Jitendra Nath Paria Alias Ghosh & Others vs Ajit Kumar Ghosh & Others

Sabyasachi Bhattacharyya, J.

The present second appeal arises from a judgment of affirmance passed in a suit, inter alia for declaration of title of the Plaintiff No. 1/Respondent in

respect of Ka, Kha, Ga, Gha, Una and Cha schedules of the suit property, for recovery of khas possession and injunction in respect of portions of the

suit property and for partition in respect of the suit property. The suit having been decreed by both the courts below, the defendants have preferred the

instant second appeal. The facts alleged, and findings of the courts below respectively, are as follows:

Plaint version:

Bhuban, Fakir and Satish, who were brothers, were admittedly co-owners of Ka/1, Kha/1 and Ga/1 properties. Satish died first â€" he was unmarried,

so his shares devolved upon his two brothers, Bhuban and Fakir, in moiety (½) shares. Then Fakir died, leaving wife KusumKumari as his only heir.

Bhuban had 2 sons, Surjya and Aswini. Aswini was adopted by one Prananath Bera, thus losing share in his biological father Bhuban’s property.

Surjya, in turn, had two sons (Jitendra and Ajit) and a daughter (Bijali Roy). Jitendra has two sons, Pradip and Trideeb. Ajit is the Plaintiff in the

present suit, Jitendra is Defendant No. 1/1, Bijali is Defendant No.1/2, Pradip the Defendant No. 2 and Trideeb the Defendant No. 3 in the suit.

KusumKumari, the widow of Fakir, loved Plaintiff Ajit like her son and donated Ka and Kha schedule land to Ajit by a registered gift deed dated

February 26, 1974, which was read over by Aswini to her. Jitendra (plaintiff’s brother) made father Surjya execute a deed of gift in favour of

Jitendra’s sons Pradip and Trideeb (Defendant nos. 2 and 3 respectively) by exercising undue influence and coercion. Defendants 1-3 forcibly

occupied Kha and Ga property since Baisakh, 1381, so plaintiff was entitled to mesne profits and khas possession.

Defendant Nos. 1/1, 2 and 3 version:

Admittedly brothers Bhuban, Fakir and Satish were original owners. Fakir died first â€" leaving wife Kusum as only heir. Satish then died unmarried.

So Bhuban inherited his property too as heir â€" in total owning 2/3rd share (1/3rd his own + 1/3rd of Satish). Kusum had 1/3rd share of her deceased

husband Fakir. Kusum took loan for her husband’s funeral from one Brajendra Mondal, but was unable to return the same. So Brajendra filed

Title Suit No. 700 of 1926, which was decreed, compelling Kusum to sell 78 decimals of land, comprised of her entire 1/3rd share. Surjya also helped

Kusum by selling his 57 decimals of land. Kusum thus handed over Ka, Kha, Ga and Gha schedule lands to Surjya by amicable partition and started

residing at her father’s residence.

Trial Court’s findings:

The lis thus primarily hinges around the question whether Satish died first, as per the plaintiff’s claim, or Fakir, as alleged by the defendants. The

plaintiff examined himself as Plaintiff’s Witness (P.W.1.). Defendant No. 5 Aswini Bera was examined as P.W.2. The latter witness

categorically stated that Satish had died first and was unmarried. The trial court believed him since he was full brother of Bhuban and the best person

to say who died when. Further, during cross examination, P.W.2 stated that Fakir died two years prior to Bhuban and Satish died three-four years

prior to Fakir. The said witness also deposed that he was 75/76 years old at the time of adducing evidence.

On the other hand, Defendant no. 1/1 adduced evidence as Defendants’ Witness (D.W.) 1, who was aged forty years at the time of adducing

evidence. The said witness stated that Fakir had died first. He was disbelieved due to his young age, which, in the Trial Court’s view, negated out

any chance of his direct knowledge of the death of either Fakir or Satish. Accordingly, the trial court came to the finding that Satish died first, leaving

behind his two brothers Bhuban and Fakir as heirs. Then Fakir died, leaving behind his wife KusumKumari. So the property was vested in Bhuban and

Kusum in equal share, as recorded in the R.S. record. The trial court accordingly disbelieved the defence case that Kusum had only 1/3rd share in the

suit property.

