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2014 DIGILAW 149 (GAU)

HUSSENA HAZARIKA v. MOZIDA KHATUN

2014-02-06

N.CHAUDHURY

body2014
JUDGMENT AND ORDER (ORAL) This is a second appeal filed by the contesting defendants against the concurrent findings of the learned two courts below. 2. Three plaintiffs instituted T.S.No.106/94 in the Court of the learned Munsiff No.1, Nagaon against the present appellant as defendant No.1 and two others co-sharers as proforma defendant Nos. 1 and 2, thereby praying for declaration of right, title and interest over the schedule A to the plaint and for passing a decree for confirming their possession over the said land along with a decree for permanent and temporary injunction restraining the defendant No.1 from interfering with the possession of the plaintiffs. 3. It is the case of the plaintiffs that a total of 4 Kathas 1 Lecha of land covered by P.P.No.209 and Dag No.260 of Puranigudam Kissamat, Shalsali Mauza in Nagaon Town was originally owned by one Mustafizur Rahman, who died in the year 1960 leaving behind his 2 sons and 3 daughters. Out of them, 2 daughters and 1 son are the present plaintiffs, whereas proforma defendant Nos. 1 and 2 are another son and another daughter respectively. The plaintiffs claimed that after death of Mustafizur Rahman all the 5 legal heirs entered into an amicable family partition. Thereupon the suit land measuring 2 Kathas 14 Lechas came under the share of the present plaintiffs. But defendant No.1 entered into a collusion with the proforma defendant No.1 and sought to dispossess the plaintiff from the suit land. The plaintiff stated that there was a registered sale deed bearing registration No. 12082 regarding 2 Kathas 14 Lechas of land executed by their brother Hamidur Rahman Hazarika in favour of the principal defendant No.1, namely, Abdul Zawad Hazarika. 4. According to the plaintiffs, Hamidur Rahman Hazarika did not have title over the entire land left behind by Mustafizur Rahman but had title only over 1 Katha 7 Lechas of land. So, he could not have sold 2 kathas 7 lechas to the appellant/defendant No.1. According to the plaintiff, the defendant at best acquired 1 katha 7 lechas of land on the basis of purchase from the aforesaid Hamidur Rahman Hazarika. The two sons of Mustafizur Rahman got 2 / 3rd of the property whereas all the daughters of Mustafizur Rahman inherited one part and thus each son inherited 1 katha 7 lechas each. According to the plaintiff, the defendant at best acquired 1 katha 7 lechas of land on the basis of purchase from the aforesaid Hamidur Rahman Hazarika. The two sons of Mustafizur Rahman got 2 / 3rd of the property whereas all the daughters of Mustafizur Rahman inherited one part and thus each son inherited 1 katha 7 lechas each. Under such circumstances, the prayer of the plaintiffs is that they are entitled to declaration of their right, title and interest over the schedule - A land despite execution of the aforesaid sale deed. 5. On summons being served, the appellant/defendant No.1 filed written statement but the proforma defendants neither appeared nor did they contest the suit. The defendant No.1 denied that there was any amicable partition amongst the 5 legal heirs of Mustafizur Rahman. Defendant No.1 also claimed of being in possession of the suit land measuring 2 kathas 14 lecha described in the schedule to the plaint. According to the Defendant No. 1, he has not only acquired title of Hamidur Rahman Hazarika but also acquired right by way of adverse possession. 6. On the rival contentions of the parties, the learned trial court framed as many as nine issues and the same are quoted below : “1.Whether there is cause of action for the suit ? 2. Whether the suit is barred by principles of waiver, estoppels and acquiescence ? 3. Whether the plaintiff has right, title and interest over the suit land described in the schedule ‘Ka’ to the plaint ? 4. Whether the plaintiffs have been in the possession of the suit land? 5. Whether the plaintiffs are entitled to a decree as prayed for ? 6. To what other relief/reliefs the parties to the suit are entitled? Preliminary Issue Whether this court has pecuniary jurisdiction to try this suit and the Suit is undervalued? Additional Issues 8. Whether the suit is barred by limitation and adverse possession ? 9. Whether the suit is maintainable in its present form?” 7. Plaintiffs’ side examined 3(three) witnesses and exhibited certified copy of jamabandi of the suit patta. The defendant No.1 examined 2 witnesses and exhibited sale deed as Ext.’Ka’. The learned trial court held that there is cause of action and that the suit is not barred by principles of waiver, estoppel and acquiescence. Plaintiffs’ side examined 3(three) witnesses and exhibited certified copy of jamabandi of the suit patta. The defendant No.1 examined 2 witnesses and exhibited sale deed as Ext.’Ka’. The learned trial court held that there is cause of action and that the suit is not barred by principles of waiver, estoppel and acquiescence. Coming to issue No.3 as to right, title and interest over the suit land, the learned trial court held that the defendant No.1 acquired whatever title his vendor had. Since Hamidur Rahman Hazarika had inherited 1 katha 7 lechas of land, he could not have transferred more than 1 katha 7 lechas to the defendant. Under such circumstances, the plaintiffs continued to have title over the remaining plot of land. It was also noted that defendants raised a claim of adverse possession but did not make necessary specific plea of adverse possession by pleading and proving the date from which he is in possession or since when his possession became adverse and thus the defendants failed to prove the adverse possession. Consequently the plaintiffs’ title remain unperturbed. Coming to issue No.4, the learned trial court noticed that during the trial, the plaintiffs could not prove their possession over the suit land. 8. Although there is no finding to the effect since when the plaintiffs were out of possession, but since the defendant went to the extent of denying the claim of amicable partition of the plaintiffs their possession of 1 katha 7 lecha will be in the nature of constructive possession through co-sharers more so when the defendant No. 1 failed to prove adverse possession. 