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Sm. Radharani Mitra and ors. Vs. Sm. Kanaklata Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1248 of 1955
Judge
Reported inAIR1960Cal533
ActsLimitation Act, 1908 - Schedule - Article 144
AppellantSm. Radharani Mitra and ors.
RespondentSm. Kanaklata Roy and ors.
Appellant AdvocateManindra Nath Ghosh and ;Anil Kumar Sen, Advs.
Respondent AdvocateHemendra Chandra Sen and ;Satyendra Chandra Sen, Advs.
DispositionAppeal dismissed
Cases ReferredPankaj Mohan Rai v. Bipin Behary
Excerpt:
- .....defendants and it arises out of a suit for declaration of title and recovery of possession. the suit property comprises four rooms in a house, known as lalkuthi. the nature of the controversy between the parties in the suit and in this appeal will appear from the following statements of their respective cases:2. according to the plaintiffs, lalkuthi belonged to their predecessor ishan chandra mitra. ishan died, leaving three sons, bipin behari, lal bihari and charu chandra. charuchandra died, leaving a widow and a son baidyanath and a daughter umarani. umarani was married to anath nath roy, and they had two sons, ashutosh and ajit. anath, in his turn, was a son of jitendra nath roy and his elder brother was nalini nath roy. the original plaintiffs in the present suit were kanak lata.....
Judgment:

P.N. Mookerjee, J.

1. This appeal is by the defendants and it arises out of a suit for declaration of title and recovery of possession. The suit property comprises four rooms in a house, known as Lalkuthi. The nature of the controversy between the parties in the suit and in this appeal will appear from the following statements of their respective cases:

2. According to the plaintiffs, Lalkuthi belonged to their predecessor Ishan Chandra Mitra. Ishan died, leaving three sons, Bipin Behari, Lal Bihari and Charu Chandra. Charuchandra died, leaving a widow and a son Baidyanath and a daughter Umarani. Umarani was married to Anath Nath Roy, and they had two sons, Ashutosh and Ajit. Anath, in his turn, was a son of Jitendra Nath Roy and his elder brother was Nalini Nath Roy. The original plaintiffs in the present suit were Kanak Lata Roy, wife of Nalini Nath Roy, Umarani Roy, wife of Anath Nath Roy, and the two sons of Umarani, namely, Ashutosh and Ajit, as mentioned hereinbefore. According to the plaintiffs, in this property of Ishan, namely, Lalkuthi, - along with his (Ishan's) other properties, - Charuchandra inherited a one-third share, which devolved, upon his death, upon his widow Tarubala. Thereafter, there was a surrender by Tarubala in favour of the present plaintiffs Nos. 3 & 4 Ashutosh and Ajit, after Tarubala had got a declaration in a partition suit, Title Suit No. 29 of 1928, later on re-numbered as Title Suit No. 144 of 1930, that she had a one-third share in inter alia this property, Lalkuthi. On 9-8-1947, the said plaintiffs Nos. 3 and 4 sold the said one-third share, which, inter alia, was the subject matter of Tarubala's surrender, to Jitendra. On 22-12-1938, Jitendra auction purchased the shares of the other two brothers of Charuchandra, namely, Bipin Behari and Lal Bihari, or in other words, the remaining two-thirds of this property Lalkuthi, as part of Touzi No. 892, in which the same was situate and which was the subject-matter of Jitendra's said auction purchase. Jitendra thus became the 16 annas owner of, inter alia, Lalkuthi, which comprised the disputed rooms in the present suit. On 19-11-1940, Jitendra died and, thereupon, this property Lalkhuthi, along with Jitendra's other properties, passed to the original plaintiffs in the present suit by inheritance and the present suit was brought by them against the defendants, who were stated to be in unlawful occupation of the disputed four rooms, on 15-2-1949.

