Back
2014 Supreme(Cal) 439
IN THE HIGH COURT AT CALCUTTA
Asim Kumar Mondal, J.
Girija Bala Bhakat & other
Vs.
Ganesh Lal Bhakat & other
S.A. No. 870 of 1981
Decided On : 25.7.2014
For the Appellants : Mr. P.B. Sahoo, Mr. Sudhakar Biswas.
For the Respondents: Mr. Priyabrata Ghosh.
A sale certificate issued in a proceeding by an appropriate authority is not binding on a person who was not a party to the proceedings.
Headnote:
ADVERSE POSSESSION - SALE CERTIFICATE - EVIDENCE - TITLE - RIGHT, TITLE AND INTEREST - CERTIFICATE ISSUED IN PROCEEDING BY APPROPRIATE AUTHORITY - VALUE IN EYE OF LAW - SUIT CHALLENGING CERTIFICATE SALE - JURISDICTION OF CIVIL COURT - BENGAL PUBLIC DEMAND RECOVERY ACT, 1895 - SECTIONS 20, 35, 34 AND 36.
Fact of the Case:
The plaintiff filed a suit for confirmation of possession, declaration of title, and injunction in respect of a plot of land. The defendant claimed title to the land by virtue of a sale certificate obtained in an auction sale held in execution proceedings. The plaintiff contended that the sale certificate was invalid as he was not a party to the proceedings and that the land was allotted to his father in a partition deed in 1906.
Finding of the Court:
The court held that the plaintiff was entitled to the land as it was allotted to his father in the partition deed and that the defendant had failed to prove that he had acquired title to the land by adverse possession. The court also held that the sale certificate was not binding on the plaintiff as he was not a party to the proceedings.
Issues: 1. Whether the plaintiff had a right, title, and interest in the suit property? 2. Whether the defendant acquired title to the land by adverse possession? 3. Whether the sale certificate was valid and binding on the plaintiff? 4. Whether the Civil Court had jurisdiction to entertain a suit challenging the certificate sale?
Ratio Decidendi: 1. The plaintiff had a right, title, and interest in the suit property as it was allotted to his father in the partition deed of 1906. 2. The defendant failed to prove that he had acquired title to the land by adverse possession. 3. The sale certificate was not valid and binding on the plaintiff as he was not a party to the proceedings. 4. The Civil Court had jurisdiction to entertain a suit challenging the certificate sale under Sections 20, 35, 34, and 36 of the Bengal Public Demand Recovery Act, 1895.
Final Decision: The appeal was dismissed, and the judgment and decree of the lower court were affirmed.
Asim Kumar Mondal, J.
This appeal is directed against the decree and judgment passed by learned Additional District Judge, First Court, Midnapore in Title Appeal No. 158 of 1975.
Learned First Appellate Court by the decree and judgment impugned passed in Title Appeal No. 158 of 1975 dismissed the appeal on contest with the cost against the respondent No. 1 and ex-parte without cost against the rest. Learned First Appellate Court has been pleased to affirm the judgment and decree passed by the learned Munsif, First Court, Midnapore in Title Suit No. 91 of 1956 wherein learned Munsif has been pleased to decreed the suit on contest with cost against the defendant No. 1 and dismissed the suit without cost against the defendant No. 2 (Ka to tha) and dismissed ex-parte against the rest. Learned Munsif in the said judgment and decree confirmed the right, title and interest of the plaintiff Ganesh Lal Bhakat in the said land along with permanent structure thereon confirming the possession of the plaintiff therein. It is further directed by the learned Munsif in the said judgment that defendant No. 1 was directed to remove the chala, when 30 days of the date of the decree made by him in the suit land by his own cost failing which the plaintiff is entitled to remove the same. The defendant No. 1 was also permanently restrained by an order of injunction by causing any disturbance in the peaceful possession of the plaintiff in the suit property. The Pleader Commissioner’s report, field book and the case map do form part of the decree.
The case of the plaintiff Ganesh Lal Bhakat as it appears in the judgment and decree impugned passed by learned First Appellate Court with plot No. 340 which is the suit plot and the Western portion of the non-suit plot 342 formed one compact bastu holding in the suit land and the other lands of the suit mouza at Colonelgola and other mouzas belonged to Mewalal and his brothers. Mewalal died leaving his son Shibjatan. In the year 1906 there was a partition between Shibjatan and his co-sharers by a registered deed. The suit plot along with other lands fell to the share of Shibjatan. The another co-sharer Mewalal got the land purchased from Ujjalmani in the year 1895 along with other lands in his share. Shibjatan died leaving behind the plaintiff as his son and the lands allotted to Shibjatan, therefore, devolved upon the plaintiff and plaintiff has been in possession of the same including the land purchased from Ujjalmani. The defendant No. 1 purchased in an auction in a certificate execution proceeding against Debnarayan and Shibnarayan the land which was purchased from Ujjalmani. According to the case of the plaintiff the same has been recorded in plot No. 339. It is the further case of the plaintiff that the suit plot No. 340 has been wrongly recorded in the name of the defendant No. 1 along with possession of the plaintiff has been noted against the said plot. It is the further case of the plaintiff that the defendant no. 1 constructed a chala ghar in a portion of the suit plot by trespassing into it. Hence the plaintiff filed the suit for the relief as prayed therein.
The defendant no. 1 contested the suit by filing written statement and he denied the right, title and interest as well as possession of the plaintiff in the suit land.
According to the case of the defendant the suit plot No. 340 fall to the share of Mewalal who transferred the same to Debnarayan and Shibnarayan and ultimately it was purchased by defendant No. 1 at a certificate sale proceeding case. Defendant No. 1 was also alleged that after auction purchase he took possession in the land in 1935 and had been in possession thereof since then. Defendant No. 1 also claimed that he has acquired right, title and interest in the suit plot by adverse possession.
The defendant No. 1 Ganesh Prasad Bkakat has preferred the present appeal before this Court on the ground.
That both the Courts below have erred in law in decreeing the suit in f
