The High Court dismissed a second appeal arising from a partition suit. The appeal was dismissed at the admission stage due to a lack of substantial question of law and concurrent findings of fact against the appellant, despite the file having been traced.
The second appeal is dismissed at the admission stage with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
16.03.2023 SL No.27 Court No.8 (gc)
SAT 2445 of 2006
Mst. Saleha Bibi Vs.
Sk. Abdul Gaffar & Ors.
Mr. Soumyajit Mishra, Mr. Balarko Sen …for the Respondents.
None appears on behalf of the appellant. This matter initially appeared in the warning list of cases on 29th November, 2022 with a clear indication that this appeal shall be transferred to the regular list on 5th December, 2022. Since then the matter had appeared on a number of occasions. The second appeal could not be taken up for consideration as the original file was not traceable. The department has now been able to trace out the file. The appellant has sufficient notice and/or deemed to have notice of this matter being listed since 29th November, 2022. The second appeal is of the tender year 2006. The Stamp Reporter in its report dated 21.11.2009 has stated that the appeal is not in form as the certified copy of the Trial Court has not been filed with the memo of appeal. The appellant has not taken any step for curing the said defect. On this ground alone, we could have dismissed the second appeal. However, we propose to consider the matter in order to find out whether this second appeal involves any substantial question of law.
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This second appeal is arising out of a judgment and decree dated 17th April, 2006 passed by the First Appellate Court in affirming the judgment and decree dated 29th September, 1988 passed by the learned Trial Court in T.S. No.81 of 1988. The Trial Court passed the decree in a suit for partition and permanent injunction. The Trial Court declared the share of the parties. The said judgment and decree of the Trial Court affirmed by the First Appellate Court. Briefly stated, the suit property bearing plot no.182 originally belonged to Aminuddin. After his death his two sons namely, Abdul Sattar (father of the plaintiff) and Abdul Majid (father of defendant No.2) inherited 7 annas each and their mother, Sarimon Bibi, inherited 2 annas share in the suit property. After the death of Sarimon Bibi, her 2 annas share devolved upon the two sons in equal shares. Thereby, Abdul Sattar and Abdul Majid became the owner of 8 annas share each in the suit property. The plaintiff claims that after the death of Abdul Sattar, his 8 annas share devolved upon his son Abdul Gaffar (plaintiff), daughter (Rahima Bibi), the defendant No.2 and wife Chandu Bibi. After the death of Chandu Bibi, her share devolved upon the plaintiff and the defendant No.2. After Sattar his 8 annas share devolved on Chandu Bibi to the extent of 1 anna, Abdul Gaffar (plaintiff) 4 annas 13 gondas 1 kara 1 kranti and Rahima Bibi (defendant No.2) to the extent of 2 annas 6 gondas 2 karas 2 krantis. Since Chandu Bibi predeceased Abdul Gaffar and Rahima Bibi (plaintiff and
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defendant no.2, respectively), her 1 anna share inherited from her husband devolved on the plaintiff to the extent of 13 gondas 1 kara 1 kranti and on the defendant no.2 to the extent of 6 gondas 2 karas 2 krantis. Thus, 8 annas share of Abdul Sattar devolved on Abdul Gaffar (plaintiff) to the extent of 5 annas 6 gondas 2 karas 2 krantis and Rahima Bibi (defendant no.2) to the extent of 2 annas 13 gondas 1 kara 1 kranti. After the death of Abdul Majid in the year 1376 B.S., the plaintiff and the defendants were in joint possession of the suit property. The defendant Nos.1 and 2 were residing in the matrimonial home. The plaintiff was in occupation of the south facing house and was enjoying the usufructs of the trees standing on suit property. However, all on a sudden, on 27.04.1986, defendant No.1 suddenly came to the suit property with outsiders and associates and jointly declared that the plaintiff had no right, title and interest in the suit property and the plaintiff was asked to vacate the suit property. The defendant No.1 alleged to have tried to dispossess forcibly the plaintiff from the suit property. The plaintiff further alleged that the R.S. settlement record of right stands in the name of the father of the defendant No.1 to the extent of 16 annas is erroneous and without any foundation and hence not binding on the plaintiff. It was stated that the plaintiff’s father and the father of the defendant No.1 were full brothers and the father of the plaintiff had implicit faith upon the father of the defendant No.1 and he was in possession of the suit
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property. The father of the defendant No.1 taking advantage of the simplicity of the father of the plaintiff managed to record his name to the extent of 16 annas in the suit property in suppressing the true facts.
