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Dukhiram Dey Vs. Mrityunjoy Prosad Daw and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 196 of 1970 (Analogous to A.F.O.D. No. 78 of 1978)
Judge
Reported inAIR1975Cal294a
ActsEvidence Act, 1872 - Sections 13, 31, 33, 50, 101, 104 and 114; ;Code of Civil Procedure (CPC) , 1908 - Section 151; ;Limitation Act, 1908 - Schedule - Article 142; ;Limitation Act, 1963 - Section 31
AppellantDukhiram Dey
RespondentMrityunjoy Prosad Daw and ors.
Appellant AdvocateSudhis das Gupta and ;Amiya Narayan Mukherjee, Advs.
Respondent AdvocateA. Gangulie, ;P.L. Sharma and ;N.K. Mitra, Advs.
Cases ReferredJyoti v. Girija Bhusan
Excerpt:
- .....of dispossession and won that case. that decision was challenged by dukhi ram by filing the title suit no. 102 of 1967 under order 21, rule 103 of the code. he has repeated his statements which he had engrafted in his written statement in title suit no. 73 of 1966. he has prayed for declaration of his interest in the property and for a permanent injunction.4. the plaintiffs contested that suit by filing a written statement.5. the learned subordinate judge accepted the plaintiffs' version, rejected dukhi rain's contention, decreed title suit no. 73 of 1966 and dismissed dukhi ram's title suit no. 102 of 1967. the correctness of these decisions has been challenged by dukhi ram by filing present appeals.6. it has been contended on behalf of the appellant (dukhi ram) that the evidence.....
Judgment:

B.N. Maitra, J.

1. Title Suits Nos. 73 of 1966 and 102 of 1967 were heard analogously. In the former suit, the plaintiffs are Mrityunjoy Prasad and Bhairab Nath. Their case is that the disputed plot No. 4162 was duly recorded in the C. S. Khatian in the name of one Sheikh Hamizuddin, who was its owner under the landlords, who were Kandu Chaudhuris. In 1945, he expired leaving one Sheikh Akbar as his son. Akbar used to possess the land till 1950, when on account of communal disturbance in the locality, he left the place. The properly in suit together with the structures standing thereon remained vacant and unoccupied. By a registered kobala executed on the 2nd Feb. 1965, Sheikh Akbar sold the property for Rs. 1000/- to one Tara prasad Sarkar, who took possession thereof. Then by a registered sale deed dated 30th Apr. 1966. Tara Prosad sold that property to the plaintiffs for a sum of Rs. 11,500/-. The plaintiffs obtained possession, in the R. S. Khatian. the land was recorded in Sk. Akbar's name. Tara prosad filed an application in the Baranagore Municipality for mutation of his name. The plaintiffs also filed similar application in that Municipality, but the same is pending. Defendant No. 1, Dukhi Ram Dey. has been declaring that he is the owner of the property on the footing of a kobala executed by the heirs of Sheikh Mofi-juddin on the 19th Nov. 1952; and Tara Prosad and plaintiffs also did not acquire any title. The plaintiffs took out a copy of that kobala and noticed that Dukhi Ram purported to purchase both the plot No. 4162 and the adjoining plotNo. 4163 taking, advantage of Sk. Akbar's absence from the locality. Sk. Mofijuddin or his heirs never had any interest or possession and consequently, Dukhi Ram also did not acquire any title thereto. The suit is for declaration of title to the property in question. Subsequently, the plaint was amended and it was asserted that should the plaintiffs be found to be out of possession, a decree might be passed for recovery of possession,