3. The defence, inter alia, was that Lalkuthi did not belong to Ishan but was a property, appertaining to the estate of his father Guru Charan, upon whose death it devolved upon his four sons Ishan, Girish, Harish and Mahendra. The present appellants who were the defendants in the Court of first instance, represent the branch of Harish. On this footing, the defendants (appellants) claim that they bad a one-fourth share in Lalkuthi, including the four disputed rooms. The defence further was that the plaintiffs' claim was barred by limitation and the defendants had acquired full title to the disputedfour rooms and, indeed, to the whole of the Lalkuthi by adverse possession. On this defence, the two questions which arose for decision before the trial court, were the question of title and the question of possession, including the defendants' claim of adverse possession. It appears - and that is admitted by both the parties, - that, on 25-6-1880, a family fund deed (Ext. 16) was created by the tour brothers Ishan, Girish, Harish and Mahendra. In the properties, included in the aforesaid deed (Ext. 16), this Lalkuthi also was admittedly comprised. Under the said deed (Ext. 16), all the properties, covered thereby, were to be possessed and enjoyed by the four brothers jointly. The deed, however, came up ior construction in Tarubala's suit for partition, which has been referred to above and which was brought on 7-3-1928. One of the properties, included in the said suit, was this Lalkuthi and therein Tarubala claimed a one-third share as heir of Ishan through Charuchandra upon the footing that this property, along with some others, included in the said suit, belonged exclusively to Ishan.

4. According to the plaintiffs, it was found in the above suit and decided, up to this Court (vide Ajit Kumar Mitra v. Tarubala Dasi, 62 Cal LJ 71) - and that decision is binding upon the parties, who were all parties to the said suit - that this Lalkuthi was a property, originally belonging to Ishan and not to Gurucharan, which was the claim, set up by the defendants in the said partition suit also but which claim was eventually rejected. The partition suit appears to have been preliminarily decreed by the trial Court on 4-8-1930, and the appeal against the said decree was disposed of by this Court on 29-3-1935, and, in pursuance of the said decision of this Court, a fresh preliminary decree was eventually drawn up by the trial Court on 19-12-1935. The defendants contended that this particular property, Lalkuthi, was not found, in the above partition suit, to be the exclusive property of Ishan and they contested the plaintiffs' claim that Lalkuthi which formed item No. 18 of the family fund deed (Ext. 16), was also item No. 18 of schedule Ka of the above partition plaint, which was held to belong to Ishan alone. The defence was that this particular property was covered by a patta (Ext. D) which was taken by Gurucharan and that, accordingly, it was Guru-charan's property. Both the Courts below have negatived this defence upon the finding that, on the evidence of one of the defendants themselves, namely, defendant No. 3 Sunil, the identity of the present suit property and Lalkuthi has been well-established with item No. 18 of Schedule Ka of Ext. 16 and also with item No. 18 of schedule Ka of the partition plaint and that, accordingly, in view of the aforesaid decree in the partition suit, the said property must be taken to have belonged to Ishan and Ishan alone and not to Gurucharan, as alleged by the defendants. On the question of this identification, our attention was drawn to the materials on record but, having regard to the discussion on the point, made by the two courts below, and the different materials, on which reliance was placed by them for this purpose, and, in particular, to the evidence of defendant No. 3 Sunil, we do not think that the concurrent finding of the two Courts below on this point in favour of the plaintiff is liable to be questioned or interfered with in this Second Appeal. This question of identity, therefore, must be held to have been rightly decided in favour of the plaintiffs and, accordingly, their title to the Lalkuthi must be found in 16 annas, as found by the two Courts below.

5. As to the other points, which were raised, in the course of hearing in the trial court, on this part of the case, namely, on the question of title, theyhave paled into insignificance and lost all substance and importance by reason of the subsequent events, by which Lalkuthi ultimately devolved on the present respondents, Ashutosh and Ajit, plaintiff's Nos. 3 and 4, the other respondent plaintiff No. 1, Kanak Lata, having died in the meantime, that is, during the pendency of this appeal in this Court, and the remaining plaintiff, plaintiff No, 2, Umarani, having died earlier in the trial Court. These defences were based on the invalidity of the surrender of Tarubalaand on some alleged defects in the Kobala by Ashutosh and Ajit in favour of Jitendra. When Ashutosh and Ajit have themselves ultimately become the owner of the property by inheritance and when they are and would have been the heirs of both Tarubala and Jitendra, these defences are really now of purely academic interest, and, as a matter of fact, Mr, Ghosh, appearing on behalf of the defendants-appellants, did not at all argue any part of these two defences. The question of title, therefore, must be found in favour of the plaintiffs in agreement with the two Courts below.

