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2015 DIGILAW 1161 (GAU)

Kamakhya Saha v. Basanti Rani

2015-09-09

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. B. N. Sarma, learned counsel for the appellants/defendants. Also heard Mr. K. Sarma, learned counsel for the respondents/plaintiffs. 2. This appeal is preferred by the defendants against the judgment and decree dated 24.03.2006, passed by the learned Civil Judge (Senior Division), Barpeta, in Title Appeal No. 56/2005, allowing the appeal and reversing the judgment and decree dated 23.09.1995, passed by the learned Civil Judge, Junior Division, Barpeta, in Title Suit No. 107/99, whereby the suit of the plaintiffs was dismissed. 3. Plaintiff No. 1 is the wife of plaintiff No. 2. The case projected in the plaint, shorn of details, is that in Schedule-‘A’ land, there is total 2 Bigha 2 Katha 13 Lecha of land covered by Dag No. 203 under K.P. Patta No. 128 at village Uttar Athiabari. In Dag No. 205 of K.P. Patta No. 129, and Dag No. 204 of K.P. Patta No. 129 of the same village, there is 2 Katha 9 Lecha 13 Lecha of land, respectively, and, thus, in Periodic Patta No. 129, there is 3 Katha 2 Lecha of land. Details in respect of land in K.P. Patta No. 129 are given in Schedule-‘B’. 4. Plaintiff No. 1 purchased 1 Katha 15 Lecha of land in Dag No. 203, within Schedule-’A’ land, which is described in Schedule-‘C’ of the plaint, by registered Sale Deed No. 632/89, dated 13.06.89, and plaintiff No. 2 purchased 1 Katha 18 Lecha, described in Schedule-‘D’, by another registered sale deed dated 28.12.89 from the same vendor vide registered sale deed No. 1649/89. Plaintiff No. 1 purchased another plot of land measuring 10 Lecha, in Dag No. 205, described in Schedule-‘E’, vide registered sale deed No. 66/91 dated 11.01.91. The three plots of land described in Schedule-‘C’, ‘D’ and ‘E’ were amalgamated by the plaintiffs. It is averred that while taking delivery of possession of the land, the plaintiffs could not take delivery of possession in the eastern boundary in a straight line due to the reason that a residential house, measuring 10’ X 12’ belonging to defendant No. 1 was found located on Schedule-’C’ land. The defendant No. 1 assured on the date of purchase of the Schedule-‘C’ land by the plaintiffs on 13.06.89 that he would remove the house and vacate the land within a short time and give delivery of the same to the plaintiffs. The defendant No. 1 assured on the date of purchase of the Schedule-‘C’ land by the plaintiffs on 13.06.89 that he would remove the house and vacate the land within a short time and give delivery of the same to the plaintiffs. As the defendant No. 1 was going to be a neighbour of the plaintiffs, the plaintiffs believed the assurances given by the defendant No. 1. However, subsequently, in 1997, the defendant No. 1, instead of honouring his promise and assurances, started raising boundary disputes with the plaintiffs and refused to vacate the portion of the land, where the room was situated. In such circumstances, the plaintiffs constructed a brick-wall in the eastern boundary, touching the house of the defendant No. 1, which, however, was broken down by the defendants on 18.07.99 in absence of male members of the family of the plaintiffs. Prior to that incident, the defendant No. 1 attempted to raise a bamboo fencing encroaching a portion of the plaintiffs’ land, but such action was thwarted due to intervention of the neighbours. As the defendant No. 1 did not vacate the said portion of the land, the plaintiffs were granted mutation only in respect of 1 Katha 5 Lecha of land, though, as per Schedule-‘C’, they had purchased 1 Katha 15 Lecha. 5. Accordingly, the plaintiffs filed the suit for right, title, interest, recovery of possession, for partition of the suit land and for permanent injunction etc. 6. The defendants filed written statement raising, amongst others, a plea that the suit was barred by law of limitation and that it was also not maintainable for non-joinder of necessary parties. In the written statement, the defendants admitted that Radhikalal Saha, Narayan Saha and Krishta Mohan Saha, all sons of Nityananda Saha, as stated by the plaintiffs, had purchased 2 Bigha 2 Katha 13 Lecha of land and the predecessor of defendant No. 1, Krishnalal Saha, had purchased 2 Katha 3 Lecha of land from Krishta Mohan Saha and Smt. Suhagibala Saha, wife of Late Narayan Saha, vide registered Sale Deed No. 2661/52, dated 14.07.52, and took possession after appropriate measurement of the land after which Krishnalal Saha constructed his residential building over the land. Referring to a report of the Circle Officer, it is stated that the Circle Officer found the defendant No.1 to be in possession of 8 Lecha of land in Dag No. 205 and, accordingly, they are in possession of 8 Lecha of land in Dag No. 205 and 1 Katha 15 Lecha in Dag No. 203. The plaintiffs, after purchasing land in the year 1989, constructed a R.C.C. wall in between the land of the plaintiffs and the defendants on the eastern side, by encroaching ½’ land of the defendants but the defendants did not raise any objection. It is averred that the boundary was a straight one and there is no dispute between the parties and that a concocted boundary dispute had been raised by the plaintiffs. The defendant No. 1 and others are in continuous possession of the land since 1952 and, as such, the suit is barred by law of limitation. It is also pleaded that defendant No. 2, who is a tenant under defendant No. 1, was wrongly impleaded as a defendant. 