2. Defendant No. 1 filed a written statement denying the plaintiffs' allegations. The defence, inter alia, is that Sk. Mofijuddin, who was a tenant of the property, possessed the plots Nos. 4162 and 4163 exclusively by paying rent and municipal taxes. Sheikh Hamijuddin or Sheikh Akbar had no title or possession. Sheikh Akbar is a fictitious person. After Mofijuddin died, his sons, Sk. Mansur Ahanimad, Sk. Bechu and Sk. Raja and his widow, Hamidun Bibi, inherited the property and possessed the same exclusively. Then Sk. Mansur and others sold those two lands together with the structures standing thereon to him by a registered kobala dated 19th Nov., 1952. He possessed the same and paid the rent and the municipal taxes. The kobalas executed in favour of Tara Prosad and of the plaintiffs are collusive and bogus documents executed without consideration. The suit is barred by time. Moreover, the suit is also barred by adverse possession. After the purchase he evicted a tenant and some trespassers, who remained in unauthorized occupation of the property. The R. S. Khatain was prepared in his name.

3. It is necessary to state some other facts. Dukhi Ram evicted one Atindra Nath Datta from the property and obtained possession, Then the plaintiffs filed a misc. case under Order 21 Rule 100 of Civil P. C. against him complaining of dispossession and won that case. That decision was challenged by Dukhi Ram by filing the Title Suit No. 102 of 1967 under Order 21, Rule 103 of the Code. He has repeated his statements which he had engrafted in his written statement in Title Suit No. 73 of 1966. He has prayed for declaration of his interest in the property and for a permanent injunction.

4. The plaintiffs contested that suit by filing a written statement.

5. The learned Subordinate Judge accepted the plaintiffs' version, rejected Dukhi Rain's contention, decreed Title Suit No. 73 of 1966 and dismissed Dukhi Ram's Title Suit No. 102 of 1967. The correctness of these decisions has been challenged by Dukhi Ram by filing present appeals.

6. It has been contended on behalf of the appellant (Dukhi Ram) that the evidence given on behalf of the plaintiffs cannot be accepted. It is clear case of discontinuance of possession within the meaning of the provisions of Article 142 of the old Limitation Act of 1908. Reference has been made to the Bench case of Jyoti Mojumder v. Girija Bhushan in : AIR1965Cal11 to show that the new Limitation Act does not take away the petitioner's right to appeal. Sheikh Hamijuddin was not the owner of the disputed property. Sk. Akbar was a fictitious person and he was not Hamijuddin's son. The purchase made by Tara Prosad from him is a sham and collusive transaction and the same is the position regarding the plaintiffs' purchase from Tara Prosad in 1966. Dukhi Ram purchased the property in Nov. 1952, possessed it, evicted the tenant, Atindra Datta, and some trespassers, paid rent to the Government and taxes to the Baranagore Municipality. The documentary evidence filed by him will clearly show Sk. Akbar was not a resident of 22/1/H or of 22/H, though in his kobala, Ext. 1 (a), and (in ?) his alleged affidavit Ext. 4. his address had been given at 22/1/H, Cossipore Road. Holding No. 85 consisted of plots Nos. 4162 and 4163. Dukhi Ram purchased both the plots from the lawful owner's heirs. Reference has been made to the Full Bench case of Official Receiver v. Govindaraju in AIR 1940 Mad 798 at page 801 to show that in a suit for ejectment by a person out of possession, he cannot succeed unless he proves that he was in possession within twelve years of the suit and the burden is not on the defendant to prove adverse possession. The Bench case of Kanai Lal v. Nityananda in (1977) 1 Cal LJ 578 has been referred to show that the certified copies of Assessment Registers of a Municipality, where the provisions of the Bengal Municipal Act are applicable, are admissible under Section 35 of the Evidence Actbecause they are entries made in a register prescribed to be maintained under Section 136 of the Bengal Municipal Act, and such entry is an authorized one.