Certified copies of two deeds were produced by the defendants â€" the first, a registered transfer deed dated July 5, 1926 executed by Bhuban and

Kusum in favour of one Brajenda Nath Mondal (Exhibit A in the suit), and the second a ‘Jibansatya’ Deed executed by Surjya in favour of

Kusum dated July 9, 1926. Both the said documents were disbelieved by the trial Court on the premise that Surjya, being literate, created those deeds

to take advantage of Kusum’s illiteracy. Particularly in the absence of even oral evidence to establish that Fakir had taken a loan and Kusum and

Surjya had to clear off those dues by selling their property, the trial court arrived at the opinion that the defendants could not get a decree declaring the

said two documents to be legal and valid. It was further found that the deed of Jibansatya in favour of Kusum was created by Surjya only to justify

and vindicate the false deed dated July 5, 1926.

The defendants had further alleged about an amicable partition between themselves. However, no date of such alleged partition was mentioned in the

written statement, hence the trial court disbelieved the same. On the other hand, the trial court held a gift deed dated February 26, 1974 (Exhibit 1 in

the suit), executed by Kusum in favour of the plaintiff, to be genuine on the basis of corroborative oral evidence of P.W.s 2 and 3. On such aspect, the

trial court also relied on the statement of P.W.2 Aswini in his oral evidence, that he read over the deed to Kusum, as well as on a certificate to that

effect given by him before he signed the said deed (Exhibit 1/1). The plaintiff acquired title over Ka, Kha, Ga and Gha schedule properties by virtue of

the said deed.

The trial court further found, on the basis of Exhibits 4 and 4/a, that the plaintiff was in possession of the suit property. As regards the deed of gift

dated April 9, 1975 (Exhibit D), whereby Surjya donated his property to defendant nos. 2 and 3, the trial court found that Surjya himself had no right,

title and interest as he failed to prove the same, thereby no title was conferred thereby on the donees. It was also found by the trial court, “then the

defdts are estopped from demanding any gift by Surjyaâ€​.

Consequentially the said deed (Exhibit D) was held to be a void document. Accordingly the suit was decreed in part on contest as against defendant

nos. 1/1,2 and 3 with costs and ex parte without costs against the rest. The plaintiff’s title in respect of Ka, Kha, Ga, Gha, Una and Cha schedules

was declared and a preliminary decree for partition was passed in respect of the suit property. Over and above, the trial court passed a decree for

khas possession in respect of the Kha and Ga schedule lands in favour of the plaintiff, and also passed a decree for permanent injunction restraining

the defendant nos. 1 to 3 from disturbing the plaintiff’s peaceful possession in respect of the suit property.

Appellate Court’s findings:

The appellate court held that it found no reason to disagree with the finding of the trial court accepting the evidence of P.W. 2 in preference to the

deposition of D.W.1 on the point of who predeceased the other â€" Satish or Fakir. The appellate court found that since P.W.2 was a man of 75 years

while D.W.2 was only 45 years old, the evidence of the former should be more acceptable on the material point in controversy, and the latter’s

evidence very much doubtful. The appellate court also placed reliance upon a deed of gift (Exhibit A) executed by KusumKumari in favour of the

plaintiff, where she claimed eight annas interest in the property, and an entry in the R.S. Khatian to hold that there was strong presumption in favour

of the plaintiff’s version of the case. The appellate court held that the defendants failed to give cogent and satisfactory evidence to rebut the

presumption arising in favour of the plaintiff out of the said entry in the R.S. Khatian.

The appellate court went on to hold that since Satish predeceased Fakir, KusumKumari had 8 annas share in the suit property and was correctly

recorded as having as much in the settlement khatian. By the deed of gift (Exhibit 1), KusumKumari had gifted her interest in the property to the

plaintiff and, according to the appellate court, the defendants had not adduced any evidence “of standard†which would justify the conclusion that

the said deed was a colourable transaction.

