AI Structured Summary
Not yet generated for this judgment
Judgment
1.This second appeal by the plaintiff is filed against the judgment and decree dated 30.11.2006 passed by learned Addl. District Judge, Cachar at
Silchar in Title Appeal No.7/2004, whereby learned Addl. District Judge dismissed the first appeal and upheld the judgment and decree of the learned
Civil Judge dismissing the suit of the appellant/plaintiff.
Brief facts leading to the present second appeal were that the father of the plaintiffs late Katu Mia Mazumdar was the original owner of the land
covered by suit Patta No.75 and Dag No.128 including the suit land. The father of the plaintiffs died leaving behind the plaintiff and his 5 sisters. All
the sisters were given in marriage and they were staying in their respective in-laws’ house and one of his sister Pearun Nessa expired without
leaving any issue. The ancestral property of the plaintiff was not partitioned and he was in exclusive possession of the property left by his father. The
proforma defendant Nos.3, 4 and 5 in connivance with defendant No.1 and 2 got a sale deed executed in respect of the suit land fraudulently and on
the strength of such forged and fraudulent sale deed the defendants tried to trespass into the suit land and hence, the plaintiff instituted the suit (TS
No.48/1996) praying for declaration of his possession and cancelation of the sale deed executed by defendant Nos.3, 4 and 5 and also for permanent
injunction.
The pleaded case of the defendants was that after the death of the father of the plaintiff and defendant Nos.3, 4 and 5, there was amicable family
partition and as per such amicable family partition, the defendant Nos.3, 4 and 5 were allotted 6 bigha, 9 katha and 8 chataks of land in the suit Patta
within the specific boundary, out of which the defendant Nos.3, 4 and 5 sold the suit land to the defendant No.1 by registered sale deed and delivered
possession. It was further stated that plaintiff filed the suit by making false and baseless allegations that the plaintiff was in possession of the suit land.
On the basis of the above pleadings, learned Civil Judge framed the following issues:
Is there any cause of action for the present suit against the answering defendants?
Is the suit maintainable in its present form and manner?
Whether there is any amicable family arrangement amongst the co-sharers who inherited the proportion in suit?
Whether the suit deed is a forged one or created by practicing fraud upon the defendant No.3, 4 and 5?
Whether the defendant No.1 and 2 acquired right, title and interest over the land of suit kabela by right of purchase and was delivered with
possession of the same?
Whether the plaintiff is entitled to any relief?
Both the parties adduced evidence oral as well as documentary in respect of their respective cases and the learned Civil Judge after hearing both
the sides dismissed the suit of the plaintiff. Aggrieved, by the judgment and decree passed by the learned Civil Judge dismissing the suit of the plaintiff,
the plaintiff preferred an appeal before the learned District Judge, which was made over for hearing to the learned Addl. District Judge and the
learned Addl. District Judge by the impugned judgment and decree dismissed the appeal upholding the judgment and decree of the learned Civil Judge.
Aggrieved by the judgment and decree of the appellate Court, the plaintiff filed the instant regular second appeal which was admitted to be heard on
the following substantial question of law:
a. Whether the learned Courts below erred in dismissing the suit of the respondent/plaintiff recording an admission on his part about mutual partition of
the suit land amongst him and his sister (proforma) defendant), in absence of any evidence or material on record in support thereof?
I have heard Mr. M.H. Rajbarbhuiyan, learned counsel for the appellant and Mr. N Dhar, learned senior counsel assisted by Ms. S Chakraborty,
learned counsel for the respondent.
Mr. Rajbarbhuiya submits that there was no family partition amongst the plaintiff and other co-sharers being the proforma defendant Nos.3, 4 and 5
and the plaintiff was in possession of the suit land and that the finding of the learned Courts below with regard to amicable partition between the co-
sharer was perverse and not based on the evidence and materials on record. On the other hand, learned senior counsel Mr. Dhar submits that the
plaintiff himself admitted in his evidence the factum of family partition and he himself sold the land falling in his share after such family partition with
specific boundary to the defendant No.1 and therefore, the concurrent findings of the Courts below have not suffered from any perversity.
Before adverting to the substantial questions of law, let me record here that the plaintiff in the suit prayed for declaration of the sale deed executed
by the proforma defendant Nos.3, 4 and 5 in respect of the suit land in favour of the main defendant to be illegal and void alleging that such deed was
executed by fraud and collusion. However, in course of argument Mr. Rajbarbhuiyan submits that the defendant Nos.3, 4 and 5 being sisters of the
plaintiff and co-sharer of the ancestral property had the right and title over the property and they were also entitled to execute the sale deed in respect
of the joint property to the extent of thier share and in that view of the matter, the plaintiff did not press the said prayer for cancellation of the sale
deed in favour of the main defendant.
The admitted position as appeared from the pleadings and evidence of both the sides is that the suit patta land was ancestral property of the plaintiff
and defendant Nos.3, 4 and 5. The plaintiffs’ specific case in his pleading was that though the property left by his father was inherited by him and
his five sisters, he alone was possessing the entire suit land and there was no partition. Learned counsel for both the sides have taken me through the
evidence on record. It appears that the plaintiff had blown hot and cold in his deposition as regards amicable family partition inasmuch as, in is
evidence-in-chief he stated that there was no family partition whereas, during cross-examination he admitted that he sold 16 katha of land from the
suit patta to the defendant No.1 and as per amicable partition. He also stated that the suit land is situated on the southern side of the 16 katha of land
sold by him to the defendant No.1.
Pw-2 stated in his evidence-in-chief that though there was no formal partition among the co-sharers, they were possessing their respective share as
per amicable arrangement. It is settled principle of appreciation of evidence that in a civil proceeding the evidence is required to be weighed in the
touch stone of preponderance of probability. In the present case, admittedly the suit patta land was ancestral property of the plaintiff as well as
defendant Nos.3, 4 and 5, who are the legal heirs of the original owner of the suit property. The defendant Nos.3, 4 and 5 in their pleadings and
evidence clearly stated that they have sold the suit land in favour of the defendants and delivered possession thereof. In fact, the plaintiff also admitted
that the defendant Nos.3, 4 and 5 had the right to alienate the suit property and therefore, abandoned his prayer for calculation of the sale deed in
favour of the main defendant. When the specific case of the defendant, was that there was amicable family partition and defendant Nos.3, 4 and 5
being exclusive owner in possession of the suit land, sold the suit land to the defendant No.1 as per amicable partition and delivered possession and
such evidence of the defendants not only remained unrebutted, rather stood forfeited by own admission of the plaintiff when he stated that he himself
sold the same portion of the inherited land to the defendant No.1 after having amicable partition.
The above pleading and evidence and also admission on the part of the plaintiff clearly demonstrated that the findings of the learned Courts below
as to the mutual family partition has not suffered from any perversity. When there was evidence and materials on record, on the basis of which both
the Courts below came to the concurrent findings as to the status of the land and also that there was family partition, such concurrent findings of fact
by the Courts below, in my considered view is not amenable to challenge in second appeal.
In view of the foregoing discussion, the substantial questions of law is answered in negative and decided in favour of the respondent/defendant.
For the reasons stated hereinabove, and also the decisions with regards to the substantial questions of law, the second appeal appears to be
without merit and deserves to be dismissed. Accordingly, the second appeal is dismissed.
The parties to bear their own cost.
Send down the LCR.