7. The learned Advocate appearing on behalf of the plaintiff-respondents has stated that the C, S. Khatian, Ext, 6 (a), shows that Sk. Hamijuddin was the recorded owner regarding the disputed plot No. 4162. Then the R. S, Khatian. Ext. 6 (b), was also prepared in Sk. Akbar's name. The court must hold that Sk Hamijuddin was the previous owner and Sk Akbar was his son. This has been stated by P. W. 2. Sanwar AH, and p. W. 6, Anil Chandra Mitra, who are Akbar's neighbours. They are competent witnesses within the meaning of Section 50 of the Evidence Act to depose about the relationship of Akbar with Sk Hamijuddin. The order passed in the misc. case filed under Order 21 Rule 100 of the Code is against Dukhi Ram. The evidence adduced by Dukhi Ram cannot be believed. There is no reason why the court should not accept the oral and documentary evidence given by P, Ws. The case is not governed by the provisions of Article 143 of the old Limitation Act,

8. The first question is whether Sk. Akbar is a fictitious' person and who was the real owner of the disputed plot No. 4162. Section 50 of the Evidence Act says that the opinion regarding the relationship is relevant. The section was considered by S. K. Das, J, in the well-known case of Dol Gobinda v. Nemal reported in : AIR1959SC914 . It has been stated at page 918 of the report that under Section 50 of the Evidence Act, when the court has to form an opinion about the relationship expressed by conduct as to the existence of such relationship by any person, who has special means of knowledge, it is relevant. The person whose opinion is expressed by conduct is relevant when he is a member of the family or otherwise, has special means of knowledge on the particular subject of relationship, in other words, the person must fulfil the conditions laid down in the later part of this section.

9. It is common ground that only the C. S. Khatian, Ext. 6 (a), stands in Sheikh Hamijuddin's name. But on this also, there is a conflict between the entry in the C. S. Khatian and the R. S. Khatian. It has been stated byMudholkar. J, in the well-known case of Durga Singh v. Tholu in : [1963]2SCR693 that where there is such conflict, the latter entries recorded in the record of rights are presumed to be correct and not the earlier ones. Now, the important question arises which entry in the three R. S. Khatians, Ext. 6 (b), Exts. 1 and 1/1, will prevail. The first one prepared first in 1964 is in Dukhi Ram's name. The next is in Sk. Akbar's name. Ext. 6 (b). Then an application was made by Dukhiram for correction of name. The Revenue Officer purported to exercise jurisdiction under Section 151 of the Civil P. C. corrected the previous entry in Akbar's name and passed an order that the R. S. Khatian be prepared in Dukhiram's name, vide the decision. Ext. J. But the Revenue Officer is not a court. This principle was laid down in the case of Adinath v. State of West Bengal in : AIR1975Cal257 . After relying on the decision of my Lord, Banerjee, J, it has been stated that such power under Section 151 of the Code cannot be invoked by the Revenue Officer for there is no such provision in the West Bengal Estates Acquisition Act. Hence that judgment, Ext. J, and the R. S. Khatian prepared in Dukhi Ram's name in 1967 must be left out of the picture. So. the conflict remains between two R. S. Khatians, viz., one prepared in 1964 in Dukhi Ram's name, and the second one in Sk. Akbar's name in 1966. But there is a snag in the matter. Akbar did not file any case, No suo motu proceeding was initiated under Section 44 (2a) of the Act for deleting Dukhiram's name from first R. S. Khatian and for making such entry in the next R. S. Khatian in favour of Sk. Akbar. Consequently, such unauthorised entry in the subsequent R. S. Khatian has no value in the eye of law. The upshot of such discussion is that the first R. S. Khatian prepared in 1964, Ext. 1, will prevail, and not the later one in Sheikh Akbar's name.

10. 3k. Akbar was not examined as a P. W. and there is no explanation of the same. In the case reported in AIR 1949 Cal 457 at page 461, Bajranglal v. Sitaram, it has been stated that if a party fails to call a material witness, who is in a position to throw light on the transaction and to refute the allegations of the other side, there will be adverse inference under Section 114 ofthe Evidence Act. His affidavit. Ext. 4, and kobala. Ext. 1 (a) give his address as 22/1H Cossipore Road, Calcutta. But the evidence of D. W, 1 Nihar Bose, Superintendent of Archives Dept., and of D. W. 2, Krishna Nath, employee of the Assessment Dept. of the Calcutta Corporation, shows that there is no existence of premises Nos. 22H and 22/lH Cossipore Road in the Cossipore Assembly Constituency and in the Assessment Register of the Corporation respectively,

