Smt. Shephali Das And ORS. v. Smt. Sabita Das And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE APURBA SINHA RAY SAT/3/2023 Smt. Shephali Das and others ... Appellants

Versus

Smt. Sabita Das and others ... Respondents For the appellants : Mrs. Anjili Nag, Sr. Adv.

Ms. Anoushka Sing For the respondents : Mr. N.A.Khan Heard on : 02.04.2025 & 04.04.2025 Judgment on : 10.04.2025 APURBA SINHA RAY, J.

1.

By order dated October 10, 2023 the Hon'ble Division Bench was pleased to formulate the Substantial Question of Law on which the present second appeal is required to be heard. For the sake of convenience and proper understanding of the issue I want to quote the order dated October 10, 2023 as hereunder:

"It is contended on behalf of the appellants that the property in question was mutated in favour of the appellant's husband Motilal Das, since deceased, sometime in 1985. The respondents filed a suit for declaration of their title in respect of the said property some time in 2000. The petitioner raised an issue of limitation before the learned Trial Court on the premise that despite having knowledge of the mutation of the property in favour of the petitioner's husband, the respondents chose to file the suit after inordinate delay, which was not explained in the said suit. The learned Trial Judge did not take into account the issue of limitation raised by the petitioner herein and decreed the suit in favour of the present respondents.

The judgment was carried in appeal by the petitioner herein and the Appellate Court dismissed the appeal without taking into consideration the issue of limitation raised by the appellant therein. Upon consideration of the submission made on behalf of the appellants as well as material on record, we are inclined to hold that the appeal shall be heard on the following substantial question of law formulated by us.

(a) Have the Trial Court and the Appellate Court erred in law in disposing of the suit and the appeal respectively without taking into consideration the issue of limitation raised by the appellant in both the suit and the appeal? The appellants are directed to serve a copy of the appeal along with the annexures thereto upon the respondents by speed post and file affidavit of service on the adjourned date. The appellants are directed to prepare requisite number of paper books within four weeks from date.

Let the matter be placed before the next available Circuit Bench."

2.

The issue of limitation is appeared to be very much important in deciding the lis between the appellants and the respondents. The brief fact of the lis may be recollected for convenience. One Suren Das who was the original allottee of the suit property mentioned in the schedule to the plaint died leaving behind the three plaintiffs, the proforma defendants and the husband of the defendant No. 1/appellant No.1 as his only legal heirs. It is admitted case of both the parties that the proforma defendants were allotted separate plots and they did

not stay with the original allottee Suren Das at the time of original settlement of the suit property in his name. The allegation revolves round the point that after demise of the original allottee Suren Das, the husband of the defendant No.1/appellant No.1 mutated his name in the record of rights without following the prescribed procedure laid in Andaman & Nicobar Island Land Revenue and Land Reforms Regulations, 1966 (hereinafter the 'Regulations 1966' in short). After the death of the husband of the defendant No. 1 namely Motilal Das the defendant No.1/appellant No.1 has applied for recording her name in place and stead of Motilal Das, since deceased. After receiving the relevant notices the respondents/plaintiffs herein have raised objection and thereafter filed the relevant suit being Title Suit No. 39 of 2000 before the learned Civil Judge (Senior Division) praying for, inter alia, a declaration of 1/4th share each in favour of the three plaintiffs and the defendant Nos. 1 and also a decree of partition.

3.

The defence case, on the other hand, is that there was a mutual agreement between the plaintiffs and the defendant No.1's husband and on the basis of such agreement the said Motilal Das applied for mutation before the concerned Revenue Officer and after issuing notices under Form No. J and Form No. K to all the six legal heirs of the deceased Suren Das, name of

Motilal Das was recorded in the record of rights only when the officer found that in spite of receiving notices the legal heirs namely plaintiffs Nos. 1, 2, 3 and proforma defendants 1, 2 did not raise any objection as per Regulations 1966. It is also the defence case that plaintiff No.1 encroached one government land and thereafter such encroachment was regularised in his favour on the ground that the plaintiff No. 1 did not have any land in his name. As the mutation proceedings were duly taken place at the instance of the said Motilal Das and also on the ground that other legal heirs did not object to such mutation of name of Motilal Das in the record of rights, the plaintiffs are now estopped from raising their claims in view of principles of waiver and acquiescence.

