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2005 DIGILAW 54 (GAU)

Debeswar Barah v. Ghogi Saikia

2005-01-24

RANJAN GOGOI

body2005
JUDGMENT Ranjan Gogoi, J. 1. This revision application under Section 115 of the Code of Civil Procedure is directed against the judgment and decree dated 31.3.2000 passed by the learned Civil Judge (Jr. Divn.) No. 2, Golaghat in Title Suit No. 14/96. By the aforesaid judgment and decree, the suit filed by plaintiff under Section 6 of the Specific Relief Act has been dismissed. Aggrieved, the plaintiff has instituted the present proceedings in revision. 2. I have heard Mr. R. Gogoi, learned counsel for the revision petitioner and Mr. D.C. Mahanta, learned senior counsel appearing for the respondent Nos. 1 to 4. 3. A perusal of the judgment under challenge in the present proceeding would go to show that the plaintiff's suit for possession was dismissed by the learned trial Court by holding the claimed possession of the plaintiff in respect of the suit land not to be proved and established by the materials on record. Though this Court, while exercising the revisional power under Section 115 of the Code of Civil Procedure will not ordinarily interfere with the findings of fact recorded on a consideration of the evidence and materials on record, in a situation where the findings of fact as recorded are diametrically opposed to the evidence adduced by the parties, interference in exercise of the limited power available under Section 115 of the Code of Civil Procedure will be justified. It is the aforesaid approach that this Court considers appropriate of application to scrutinise the validity of the findings recorded by the learned trial Court and the challenge made in respect thereof by the revision petitioner. 4. In recording the finding that the plaintiff had not succeeded in proving his possession over the suit land, the learned trial Court has relied on 3 (three) circumstances as manifested by the evidence on record. First of all, the learned trial Court took into account that Exts. 1 to 6 proved by the plaintiff i.e. the revenue paying receipts had disclosed that the land revenue in respect of the suit land was paid in the name of one Bapuram, the predecessor-in-interest of the defendants. First of all, the learned trial Court took into account that Exts. 1 to 6 proved by the plaintiff i.e. the revenue paying receipts had disclosed that the land revenue in respect of the suit land was paid in the name of one Bapuram, the predecessor-in-interest of the defendants. In this regard, the plaintiff's pleaded case to the effect that the suit land had not been mutated in his name and that the same stood in the name of the original owner, must be taken into account while considering the relevance of the aforesaid part of the evidence in determining the question of possession. The payment of revenue in the name of any particular person cannot be construed as a strong piece of evidence with regard to the question of possession. While the payment of revenue may be made in the name of one person, possession may be with another. In this regard, the plaintiff's own case that the mutation of the suit land had not been made in his own name, would assume special significance. In such a situation, there can hardly be any room for this Court to hold that the learned trial Court was right in relying on the circumstance with regard to the payment of revenue in coming to its conclusion with regard to the possession of the suit land. 5. The next circumstance relied upon by the learned trial Court in holding the case of the plaintiff with regard to the possession not to be proved is the failure of the plaintiff to exhibit the sale deed on the basis of which the land was claimed to be purchased by the plaintiff. In this regard, the admitted case of the defendants regarding execution of the sale deed must be noted along with the further case that though the land was sold to the plaintiff, possession was not delivered for want of consideration. If the defendants had themselves admitted the sale and the execution of the sale deed, certainly the plaintiff ought not to be penalised for not exhibiting the sale deed in question. 6. The last circumstance relied upon by the learned trial Court in coming to its conclusion with regard to the possession of the plaintiff is the oral evidence of D.W.1 Putul Chandra Chutia, i.e., the Lat Mondal, Bebejiagaon. 6. The last circumstance relied upon by the learned trial Court in coming to its conclusion with regard to the possession of the plaintiff is the oral evidence of D.W.1 Putul Chandra Chutia, i.e., the Lat Mondal, Bebejiagaon. I have perused and scrutinized the oral evidence of D.W.1 and such consideration does not reveal any positive evidence of the said witness that the defendants were in possession of the suit land at the material point of time. In such a situation, it is difficult to be appreciate as to how the learned trial Court could come to the conclusion with regard to the possession of the defendants on the basis of the oral testimony of D.W.1. 7. The discussions above having made it abundantly clear that the evidence and materials relied upon by the learned trial Court to hold that the plaintiff had not succeeded in establishing his possession of the suit land, do not logically warrant the conclusion reached, the impugned findings recorded under Issue No. 2 will have to be set aside. As the claim of the plaintiff of being in possession and being subsequently dispossessed by the defendants will require a fresh consideration of the evidence and materials on record and recording of further findings on basis thereof, while setting aside the impugned order and decree dated 31.3.2000, I order a remand of the case to the learned trial Court for disposal in accordance with the law and on the basis of the materials already on record. 8. Both the parties to the present proceeding shall appear before the learned trial Court on 28.02.2005 and receive further orders from the learned Court below. 9. Revision application is allowed as indicated above. Application allowed.