Sri Kartick Chandra Mondal Vs. Sri Sunil Kumar Purkait and Others - Court Judgment

Tarun Kumar Gupta, J.

This appeal is directed against the judgment and decree dated 30th July, 2002, passed by learned Civil Judge, (Senior Division), Baruipur, South 24 Parganas in Title Appeal No.133 of 1997, reversing the judgment and decree dated 20^th September, 1997 passed by learned Civil Judge (Junior Division), 2nd Court at Baruipur in Title Suit No.227 of 1982.

The plaintiffs filed a suit alleging that one Rajkumar Mondal and Nirab Mondal were in possession of the suit property, each, having eight anas share therein. It is further case that Nirab Mondal sold out his eight anas share in the suit property together with other properties to Debendra Nath Mondal under registered kobala dated 12th May, 1952. Rajkumar Mondal’s widow wife Kusum Kumari Dasi also sold away her share in the suit property together with some other lands to Nagendra Nath Mondal, Debendra Nath Mondal and Basanta Kumar Mondal under registered kobala dated 10th July, 1939. On account of said purchase, Debendra Nath Mondal had 4/6th share and Nagendra Nath Mondal and Basanta Kumar Mondal each had 1/6th share in the suit land. Plaintiffs are heirs of Debendra Nath Mondal since deceased. Proforma defendants are heirs of Nagendra Nath Mondal and Basanta Kumar Mondal. In view of amicable partition of the properties between the cosharer, plaintiffs got 14 2/3 decimals of land in the western portion of the suit plot No.1503. plaintiffs were in possession of said earmarked portion of the suit plot No.1503 by constructing two rooms thereupon. On 27th June, 1976, defendant No.1 Sunil Kumar Purkait started to construct illegally one room on a portion of suit plot No.1503, having no title thereupon. It is further case of the plaintiffs that one Bijoy Kumar Mondal being in need of money mortgaged some of his lands to Debendra Nath Mondal through an ostensible sale deed dated 12th June, 1951. Debendra Nath Mondal also reconveyed said mortgage property to Bijoy Kumar Mondal through a sale deed dated 9th December, 1960. It is further case that though Bijoy Kumar Mondal had no title in any portion of suit plot No.1503 but due to mistake 2 decimals of land of suit plot No.1503 was incorporated in his mortgage deed through an ostensible sale deed of 1951 and that said mistake crept in the reconveyance deed executed by Debendra Nath Mondal in favour of Bijoy Kumar Mondal. In terms of said Kobala of 1960, Bijoy Kumar Mondal did not get any title whatsoever relating to 2 decimals of land in suit plot No.1503. Accordingly, the plaintiffs have prayed for a declaration of their title in the suit property and a permanent injunction against the defendant No.1 as well as a mandatory injunction against the defendant No.1 by way of removing of his construction standing on 2 decimals of land in suit plot No.1503.

The Defendant No.1 contested the said suit by filing a written statement denying material allegations of the plaint and contending, inter alia, that his vendor Bijoy Kumar Mondal purchased 2 decimals of land in plot No.1503 and started to use the same by constructing a house thereupon. It is further case that on 20^th August, 1974, Bijoy Kumar Mondal sold said 2 decimals of land together with structure thereupon to one Jiban Kriishna Chakraborty under an agreement of reconveyance and later on Jiban Krishna Chakraborty reconveyed said property to Bijoy Kumar Mondal through a kobala dated 23rd September, 1975. While Bijoy Kumar Mondal was in possession of said property, he sold away the same to the defendant No.1 through a kobala dated 26th May, 1976 and that since said purchased the defendant was residing therein and that he did not make any new construction thereupon. Accordingly, he has prayed for dismissal of plaintiffs’ suit so far as it related to his purchased property namely 2 decimals of land in suit plot No.1503.

Both sides adduced oral as well as documentary evidence in support of their respective cases. After contested hearing learned Trial Court decreed the suit in part by way of declaring plaintiffs’ right, title and interest and possession in respect of 12 2/3 decimals of land. Learned Trial Court did not grant any decree to the plaintiffs relating to 2 decimals of land whereupon defendant No.1 staked his claim.