As regards Exhibit A, the appellate court held that by virtue of the said document only 30 decimals of land in plot no. 379 (schedule Ga) was sold by

KusumKumari and that the plaintiff had not taken that transferred land within the fold of the partition suit. As regards Exhibit B, the appellate court

found that whatever statement was made by Surjya could not bind or affect the interest of KusumKumari in her inherited property.

The appellate court also affirmed the dismissal by the trial court of the plaintiff’s prayer for mesne profits, inasmuch as the property being of a

joint character, the claim for mesne profits against the other co-sharers was held to be irrelevant. Accordingly, the appeal was dismissed, affirming the

judgment of the trial court.

Substantial questions of law:

Vide order dated January 24, 2017, as modified by order dated February 15, 2017, a co-ordinate Bench had formulated the substantial questions of law

on which the present appeal is to be heard. Those are as follows:

i) Is the findings of the Courts below on the point of time of death of Satish and Fakir, according to law based on the basis of the evidence produced

by the parties?

ii) Whether the decree for recovery of possession in respect of ‘kha’ and ‘ga’ schedules of the suit property without any findings as to

whether the respondents or their predecessor-in-interest had ever any possession in the aforesaid suit properties, is bad in law?

iii) Were the Courts below omitted error in law in respect of interpretation of the documents i.e. exhibit ‘A’ and exhibit ‘1’?

iv) Whether the Courts below committed error in law in respect of interpretation of the documents i.e. exhibit ‘A’ and ‘A1’?

Arguments:

Arguing on the substantial questions nos. ii) and iii) together, since the two are connected, the defendant nos. 1/1, 2 and 3-appellants submit that no

decree, either for permanent injunction regarding possession,or for recovery of khas possession, could have been passed by the courts below at the

instance of a coowners against the others, particularly in a suit for partition. It is submitted that since it is a cardinal and settled proposition of law that

each co-owner is deemed to be in possession of the joint property for himself/herself as well as the other co-owners, there could not be any exclusivity

in the possession of any individual co-owner. Accordingly, whatever physical possession the co-owners had in respect of a joint property, would

always be subject only to partition. No decree for recovery of possession ousting other co-owners and/or injunction excluding the other co-owners

could be contemplated with regard to a joint property.

In this context, learned Senior Advocate appearing on behalf of the appellants places relevant paragraphs of the plaint as well as the reliefs regarding

recovery of possession and permanent injunction sought for by the plaintiff in the present lis. To bolster the arguments of the appellants on the

aforesaid proposition, learned Senior Advocate for the appellants places reliance on a Division Bench judgment reported at AIR 1928 Cal 574 (Ram

Chandra Saha vs. Lakshmi KantaSaha). It was held in such judgment, inter alia, that where one co-sharer is in sole occupation of a portion of a joint

property but his possession is not hostile or inconsistent with the joint ownership of the other co-sharers, the latter are not entitled to get a decree for

khas possession of such property.

The next judgment cited on behalf of the appellants is 94 I.C. 1926 Oudh 921 (Kesho Prasad vs. Gaya Bux Singh). It was held in such judgment that

where one of the co-sharers exclusively occupies land which he holds in common with the rest of the co-sharers, the remedy of the other co-sharers

is by means of partition. A suit for joint possession is not maintainable. The third judgment cited by the appellants is reported at 82 Indian Cases Cal 31

(Ekabbar Ali Shah vs. Shaikh Kon Ali). In the said report, it was held that the equitable principle, that one co-sharer cannot disturb possession of the

other, cannot be called in aid unless it is found that the co-shares are in possession of separate portions by mutual arrangement for the sake of

convenience. Unless such mutual arrangement is proved, a co-sharer who is dispossessed cannot recover possession and his only remedy lies in a suit

for partition.

The next judgment cited by the appellants is reported at XXXII CWN 837 (Mahesh Narain vs. Nowbat Pathak). In the said judgment, a Division

Bench of this Court held that if there is no assertion of hostile title, no exclusion or ouster, obviously an action of ejectment cannot lie by a co-owner

against another in respect of a joint property.

