Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 652 (GAU)

Amulya Mohan Das v. Ananta Kumar Patowari

2006-07-20

H.N.SARMA

body2006
JUDGMENT H.N. Sarma, J. 1. This Second Appeal arises out of the Judgment and decree dated 16.6.2000 passed by the learned Civil Judge (Senior Division) No. 3, Kamrup, in Title Appeal No. 41/98 reversing the judgment and decree dated 9.9.1998 passed by the learned Civil Judge (Junior Division) No. 4, Guwahati, in TS No. 77/89. 2. I have heard Mr. C.K. Sharma Baruah, learned senior counsellor the defendant/appellant, Mr. D.C. Mahanta, learned senior counsel appeared for the plaintiff/respondent. 3. An area of land measuring 2 L covered by Dag No. 60 (Old) and 1394 (New), KP Patta No. 198 (Old) and 194 (New) of village Japorigog, Mouza Beltola is the subject-matter of dispute, in this appeal. 4. The relevant pleaded case of the plaintiff/appellant is that vide Sale Deed No. 8122/75 dated 1.8.1975, the plaintiff purchased an area of land measuring 2 L (.26 Center) covered by Dag No. 1394, KP Patta No. 194 of Village Japorigog, Mouza Beltola bounded by North - Dr. H.P. Sarma, South - Shri Basanta Patowari, East - Zoo road and West - Plaintiffs other land. The said Sale Deed was exhibited as ext. 3 in the suit. On the allegation of encroachment of his land measuring area of land measuring about 2½ L covered by the same Dag and Patta, by the plaintiff, the defendant instituted a proceeding under Section 145, CrPC, in the court of the Executive Magistrate, Kamrup, Guwahati. In the Schedule to the petition filed under Section 145, CrPC, the defendant/respondent described the boundary of the suit land as North-2 lachas land of the Dag No. 1394 and the land of different Dag belonging to Dr. Sarma, South - Newly constructed house of the 1st party and his other land of the said Dag No. 1394, East - RG Baruah Road and West - Land of the 2nd party of different Dags. Sarma, South - Newly constructed house of the 1st party and his other land of the said Dag No. 1394, East - RG Baruah Road and West - Land of the 2nd party of different Dags. After consideration of police report and other relevant documents and evidences, the learned court declared the possession over the said 2½ of land as described in the Schedule to the petition under Section 145, CrPC, in favour of the defendant, vide order dated 15.2.1988 passed in Case No. 426m/85, which was also confirmed by unlearned Sessions Judge, Kamrup, Guwahati, in Criminal Revision No. 37(K-1)88 alleging the said order has clouded his right, title and interest the plaintiff instituted the TS No. 77/89, inter alia, praying (1) For declaration of right, title and interest of the plaintiff over the suit land. (2) For confirmation of possession of the plaintiff over the suit land. (3) For a further declaration that the orders passed by the Criminal Court on 15.5.1988 in Misc. Case No. 85 is illegal, no binding against the plaintiff. (4) For an order of permanent injunction restraining the defendant, his servants, agents, workmen, etc., from disturbing the peaceful possession of the plaintiff over the suit land. (5) For all costs of the suit against the defendant. (6) For any other relief/reliefs to which the plaintiff is found entitled. 5. The defendant/respondent contested the suit by filing written statements wherein they admitted the sale of the aforesaid 2 L of land by a sale deed executed in favour of the plaintiff/appellant. It was also admitted that out of the land measuring 4½ lechas, 2 L of land was sold to the plaintiff and apart from the aforesaid 2 L of kind sold to the plaintiff/appellant, plaintiff having forcefully occupied the remaining 20½ of land of the defendant/respondent he instituted the proceeding under Section 145, CrPC, wherein after thorough enquiry and after making necessary physical inspection, the learned Executive Magistrate declared possession of the said 2½ of land in favour of the defendant asking the police to cause delivery of possession in favour of the defendant. 6. On the basis of the pleadings of the parties, the learned trial court framed as many as eight issues, out of which Issue Nos. 4, 5 and 6 are as follows: 4. Whether the order of Section 145, CrPC, proceeding is binding on the plaintiff? 5. 6. On the basis of the pleadings of the parties, the learned trial court framed as many as eight issues, out of which Issue Nos. 4, 5 and 6 are as follows: 4. Whether the order of Section 145, CrPC, proceeding is binding on the plaintiff? 