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2010 DIGILAW 798 (GAU)

Kameswar Deka v. Gajen Deka

2010-10-05

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. This revision petition is directed against the judgment and order, dated 07-05-2001, passed in Title Suit No. 54/2005, whereby learned Civil Judge No. II, Kamrup, Guwahati, has dismissed the Plaintiff-Petitioner's suit, instituted, under Section 6 of the Specific Relief Act, seeking, inter alia, recovery of khas possession of the suit land and permanent injunction restraining and prohibiting the Defendants-opposite party from forcibly dispossessing the Plaintiff-Petitioner from the suit land and the houses standing thereon. 2. I have heard Mr. S. Ali, learned Counsel for the Plaintiff-Petitioner. 3. The respective cases of the parties to the suit, as correctly noted by the learned trial Court, are as under: Plaintiffs' case 2. Plaintiff came to occupy the suit land in the year 1963. Thereafter, stage by stage, he constructed one Assam Type House over the land. A brick boundary wall was also erected by the Plaintiff. Some of the rooms of that house were let out on rent to different persons namely Nagen Deka, Dipak Deka and Raju Das. 3. The Plaintiff claimed that since the year 1963, on various occasions, the Defendants have been disturbing his possession over the suit land and also been trying to evict him therefrom. On 17-12-2004 the Defendants, claimed to be the sons of the Defendants asked the Plaintiff to vacate the land. Thereafter, on 21-12-2004 the said Defendants again tried to forcefully evict the Plaintiff from the suit land. Therefore, on 22-12-2004, the Plaintiff filed a case under Section 144 of the Code of Criminal Procedure 4. On 05-02-2005, the Plaintiff and his family went to "Morigaon. They returned on 10-02-2005. They found that the Defendants have illegally occupied the entire suit land along with the premises standing thereon. They also found that their tenants have also been already evicted from the tenanted premises. The Plaintiff stated that he got the information that 08-02-2005 the Defendants have illegally occupied the suit land and after breaking the lock of his house they entered into the same and occupied it. Thus, the Plaintiff filed the suit on 15-02-2005. Defendant's Case 5. The Defendants Gajen Deka and Sarat Deka (since deceased) filed a common written statement. The Defendants Prabal Deka and Hemanta Kalita filed another common written statement along with a counter-claim for a decree for declaration and right, title and interest and for permanent injunction. Thus, the Plaintiff filed the suit on 15-02-2005. Defendant's Case 5. The Defendants Gajen Deka and Sarat Deka (since deceased) filed a common written statement. The Defendants Prabal Deka and Hemanta Kalita filed another common written statement along with a counter-claim for a decree for declaration and right, title and interest and for permanent injunction. On 18-06-2006, this Court passed a direction under Order 8, Rule 6 of the Code of Civil Procedure for separate registration of the counter-claim as another title suit. Case of Gajen Deka and Sarat Deka 6. They denied the entire case of the Plaintiff. These two Defendants claimed that their father Late Naren Deka was the owner of the suit land. They stated that the house situated over the suit land was built by Late Naren Deka. The Defendants disclosed that in the year 1963 the Plaintiff approached Late Naren Deka for allowing him temporarily stay in the house situated over the suit land. Naren Deka allowed the Plaintiff to stay in the house situated over the suit land because the Plaintiff was his nephew. The Defendants stated that Naren Deka allowed the Plaintiff to stay in the house on a condition that he shall have to vacate the house as and when required and demanded by Late Naren Deka. Initially, there was no electricity connection in that house and for that matter, the Plaintiff approached Late Naren Deka for getting electricity. Naren Deka reportedly instructed the Plaintiff to procure the electricity connection to the house. But, the Plaintiff surreptitiously procured the electricity connection in his name instead of the name of Naren Deka. The Plaintiff is the son of the brother of Late Naren Deka. Hence, Naren Deka never had any suspicion about the conduct of the Plaintiff taking advantage of that situation the Plaintiff also got the house assessed by the municipal authorities in his name. 7. After the demise of Naren Deka, in the year 1994, the present two Defendants inherited the suit land and the house thereon. Defendants alleged that the Plaintiff has let out some portions of that house to some tenants without the permission of Late Naren Deka. 8. The Defendants disclosed that on 6-6-2004. they had an altercation with the Plaintiff and after that the Plaintiff left the suit land taking his belongings with him. The Plaintiff reportedly asked the tenant to attorn to the Defendants. 8. The Defendants disclosed that on 6-6-2004. they had an altercation with the Plaintiff and after that the Plaintiff left the suit land taking his belongings with him. The Plaintiff reportedly asked the tenant to attorn to the Defendants. Thereafter, the Defendants Nagen Deka and Raju Das started paying house rents to the present Defendants. 9. The Defendants stated that in the year 2004 they sold the suit land to Prabal Deka and Hemanta Kalita (Defendant Nos. 3 and 4) by execution of a registered sale deed dated 30-12-2004. They also stated that the Defendant Nos. 3 and 4 have taken possession of the suit land on 7-2-2005. Case of the Defendants Prabal Deka and Hemanta Kalita 10. These two Defendants supported the case of the other two Defendants. They stated that at the time of purchasing the suit land there were some tenants over there, but the tenants had vacated the suit land on 6-2-2005. Thereafter, on 7-2-2005, they were delivered vacant possession of the suit land. For these reasons the Defendants prayed for right, title and interest over the suit land. 11. * * * 12. In course of trial, the Plaintiff examined two witnesses. The Defendants on the other hand, examined 8 witnesses. I have carefully gone through the evidence adduced by the parties. I have also gone through the materials available in the case record. I have taken up the issue for discussions and decisions in their given order. 