TaxTMI 
TaxTMI 
2020 (12) TMI 764
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....s for disposal by a common judgment. The counsel for the parties did not project any reservation to this proposition for obvious reasons as the suits have interplay of facts as well. Before the substantial question of law is decided, the basic facts of both the suits are required to be placed. RSA 48 of 2016 2. The appeal being RSA 48 of 2016 emerges from the judgment dated 26.08.2016 delivered in T.A.01 of 2007 [Pradip Majumder versus Haripada Sarkar and Another] by the District Judge, Gomati Judicial District, Udaipur. The said appeal being T.A.01 of 2007 [under Section 96 of the CPC] was filed challenging the judgment dated 04.12.2006 delivered in T.A.05 of 2006 by the Civil Judge, Senior Division, Gomati Judicial District [formerly South Tripura Judicial District]. The said appeal was earlier dismissed by the judgment dated 01.08.2007 but the said judgment of the first appellate court was challenged in the appeal under Section 100 of the CPC being RSA 67 of 2008. By a common judgment dated 09.02.2016 delivered in RSA 36 of 2008, RSA 37 of 2008 and RSA 67 of 2008 were disposed of and the order of remand was passed by directing the first appellate court for deciding the fir....
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....nt denied the story of possession by contending that Hrishikesh Majumder or his legal representatives never resided in the State of Tripura. They used to make occasional visits. The suit property was in the custody of the defendant's father namely Binode Ranjan Majumder, since deceased. After death of Hrishikesh Majumder, Priyodarshan Majumder who was also the attorney of other legal representatives of Hrishikesh Majumder entered in a agreement for sale regarding the entire immovable property with the defendant. Out of the settled consideration money being Rs. 2,75,000/-, the defendant paid Rs. 1,01000/- as the earnest money on 27.09.2000 and he got the possession over the entire immovable property including the suit land. Thereafter, on 26.06.2004 the defendant paid another sum of Rs. 1,00,000/- to Priyadarshan Majumder at Kolkata and requested him to execute the sale deed on receiving the remainder of the consideration money i.e. Rs. 75,000/-. But Priyadarshan Majumder refused to execute the sale deed and the defendant filed a suit for enforcing the said agreement to sale being. T.S.19 of 2004 in the Court of the Civil Judge, Senior Division, South Tripura, Udaipur [as it t....
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.... Evidence Act. Even though, it has been held that in view of the admission made in respect of the predecessor of the plaintiffs [Hrishikesh Majumder], the defendant is estopped from claiming the ownership of the suit land. Consequentially, the other reliefs were denied. The conclusive part of the judgment is reproduced hereunder : "15. Issue no.4. Whether the plaintiffs are entitled to get a decree as prayed for & Issue no.6. Whether the suit land is properly described or not. Both the issues are being taken up together. In the plaint, description of suit land as given is as follows- • Subdivision-Udaipur, Tehshil and Mouja-Dhajanagar, Khatian no.815/1, C.S.plot no.1339/1458(P), RS plot no.2996(P), Class-Vitti, area-0.24 acre bounded by- North-Pathway, South-Tapan Rn. Majumder & Ors, East-Village pathway, West-Bijan Deb & Ors. • ii) Subdivision, Tehshil, Mouja-Ditto, Khatian no.554/3, CS plot no.1360/1523, RS plot no.3000, Class-Vitti, Area-0.16 acre, bounded by- North-Pathway, South-Tapan Rn. Majumder & Ors, East Village pathway, West-Sumati Majumder & Ors. As regard, suit land under Sl.No.(i)i.e. RS plot no.2996, in....
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....reeing the suit. Thus, the defendant filed the said first appeal and the said judgment was challenged in that appeal. The said appeal was dismissed initially by the judgment dated 14.05.2008. Thereafter, that defendant-appellant preferred the appeal under Section 100 of the CPC being S.A.37 of 2008 before the Gauhati High Court which had, at the relevant point of time, the jurisdiction to entertain and adjudicate such appeal. The said appeal was analogously decided with another appeal being S.A.36 of 2008 [corresponding to RSA 67 of 2007]. By the common judgment dated 09.02.2016 those appeals were allowed by setting aside the judgments of the first appellate court, but the first appeals were remanded for decision afresh after providing opportunity to the parties of being heard. It has been also observed that the first appellate court shall give its findings as regards the issues framed by the trial court. It has been categorically observed that in Title Suit 08 of 2006 [relating to RSA 48 of 2016] there had been no issue framed in respect of possession. Thus, there had been direction to recast the issues and decide the appeals on merit. If the appellate court were not in a position....
