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

 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE The Hon’ble Justice Arindam Sinha And The Hon’ble Justice Sugato Majumdar S.A.T. 21305 r Dasharath Mahato Vs Shrimati Rabani Mahato & Ors Mr. Rabindranath Mahato Adv Mr. Aritra Shankar Ray Adv 15th and 16th September 2021 16th September 2021 Arindam Sinha J.: Mr. Mahato learned advocate appears on behalf of appellant who was defendant no. 3 in the suit. He submits there were two scheduled properties in suit. One was ‘ka’ schedule property and the other ‘kha’ schedule property. Both were recorded as joint property in Revenue Survey Record of Rights 15 SCC 161 paragraphs 33 to 35. He submits in paragraph 35 said Court relied on its earlier judgment in Hero Vinoth v. Seshammal reported in5 SCC 545 wherefrom paragraph 24 was extracted and reproduced. He relies on clausesandin the extract He submits these clauses are respective interpretation on substantial questions of law arising in relation to contentious issue(s) and perversity. The questions suggested arise out of contentious issue regarding joint family purchase of property and corresponding entries in RSROR. We have perused the judgments. The suit was initially decreed. On first appeal there was remand and amendment carried out. The trial Court by judgment dated 9th March 2000 once again decreed the suit. Right title and interest of plaintiffs and defendant no. 5 over ‘ka’ schedule property was declared and defendant nos. 1 to 4 permanently restrained from interfering with their possession in respect of said schedule property. Plaintiffs and defendant no. 5 also got decree for partition in preliminary form in respect of 1 4th share in ‘kha’ schedule property. The lower appellate Court upheld judgment of the trial Court Bahadur was owner of ‘kha’ schedule property. Plaintiffs and defendants are descendants of Bahadur. Mohan was one of four sons of Bahadur. Plaintiffs say themselves and defendant no. 5 are heirs of Jadu another of the sons of Bahadur. Mohan had purchased by deeds of 1928 and 1935 ‘ka’ schedule property. Ultimately the property and share of Mohan devolved upon Jadu Hence their claim of 16 annas share in ‘ka’ schedule property and 1 4th share in ‘kha’ schedule property In Sebastiao Luis Fernandes there was reliance on Hero Vinoth for interpretation of what are substantial questions of law meriting satisfaction of the High Court in admitting second appeals Misconstruction of a document or wrong application of a principle of law in construing a document gives rise to a question of law Supreme Court said. In the case at hand plaintiffs relied on two deeds of 1928 and 1935. The deeds were of conveyance. On facts there was neither dispute regarding the deeds nor their interpretation. We have already stated about Mohan having purchased by those deeds and his brother Jadu succeeding to his property and share. Both Courts concurrently held that assertion of appellant of the purchases made from joint family fund could not be proved Clausein paragraph 24 of Hero Vinothis interpretation of a question of law on inter alia debatable legal issue. The urged debatable legal issue in this case is claim of title based on record in RSROR on contention of joint family property. It is well settled entry in record of rights gives rise to a rebuttable presumption of title because possession is many parts of title. This presumption was successfully rebutted by plaintiffs as concurrently held by both Courts below on reliance of said deeds of 1928 and 1935. Said Courts also found that the assertion by appellant of ‘ka’ schedule property purchased from joint family fund and thereby the entries in RSROR could not be proved by him. The lower appellate Court said contention that the purchases were made out of joint family fund required at least proof of existence of joint family even if no person was alive to competently depose in respect of the deeds of 1928 and 1935. It said further admission by a plaintiff witness of defendant no.3 having possession in ‘ka’ schedule property could not cloud title of plaintiffs in respect thereof. The admission would have mattered if said defendant had claimed title by adverse possession. The second suggested question is based on legal effect of payment of rent by other than Mohan’s heirs to reflect nature of the property as joint indicating purchase of ‘ka’ schedule property from the nucleus fund of joint family. The trial Court dealt with the contention 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.” It appears the contention based on the rent receipts was not argued in the first appeal. 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 4 th 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 gives rise to a substantial question of law either in relation to the issue decided or the findings being perverse. S.A.T. 21305 is dismissed. 

Summary: 
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
 
 
 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”. Click here to read the judgment Judgment reviewed by Bipasha Kundu