The defence had also taken a plea that once upon a time in relation to the property comprised in survey No. 381, a power of attorney was given by the said Motilal Das in favour of the plaintiff No. 1 empowering him to do certain specified acts on his behalf. The plaintiff No.1 had also accepted such power of attorney executed by the said Motilal Das. This goes to show, according to the learned counsel of the defendant Mrs. Nag, that had Motilal Das not been a recorded tenant he could not have granted such power of attorney and this further goes to show that plaintiff No.

taken place within his knowledge. Mrs. Nag has also drawn the attention of this court to the relevant exhibits nos. namely Form No. J and Form No. K respectively showing that the plaintiffs and the proforma defendants were informed about the mutation application of the said Motilal Das in respect of suit properties and they were called upon to raise objection against such application but they did not raise objection in spite of having opportunity to do so. After a period of fifteen years, the plaintiffs wanted to revoke their stand of such relinquishment of their right in favour of the said Motilal Das but such claim is barred under the law of limitation. Unfortunately both the courts below did not discuss the issue from right perspective. Mrs. Nag has also pointed out that the learned Trial Court did not even frame the issue of limitation at the relevant point of time. 4.

Mr. Khan, the learned counsel for the respondents, on the other hand, submitted that the heirs of Motilal Das had failed to show the basis of recording the name of Motilal Das in the record of rights since the record of mutation proceedings were not brought before the Court. Admittedly, Suren Das had died living behind several legal heirs and in the absence of any document showing that they had actually relinquished their rights in favour of the said Motilal Das it is difficult for any court of law to proceed on the basis of assumption and

surmises only. Mr. Khan has also drawn the attention of this Court to the exhibited documents, viz., Form No J and K and have pointed out that there is no identifier of the alleged LTIs of the plaintiffs No.2 and 3. The learned counsel has also drawn the relevant portions of the judgement and has submitted that the limitation issue has been discussed by both the Courts below. He has further submitted that in view of Regulations 113 of Regulation 1966 the relevant suit is maintainable. The power of attorney was given to sale some of the property in survey No. 381 and not in respect of other properties. Mr. Khan has vehemently submitted that the mutation does not confer any right, title in respect of any property upon the party possessing the same. In support of his contentions he has relied upon the judicial decision of Hon'ble Division Bench pronounced in MA/020/2014 (The Andaman & Nicobar Administration & others. Vs. Smt. Zohra Bibi) on June 09, 2014.

5.

In reply, learned counsel of the appellant has drawn the attention of this Court to the judicial decision reported at (2009) 12 SCC 454 (Shyam Lal @ Kuldeep vs. Sanjeev Kumar and others) para No. 38 and 39 in support of her contention that limitation point as raised by the parties is to be taken with proper perspective but both the courts ignored such principles of law.

DECISION WITH REASONS:

6.

After going through both the judgements passed by the learned trail court as well as the learned First Appellate Court it appears that they have proceeded to dispose of the relevant matter before them after taking into consideration mainly the provisions of succession law. In short, according to them, as Suren Das had died intestate leaving behind seven legal heirs, they are entitled to the property in equal shares and in doing so, though the plaintiffs had prayed for declaration of their share for four legal heirs, i.e. the plaintiff No.1, plaintiff No. 2, plaintiff No. 3 and Motilal Das (whose 1/4th share is to be devolved upon the defendant Nos. 1-4), the courts below declared shares for seven legal heirs of the original allottee Suren Das. The courts have proceeded according to succession law though the plaintiffs prayed otherwise.

The proforma defendants being Shri. Ganesh Chandra Das, Smt. Sisubala Das, Smt. Charubala Das in spite of getting notices of the suit being No. 39 of 2000 did not claim any right, title and interest in the suit properties. Therefore, it appears that the learned courts as referred to above did not consider the actual pleadings of the parties in right perspective.

the factual matrix were not properly appreciated and such non appreciation has caused inherent lacuna in deciding the lis. 7.

In Andaman and Nicobar Islands the Government is the owner and all lands therein are vested in it. However, the persons to whom such lands are allotted are called occupying tenants. Regulation 38 (1) may be quoted as hereunder: "38. (1) All land in the Union Territory of the Andaman and Nicobar Islands is vested absolutely in the Government, and save as provided by or under this Regulation, no person shall be deemed to have acquired any property therein or any right to or over the same by occupation, prescription or conveyance or in any other manner what so ever except by an conveyance executed by, or under the authority of, the Government."

