Dipak Sarkar vs Pakhibala Chowdhury

S. Talapatra, J.—1. Heard Ms. P. Sen learned counsel appearing vice Ms. D. Das, learned counsel for the appellant and Mr. A. Dasgupta, learned counsel appearing for the sole-respondent.

This is an appeal from the judgment dated 06.09.2011 delivered in Title Appeal No. 13 of 2010 by the Additional District Judge, Belonia, South Tripura reversing the judgment dated 10.03.2010 delivered in Title Suit No. 27 of 2007. At the time of admitting this appeal, the following substantial questions of law were framed by this court by the order dated 31.01.2012 :

"i. Whether the right, title and interest of a person over his property can be transferred by him during his life time after amicable/mutual partition of the said property?

ii. Whether a person after selling out her share in the ancestral property can have any claim over the share of the property of others devolved from the common ancestor after his mutual partition?

iii. Whether the first appellate court being a Court of facts and law is under obligation to appreciate the evidence as has been recorded or can give its own interpretation different from the evidence recorded on the basis of its own ideas and notions? and

iv. Any other substantial questions of law for just decision of the second appeal."

At the outset, it has to be noted that the learned counsel appearing for the appellant did not press for framing any new substantial question of law.

For having the perspective on which the challenge in this appeal has been made by the appellant, the essential facts may be introduced. The plaintiff is the appellant who fled the suit being Title Suit No. 27 of 2007 for declaration of title and permanent injunction against the defendant. The plaintiff, the appellant herein has pleaded that his father namely Sital Chandra Sarkar inherited a piece of land measuring .02 acres as the legal heir of Sarat Chandra Sarkar. Sarat Chandra Sarkar inherited a viti class of land measuring .06 acre. Out of that viti class of land, Sital Chandra Sarkar was entitled to 1/3rd share of the said land and accordingly he got a piece of land (viti class) measuring .02 acre.

Ms. P. Sen, learned counsel appearing for the appellant has submitted that the land originally belonged to Gour Chandra Sarkar who was the great grandfather of the plaintiff. Gour Chandra Sarkar had 6(six) sons namely Sarada Charan Sarkar, Sarat Chandra Sarkar, Shyama Charan Sarkar, Dinabandhu Sarkar, Harmohan Sarkar and Akshoy Kumar Sarkar. Gour Chandra Sarkar had the landed property comprised in both nal and viti class of land measuring 4.68 acres. After death of Gour Chandra Sarkar, the property was partitioned mutually by way of oral agreement amongst 6(six) sons of Gour Chandra Sarkar and each of them got .78 acres out of the said 4.6 acres of land. Out of the land Sarat Chandra Sarkar got .72 acres of the land belonging to nal class and.06 to the viti class. After death of Sarat Chandra Sarkar his 3(three) sons inherited his entire property and out of that, .06 acres of viti class of land, Sital Chandra Sarkar got .02 acres of land. The said land measuring .02 acres was transferred to the plaintiff who is the son of Sital Chandra Sarkar by a registered sale deed No. 1- 2508. The other co-sharers along with Sital Chandra Sarkar were Kheytra Mohan Sarkar and Monoranjan Sarkar. The suit property is comprised within the land that the plaintiff purchased from his father, Sital Chandra Sarkar. When the plaintiff had started filling up of that land by earth, the defendant No. 1, the respondent No. 1 herein, in particular tried to resist him from filling up of that land for its further development.

The appellant in the plaint has asserted that after acquisition of the title by the sale deed he constructed a hut on the said land but there was a slope and he wanted to level up the trajectory and the said incidence of resistance occurred on 04.07.2007. As a result, the plaintiff was compelled to file the suit of permanent injunction. None of the parties questioned the existence of .02 acres of land (1 ganda by local measure) part of Khatians No. 1517/1 and 1517/2, C.S. plot No. 4740 and 4740/9171 bounded by North - Anadi Sarkar and Shankar Sarkar, by South - Ratan Majumder, by East - 44 National Highway, by West - Dulal Choudhury and others. The incidence of partition has not been disputed by the defendants except the defendant No. 1, the respondent No. 1 herein, who raised some limited objection.

