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2014 DIGILAW 646 (CAL)

Dhiren Maji v. Narayoni Ghosh

2014-07-17

TAPAN KUMAR DUTT

body2014
JUDGMENT Tapan Kumar Dutt, J. This Court has heard the learned Advocates for the respective parties and has considered the relevant materials on record. The facts of the case, very briefly, are as follows : The plaintiff/respondent filed Title Suit No. 126 of 2004 against the defendants/appellants and such suit was placed before the learned Civil Judge (Junior Division), rd Court, Asansol. The plaintiff/respondent, in the said suit, prayed, inter alia, for a decree of declaration that the plaintiff is the absolute owner and possessor of the ‘A’ and ‘B’ schedule property mentioned in the plaint and that the defendants have no right, title and/or interest over the said property. The plaintiff further prayed for a decree declaring that the action of the defendants to encroach the said ‘A’ and ‘B’ schedule property is illegal, null and void and also a decree for permanent injunction restraining the defendants from entering, encroaching and possessing the said ‘A’ and ‘B’ schedule property. The defendants contested the said suit by filing a written statement. It appears that there is no dispute with regard to the fact that in the year l940, the defendants’ predecessors had purchased 7 decimals of land in respect of Dag No. 775 at Mouza Majiara in the district of Burdwan from one Smt. Haridasi Dasi and Sri Bholanath Ghosh. There is also no dispute with regard to the fact that the plaintiff had purchased 8½ decimals of land in respect of the aforesaid Dag number from one Sadhan Ghosh and Ors. In the plaint it has been alleged that the ‘A’ schedule property is 6 sataks of land out of said total 8½ sataks and the ‘B’ schedule property is 2½ sataks of land and said ‘B’ schedule property is part and parcel of the ‘A’ schedule property. The learned Trial Court by its judgment and decree dated 30th June, 2007 decreed the said suit and declared that the plaintiff has right, title, interest and possession over ‘A + B schedule property’ and the defendants were restrained from encroaching the said ‘A’ and ‘B’ schedule property. Challenging the said judgment and decree passed by the learned Trial Court, the defendants filed Title Appeal No. 31 of 2007 which was placed before the learned Civil Judge (Senior Division), Asansol. The learned First Appellate Court by its judgment and decree dated 31st August, 2010 dismissed the said Title Appeal. Challenging the said judgment and decree passed by the learned Trial Court, the defendants filed Title Appeal No. 31 of 2007 which was placed before the learned Civil Judge (Senior Division), Asansol. The learned First Appellate Court by its judgment and decree dated 31st August, 2010 dismissed the said Title Appeal. The defendants/appellants have filed the present Second Appeal challenging the judgment and decree passed by the learned First Appellate Court. The present second appeal was admitted for hearing on the following substantial questions of law by order dated 21st December, 2010 : “I. Whether the learned judges in the courts below, substantially, erred in law in passing the decree in respect of 8½ decimals of land in favour of the plaintiff in not considering the pleadings of the plaintiff that 2½ decimals of land in B-scheduled property is a part of 6 decimals of land in A-scheduled property? II. Whether the learned judges in the courts below, substantially, erred in law in holding that the defendants ought to have prayed for local investigation for identification of their land and in shifting the onus to prove the case for declaration in respect of immovable property mentioned in schedule “A” and “B” to the plaint on the plaintiff? III. Whether the learned judges in the courts below, substantially, erred in law in decreeing the suit relying on the oral evidence of the defendants and ignoring to consider that the plaintiff would be able to prove her case by adducing oral and documentary evidence, when the question of title over the land is involved? IV. Whether the learned judges in the courts below, substantially, erred in law in decreeing the suit by holding that the defendants failed to prove their claim in respect of the disputed land?” The learned Advocate appearing on behalf of the defendants/appellants submitted that the learned Trial Court committed a gross mistake by decreeing the suit in favour of the plaintiffs in respect of ‘A + B schedule property’. The said learned Advocate submitted that it will appear from reading of the plaint itself, particularly, the schedules described in the plaint, that ‘B’ schedule property has been described to be a part and parcel of the ‘A’ schedule property and the ‘A’ schedule property is only 6 decimals of land out of total 8½ decimals. The said learned Advocate submitted that it will appear from reading of the plaint itself, particularly, the schedules described in the plaint, that ‘B’ schedule property has been described to be a part and parcel of the ‘A’ schedule property and the ‘A’ schedule property is only 6 decimals of land out of total 8½ decimals. The said learned Advocate submitted that the evidence on record would show that the plaintiff has been totally confused with regard to the identity of the suit property itself. He has referred to the evidence of P.W.-1, i.e. the plaintiff herself, wherein the P.W.-1 has stated in cross-examination that it is true that the defendants’ predecessor in interest had purchased his land prior to the purchase made by the plaintiff. It is also true that such portion of the defendants’ land measuring 7 decimals have been fenced with boundary wall, as it is now, at the time when the plaintiff had purchased her property. It is also the evidence of the said P.W.-1 that she has constructed a boundary wall at the east of the purchased property about 3 to 4 years before she came to give evidence. Even though it is the specific case of the plaintiff that the ‘B’ schedule property is used as ‘Khamar Bari’, in evidence she has stated that the said ‘Khamar Bari’ is not within the purchased land of 8½ decimals of land. The P.W. 2 has stated in his evidence that the land on the eastern side of the defendants’ land is also used as ‘Khamar Bari’. The said witness further submitted that he has not measured how much of land of the said 26 decimals falls on the eastern side and how much falls on the western side. It may be noted that the said P.W.2 is one of the vendors of the plaintiff and he has also stated that before selling out the land to the plaintiff, the vendors did not prepare any map for proper measurements. From the evidence of D.W. 3, it appears that he has stated that in between the houses of the plaintiff and the land of the defendants, there is no lane but from the cross-examination, it appears that he has stated that there is a ‘gali’ in between the houses of the plaintiff and the defendants. From the evidence of D.W. 3, it appears that he has stated that in between the houses of the plaintiff