Shri Narayan Chandra Modak vs Gupteshwar Tiwari and Another

D.P. Singh, J.—This appeal is directed against the judgment and decree dated 4.9.1991 passed by learned Land Acquisition Judge,

Dhanbad in LA Reference Case No. 51/89, whereby and whereunder he has dismissed the reference preferred by the appellant.

The appellant has claimed compensation for the lands of plot Nos. 403 and 404 of Mauja Alakdiha, khewat Nos. 2 and 2/2 acquired by BCCL

on the ground that the lands in question were registered in the name of his grandfather and father by virtue of registered sale deeds of the years

1933 and 1937. The appellant has denied that his uncle Chandrakant Modak had at any time got the land in question in his share by alleged

partition dated 2.1.1950. He further asserted that any sale deed executed by Chandra Kant Modak was in effective and invalid and not binding

upon him. In this context said Chandrakant Modak has been examined by the appellant as AW 3. However, the learned Court below, while

disposing of the reference u/s 30 of the Land Acquisition Act, dismissed his claim by the impugned order.

The main points raised in this memo of appeal are that the learned Court below has failed to consider that the sale deed executed in favour of

Surendra Nath Banerjee on 26.7.1961 could not be binding upon him, as AW 3 has admitted that he sold only his share in the property.

Therefore, the share of the appellant in these two plots 403 and 404 remained intact by which he is entitled to get compensation. According to this

memo of appeal further sale deed executed by different persons in respect of the lands of plot Nos. 403 and 404 are not binding against the

appellant. It further mentions that the learned Court below misconstrued the documentary evidence against him by which it was held that in Title

Suit No. 131/59, the father of the appellant has claimed recovery of possession over the some land appertaining to plot No. 357 while Title

Appeal No. 34/44 of 1962 as well as S.A. No. 904/63 had accepted the fact of partition of properties between the family of the appellant. The

appellant has further denied that certified copy of the suit register of Title Suit No. 356/61 preferred against said Chandra Kant Modak for 16

decimals of land appertaining to Plot No. 404 of village Alakdiha, decided in favour of said Chandra Kant Modak to get the compensation

awarded by him exclusively. Therefore, the impugned order requires to be set aside and claim for compensation of the appellant is allowed.

The respondent Gupteshwar Tiwari has contested the claim of the appellant on the basis of a sale deed dated 17.3.1982, by which Lilawati

Devi and others sold the lands of plot Nos. 403 and 404 in his favour on the basis of sale deeds dated 26.7.1961 and 16.8.1972. It is further

asserted that said Chandra Kant Modak has executed the sale deed in favour of one Surendra Kumar Banerjee in the year 1961 after which the

same land was transferred to Chhotelal Agrawal in the year 1964. As such the appellant plaintiff has no right, title and interest over the suit

property nor any right to claim compensation.

On the basis of pleadings, the reference Court considered whether appellant applicant has got any right, title and interest over the lands claimed

by it from plot Nos. 403 and 404 of mauja Alakdiha. It is undisputed fact on record that plot Nos. 403 and 404 were recorded originally in the

name of Ahlad Modak, which were subject matter of several pattas and sale deeds till 1947.

The appellant is the grandson of said Ahlad Modak and son of Siti Kanth Modak. It is also admitted fact on record that Chandra Kant Modak

has executed a sale deed in favour of Surendra Kumar Banerjee on 26.7.1961 by which plot Nos. 403 and 404 were transferred in his favour

which was later on subject matter of transfer in other sale deeds executed by different persons. The main contention raised by learned Counsel for

the appellant is that said Chandrakant Modak has no right, title and interest to transfer it in absence of any evidence that the property in question

was given to him as claimed by the respondents on the basis of the alleged partition dated 2.1.1950. Learned Counsel further submitted that even

in that event Chandrakant Modak could have transferred only l/3rd of the properties which may have been shared by him along with his two

brothers. In this context my attention was drawn towards the noncommittal stand taken by Chandra Kant Modak as AW 3 on 17.4.1991 asserted

that he has sold only his share in the properties. However, he has admitted in cross-examination that he had sold his lands to Surendra Nath

Banerjee.