5. Whether the land involved in the Section 145, CrPC, proceeding is the same land involved in the suit? 6. Whether the plaintiff has any right, title and interest and possession over the suit land? 7. During the course of the trial, the plaintiff/appellant examined as many as five witnesses whereas the defendant/respondent examined four witnesses. Both the parties exhibited several documents in support of their respective cases. The learned trial court at the end of the trial decreed the suit of the plaintiff declaring right, title and interest of the suit land in his favour and affirmed his possession over the suit land directing the defendant not to disturb the possession of the plaintiff, vide judgment and decree dated 9.9.1998. The said judgment and decree was carried into appeal before the learned Civil Judge (Senior Division) No. 2, Guwahati, who vide judgment and order dated 16.6.2000 passed in TA No. 41/98 reversed the decision of the learned trial court and dismissed the suit of the plaintiff, which is the subject-matter of this second appeal. 8. The appeal was admitted vide order dated 10.11.2000 to be heard on the following substantial question of law. 1. Whether an order passed in a proceeding under Section 145, CrPC, is binding on the civil court deciding a suit for declaration of right, title, interest and confirmation of possession? Whether the learned lower appellate Court committed illegally in reversing the judgment and decree of the trial court on such an order? 2. Whether the learned lower appellate court committed illegality in reversing the judgment and decree of the trial court relying upon a report of inspection drawn up by an Executive Magistrate in a proceeding under Section 145, CrPC? 3. Whether the learned lower appellate court committed illegality in reversing the decree passed by the learned trial court ignoring the admission made by the respondent/defendant in ext. 3 to the effect that after selling the suit land to the appellant the respondent, had no more land under his possession? 4. 3. Whether the learned lower appellate court committed illegality in reversing the decree passed by the learned trial court ignoring the admission made by the respondent/defendant in ext. 3 to the effect that after selling the suit land to the appellant the respondent, had no more land under his possession? 4. Whether the learned lower appellate court committed illegality in passing the impugned judgment of reversal by setting up a third case not pleaded by any of the parties? 9. In support of the appeal Mr. C.K. Sarma Baruah, learned senior counsel for the appellant, submits that the learned first appellant court committed error of law in reversing the judgment and decree passed by the learned trial court on the basis of the proceeding under Section 145, CrPC, only, inasmuch as, the said decision of the proceeding under Section 145, CrPC, itself was under challenge and the decision of the Criminal Court is not binding upon the civil court. In support of his submission, he relied on the decision of a Special Bench of this court in the case of Brojendra Kumar Sen Gupta v. Jitendra Sen AIR 1960 Gau 111 . The further submission of the learned Counsel is that although the defendant/respondent admitted the sale of the 2 lechas of land vide ext. 3, the learned trial court erred in not declaring the title of the plaintiff on the basis of such admission and the sale deed, the ext. 3. 10. Mr. D.C. Mahanta, learned Counsel for the plaintiff/appellant, per contra has submitted that the defendant/respondent does not dispute the sale of 2 L of land vide ext. 3. But Mr. Mahanta strenuously submitted that though the plaintiff challenged the decision under Section 145, CrPC, proceeding the land described in the Schedule of the plaint, is different from the land described in the Schedule of the petition under Section 145, CrPC, which would be apparent on a bare perusal, of the two Schedules Mr. Mahanta submits that in the guise of possessing 2 L of land purchased by him vide ext. 3, the plaintiff/appellant has encroached upon 2½ L of remaining land of the defendant/respondent for which the defendant initiated the proceeding under Section 145, CrPC, over which his possession has been declared. 11. Mahanta submits that in the guise of possessing 2 L of land purchased by him vide ext. 3, the plaintiff/appellant has encroached upon 2½ L of remaining land of the defendant/respondent for which the defendant initiated the proceeding under Section 145, CrPC, over which his possession has been declared. 