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HIGH COURT OF CALCUTTA
TARUN KUMAR GUPTA, J.
Subir Mondal And Another - Appellants
Vs
Adhir Mondal And Others - Respondents
S. A. No.306 of 2009
Decided on: June 19, 2012
PARTITION - TITLE - FACTUAL FINDING - PRESUMPTION OF CORRECTNESS - RELAYMENT - BURDEN OF PROOF - JOINT FAMILY PROPERTY - ADMISSIBILITY OF EVIDENCE - PART DECREE OF PARTITION - SUFFICIENCY OF EVIDENCE - SECOND APPEAL - SUBSTANTIAL QUESTION OF LAW - JURISDICTION - CIVIL PROCEDURE CODE, 1908 - ORDER 41 RULE 27(1)(B).
Fact of the Case:
Plaintiffs filed a suit for partition of 'A' and 'B' schedule properties, claiming a 1/3rd share in 'A' schedule property as co-owners and a 2/7th share in 'B' schedule property as joint owners. Defendant No.1 contested the suit, denying plaintiffs' title to the properties and claiming absolute ownership through a deed of gift from Kadambini Dassi, widow of Nanigopal Mondal, who had inherited the properties from her husband. Plaintiffs relied on a registered patta dated 11th July, 1916, issued by Ishan Chandra Mondal in favor of their common ancestor Harisadhan Mondal, alleging that the patta land was subsequently numbered as Dag No.651 and 652, comprising 'A' schedule property.
Finding of the Court:
The Trial Court and Lower Appellate Court dismissed the suit, holding that the plaintiffs failed to establish that the 'A' schedule property was the land covered by the patta of 1916, and that the 'A' and 'B' schedule properties were the properties of Nanigopal Mondal, which devolved upon his wife Kadambini Dassi and were subsequently gifted to the defendant No.1.
Issues: 1. Whether the learned Courts below committed substantial error of law in dealing with the question of title of the plaintiffs without relayment of the land covered by the registered patta dated 11.07.1916? 2. Whether the learned Courts below committed substantial error of law in failing to note that a record of right may not be substitute of a deed but is an evidence of possession? 3. Whether learned Courts below committed substantial error of law in failing to consider that while a member of a family was living jointly the presumption is that any property standing in the name of one member of that family be treated as joint family property unless it was rebutted by cogent evidence led by the concerned member that the property was his self-acquired property? 4. Whether the learned Courts below committed substantial error of law in not passing a part decree after holding that plot No.613 is identical with the patta land of Harisadhan Mondal which was executed on 11th July, 1916?
Ratio Decidendi: 1. The entries in the record of rights have presumptive value of correctness so long as the same is not rebutted by any cogent evidence. Plaintiffs failed to establish that the entries in the record of right relating to 'A' schedule property were erroneous. 2. The record of right relating to plot No.613 showed that the names of the sons of Charu Chandra Mondal, who issued the patta of 1916 in favor of Harisadhan Mondal, were noted therein as landlords and the names of the sons of Harisadhan Mondal were noted as tenants having the same amount of rent payable as mentioned in the patta, though the area was recorded as 29 decimals. This supported the finding that the patta land dated 11th July, 1916, executed by Ishan Chandra Mondal in favor of Harisadhan Mondal, was recorded in plot No.613. 3. The plaintiffs did not make any case that the property standing in the name of Nanigopal alias Nanilal Mondal should have been considered as joint family property, and such a case was not made out in the Lower Court.
Final Decision: The appeal was dismissed, holding that the findings of the Lower Courts were based on evidence and no substantial question of law was involved.
TARUN KUMAR GUPTA, J.
1. Plaintiffs are the appellants against this judgment of affirmation. The plaintiffs filed a suit for partition being Title Suit No.26 of 2003 with the following averments:-
Harisadhan Mondal, a common ancestor of the plaintiffs and defendant Nos. 1- 5, was the owner of 'A' schedule property. Harisadhan Mondal died intestate leaving behind his three sons namely Banshilal Mondal, Nanigopal alias Nanilal Mondal and Charu Chandra Mondal who became co-owners to the extent of 1/3rd share each in said property. The plaintiffs are the son and the daughter of Charu Chandra Mondal whereas the defendant Nos. 1 5 are the sons and the daughters of Banshilal Mondal. On death of Charu Chandra Mondal the plaintiffs became joint owners of 1/3rd share in 'A' schedule property and similarly after demise of Banshilal Mondal defendant Nos. 1 5 became joint owners of 1/3rd share to said 'A' schedule property. The 'B' schedule property was recorded in the name of Nanigopal alias Nanilal Mondal, uncle of both plaintiffs and defendant Nos. 1 5. Nanigopal died issueless leaving behind his widow Kadambini Dassi. Kadambini Dassi accordingly inherited said properties of Nanigopal. Kadambini Dassi did not transfer any portion of said property to anybody. On her death the plaintiffs and defendant Nos. 1 5 each became entitled to 1/7th undivided share in 'B' schedule property. Plaintiffs and defendants Nos. 1 5 were accordingly in joint possession of the suit property. Defendant Nos. 6 15 were trying to intrude upon the suit property alleging that they purchased some portion of the same from defendant No.1. The deed of gift dated 27th June, 1962 purported to have been executed by Kadambini Dassi in favour of the defendant No.1 was a fraudulent document as the alleged L. T. I. of Kadambini Dassi appeared in said deed was not that of Kadambini Dassi. Defendant No.1 had no right to sell the suit properties to the outsiders and that his sale, if any, should be limited within his share. The judgment and decree passed in Title Suit No.47 of 1954 by the learned Sub-ordinate Judge, third Court at Alipore is not binding upon the plaintiffs as neither the plaintiffs nor their father Charu Chandra Mondal was a party to the suit. The alleged deed of conveyance dated 16th June, 1967 executed by Harendralal Sarkar is a fictitious document having no transferable right. The property as conveyed by said deed was a trust property which could not be transferred without the permission of the appropriate authority. As defendant Nos. 1 5 declined to make amicable partition of the suit property, the plaintiffs were compelled to file this suit for partition for declaring their 1/3rd share and 2/7th share in respect of the properties described in Schedule 'A' and ' B' respectively and for partition of the same. Defendants should be restrained by a decree of permanent injunction from transferring and / or for changing the nature and character of the suit property till final decree is passed.
2. Respondent defendant No.1 only contested the suit by filing a written statement denying material allegations of the plaint and contending inter alia as follows:-
The suit property never belonged to Harisadhan Mondal. 'A' Schedule property was the absolute property of the Nanigopal alias Nanilal Mondal and his name was correctly recorded in C. S. khatian No.90 C. S. Dag Nos.651 and 652. Harisadhan Mondal or his other sons had no right, title, interest or possession in the 'A' Schedule property at any point of time. The 'B' schedule property was recorded in the C. S. record of right in the name of Nanigopal Mondal. Harisadhan Mondal and his other sons had also no right, title, interest or possession in said 'B' schedule property. After the demise of Nanigopal alias Nanilal Mondal those properties devolved upon his widow Kadambini Dassi. Haisadhan Mondal's patta land of 12 cottahs taken from landlord Ishan Chandra Mondal on 11th July, 1916 at an annual rental of Rs.2 w
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