11. The learned Advocate appearing on behalf of the respondents tried to bank on the evidence given by P. W, 2. Sanwar Ali, and p. W. 6, Anil Chandra Mitra. But P. W. 2, Sanwar, is not a neighbour because he says that his house is about 100/150 cubits away from the disputed land. He is a man of straw and is a rickshaw-puller. This is Calcutta property and not a mofussil land where the residents generally know the other residents. Similarly P. W. 6, Anil Chandra Mitra, is not a man of substance as he says that he is a bidi binder and previously, he worked as a labourer for about 12/14 years. He states that his house is about 100 cubits from the property in question, and he deposed for the plaintiffs in the Sealdah Court. So, none of them is a competent witness within the meaning of the provisions of Section 50 of the Evidence Act and the conditions given in the later part of the section have not been fulfilled.

12. Sk. Akbar's affidavit. Ext. 4, has no value in the eye of law because he was not examined as a P. W and there is no explanation why he did not enter into the witness-box. So, we disbelieve the plaintiffs' version on this and hold that Akbar was a fictitious person and was not a son of Sk. Hamijuddin.

13. Then the question arises whether the defendant and before him his predecessors had any interest in the land in question and who has title to the property. In this respect, the R. S. Khatian, Ext. 1, is in the defendant's name. D. W. 5, Sanat Kumar Nandy, who lives at 66. Maharaja Nanda Kumar Road, says that the disputed holding No. 85 covering 4 or 41/2 cottahs of land which is to the south of his house, is being possessed by Dukhi Ram for the last 17/18 years and before him. Mofijuddin possessed the same. After Mofijuddin, his heirs Sheikh Mansur, SheikhBechu and Sheikh Raja possessed it. He has also stated that Hamijuddin or Akbar, Tara prosad or Mrityunjoy (plaintiff No. 1) never possesssed the holding.

14. D. W. 7. Jagannath Nath, lives at 265 Maharaj Nanda Kumar Road (South). He says that his house is to the opposite of 85, Maharaj Nanda Kumar Road intervened by a road and that premises has an area of 4 to 44 cottahs of land. Dukhiram has been possessing the same for the last 17 years. Mansur and Bechu possessed the property before Dukhiram started possessing it and he did not see Hamizuddin or Sk. Akbar On this land He further says that Tara Prosad or Mrityunjoy never possessed the property. They are the neighbours and thus had special means of knowledge within the meaning of the principles enunciated in the aforesaid case of Dol Gobinda v. Nemai : AIR1959SC914 (supra) and the conditions of the later part of Section 50 of the Evidence Act have been fulfilled. We accept their testimony and find that the disputed property was owned by Sheikh Monjuddin and after his death, by his heirs, Sk. Mansur and others and they were the owners of the property in question, and Sheikh Akbar or Sk. Mofijuddin was not its owner, defendant purchased the property from those heirs by a registered kobala, Ext. D, executed on the 19th Nov. 1952.

15. Now about some documentary evidence, on behalf of the plaintiffs, only two dakhilas of 1372 and 1373 B. S., Exts. 3, 3 (a), were put in the suit was instituted in 1966 and both the dakhilas are of that year. P. W. 7, Mrityunjoy says that Government did not accept any pent from him. No fax receipt has been put in to show that taxes were ever paid by Sk. Akbar or by Tara Prosad or by the plaintiffs to Baranagore Municipality.

