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TMI Blog2020 (12) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... at the finding of the first appellate court in respect of the additional issue as referred in the substantial No.1 is perverse. Having discussed as such, this court is of the view that the plaintiffs are entitled to get a declaration of right, title and interest of the suit land in his favour and he is also entitled to get a declaration in respect of possession of the suit land and accordingly, his possession over the suit land is confirmed. As consequence thereof, the plaintiff is entitled to a decree of perpetual injunction restraining the defendant or his man or agents from entering into the suit land and disturbing the peaceful possession of the plaintiff. As corollary, the impugned judgments and decrees are set aside. The judgment and decree of the trial court are restored. In the result, the appeals are allowed. - R.S.A. No.48 of 2016 And R.S.A. No.49 of 2016 - - - Dated:- 15-7-2020 - Hon Ble Mr. Justice S. Talapatra For the Appellant(s) : Mr. D. Chakraborty, Sr. Adv., Mr. H. Laskar, Adv. For the Respondent(s) : Mr. A. Bhowmik, Adv. JUDGMENT ORDER The appeals being RSA 48 of 2016 and RSA 49 of 2016 were admitted by this court on 30.11.2016 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiffs, Hrishikesh Majumder got 7.56 acre of land including the suit land. However, the deed of exchange was prepared in the name of mother of the defendant namely Mira Rani Majumder. Hence, the said property inclusive of the suit property was held by her in banami on behalf of her brother-in-law, Hrishikesh Majumder. After death of Mira Rani Majumder, her legal representatives namely Tapan Majumder, Dulal Majumder and Pradip Majumder [sons] and Smt. Sandha Rani Majumder [daughter] executed a deed of release bearing No.1-1689 dated 30.04.1984 relinquishing their right, title and interest over the said property inclusive of suit land in favour of Hrishikesh Majumder. Hrishikesh Majumder died on 02.08.1993 leaving behind three legal representatives namely Mitra Majumder [wife], Priyo Darsha Majumder [son], Bhadra Majumder [Sengupta] [daughter]. They inherited the suit land. Those legal representatives sold out the suit land to the plaintiffs by the registered sale deed No.1-2493 dated 05.10.2004 and delivered its possession. During the survey settlement operation, the said land was recorded in the name of Mira Majumder on the basis of the deed of exchange. Some other persons claimed p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e title of the plaintiffs and directing the Sub Divisional Magistrate to hand over the possession of the suit land to the plaintiffs. In the perspective of the second appeal it may be mentioned that the following issues were paramount in the suit and those were decided in favour of the plaintiffs : 2. Whether the plaintiffs have right, title and interest over the suit land? 3. Whether the plaintiffs were in possession of the suit land ? 4. The said judgment dated 04.12.2006 was challenged in the first appeal being T.A.01 of 2007 by the defendant but the said appeal was dismissed and that was challenged in the second appeal being RSA 67 of 2008. As stated, this court by the common judgment dated 09.02.2016 set aside the said judgment and remanded the matter for further hearing on framing the appropriate issues and affording the opportunities of hearing to the parties etc. In terms thereof, the first appeal was reheard and decided by the impugned judgment dated 26.08.2016 [T.A.01 of 2007]. The first appellate court have recast the issues and the following issues were framed, apart the issue relating to the maintainability of the suit and the extent of relief that can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the northern side of that plot, and there is also no explanation from the side of the plaintiff with regard to this dissimilarity. In the said Khatian no.554/3, the total area of said suit CS plot is only 0.12 acre, but in the plaint schedule as well as in the purchase deed of plaintiff, the area of said purchased plot has been shown as 0.16 acre which is much bigger than the actual area of that plot and in this regard also there is no explanation in the plaint or in evidence. Ld. Sr. Advocate, Mr. Debabrata Chakraborty argued that there is no defence taken by the defendant in this regard in his written statement or in the memo of appeal, so they are stopped from raising any such plea now. The submission of Ld. Sr. Advocate has some force no doubt, but for that reason the power of the Court is not restricted. The Court always owes a duty to look into this aspect to ascertain as to whether, if any decree is granted in favour of the plaintiff, same will be executable or not and whether ultimately same will be rendered in-fructuous and in-executable. Thus, Issue No.6 is decided against the plaintiff and as a result of all the above said discussions and decision, the Issue No.5 is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the direction passed by this High Court framed one additional issue for adjudication of the dispute as raised in T.S.07 of 2006. The said additional issue reads as under : 6. Whether the suit is barred by prohibition of Benami Transaction (Prohibition) Act, 1988. 7. In the suit, the plaintiff has pleaded that the predecessor of the vendor of the plaintiff was one Hrisikesh Majumder [now deceased]. Hrisikesh Majumder and Binode Ranjan Majumer [now deceased], father of the defedent [the respondent in this appeal] exchanged their landed property situated in East Pakistan with one land holder in India and thus Hrisikesh Majumder got 7.56 acre of land inclusive of the suit land by way of exchange. According to the plaintiff, when the deed of exchange was prepared and executed, it was executed in the name of Mira Rani Majumder [now deceased]. Mother of the defendant, Mira Rani Majumder, according to plaintiff, held the property inclusive of the suit property as benamder for and behalf of her brother-in-law, Hrisikesh Majumder. After death of Mira Rani Majumder, her legal heirs namely Tapan Majumder, Dulal Majumder and Pradip Majumder [the defendant in the suit and the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rshan Majumder under due authorization entered into the agreement of sale for the entire landed property under Mouja Dhajanagar and Tepania measuring 4.47 acre for a consideration of ₹ 2,75,000/-. Out of that, earnest money of ₹ 1,1000/- was accepted on 27.09.2000. It has been further asserted that on 26.06.2004, the defendant paid further sum of ₹ 1,00,000/- to the said Priyadarshan Majumder at his residence at Kolkata and requested him to execute the sale deed in favour of the defendant after receiving the remainder of the consideration money i.e.