The fact that transpires from the records is that out of 30 defendants only the appellant fled the written statement to dispute the facts as narrated in the plaint and to resist the claim of the plaintiff, the appellant herein. The sole respondent by fling the Written Statements has contended that ---

"5. That from para 5 of the plaint it appears that late Gour Chandra Sarkar the grand father of answering defendant left behind 0.36 acres of viti (Dokan Viti land), out of which the answering defendant is entitled to 1/6 that is 0.06 acres of land equivalent to 3 gandas of land. It would be pertinent to state here that Gour Chandra Sarkar had 6 sons namely Sarada Sarkar, Sarat Chandra Sarkar, Shyama Charan Sarkar, Dinabandhu Sarkar (father of answering defendant). Harimohan Sarkar and Akshay Sarkar. The answering defendant is the only legal heirs of Dinabandhu Sarkar. So she is entitled 0.06 acres of land of said Dokanviti. The plaintiff Sri Dipak Sarkar is a grand son of Sarada Sarkar. Said Sarada Sarkar had 3 sons namely Shital Sarkar, Kshetra Sarkar and Monoranjan Sarkar. So the land of Sarada Sarkar will be divided into 3 shares. Accordingly Shital Sarkar the father of plaintiff is entitled to 0.02 acres of land is liable to be divided amongst all the legal heirs of Shital Sarkar. Accordingly plaintiff is not entitled to 0.02 acres of land alone.

That from para 5 it also appears that no formal partition of the plaintiff and defendants were made amongst themselves. But maximum of the share holder disposed of their ancestral properties towards various vendees and accordingly the following khatians vide No. 1052 in the name of Santi Ranjan Biswas, 195 in the name of Anil Chandra Pal 2580 and 1058 in the name of Madhu Sudhan Das Choudhury, 1242 in the name of Ratan lal Biswas 1138 in the name of Makhan lal Debnath, 219 in the name of Amar Krishna Majumder, 788 in the name of Parimal Bhowmik.- 1517/1,2, in the name of Sarada Charan Sarkar and others and 452 in the name of Gouri Sarkar and other have been prepared.

That, the answering defendant did not sale any land from her share of the 36 acres of Dhokan Vitti stated in previous plot No. 2362 on 31.08.2002 the land of the said viti was demarcated by the Amin of S.D.M. Belonia as per order of S.D. Belonia vide No. 112/SHR/BLN/2002 dated 1.8.2002. From the report of demarcation it appears that the answering defendant did not sale any land from her share of said 0.36 acres of land from previous plot No. 2362 of Mouja Jolaibari. So the answering defendant is entitled to 0.06 acres of land which cannot be disturbed by any way. It a survey commissioner is appointed to demarcate the land then it will be revealed that the answering defendant is possessing less than 0.06 acres of land. So deprived her from her legal and legitimate claim over 0.06 acres of land that plaintiff deaverly fled this case. "

It would be apparent from the above quoted Para-7 that the sole-respondent has contended that she did not sell any land from her share pertained to the plot No. 2360, Mouza Jolaibari and as such the respondent is entitled to 0.06 acres of land. But, in fact she has been possessing the land measuring .06 acres of land. The Trial Court, the Court of Civil Judge(Junior Division), Belonia, South Tripura by observing as under decreed the suit :