The defendants contested the said proceeding and in their written statement they have alleged that Abdul Majid had 16 annas share in the suit property. His inherited share remained intact. He took settlement of 8 annas share of Abdul Sattar from the then landlord after Abdul Sattar surrendered his 8 annas tenancy in the suit property to the landlord. It appears from the judgment of both the Courts that the appellant relied upon C.S.R.O.R. in support of her claim. The contention of the appellant appears to be that her father took settlement of the tenancy of Abdul Sattar in the suit plot on 29th Magh, 1350 B.S. after surrender of the same by Abdul Sattar to the landlord. R.S.R.O.R. stands in the name of the appellant’s predecessor and the subsequent record of rights stand in the name of the appellant. The appellant denied that the plaintiff was in occupation of south facing house for enjoying the usufructs of the trees standing on the suit property.
It was further alleged that Abdul Majid during his life time executed a deed of gift in favour of the defendant No.1 in respect of the suit property along with other properties on 28.11.1967 and put the defendant No.1 in possession of the suit property along with the other gifted properties and by virtue of the deed of Hebanama, the
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defendant No.1 had acquired right, title and interest in respect of the suit plot and she was exercising all acts of possession for almost 20 years. In the current settlement record of rights, the name of the defendant No.1 was duly recorded. The defendants, accordingly, clearly denied the title of the plaintiffs.
The learned Trial Court on the basis of the pleadings framed four issues. In deciding the suit, the learned Trial Court has taken into consideration that it is an admitted position that the suit plot was of Abdul Majid and Abdul Sattar having 7 annas share each and Sarimon Bibi having remaining 2 annas share therein. This fact stands corroborated from Exhibit-1 and C.S. record of right. On the death of Sarimon Bibi, her share devolved upon her two sons to the extent of 8 annas share each. Abdul Sattar died leaving behind the plaintiff (son), defendant No.2 (daughter) and his wife Chandu Bibi. The share of Chandu Bibi, if any, would devolve upon the plaintiff and the defendant No.2. After the death of Sattar, his 8 annas share devolved upon Chandu Bibi to the extent of 1 anna, plaintiff 4 annas 13 gondas, 1 kara, 1 kranti and defendant No.2 to the extent of 2 annas 6 gondas, 2 karas 2 krantis. The devolution of the interest on the parties upon the death of two sons of Aminuddin is not in dispute. The defendants, however, contended that the defendant No.1, Majid had 16 annas share in the suit plot along with the structures and trees standing thereon for the reason he had 8 annas share at the relevant time
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and thereafter he took settlement of 8 annas share of Sattar from the then landlord when Sattar left the village after surrendering 8 annas share in the suit property to the then landlord. The case of surrender, however, could not be proved at the trial. In order to prove surrender, the defendant No.1 had relied upon few rent receipts alleged to have been issued by the landlord which were found to be not genuine. Various discrepancies with regard to the said rent receipts have been noticed by the Trial Court in its judgment. Once the surrender is not proved, then Majid could not have transferred interest to the extent of 8 annas which originally belonged to Sattar as he would have no right in respect of the said 8 annas share. The validity of the case would depend upon the surrender to the extent of 8 annas share in favour of Majid or the landlord as the case may be and on a plea being established that Majid became the owner of 16 annas share.
Both the Courts have taken into consideration that the plaintiff’s predecessor and the defendant’s predecessor were brothers by full blood and the C.S.R.O.R also stood in their names. Any alteration to such record of rights has to be satisfactorily explained as the exclusion of one of the co-owners would be prejudicial to his interest. The change in the R.S.R.O.R. by way of exclusion of one of the brothers, as demanded by the beneficiary would claim to have acquired interest of Abdul Sattar has to establish by cogent evidence by surrendering of tenancy right by Abdul
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Sattar in favour of Zamindar and followed by taking of settlement of such tenancy by Abdul Majid from the Zamindar. The defendants, however, could not establish the aforesaid fact at the trial. The First Appellate Court also discarded the rent receipts as forged and fabricated. On the basis of the evidence, it is possible for both the Courts to arrive at the said finding. The fountain head of the claims of the appellant’s exclusive title and possession in the suit property is Exhibit-D series, which are few rent receipts. Since the said rent receipts are found to be doubtful, forged and fabricated, no title could pass in favour of the respondents based on such receipts.
The concurrent findings of facts are based on proper appreciation of fact and law. The findings of facts unless are perverse, the Court by considering the admission of the second appeal based on concurrent findings of facts shall not admit such appeal.
In view thereof, the second appeal being SAT 2445 of 2006 stands dismissed at the admission stage.
However, there shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Uday Kumar, J.)
(Soumen Sen, J.)
3 issues framed by the court
Whether the second appeal is maintainable despite procedural defects regarding the certified copy of the judgment.
Whether the High Court should admit the second appeal despite concurrent findings of fact against the appellants.
Whether the substitute rent receipts relied upon to establish title are genuine and sufficient to prove surrender.
Mst. Saleha Bibi
Sk. Abdul Gaffar
Uday Kumar
Soumen Sen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
