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2013 DIGILAW 542 (GAU)

Iman Ali and Fazal Haque v. Korpan Ali

2013-08-07

BROJENDRA PRASAD KATAKEY

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JUDGMENT Brojendra Prasad Katakey, J. 1. This appeal by the defendants, is directed against the judgment and decree dated 06.12.2006, passed by the learned Civil Judge, Barpeta, in Title Appeal No. 8/2006, allowing the appeal preferred by the plaintiffs, by setting aside the judgment and decree dated 23.12.2005, passed by the learned Civil Judge (Jr. Division) No. 1, Barpeta, in Title Suit No. 122/2004, whereby and whereunder the suit of the plaintiffs was initially dismissed. The present respondents as plaintiffs instituted the said suit for declaration of right, title and interest and also for recovery of khas possession by evicting the defendants from the land measuring 3 kathas 12 lechas, more fully described in schedule to the plaint and also for cancellation of the mutation and for issuance of the precept to the revenue authority to correct the record of rights pursuant to the decree that may be passed, contending inter alia that the suit land originally belonged to Afazuddin, on whose death it devolved on the plaintiff Nos. 1 to 8 and the husband of the plaintiff No. 9 being the legal heirs. It has also been contended that the defendant Nos. 1 and 2 suddenly on 25.05.2002 dispossessed the plaintiffs from the land, on the strength of the mutation of their names in the revenue record, though they did not have any right over the suit land and hence are trespassers. 2. The suit of the plaintiffs has been contested by the defendants by filing joint written statement taking the plea that there is no cause of action, that the suit is not maintainable in the present form, that there is mis-joinder of causes of action, that the suit is barred under Section 154 of the Assam Land and Revenue Regulation, that the suit is bad for non-joinder of necessary parties. It has further been pleaded that the suit land originally belonged to Afazuddin, father of the plaintiff Nos. 1 to 8 and the husband of the plaintiff No. 9, and that the defendants have purchased the suit land from the true owner and pattadars by registered sale deed and got delivery of possession and as such they have acquired the right, title and interest in respect of the suit land. 3. Based on the pleadings of the parties, the following issues were framed for determination:- (i) Whether there is cause of action of the suit? 3. Based on the pleadings of the parties, the following issues were framed for determination:- (i) Whether there is cause of action of the suit? (ii) Whether the suit is maintainable in the present form? (iii) Whether the suit is barred by limitation and lead for non-joinder of necessary parties? (iv) Whether the plaintiffs have got right, title and interest over the suit land? (v) Whether the plaintiffs are entitled for the decree of khas possession? (vi) Whether the plaintiffs are entitled for the decree as prayed for? (vii) To what other relief or reliefs the parties are entitled? 4. While the plaintiffs examined two witnesses including the plaintiff No. 8 as PW-1 and proved the revenue records i.e. the Jamabandi, which was marked as Ext.-1, the defendants did not adduce any evidence, despite various opportunities granted to them. The witnesses examined by the plaintiffs, however, were cross-examined by the defendants. 5. The Trial Court upon appreciation of the evidence on record, both oral and documentary, dismissed the suit of the plaintiffs by refusing to declare the right, title and interest on the ground that they have failed to challenge cancellation of the mutation of their names in the revenue record dated 09.03.1994 and the PW-1 does not know the date of dispossession from the suit land, apart from ground that the pleadings in paragraphs 1 and 3 of the plaint suffers from vagueness and self-contradictory. 6. Being aggrieved, the plaintiffs preferred the aforesaid appeal, which has been allowed by the Appellate Court by holding that the plaintiffs could prove the title over the suit land by inheritance and there is no contradiction or vagueness in the averments made in paragraphs 1 and 3 of the plaint. Hence the present appeal. 7. The appeal was admitted for hearing vide order dated 11.05.2007 on the following substantial questions of law:- (i) Whether a suit is maintainable without swearing an affidavit on oath supporting the contents and facts of the plaint under Section 26 of the CPC and Order 6 Rule 15 after the amendment? (ii) Whether the suit is maintainable without specifying expressed the dates as required under Order VI Rule 2 of the Code of Civil Procedure? (ii) Whether the suit is maintainable without specifying expressed the dates as required under Order VI Rule 2 of the Code of Civil Procedure? (iii) Whether the learned appellate court has committed grave error of law and facts of the case while deciding the Title Appeal without the discussing the issues framed by the learned Trial Court and with reversing the same? (iv) Whether the burden of proof is automatically shifted to the defendants when the plaintiffs failed to prove their burden? (v) Whether the appellate