Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 617 (GAU)

Dipu Laskar v. Sajjad Ali Choudhury

2009-08-28

BROJENDRA PRASAD KATAKEY

body2009
JUDGMENT Brojendra Prasad Katakey, J. 1. The Plaintiff/Respondent instituted Title Suit No. 10 of 2004, under Section 6 of the Specific Relief Act, 1963 (in short, the Act) for recovery of possession of the suit property contending inter alia that the Plaintiff and the pro forma Defendant Nos. 7 and 8, who were possessing the land through the Plaintiff, were forcibly dispossessed without their consent by the principal Defendants/Petitioners on 28.12.2003. The principal Defendants/Petitioners filed the written statement denying the claim of the Plaintiff/Respondent and contending inter alia that since the Plaintiff has 2 (two) other sisters, the suit, in their absence; is not maintainable and that the Defendants are in possession of the suit property since before and they never came into possession on 28.12.2003 by dispossessing the Plaintiff/Respondent therefrom as claimed. 2. The learned Trial Court upon appreciation of the pleadings of the parties framed the following issues:- (1) Is there any cause of action for the suit? (2) Is the suit land for non joinder of necessary parties? (3) Whether Plaintiff was dispossessed from suit 2nd Schedule premises on 28.12.03? (4) Whether the Plaintiff is entitled to get a decree? 3. The Plaintiff/Respondent in support of his case has examined 7 (seven) witnesses including himself and proved a number of documents. The Defendants/Petitioners have examined 2 (two) witnesses including the Defendant No. 2 as DW-1 and also exhibited 3 (three) documents, namely Exhibit-A being the Jamabandi in respect of the suit property and the Exhibits-B and C being the lease agreements dated 01.04.1995 and 15.12.2000 between the Defendants and 2 (two) other persons. The learned Trial Court upon appreciation of the evidences on record, both oral and documentary, has decided all the issues in favour of the Plaintiff/Respondent and deceased the suit for recovery of khas possession by holding that the Plaintiff, who was in possession of the suit property was dispossessed forcibly by the Principal Defendants without his consent on 28.12.2003, i.e. within 6 (six) months before the date of institution of the suit. Hence, the present revision petition. 4. I have heard Mr. B.C. Das, learned Senior Counsel for the Defendants/Petitioners and Mr. M.K. Choudhury, the learned Senior Counsel appearing on behalf of the Plaintiff/ Respondent. 5. Mr. Hence, the present revision petition. 4. I have heard Mr. B.C. Das, learned Senior Counsel for the Defendants/Petitioners and Mr. M.K. Choudhury, the learned Senior Counsel appearing on behalf of the Plaintiff/ Respondent. 5. Mr. Das, the learned Senior Counsel for the Petitioners has contended that the suit of the Plaintiff being the suit for possession, all the legal heirs of Khan Saheb Sonahar Ali Choudhury, the predecessor-in-interest, are to be made parties to the suit, in the absence of which the suit is hit by non joinder of the necessary parties. According to the learned Senior Counsel, 2 (two) sisters of the Plaintiff, who are admittedly the sharers in respect of the property left behind by Khan Saheb Sonahar Ali Choudhury, have not been made parties to the suit and as such, the suit is not maintainable. It has further been submitted by Mr. Das, that the learned Court below has ignored the lease agreements being Exhibits-B and C proved by the Defendants and did not take into consideration of the same on the ground that such documents cannot be accepted, without, however, recording any specific finding that such documents in fact were manufactured for the purpose of the case. The learned Counsel, therefore, submits that the material evidence produced and proved by the Defendants were not taking into consideration by the learned Court below while decreeing the suit of the Plaintiff and hence, the judgment and decree passed by the learned Court below requires interference in exercise of the revisional jurisdiction and the case may remitted to the learned Court below for giving a fresh decision by taking into consideration the said documents being Exhibits-B and C. 6. Mr. Choudhury, the learned Senior Counsel appearing for the Plaintiff/Respondent, on the other hand, has submitted that the scope of the revisional Court against the judgment and decree passed by the learned Trial Court in respect of the suit instituted under Section 6 of the Act is very limited. This Court can interfere with such judgment and decree only if the Court had no jurisdiction or it acted without jurisdiction or in excess of the jurisdiction. According to the learned Sr. This Court can interfere with such judgment and decree only if the Court had no jurisdiction or it acted without jurisdiction or in excess of the jurisdiction. According to the learned Sr. Counsel, there being no jurisdictional