MANINDRA NATH GHOSH Vs. SUDHIR KUMAR GHOSH

JUDGEMENT

(1.) The present appeal is directed against the appellate decree and the judgement dated 9th of March, 1983 passed in connection with the Title Appeal No. 115 of 1981 by the Sub-Judge, Jangipore, Murshidabad through which he allowed the appeal, set aside the judgement and decree of the trial court and dismissed Title Suit No. 2/1977.

(2.) In brief, the case of the plaintiff/appellant is that the plaintiff and Bhupendra Nath Ghosh the predecessor-in-interest of the defendants since deceased were two full brothers. The suit plots belonged to the plaintiff and the defendants in equal share. Actually the suit property belonged to the father of the plaintiff. The predecessor of the defendants who acquired the suit property in an auction sale held by the court, but the sale price for acquisition of the suit property was paid by the plaintiffs father. In this way, the property was purchased in such auction sale in the name of predecessor in such auction sale in the name of predecessor of the defendants, that is to say Bhupendra Nath Ghosh, the eldest son of the plaintiffs father. But it is alleged that the plaintiffs said eldest brother was not the real purchaser of the property, he was mere name lender. It is the further case that after the death of the plaintiffs father, the plaintiff and his eldest brother did not remain together and they were separated in mess and the properties left by their father were partitioned at the time when the plaintiff was still minor, in the year 1351 B.S. It is further alleged that at the time of partition a Memo of partition was prepared in which the eldest brother as well as the plaintiff at the instance of co-villagers signed. It is further alleged that on attaining majority the plaintiff agreed to the said Memo of partition. It is the further case that since the preparation of the said Memo of partition, the plaintiff is in exclusive possession of the property allotted to his share by virtue of that partition to the exclusion of others and he started possessing the same as of right and as the owner openly and to the knowledge of all, in exercise of his hostile title and in this way plaintiff also acquired an independent title by virtue of the said adverse possession. It is further alleged that although the plaintiff was in possession, it is alleged, in the R.S. record of rights, the same was not recorded due to breach of trust on the part of the plaintiffs eldest brother and so the entry in the R.S. record of rights is wrong. It is further alleged that the L.R. record of rights where the plaintiffs name has been recorded as in permissive possession is also erroneous. Since the defendants denied the title of the plaintiff and about to dispossess the plaintiff from the suit property, the plaintiff had to file the suit. The defendants in the written statement denied all material allegations made in the plaint. They have alleged that the Memo of partition was nothing but a paper transaction and there was no partition of the suit property. The specific defence case is that, their aforesaid predecessor-in-interest, possessed the suit property exclusively by cultivation. They have supported the entries made in the R.S. record of rights but has alleged that the L.R. record of rights is erroneous.

(3.) On the basis of the aforesaid pleadings, the learned Munsif raised certain issues including the issues touching the questions whether the plaintiff/appellant had any right, title and interest in the suit property and also whether the suit was maintainable in the present form. So far as the maintainability is concerned, the learned trial court held that the present suit would not be barred under section 66 (1) of the Code of Civil Procedure as the plaintiffs claim over the property was not solely based on the auction purchase by his father in the name of his eldest brother. Regarding the title, the learned trial court held that Bhupendra Nath Ghosh the eldest brother had no source of income at the point of time when the property in suit was purchased in auction and the plea taken by the defendants that the suit property was purchased by the maternal grand-mother of Bhupendra in the name of her grand-son was also not acceptable and so the father of the said predecessor-in-interest of the defendants and the plaintiff was the real purchaser of the property, since the defendants plea against the plaintiffs assertion about amicable partition of the properties between the plaintiff and his eldest brother was evasive, the plea of partition was accepted. In this way he came to a conclusion that properties left by the father of the plaintiff were partitioned between the plaintiff and his eldest brother. In appeal, the main question which was raised was whether the suit as framed was barred by the provisions of section 66 of the Civil Procedure Code. Before the first appellate court it was argued on behalf of the plaintiff/respondent that as the plaintiff filed the suit not only on the basis of his father's title in the suit property but also on the basis of his independent title in such suit property acquired by him through adverse possession for 12 years in the suit property, the suit was maintainable and the plaintiff could get a decree. The learned Sub-ordinate Judge, Jangipore examined the question whether the plaintiff/ respondent had been able to establish his pliant case of adverse possession. He pointed out that on this point there is only one oral testimony that is to say the evidence of P.W.2 to support the plaintiff/respondent's assertion that he was in exclusive possession of the suit property since the mutual partition. On going through such evidence, the learned appellate court however found that as per the oral testimony of the witness in the cross-examination, the plaintiff was in possession for about 2 years and before that the plaintiffs bargadar named Suren was in possession of the suit property for about 2 years. So the learned appellate court below found, considering the evidence of the plaintiff/respondent that plaintiffs 4 years possession in the suit property was established by his witness P.W. 2 and there is no corroborative evidence in support of the assertion on the part of the plaintiff-respondent that he was in possession of the suit property for 12 years. That apart the essential ingredients of adverse possession were not at all in the record as there was lack of evidence to the effect that the plaintiff/respondent ever denied the title of his eldest brother Bhupendra Nath Ghosh that is to say predecessor-in-interest of the present defendants/appellants or the plaintiff ever asserted his hostile title in such suit property or the plaintiff possessed half of the suit land as the owner of the same and as of right. He also considered that the entry in the R.S. record of right (Ext. b) stood in the name of appellants, predecessor-in-interest Bhupendra Nath Ghosh. The learned Judge also pointed out that there was no cogent evidence to establish that at the time of R. S. operation the said eldest brother of the plaintiff/respondent Bhupendra Nath Ghosh was entrusted with the work of looking after the recording of the name of persons in possession, and also circumstance that auction sale certificate (Ext. 2) already stood in the name of such eldest brother, therefore the plaintiff as an ordinary prudent man should be more cautious in the matter, also went against the plaintiff/respondent. The learned first appellate court, in the aforesaid background came to a firm finding that the suit was not at all maintainable in law in view of the bar imposed by section 66 of the Civil Procedure Code. The learned Judge of the first appellate court further held that the title conferred on Bhupendra Nath Ghosh by the said sale certificate (Ext. 2) would devolve upon the present defendant/appellants as heirs of said Bhupendra Nath Ghosh and there was nothing to show that the said title of the defendants/appellants was extinguished in any way. On the basis of the aforesaid findings, the learned Judge reversed the judgement of the trial court and dismissed the suit.