6. Next comes the question of possession. On this point, there is serious dispute between the parties as to whether the plaintiffs are entitled to get possession of the suit property, which comprises four rooms of Lalkuthi, or whether their title to the same has been extinguished by adverse possession. So far as the plaintiffs themselves are concerned, and also their predecessors, Jitendra and Tarubala, the position appears pretty clear that they never were in actual possession of the said disputed rooms. But, even then, in our opinion, their claim, in the circumstances of this case, cannot be defeated by the defendants' alleged adverse possession. Assuming that the defendants were in possession all along, the effective date of the commencement of alverse possession, if any, would be the year 1928, when Mahendra, the last of the four brothers Ishan, Girish, Harish and Mahendra, died as, according to the family fund deed (Ext. 16), as construed by this Court, its operation would continue up till the death of the last of the said four brothers. During the period, when the family fund deed (Ext. 16) was operative, as aforesaid, no question of adverse possession cold obviously arise as the possession was under that deed and so by consent or agreement. Adverse possession, therefore, of the defendants, if any, would, at the earliest, commence from the year 1928. It appears, however, that, in Tarubala's suit for partition, a Receiver was appointed on 29-6-1929. In that suit, it must be remembered, the defendants and/or their predecessors were also parties, and the suit comprised, in addition to this Lalkuthi, some other properties, which were admittedly joint between all the parties and in which Tarubala was held to have a one-twelfth interest. Kunja Behari, son of Girish who himself was one of the contesting defendants in the said partition suit, was appointed the first Receiver of all the properties (including Lalkuthi), comprised in the said suit. The Receivership continued till about 30-6-1945, when the last Receiver Hirendra Nath Mitra, a pleader ot the local Court, was discharged and, on 1-7-1945, possession of some of the suit properties in the partition suit (including Lalkuthi) was made over to the plaintiffs as they were found and held by the Court to belong exclusively to them due to certain altered or intervening circumstances. It is true that the plaintiffs, on their own admission, did not get actual possession of the disputed four rooms but, according to them, the defendants' possession of these rooms was permissive and the trial court actually came to a finding that this possession, was permissive in thecircumstances of this case, although the evidence as to actual and express permission in that behalf was not very satisfactory. That finding does not appear to have been reversed by the Tower Appellate Court; on the other hand, the lower Appellate Court also has, in a way affirmed that finding. In our opinion, although it is true that there was no very reliable evidence of any express permission having been given by the Receivers, the circumstances may well justify the inference that the defendants' possession of the disputed rooms during the Receivers' period was permissive. For this purpose, the tact that Kunja, a member of Girish's branch, having the same or similar interest in the present suit property and raising the same defence on the question of title with regard to the same as the present appellants or their predecessors who were co-defendants and co-contestants with him, was appointed Receiver - the first Receiver in 1929 appears to be somewhat important and significant. If, after Kunja's appointment, the defendants continued in possession, the only legitimate inference in the aforesaid circumstances, would be that their possession was allowed to be continued with the permission ot the Receiver Kunja. In that context, similar inference would also be quite probable and legitimate during the succeeding Receivers' periods at any rate, the evidence should be approached from that point of view. It is also admitted before us that, at least, during the earlier period of the receivership when Kunja was the Receiver, he had his office in Lalkuthi. In these circumstances, the above finding of the two Courts below that the defendants' possession was permissive may not be an improper finding and, if that view be accepted, there can certainly be no question of adverse possession on the part of the defendants, at least, until the Receivership terminated in or about June 1945. The instant suit was brought well within 12 years from the date of discharge of the last Receiver as aforesaid and, accordingly, the same cannot be held to be barred by the defendants' adverse possession.

7. Even apart from the permissive occupation of the defendants as aforesaid and even if that finding be not correct, we do not think that the position in law would be otherwise. That a Receiver was appointed in Tarubala's partition suit in or about the year 1929 is admitted. That the Receiver over the disputed properties there (including Lalkuthi) was continued by the Court until about the end of June, 1945, is also admitted. Even assuming that none of the Receivers actually took possession or disturbed the defendants' occupation of the disputed four rooms, the adverse character ot the defendants' possession, if any, must, in law, be taken to have ceased immediately on the appointment of Receiver, inasmuch as they were themselves parties to the partition suit, in which the Receiver was appointed. This, indeed, is one of the fundamental principles, which has always been recognised and accepted, as will appear from the statement of the law on the point in Kerr on Receivers, as quoted by this Court in 2 Cal LJ 602 at page 610. In that case, Mookerjee, J. delivering the judgment of the Court, observed as follows:

'As pointed in Kerr on Receivers, 4th Edition, p. 149 the effect of the appointment of a Receiver is to remove the parties to the action from the possession of the property. If, at the time a Receiver is appointed, a party, claiming a right in the same subject matter under a title paramount to that under which the Receiver is appointed, is in possession of the right which he claims, the appointment of the Receiver leaves him in possession. But parties to the action, who are not in possession under a paramount title are removed from possession by the appointment of a Receiver'.