11. During the course of the argument, it was not disputed at the Bar that the plaintiff/appellant has no right to occupy more or other land than what was purchased by him vide ext. 3. Mr. Mahanta has specifically submitted that the sale of the aforesaid 2 L of land vide ext. 3 is not disputed and acquisition title as per the said sale deed is also not disputed by the parties of the land involved in the dispute have also been acquired. Be that as it may, the effect of acquisition of land for widening the road would fall equally upon both the parties. The learned first appellate court apart from considering the documentary evidence has also assessed the oral evidence of the parties. On such assessment and appreciation, the learned first appellate court found that the statements in Schedule of Ext-3 to the effect that "I have no other land" is not accepted to be a true version made by the executant. Although Mr. Sarma Baruah submitted that the said statement cannot be set at naught it being, a documentary evidence by any subsequent oral evidence, the writer of the said deed, namely, PW-1 has specifically deposed before the court to the effect that the said statement was written as per direction of the sub-registrar which goes to show that the same was not written as per direction or instruction of the vendor. The said deed writer PW-4 further deposed that it is not correct that as per instructions of the sub-registrar the aforesaid statement was written after asking the vendor. In that view of the matter it is an established fact that the aforesaid statement was written at the later point of time, i.e., at the time of Registration. I have examined ext. 3 as well as gone through the evidence of the said deed writer PW 4 in order to appreciate the rival contention raised by the parties and to find out whether the finding of the first appellate court was perverse one. I have examined ext. 3 as well as gone through the evidence of the said deed writer PW 4 in order to appreciate the rival contention raised by the parties and to find out whether the finding of the first appellate court was perverse one. I find that the learned first appellate court has arrived at a just and proper conclusion without any element of perversity. Thus, although there is a statement in Ext. 3 that the defendant had no other land in the Dag the same was rightly not accepted by the learned first appellate court. 13. The first appellate court vide the impugned judgment and decree dismissed the suit of the plaintiff in toto. Although the sale of the land in favour of the plaintiff vide ext. 3 is an admitted fact and the said admission persisted till the second appellate stage. On such consideration I hold that the dismissal of the suit of the plaintiff as a whole and thereby refusing to declare the right, title and interest over the land purchased vide ext. 3 was illegal and accordingly the said portion of the judgment of the learned first appellate Court stands set aside. The suit of the plaintiff is decreed in respect of 2 L of land (approx) as per Schedule to the plaint. Other findings of the learned first appellate court is not interfered with. The finding of the learned appellate court that the suit land and the land under Section 145, CrPC, proceeding is different is affirmed. It is made clear that the plaintiff/appellant shall not have any right, title and interest over the land possession of which has been declared in favour of the defendant proceeding under Section 145, CrPC. 14. To refer to the substantial question of law No. 1 framed at the time of the admission of the appeal, it is no longer res integra, the decision in a proceeding under Section 145, CrPC, is not binding upon the civil court and the civil court is to decide the suit of its own merit independently. However, the decision of such proceeding may be relied on by the parties in respect of their respective claims but that would not be the basis for decision of the civil court. 15. Regarding the substantial question of law Nos. 2 and 3 as already held the same are answered in favour of the plaintiff/appellant. However, the decision of such proceeding may be relied on by the parties in respect of their respective claims but that would not be the basis for decision of the civil court. 15. Regarding the substantial question of law Nos. 2 and 3 as already held the same are answered in favour of the plaintiff/appellant. So far as the other remaining substantial questions of law in question relating to perversity, no such material could be shown to the court to arrive at an affirmative finding and, hence, the same are answered in negative. 16. Answering the substantial questions of law framed in the appeal in the aforesaid manner, the appeal is partly allowed. 17. No costs.