7. The learned Trial Court framed the following issues for consideration: “1. Whether there is cause of action to institute this suit? 2. Whether there is a room measuring 10’ X 12’ belonging to the defendant and was existed prior to the purchase of the suit land by the plaintiff? 3. Whether the plaintiffs have right, title and interest over the suit land? 4. Whether the plaintiff is entitled for a decree to evict the defendant from the suit land by removing the house building, structure of defendant No. 1 to obtain khas possession ? 5. Whether the plaintiffs are entitled for a decree of permanent injunction? 6. Whether the plaintiff is entitled for partition of the suit land? 7. Whether the suit land is bad for non-joinder of necessary party? 8. What other relief(s) the parties are entitled for?” 8. During trial, five witnesses were examined on behalf of the plaintiffs and three witnesses were examined on behalf of the defendants. Defendant No. 2, a tenant under defendant No. 1, was examined as DW1. However, defendant No. 1 did not examine himself. 9. 8. What other relief(s) the parties are entitled for?” 8. During trial, five witnesses were examined on behalf of the plaintiffs and three witnesses were examined on behalf of the defendants. Defendant No. 2, a tenant under defendant No. 1, was examined as DW1. However, defendant No. 1 did not examine himself. 9. The learned Trial Court, relying on an inspection report of the Amin Commissioner and a sketch prepared by his predecessor as also on the assertion of the parties, held that a room of the size 10’ X 12’, belonging to the defendant No. 1, existed on the suit land prior to purchase of the land by the plaintiffs. With regard to Issue No. 3, learned Trial Court held that the plaintiffs have right, title and interest to the extent of their possession but not on the disputed land where the defendants are in possession. 10. On Issue No. 4, learned Trial Court held that the plaintiffs had no good title upon the land where the defendant No. 1 had his house and, therefore, the plaintiffs were not entitled to get khas possession of the land by removing the room of the defendant No. 1. 11. Issue No. 6 was decided against the plaintiffs as it was already held that the plaintiffs had no good title over the land in possession of defendant No. 1. 12. Issue No. 7 relating to non-joinder of necessary parties was also decided against the plaintiffs by holding that the defendants had asserted that several pattadars were not made parties to the suit. With the aforesaid findings, the suit of the plaintiffs was dismissed with cost of Rs. 1,000/-. 13. Learned Lower Appellate Court, on the basis of the registered sale deeds exhibited as Ext.-4, Ext.-5 and Ext.-6, held that the plaintiffs had established right, title and interest in respect of the suit land and allowed the appeal and accordingly decreed the suit. 14. The Second Appeal was admitted to be heard by an order dated 07.08.06 on the following substantial question of law:- “Whether the findings of the first appellate Court reversing the judgment and decree passed by the learned Trial Court in total disregard to the evidence on record suffers from perversity?” 15. Mr. 14. The Second Appeal was admitted to be heard by an order dated 07.08.06 on the following substantial question of law:- “Whether the findings of the first appellate Court reversing the judgment and decree passed by the learned Trial Court in total disregard to the evidence on record suffers from perversity?” 15. Mr. B. N. Sarma, learned counsel for the appellants has submitted that the impugned judgment of the learned Lower Appellate Court is not sustainable in law as the learned Lower Appellate Court had not discussed the evidence on record. It is submitted by him that the finding recorded by the learned Lower Appellate Court that the plaintiffs had proved their possession over the suit land is contrary to the pleadings of the plaintiffs as the plaintiffs themselves had stated in the plaint that they could not take possession of an area of land measuring 10’ X 12’, where a room of the defendant No. 1 was existing. He has also drawn attention of the Court to the evidence of the plaintiffs’ witnesses and the Court Witness examined as CW1. Learned counsel for the appellants has strenuously argued that the defendant No. 1 had the room, measuring 10’ X 12’, since last 40 years or so, from the time of his predecessor, and there was no dispute regarding the same with the vendor of the plaintiffs and, therefore, the defendant No. 1, being in continuous and uninterrupted possession, the suit is barred by the principles of law of limitation due to adverse possession, and in this connection, he has relied upon Section 55 of the Transfer of Property Act, 1882 (for short, ‘T.P. Act’). It is also contended by him that the suit is, even otherwise, barred under Section 58 of the Limitation Act, 1963. It is submitted by him that even if there is any shortcoming in the case of the defendants, the plaintiffs have to prove their case and they cannot get a decree merely because the defendants could not establish their case. In support of his submission, Mr. Sarma has placed reliance in the cases