Dhirendranath Majhi vs Bijali Bhushan Majhi

The matter pertains to a suit of the year 1987.

The plaintiffs claimed that pursuant to a deed of exchange executed between the plaintiffs and the heirs of Nilmoni Ghosh, the plaintiffs were entitled to six-seventh of the suit property that stood in the name of Nilmoni Ghosh. The original title deed of 1958, by which Nilmoni purchased the entirety of the suit property, was produced by the plaintiffs and exhibited at the trial.

The present appellant says that his father died when the appellant was a minor and jamaibabu Nilmoni Ghosh acted as his guardian and looked after the estate of the appellant's deceased father. It was further made out that Nilmoni had purchased the property in the year 1958 in his own name but the real owner was the defendant. Nothing apparently was said in the written statement about Nilmoni subsequently reqlinquishing the property in favour of the defendant or of Nilmoni furnishing any declaration that Nilmoni was merely the ostensible owner of the relevant property and the appellant was the real owner.

Both the courts below disbelieved the case of benami ownership, primarily on the ground that the appellant herein could not demonstrate that the property was purchased with funds that belonged to the appellant or the estate of the appellant's deceased father. The courts below found that Nilmoni was gainfully employed and had purchased the property with his own money. The courts below also found it significant that the appellant did not possess the original title deed and the plaintiffs produced the same. What appears to have clinched the matter for the plaintiffs and against the appellant in either court was that the appellant purchased a seventh share of the relevant property from Nilmoni or the heirs of Nilmoni prior to the institution of the suit.

According to the appellant, the trial court disregarded the deed of relinquishment or deed of declaration that was furnished by Nilmoni merely on the ground that such fact was not pleaded in the written statement. The appellant points out that a substantial ground in such regard was taken in the memorandum of appeal before the first appellate court; but the first appellate court glossed over the aspect by repeating that since the relevant fact was not pleaded in the written statement, the document could not be looked into.

It is true that the written statement could have been more articulate in such regard and, in addition, to the appellant herein asserting his title to the property, he should also have referred to the ostensible owner's declaration. However, merely because the written statement did not specifically refer to the relevant document or the specific act of the ostensible owner, it would not imply that the document did not exist or that the document could not be relied upon in evidence. After all, the appellant had asserted the appellant's title in respect of the property in question and, at the very lowest, the relevant document was a piece of evidence to demonstrate the appellant's title thereto.

There is the other aspect of the matter which weighed heavily with both the courts below. The trial court was swayed by the fact that the appellant herein had purchased one-seventh of the relevant property from Nilmoni or an heir of Nilmoni prior to the institution of the suit. If such was the case, the appellant's admission of Nilmoni's title was absolute and the appellant could not have questioned Nilmoni's title or asserted thereafter that Nilmoni was merely the ostensible owner of the property. The appellant says that it was a self-serving document that had been relied upon by the plaintiffs where the vendor had unilaterally executed a document to show title to the vendee, but there was no signature of the vendee on the document in question.

The relevant document is referred to by both the trial court and the appellate court, but the trial court does not discuss the evidence pertaining to such document and the circumstances in which the trial court was convinced that such document nailed the appellant herein. Similarly, the lower appellate court did not dwell much on such document or as to the acceptability thereof.

In the light of the above, the following, inter alia, substantial questions arise for consideration in this second appeal:

I. Whether the document of relinquishment or declaration alleged to have been furnished by the ostensible original owner of the property in favour of the appellant herein could not be looked into merely because such document had not been specifically referred to in the appellant's written statement but the appellant had otherwise maintained a defence that the named purchaser in the 1958 document was only the ostensible owner and the appellant herein was the real owner of the property.

II. Whether upon the appellant's undisturbed possession of the relevant property for over three decades, the conduct of the heirs of Nilmoni in not directly confronting the appellant on the question of title and the appellant herein dealing with the property as if the appellant was the owner thereof, were grounds that ought to have been considered with greater seriousness while deciding whether Nilmoni had purchased the property for the benefit of the appellant or for himself.

III. Whether the mere declaration by a person that he had sold a part of a property to another would bind the other.

IV. Whether, in any event, the appellant herein could or did set up title by adverse possession.

The appellant herein will put in special messenger's fees within a week from date, whereupon the lower court records should be brought to this court as expeditiously as possible and a notice of arrival of such records issued to Advocate for the appellant. Appropriate copies of the paper-book should be prepared within six weeks of the receipt of such notice. The appellant will have liberty to seek an early listing of the matter immediately after the puja vacation.

In view of the admission of the appeal and the doubts that persist pertaining to whether the appellant is the real owner of the property in question, there will be a stay of the operation of the impugned decree till the disposal of the second appeal. The appellant will also remain restrained from dealing with or disposing of or alienating or encumbering or parting with possession of any part of the suit property in favour of any person without the express previous leave of this court.

CAN 2785 of 2018 is disposed of, but without any order as to costs.