- (1.) This second appeal arose out of challenge of judgment and decree dated 21st January, 1994 passed in Title Appeal No.407 of 1992 by learned Assistant Judge at Alipore, District South 24-Parganas, affirming the judgment and decree dated 25th July, 1992 passed in Title Suit No.498 of 1977 by learned 1st Court of Munsif at Diamond Harbour, District South 24-Parganas. This appeal was preferred by defendant No.1 of the suit as appellant. By the order dated 11th April, 1994 while admitting the appeal under Order XLI Rule 11 of the Code of Civil Procedure, the Division Bench of Calcutta High Court held that the appeal would be heard on the ground Nos. I, III, IV, X, XIV and the added grounds i.e. ground No.XX. The aforesaid grounds read to this effect: - "I. For that the Courts below erred in law in ignoring the unimpeachable documentary evidence produced in the case; the Courts below erred in law in failing to consider the presumption of possession, may the presumption of title available to the entry in the Cadastral Survey, record-of-rights and the revisional record of rights. III. For that the basis of the defence was the provisions of the Hindu Succession Act, 1956 and the Courts below were totally under misconception in holding that the submission of the appellant was to the contrary; the Courts below were wrong in holding that the provisions of Sections 14 and 15 of the Hindu Succession Act have no application in the appeal as submitted by the appellant. IV. For that the Courts below erred in failing to hold that Sm. Surobala inherited the disputed property acquired by Sm. Narayani by her own income as the daughter, of Sm. Narayani and passed the same till long after the Hindu Succession Act as absolute owner under the said law. X. For that the Courts below erred in law in holding that Sm. Surobala and Sm. Lakshmibala were not the legal heirs according to do Hindu Law; the Courts below should have held that Sm. Surobala as married daughter of Sm. Narayani inherited the property of Sm. Narayani and Sm. Lakshmibala was heir of Sm. Surobala and further by registered deed of gift dated 1371 gave and all the disputed property to Sm. Lakshmibala. XIV. For that the Court below were wrong in holding that there was no dispute the Muchiram died in 1327 B. S. and that Sm. Narayani died in 1350 B.,S. and that Sm. Narayani got the interest of Widow's estate over the suit land and that disputed land belonged to Muchiram. XX. For that in absence of any evidence the Courts below erred in law in holding that plaintiff succeeded as revisioners on the supposition that the property belonged to Muchiram."
(2.) Title Suit No. 498 of 1977 was filed praying (a) declaration of title of plaintiff Nos.1 and 2 and the predecessor in interest of plaintiff No.3 in Schedule 'Ka' and 'Kha' properties as reversioner of Late Muchiram Mistri and further declaration that defendants has no title and possession over the property; (b) mandatory injunction restraining the defendants from causing any disturbance over the possession of the suit land by the plaintiffs during pendency of the suit and/or in future; (c) in the event prayer (a) is not allowed by the Court, then a declaration that in the suit land the plaintiffs have acquired title by purchase of the suit land and a mandatory injunction to that effect restraining the defendants from causing any disturbance. Following issues were framed by the learned trial Court: "(1) Is the suit maintainable in its present form? (2) Is the suit barred by law of limitation? (3) Is the suit barred by Section 34 S. R. Act? (4) Have the plffs. title and possession over the suit land? (5) Are the plffs. entitled to a decree for declaration and partition as prayed for? (6) To what other relief, if any, are the plffs. entitled?"
(3.) While adjudicating the suit, the trial Court framed the main point to this effect that the dispute relates to the issue as to whether the suit land belong to Muchiram or Narayani as a personally owned property with absolute interest. It was the plaintiffs case that after death of Narayani they inherited the properties left by Muchiram in respect of 'ka' schedule property but subsequently, they purchased the 'ka' schedule property from Surobala, daughter of Muchiram. As per 'kha' schedule property, plaintiff inherited the property as the successor in interest of Nabin as well as reversioner of Muchiram. To satisfy the claim as reversioners it was the case of the plaintiffs that the Muchiram died on 1327 B. S. i.e. long before commencement of Hindu Succession Act, 1956 and Narayani, widow of Muchiram, accordingly, acquired only the interest of widowed estate over the suit land and after death of Narayani the inheritance over the properties of Muchiram devolved upon the heirs of Muchiram's aguates and by virtue of old Hindu Law of inheritance in vogue prior to 1956, the plaintiffs, the reversioners of Muchiram, inherited the properties of Muchiram. Defendant on the other hand submitted a defence case that in the cadastral settlement record of rights, the suit plot has been mentioned in the name of Narayani as absolute owner and in the revisional settlement record of rights, the name of Surobala as legal heir of Narayani was recorded along with Lakshmibala in equal share being the two daughters of Narayani and accordingly the claim of the plaintiff as reversioners of Muchiram had no basis. It was the further defence case that the plaintiffs admitted Surobala as the legal heir who inherited the property from Narayani and thereby purchased the property from Surobala. It was the further defence case that Surobala by deed of gift transferred the property measuring 27 satak of land of the suit plot in favour of defendant No. 1. Learned Court below considered the documentary evidence as exhibited and scanned the oral evidence of the parties including their respective conduct and ultimately held so far as the issue of title of the suit properties to this effect: "There is no dispute that Narayani died on 1350 B.S. i.e. before the passing of Hindu Succession Act and as such Surobala and Lakshmibala were not the legal heirs according to old Hindu Law and so they had no right to inherit any property of Muchiram and Narayani. Considering the pleadings and the evidences of documentary and oral, I find that though Surobala and Lakshmibala never inherited any land left by Muchiram yet according to the provisions of old Hindu Law, yet the act and conduct of the plff. shows that they admitted earlier about the right of inheritance of Surobala over the properties of Muchiram in the suit plot because plffs. predecessors i.e. Nritya Gopal and Jitendra purchased land from Surobala comprised in the suit plot. Rather, if Narayani had widowed estate over the properties of Muchiram they had no right, to sell the said land to anybody because such interest over the land were qualified to Narayani and she had no capacity to dispose of the same. Yet, inspite of that, plffs. predecessor Muktaram purchased land from Narayani over the share of Muchiram in the said 9 bigha 13 kata 6 chitak land. In conclusion, the documentary evidences compels me to form an opinion that according to line of succession, the plffs, as surviving heirs of Santatan inherited half portion over 2 Ekar 03 satak land. 07 satak land was tenanted to other persons. So the plffs. possessed half share over 1 Ekhar 96 satak. Narayani as heirs of Muchiram, got 98 satak land i.e. half of 1 Ekar 96 satak land. She sold 17 satak land to Muktaram. So Narayani used to hold 81 satak land. Surobala as daughter of Narayani possessed 81 satak iand. Surobala sold 25-2/3 satak land (ka scheduled) to the plffs. predecessor. So after such sale Surobala had 55-2/3 satak land. Surobala had no authority to transfer more land than the said 55-1/3 satak land and the heirs of Lakshmibala i.e. substituted defdts has only 55-1/3 satak land over the suit khatian." Regarding the possession, it is the positive finding of the trial Court as follows: - "Regarding possession, on perusal of documentary evidences and on scanning the trend of oral evidences, I find, that the defdts have possession over the suit land, from the time of Surobala and they have not taken forceful possession over the suit land after the institution of this suit.";