"At the outset, we need to have a clear idea about the relation of the plaintiff with the defendants and proforma defendant and as to how the suit land came into existence and devolved from its actual owner to the parties of this suit. Now keeping the above question in mind we need to focus on Gour Ch. Sarkar who is the grand father of defendant No. 1 and great grand father of the plaintiff. Sri Sarkar during his life time was the owner of 4.69 acres of land out of which 4.32 acres was nal land and the rest, i.e. .36 acres was Dokan Viti (shop establishment). The land in dispute is the Dokan Viti and accordingly our focus will be find to .36 acres of land exclusively. Since after death of Sri Sarkar, his six sons namely Sarada Charan Sarkar, Sarat Chandra Sarkar, Shyama Charan Sarkar, Dina Bandhu Sarkar, Akshoy Sarkar and Harimohan Sarkar took equal share in the Dokan Viti i.e. .06 acres each. The father of the defendant No. 1 accordingly got .06 acres of land and since after him, the defendant No. 1 became its owner and possessor. Sarat Ch. Sarkar, one of the son of Lt. Gour Ch. Sarkar and grand father of the plaintiff got his share of .06 acres and since after him, his three sons which includes Sital Ch. Sarkar, father of the plaintiff got .04 acres each. Rest of the defendants and pro-defendants are the heirs and successors of Lt. Gour Ch. Sarkar each of them got their share of land and some of them sold their share also. The above fact is not disputable and as the pro-defendants and to some extent defendants No. 2 to 4 have no relation with this suit. Accordingly our discussion will be continued to the plaintiff and the defendant No. 1 and on their claim and counter claim of ownership and possession over the suit land. the plaintiff has claimed that he became the owner and possessor of the suit land since it was sold to him by his father who inherited it as paternal property. The sale deed bearing No. 1-1251 of 2003 is available with record and it was duly identified by the scribe P.W. 3 Chiranjib Chakraborty as Exbt.17. It is evident from Exbt.17 that the suit land of 1 ganda which is Dokan Viti in nature appertaining to dag No. 4740 and 4740/9171 of khatian No. 1517/1 and 1517/2 was sold to the plaintiff by his father. the above fact is a proof that vide execution of Exbt-17, the plaintiff became the owner of the suit land.

The defendant No. 1 on her side relied on the report of Tahsildar marked as Exbt- A and claimed that she did not sell her share of the land. The defendant No. 1 in her chief deposed a similar facts but in her cross-examination she vividly admitted that she sold her entire share of land both nal as well as Dokan Viti Sale Deed No. 1-2946 of 1977. The plaintiff side has adduced certified copy of the above sale deed but it was not proved. However it is admitted by defendant No. 1 there is no bar to take it for discussion. The certified copy of the sale deed is marked as Exbt-1 and it is evident that the defendant No. 1 in the year 1977 sold her entire share of land which she inherited from her father. As stated above, the defendant No. 1 denied of having sold her share of land in her examination in chief and she tried to fortify it by referring it to Exbt-A but where the fact itself it is admitted by defendant No. 1 in her cross-examination in such circumstance a document like Exbt-A became non-functional and inactive.

The other plea of defendant No. 1 was with regard to absence of partition of the properties among the heirs which makes the sell of the suit land to the plaintiff by his father void and illegal. As discussed earlier, the above principle is applicable to the defendant No. 1 also. The defendant No. 1 herself sold her entire share of land without any specific partition and if her contention is applied here, then the disposal of all her properties was also void and illegal. However, the practical aspect is that a co-owner is entitled to disclose of his/her share even without partition and so the sale of the suit land the plaintiff by his father was proper and lawful.

We also need to focus on the fact that the defendant No. 1 in connivance with the defendant No. 2 to 4 are taking initiative to dispossess the plaintiff from the suit land as found from our above discussion and I am of the view that the defendant No. 1 should be permanently restrained from taking any such initiative in the future.

Accordingly, both the issued are answered in favour of the plaintiff."

The very basis of such finding is that the said-respondent has admitted that she sold her entire share of land both nal as well as dokan viti vide sale deed No. 1-2964 of 1977. The said deed has been introduced in the evidence by the plaintiff. As such the said sale deed has been made part of the records of evidence, but in her cross-examination she had admitted that on 25.07.1977 she sold .75 acres of land to one Chandan Chakraborty, son of late Jogendra Chakraborty by the sale deed No. 1-2946. Her father who was the owner of .78 acres and after partition she got .75 acres of land which she sold to Chandan Chakraborty, Kanu Sarkar, Krishna Sarkar, Nirmal Sarkar and Kumod Sarkar and she had also sold her share of land which measured 3(three) gandas in total. She had no knowledge about the latest khatian. The sole respondent has categorically admitted in the cross-examination as under:--

"I have no knowledge that Sital Sarkar sold 2 decimals of land to Dipak Sarkar, the plaintiff. I am unable to say whether any separate khatian was prepared for the shop establishment. It is not a fact that the plaintiff is possessing the suit land and I am not possessing the suit land. "