8.

Regulation 84 has laid down the modes of acquisition of right in the land allotted in favour of the allottee. It lays down how the interest of allottee can be devolved upon the subsequent recipient of such interest. Regulation 84 is quoted hereunder "84. (1) Any person acquiring by succession, survivorship, inheritance, partition, purchase, gift, mortgage, lease or otherwise any right in land shall report orally or in writing his acquisition of such right to the patwari of the village within six months from the date of such acquisition and the patwari shall give a written acknowledgement in the prescribed from for such report to the person making it:

Provided that when the person acquiring such right is a minor or is otherwise disqualified his guardian of other person having charge of his property shall make the report to the patwari.

(2) Any such person as is referred to in sub-section (1) may also report in writing his acquisition of such right to the Tehsildar within six months from the date of such acquisition." 9.

From the above it goes to show that acquisition of interest of an allotted land shall be devolved upon the subsequent

occupants either by succession or survivorship or inheritance or partition or purchase or gift or mortgage or lease or otherwise. 10.

So far as this case is concerned the parties including the plaintiffs did not claim that principles of Hindu succession law do apply in their case, rather, even the plaintiffs have indirectly admitted, in the fact and circumstances of the case, the existence of mutual agreement between the parties and the same is the basis of the present lis. The plaintiffs have categorically admitted at the very outset that proforma defendants were settled with other allotment and therefore, the right, title and interest in respect of the suit properties are confined only with the plaintiffs and the defendants being the legal heirs of Motilal Das.

11.

Now, the question is whether such plea of plaintiffs of raising this issue only between the plaintiffs and the defendants of this case excluding the proforma defendants, is sustainable in view of the Regulation 84 (1) of Regulation 1966 or not. From the framing of the plaint it transpires that the plaintiffs have based their claims on the ground that acquisition of right in the suit properties can be made with the broad term 'otherwise'. In fact they are not claiming the right, title and interest in respect of the suit properties either by way of succession or survivorship or inheritance or partition or purchase or gift or mortgage or

lease. Since had they claimed the property by virtue of succession or survivorship or inheritance, they would have claimed the share for all the seven legal heirs of the deceased Suren Das. Indirectly, there is an admission on the part of the plaintiffs that they have acquired the right in the relevant property through the broad term 'otherwise' under Regulation 84 (1). The term 'otherwise' connotes family settlement, family arrangement, relinquishment, mutual agreement between the parties and so on. Such mutual agreement or family settlement or arrangement has been the basis of the plaint. The hints of such family arrangement or mutual agreement in derogation of law of succession is found in para no. 4 of the plaint: "4. That the plaintiffs and the husband of defendant No.

1 were minor at the time of settlement, so they were settled along with their father late Suren Das and proforma defendants being major at the time were settled by separate settlement and they got separate allotment in their favour. It is important to mention here that the wife of late Suren Dass had already died before settlement."

12.

The second hints of mutual agreement or family arrangement can be found in para 9 "9. That the plaintiffs and the husband of defendant No.1 all have been enjoying the suit property during life time of Late Motilal Das. On mutual understanding survey No. 381 measuring an area about 0.64 hectare hilly land was given to plaintiff No.1 who is still in possession of the same. It was also mutually agreed among the brothers and sisters to partition the property into four equal shares and the younger brother Motilal Das was entrusted to do the needful for partition."

13.

These admissions on the part of the plaintiffs have shown that the mutual agreement between the parties have played a

pivotal role in the facts and circumstances of the case. Therefore, it is very much difficult to assail the averments of the appellant that by virtue of family arrangement or mutual agreement the plaintiffs had allowed the said Motilal Das to record his name in the suit properties and accordingly, in spite of receipt of notice from Patwari/Tehsildar they did not raise any objection. This goes to show that the plaintiffs had relinquished their right, interest in the suit land in favour of the said Motilal Das. They allowed the said Motilal Das to act as the occupancy tenant by virtue of such mutual agreement signifying their relinquishment of their right, title and interest. The plaintiff No. 1 accepted the power of attorney in respect of one piece and parcel of suit property showing that the power of transfer which was vested upon Motilal Das was delegated to the plaintiff No.1 by executing a special power of attorney.

14.

