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2013 DIGILAW 808 (GAU)

Charu Bala Barua v. Juri Sarma

2013-11-19

BROJENDRA PRASAD KATAKEY

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JUDGMENT Brojendra Prasad Katakey, J. 1. This appeal by the successors-in-interest of the defendant No. 1, namely, Ajit Barua, is directed against the judgment and decree dated 15.05.2002 passed by the learned Civil Judge (Sr. Division) No. 1, Kamrup at Guwahati in Title Appeal No. 49/2000, whereby and whereunder the appeal preferred by the plaintiffs has been allowed by setting aside the judgment and decree dated 08.08.2000 passed by the learned Civil Judge (Jr. Division) No. 1, Kamrup at Guwahati, in Title Suit No. 399/1996 (renumbered from Title Suit No. 76/1988), whereby and whereunder the suit of the plaintiffs was initially dismissed. The respondents herein as plaintiffs instituted the aforesaid suit for declaration of right, title and interest in respect of the land measuring 3 kathas 10 lechas, more fully described in Schedule-A to the plaint, and also for recovery of khas possession by evicting the defendants, for a decree that the sale deed dated 19.03.1985 executed by the defendant No. 2 in favour of the defendant No. 1 is null and void and not binding on the plaintiffs, apart from permanent and mandatory injunction, contending inter alia that a vast land was originally belonged to Rajendra Narayan Deb and after his death his successors-in-interest, namely, Smt. Lakshmi Priya Devi, widow of Rajendra Narayan Dev; Kumar Jatindra Narayan Dev and Kumar Dwijendra Narayan Dev, both sons of late Rajendra Narayan Dev; and Smt. Madhuri Choudhury, W/O Dilip Ch. Choudhury and daughter of Rajendra Narayan Dev, by means of a family partition on 19.06.1965, distributed the land at Beltola Mouza amongst them and accordingly the land described in Schedule-Kha to the said family partition (Ext.-4), which includes the suit land, fell in the share of Kumar Jatindra Narayan Dev, who by a registered deed of sale dated 03.07.1969 (Ext.-1) sold the suit land to the plaintiffs. It has further been pleaded that they were in possession of the suit land prior to such purchase and continued to be so after such purchase. Further pleaded case is that while they were enjoying the peaceful possession, Suprabha Devi, widow of Kumar Dwijendra Narayan Dev, instituted a proceeding under Section 145 Cr.P.C., which has been registered and numbered as Misc. Further pleaded case is that while they were enjoying the peaceful possession, Suprabha Devi, widow of Kumar Dwijendra Narayan Dev, instituted a proceeding under Section 145 Cr.P.C., which has been registered and numbered as Misc. Case No. 282(m)/1985, where vide order dated 26.10.1987, the learned Executive Magistrate declared the possession of Suprabha Devi, the vendor of the defendants, and the first party in the 145 proceeding, for which the plaintiffs had to institute Title Suit No. 67/1987, which, however, was subsequently withdrawn with liberty to re-file the suit on 30.11.1988 and consequently the present suit has been filed praying for the relief as noticed above. 2. The defendant No. 1, namely, Ajit Barua, the predecessor-in-interest of the present appellants, and the defendant No. 2, namely, Suprabha Devi, widow of Kumar Dwijendra Narayan Dev, filed their respective written statements. In the written statement filed by the defendant No. 1, it has been contended that the land measuring 1 bigha, which includes the suit land, was sold by Suprabha Devi in favour of Ajit Barua and Charu Bala Barua, wife of Ajit Barua, by two separate sale deeds, both dated 19.03.1985 (Exts.-1 and 2) (It appears that the documents proved by both the plaintiffs and the defendants are marked as exhibit in numerical number by the Trial Court by mistake) and they were put into possession. The defendant No. 1 also denied execution of sale deed in favour of the plaintiffs. According to the defendant No. 1 by virtue of such purchase, the defendant No. 1 as well as his wife Charubala Barua became the owner of the land measuring 1 bigha including the suit land in Dag No. 314 of Patta No. 32. 3. The defendant No. 2, the vendor of the defendant No. 1, in the written statement has pleaded that there was amicable partition amongst the successors-in-interest of Kumar Rajendra Narayan Dev and the suit land fell in the share of Kumar Dwijendra Narayan Dev, after whose death she sold the land measuring 1 bigha including the suit land in favour of the defendant No. 1 by two sale deeds, both dated 19.03.1985. The defendant No. 2 has also denied that the suit land fell in the share of Kumar Jatindra Narayan Dev. 4. Based on the pleadings of the parties, the Trial Court framed the following issues for determination:- (i) Whether the suit is maintainable? The defendant No. 2 has also denied that the suit land fell in the share of Kumar Jatindra Narayan Dev. 4. Based on the pleadings of the parties, the Trial Court framed the following issues for determination:- (i) Whether the suit is maintainable? (ii) Whether the suit is barred by limitation? (iii) Whether there is cause of action for the suit? (iv) Whether the suit is bad for non-joinder of necessary parties? (v) Whether the sale deed of defendant is fraudulent and is null and void? (vi) Whether the defendant acquire valuable right, title and possession over the suit land? (vii) Whether the plaintiff acquire the right, title and possession over the suit land and are entitled to recovery of possession? (viii) Whether G.M.C. permission obtained by the defendant is fraudulent and illegal? (ix) Whether the plaintiffs are entitled to the reliefs as prayed for? (x) To what relief if any the plaintiffs are entitled? 