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....itra Majumder [the widow] and Bhadra Majumder [the daughter] executed one deed of power of attorney in favour of Priya Darshan Majumder. By virtue of the said power of attorney, Priya Darshan Majumder for himself and for other two coparceners sold the suit land to the plaintiff by the registered sale deed No.1-2494 dated 05.10.2004. Accordingly, possession of the suit land was handed over to the plaintiff but the record of rights continued in the name of Mira Rani Majumder. 8. The plaintiff applied for mutation of the records of right in his name but till the time of instituting the suit, such mutation was not done. On 16.04.2006 some strangers tried to trespass into the suit land but that was resisted. Out of apprehension, the suit has been filed for declaration of title, confirmation of possession and perpetual injunction. By filing the written statement, the defendant denied the description of the suit land [see para-10 of the written statement] stating that the suit land as described to be under Khatian No.555/1 and C.S. Plot No.1343(p) corresponding to R.S. Plot Nos.3036 and 3036/3391 is not at all correct. The area of the suit land measuring 0.10 acre is not at all covered....
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....framed the issues as noted above and on recording the evidence, the trial Court decreed the suit by declaring the title and possession in favour of the plaintiff and by passing a decree of perpetual injunction restraining the defendants from interfering with peaceful possession of the plaintiff. The defendant filed an appeal under Section 96 of the CPC being T.A.19 of 2007 in the Court of the District Judge. The outcome of the said appeal has been discussed already. But on remand in terms of the judgment dated 09.02.2016, the first appellate court having regard to the issues that framed has observed by the judgment dated 26.08.2016 that the deed of relinquishment was valid at least in respect of movable properties inasmuch as the deed of release in view of the decision of the apex court in Kuppuswami Chettiar versus Arumugam Chettiar reported in (1967) SC 1395 may operate as conveyance, if the document clearly discloses an intention to effect a transfer. The first appellate court found the release deed as executed by the legal heirs of Mayarani Majumder was expressly a deed of transfer and in the release deed it has been clearly observed that their mother did not have any owners....
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....ntial questions which have been formulated for determining this appeal have been reflected in the order dated 30.11.2016. Let us examine those questions in the perspective fact as laid before. "(i) Whether Court can frame an issue beyond pleadings and in that sense whether issue No.5 framed by the appellate Court was beyond any pleadings ? Issue No.5 as referred above reads as under : Whether the suit is barred by Benami Transaction (Prohibition) Act, 1988. That issue was framed as the additional issue by the first appellate court with the authority given by the said common order dated 09.02.2016. The relevant provision of Benami Transactions (Prohibition) Act, 1988, as it was before the amendment which came into force on 01.11.2016 is reproduced below : "4. Prohibition of the right to recover property held benami- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether agai....
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....ownership. On the contrary the defendant has admitted the ownership of Hrisikesh Majumder in respect of the suit land and other lands as described in the said release deed. The defendant has entered into the agreement to sale with the legal heirs of Hrisikesh Majumder. Thus, the other peripheral facts therefore of no value. The only question that is of some significance is that whether the title to a property was passed by the said release deed. In Kuppuswami Chettiar(supra) the said issue was examined by the apex court. It has been held that a registered instrument styled as a release deed releasing the right, title and interest for valuable consideration may operate as a conveyance if the document clearly disclosed an intention to effect the transfer. If there is no consideration and the release is to be considered gift within the meaning of Section 123 of the Transfer of Property Act, 1882. Such gift may be effected by the registered instrument or by release deed executed by the donor. It has been held succinctly by the apex court as follows : "Consequently, a registered instrument releasing the right, title and interest of the releaser without consideration may operate....
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....roving the execution of the deed of release. This finding is completely uncalled for as the validity of release deed or its execution by the legal heirs was never questioned by anyone. When the said deed was admitted on identification by the deed writer, nobody had challenged its admission. Even none has challenged its admission in the appeal. Therefore the final inference drawn by the first appellate court is grossly perverse and unsustainable and accordingly that stands interfered with. Even though the principal of estoppel can operate against the defendant, but as this court is of the view that the release deed [Exbt.1] is a deed of transfer which has been validly proved, no further examination of the said deed is required. The deed of release [Exbt.1] stands proved as the deed of transfer. Accordingly, the declaration of right, title and possession as made having regard to the said deed of release cannot be faulted with. As consequence thereof, the plaintiff is entitled to a decree of perpetual injunction against the defendant on the basis of the title and the contemplated threat of dispossession. 16. Mr. Chakraborty, learned senior counsel while speaking to the minutes h....