It is true there is no written document showing factum of relinquishment of the right, interest in favour of the said Motilal Das on behalf of the plaintiffs, but the attitude, conduct of the plaintiffs are appeared to be supportive of such plea of the appellants. The record shows that the Administration issued the Form No. J and K to all the legal heirs of the deceased Suren Das. It is also revealed that such Forms have been brought to the notice of the six legal heirs of the said deceased Suren Das

excepting the legal heir Sisubala Das. However, needless to mention Sisubala Das did not stake any claim in the suit property. By issuing Form J, which is a notice of mutation to the interested persons, the plaintiffs along with other legal heirs were intimated to the effect that 'notice is hereby given that a mutation entry as specified below has been made in the mutation register of village Subash Gram. A copy of which has been affixed at the office of PP and Panchayat Ghar Subashgram on 01.03.1985. You are requested to file your objection if any to the entries of the 15 days of the receipt of the notice.' The particulars of holding No. 95 comprising of survey Nos. 340/1, 343, 369, 381, 340/2 measuring total area of 3.

07 hectors were mentioned in the said notice and the receipt given by six legal heirs excluding Sisubala Das was annexed. A notice in the Form K was also served upon the said legal heirs asking them to appear before the Tehsildar on 20.05.85 as a report regarding acquisition of right in respect of the suit property was received by the concerned office. The plaintiff No.1 has submitted that the said notice was received by one Prasanta Das and not by him. However, by virtue of order dated 20.05.

received from the side of the other legal heirs in spite of receipt of notice by them.

15.

The contention of the plaintiff No.1 does not impress upon the Court since the Form No. J showed that he received the notice with a request to file his objection if any within fifteen days, and had he wanted to file any objection, then he could have filed the same within fifteen days from the receipt of notice in the Form J. It goes to show that in spite of receipt of such notice he did not file any objection. There is no material showing that Prasanta Das was not related with plaintiff No.1 nor he was co-residents with plaintiff No. 1 at the relevant point of time. 16.

It is admitted by the plaintiff No.1 that he encroached one government land and subsequently that has been regularised. The relevant letter being No. 54-1/85-H&R, Andaman and Nicobar Administration, Secretariat, Port Blair date The 17th August, 1987 regarding "Sub:- Scheme for disposal of government lands in revenue villages unauthorisedly occupied on or before 31.12.1978 and for creation of tenancies in respect of such land." has outlined how the process of regularisation will be implemented by the Tehsildar. In the said letter it was made clear that the Tehsildar shall proceed to record on oath the statement of each person claiming relief under the said scheme indicating, inter alia, that such person did not acquire

by purchase/inheritance/exchange/otherwise any land in the Union Territories of Andaman & Nicobar Islands or where he had acquired land by purchase/inheritance/exchange/ otherwise but the interest in his holding was extinguished. 17.

As the encroached land at the instance of the plaintiff No. 1 was regularised by the Government under the relevant scheme, it is obvious that his land was regularised on the undertaking of the plaintiff No. 1 that he had not acquired any land by way of inheritance or succession. From such attitude and conduct of the plaintiff No.1 and plaintiff No. 2 and 3 who did not appear before the concerned authorities nor raised any objection at the relevant point of time in spite of receipt of notice, it is revealed that they had waived their right and interest to the suit lands and further acquiesced the right of said Motilal Das threin. It would be preposterous if the plaintiffs are allowed to raise objection after fifteen years of mutation of the suit land in favour of the said Motilal Das.

18.

Plaintiffs' tacit consent for relinquishment of their right are palpable as per records of the case. The learned counsel of the respondents Mr. Khan has submitted that the records of mutation were not produced. But it is significant to note that by the letter dated 3rd June, 2011, the Tehsildar Diglipur reported that neither the revenue case was instituted nor proceedings

were recorded in respect of the mutation of suit property since at that time the practice was different. According to Tehsildar, mutation was allowed in respect of the suit properties after observing all formalities as per provision of 84 and 85 of Regulations 1966. At that time the concerned Tehsildar was used to record mutation only on the basis of application. According to the letter dated 3rd June 2011 as there was no practice for initiating revenue case or proceedings on receipt of the application, the record of proceedings were not produced before the learned Trail Court. However, the said letter shows that the copy of notice of mutation in Form J dated 01.03.1985 issued by Patwari and summon to appear in Form K dated 07.05.1985 issued by Tehsildar and duly acknowledged by all concerned have been produced before the learned Trial Court. 19.

