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2002 Supreme(Cal) 708
IN THE HIGH COURT AT CALCUTTA
Aloke Chakrabarti, Rajendra Nath Sinha, JJ.
Ajit Kumar Saha – Appellant
Versus
Amar Kumar Saha – Respondent
F.A. No. 31 of 1999
Decided On : November 29, 2002
Mr. Rabindra Nath Mahato for the Appellant
Mr. Jyotirmoy Bhattacharya and Sushil Kumar Saha for the Respondent
A major son in a Dayabhaga family does not have any right to an ancestral property by reason of his continuous possession of the property since birth.
Headnote:
IMMOVABLE PROPERTY - POSSESSION - LICENSE - DAYABHAGA SCHOOL OF HINDU LAW - A major son in a Dayabhaga family governed by the Dayabhaga School of Hindu Law does not have any right to an ancestral property by reason of his continuous possession of the property since birth.
Fact of the Case:
The defendant appellant, who was born and raised in the suit property, claimed to have a right to the property as a co-sharer and denied the plaintiff respondent's ownership. The plaintiff filed a suit for eviction and other consequential reliefs, claiming that the defendant was a licensee and that his license had been revoked.
Finding of the Court:
The court found that the plaintiff had a valid title to the suit property and that the defendant was in possession of the property by implied license. The court held that the defendant, as a major son in a Dayabhaga family, did not have any right to the property by reason of his continuous possession since birth.
Issues: 1. Whether a major son in a Dayabhaga family has any right to an ancestral property by reason of his continuous possession of the property since birth? 2. Whether the defendant was in possession of the suit property as a licensee or as a co-sharer?
Ratio Decidendi: 1. The court held that a major son in a Dayabhaga family does not have any right to an ancestral property by reason of his continuous possession of the property since birth. The court relied on the fact that the Dayabhaga School of Hindu Law does not recognize any such right and that the defendant had not established any other legal basis for his claim to the property. 2. The court held that the defendant was in possession of the suit property as a licensee. The court found that the defendant had not established any right to the property as a co-sharer and that his possession was permissive in nature.
Final Decision: The court dismissed the defendant's appeal and upheld the trial court's decree of eviction.
Chakrabarti, J : This appeal arises out of a suit for eviction and other consequential reliefs filed by the plaintiff respondent. Facts in brief as stated in the plaint are that the plaintiff is the trustee of the suit property wherein the defendant was a licensee originally under the settlor Smt. Krishna Bhabani Saha since April 1978 and after the deed of settlement he because licensee under the plaintiff in respect of one room on the second floor of the premises without any payment. In spite of request by the plaintiff, the defendant denied to vacate the room. The licence was cancelled verbally on 10th November, 1985. Following the same the present suit was filed.
2. In the written statement the defendant appellant apart from denying the contentions of the plaintiff stated facts relating to devolution of the said property at the earlier stages before settlor Krishna Bhabani got the same and it is contended that by virtue of such devolution the defendant has right title in respect of half share of the said property as Krishna Bhabani herself having not more than half share could not settle the entire property in favour of the plaintiff respondent. It is further stated that there is a partition suit pending in the trial Court where all the co-sharers including the parties to the present proceeding are parties and the right title in respect of the disputed property will be decided in the said partition suit itself.
3. Heard Mr. R.N. Mahato, learned Counsel for the appellant and Mr. Jyotirmoy Bhattacharya, learned Counsel for the respondent.
4. On behalf of the appellant strong contention has been made that the defendant appellant cannot be evicted from the suit premises as he is staying there on his own right since he was born. The case of the plaintiff as regards grant of licence either by Krishna Bhabani in the year 1978 or by the plaintiff after settlement was made, cannot be acceptable nor has been accepted by the trial Court and therefore, the impugned decree could not have been passed. Concention has also been made that all the members of the family are admittedly residing in the said premises from the beginning and in such circumstances, right, title and interest of Krishna Bhabani and that too there being no proof of Jogendra having any sufficient fund out of which consideration money could be paid, the case of the plaintiff could not be accepted Law in this connection as decided in the cases of (1) State of West Bengal v. Mir Fakir Mahammad reported in AIR 1977 Cal 29, (2) Ravinder Singh v. Janmeja Singh & Ors. reported in 2000 (8) SCC 191, (3) Shantilal v. Mukundlal reported in AIR 1980 Cal 381, (4) T.H. Mustaffa v. M.P. Varghese reported in 1999 (8) SCC 692, (5) Rajani Kanta Pal v. Jaga Mohan Pal reported in 50 Indian Appeals 173, (6) Srinivas K. Kango v. Narayan Devji Kango reported in AIR 1954 SC 379 and (7) Kunja Behari Rana v. Gourhari Rana reported in AIR 1958 Cal 105 has been relied on by the learned Counsel for the appellant.
5. On behalf of the plaintiff respondent, learned Counsel has contended that the document of title in favour of Jogendra has never been challenged in any appropriate proceeding and is till in force. Further will of Jogendra was probated and that too after citation when admittedly no objection was raised by any of the parties including the present defendant and therefore, devolution of interest in the suit property in favour of Krishna Bhabani cannot be challenged in present manner by the defendant particularly when admittedly Charu Chandra and Kanailal died on January 15, 1972 and April 3, 1978 respectively. The deed of settlement by Krishna Bhabani in favour of the plaintiff has also been proved. Strong contention has been made against the contention of the defendant as regards the disputed property claiming the same to be the joint family property when no case of joint fund and far less of sufficient joint fund for acquiring the disputed property has been made out. Learned Counsel