₹ 74,000/-. But Priyadarshan Majumder did refuse to get the sale deed registered in terms of the purported agreement. As a result the defendant filed a suit against Priyadarshan Majumder being T.S.19 of 2004 in the Court of the Civil Judge, Senior Division. At the time of filing the written statement the suit was pending and it was proceeding ex parte against Priyadarshan Majumder. A police report was filed against the defendant on 27.07.2005 on allegation that the defendant attempted dispossession through some labourers. The said proceeding under Section 145 of the Cr.P.C. was challenged in the court of the sessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law. 11. Mr. D. Chakraborty, learned senior counsel assisted by Mr. H. Laskar, learned counsel appearing for the appellant has quite categorically submitted that the deed of release bearing No.1-1689 dated 30.04.1984 executed by all legal heirs of Mayarani Majumder in whose name the land stands recorded has not questioned by the defendant. As it would appear that no issue was either framed by the trial court or by the first appellate court in respect of validity of the said release deed. On the contrary the defendant has admitted that the land belonged to Hrisikesh Majumder, the predecessor of the plaintiff and the defendant had entered into agreement for purchasing the entire land of Hrisikesh Majumder from his legal heirs. In the common judgment and order dated 09.02.2016 delivered in RSA 36 of 2008 and RSA 37 of 2008 as referred before this court had occasion to observe in para-8 as follows : 8. This court has gone through the findings made in all the three cases, from which it appears that the learned appellate court failed to consider each case on its own merit. Rather, in a whimsical manner he has said that the learned trial court has not committed any error of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was held as a trustee standing on a fiduciary capacity by Mayarani Majumder and thus Section 4(a) of the said Act will provide necessary immunity to the transaction carried out by executing the release deed. The first appellate court has examined the release deed to consider whether the title was with Hrisikesh Majumder or not. But it was nobody s case that any title has been claimed on the basis of benami in the suit. 13. Mr. A. Bhowmik, learned counsel appearing for the respondents has raised an objection that after the said Act of 1988 came into force on 19.05.1988, no right can be asserted on the basis of benami property. Section 4 creates prohibition to recover property held benami. At this juncture, it would be apposite to note that the release deed was executed on 30.04.1984 and nobody has challenged its validity. Thus, framing of that issue was not based on the rival pleadings. The first appellate court however was entitled to consider whether the release deed bearing No.1-1689 dated 30.04.1984 caused transfer of title or not. 14. Having keenly appreciated the analogy given by the first appellate court, this court has no difficulty in accepting that the burden of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual of any such right by us. You were all along the owner and possessor of the below scheduled land and you will remain so. The legal heirs of Late Mira Rani Majumder will have no right or claim in the land and if they on any occasion to claim so, it will be treated as invalid. To delete the name of late Mira Rani Majumder from the ownership register, and to mutate your name and to continue to enjoy the land by you by collecting revenue therefrom, we had/have no objection. In witness thereof we execute this deed of Nadabi or deed of release in your favour. 15. There is no ambiguity in the intention. It is a clear cut transfer but without any apparent consideration. Either it may be deemed as gift or it may be treated as release of the property by the person in whose name the property is held to a trustee or another person standing in a fiduciary capacity and the property is held for the benefit of the other person for whom he is a trustee or towards whom he stands in such capacity. There cannot be any doubt that Mayarani Majumder is a trustee who held the said property for benefit of Hrisikesh Majumder. Thus the final observation that the intention of the executants of the dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As such, the plaintiffs title cannot be questioned by the defendant and he is estopped from questioning the transfer in favour of the plaintiff. Moreover the pleadings relating to non-execution of the deed of transfer [Exbt.3] by the legal heirs of Hrisikesh Majumder have not been proved complying the requirement of Section 103 of the Evidence Act. (ii) Whether the finding of the appellate Court on the additional issues framed by the said Court suffers from perversity ? From the discussion made above, it is evident that the finding of the first appellate court in respect of the additional issue as referred in the substantial No.1 is perverse. 18. Having discussed as such, this court is of the view that the plaintiffs are entitled to get a declaration of right, title and interest of the suit land in his favour and he is also entitled to get a declaration in respect of possession of the suit land and accordingly, his possession over the suit land is confirmed. As consequence thereof, the plaintiff is entitled to a decree of perpetual injunction restraining the defendant or his man or agents from entering into the suit land and disturbing the peaceful possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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