Therefore, as there was no prevalent practice for initiating revenue case, and the mutation process was used to take place by issuing Form No. J and Form No. K to the interested persons, I find that in this case also the same practice prevalent at the relevant point of time was adopted in mutating the name of the said Motilal Das. However, there is no signature or endorsement of any identifier in respect of thumb impressions purported to be of the plaintiff No.2 and 3, but such deficiency, if any, had occurred due to lackadaisical attitude of the serving

peon/person, and for which the appellants or their predecessor cannot be held responsible.

20.

From the materials on record it appears that the plaintiffs were well aware of the mutation proceeding in the year 1985, but they did not challenge the same nor raise any objection and, therefore, the process of mutation which was taken place fifteen years ago from the date of institution of the suit being No. 39 of 2000 cannot be challenged. The right, title and interest of the plaintiffs and proforma defendants in respect of the suit properties which they had succeeded after the demise of Suren Das have been waived by them by their own conduct and acquiescence. In the case law reported in 1988 (Supp) SCC 55 (Municipal Corporation of Greater Bombay vs Dr. Hakimwadi Tenants' Association and others) at page 65 the principle of waiver has been succinctly laid down. It has been observed that in order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estopple and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case. 21.

In (2004) 5 SCC 698 (Dr. Karan Singh vs. State of J&K and another) it has been held in para 32 as hereunder: "32.... It is evident that the appellant came out of slumber only in the year 1983 and took a chance in respect of the articles in

question. Though on the aforesaid facts, the doctrine of estoppel may not be applicable against the appellant for want of three conditions as laid down in Gyarsi Bai but the same cannot be said about abandonment and waiver. It is not a mere case of laches and standing by the appellant. Firstly, the father of the appellant never claimed the articles to be his private property. After his death for twenty years the appellant did not take any action. On the other hand he was occasionally taking articles on loan from Toshakhana. The appellant failed to assert his right at the proper opportunity. Having regard to these facts, the conclusion of the Division Bench that the appellant has waived and/or abandoned his right in respect of the articles in question cannot be faulted. 22.

In Prabhakar Gones Prabhu Navelkar vs. S. Prabhu Navelkar, 2019-11 SCALE 381 analysing Dr. Karan Singh Case (supra), it is observed that in regard to abandonment, the Court has referred to the judgment in Mulchend's case and apparently approved the same. Thereafter it is held as under "79. Therefore, we would hold that a when vested right is established such as ownership it can be divested only by sale or gift. It will not be possible to hold that mere laches or standing by itself may be sufficient to extinguish title. The majority view in Mulchand (Mulchand v Jawahar Mills, AIR 1953 SC 98) appears to suggest that there must either be abandonment or estoppel. Justice Vivian Bose takes the view that title can be lost only when estoppels is established. Merely saying that a person has abandoned his property does not lead to extinguishing of vested right such as right to ownership in property. Certainly, an abandonment which amounts to an estoppel would result in stopping a party or his representative from seeking legal redress or setting up the claim in a court of law."

23.

In our case it appears that something more than mere a claim of loss of title is made. The plaintiffs did not raise objection in spite of receiving notice during mutation process recording the name of said Motilal Das. The plaintiffs have failed to show that they have paid land revenue from the year 1985 in respect of the suit land. There are sufficient materials on record

that the plaintiff No. 1 accepted the power of attorney from the said Motilal Das in respect of survey No. 381 being part of the suit properties. All these go to show that plaintiffs had abandoned their right, title and interest in respect of suit land long ago and thereby allowing the said Motilal Das to alter his position, and therefore on the basis of such conduct of the plaintiffs and proforma defendants it transpires that they had abandoned and waived their legal right without taking any steps for exercising their right over the property. 24.

Both the courts have failed to consider this aspect concerning the Law of Limitation in its proper perspective. Therefore in my view, the suit being No. 39/2000 of the learned Civil Judge (Senior Division), at Port Blair was hopelessly barred under the provisions of Limitation Act.

25.

Accordingly, the appeal is allowed on contest. The impugned judgement passed in Appeal Court being Title Appeal No. 13 of 2018 affirming the judgement of the Trial court passed in Title Suit No. 49 of 2011 is hereby set aside. No costs. 26.

The Trial Court Records be returned to the court concerned.

27.

Urgent Photostat certified copy of this judgement if applied for, the same be supplied to the parties upon compliance of necessary formalities.

(APURBA SINHA RAY, J.)