The admission would have mattered if said defendant had claimed the title by adverse possession: Calcutta High Court

The facts of the case are associated with the petitioner’s property dispute. The learned Advocate for the appellant, who was defendant no.3, submitted that there were two scheduled properties that were recorded as joint property under Revenue Survey Record of Rights (RSROR). Regardless of the deeds of 1928 and 1935, Mohan Mahato was the purchaser of ‘ka’ schedule property, which was the correct position. The scheduled properties were and are joint family properties and the said person Mohan Mahato was one of four sons of Bahadur Mahato. The said person purchased the property from the joint family fund. The record in RSROR was verified yet both the courts misjudged to acknowledge the evidence. The learned advocate also included, since the point of limitation was not urged in the Courts below, therefore cannot be taken here in the second appeal.

Two significant questions of law were involved in the appeal, for its admission was suggested by the learned advocate. The suggested questions are reproduced below-

1. Whether the learned Judges in the Courts below substantially erred in law in decreeing the suit by wrongly applying the principle of law that records of right being exhibit 4 series cannot confer title of the property in favor of any person, when such exhibited documents are construing the principle of law that since the property has been purchased from the nucleus fund of the joint family, property has been recorded in the names of all the members of the joint family, which is the specific pleading of the defendant No.3/appellant.” 

“2. Whether the learned Judges in the Courts below substantially erred in law in not considering the legal effect of the payment of rent by other than Mohan’s heirs, as appearing in the rent receipts being exhibit 2 series and B series as the same reflects the nature of the property as joint indicating purchase of Ka schedule suit property from the nucleus fund of the joint family and accordingly the judgment is perverse.” 

A Supreme Court judgment, Sebastiao Luis Fernandes v. K.V.P. Shastri reported in (2013) 15 SCC 161, paragraphs 33 to 35, was referred by the learned advocate. It includes paragraph 35 that said Court relied on its earlier judgment in Hero Vinoth v. Seshammal reported in (2006) 5 SCC 545, wherefrom paragraph 24 was extracted and reproduced. Relying on clauses (ii) and (iii), the advocate submitted that the said clauses are the corresponding interpretations of notable questions of law which aroused in association out of disputable issues which include contentious issues regarding the joint family purchase of property and corresponding entries in RSROR.

Originally, the suit was decreed. During the first appeal, a remand and an amendment were carried out. On 9th March 2000, the Trial Court by judgment again decreed the suit. The title and interest of plaintiffs and defendant no. 5 over ka’ schedule property, was declared. Defendant nos. 1 to 4 were permanently forbidden from meddling with their possession in respect of said schedule property. Partition in preliminary form in respect of 1/4th share in ‘kha’ schedule property was decreed for plaintiffs and defendant. The lower appellate Court upheld the judgment of the Trial Court.

Bahadur Mahato was the owner of the ‘kha’ schedule property. The successor of Bahadur Mahato is plaintiffs and defendants. Defendant no. 5 are heirs of Jadu, another of the sons of Bahadur Mahato. Mohan had bought by deeds of 1928 and 1935, ‘ka’ schedule property. Eventually, the property and share of Mohan devolved upon Jadu. Consequently, their claim of 16 annas shares in ‘ka’ schedule property and 1/4th share in ‘kha’ schedule property.

In the case of  Sebastiao Luis Fernandes (supra) there was dependence on Hero Vinoth (supra) for interpretation of fundamental questions of law meriting satisfaction of the High Court in admitting second appeals. In the case at hand plaintiffs relied on two deeds, of 1928 and 1935. No dispute regarding the deeds nor their interpretations were found. As stated, Mohan purchased those deeds, and his brother succeeded to his property and shares. Both Courts concurrently declared of the appellant, that the purchases made from the joint family fund, could not be proved.

In the case of  Hero Vinoth (supra), Clause (ii) in paragraph 24 is an interpretation of a question of law on, inter alia, a debatable legal issue. The said debatable legal issue, in this case, is a claim of the title based on the record in RSROR, on disputation of joint family property. The Hon’ble High Court at Calcutta said “It is well settled, entry in record of rights gives rise to a rebuttable presumption of title because possession is many parts of title.”

It was said by the lower appellate Court that disputes of purchases from the joint family fund were required or proof of the existence of the joint family. Another suggested question is based on the legal effect of payment of rent by other than Mohan’s descendants, to reflect upon the nature of the property as joint, indicating purchase of ‘ka’ schedule property from the core fund of joint family. The trial court dealt with the disagreements saying, inter alia, as follows: “At the time of argument, ld. advocate for the defendant no.3 made submission regarding possession of the suit property by defendant and in support of this he referred to some tax receipts. In this regard, it is settled proposition of law that tax receipts can not confer title to either of the parties. Hence, it is clear that plaintiffs have 1/4th share over the Kha schedule property.” 

Thus Hon’ble High Court at Calcutta dismissed the case and held that “The trial Court has analysed the evidence and further evidence adduced on remand. Plaintiffs had the deeds by way of documentary evidence. Furthermore, their claim made, of them and defendant no. 5 having 1/4th share in ‘kha’ schedule property, stood admitted by appellant. Appellant’s assertion of purchase out of joint family fund could not be proved at trial. The lower appellate Court concurred. We are not satisfied that such findings give rise to a substantial question of law, either in relation to the issue decided or the findings being perverse”.

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Judgment reviewed by Bipasha Kundu



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