court misconceived the law regarding the cause of action in absence of any specific proof of dispossession by the appellants/defendants to the plaintiffs/respondents from the suit land? 8. I have heard Mr. M.Z. Shah, learned counsel for the appellants. None appears for the respondents today despite reflection of the names of the learned counsel appearing for them in the cause list. 9. The learned counsel referring to the provisions contained in Order VI Rule 15(4) has submitted that despite the mandatory requirement of filing an affidavit by the plaintiffs in support of the pleadings, since the plaintiffs did not file the affidavit, the plaint is defective and hence ought to have been rejected. The learned counsel submits that the said aspect of the matter has not been gone into by any of the Courts below. It has also been submitted that though under Order VI Rule 2 CPC, the material facts are required to be pleaded in the plaint, since the plaintiffs did not plead the material facts, the suit of the plaintiffs ought to have been dismissed by the Appellate Court. 10. The learned counsel further submits that though the defendants did not adduce any evidence in support of their pleadings that they have purchased the suit land, it does not automatically proves the case of the plaintiffs, as the plaintiffs has to prove their own case, which having not been done, the First Appellate Court ought not to have allowed the appeal by decreeing the suit of the plaintiffs. The learned counsel further submits that there is not specific proof of dispossession of the plaintiffs by the defendants and hence the First Appellate Court was not justified in decreeing the suit of the plaintiffs for recovery of khas possession. 11. The learned counsel further submits that there is not specific proof of dispossession of the plaintiffs by the defendants and hence the First Appellate Court was not justified in decreeing the suit of the plaintiffs for recovery of khas possession. 11. I have considered the submissions advanced by the learned counsel for the appellants and also perused the judgments and decrees passed by the Courts below apart from the relevant records including the evidence adduced by the plaintiffs, both oral and documentary. 12. The record of the suit reveals filing of an affidavit by the plaintiffs, which was sworn on 11.10.2004, in support of the pleadings in the plaint. The said affidavit is available in File-C1 of Title Suit No. 122/2004. Without going into the question whether the requirement of Order VI Rule 15(4) CPC is mandatory and its non-compliance entails rejection of the plaint, since such affidavit has been filed, which is available on record, the first substantial question of law as formulated does not at all arise in the appeal. Relating to the second substantial question of law formulated, it appears that the material facts relating to the claim for declaration of right, title and interest and recovery of khas possession have been pleaded as required under Order VI Rule 2 CPC. It is a settled position of law that the pleadings are to be read as a whole and a sentence cannot be read in isolation of the other pleadings. Reading the pleadings in the plaint as a whole reveals that all necessary material particulars have been pleaded as required under Order VI Rule 2 CPC. 13. Relating to the 3rd, 4th and 5th substantial questions of law, it appears from the evidence adduced by the plaintiffs, including the revenue record (Ext.-1) that the land originally belonged to Afazuddin, the predecessor-in-interest of the plaintiffs, who have inherited the said suit land after the death of Afazuddin. They have thus acquired the right, title and interest over the suit land. On the other hand, though the defendants in the written statement have pleaded that they have acquired the right, title and interest over the suit land by purchase by a registered instrument, they did not lead any evidence to that effect. They have thus acquired the right, title and interest over the suit land. On the other hand, though the defendants in the written statement have pleaded that they have acquired the right, title and interest over the suit land by purchase by a registered instrument, they did not lead any evidence to that effect. The plaintiffs having proved the right, title and interest and the defendants having failed to prove their pleaded case, the defendants' possession is unauthorized and their status is that of a trespasser. It also appears from the evidence that the mutation granted in favour of the plaintiffs was earlier cancelled on 09.03.1994 and the defendants dispossessed the plaintiffs on 24.04.2002. Even if the date of cancellation of the mutation i.e. 09.03.1994 is taken as the date of dispossession, the suit being instituted within 12 years therefrom, it is within time, as the claim of the plaintiffs in the suit is based on title. 14. In view of the aforesaid discussion, I am of the view that the First Appellate Court has rightly allowed the appeal by setting aside the judgment and decree passed by the Trial Court. Hence the appeal stands dismissed. The parties are directed to bear their own cost throughout. Registry is directed to send down the records. Appeal dismissed