of Shri Satyendra Kumar Roy and Ors. It is submitted by him that even if there is any shortcoming in the case of the defendants, the plaintiffs have to prove their case and they cannot get a decree merely because the defendants could not establish their case. In support of his submission, Mr. Sarma has placed reliance in the cases of Shri Satyendra Kumar Roy and Ors. v. On the death of Ram Narayan Rabidas, his heirs Smt. Joymurti Rabidas and Ors., reported in (1990) 2 GLR (NOC) 5, Nilkanth Laxman Naik and Others v. Muktabai, reported in AIR 1936 Nagpur 166, Laxmishankar Harishankar Bhatt v. Yashram Vasta (dead) by L.Rs., reported in AIR 1993 SC 1587 , Phool Chand v. Amrit Lal, reported in AIR 1980 Punjab and Haryana 122, Nair Service Society Ltd. v. K.C. Alexander and Others, reported in AIR 1968 SC 1165 , and a judgment of this Court in Md. Mahim Ali and Ors. v. On the death of Ramakanta Barman, his legal heirs, Smt. Kunjalata Barman and Ors., rendered on 07.04.2016, in RSA 74/2006. 16. Mr. K. Sarma, learned counsel for the respondents/plaintiffs submits that defendant No. 1, against whom allegations are made regarding occupation of a portion of land of the plaintiffs, did not examine himself. He has submitted that plaintiff No. 1, in his evidence, clearly stated that possession was delivered with a straight eastern boundary along with a brick wall covering more or less 1/3rd of the eastern boundary. However, in the southern part of the eastern boundary, there was a room measuring 10’ X 12’ and the defendant No. 1 had assured on 13.06.89 that he would remove his part of the house within a short time. He has submitted that as there was no urgent necessity on the part of the plaintiffs for removal of the house and also because they wanted to keep good relationship with the defendants, the plaintiffs did not insist on prompt removal of the house. However, the defendants started boundary dispute in the year 1997. He has submitted that there is no cross-examination with regard to the deposition of the PW1 that the defendant No. 1 had assured to give vacant position and, not only that, the defendant No. 1 had deliberately withheld himself from being subjected to cross-examination by not tendering his evidence. However, the defendants started boundary dispute in the year 1997. He has submitted that there is no cross-examination with regard to the deposition of the PW1 that the defendant No. 1 had assured to give vacant position and, not only that, the defendant No. 1 had deliberately withheld himself from being subjected to cross-examination by not tendering his evidence. PW2 and PW3 also deposed similarly and they were also not cross-examined on this aspect of the matter. 17. Learned counsel for the respondents submits that though the judgment of the learned Lower Appellate Court is not very elaborate, it cannot be said that the judgment is perverse to the materials on record inasmuch as the evidence on record would justify the conclusions drawn by the learned Lower Appellate Court. Learned counsel has placed reliance on a judgment of this Court in the case of Sariar Ahmed v. State of Assam and Ors., reported in 2009 (1) GLT 324. 18. I have considered the submissions of the learned counsel for the parties and have examined the materials on record. 19. It must be pointed out, at the outset, as rightly submitted by Mr. K. Sarma, the judgment of the learned Lower Appellate Court is not exhaustive. However, the learned counsel for the parties have taken me through the evidence on record to answer the substantial question of law. 20. Though the learned counsel for the appellants has argued that the suit of the plaintiffs was barred under Article 58 of the Limitation Act, no issue was framed before the learned Trial Court and this point was never canvassed. Be that as it may, the suit was filed within a period of three years after the defendants raised boundary dispute, as stated in the plaint, in the year 1997 and, therefore, this plea is not tenable. The contention of the learned counsel for the appellants that the suit was otherwise barred by adverse possession is also not found to be worthy of acceptance inasmuch as even if it is assumed that defendant No. 1 and his predecessor was in possession of the land from the date of purchase in the year 1953, there was no pleading with regard to hostile possession. It must be borne in mind that the defendant No. 1 had not adduced any evidence himself and it is an established proposition of law that the party, pleading adverse possession, has to establish the same by adducing reliable and cogent evidence to sustain the plea of adverse possession. 21. Defendant No. 1 had purchased 2 Katha 3 Lecha of land and there is no dispute on the same. Similarly, the plaintiffs have also proved the sale deeds in question and the defendant No. 1 had not disputed the sale deeds executed in favour of the plaintiffs vide Exts.-4, 5 and 6. 22. The bone of contention is a house measuring 10’ X12’, which, admittedly, belongs to defendant No. 1. Section 55 of the T.P. Act lays down the rights and liabilities of buyers and sellers. Mr. B. N. Sarma, learned counsel for the appellants sought to contend that the seller was bound to disclose to the plaintiffs the defects in the property sold inasmuch as the defendant No. 1 was in possession and the recital of the sale deeds having disclosed that the possession of the land was delivered, it does not lie in the mouth of the plaintiffs to claim, at a later date, that possession in respect of some land could not be taken by them because of the existence of the house of the defendant No. 1. 