4. On the basis of the pleadings of the parties concerned, altogether six issues were framed by the learned trial Court for determination in the suit, the issues being, in brief, thus: 1. Whether the suit is maintainable in law and on facts? 2. Whether the suit is barred by limitation? 3. Whether the Plaintiff was allowed to occupy the suit premises by late Narendra Nath Deka as permissive occupier? 4. Whether the Plaintiff was forcibly evicted by the Defendants on 8-2-2005? 5. Whether the Plaintiff is entitled to get decree for recovery of possession of the suit premises and permanent injunction as prayed for? 6. To what other relief/reliefs the parties are entitled to? 5. In support of their respective cases, both sides adduced evidence, the Plaintiff having examined two witnesses including his ownself and the defendants having examined eight witnesses. 6. Whether the Plaintiff is entitled to get decree for recovery of possession of the suit premises and permanent injunction as prayed for? 6. To what other relief/reliefs the parties are entitled to? 5. In support of their respective cases, both sides adduced evidence, the Plaintiff having examined two witnesses including his ownself and the defendants having examined eight witnesses. 6. On the basis of the findings, reached by the learned trial Court, primarily, on issue No. 4. (namely, Whether the Plaintiff was forcibly evicted by the Defendants on 8-2-2005?), the suit stands dismissed, the findings of the Court being to the effect that the burden of proof rested on the Plaintiff, but the Plaintiffs evidence was not supported by his witness, Rajeri Sharma, and there is, as a matter of fact, no evidence to prove that the Plaintiff was forcibly evicted from the suit land on 8-2-2005 and that the sole evidence of the Plaintiff, in the circumstances of the case, cannot be considered to be so sacrosanct as would entitle the Plaintiff, without any supporting evidence, to the reliefs, which the Plaintiff had claimed. 7. Before entering into the merit of this revision, it needs to be noted that the suit of the Plaintiff-Petitioner being a suit for recovery of possession on the ground of his alleged forcible dispossession from the suit land and the houses standing thereon, this Court's interference, in this revision, is possible only if this Court finds that the findings of the learned trial Court are based on no evidence, or wholly against the weight of the evidence on record and/or contrary to law. If, therefore, the findings of the Court are based on evidence, and the view, taken by the learned trial Court, is not such a view. which has to be treated as a wholly irrational view, the findings cannot be interfered with. 8. If, therefore, the findings of the Court are based on evidence, and the view, taken by the learned trial Court, is not such a view. which has to be treated as a wholly irrational view, the findings cannot be interfered with. 8. While considering the correctness or otherwise of the findings reached, as indicated above; it may be noted that the Plaintiff claimed, in his evidence, that he had constructed a thatched house on the suit land and he used to reside there, that in the year 1967, he had reconstructed and renovated the thatched house into an Assam-type house with C. I. sheet roofing and a verandah, that his house consisted of three rooms and, later on, the said adjacent verandah was also converted into a room and, as such, there were, altogether, five rooms in the house. The Plaintiff also claimed that he had constructed latrine, bathroom and another chali house consisting of two rooms over the suit land, that he had also constructed boundary wall around the suit land, that the suit land and the houses, standing thereon, had been duly assessed by the Guwahati Municipal Corporation, in the year 1972, under Holding No. 275 of Ward No. XIV, re-numbered as Holding No. 66 of Ward No. 36(B), in the Plaintiff's name and that he had obtained electricity connection into the house in his name that he had been paying municipal and other taxes regularly and that he had let out three rooms of the said Assam-type house and the chali house to three different tenants, namely, Nagen Deka, Deepak Deka and Sri Raju Das. The Plaintiff further claimed that since the year 1963, the Defendant Nos. 1 and 2 had been trying to evict and dispossess the Plaintiff from the suit land and, in fact, they had. in this regard, made several attempts, but did not succeed due to resistance offered, and objections raised, by the Plaintiff, that, on 17-12-2004, the Defendant Nos. 1 and 2, along with some other people, came to the house of the Plaintiff and, claiming themselves as owner and title holder of the suit land, threatened the Plaintiff and his family members and asked them to vacate the land, that again, on 21-12-2004, Defendant Nos. 1 and 2, along with some other people, came to the house of the Plaintiff and, claiming themselves as owner and title holder of the suit land, threatened the Plaintiff and his family members and asked them to vacate the land, that again, on 21-12-2004, Defendant Nos. 1 and 2 came to the Plaintiffs house with some more anti-social elements and attempted to forcibly evict and dispossess the Plaintiff from the suit land and house, but, on the neighbouring people having gathered there, the Defendants left the place threatening the Plaintiff with dire consequences if the Plaintiff did not vacate the land, that on 5-2-2005, the