16. The Assessment Register, Ext. L, of 1948-1949, is in the name of defendant's predecessor. It will appear therefrom that both the plots Nos. 4162 and 4163 comprised holding No. 85. The next copy of the Assessment Register of Baranagore Municipality of 1953-54, Ext. L/l. stands in Dukhiram's name. The next copy, Ext. L/2, is also in defendant's name for 1963-1964. That was an area where the Bengal Tenancy Act applied up to its repeal in Nov. 1965. The municipal tax receipts, Ext, Hseries, stand in Dukhiram's name regarding the holding No. 85. In view of the bench case of Kanailal v. Nitya Nanda ((1977) 1 Cal LJ 578) (supra) these entries are relevant as the provisions of the Bengal Tenancy Act are applicable there. He filed dakhilas, Ext. F series, to show that from 1368 B. S. rent was being paid by his previous tenant Atin Datta and then by him,

17. He also filed the copy of the suit register, Ext. R. of Title Suits Nos. 167 of 1955 and 316 of 1954 regarding the disputed holding No. 85. He instituted that suit for recovery of possession and a decree was passed in his favour. He also filed certified copies of the decrees in Title Suits Nos. 361 of 1964, 268 of 1954 and 246 of 1955 to show that he obtained decrees for eviction against some trespassers and also against one Atin Datta, vide Ext. E series. Surely,, these decisions are admissible in evidence under Section 13(a) of the Evidence Act because Dukhiram's interest regarding holding No. 85 was recognized by the court by some transactions.

18. It has been contended on behalf of the respondents that Dukhiram is not a party to the plaintiffs kobala, Ext. 1. So. as a third party, he has no locus standi to challenge that kobala as a fictitious document. Similar contention advanced in this Court was repelled by relying on the decision in (1923) 37 Cal LJ 122: (AIR 1923 Cal 521), it has been stated in the case in (1942) 46 Cal WN 798 at page 800: (AIR 1942 Cal 514)i that a person, who is not a party to a document, is not debarred from challenging it as a benami and fictitious document and he can say that no consideration was paid. The first kobala, Ext. 1 (a), executed on the 2nd Feb. 1965. by Sk, Akbar was for a sum of Rs. 1,000/- only. p. W. 7, Mrityunjoy, plaintiff No. 1, says that the land was sold at Rs. 6,000/- per cottah in 1965 or 1966 and he cannot say what was the price in 1965. Though the first kobala purported to be executed by Sheikh Akbar on the 2nd Feb. 1965, was for a paltry sum of Rs. 1,000/- within the Baranagore Municipality, in 1966 the sale was made by Tara Prosad in favour of the plaintiffs on the 30th April. 1966, for a sum of Rs. 11,500/-There is no manner of doubt that it was absolutely a sham and fictitious transaction made without payment ofany consideration, and we hold accordingly.

19. The learned Advocate appearing on behalf of the respondent laid emphasis on the point that possession was delivered to Tara Prosad, Akbar's transferee by P. W. 1 Sri Jatindra Mohan Mukherjee, an Advocate. But his evidence shows that he cannot say who was in previous possession of the land. He says that he drafted the kobala, Ext. 1, and there was no tea shop on that land at that time, though in the kobala itself, it has been stated that there is a tenant of the property. It is common ground that Atin Datta was a tenant of that property and he was evicted by Dukhiram in execution of a decree with police help, vide Ext. E, which is the copy of the decree in Dukhiram's favour in Title Suit No. 361 of 1965. That gave rise to the Misc. case under Order 21. Rule 100 of the Code on the allegation that plaintiff's possession was disturbed by Dukhiram. Hence, the evidence given by P. W. 1. Mr. Jatindra Mohan Mukherjee, that he delivered possession to Tara Prosad by handing over the key cannot be relied upon.

20. P. W. 2, Sanwar. and p. W. 6, Anil, say that they do not known if there was a tea stall of Atin Datta on that land. P. W. 7, Mrityunjoy, (Plaintiff No. 1) stated in the Seldah Court that Atin was a tenant of that property, vide Ext. O. though he denied the same in the trial court while he was confronted with that statement, in view of the bench case in (1922) 36 Cal LJ 186: (AIR 1921 Cal 7811 Supreme Court cases of Bharat in : [1966]1SCR606 , Union of India in : [1977]1SCR967 and Sita-ram v. Ramchandra Nag in : [1977]2SCR671 such statement can be taken as p. W. 7, Mrityunjoy's admission.