23. It will be worth noting that the defendants in their written statement had stated that the plaintiffs had constructed a straight R.C.C. wall in between the land of the plaintiffs and the defendants up to the road on the south. If a straight wall was constructed, the house of the defendant No. 1, measuring 10’ X 12’, would be outside the wall and there would have been no dispute. Defendant No. 1 did not adduce any evidence to support his aforesaid stand. It is to be noted that the sale deed in connection with the disputed Schedule was executed on 13.06.89 and the evidence of PW1 is that on that very day, the defendant No. 1 had assured to remove his part of the house, which is occupying a part of the boundary in the eastern side of the plaintiffs’ land. It is to be noted that the sale deed in connection with the disputed Schedule was executed on 13.06.89 and the evidence of PW1 is that on that very day, the defendant No. 1 had assured to remove his part of the house, which is occupying a part of the boundary in the eastern side of the plaintiffs’ land. This part of the evidence of the plaintiffs has not been assailed and, therefore, absence of any recital indicating existence of a house in the suit land covered by Schedule-‘C’, in view of the assurance given by the defendant No. 1 to remove the same, will not be of any consequence as the parties were led to believe that the defendant No. 1 would vacate the land. 24. The learned Trial Court had considered the local inspection report while discussing Issue No. 6 and it noted that the boundary is not in a straight line and if a straight boundary is imagined, then a part of the defendant No. 1’s house will fall in the land of the plaintiffs. However, the issue was not taken further by the learned Trial Court as it had already held that the plaintiffs had no better title than the defendants on the disputed land. Perusal of the evidence of CW1 goes to show that the defendant No. 1 is in occupation of 9¼ Lecha of land in Dag No. 205, and 2 Katha 4½ Lecha in Dag No. 203, the total of which comes to 2 Katha 13¾ Lecha, more than the land purchased by the defendant No. 1, which is 2 Katha 13¾ Lecha is approximately about 108 square feet. The size of the disputed room, which is approximately 10’ X 12’ in area, measures 120 square feet. 25. In Sariar Ahmed (supra), this Court had stated that in a civil suit, the plaintiff would not be expected to prove his pleaded case beyond any reasonable doubt, but a high degree of probability of the pleaded case would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged. It is also true, as held in Md. It is also true, as held in Md. Mahim Ali (supra), the plaintiff can succeed only on the strength of its own case irrespective of the question as to whether the defendant has proved his case or not. 26. The case cited by Mr. B. N. Sarma, in Satyendra Kumar Roy (supra), does not help the case of the defendant No. 1 as it laid down the proposition that a person in possession has good title against a wrong doer, which is not the case herein. 27. Similarly, in Nair Service Society (supra), the Apex Court laid down that presumption of title from possession can arise only where facts disclose no title in any party. In the instant case, both the parties have proved their title in respect of land purchased by them and, therefore, this judgment is not attracted in the fact situation of the case. 28. In Phool Chand (supra), the person claiming to be the owner of the house under a will, could not prove that he was the owner of the house under will and, in such circumstances, it was held that the person, claiming occupation of the part of the house, was entitled to seek a declaration of possessory title against the whole world, except the true owner. 29. In Laxmishankar Harishankar (supra), the Apex Court had laid down that a suit cannot be dismissed for non-joinder of necessary parties on a vague plea. This decision goes against the defendants as, in the written statement, no averments were made as to who are the co-owners, who had not been made parties. Learned Trial Court non-suited the plaintiffs without there being any foundation to sustain the plea of non-joinder of necessary parties. 30. In Nilkanth Laxman (supra), the Apex Court held that the word ‘transfer’, in Section 53 of the T.P. Act, is wide enough to cover a surrender by a widow of her widow’s interest and, hence, a surrender deed of a widow, if made with an intent to defraud or delay the claims of her creditor is voidable under Section 53. The said case deals with a fraudulent transfer, which is not a plea taken in the present case. 31. In view of the above discussions, I find no merit in this appeal and the appeal is accordingly dismissed. Substantial question of law is answered against the appellants. No cost. 32. The said case deals with a fraudulent transfer, which is not a plea taken in the present case. 31. In view of the above discussions, I find no merit in this appeal and the appeal is accordingly dismissed. Substantial question of law is answered against the appellants. No cost. 32. Registry will send back the records.