By the impugned judgment, the first appellate court disagreed with the inference drawn by the trial court that the said-respondent had transferred the entire land of her share. Therefore she cannot legitimately claim any right or lien over the suit land. For purpose of reference, the relevant part of the said finding by the first appellate court is gainfully extracted hereunder :

"10. It is apparent from the discussion made above based on the evidence on record that it has not been specifically proved that 0.36 acre of dokan viti was partitioned amongst the co-sharers. In Exbt.A, the report of Tahsildar dated 31.08.2002, it is clearly stated that 0.36 acres of dokan viti was not partitioned amongst the co-sharers and that some of the jotedar sold some portion of the property. It was also stated therein that the appellant did not sell any land from her share therein and that she was entitled to 0.36 acre of dokan viti land. The report was referred to the plaintiff during his cross examination and he did not dispute the report as mentioned above. It was thus clearly proved that no partition of the dokan viti in fact took place amongst the co-sharers. Learned court below thus committed error in holding at page-7 in the middle portion that there was no dispute that the dokan viti was partitioned amongst the co-sharers learned court below committed second mistake in holding that the appellant in her cross examination had admitted that she sold her entire share of nal and dokan viti class of land vide sale deed No. 1-2046 of 1977. While no such deposition is found in her cross examination that she sold out her entire share of nal and dokan viti class of land, even if such a deposition existed that will not override the contents of documentary evidence, i.e. the sale deed itself. It is often experienced that the rustic witnesses without properly understanding the question put forward to them by the counsel of the adverse party answers a question in the affirmative. It would be risky to rely on such deposition. However, in the case in hand, where sale deed clearly says that she sold only her nal class of property. Learned court below ought not have held that she disposed of her land, both nal and dokan viti. While the execution of the sale deed in favour of the plaintiff by his father, selling his share of 0.02 acre of dokan viti class of land is not in dispute, in the absence of effective partition of the property amongst the co-sharers, title of the plaintiff over that portion of land cannot be declared. For the same reason, no co-sharer can be restrained from entering into any portion of the unpartitioned property. The submission of learned counsel for the respondent No. 1 that the decree may be modified restraining the defendants from interfering with the possession of plaintiff till the property is lawfully partitioned, cannot be allowed. The reasons is simple, plaintiff fled the suit for declaration of title with consequential relief. Since title of the plaintiff could not have been declared, no consequential relief can be granted."

[Emphasis supplied]

Ms. P. Sen, learned counsel appearing for the appellant has submitted that the finding returned by the first appellate court cannot be sustained as that finding is entirely perverse and emanates from misreading of the evidence already recorded by the trial court. She has categorically submitted that the land was duly partitioned and the partition was acted upon. Even from Exhibit-A, it appears that the sole-respondent has categorically recited in the sale deed No. 1-2946 that the Joint property was mutually partitioned and she sold out .75 acres on 27.07.1977. In the cross-examination what she has stated is that she sold out the land measuring .75 acres by the said sale deed No. 1-2946. She has further stated that other co-sharers also sold their share of land. But she did not state anywhere that she kept any part of the land of the joint property for her use. But in the examination in chief she has stated that she was entitled to the share of 0.06 acres of land. Out of the total viti class of land measuring 0.36 acres left by Gour Chandra Sarkar, she as the only legal heir of late Dina Bondhu Sarkar was/is entitled to 0.06 acres of land. In the deposition she has stated as under :

"That late Gour Chandra Sarkar is my grand father. He left behind 0.36 acres of viti (Dokan Viti land) out of which I am entitled to 1/6 share that is 0.06 acres of land equivalent to 3 gandas of land. It would be pertinent to state here that Gour Chandra Sarkar is the father of Sarada Sarkar, Sarat Chandra Sarkar, Shyama Charan Sarkar, Dinabandhu Sarkar(my father), Harmohan Sarkar and Akshoy Sarkar I am the only legal heirs of late Dinabandhu Sarkar. So I am entitled 0.06 acres of land of said Dokan Viti. The plaintiff Sri Dipak Sarkar is a grand son of Sarada Sarkar, said Sarada Sarkar had 3 son''s namely Shital Sarkar, Kheytria Sarkar and Monoranjan Sarkar. So the land of Sarada Sarkar will be divided in to 3 sharers. Accordingly Shital Sarkar, the father of petitioner is entitled to 0.02 acres of land and the said 0.02 acres of land is liable to be divided amongst all the legal heirs of Shital Sarkar. Accordingly plaintiff is not entitled to 0.02 acres of land alone."