Plaintiff, along with the members of his family, left for Morigaon keeping his house under lock and key and when they returned on 10-2-2005, they found that the Defendant Nos. 3 and 4 had illegally and forcibly occupied the Plaintiffs land and house by breaking the lock put by the Plaintiff, that the Defendants had also evicted the tenants from the Plaintiff's house and that, upon enquiry made by the Plaintiff, he came to know that, on 8-02-2005, the Defendant Nos. 3 and 4 had illegally entered into the premises of the Plaintiff and taken away the Plaintiff's belongings by breaking the lock put by the Plaintiff. The Plaintiff claimed that when he went to the Defendant Nos. 3 and 4 and asked them to vacate the Plaintiff's premises and to return the Plaintiff's belongings, the Defendant Nos. 3 and 4 warned him not to enter into the said premises in future and that, having no alternative, the Plaintiff lodged an FIR, at the Chandmari Police Station, on 10-2-2005. The Plaintiff also stated, in his evidence, that apprehending danger to his life, he filed, on 22-12-2004, before Additional Deputy Commissioner, Kamrup (Metro), Guwahati, an application for drawing of a proceeding under Section 144 of the Code of Criminal Procedure, against the Defendant Nos. 1 and 2, with a prayer to restrain the Defendants from entering into the Plaintiff's said land and premises and from disturbing the Plaintiff's peaceful possession over the said land and house, that the Additional Deputy Commissioner, acting upon the Plaintiff's said application, directed the Chandmari Police Station to make enquiry and submit a report. 9. 1 and 2, with a prayer to restrain the Defendants from entering into the Plaintiff's said land and premises and from disturbing the Plaintiff's peaceful possession over the said land and house, that the Additional Deputy Commissioner, acting upon the Plaintiff's said application, directed the Chandmari Police Station to make enquiry and submit a report. 9. In his cross-examination too, the Plaintiff asserted to the effect that though he had constructed a thatched house on the suit land, he had not taken any permission for construction of the house over the suit land nor did he obtain permission, while converting the said thatched house into a house with CI sheet roofing, that he had not taken permission for raising boundary wall, that Late Naren Deka (father of the Defendant Gajen Deka) used to often visit the suit land in connection with his business, that it is not a fact that the thatched house had been constructed by Late Naren Deka and he (the Plaintiff) was allowed to stay in the house. The Plaintiff denied the fact that contrary to the instructions given by Late Naren Deka (since deceased), the Plaintiff got the house, standing on the suit land, assessed, in his own name by municipality and also obtained electrical connection thereto. 10. In his cross-examination, the Plaintiff also denied the suggestion of the Defendants that on 6-6-2004, he had vacated the suit premises by taking all his belongings, that he had instructed the tenants, namely, Nagen Deka, Dipak Deka and Raju Deka, to pay monthly rent to the tenanted house to the Defendants, Gajen and Sarat. The Plaintiff further denied the suggestion that the suit premises had been in possession of Late Naren Deka and that the Plaintiff had been occupying the suit land under Late Naren Deka. 11. In support of his case, the Plaintiff examined only one witness, namely, Rajen Sarma. However, notwithstanding the fact that the Plaintiff's witness, Rajen Sarma, had entirely supported, in his examination-in-chief, the Plaintiff's case, this witness admitted, in his cross-examination, that he does not know to whom the suit land belongs, that he does not know in which year the house was constructed, that he does not know in which year the verandah was constructed and/or when the latrine, bathroom and/or the chali house were constructed on the suit land. As a matter of fact, the Plaintiff's witness admits that he does not even know Gajen Deka and Sarat Deka, that he does not know the Defendants even by their face that he would not even be able to recognize them. In fact, in his cross-examination, the Plaintiff's witness broke down completely and admitted that he does not know as to who had constructed the house, bathroom, the chali house and latrine on the suit land and that it was the Plaintiff, who had told him that the Plaintiff had three tenants on his land, but he (the witness) does not know as to how many members the Plaintiff had in his family nor does he know as to when the tenants had occupied the suit house as the tenants of the Plaintiff, that he does not even remember as to when he had last visited the suit land. The Plaintiff's witnesses, finally, admitted that he cannot say even the date on which the Defendants had entered into the suit premises. 12. In the backdrop of the evidence on record, as indicated above, the learned trial Court concluded that the Plaintiff's witness completely failed to support the case of the Plaintiff and the nature of the case being what it is, the Plaintiff's sole evidence, in the absence of any credible corroboration coming from any other quarter, cannot be wholly relied upon, particularly, when the Defendants also claim ownership over the suit land and also possession thereof. 13. Because of what have been discussed and pointed out above, this Court does not find that the findings, reached by the learned trial Court, are perverse and/or warrant interference by this Court in exercise of its revisional jurisdiction. This Court, therefore, finds no infirmity, legal or factual, in the impugned judgment and order passed by the learned trial Court dismissing the suit of the Plaintiff Petitioner. 14. In the result and for the reasons discussed above, this revision is not admitted and the same shall accordingly stand dismissed. 15. No order as to costs. Petition dismissed