Malina Paul And Ors. vs Shibani Paul And Ors.

Heard Mr. D.R. Chowdhury, learned Sr. Counsel assisted by Mr. D. Debnath, learned counsel appearing for the appellants as well as Mr. S.M. Chakraborty, learned Sr. Counsel assisted by Ms. P. Sen, learned counsel appearing for the respondents.

This is a first appeal filed under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 11.07.2017 and 26.07.2017 respectively dismissing the suit of the plaintiffs vide No.MS42/2013.

The facts relevant to decide this appeal may be dealt with, in brief.

The father of the two brothers, namely, Hrishikesh Paul and Subal Paul i.e. the husband of the present-appellant No.1 and husband of respondent No.1 respectively was the original owner of the suit land. Their father had a land in Brindaban which is part and parcel of the suit land. The present suit is filed by appellant No.1 being the wife of Hrishikesh Paul. In the plaint, she along with other descendants of Hrishikesh Paul instituted the present money suit for recovery of 50 % of Rs.10,00,000/-, which according to them, was the consideration money for selling of the land and temple at Brindaban. The suit was contested by respondent No.1 being the wife of Subal Paul and other legal heirs.

After exchange of pleadings, issues were framed, and evidences were adduced by the parties.

Thereafter, having heard the learned counsels for the parties and on consideration of the evidence and materials on record, the learned Civil Judge, Senior Division dismissed the suit vide judgment and decree as aforestated.

Feeling aggrieved, the plaintiffs have preferred the instant appeal.

Mr. D.R. Chowdhury, learned Sr. Counsel relying upon the evidence of Smt. Shibani Paul, the wife of Subal Paul (now deceased), which was adduced in connection with the Title Suit No. 88 of 2008 has submitted that the cause of action of the suit arose from the admission of Shibani Paul when she stated in that suit that " I cannot say whether the value of the property of Brindaban is Rs.10,00,000/- or not. It is not a fact that my husband gave the money after selling the property situated at Brindaban".

Mr. Chowdhury, learned Sr. counsel has submitted that he put a question by way of suggestion that the property situated at Brindaban, was sold at Rs.10,00,000/- and on that suggestion, the plaintiff i.e., the respondent No.1 herein had replied the way as it is quoted here-in-above.

On the other hand, Mr. S.M. Chakraborty, learned Sr. Counsel refuting the said submission of Mr. Chowdhury, learned Sr. Counsel has submitted that the quotation as extracted here- in-above from the evidence of P.W.-1 cannot be said to be an admission and also cannot form the basis of the institution of the present money suit for recovery of Rs.5,00,000/- i.e. 50 % of Rs.10,00,000/-.

Mr. Chowdhury, learned Sr. Counsel has submitted that the defendant-respondent No.1 has admitted the transfer.

For a moment, if I consider that respondent No.1 has admitted that the land was transferred, but the present suit being money suit, the plaintiffs have to substantiate the consideration money at which the land was sold. I repel this submission of the learned counsel also that there is an admission on behalf of respondent No.1 that the land has been transferred because there is no iota of evidence or any documentary evidence that the land was ever transferred.

On the basis of the aforesaid facts and the submissions of the learned counsels appearing for the parties, I have proceeded to decide the present appeal.

Firstly, in my opinion, the reply of P.W.-1 in T.S. No. 88 of 2008 in respect of the fact that she could not say whether the value of the property at Brindaban was Rs.10,00,000/- or not, and that it was not a fact that her husband gave her the said consideration money after selling the property situated at Brindaban, can not in any way be said to be an admission. Admission of a fact in issue must be clear and unambiguous. The entire suit of the plaintiff is based on this statement made by Smt. Shibani Paul in connection with the suit i.e., T.S. No.88 of 2008.

Since, according to Mr. Chowdhury, learned Sr. Counsel, the instant money suit has been filed on the basis of the said statement and not on any other ground, in my opinion, the plaintiff has miserably failed to make out her case of recovery of money of Rs.5,00,000/. The plaintiff did not produce or adduce any evidence to substantiate that the property of Brindaban was sold at a consideration of Rs.10,00,000/-. It was only the suggestion of the learned counsel in that suit (T.S.88 of 2008) when the respondent No.1 replied to the suggestion in the manner as quoted here-in-above. According to me, the whole suit of the plaintiff is based on conjecture and surmises.

Consequently, I find no error in the findings recorded by the Trial Court dismissing the suit of the plaintiff.

Having held so, the instant first appeal is devoid of merit and, accordingly, stands dismissed.