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2015 DIGILAW 1129 (GAU)

Hadisur Gaman v. Tafazul Hussain

2015-09-02

SUMAN SHYAM

body2015
JUDGMENT : This second appeal has been preferred against the concurrent judgment and decree dated 30-09-2004 passed by the learned Civil Judge (Sr. Div.), Nalbari in Title Appeal No. 10/2004 thereby affirming the judgment and decree dated 27-10-2003 passed by the learned Civil Judge (Jr. Div.) No. 1, Nalbari in Title Suit No. 41/1999 dismissing the suit filed by the plaintiff. 2. The second appeal was admitted by the order dated 01-02-2006 to be heard on the following substantial question of law:- “Whether the learned Court below erred in dismissing the suit of the plaintiff, by leaving out of consideration material pieces of evidence on record and relying on the local inspection of the suit land, thus rendering it’s findings perverse in law? 3. The appellant had instituted the suit for declaration of right, title and interest and also for confirmation of possession in respect of a plot of land measuring 1B-1K-13L covered by Dag No. 439 of KP Patta No. 292 of Village- Khatabari Khanda, Mouza- Khata, Nalbari Town, Ward No. 7. The case of the plaintiff is that the suit land forms part of the larger area of land measuring 44B-1K which originally belonging to Madhab Devalaya of Hajo. In the first settlement of the land in the year 1871 to 1888 the land measuring 44B-1K covered by KP Patta No. 1 and 7B-1K-7L covered by KP Patta No. 40 of Village- Khata, Mouza- Khata, P.S.- Nalbari was settled in the name of Madhab Devalaya and one Jogya Dutta Sarma was a tenant in respect of the said plot of land. One Dharma Narayan purchased the aforesaid tenancy and thereafter his name was duly recorded in the records of rights. The forefather of the plaintiff occupied a part of the land belonging to Madhab Devalaya as a tenant. When the Dharma Narayan sold his tenancy to Shri Ram Dev Sarma on 03-08-1913, the forefather of the plaintiff continued to possess the land, but when the son of late Ram Dev Sarma tried to take possession of the land a proceeding under Section 145 CPC was started and in that proceeding the possession of the land was declared in favour of the brother of the plaintiff Jahir Ali, who possessed the land on behalf of the plaintiff. The name of the plaintiff continued in the khatiyan till 1974 along with other tenants and thereafter from the aforesaid KP Patta No. 1 different pattas were formed at different times creating Dag No. 20, 21, 23, 24, 25, 33, 58, 59 and 60 covering the aforesaid 44 bighas of land. The Dag No. 59 covering 3K-4L of land Dag No. 60 covering 3K-9L of land totaling to 1B-1K-13L was under the possession of the plaintiff as a tenant since their father’s time. The said dags were changed and formed as Dag No. 439 pertaining to KP Patta No. 292. On the aforesaid factual background the plaintiff had claimed right, title and interest and possession over the suit land as a tenant. 4. On receipt of summons the defendants appeared in the suit and contested the same by denying the claim of right, title and interest of the plaintiff over the suit land. 5. Based on the pleadings of the parties the following issues were framed by the court below:- 1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is barred U/S 154 of Assam Land and Revenue Regulation? 4. Whether the suit is time barred? 5. Whether the plaintiff was recognized as co-tenant during settlement of 1974 or before in respect of the land covered by four boundaries of the S/L as described in schedule of plaint? 6. Whether the land as claimed by plaintiff is covered by Dag No. 439 of K.P. 292 of vill Khatabari Khanda? 7. Whether plaintiff has been possessing the land with four boundaries since the time of his father over dag No. 439 of K.P. No. 292 or dag No. 446 K.P. No. 295? 8. Whether plaintiff has acquired right, title and interest over the land of dag No. 446 of K.P. No. 292? 9. Whether plaintiff is entitled to any relief/reliefs as prayed for? 10. To what other relief/reliefs the parties are entitled? 11. Whether defendants acquired right, title and interest over one bigha of land under dag No. 446 K.P. No. 298? 6. During the course of trial both the parties led evidence in support of their respective cases. 9. Whether plaintiff is entitled to any relief/reliefs as prayed for? 10. To what other relief/reliefs the parties are entitled? 11. Whether defendants acquired right, title and interest over one bigha of land under dag No. 446 K.P. No. 298? 6. During the course of trial both the parties led evidence in support of their respective cases. Thereafter, based on the evidence available on record and after hearing the learned counsel for the parties the Trial Court had decided issue No. 5, 6 and 7 against the plaintiff. Consequently, the plaintiff’s suit came to be dismissed by the Trial Court. 7. Being aggrieved by the judgment and decree passed by the Trial Court dismissing the suit, the plaintiff as appellant had preferred Title Appeal No. 10/2004 in the court of Civil Judge (Sr. Div.), Nalbari. After hearing learned counsel for the parties and on examination of the materials on record the learned lower Appellate Court had passed judgment and decree dated 30-09-2004 dismissing the appeal filed by the plaintiff. 8. Being aggrieved by the judgment and decree dated 30-09-2004 the plaintiff as appellant has preferred the present second appeal. 9. I have heard Mr. D. Choudhury, learned counsel for the appellant. None appears for the respondent despite service of notice upon the respondent. Mr. Choudhury submits that although the plaintiff has failed to produce any documentary evidence in support of his claim of right of tenancy in respect of the suit land, yet the court below could not have rejected the claim of the plaintiff merely because the Director of Land Revenue and Records could not trace out any document pertaining to the claim of the plaintiff over the suit land. Mr. Choudhury has, however, fairly submit that the local inspection report carried out by the learned Judge of the Trial Court was against the plaintiff and that the plaintiff had also failed to lead evidence so as to establish his claim of right, title and interest and possession over the suit land. 10. I have considered the submission made by Mr. Choudhury and have also perused the materials available on record. 10. I have considered the submission made by Mr. Choudhury and have also perused the materials available on record. On scrutiny of the judgment and order passed by the lower Appellate Court as well as the evidence available on record, it is apparent that both the courts below had concurrently held that plaintiff has failed to prove his right, title and interest or possession over the suit land. Such concurrent finding of fact appears to be based on materials available on record. As such, I am of the opinion that there is no scope for this Court to interfere with such concurrent finding of fact at the stage of the second appeal. There was no material evidence available on record for the learned court below to pass a decree in favour of the plaintiff. On the contrary, it is admitted position of fact that suit land is recorded in favour of the defendant who is holding a patta in respect thereof. In view of the above, there is no perversity in the findings recorded by the court below. As such the substantial question of law framed by this Court stands answered against the appellant and in favour of the respondents. 11. A perusal of the materials on record goes to show that besides claiming right, title and interest over the suit land as a tenant, the plaintiff has also prayed for declaration of title over the suit land by taking a plea of adverse possession claiming continuous possession over the land since the time of his father. The said plea of the plaintiff has also been rightly rejected by both the courts below. It is settled law that the plea adverse possession is available to a litigant as a shield and the same cannot be used as a sword. The plaintiff cannot seek a decree for declaration of right, title and interest over the suit land on the basis of adverse possession since such a ground is not available to the plaintiff in a suit. In view of what has been discussed in the foregoing paragraphs, I am of the considered opinion that there is no merit in this second appeal and the same stands dismissed accordingly. There would be no order as to cost. Registry to send back the LCR.