Ms. P. Sen, learned counsel appearing for the appellant has further submitted that Exhibit-A is the report dated 31.08.2002 by one Motilal Biswas, Amin and that report has been introduced in the evidence without examining the said Amin. The basis of the said report is that whether the respondent No. 1 had sold out her share or not. From the discussion the said Amin could know that the respondent No. 1 did not sell out any land. There is no reference from whom the said Amin gathered that information and how far the said information can be relied for purpose of deciding whether part of the property comprised in the viti class of land measuring .36 acres of land was sold or how that was sold or whether her share measuring 0.06 acres remained unsold. That apart, the said report being in the realm of a private document has been admitted in the evidence without examining the author and as such the content of Exhibit-A has to be held not proved. Ms. Sen, learned counsel has therefore submitted that the finding in this regard by the first appellate court is perverse and the reversal finding is required to be interfered with.

Having referred to khatian No. 1517/1(Exhibit-6) and khatian No. 1517/2 (Exhibit-7) Ms. P. Sen has contended that the new plot No. 4740 corresponding to old plot No. 2362 has been recorded showing Sital Sarkar on possession, which is the suit land. Since the partition is not in dispute such separate possession showing the father of the appellant (plaintif) in possession, propounds a presumption as to the correctness, and such presumption has not been rebutted.

Mr. A. Dasgupta learned counsel appearing for the respondent while refuting the submission of Ms. P. Sen learned counsel appearing for the appellant has submitted that the total viti class of land measuring .36 acres was not partitioned among the legal heirs of Gour Chandra Sarkar. It remained intact even though some of the share holders had sold out their share by giving specific boundaries to the third parties. Thus it cannot be held that Sital Chandra Sarkar got a piece of land measuring .02 acres from that viti class of land measuring .36 acres and thus even if Sital Chandra Sarkar had transferred that land in favour of one of his sons namely Dipak Sarkar, the appellant herein, the transfer cannot be held to be valid. He has further submitted that the plaintiff was never in the possession. As such the decree for permanent injunction is unsustainable.

After going through the records and on the basis of the admission as made by the defendant No. 1 which is encompassed by Section 17 of the Evidence Act, this court is of the view that the plaintiff has successfully proved that the land transferred by his father measuring .02 acres was actually what his father got by way of amicable settlement. If the case is considered in view of the non-traverse rules in view of the fact that the defendants (except the defendant No. 1) have decided not to contest the pleaded case of the plaintiff it would irresistible lead to inference that the incident of the partition has been admitted by the other defendants except the defendant No. 1. Even the defendant No. 1 has admitted while executing the said sale deed that there was partition and on the basis of the partition she got her share and she had therefore sold out a land measuring .75 acres. No dispute has been raised by the said respondent stating that Sital Chandra Sarkar was not entitled to get the share of .02 acres from the viti class of land measuring .36 acres of land. The co-terminus evidence would definitely propel this court to come to a finding that there was partition of the viti class of land owned by Gour Chandra Sarkar and the sale as caused by Sital Chandra Sarkar was the land which fell in his demarcated share. Hence, the finding which has been returned by the first appellate court cannot be sustained. When admission is unequivocal that admission cannot be slighted by interpreting the societal practice. Moreover, when the admission of the respondent No. 1 has got support from the very sale deed she executed.

As already observed the Amin''s report, Exhibit-A, cannot be held for its mere admission without objection to have proved its contents as the author was not adduced as the witness. Thus uses or use of the content by the first appellate court was impermissible in law. The cumulative effect of those findings is that the impugned judgment cannot be sustained and accordingly the same is set aside by restoring the judgment and decree dated 10.03.2010 and 24.03.2010 delivered in Title Suit No. 27 of 2007 by the trial court.

In the result, the appeal stands allowed. Draw the decree accordingly.

Send down the LCRs forthwith.