The plaintiffs being aggrieved by the said judgment and decree of learned Trial Court preferred an appeal being Title Appeal No.133 of 1997. Learned Lower Appellate Court though allowed the appeal by setting aside the judgment and decree dated 20th September, 1997 passed by learned Trial Court but at the same time dismissed the Tile Suit filed by the appellant /plaintiffs. Being aggrieved, this second appeal has been filed. At the time of admission, the following substantial questions of law were framed vide Order dated 23rd April, 2004:-

(1) Whether in an appeal preferred against a part decree the suit which was decreed in part could be dismissed as a whole when there was no appeal in respect of the suit that has been decreed in part without a cross-appeal or cross-objection as the case may be;

(2) Whether in the absence of any proof with regard to exhibit 1 conveying the title in favour of the defendant, the right of the defendant could be established for the purpose of dismissing the suit;

(3) Whether the report of the commission can be relied upon when the report of the commissioner has not been proved and marked exhibit and the commissioner was not examined.

Mr. Buddhadeb Ghoshal, learned counsel for the appellant submits that though the plaintiffs got a part decree relating to 12 2/3 decimal of land in suit plot but preferred an appeal in the Lower Appellate Court for not granting any decree relating to remaining two decimals of land in the suit plot being in illegal possession of the defendant No.1, but learned Lower Appellate Court though allowed the appeal but dismissed the entire Title Suit by setting aside the judgment and decree of learned Trial Court though admittedly there was no cross-appeal or cross-objection on behalf of the contesting defendant No.1. According to him on that score alone the impugned judgement and decree of learned Lower Appellate Court should be set aside.

He next submits that the defendant No.1 Sunil Kumar Purkait was claiming his title to said two decimals of land in suit plot No.1503 through his vendor Bijoy Kumar Mondal who had never any right, title or possession in suit land. In this connection he submits that said Bijoy Kumar Mondal mortgaged his properties covering various plots of land to Debendra Nath Mondal, predecessor-in-interest of the plaintiff through an ostensible sale deed of 12th June, 1951 (Ext.1) and that Deben Mondal later on reconveyed said property to Bijoy Kumar Mondal through another sale deed of 9th December, 1960 (Ext.A). According to him, though Bijoy Mondal had never any right, title, interest and possession in suit plot No.1503 but due to mistake said land was incorporated in his ostensible sale deed dated 12th of June, 1951 (Ext.1) and that said error again recurred in the reconveyance deed executed by Deben Mondal in favour of Bijoy Mondal on 9th December, 1960 (Ext.A) by incorporating said two decimals of land in plot No.1503. According to him, for inclusion of said two decimals of land of suit plot No.1503 in the reconveyance deed dated 9th December, 1960 executed by Deben Mondal in favour of Bijoy Mondal no title actually passed to Bijoy Mondal. In this connection, he further submits that suit plot No.1503 and some other lands were originally owned by Raj Kumar Mondal and Nirab Mondal in equal shares and that heirs of Raj Kumar Mondal sold away their eight annas share in those lands including suit plot No.1503 to Deben Mondal, Nagendra Nath Mondal and Basanta Kumar Mondal jointly through one kobala dated 10th of July, 1939 (Ext.1B). He further submits that Nirab Mondal later on sold his remaining eight annas share in those lands including suit plot No.1503 to Debenra Nath Mondal through a kobala dated 12th of May,1952 (Ext.1A). According to him, by way of said purchase Deben Mondal became owner of 4/6th share of those lands including suit plot No.1503 and Nagendra Nath Mondal and Basanta Kumar Mondal each had 1/6th share therein. His further case is that later on account of an amicable partition between those co-sharers plaintiff got 14 2/3 decimals of land in the western portion of plot No.1503. He further submits that as Bijoy Mondal had no ownership in any portion of suit plot No.1503 at the time of execution of said ostensible sale deed dated 12th of June, 1951 in favour of Deben Mondal, he had no right to include two decimals of land in suit plot No.1503 in said deed (Ext.1) and that said mistake crept into the deed of reconveyance executed by Deven Mondal on 9th December, 1960 (Ext.A) by wrongly incorporating said two decimals of land in suit plot No.1503. According to him, for incorporating of two decimals of land in suit plot No.1503 in said deed of reconveyance dated 9th December, 1960 (Ext.A) no title over said land passed to Bijoy Mondal from Deven Mondal. According to him, as Bijoy did not acquire any right, title and interest over said two decimals of land in suit plot No.1503 through said deed of reconveyance dated 9th December,, 1960 (Ext.A), Bijoy had no authority to sell the same to defendant No.1 Sunil Purkait through a kobala dated 26th of May, 1976 (Ext.’ka’) and that defendant No.1 Sunil Purkait did not acquire any title over said land by said purchase from Bijoy. According to him, learned Courts below failed to appreciate that as Bijoy had never any title over said two decimals of land in suit plot No.1503 he had no saleable interest therein and as such defendant No.1 Sunil did not acquire any title whatsoever over said land through his purchase deed dated 26th May, 1976 (Ext.’ka’). He further submits that the defendant No.1 Sunil’s possession on said land was nothing but that of a trespasser and hence learned Courts below should have decreed the suit in its entirety. He further submits that as the defendant No.1 Sunil Kumar Purkait had no title over said two decimals of land in suit plot No.1503 the structure constructed thereupon by him which is adjoining and touching the house of the plaintiffs should have been demolished by an order of mandatory injunction. Accordingly, he prays for setting aside the impugned judgment of learned Lower Appellate Court and for passing a decree as per prayer in the plaint.