and the land of the defendants, there is no lane but from the cross-examination, it appears that he has stated that there is a ‘gali’ in between the houses of the plaintiff and the defendants. In the evidence the plaintiff herself stated that she has raised pucca construction within the ‘A’ schedule property measuring 6 decimals “keeping a passage measuring 117 feet in length and 5 ½ feet in breadth by making boundary wall keeping a door facing towards ‘B’ schedule property and that the said ‘B’ schedule property is part and parcel of the ‘A’ schedule property. The learned Advocate for the appellants submitted that the pleadings and the evidence on record would show that there has been a total confusion with regard to the identity of the suit property. The learned Advocate appearing on behalf of the plaintiff/respondent submitted that the pleadings and the evidence on record have to be read as a whole. There cannot be any dispute with regard to such proposition of law but the question in the instant case is as to whether or not the plaintiff has been able to prove her case made out in the plaint and as to whether or not the identity of the suit property can be clearly established from the materials on record. Even if the pleadings and the evidence is read as a whole, this Court is of the view, in view of the discussions made above, that it is very difficult to establish the identity of the suit property. The learned First Appellate Court recorded in its judgment that the D.W. 3 in his evidence stated that there is a ‘gali’ in between the houses of the plaintiff and the defendants and if that be so then it is the duty upon the defendants/appellants to pray for local investigation to prove such fact and since the defendants did not do so, the defendants have failed to prove their case before the Court. The learned Advocate appearing on behalf of the defendants/appellants rightly submitted that it is for the plaintiff to prove her own case as made out in the plaint and the learned Courts below were not right in granting relief to the plaintiff on the basis of some weaknesses in the evidence of the defendants. In this regard he cited a decision reported at (2007) 6 S.C.C. 737 (Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale (Dead) and Ors. ). In paragraph 13 of the said report it has been observed that weakness of the defence or the failure of the defendants to establish the title set up by them would not enable the plaintiff to get a decree. The said learned Advocate referred to paragraph 18 of the said reports also and submitted that it is only fit and proper that in the instant case a local investigation should be made for the purpose of identifying the suit property. The said learned Advocate also cited a decision reported at (2008) 8 S.C.C. 671 (Haryana Waqf Board vs. Shanti Sarup and Others) in support of his contention that it was the plaintiff’s duty to have the local investigation done by making an appropriate application in this regard since the plaintiff was duty bound under the law to prove her own case. According to the learned Advocate for the plaintiff/respondent, the plaintiff has proved her case and, therefore, there is no necessity of any local investigation. This Court is unable to accept such submissions of the respondent’s learned Advocate as this Court is of the view that the plaintiff has made a confusion with regard to the identity of the suit property. The plaintiff’s case is that the plaintiff had purchased 8½ decimals of land and yet the plaintiff described the ‘B’ schedule property 2½ decimals of land as part and parcel of ‘A’ schedule property which is 6 decimals of land. The learned Advocate for the plaintiff/respondent submitted that the learned Trial Court did the right thing by passing a decree in respect of the said ‘A + B schedule property’ since the case of the plaintiff is that the ‘B’ schedule property is part and parcel of the ‘A’ schedule property, and, therefore, it is incorrect to submit that ‘B’ schedule property is outside the ‘A’ schedule property. This Court is of the view that the learned First Appellate Court was not right in shifting the onus upon the defendants to take necessary steps for holding a local investigation. It was the plaintiff’s duty to take necessary steps for local investigation for the purpose of proving her case. The learned Advocate for the defendants/appellants cited a judgment reported at 2014(3) CHN (SC) 5 (M.B. Ramesh (D) by Lrs. Vs. K.M. Veeraje Urs (D) by Lrs. ) and referred to paragraph 14 of the said reports in support of his contention that even in a Second Appeal the High Court can go into the question of fact provided the Court is satisfied that the findings of the Courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and the findings recorded in the Court below are perverse. It appears to this Court that both the learned Courts below made an erroneous approach to the matter and did not consider the evidence on record as a whole. The learned Courts below also failed to consider the implication of the description made in respect of the ‘A’ and ‘B’ schedule property of the plaint. In view of the discussions made above, this Court is of the view that this appeal should be disposed of by sending the suit back on remand to the learned Trial Court for proper identification of the property involved in the suit and for a fresh decision of the said suit after giving opportunities to the parties to amend their pleadings and adduce further evidence, if necessary. Accordingly, the present Second Appeal is disposed of by setting aside the judgments and decrees passed by the learned Courts below and by sending the suit back on remand to the learned Trial Court for a fresh decision of the said suit after giving a reasonable opportunities to the parties to amend their pleadings and after allowing the parties to adduce further evidence, if necessary, in support of their respective cases. The learned Trial Court shall consider the evidence already on record and the evidence that may be further adduced by the parties for the purpose of the disposal of the said suit. The learned Trial Court shall consider the evidence already on record and the evidence that may be further adduced by the parties for the purpose of the disposal of the said suit. The learned Trial Court shall also give liberty to the parties to make an application for local investigation for proper identification of the suit property involved in the dispute and consider such application in accordance with law. The learned Trial Court shall endeavour to dispose of the suit as early as possible without granting unnecessary adjournment to any of the parties. Let the lower court records be sent back to the learned Trial Court concerned and a copy of this judgment be also communicated to the learned Trial Court concerned by special messenger and the special messenger cost for such purpose shall be put in by the appellants within a week as prayed for by the learned Advocate for the appellants. There will be no order as to costs.