5. Both the plaintiffs and the defendants examined their respective witnesses, who have been cross-examined by the respective parties. They have also proved a number of documents including the sale deed dated 03.07.1969 (Ext.-1) stated to be executed by Kumar Jatindra Narayan Dev in favour of Dhirendra Nath Sarma, the predecessor-in-interest of the plaintiffs, and the sale deeds dated 19.03.1985 (Exts.-1 and 2), executed by Suprabha Devi, widow of Kumar Dwijendra Narayan Dev, in favour of the defendant No. 1 and his wife Charubala Barua, apart from other documents. 6. The Trial Court upon appreciation of the evidence on record, both oral and documentary, has dismissed the suit of the plaintiffs by holding that the plaintiffs could not prove the partition and hence the suit land belonged to both Kumar Jatindra Narayan Dev and Kumar Dwijendra Narayan Dev. It has further been held that the plaintiffs could not prove the sale by Jatindra in their favour. 7. It has further been held that the plaintiffs could not prove the sale by Jatindra in their favour. 7. Being aggrieved the plaintiffs preferred the aforesaid appeal, which has been allowed by the first appellate Court thereby decreeing the suit of the plaintiffs by holding that the plaintiffs could prove the family partition (Ext.-4) of the land amongst the successors-in-interest of Kumar Rajendra Narayan Dev, that the suit land fell in the share of Kumar Jatindra Narayan Dev and that since the defendants did not dispute/deny the execution of the sale deed by Kumar Jatindra Narayan Dev in favour of the plaintiffs, the sale in favour of the plaintiffs stands proved. Hence the present appeal. 8. This appeal was admitted for hearing vide order dated 11.03.2003 on the following substantial questions of law:- (i) Whether the suit of the respondents plaintiffs is maintainable in view of the Order 23 Rule 1(4) of the CPC? (ii) Whether the learned court below erred in holding that the Sale Deed Ext.1 was not required to be proved as the same was neither disputed nor denied by the appellants defendants by over looking the stand to the contrary taken by them in their written statement? (iii) Whether the learned court below erred in holding that the land covered by Dag No. 100 and 314 of the suit patta No. 32 was one and the same, by totally ignoring the plaint, Ext. "Umo" and the affidavit Ext.4? 9. I have heard Mr. N. Dhar, learned counsel for the appellants/defendants and Mr. S. Medhi, learned counsel for the respondents/plaintiffs. 10. Mr. Dhar, the learned counsel referring to Ext.-4, deed of partition, has submitted that it is apparent therefrom that the land in Schedule-Kha to the said deed fell in the share of Kumar Jatindra Narayan Dev and since Schedule-Kha land does not include the land covered by Patta No. 32, the first appellate Court ought not to have held that by virtue of such family partition the suit land covered by Patta No. 32 fell in the share of Kumar Jatindra Narayan Dev. It has also been submitted that the finding recorded by the first appellate Court that the defendants did not deny the execution of sale deed by Kumar Jatindra Narayan Dev in favour of the plaintiffs on 03.07.1969, is a perverse finding, as the defendants in the written statement in clear terms have denied such sale and also claimed that the said suit land fell in the share of Kumar Dwijendra Narayan Dev, whose successor-in-interest, namely, Suprabha Devi, sold the suit land along with other land in favour of defendant No. 1 and his wife by two registered sale deeds, both dated 19.03.1985. Mr. Dhar further submits that possession of the plaintiffs over the suit land having not been proved, the appellate Court ought not to have disturbed the finding recorded by the Trial Court in that regard, which has been done by the first appellate Court ignoring the other evidence on record including the admitted position that in the 145 proceeding instituted by Suprabha Devi, the possession was declared in her favour. The learned counsel, therefore, submits that the judgment and decree passed by the first appellate Court needs to be set aside by upholding the judgment and decree passed by the Trial Court. 11. Per contra, Mr. Medhi, the learned counsel appearing for the respondents, has submitted that it is evident from Ext.-4, deed of partition, that there was amicable partition of the land in Beltola Mouza amongst the heirs of Kumar Rajendra Narayan Dev and the suit land along with other land fell in the share of Kumar Jatindra Narayan Dev, who subsequently on 03.07.1969 sold the suit land in favour of the predecessor-in-interest of the plaintiffs, namely, Dhirendra Nath Sarma vide Ext.-1 sale deed. Mr. Medhi further submits that after the resettlement operation, subsequent to the family partition dated 19.06.1965, the Patta No. 170, which fell in the share of Kumar Jatindra Narayan Dev, has been renumbered as Patta No. 32. It has also been submitted that though the defendant No. 1 in the written statement filed has denied the execution of Ext.