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2015 DIGILAW 1043 (GAU)

Sandhya Medhi v. Bolen Deka

2015-08-18

N.CHAUDHURY

body2015
JUDGMENT : This first appeal is directed against the judgment and decree dated 10.08.2005 passed by the learned District Judge, Dhemaji whereby Title Suit No. 8/2003 instituted by the present appellant was dismissed in entirety. 2. The present appellant, as plaintiffs, instituted Title Suit No. 8/2003 in the Court of learned District Judge, Dhemaji on 20.08.2003 stating that the land described in schedule to the plaint measuring 13 bigha 12 lecha originally belonged to one Horomohan Boro of village Pub Baligaon. Predecessor of the plaintiffs, Joydev Medhi being a friend of the original owner Horomohan Boro offered to purchase that land from him and as Horomohan Boro also wanted to leave the village, the whole of the land was sold to Joydev Medhi on realisation of a sum of Rs. 1,200/- and thereafter Horomohan Boro shifted to village Nalbari and purchased 17 bigha of land at a sum of Rs. 700/- out of the sale proceeds of his land in the village Pub Baligaon. The predecessor of the plaintiffs occupied the whole land and started living there but the family of the original owner remained in the place by amicable settlement with Joydev Medhi. Horomohan Boro, however, did not execute any sale deed to the plaintiffs on this or that plea stating that he was not in a position of a pattadar of the land. Be that as it may, in the year 1979, Horomohan Boro instituted Title Suit No. 8/79 in the Court of learned Munsiff, Dhemaji, inter alia, for recovery of 2 bigha 1 katha 12 lecha of land from Joydev Medhi. Joydev Medhi appeared and contested the suit and ultimately the suit was dismissed for default and it was neither restored nor was an appeal preferred there-against. The order dated 22.12.1979 attained finality. It is the further case of the plaintiffs that their predecessor continued possessing the land till it was discovered that the defendants of the suit got mutation in their favour over 13 bigha 12 lecha of land purchased by Joydev Medhi from Horomohan Boro and so submitted objection to the Revenue Authority for cancelation of mutation. The application was dismissed and an appeal was preferred there-against before Assam Board of Revenue which was also dismissed. The application was dismissed and an appeal was preferred there-against before Assam Board of Revenue which was also dismissed. There was a writ petition challenging the order passed by the Revenue Board and when the same was pending, the plaintiffs came to know about the execution of a sale deed by Horomohan Boro in favour of the defendants and so instituted the suit for declaration that the said sale deed bearing registration No. 158/85 purported to be made in favour of the defendants was fraudulent, forged and illegal, for cancellation of the mutation of the names of defendants and also for declaration of right, title and interest over the suit land described in Schedule ‘C’ to the plaint which is a part of Schedule ‘B’ land described in the plaint. 3. On being summoned, the defendants appeared and submitted written statement and claimed to have purchased the suit land by valid registered sale deed from Horomohan Boro on the basis of which their names were duly mutated in the Records of Rights. Upon perusal of the rival contentions of the parties, the learned trial court framed the following issues and allowed the parties to lead respective evidence for proving their respective cases. i. Whether the sale ded No. 158/85 serial No. 426/85 of Dhemaji Sub Registry was a fabricated and forged document? ii. Whether the mutation of the names of the defendant No. 1 on the basis of the alleged fabricated and forged document is liable to be cancelled? iii. Whether the plaintiffs are entitled to a decree for declaration fo title over the suit land as described in schedule ‘B’ of the plaint? iv. Whether the plaintiffs are entitled to a decree for declaration of title and confirmation of possession in respect of the land described in Schedule ‘C’ of the plaint? v. Whether the plaintiffs are entitled to a decree for declaration fo title and recovery of khas possession of the land described in the schedule ‘B’ of the plaint? vi. Whether the plaintiffs are entitled to a decree for a declaration that the defendant No. 13 is not entitled to the land measuring 1 bigha 2 katha 10 lecha part of Dag No. 131 of Chandue Village? vii. Any other relief(s) to which the parties are entitled to? 4. vi. Whether the plaintiffs are entitled to a decree for a declaration that the defendant No. 13 is not entitled to the land measuring 1 bigha 2 katha 10 lecha part of Dag No. 131 of Chandue Village? vii. Any other relief(s) to which the parties are entitled to? 4. Plaintiff examined as many as 6 witnesses and exhibited 4 documents while defendants examined 5 witnesses and exhibited 2 documents, namely, Ext. Ka and Ext. Kha. Ext. Kha is the registered sale deed No. 158/85 whereas Ext. Ka is the compromise deed executed by Horomohan Boro in favour of Joydev Medhi which is counter signed by village elders. The defendants have also exhibited some Revenue Paying Receipts. The learned trial court after considering the materials available on record, arrived at the finding that the registered sale deed No. 158/85 was allegedly executed by Horomohan Boro in favour of the defendants and the plaintiffs or their predecessor were not party to it and so, being a third party he was not entitled to question validity or otherwise of the said sale deed. The learned trial court further arrived at the finding that the plaintiffs having claimed decree for right, title and interest with respect to the suit land on the basis of alleged purchase from Horomohan Boro, the said vendor or on his death his legal representatives were the necessary parties and in absence of them, the suit was not maintainable. However, the learned trial court after consideration of Ext. Kha, executed by the defendants, held that the dismissal of the Title Suit No. 8/79 was for default and so, it was a dismissal against both the parties. Consequently, it was held by the learned trial court that plaintiffs are not in possession of any plot of land even over 2 bigha 12 lecha of land borne out by Ext. Kha and exhibited by defendants. With these findings, the suit of the plaintiff was dismissed in entirety. Aggrieved, plaintiffs have preferred this first appeal challenging the impugned judgment and decree and also claiming right, title and interest with respect to the suit land measuring 13 bigha 12 lecha. 