8. In the present case, there is no question of a claim of paramount title to the title, involved in the suit for partition. There also the defendants, including the present appellants and their predecessors, were claiming this property (Lalkuthi) as really a joint property, in which they had a share, along with the plaintiff Tarubala, the share of the said plaintiff being, according to them, one-twelfth, and they also were claiming partition on that footing, while resisting the plaintiff's (Tarubala's) claim to a greater share. The Receiver appears to have been appointed on the titles of the parties, as aforesaid, that is, claimed in the said partition suit, as to which titles the disputes as between them were not and were not considered also either by the parties or by the courts concerned to be outside the scope of the suit or the decision thereof. There is thus no question of any paramount title and, accordingly, the above principle of law will apply.

9. A similar, - if not more extreme, - statement of law on the above point and as to the effect of appointment of a Receiver is to be tound in Peruvian Guano Co. v. Dreyfus Brothers and Co., 1892 AC 166, and the substance of the relevant observations (per Lord Watson), made in that case, appears to be that the effect of an order ot appointment of a Receiver is that the control of the property from the date of that order vests in the Court and if the parties to the action retain possession of the property after that date, they hold the property as 'custodians for the Court.' The defendants possession, therefore, of the suit property, involved in the partition suit, was, during the entire Receivership period, as aforesaid, possession as 'custodians tor the Court' and could not, accordingly, be adverse to any of the parties to the said suit. It the defendants had been strangers to that suit, in which the Receiver was appointed, the position, undoubtedly, would have been different, but, having been parties thereto, they come within the above statement of the law. This appears to be the true legal position and it is only necessary to make one observation with regard to the decision of this Court in Pankaj Mohan Rai v. Bipin Behary : AIR1924Cal118 . The decision in that case might give one the impression that, even as against a party to the suit, the mere appointment of the Receiver would not be enough to interrupt or interfere with his adverse possession of the suit properties, but it is only when that possession is actually disturbed by the Receiver, or, in other words, only when actual possession is taken by the Receiver, that such adverse possession is interrupted. It is to be remerbered, however, that although, in the case cited, their Lordships said that the particular party was bound by the proceeding, in which the Receiver was appointed, he had really two capacities, one as a tenant, in which he was claiming to have possessed the property adversely in the right of a tenant, the other as and in the right of a co-owner or co-sharer by virtue of a purchase pendente lite or during the pendency of that particular litigation, and it is only in regard to this character of a co-owner or co-sharer, acquired during the pendency of the said litigation, that their Lordships appear to have actually made the above observation that he was bound by the proceeding, in which the Receiver was appointed. Strictly speaking, therefore, so far as adverse possession was concerned, which he was claiming as a tenant, as aforesaid, he had the character of a stranger to the suit, in which the Receiver was appointed, and, accordingly, the principle, which is applicable against and in the case of a stranger, was applied to him and his adverse possession was held not to have been disturbed by the mere appointment of the Receiver. As regards the parties, however, the lawis, in our opinion, as we have stated above, and, if that be correct, the defendants' adverse possession, if any, before the appointment of the Receiver in the partition suit, was effectively interrupted by such appointment and it could not revive until the discharge of the Receiver. There would thus be no question of the plaintiffs' claim being barred by limitation or adverse possession of the defendants.

10. In the circumstances, we agree with the two Courts below in decreeing the plaintiffs' suit, as has been done by them, and we affirm their decision and dismiss this appeal. Whatever we have said above on the question of possession must be taken as limited to the question of possession of only the four disputed rooms. Although there are some observations in the two Courts below as to possession in respect of the entire house Lalkuthi, we do not think, for purposes of this appeal, it is necessary to make any finding in that respect. The suit property comprises only the tour rooms and it is enough, for our purpose, to affirm the finding against the defendants on the question of adverse possession as regards the said four rooms only. The question of their possession or adverse possession, it any, with regard to the other parts of Lalkuthi would remain open in this proceeding.

11. Subject to the above observation, this appeal fails and it is dismissed. As there were some questions of law involved in this appeal, which had some complications and required an authoritative decision, we would not make any order for costs in this Court.,

Niyogi, J.

12. I agree.


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