-1 sale deed dated 03.07.1969 by Kumar Jatindra Narayan Dev in favour of the predecessor-in-interest of the plaintiffs, the defendants during cross-examination never challenged the execution of the said sale deed and hence the first appellate Court has rightly passed the judgment and decree. It has also been submitted that it is evident from the judgment passed by the first appellate Court that the plaintiffs could prove that before passing of the order by the Executive Magistrate in the proceeding under Section 145 Cr.P.C., the plaintiffs were in possession. The learned counsel, therefore, submits that the appeal needs to be dismissed. 12. I have considered the submissions advanced by the learned counsel for the parties and also perused the judgments and decrees passed by the Courts below. 13. It is evident from the stand taken by the defendant No. 2 in the written statement that the factum of family partition of the land in Beltola Mouza has been admitted, as the defendant No. 2 in her written statement has pleaded that after the family partition, the suit land along with other land fell in the share of late Dwijendra Narayan Dev and she thereafter sold it to the defendant No. 1 and his wife vide two sale deeds dated 19.03.1985, along with other land. There is also no challenge to the Ext.-4 family partition. 14. It appears from the Ext.-4 family partition that the land originally belonged to Rajendra Narayan Dev was partitioned amongst his successor-in-interest including Kumar Jatindra Narayan Dev and Kumar Dwijendra Narayan Dev and while land described in Schedule-Kha to the said deed fell in the share of Kumar Jatindra Narayan Dev, the land described in Schedule-Ga fell in the share of Kumar Dwijendra Narayan Dev. Neither in Schedule-Kha nor in Schedule-Ga of Ext.-4 Patta No. 32 has been mentioned. It has however been submitted by Mr. Medhi, the learned counsel appearing for the respondents in the second appeal, that Patta No. 170 which appears in Schedule-Kha of the said family partition, has subsequently been renumbered as Patta No. 32. The first appellate Court did not decide this question whether Patta No. 170 has been renumbered as Patta No. 32 after the resettlement operation, though the same was the most important question to be answered by the first appellate Court, as it is the claim of the plaintiffs that by virtue of such family partition the suit land fell in the share of Kumar Jatindra Narayan Dev. 15. 15. It also appears from the judgment passed by the first appellate Court that the right, title and interest of the plaintiffs has been declared by holding that as the defendants have admitted the execution of the sale deed dated 03.07.1969 by Kumar Jatindra Narayan Dev in favour of the predecessor-in-interest of the plaintiff, their title stands proved and they are not required to prove such sale deed. It appears from the written statement filed by the defendant No. 1 that he has denied the execution of such sale deed. The only ground on which the sale deed was taken to be proved is the admission of the defendants, execution of which, as noticed above, has been denied by the defendant No. 1 in the written statement filed. Such finding of the first appellate Court is therefore perverse. The first appellate Court has not gone into the other evidence as to whether such sale deed has been proved. It also appears from the judgment passed by the first appellate Court that the question of possession has been decided in favour of the plaintiffs without taking into consideration the order passed by the executing Court apart from other relevant evidence. 16. That being the position, I am of the view that the aforesaid three questions need to be answered by the first appellate Court. Hence the judgment and decree passed by the first appellate Court is set aside and the appeal is remitted to the first appellate Court for deciding the aforesaid questions, based on the evidence already adduced by the parties. The appellate Court, however, would allow the parties to lead evidence only in respect of the change of the Patta number from 170 to 32, as claimed by Mr. Medhi, the learned counsel appearing for the respondents/plaintiffs in the present appeal. The appellate Court would not allow the parties to lead evidence on other questions. The suit having been instituted in the year 1988, the first appellate Court is directed to decide the appeal within the outer limit of 6(six) months from the date of appearance of the parties. The parties are directed to appear before the first appellate Court on 05.12.2013. 17. The appeal stands allowed to the extent as indicated above. No costs. The suit having been instituted in the year 1988, the first appellate Court is directed to decide the appeal within the outer limit of 6(six) months from the date of appearance of the parties. The parties are directed to appear before the first appellate Court on 05.12.2013. 17. The appeal stands allowed to the extent as indicated above. No costs. The Registry is directed to send down the records forthwith, so as to reach the first appellate Court on or before the date of appearance.