Mr. Dilip Kumar Mondal, learned counsel for the respondent defendant No.1 submits that even if Bijoy Mondal had no title in two decimals of land in suit plot No.1503 and the same was wrongly included in his sale deed dated 12th of June, 1951 (Ext.1), but said point cannot be agitated after long 30 years. He further submits that Deben Mondal being owner and major co-sharer of suit plot No.1503 admittedly sold out two decimals of land in suit plot No.1503 along with other lands to Bijoy Mondal through a Kobala of 1960 (Ext.A), and that at least therefrom Bijoy Mondal had title thereupon and was in possession of the same by constructing one room thereupon. In this connection he refers to the kobala dated 20th of August, 1974 (Ext.A/1) executed by Bijoy Mondal in favour of Jiban Chakraborty relating to said two decimals of land in suit plot No.1503 and the subsequent deed of reconveyance dated 23rd September, 1975 (Ext.A/2) executed by Jiban Chakraborty in favour of Bijoy Mondal and the purchased deed dated 26.05.1976 of defendant No.1 Sunil Purkait (Ext.’ka’) executed by Bijoy Mondal to show that in all those deeds starting from 1974 the existence of one room on said land was noted. According to him, at least from 1974 when Bijoy was executing a kobala in favour of Jiban Chakraborty it appears that there was one room on said land owned by Bijoy. According to him, the claim of the plaintiffs that Bijoy had never any right over said two decimals of land in suit plot No.1503 or that only after purchase in 1976 the defendant No.1 Sunil made an illegal construction of a room thereupon touching the room of plaintiffs on said plot was false. He further submits that both the Courts came to a concurrent findings of fact that present defendants’ vendor had right, title, interest and possession over said two decimals of land in suit plot No.1503 and that there was existence of one structure thereupon from the time of defendant No.1’s vendor. According to him, these findings of facts are based on evidence, both oral and documentary, and hence are not to be disturbed during this second appeal. He further submits that so far as part decree granted by learned Trial Court in favour of the plaintiffs relating to remaining 12 2/3 decimals of land in suit plot No.1503 is concerned his client has no claim or stake thereupon.

There is no denial that Raj Kumar Mondal and Nirab Mondal were originally owners of suit plot No.1503 and some other lands and that Deben Mondal, Nagendra Nath Mondal and Basanta Mondal became joint owners of suit plot No.1503 and other lands by their purchase from those owners. Apparently, it appears that at the time of execution of the kobala dated 12th of June, 1951 (Ext.1) Bijoy Mondal had no title in respect of said two decimals of land in plot No.1503. But it is a fact that on 9th December,, 1960 when Deben Mondal reconveyed properties to Bijoy Mondal through a Kobala (Ext.A) two decimals of land in suit plot No.1503 was included in the schedule and that Deben Mondal being owner of said property had authority to transfer the same. Mr. Ghoshal, learned counsel for the appellant/plaintiff has tried to impress upon this Court that said deed of 1951 executed by Bijoy in favourt of Deben (Ext.1) was an ostensible sale deed by which Bijoy mortgaged his properties to Deben and that Deben Mondal later on reconveyed said property to Bijoy Mondal in terms of deed of 1960 (Ext.A) and that mistaken inclusion of two decimals of land in plot No.1503 in the deed of 1951 crept into subsequent deed of 1960 (Ext.A) as the subsequent deed of 1960 was nothing but a deed of release of mortgaged property through an ostensible sale deed. I find little merit in the aforesaid contention of Mr. Ghoshal. Had the deed of 1951 executed by Bijoy in favour of Deben was a mortgage deed in the form of an ostensible sale deed and the subsequent deed of 1960 executed by Deben in favour of Bijoy Mondal was nothing but a release of mortgaged property, then the schedules of both the deeds would have been identical.But it appears that through the deed of 1951 (Ext.1) 30 decimals of land were transferred by Bijoy in favour of Deben whereas only 18 decimals of land were transferred by Deben in favour of Bijoy through the deed of 1960. As such, by no stretch of imagination it can be said that deed of 1951 was a mortgage deed in the form of an ostensible sale deed or that the deed of 1960 was nothing but a deed of release of mortgaged property in the form of a kobala.

