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IN THE HIGH COURT OF CALCUTTA, CIRCUIT BENCH AT PORT BLAIR
BISWAJIT BASU, J.
Ajit Kumar Baul – Appellant
Versus
Minati Baul and Others – Respondents
SAT No. 005 of 2018
Decided On : 01-04-2019
Important Points
Subject
Property Law - Specific Performance
Act Referred
SPECIFIC RELIEF ACT : S.34
TRANSFER OF PROPERTY ACT : S.53(a)
Headnote
Specific Performance - Property Dispute - Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 - Section 162(f)
Fact of the Case:
The plaintiff claimed that his elder brother agreed to transfer half of a purchased property to him, but the transfer was not executed. The plaintiff sought a declaration of his right over the property based on his possession since the date of purchase.
Finding of the Court:
The court found that the plaintiff's possession did not extinguish the defendants' tenancy rights under Section 162(f) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966. The court also held that the plaintiff could not claim ownership based on possession alone, as all land in the Union Territory of Andaman & Nicobar Islands is vested in the government.
Issues: The issues included the validity of the plaintiff's claim based on possession, the extinguishment of tenancy rights under Section 162(f), and the jurisdiction of the Civil Court under Regulation 204 of the said Regulation of 1966.
Ratio Decidendi: The court held that the plaintiff's possession did not extinguish the defendants' tenancy rights under Section 162(f) and that the plaintiff could not claim ownership based on possession alone. The court also found that the Civil Court did not have jurisdiction to entertain the suit for declaration of the plaintiff's right over the property.
Final Decision: The court dismissed the second appeal and affirmed the decree of the lower court, holding that no substantial questions of law were involved in the appeal.
Advocate Appeared:
For the Appellant : K.M.B. Jayapal.
For the Respondent: Anjili Nag.
BISWAJIT BASU, J.
1. The present second appeal is at the instance of the plaintiff and is directed against the appellate decree dated September 28, 2018 passed by the learned Additional District Judge, North and Middle Andaman, Mayabunder in Title Appeal No. 01 of 2018 thereby affirming the decree dated December 28, 2017 passed by the learned Civil Judge, Junior Division, North and Middle Andaman, Mayabunder in Title Suit No. 11 of 2009.
2. The first substantial question of law formulated by the Hon'ble Division Bench at the time of admission of the present second appeal is as follows:-
Whether the first lower appellate court committed error of law by affirming the judgment and decree of the learned Trial Court by failing to appreciate that the court below made out a new case beyond pleading about the claim of the plaintiff seeking specific performance of contract on the basis of oral agreement which was neither pleaded nor any evidence were adduced by the plaintiff?
3. The said substantial question of law demands close scrutiny of some of the averments of the plaint, relevant to answer it, as such reproduced below:-
"(3) That one Kumud Behari Baul was the elder brother of the plaintiff. Both the brothers were living together in village Shantipur and both wanted to purchase a plot of land in that village to settle their family. The mother of the plaintiff and his elder brother Kumud Behari Baul paid them a sum of Rs. Eleven thousand and thereafter Kumud Behari Baul and one Keshab Ch. Biswas R/o Shantipur jointly purchased the landed property an area 1.95 Hect bearing S. No. 45/10 on 11-12-1985 situated in village Shantipur in which both shared half portion of the land, it means 0.9750 Hect land come in the share of Kumud Behari Baul.
(4) That as per the verbal agreement reached between the plaintiff and his brother Kumud Behari Baul, the said land an area 0.9750 Hect was purchased in the name of Kumud Behari Baul and after purchase Kumud Behari Baul shall transfer half share of the land an area 0.9750 Hect in the name of the plaintiff. It means Kumud Behari Baul was to transfer 0.4875 Hect land in the name of the plaintiff, but he failed to do so in his lifetime and died in the year 196. Thereafter the landed property recorded in the name of Kumud Behari Baul was mutated in the joint names of the defendants. The record of Right or Holding register showing that the said property was mutated in the joint names of the defendants are annexed herewith.
(5) That the mother of the plaintiff and his elder brother paid some money to them in equal part to purchase landed property in the year 1985. Both invested the said money in equal part to purchase the land an area 0.9750 Hect. The said sale deed was prepared in the name of Kumud Behari Baul who was the elder brother of the plaintiff and who had promised to transfer the half of the purchased land in the name of the plaintiff.
(6) That 08.08.1996 the mother of the plaintiff and his elder brother Kumud Behari Baul made declaration before notary, south 24 parganna that she paid money to his son to purchase the said land in equal part and her son Ajit Kumar Baul has half share of the said purchased land. The details are clear from the said declaration.
(7) That all the defendants named above sworn affidavit before the Ld. J.M.F.C. Mayabunder on 19/07/2001 and stated that they will give half of the landed property bearing S. No. 45/10 to the plaintiff after mutation of the same in their name. The details are clear from the said affidavit.
(8).....
(9) That inspite of the fact that:
(i) The mother of the plaintiff paid the money to purchase the land an area 0.9750 Hect out of the said S. No 45/10.
(ii) Declaration made by the mother of the plaintiff that the plaintiff has half share in the aforesaid land an area .9750 Hect.
(iii) The affidavits sworn by the Defendants that they will give h