9. The issues of limitation and adverse possession having been decided, the learned trial court passed judgment and decree dated 30.8.2000, decreeing the suit in entirety. The defendant No.1 challenged the judgment of the trial court before the learned Civil Judge (Sr.Division), Nagaon in T.A.No.42/2000. The learned appellate court considered the submissions of the parties and the materials on record. The appellate court noticed that the defendant having taken the plea of adverse possession failed to adequately plead and prove the same. The defendant failed to prove his possession over suit land for a period over 12 year by adducing cogent evidence. The learned appellate court considered the submissions of the parties and the materials on record. The appellate court noticed that the defendant having taken the plea of adverse possession failed to adequately plead and prove the same. The defendant failed to prove his possession over suit land for a period over 12 year by adducing cogent evidence. Considering the deposition of DW-1 and DW 2, the learned lower appellate court observed that DW-2 hopelessly failed to give support to defendant’s case and thus the length of possession of the suit land by defendant is clouded. The proforma defendant Hamidur Rahman Hazarika, who sold the land to the defendant, did not contest the suit and as such the date of delivery of possession also was not proved. The learned appellate court held that date of execution of sale deed cannot be accepted as the date of delivery of possession. With this observation, the learned appellate court considered the argument of the defendants that the suit of the plaintiff was defective under Section 34 of the Specific Relief Act. It was the case of the defendants before the learned appellate court that plaintiffs having failed to prove dispossession and not having prayed for khas possession the suit for declaration is defective as per the proviso to Section 34 of the Specific Relief Act. The learned appellate court considered the matter in the light of the decision of the Supreme Court in the case of Indira Vs Apu Mugam and another, reported in AIR 1999 SC 1549 , wherein the Hon’ble Supreme Court held that – when the suit for possession is based on title and plaintiff succeeds to prove his title on the basis of relevant documents as well as other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. The learned appellate court noticed that plaintiff had made a prayer for recovery of possession. During the pendency of the suit the plaintiff was in possession. Thus plaintiff is entitled to recovery of possession. 10. As pointed out above, the plaintiff is entitled to get a decree as the defendant failed to establish the case of adverse possession as claimed by him. The aforesaid decision of the Hon’ble Supreme Court is applicable to the present case. Thus plaintiff is entitled to recovery of possession. 10. As pointed out above, the plaintiff is entitled to get a decree as the defendant failed to establish the case of adverse possession as claimed by him. The aforesaid decision of the Hon’ble Supreme Court is applicable to the present case. With all these observations and after consideration of the evidence on record, the learned appellate court dismissed the appeal vide judgment dated 11.4.2003. It is this judgment passed by the learned appellate court, the present second appeal has been preferred. 11. This court while admitting the second appeal on 01.10.2003 framed the following substantial questions of law: “1.Whether the Court below ignored material evidence and admissions made by the plaintiff No.2, Rozana Khatun, in her evidence in Misc (J) Case No.65/95 as regards possession of the suit land by the appellant/main defendant while deciding the issue relating to adverse possession ? 2. Whether in a suit for declaration of title a declaration of title, a declaration of cancellation of a deed is necessary ? 12. I have heard Mr. A.Das, learned counsel for the appellants and Mr. S.K.Barkataki, learned counsel for the respondents. 13. Mr. A.Das, learned counsel for the appellant, apart from supporting the substantial questions of law framed by this Court also made argument in regard to bar under proviso to Section 34 of the Specific Relief Act. Coming to the first substantial question of law, it appears that the claim of the defendant as to adverse possession is the core issue in the said substantial questions of law. As pointed out above, while making the claim of adverse possession it is the duty of the defendant to specifically mention as to the date since when his possession became adverse. Here, in this case the defendant apart from mentioning adverse possession did not produce other relevant ingredients so as to make out a case of adverse possession as required by law and this is why both the learned courts below held that the defendants could not establish his claim of adverse possession. Mr. Das has not seriously argued the Issue of adverse possession and fairly admitted that the written statement is deficient as to the ingredients for making out a case for adverse possession. 14. Mr. Das has not seriously argued the Issue of adverse possession and fairly admitted that the written statement is deficient as to the ingredients for making out a case for adverse possession. 