defect in the judgment and decree passed by the learned Court below, the revisional Court will not reappreciate the evidences and record a finding different from the finding recorded by the learned Trial Court upon such reappreciation. Mr. Choudhury further submits that it is apparent from the judgment and decree passed by the learned Court below that the reason for not taking into consideration the Exhibits-B and C has been recorded and the learned Court below based on the evidences of the Plaintiff's as well as the Defendants recorded the finding of fact that the Plaintiff was in possession of the suit property, who was forcibly dispossessed on 08.12.2003 and hence such finding of fact requires no interference of this Court. Relating to the submission of non joinder of necessary parties, Mr. Choudhury submits that the present suit being for possession of the suit property under Section 6 of the Act and not the suit for declaration of title or suit for possession on the basis of the title, the suit filed under Section 6 of the Act cannot be dismissed for non joinder of the other legal heirs, as what the Plaintiff is required to proof that he was in possession and was forcibly dispossessed. 7. I have considered the submissions of the learned Counsel for the parties and also perused the records including the judgment and decree passed by the learned Court below. 8. The Plaintiff instituted the suit for recovery of possession under Section 6 of the Act. Such suit is a summary suit and in such a suit, the Court is not required to go into the question of title. The Court in such a suit is required to see as to whether the Plaintiff was in possession, and if so, whether he has been dispossessed forcibly without the consent by the Defendants within 6 (six) months before the date of the institution of the suit. The Court in such a suit is required to see as to whether the Plaintiff was in possession, and if so, whether he has been dispossessed forcibly without the consent by the Defendants within 6 (six) months before the date of the institution of the suit. The contention of the Petitioners/Defendants that the suit of the Plaintiff, in the absence of his 2 (two) sisters as party to such suit, is not maintainable, cannot be accepted, as the present suit is under Section 6 of the Act and is not the suit for declaration of right, title and interest or declaration of possession based on title. 9. It appears from the judgment and decree passed by the learned Court below that while passing the said judgment and decree, the entire evidences on record, both oral and documentary, have been taken into consideration. The learned Court below, in fact has ignored the lease deeds produced and proved by the Plaintiff as well as by the Defendants on the ground that those lease deeds can be created so as to prove the possession even though they may not be in possession. The learned Court below has also taken into consideration other documentary evidences, namely the revenue paying receipts, the receipts issued by the electricity board etc., which were issued in the name of the Plaintiff as collateral evidence in support of the Plaintiffs oral evidence that he was in possession and was dispossessed on 28.12.2003 forcibly by the Defendants. The scope of the revisional Court under Section 115 of the Code of Civil Procedure is very limited. The revisional Court can interfere with the judgment and decree passed by the learned Court below if it has exercised the jurisdiction not vested in it by law or has failed to exercise the jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. The revisional Court cannot reappreciate the evidences on record and come to a finding different from the finding recorded by the learned Court below, unless of course there is perversity in recording the finding, that is to say, that a piece of evidence has not been taken into consideration at all. 10. The revisional Court cannot reappreciate the evidences on record and come to a finding different from the finding recorded by the learned Court below, unless of course there is perversity in recording the finding, that is to say, that a piece of evidence has not been taken into consideration at all. 10. As notice above, the learned Court below has recorded the finding of fact relating to forceful dispossession of the Plaintiffs from the suit property on 28.12.2003, upon appreciation of the evidences on record and has also given the reason as to why the Exhibits-B and C, lease agreements, cannot be taken into consideration for the purpose of deciding the question of possession as well as the dispossession. Such finding of fact cannot be interfered with in exercise of the revisional jurisdiction under Section 115 of the Code of Civil Procedure. 11. In view of the above, the revision petition is dismissed being devoid of merit. No cost. 12. Registry is directed to send down the records forthwith. Petition dismissed.