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State of West Bengal Vs. Subimal Kumar Mondal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 339 of 1974
Judge
Reported inAIR1982Cal251
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100, 101 and 107; ;Evidence Act, 1872 - Sections 101 and 103; ;Transfer of Property Act, 1882 - Section 41
AppellantState of West Bengal
RespondentSubimal Kumar Mondal and anr.
Appellant AdvocateGouriprosad Mukherjee, Adv.
Respondent AdvocateHimadri Sankar Majumdar, Adv.
DispositionAppeal allowed
Cases ReferredBibi Fatima v. Union of India
Excerpt:
- .....of the p.ws. was accepted.no reason was assigned why that courtrejected the reasons given by the learnedmunsif in this respect. the question ofbenami was also cryptically discussed andstated that since the defendant failed toestablish the plea of benami, the samecould not be accepted. the learnedmunsif stated that the plaintiff filed onlytwo dakhilas, which were interpolated.this item was not at all discussed by thefirst appellate court. the other important points were dealt with by the learned munsif, but not considered by thelearned additional district judge. hencefor non-consideration of material evidence, the findings of fact cannot be accepted by this court in second appeal. 7. then about the merits. the plaintiff has asked for declaration of title. hence it is for him to prove.....
Judgment:

B.N. Maitra, J.

1. The plaintiff has alleged that the disputed land belonged to the minor, Satyendra Nath Patra. The latter's father acted as his guardian and for the benefit of the minor son, sold the disputed property to him on the 7th Dec., 1953, for Rs. 250/-. After making the purchase he has been possessing the property. But in the R.S. Khatian there is a wrong entry that the property belongs to his father and that land has vested in the State. The plaintiff's father did not make any purchase, The suit is for an injunction on declaration of the plaintiff's title and for a further declaration that the entry in the record-of-rights is incorrect.

2. Defendant No. 1 is the State of West Bengal. A written statement was filed denying the plaintiff's allegations. It has been stated that defendant No. 2, plaintiff's father, was a big raiyat and he made a Benami purchase. He did not retain the suit-land. That property has vested in the State.

3. The learned Munsif disbelieved the plaintiff's version in all respects and has held that the plaintiff had no money to make the purchase. That purchase was not a genuine one. The plaintiff was not in possession of the property. The dakhilas filed by him were interpolated. The plaintiff has no title. The suit was dismissed. The plaintiff went up in appeal. The appellate Court decreed the suit by allowing the appeal. Hence this appeal by the State.

4. It has been contended on behalf of the State that the decision of the learned Additional District Judge is incorrect. The facts and the law were not properly discussed. The important items considered by the learned Munsif were ignored by that court. The plaintiff has no title or possession.

5. The learned Advocate appearing on behalf of the plaintiff-respondent has stated that the fate of this appeal is concluded by the findings of fact arrived at by the learned Additional District Judge. The findings are binding on the High Court in second appeal. The case of Ramchandra v. Ramalingam in : [1963]3SCR604 decided by Gajendragadkar, J. has been cited to support this contention.

6. The first question arises whether there was non-consideration of material evidence by the learned Additional District Judge. In the case of Damadilal v. Parashram reported in : AIR1976SC2229 , A.C. Gupta, J. has stated that where there was non-consideration of material evidence by the first appellate Court, the High Court can enter into questions of fact in second appeal. The most important fact is that the entry in the R. S,Khatian is against the plaintiff. The statutory presumption attached to the record-of-rights was not considered by thefirst appellate Court. In the well-knowncase of Shankar Rao v. Sambhu reportedin (1941) 45 Cal WN 57 : (AIR 1940 PC 192).Sir George Rankin has stated that wherein arriving at the finding of fact, the finalCourt of fact omitted to consider the presumption arising out of the provisions of Section 135J of the Bombay Land RevenueCode (corresponding presumptionunder Section 103B of the Bengal Tenancy Act),such finding is not binding on the HighCourt in second appeal. The question ofpossession was elaborately dealt with bythe learned Munsif. But that finding hasbeen reserved in one line by stating thatthe evidence of the P.Ws. was accepted.No reason was assigned why that Courtrejected the reasons given by the learnedMunsif in this respect. The question ofbenami was also cryptically discussed andstated that since the defendant failed toestablish the plea of benami, the samecould not be accepted. The learnedMunsif stated that the plaintiff filed onlytwo dakhilas, which were interpolated.This item was not at all discussed by thefirst appellate Court. The other important points were dealt with by the learned Munsif, but not considered by thelearned Additional District Judge. Hencefor non-consideration of material evidence, the findings of fact cannot be accepted by this Court in Second appeal.