14. Considering the facts and circumstances of the case and also the pleadings of the defendants in regard to this claim, it is held that an issue on adverse possession does not arise and accordingly the first substantial question of law does not require any adjudication. 15. Coming to the second substantial question of law, it appears that the plaintiffs made a prayer for declaration of their right, title and interest over the suit land. There is no prayer for declaration that sale deed Ext-Ka is liable to be cancelled or delivered. It is noted above that even the plaintiffs have not totally denied the acquisition of title by the defendant No.1 on the basis of sale deed in question. According to the plaintiff, the defendant No.1 did not have title to the total land left behind by Mustafizur Rahman inasmuch as the Vendor of the plaintiffs had title to 1 katha 7 lecha of land. It being the case of the plaintiffs that defendant might have acquired title to the suit land to the extent of 1 katha 7 lechas on the basis of the Ext. ‘Ka’ sale deed, there does not appear to be any necessity to praying for cancellation of the whole sale deed. What is required for the plaintiff is to get his title adjudicated and the same has been stated in the plaint. Under such fact position, the second substantial question of law is also does not really arise from the materials of this case. 16. At this stage, Mr. A.Das, learned counsel for the appellant submits that admittedly the plaintiffs have failed to plead and prove as to when they were dispossessed from the suit land. The plaintiffs made an alternative prayer for recovery of possession if they were dispossessed from the suit land during pendency of the suit. While adjudicating the claim of the plaintiffs for temporary injunction in Misc. Case filed under Order XXXIX Rules 1 and 2 CPC, but also in course of trial it was found that plaintiffs are not in possession of the suit land and the defendants are in possession to the schedule land. While adjudicating the claim of the plaintiffs for temporary injunction in Misc. Case filed under Order XXXIX Rules 1 and 2 CPC, but also in course of trial it was found that plaintiffs are not in possession of the suit land and the defendants are in possession to the schedule land. Under the circumstances, the plaintiffs were duty bound to make amendment of plaint so as to incorporate the date of dispossession. But this has not been done. Mr. A. Das has also placed reliance on the decision of the Supreme Court in the case of Vinay Krishna Vs Keshav Chandra and another, reported in AIR 1993 SC 957 . In para 13 of this judgment the Hon’ble Supreme Court observed that – in view of both the first and the second defendant raising the plea of bar under Section 42(old) of Specific Relief Act, the plaintiffs ought to have amended and prayed for the relief of possession. As the plaintiff did not chose to do so, they took a risk and failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration. The aforesaid judgment shows that there was no consequential relief in that case. Hence, in the present case the plaintiffs made a prayer for declaration with prayer for consequential relief cannot be granted. There is also an alternative prayer for recovery of possession. A case for no-prayer of consequential relief and a case of inadequate prayer for consequential relief cannot be placed in the same pedestal so as to bring in proviso to Section 34 of the Specific Relief Act. A prayer of the plaintiff is to be seen on the averments made in the plaint as on the date of institution of the suit. The plaintiffs being in possession of the suit land, made a prayer for declaration of title and confirmation of possession and on the face of threat given by defendants of dispossessing the plaintiffs, the plaintiffs made a statement that in the event of their dispossession during the pendency of the suit, they be granted alternative relief of khas possession. Once such a statement is made in the plaint, the plaintiffs may be under impression that subsequent to their dispossession for the suit land no further action is necessary. Once such a statement is made in the plaint, the plaintiffs may be under impression that subsequent to their dispossession for the suit land no further action is necessary. So, bar under proviso to Section 34 of the Specific Relief Act, may not arise under such facts and circumstances. 17. Holding that this suit is not maintainable under proviso to Section 34 of the Specific Relief Act would be too technical an approach under the fact situation of this case. As such the plaintiffs having proved their title to the suit land and having made alternative prayer of possess they cannot be non suited for such a technical failure. 18. Mr A.Das, further submits that the failure on the part of the plaintiff to make a prayer for cancellation of sale deed executed by Hamidur Rahman Hazarika is fatal. He has placed reliance on the judgment of Karnataka High Court, in the case of Chikkatharmaiah & Ors Vs Chikkahutchiah and Ors, reported in AIR Kant 99, ILR 1976KAR 1697. 19. The facts involved in the said case is apparently distinct and different from the present case in hand. Here there is no occasion for the prayer for total cancellation of the sale deed. The defendants have right to 1 katha 7 lechas which was the share of Hamidur Rahman Hazarika in the property left behind Mustafizur Rahman. The plaintiffs did not intend to get the sale deed cancelled for that limited purpose only and restricted their prayer to relief of declaration of their title. The objection raised by the learned counsel in this Court, therefore, is not fatal to the suit of the plaintiffs. In totality of the circumstances, I do not feel the second appeal has merit. Accordingly, it is dismissed. 20. Interim order granted earlier by this court stands vacated. No order as to costs.