Sri Sahay learned Counsel for the appellant submitted that this cannot be construed as a partition between the three brothers as presumption

was in favour of jointness of the family. It was also pointed out that this witness has asserted he did not get the consideration amount. Therefore,

the learned Court below should have accepted that the property not specifically given in the share of Chandrakant Modak, consequent to which

the appellant was entitled for 1/3rd share in the compensation amount. In this context Sri Sahay has relied upon Bharat Singh and Another Vs.

Bhagirathi, It is submitted that in view of these decisions, a mitakshra Hindu family has got presumption of jointness unless the partition between the

co-sharers has been proved.

Sri Sahay has further stressed that in Jugal Kishore Singh and Others Vs. Gobind Singh and Others , it is held that joint family property remains

joint until partition has been proved. There is no evidence by the respondents to show what other properties/land/plots were allotted to

Chandrakant Modak in the said partition dated 2.1.1950 and what plots were allotted to his other two brothers Srikant Modak and Harendra

Modak. This shows that the partition has not been proved by the respondent, which is the backbone of respondents'' case. Therefore, even by the

two sale deeds Exts. B/2 and B/3 both dated 26.7.1961 the purchaser and subsequent purchasers could get only 1/3rd share in plot Nos. 403 and

404 i.e. Chandrakant Modak''s share in the said joint family property, and therefore, the respondent Gupteshwar Tiwari is entitled to only 1/3rd of

the compensation amount, and not the entire.

I find that the contention raised by Sri Sahay is not tenable in view of the fact that the sale deed dated 26.7.1961 has notbeen challenged

anywhere. The evidence of AW 3 says that he has no idea who was in possession of the properties and who were contesting for the compensation

amount. The said sale deed has been acted upon and later on three sale deeds of the year 1964, 1972 and 1982 dealing with the property are on

records. The appellant has not claimed on which portion he is continuing in possession of plot Nos. 403 and 404. The learned trial Court has

considered all these aspects at page 9 of paras 7 and 8 how the properties of Ahlad Modak have been dealt with by different share holders

independently. The learned Court below has further discussed the reasons for which the claim of the respondent Gupteshwar Tiwari has been

accepted by him.

The lands of plot Nos. 403 and 404 admittedly have been dealt with by different persons after sale deed dated 26.7.1961 executed by AW 3,

own uncle of the appellant. If any share was to be claimed in these properties, the appellant was free to file a suit for appropriate relief, which has

not been done. The present reference has been preferred by him nearly after 30 years when the compensation was granted to the respondents for

the lands measuring 85 decimals of plot Nos. 400, 403, 404, 405/2 and 425/2. The law cannot help negligent litigants. If the appellant has got any

interest in the properties and the compensation, he may have sought relief in appropriate forum.

In such view of the fact, the onus to prove that the properties in spite of exclusive and separate dealings by the co-sharers regarding different

properties had no effect on the jointness of the property remained with the appellant. AW 3 Chandra Kant Modak has not stated specifically that

no partition has taken place between his brothers and he has not transferred portion of the lands of plot Nos. 403 and 404 rather he admitted that

he has executed the sale deed dated 27.6.1961 in favour of Sri Surendra Kumar Banerjee which fell in his share. Outsider purchasers like

Surendra Kumar Banerjee again in 1964, 1972 and 1982 are not supposed to ensure the family partition before purchasing the lands. It has also

come on record that the portions of plot Nos. 403 and 404 were coming in possession of the purchasers with pakka structures. This shows that

even if the properties were not partitioned between the brothers of Chandra Kant Modak, the possession of the land right from 1961 continued in

possession of the purchasers, which has not been disputed. Therefore, the continuous possession over the properties by different purchasers is one

of the aspect which weighed heavily upon the mind of the learned Court below to refuge the reference made on behalf of the appellant. As such,

Chandra Kant Modak cannot be allowed to raise something against the admitted document executed by him on 27.6.1961. It would be unfair to

unsettle the continuous possession of different purchasers merely on the ground that the properties were not partitioned by metes and bounds

between co-sharers of the appellant.

Having considered all the circumstances, discussed above, I find that the present appeal is without merit. The judgment of the lower Court is

hereby confirmed.

In the result, this appeal be and is hereby dismissed. There shall be no orders as to costs.