7. Then about the merits. The plaintiff has asked for declaration of title. Hence it is for him to prove his case because the principle of law is that the plaintiff must succeed on the strength of his own case and not on the weakness of, the defendant's version. This principle was laid down by Sir George Beaumont in the well-known case reported in (1946) 50 Cal WN 477 at p. 478 : (AIR 1946 PC 59). This principle was also enunciated in the case in AIR 1954 SC 526 at p. 538 by Jagannadhadas, J.

8. The learned first appellate Court practically accepted the plaintiff's version simply because defendant No. 2 did not controvert his allegations. But that Court failed to consider the broad fact that defendant No. 2 is none but the plaintiff's father. So the Court ought to have been cautious before allowing the appeal by reversing all the findings of fact. The observations of the Supreme Court are clear, in this respect. In the Court of T.D. Gopalan v. Commr., H. R. & C. E., Madras, reported in : [1973]1SCR584 , it has been stated that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent, detailed reasons for not accepting the testimony of a witness, the appellate court in all fairness should deal with those reasons before proceeding to form a contrary opinion about accepting the evidence, which has been rejected by the trial court. Here the evidence given by the plaintiff and the documents filed by him were rejected by the learned Munsif. Reasons were assigned why those documents could not be accepted and the evidence of the P. Ws. seemed to be unacceptable to him.

9. Then about the question of benami, The learned Additional District Judge should not have decided the point of benami simply by stating that the defendants failed to discharge the onus in this respect. In the latest Supreme Court case Bibi Fatima v. Union of India, Singha, J.; after following the case of Kalwa Devadattam in : [1963]49ITR165(SC) and : [1977]1SCR967 has stated that the question of onus in a benami case is important only in the early stages of the case. It may assume importance where no evidence is led. But where evidence has been led, an abstract consideration of onus is out of place and the case has to be decided on the evidence adduced by the parties. In such cases, the court has to consider about the source of the consideration money. This point was emphasized by the Judicial Committee all along and subsequently the Supreme Court has also taken that view.

10. The learned Munsif has pointed out that the plaintiff's evidence in this respect bristles with contradictions. When P. W. 1, Subimal, plaintiff, was cross-examined, he had to admit that he had nothing to show that he had sufficient money to pay the consideration money at the relevant time for the purpose of purchasing the disputed property. This witness has stated that he had a discussion with the vendor for purchasing the property. He admits that he did not go through the papers to satisfy himself about the vendor's title. He first says that he himself purchased the stamp paper. In the next breath he denies the same. These facts were elaborately discussed by the learned Munsif. P. W. 1 Subimal says that the consideration money was paid before the Registrar, whereas P. W. 2, Pramatha Nath, makes a different statement and states that the consideration was not paid before the Sub-Registrar, but in the presence of the scribe. The plaintiff has stated that he cannot say who presented the deed for registration and what was the value thereof. He says that he called P. W. 2, Pramatha, and other witnesses for witnessing the execution of the document. But P. W. 2 Pramatha Nath, has stated that the plaintiff did not call him and he went to that place of his own accord because he had business in the registration office.

11. The plot 1225 covers 90 cents, whereas the kobala in question, 1, will show that the area of that plot No. 1225 is 1.22. This shows that the plaintiff was tutored to make statements in the Court and somebody else was pulling the string from behind,

12. The learned Munsif pointed out that the two dakhilas, Exts. 6 and 6 (a), were interpolated and the same could not be connected with the entry of the plot in the disputed kobala, Ext. 1. This item was also not discussed by the first appellate Court.

13. Then about the point of possession, It has already been pointed out that the first appellate Court did not refer to the presumption arising out of the finally published R.S. Khatian, which is against the plaintiff. P. W. 1, Subimal, is the plaintiff and is thus an interested witness. P. W. 2, Pramatha Nath, lives in a different village altogether. P. W. 3, Niranjan Mandal, deposed in the plaintiff's favour. He says that he is a neighbour of the plaintiff. He admits that he does not know when the plaintiff first possessed the disputed plot nor does he know the plot number or the area of the disputed plot. The learned Munsif pointed out that this witness could not, give details about the land which he claims to have cultivated himself. This witness says that he has land to the adjoining east of the disputed land. The learned Munsif has pointed out that the kobala, Ext. 1, shows that to the adjoining east of the plot lies the land of Aniruddha, plaintiff's father. One fails to understand why in the face of these findings, the learned Additional District Judge allowed the appeal.

14. Thus from the aforesaid discussion the evidence of the P. Ws. cannot be believed. It must be held that the plaintiff's kobala, Ext. 1, is not a genuine transaction and he did not purchase the property in question for consideration. It is further held that he has no interest in the disputed land and that land is not in his possession. The decision of the learned first appellate Court is absolutely perverse,

15. The appeal is allowed. The judgment and decree appealed against be hereby set aside and those of the learned Munsif restored without any order as to costs.


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