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2013 DIGILAW 810 (GAU)

Binita Hazarika v. Atul Ch. Das

2013-11-19

BROJENDRA PRASAD KATAKEY

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JUDGMENT Brojendra Prasad Katakey, J. 1. This appeal by the plaintiffs is directed against the judgment and decree dated 31.07.2002 passed by the learned Civil Judge (Sr. Division), Morigaon, in Title Appeal No. 11/2001, dismissing the appeal preferred by the present appellants and affirming the judgment and decree dated 10.08.2001 passed by the learned Civil Judge (Jr. Division) No. 1, Morigaon, in Title Suit No. 21/1993, whereby and whereunder the suit of the present appellants/plaintiffs has been dismissed. The predecessor-in-interest of the present appellants, namely, Sadhan Ch. Hazarika, instituted Title Suit No. 8/1990 in the Court of the learned Civil Judge, Nagaon, which suit was subsequently transferred to the Court of the learned Civil Judge (Jr. Division) No. 1, Morigaon, on creation of Morigaon Judicial District and consequently the suit has been renumbered as Title Suit No. 21/1993, praying for the decree declaring his right, title and interest over the land measuring 1 bigha 161/2 lechas, being half of the Schedule-(a) land and also for eviction of the defendant Nos. 1 to 4, contending inter alia that originally land measuring 2 bighas 1 katha 13 lechas, described in Schedule-(a) to the plaint, belonged to Matia Nadial, along with whose name, the name of Shri Rameswar Bar Hazarika was mutated in the revenue records on 08.01.1900 in respect of half of the Schedule-(a) land and hence Rameswar had acquired right, title and interest in respect of half of the Schedule-(a) land. It has further been contended that after the death of Rameswar the said land devolved on Madan, his son, after whose death the same devolved on his son Sadhan and thereafter on the plaintiff, she being the widow of Sadhan. It has also been pleaded that taking advantage of absence of Sadhan, the original plaintiff, Gopal, son of Dayal, who is the son of Matia Nadial, transferred 2 kathas of land in favour of Balaram, whose heirs in turn sold the same in favour of defendant No. 4. It has also been pleaded that Atul (defendant No. 1), who claims to be the son of Gopal also sold 1 katha 171/2 lechas of land in favour of defendant No. 2. Further pleaded case is that Hazarika Kaibarta (proforma defendant No. 5), who is the grand son of Matia Nadial through Gandhak, son of Matia, sold 2 kathas 18 lechas of land in favour of defendant No. 2. Further pleaded case is that Hazarika Kaibarta (proforma defendant No. 5), who is the grand son of Matia Nadial through Gandhak, son of Matia, sold 2 kathas 18 lechas of land in favour of defendant No. 2. The plaintiff claims that since he is the successor-in-interest of Rameswar Bar Hazarika, he has the right, title and interest in respect of half of the Schedule-(a) land and hence the original plaintiff claims such right apart from eviction. The plaintiff, however, did not ask for cancellation of the sale deeds executed by Gopal, Atul (defendant No. 1) and also Hazarika Kaibarta (proforma defendant No. 5). During pendency of the suit the original plaintiff Sadhan died and in his place the present appellants were substituted being his heirs and the right to sue having survived on them. 2. The defendant Nos. 1 to 4 contested the suit by filing their respective written statements. While the defendant Nos. 1 and 3 filed the joint written statement, separate written statements were filed by defendant Nos. 2 and 4. The defendants have denied the claim of the plaintiff for right, title and interest over the suit land. It has also been contended that the defendant No. 1 being the successor-in-interest of Matia Nadial, who admittedly is the owner and possessor of the Schedule-(a) land, rightly sold the land in favour of defendant No. 3. Similarly, it has also been pleaded that Gopal, the father of Atul, also rightly sold 2 kathas of land in favour of defendant No. 4. Further pleaded case in the written statements is that Hazarika Kaibarta (proforma defendant No. 5) being another successor-in-interest of Matia Nadial also rightly sold 2 kathas 18 lechas of land in favour of the defendant No. 2. 3. Based on the pleadings of the parties, the Trial Court framed the following issues for determination:- (i) Whether there is cause of action for the suit? (ii) Whether the suit is maintainable in its present form? (iii) Whether the suit is barred by law of limitation? (iv) Whether the suit becomes bad for non-joinder of necessary parties? (v) Whether the defendants have acquired any right, title and interest over the suit land? (vi) Whether the plaintiffs are entitled to get the decree as prayed for? (vii) To what relief/reliefs the parties are entitled to? 4. (iii) Whether the suit is barred by law of limitation? (iv) Whether the suit becomes bad for non-joinder of necessary parties? (v) Whether the defendants have acquired any right, title and interest over the suit land? (vi) Whether the plaintiffs are entitled to get the decree as prayed for? (vii) To what relief/reliefs the parties are entitled to? 4. The Trial Court based on the evidence adduced by the parties dismissed the suit of the plaintiff by holding that the plaintiffs could not prove the title and that based on Exts.