Moving on to substantial questions of law no. i), the appellants argue that the evidence of P.W.2, which was the pivot of the judgments of both of the

courts below, could not be relied upon at all. In this context, the appellants place the cross-examination of P.W. 2 dated June 1, 1982. It is pointed out

that in the same breath the said witness stated that his age on that date was 75/76 years on the one hand, and that Bhuban died in the year 1309 BS,

Fakir died two years previous to Bhuban and Satish died 3/4 years prior to Fakir, on the other. From such statement, the appellants say that, according

to the corresponding English calendar years, Satish died in or about the year 1896 and Fakir in or about the year 1901. If the age of P.W. 2 was 75/76

years in 1982, when the evidence was being adduced, then the said witness must have been born in or about 1906/1907. Therefore, the appellants

point out, even according to P.W. 2 himself, both Satish and Fakir were born prior to the birth of P.W. 2. As such, it is argued that the purported

knowledge of P.W. 2 about the chronology of dates of death of Satish and Fakir respectively, despite the age of P.W. 2 being much more than that of

D.W. 1, was at best hearsay and not direct. Hence, according to the appellants, the very basis of the evidence of P.W. 2 being accepted in preference

to that of D.W. 1 goes and both of them become equally unworthy as witnesses of the dates of death of Satish and Fakir respectively. On such score,

the appellants challenged the very root of the judgments of both the courts below.

Next arguing on substantial question of law no. iv), it is submitted by the appellants that by virtue of Exhibit-A, Kusum and Surjya sold their shares to

Bojendra towards the payment of a loan. The trial court held that since the said loan had not been established by adducing oral evidence, and since

Surjya, taking advantage of Kusum’s illiteracy, had made her executed the “false†deed, ExhibitA could not be relied upon. Consequent upon

disbelieving Exhibit-A, Exhibit-D was also held to be void. It is relevant to mention that Exhibit-D was a purported deed of gift dated April 9, 1975

executed by Surjya in favour of the defendant nos. 2 and 3.

The appellants argued that Exhibit-A was erroneously interpreted by both the courts below. Even if the finding of the first appellate court is looked

into, 30 decimals of land of plot no. 379 (schedule-‘ga’) was sold by KusumKumari. As such, in any event the plaintiff’s title in respect of

the entire suit property could not be declared and only shares of the parties could be declared by the courts below. As far as Exhibit-1 is concerned,

which was a deed of gift executed by Kusum dated February 26, 1974, it was argued that no evidence was adduced to prove that two witnesses had

signed the said deed in presence of the executant. As per Section 3 of the Transfer of Property Act, read with Section 68 of the Indian Evidence Act,

in order to prove such gift deed properly, such evidence was sine qua non according to the appellants. It is further pointed out that the defendants had

denied execution of such purported deed in paragraph no. 10 of their written statement.

All the aforesaid contentions are controverted by the respondent no. 1, who, in turn, argues that the finding of the courts below were justified and

involved questions of fact which ought not be interfered with in a second appeal. It is submitted that, as per the requirement of Section 68 of the Indian

Evidence Act, in case of a registered deed there is no need to prove attestation, unless execution of such deed is specifically denied. The respondents

submitted that such purported deed was never specifically denied by the defendants. As such, it is submitted the onus did not shift on the

plaintiff/respondent no. 1 to prove due attestation of the deed. Moreover, it was submitted that sufficient prove of such attestation is, in any event, on

record and it cannot be said that attestation of the deed had not been proved.

Respondent no. 1 further submits that such technical and factual question cannot be agitated by the appellants in a second appeal. As far as the

ground nos. ii) and iii) are concerned, it is submitted by the contesting respondent no. 1 that such questions are not relevant in view of the respondent

no. 1 having proved ouster from schedules-‘kha’ and ‘ga’ of the suit property and injunction as well as recovery of possession was rightly

granted by the courts below. In this context, the appellants interjected by submitting that Exhibit-D, which was a deed of gift dated April 9, 1975

executed by Surjya, was not lent due credence by the courts below and was unnecessarily disbelieved on an erroneous decision on Exhibit-A. Exhibit-

A, being a strong documentary evidence, could not be disbelieved and held fictitious on the mere assumption that Surjya had taken advantage of

Kusum’s illiteracy. As such, those evidence are also vitiated.