5. I have heard Mr. BD Goswami assisted by Mr. S Sharma for the appellant and Mr. I Hussain, learned counsel for the respondents. I have also perused the respective pleadings of the parties and the evidence adduced by them. 5. I have heard Mr. BD Goswami assisted by Mr. S Sharma for the appellant and Mr. I Hussain, learned counsel for the respondents. I have also perused the respective pleadings of the parties and the evidence adduced by them. The plaintiffs claimed right, title and interest with respect to 13 bigha 12 lecha of land described in schedule to the plaint on the basis of purchase from Horomohan Boro. But in support of such purchase admittedly the plaintiff could not produce any title. Sale within the meaning of section 54 of the Transfer of Property Act in respect of all immovable property can be done by an instrument which is compulsorily registrible under section 17 of the Indian Registration Act, provided its value is above Rs. 100/-. Admittedly, the consideration for purchase in the present case was Rs. 1,200/-. The plaintiffs stated that Horomohan Boro did not execute any sale deed. This being the position, no sale within the meaning of section 54 of the Transfer of Property Act can be said to have taken place in favour of the plaintiffs. Section 54 of the Transfer of Property Act not only defines the same but also lays down the procedure for effecting sale. It is provided that in case of tangible immovable property of a value of rupees one hundred and above, such transfer may be made by a registered instrument. However, in case of tangible immovable property of value less than Rs. 100/- it can be done either by a registered instrument or by delivery of the property. Plaintiffs claimed that price of the land was Rs. 1,200/- and so the question of sale by delivery of possession could not have arisen. Purchase from Horomohan Boro is the fulcrum of the case of the plaintiffs and unless and until the purchase is established, the suit of the plaintiffs is destined to fail. One of the grounds for which the learned trial court refused to decree the suit of the plaintiffs is that plaintiffs could not prove purchase in accordance with law. Having gone through the pleadings of the parties and the evidence on record, such finding of the learned trial court that no sale on receipt of Rs. 1,200/- had taken place in favour of the predecessor of the plaintiffs appears to be correct and accordingly that finding of the learned trial court cannot be interfered with. 6. Having gone through the pleadings of the parties and the evidence on record, such finding of the learned trial court that no sale on receipt of Rs. 1,200/- had taken place in favour of the predecessor of the plaintiffs appears to be correct and accordingly that finding of the learned trial court cannot be interfered with. 6. But while considering the evidence led by the parties, it comes to light that defendant while exhibiting their purchase deed as Ext. Kha also exhibited a compromise deed as Ext. Ka and the same is available on record. Ext. Ka was executed between Horomohan Boro on one side and Joydev Medhi and Phanindra Medhi on the other side. This compromise petition was prepared for filing in Title Suit No. 8/79 which was instituted by Horomohan Boro to recover possession of 2 bigha 12 lecha of land from Joydev Medhi. Institution of Title Suit No. 8/79 in the Court of learned Munsiff at Dhemaji by none other than Horomohan Boro against Joydev Medhi goes to show that Joydev Medhi was in possession of the land as on the date of institution of the suit and Horomohan Boro wanted to recover the same. During pendency of the suit, Ext. Ka compromise deed was executed in presence of the village elders and thereupon Horomohan Boro accepted possession of Joydev Medhi over 2 bigha 12 lecha of land. Thereafter neither parties appeared in the title suit because of which Title Suit No. 8/79 was dismissed for default on 22.12.1979. After the suit was dismissed for default, the same was not restored in exercise of power under Order IX Rule 9 of the Code of Civil Procedure. The plaintiffs of that suit, namely, Title Suit No. 8/79 thereby became barred for institution of the fresh suit against the defendant of that suit. This shows that Horomohan Boro and for that his successors in interest including the transferee and assigns became precluded from instituting any suit with respect to recovery of possession over 2 bigha 12 lecha of land from Joydev Medhi and Joydev Medhi continued possessing the same in exercise of possessory right. Question as to whether Joydev Medhi have acquired title with respect to that land from Horomohan Boro or his legal heirs is altogether a different one. Question as to whether Joydev Medhi have acquired title with respect to that land from Horomohan Boro or his legal heirs is altogether a different one. Under such circumstances, the finding of the learned trial court that plaintiffs were not in possession of any part of the land cannot be supported or upheld. Consequently, the appeal is disposed of. The findings of the learned trial court in regard to non-maintainability of the suit is upheld but the finding of the learned trial court in regard to possession of the plaintiffs over any part of the 13 bigha 12 lecha of land is hereby set aside. 7. Send down the records. 8. No order as to costs.