and order of Learned 1st Appellate

Court dated 01.06.2022 runs as follows:

ORDER

"The appeal is hereby dismissed.

The Judgment and decree passed by the trial court is hereby upheld.

Send down the case record along with a copy of this judgment to the Ld. Trial Court.

Accordingly, this appeal is disposed of on contest.

Make necessary entry in the relevant TR as well as in the CIS."

12. Before the High Court, the following substantial

question of law was formulated by order dated 05.09.2022

which is as under:

Whether non-consideration of the right of bargadar as to transfer the suit land and/or right of inheritance by the courts below lead to infirmity in its judgment and as a result the judgment of both courts below are perverse?

13. I have heard argument of both the sides and gone

through the records of the Learned Courts below. It appears

from the record that the land as mentioned in schedule A of the

plaint was originally owned by Nani Gopal Ghosh, Prafulla

Kumar Ghosh and Raimohan Ghosh (all are now dead) and

accordingly, ROR was prepared in their name vide Khatian

No.815 under Mouja Krishnapur and Tehsil Krishnapur in equal

shares. So, lawfully those three persons were the equal share

holders of the aforesaid landed property.

After the death of said Nani Gopal Ghosh, his sons and

daughter i.e. the present appellant and the respondent Nos.1

and 2 inherited their respective share of the property left by

their deceased father. Similarly, after the death of Raimohan

Ghosh, his legal heirs i.e. defendant Nos.4 to 10 of the original

suit inherited his property.

So, the plaintiff respondent No.1 being one of the legal

heirs of said Nani Gopal Ghosh is entitled to get 1/9th share of

the land as mentioned in schedule A of the plaint. Similarly, the

defendant No.1 i.e the present appellant and the defendant

No.2, now the respondent No.2 are also entitled to get 1/9th

share each from the land as mentioned in scheduled A of the

plaint. Similarly, defendant No.3 being one of the owners is

entitled to get 1/3rd share of the suit land as mentioned in

schedule A of the plaint and the defendant Nos.4 to 10 are

entitled to get equal share of the land left by their deceased

predecessor, Raimohan Ghosh.

In the same way, the land as mentioned in schedule B

of the plaint was belonging to Nani Gopal Ghosh, the

predecessor of the plaintiff now respondent No.1 herein and

defendant No.1 now the appellant and defendant No.2. So, the

original plaintiff and the defendant Nos.1 and 2 inherited the

said land equally and the defendant No.1 i.e. the appellant

herein is entitled to get 1/3rd share of the land as mentioned in

schedule B of the plaint along with two other co-sharers

equally.

In respect of the land, as mentioned in schedule C

measuring 0.71 acres which was belonging to said Nani Gopal

Ghosh (since dead), the predecessor of the plaintiff and the

defendant Nos.1 and 2. So, the plaintiff and defendant Nos.1

and 2 inherited the said land equally. So, the present appellant

as defendant No.1 is also entitled to get 1/3rd share of the said

land as mentioned in schedule C of the plaint along with two

other co-sharers equally.

In respect of land as mentioned in schedule D

measuring 0.34 acres which was belonging to Jyotibala Ghosh

(since dead) the mother of the defendant No.1 i.e. the appellant

herein, plaintiff-respondent No.1 and defendant No.2 i.e. the

respondent No.2 herein. So, the defendant No.1 is entitled to

get 1/3rd share of the said land as mentioned in schedule D of

the plaint like other legal heirs of Lt. Jyotibala Ghosh.

In this way, it is also on record that the said land as

mentioned in schedule A, B, C and D of the plaint were not

partitioned. So, the original plaintiff i.e. the respondent No.1

herein approached for partition to the other contesting

defendants but his request was not accepted by them.

14. It was also the case of the plaintiff that the father of

the original plaintiff was looked after by the defendant No.1 i.e.

the present appellant herein and he was suffering from illness

for a long period. So, taking advantage of his illness, he

arranged to get a sale deed dated 19.09.2014 bearing No.1-

1317 in his favour for the land measuring 1.26 acres. Since said

Nani Gopal Ghosh has no legal right to transfer the said

quantum of land during his lifetime being the joint family

property and his mental status was not fit for execution of such

deed. So, the deed was challenged before the Learned Trial

Court by the plaintiff.

In this regard, I would like to refer one judgment of

Hon'ble Supreme Court reported in 2024 SCC Online SC 517.

In Kizhakke Varrakandiyil Madhavan(Dead) Thr. Lrs. V.

Thiyyurkunnath Meethal Janaki and Ors. dated 09.01.2024,

wherein in para No.18 Hon'ble Supreme Court observed as

under:

"18. * * * * * * * * If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.

* * * * * * * *"

The present appellant did not contest the same nor

produced any oral/documentary evidence on record to counter

the submissions made by the plaintiff. So, finally, Learned Court

below allowed the suit and granted decree in favour of the

plaintiff now the respondent No.1 herein which has been

affirmed by Learned 1st Appellate Court.

15. Now, after hearing both the sides and also after

perusal of the evidence on record it appears to this Court that

the present appellant has failed to make out any substantial

question of law to be formulated in this appeal and also I find

no perversity in the judgment of Learned 1st Appellate Court.

Thus, in my considered view, the appellant is not entitled to get

any relief in this appeal.

16. In the result, the appeal filed by the appellant stands

dismissed being devoid of merit. The judgment dated

01.06.2022 and decree dated 24.06.2022 delivered by Learned

District Judge, Khowai District, Khowai in connection with case

No.T.A. No.3 of 2019 affirming the judgment dated 23.05.2018