-1, 2 and 3, copies of the Jamabandi, no right, title and interest of the plaintiff could be decreed. The Trial Court has also held that the defendant Nos. 2, 3 and 4 have acquired right, title and interest by way of purchase. Being aggrieved, the plaintiff preferred the aforesaid appeal, which has also been dismissed by the first appellate Court. Hence the present appeal. 5. The appeal was admitted for hearing vide order dated 18.05.2004 on the following substantial questions of law:- (i) Whether the learned courts below has framed the issues on the basis of the pleadings made by the parties or not? (ii) Whether the land in possession of a co-pattadar/co-owner is adverse to other co-pattadar/co-owner in absence of clear pleading and evidence made in the case? 6. I have heard Mr. P. Mahanta, learned counsel for the appellants and Mr. P.J. Saikia as well as Mr. B.M. Choudhury, the learned counsel appearing for the respondents. 7. Mr. Mahanta, the learned counsel referring to the judgments and decrees passed by the Courts below has submitted that since the plaintiff could prove the title in respect of half of the Schedule-(a) land i.e. in respect of the land measuring 1 bigha 161/2 lechas, by proving the Jamabandi marked as Exts.-1, 2 and 3, the Courts below ought not to have refused to pass the decree declaring right, title and interest of the plaintiff and also for recovery of khas possession as the successor-in-interest of Matia Nadial did not have any right to transfer the land in favour of anyone, which belonged to Rameswar Bar Hazarika. It has also been submitted that in the absence of any counter claim by the defendants, the Courts below, in any case, ought not to have declared right, title and interest of the defendants as has been declared while answering the issue No. 5. 8. On the other hand, the learned counsel appearing for the respondents, supporting the judgments and decrees passed by the Courts below, have submitted that though the plaintiff claimed right, title and interest over 1 bigha 161/2 lechas of land, he could not prove the same. It has also been submitted that mere recording of the name of Rameswar Bar Hazarika in the revenue record, which are marked as Exts.-1, 2 and 3, would not confer title on Rameswar, in the absence of proof of acquisition of title and hence the plaintiff's suit, who claimed to be the successor-in-interest of Rameswar, has rightly been dismissed. It has also been submitted that though while answering issue No. 5, it has been held that the defendants have right, title and interest in respect of the suit land, no decree declaring their right, however, has been passed as is evident from the judgments and decrees passed by the Courts below. 9. I have considered the submissions advanced by the learned counsel for the parties and also perused the judgments and decrees passed by both the Courts below. 10. Though the plaintiff has claimed that his predecessor-in-interest Rameswar Bar Hazarika was the owner of 1 bigha 161/2 lechas of land, which is half of the Schedule-(a) land, the plaintiff could not prove the title deed. The plaintiff in support of the claim of right, title and interest has proved only the Jamabandi i.e. the revenue records, where the name of Rameswar Bar Hazarika was mutated in respect of half of the Schedule-(a) land. The entry of the name of a person in the revenue record cannot be the basis for declaration of the right, title and interest, unless how he acquired the title is proved. The plaintiff has not pleaded that how Rameswar Bar Hazarika has acquired title in respect of half of the Schedule-(a) land, which admittedly belonged to Matia Nadial. That being the position, the Courts below have rightly held that the plaintiff could not prove right, title and interest in respect of the suit land. The plaintiff has not pleaded that how Rameswar Bar Hazarika has acquired title in respect of half of the Schedule-(a) land, which admittedly belonged to Matia Nadial. That being the position, the Courts below have rightly held that the plaintiff could not prove right, title and interest in respect of the suit land. It, however, appears from the finding recorded by the Trial Court against issue No. 5 that the learned Munsiff while discussing the said evidence in respect of the said issue, has held that the defendants have the right, title and interest. Be that as it may, no decree declaring the right, title and interest of defendants has been passed, which in any case cannot be passed in the absence of any counter claim. 11. In view of the aforesaid discussion, I do not find any merit in the appeal. Hence the appeal stands dismissed. 12. The parties are directed to bear their own cost. Registry is directed to send down the records. Appeal dismissed.