If Bijoy Mondal had no title in two decimals of land in suit plot No.1503 then certainly no title relating to said property passed to Deben Mondal through the deed of 1951 (Ext.1), but admittedly Deben Mondal had title to the suit plot No.1503 on the strength of his purchase of the same along with other lands from its original owners namely heirs of Raj Kumar Mondal and Nirab Mondal through two separate kobalas one of 1939 (Ext.1B) and other of 1952 (Ext.1A). As Deben had title to said plot No.1503, said title relating to two decimals of land in suit plot No.1503 passed from Deben Mondal to Bijoy Mondal through said kobala of 1960 (Ext.A). It appears that before selling out of said suit land i.e., two decimals of land in suit plot No.1503 by Bijoy Mondal to the defendant No.1 Sunil Purkait, Bijoy sold out the same to one Jiban Chakraborty in 1974 (Ext.A/1) and that again in 1975 Jiban Chakraborty sold out the same to Bijoy Mondal through a kobala (Ext.A2) and that in both the deeds the existence of a room thereupon was categorically noted. It is hard to believe that those two documents which were anterior to the purchase deed of 1976 of defendant No.1 Sunil were mere paper transactions to corroborate Sunil’Section defence of having existence of a structure on said two decimals of land in suit plot No.1503 in a future suit to be faced by Sunil. Both oral and documentary evidence on record clearly showed existence of one structure on said two decimals of land in suit plot No.1503 presently in the possession of defendant No.1 Sunil at least from 1974 when Bijoy sold said land with said structure to Jiban Chakraborty if not from any earlier period.

The report of learned local Investigation Commissioner was marked Exhibit 3 by the learned Trial Court on 15th September, 1997 in presence of learned counsels of both sides during argument. There is nothing on record to show that any objection was filed against said report of learned Investigation Commissioner by the plaintiffs. If that be the position then the plaintiffs cannot raise any objection against said report (Ext.3) in the appeal stage. The oral evidence coupled with documentary evidence well established existence of one room in said two decimals of land in suit plot No.1503 presently in occupation of the defendant No.1 Sunil Purkait even before purchase of the same by him in 1976. The report of local Investigation Commissioner (Ext.3) also shows that house of defendant No.1 on said land had joined tiles with the house of the plaintiffs standing on the suit plot and that there was also common wall in between the two houses. It is unthinkable that a person who was raising an illegal structure touching the room of the plaintiffs will be permitted to complete said construction without taking any legal measures to prevent the same. Apart from that had it been a fact that defendant No.1 Sunil Purkait made new construction on said vacant land then there could not have been joined tiles of the rooms of plaintiffs and defendant No.1 Sunil.

In this connection, it is pertinent to note that both the Courts came to the concurrent findings of fact about possession of defendant No.1 Sunil in said two decimals of land in suit plot No.1503 having a structure thereupon standing from a time anterior to his purchase of the same. Said concurrent findings of fact are based on evidence and hence cannot be interfered by this Court at the time of hearing of this second appeal.

However, it is an admitted fact that even in absence of any cross appeal or cross objection learned Lower Appellate Court was pleased to dismiss the claim of the plaintiffs relating to other portion of suit plot No.1503 namely 12 2/3 decimals of land on the plea that plaintiffs had no cause of action to file said suit. It came out from the arguments of learned counsels of the parties that defendant No.1 Sunil had no claim against plaintiffs relating to other portions of land in suit plot No.1503.

As such, impugned judgment of learned Lower Appellate Court, as it stands, is not sustainable in law, and that the judgment of learned Trial Court is liable to be restored.

As a result, the appeal is hereby allowed on contest. The judgment and decree of learned Lower Appellate Court are hereby set aside by restoring the judgment and decree of learned Trial Court.

However, I pass no order as to costs.

Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest.

Urgent photostat certified copy of this judgment be supplied to learned counsel / counsels of the party / parties, if applied for.