UPENDRA CHANDRA GHOSH Vs. SOVA RANI GHOSH

JUDGEMENT

(1.) This second appeal is against the judgment and decree dated 13th December, 2005 passed by the learned Additional District Judge, 1st Court at Jalpaiguri in O.C. Appeal no. 01 of 2002 affirming the judgment and decree dated 12th December, 2001 passed by the learned Civil Judge (Senior Division) at Jalpaiguri in O.C. Suit No. 97 of 1997. Plaintiff is the appellant before this Hon'ble Court. Plaintiff filed a suit, inter alia, for declaration and partition. According to the plaint case one Khur Khundi Bewa owner in possession of land in C.S. Plot no. 280 recorded in C.S. Khatian no. 770/3 granted lease of a piece of land measuring 09 decimals by a registered lease deed in favour of the predecessor of the plaintiff, Late Nagendra Chandra Ghosh and the defendant. Late Ganga Charan Ghosh the father of Late Nagendra Chandra Ghose and defendant used to occupy and possess 08 decimals of land in addition to the said 09 decimals of land in the same plot and khatian lying contiguous east to the said 09 decimals of land since 1940 peacefully, openly and without any interruption from any quarter at any point of time and acquired valid possessory title with respect to the said 09 decimals of land. The lands measuring 17 decimals that is, 09 decimals and 08 decimals had all along been in joint possession of the defendant and said Nagendra Chandra Ghosh within one compact boundary as described in schedule 'A' and by virtue of an amicable arrangement between Late Nagendra Chandra Ghosh and defendant the plaintiffs have been possessing the land measuring 81/2 decimals on the Southern portion of said 17 decimals of land while the defendant was in possession of 81/2 decimals on the Northern portion of such 17 decimals of land. Late Nagendra Chandra Ghosh along with his family previously resided in a big room situated on the eastern vitti in the lands under his occupation and the said structure was shifted to Western side by him and raised construction of a room. Nagendra Chandra duly paid rents to the Sate for his exclusive possession over 81/2 decimals of land and also paid Municipal Tax and separate holding number being 368 under ward no. Old 7 (new 10) was allotted in his favour. Nagendra Chandra Ghosh died in or about 1973 leaving behind the plaintiffs and Sibu Charan Ghosh as his legal heirs who inherited the said properties of Nagendra Chandra Ghosh. The said Sibu Charan Ghosh was unmarried and has not been heard of for more than 7 years by those who would naturally have heard of him had he been alive and as such he is presumed to be dead in the eye of law. The defendant has been possessing his portion on the Northern side wherein he has constructed a Chowchalla big room with tin sheet roofing on the Eastern vitti and subsequently, he raised pucca construction on the western side of the land under his occupation.

(2.) C.S. Plot no. 280 comprising 17 decimals has been recorded in R.S. Plot no. 15 in separate R.S. Khatian, namely, 710 and 711. 09 decimals has been recorded in R.S Khatian no. 711. However, taking advantage of the simplicity and illiteracy of Late Nagendra Chandra Ghosh the defendant has shrewdly, illegally and surreptitiously in collusion with the settlement employees managed to get the said two R.S. Khatian recorded in his name alone. As the entire 17 decimals of land should not have been recorded in any way in the name of defendant alone as he has all along been possessing only half portion of said 17 decimals of land as such R.S. Khatina no. 710 and 711 have been prepared and opened wrongly, illegally and without any foundation as neither registered deed of lease nor the long possession of Late Nagendra Chandra Ghosh over the half portion of entire 17 decimals of land was taken into consideration by the settlement employees. Being emboldened by aforesaid wrong and illegal entry of entire 17 decimals of land in the sole name of the defendant in the aforesaid two R.S. Khatians, the defendant tried to disturb possession of the plaintiffs; in January, 1996, defendant illegally claimed to be owner of the entire 17 decimals of land and asked the plaintiffs to quit and vacate the structures and the lands which they have been enjoying and possessing since 1940. The defendant and his sons had already removed forcibly the betel-nut trees standing on the Northern side of the lands of the plaintiffs and are also continuously making illegal attempts to trespass upon the lands of the plaintiffs. Plaintiffs have made complaints to different authorities against the defendant for correction of the record of rights prepared under Khatian nos. 710 and 711 and also made complaint against defendant to Kotwali P.S. for taking action for his making threats and attempts to trespass upon their lands. Although there was an oral amicable arrangement between Late Nagendra Ghosh and defendant by virtue of which their separate possession in equal share has all along been maintained, there has never been any partition by metes and bounds with respect to the lands described in schedule "A" plaintiffs have made several demands to the defendant and ultimately, on 15.04.1997 refused to effect any partition of the suit property. Defendant contested the suit by filing written statement denying all material allegations made against the plaintiffs.

(3.) Mr. Basudeb Bhattacharya, learned advocate for the appellant/defendant has argued that entry in the R.S. Khatian was wrong and Court ought not to have declared the share of the plaintiff on the basis of such R.S. Khatian. However, it is undisputed that the said erroneous entry was never attempted by the defendant to be corrected. The positive case which the defendant in the second appeal has sought to advance is that the defendant was in possession of the suit land wherein he constructed a Chowchalla big room with tin sheet roofing. Mr. Bhattacharya sought to agitate before this second appeal Court that there is an oral amicable arrangement between late Nagendra Chandra Ghosh and the defendant by virtue of which the defendant was to possess the suit land and therefore, the decree which has been passed cannot stand. These arguments in the second appeal cannot be accepted firstly, there was no issue framed on the basis of such submission and it goes without saying that there was no issue because there was no pleading in the written statement. Mr. Bhattacharya, has also argued that in view of the bar under Section 57B of the West Bengal Estate Acquisition Act that no suit is maintainable for partition and also cannot be supported inasmuch as the suit for partition and declaration does not go within the bar of Sections 36 and 57B and the provision does not curtail the power of Civil Court which is specific and expressed under Section 9 of the Code of Civil Procedure. The other ground urged before the Second Appellate Court is not maintainable inasmuch as to decide the substantial question of law no such answer need be given in this appeal by the Second Appellate Court. The decision cited by Mr. Bhattacharya in Purbanchal Estates Private Limited -Vs. - Hiralal Sarawgee, 2014 5 CalHN 337 (CAL) on the issue that burden of proof is on the plaintiff to prove his case, does not help to nullify the decision of the Courts below, inasmuch as it is definitely the law that he who raises the issue it is his burden to prove but at times burden shifts. I have already clarified the position as to why the plaintiff is not required to prove his title when his possession over the suit land derived from his predecessor uninterruptedly has not been denied by the defendant.