21. Then about the evidence of possession, which is linked with the important question whether the suit is barred by time and whether the provisions of Article 142 of the old Limitation Act will be attracted,

22. Reference may be made to the cases in (1927) 31 Cal WN 806: (AIR 1928 Cal 118). (1937) 66 Cal LJ 359: (AIR 1938 Cal 206), AIR 1939 Cal 354, AIR 1966 SC 605 and : AIR1974SC706 . The principle of law enunciated under the provision of Article 142 of the old Limitation Act of 1908 is that that article applies if the plaintiff has discontinued possession and the onus is on him to prove his possession of the property within twelve years,

23. The quality of evidence given by P. W. 1, Mr. Jatindra Mohan Mukherjee, and p. W. 2. Sanwar Ali, has already been discussed, p. W. 3, Tara Prosad Sarkar, is the plaintiffs vendor and is an interested witness. He says that he purchased the land in 1965 and before that he had no knowledge of the property, p. w. 6, Anil, says that after 1950. Akbar came occasionally and plucked cocoanuts and sajnas. But P. W. 4, Indra Kumar, has clearly stated that he did not see Akbar possessing the land, though he knows it from 1950. Any way this evidence clearly shows that Akbar did not exercise possession for over 12 years. This witness says that in 1956, no Muslim lived on the land and a Hindu lived there, it has already been stated that the defendant filed copies of the decrees, Ext. E series, to show that he evicted the unauthorised occupants from the property and obtained possession. p. w. 7, Mrityunjoy, being plaintiff No. 1 is an interested witness, we disbelieve their evidence.

24. It is clear from the aforesaid discussion that a fictitious sale was made by him in favour of Tara Prosad in 1965, i. e., after the statutory period of twelve years. The case is squarely covered by Section 31(a) of the New Limitation Act, We hold that Tarapada acquired no interest by his purchase from Akbar and the plaintiffs have acquired no title to the suit land on the footing of the purchase made by them from Tara Prosad. The earlier registered kobala of 1952 in Dukhiram's favour operated as notice under explanation I of Section 3 of the Transfer of Property Act and his actual possession of the property was tantamount to constructive notice under explanation II of that section. P. W. 7, Mrityunjoy, says that he did not even enquire at the Municipal Office or make any search about Dukhiram. We further hold that Akbar or Tara Prosad or the plaintiffs had no possession in the suit land within 12 years of the filing of the plaint and hence, the suit is barred by limitation.

25. Then about the alternative case of advance possession. Section 31(a) of thenew Limitation Act says that nothing in the Act shall enable any suit to be filed for which the period of limitation prescribed by the Limitation Act of 1908 expired before its commencement. The principles laid down in the cases of Jyoti v. Girija Bhusan : AIR1965Cal11 (supra) and of Ram in : AIR1966Cal488 may be referred to. The new Act came into force with effect from 1st Jan. 1964, and the suit was instituted in Aug. 1966. The position will not improve even if it be assumed that the new Act applies. This has already been discussed. The evidence of D. W. 5, Sanat, and D. W. 7, Jagannath, clearly shows that Dukhiram was in possession of the property and before him. his predecessors were in possession thereof to the exclusion of others for over 12 years. We believe their evidence and hold that Dukhiram has title to and possession in the disputed property and before him, his predecessors had interest and possession therein and the suit No. 73 of 1966 is also barred by adverse possession.

26. Appeal No. 196 of 1970 be allow with costs throughout. Title Suit No. 73 of 1966 is dismissed. Appeal No. 78 of 1978 is allowed with costs throughout and Title Suit No. 102 of 1967 decreed The judgment passed on 29-7-1967 in the misc. case No. 163 of 1966 be hereby set aside. It is hereby declared that the plaintiff has title to the property in question. The defendants be permanently restrained from interfering with his possession therein.

Banerjee, J.

I agree.


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