JATINDRA NATH CHOUDHURY Vs. SASADHAR CHOUDHURY

JUDGEMENT

(1.) Heard Mr N. Chakraborty, learned counsel assisted by Sri N. Chakraborty (Junior) learned counsel appearing for the appellant. None appeared for the respondents despite notice. The substantial question of law formulated in this second appeal, are as follows:

(2.) Admittedly, this appeal has been preferred against the concurrent finding of the Courts below assailing the impugned judgment, Mr Chakraborty, learned counsel has contended that the finding of the Court below are totally perverse and inconsistent with the evidence on record and as such, this is a fit case, where, this Court can interfere with the impugned judgment, though, based on concurrent finding. Referring to the finding of Issue No. 6, it is contended that though the present appellant had never admitted that his mother had got 1 Bigha 2 Kathas 14 Lechas of land as the share, the Courts below ignoring the said evidence, observed that the appellant admitted to the fact that the mother - Vendor had got 1 Bigha 2 Kathas 14 Lechas of land. According to him, the case of the appellant/plaintiff is that the suit land measuring 2 B. 14 L. covered by Dag No. 610, Patta No. 18 is an ancestral property and plaintiff/ appellant alongwith his six brothers and the mother (Vendor since deceased) are having equal share over the suit land and they have been possessing the suit land amicably by way of family arrangement. In view of the same, the mother, vendor in question, had at no point of time, any share exceeding 1 Katha 6 Lechas of land out of total suit land of 2B. 14 L. It is the contention of the appellant that the mother (Vendor, since deceased) having only a share of 1 Katha 6, Lechas of land, has no legal saleable right over 1 B.2 K. 14 L. of land and accordingly, the sale deed, Ek. 'Ka' executed by her, itself is not a valid document and the transfer so made pursuant to the sale is void and inoperative. I have considered the submissions of the learned counsel on behalf of the appellant and also perused the impugned judgment including the evidence of PW-1 the appellant. On perusal of the evidence of PW-1, it appears that no where, he had admitted that The Vendor acquired a share of IB. 2K. 14L. of land. In cross also, he never stated that she had a share in IB. 2K. 14L. of land, but, the learned Judge by misconstruing the said evidence, recorded to the effect that "this evidence of PW-1 also lead to hold his mother had got IB. 2K. 14L. Hence, there was sufficient corroboralion in the evidence of the defendant No. 1 to believe that their mother had the tills to transfer IB. 2K. 14L. in his favour". This finding in my opinion is perverse and inconsistent on the face of the evidence on record.

(3.) Now, as regards the question of interference of this Court in second appeal on such finding of perversity, it is well settled that the High Court may interfere with, even the concurrent findings of the Courts below, if the same appears to have suffered from glaring inconsistencies and perversity. In the instant case, it is the admitted position that the ancestral property devolved upon the appellant including his six brothers and mother in equal share i.e. one Katha six Lechas and out of these shares, in my opinion, mother, Vendor has no legal title to effect the sale deed, Ex. 'Ka' by which, IB. 2K. 14L. of land were transferred. In a catena of decisions of the Apex Court, it has been ruled that on the ground of perversity, a concurrent finding of the Courts below can be interfered with a second appeal.