Decision with reasons:

Upon hearing learned counsel for both the sides and consideration of the materials on record, substantial questions of law no. ii) and iii) are taken up

for decision first. At the first blush, it is evident that the decree granted by the courts below, in so far as recovery of possession and injunction are

concerned, could not have been granted in any event in respect of joint properties. It was never claimed by the plaintiff/respondent no. 1 that the suit

property was ever partitioned by metes and bounds. As such, specific portions of joint property could not be culled out of the hotchpot and recovery of

possession and/or injunction granted.

Moreover, recovery of possession and injunction are reliefs which, in almost all cases, are unavailable in favour of some co-sharers against the other

cosharers. It is also seen that a strict interpretation of prayer-‘ka’ of the plaint, seeking declaration of the plaintiff’s title in respect of the

suit property, is not compatible with the plaint averment of the property being joint and un-partitioned as well as with prayers-‘ga’, ‘gha’

and ‘una’. In the same breath the plaintiff could not claim that the entire suit property was joint and un-partitioned on the one hand, and that

exclusive title of the plaintiff in respect of specific portions of such property was to be declared, on the other. In view of such contradictory and

mutually exclusive reliefs having been sought, the suit itself, as framed, merited dismissal as not maintainable.

However, in view of the inordinately long pendency of the litigation, this Court deems is fit to mould prayer ‘ka’ and read the same as a

declaration of the plaintiff’s shares in respect of the suit property and not exclusive title in respect of portions thereof. If prayer-‘ka’ is read

in such light, the same becomes compatible with the rest of the plaint and the other reliefs. If prayer ‘ka’ is read in such light, the suit for

partition is maintainable. An examination of the judgment of both of the courts below reveals, however, that the Trial Court as well as the appellate

court proceeded on mere assumptions in assessing the evidence, thereby rendering the judgment of both the courts below perverse. While answering

the substantial question nos. i) and iv), it is seen that the courts below proceeded on various assumptions such as documentary evidence like Exhibits-

A and B were fictitious, only because the underlying loan was not proved and since Surjya might have unduly influenced the illiterate Kusum. All such

findings were rendered in thin air without adhering to specific evidence.

The question, whether due credence was lent to Exhibit-D, is entirely dependent on a proper interpretation of Exhibits-A and 1. As such, the factual

findings of the courts below are also vitiated by perversity, being arrived at de hors the materials and evidence on record. Even the finding, as to Satish

having pre-deceased Fakir, was based on a perverse appreciation of evidence, since the intrinsic discrepancy in the evidence of P.W.1, inasmuch as

his own date of birth was subsequent to the dates of death of both Satish and Fakir, and the effect of such discrepancy in the context of other

evidence, on proving the chronology of dates of death of Satish and Fakir, was overlooked by both the courts below.

In the foregoing circumstances, the judgments of both the courts below cannot be sustained. Accordingly, S.A. No. 335 of 1985 is allowed, thereby

setting aside the judgments and decrees of both the courts below and remanding the matter to the Court of the Civil Judge (Junior Division) at Ghatal,

District-Paschim Medinipur for rendering judgment and decree in the suit afresh, on the materials and evidence already on record, but hearing both

sides afresh, treating prayer-‘ka’ of the plaint to be one for declaration of the plaintiff’s share in respect of the suit property. The Court of

the Civil Judge (Junior Division) at Ghatal, District-Paschim Medinipur, while rendering such judgment and decree, will keep in mind the observations

made hereinabove and apply the correct principles of law in appreciating the evidence on record.

It is made clear that this Court has not gone into the merits of the issues involved and the Court of the Civil Judge (Junior Division) at Ghatal,

DistrictPaschim Medinipur will decide the suit afresh within a period of six months from the date of communication of this order to the said Court,

without being influenced in any manner by any of the observations made herein or in the judgments of either of the courts below. There will be no

order as to costs. Lower court records be sent down to the Trial Court by special messenger at the cost of the respondent no. 1. Such costs are to be

put in within a week from date.