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2015 DIGILAW 1185 (GAU)

NARAYAN ROY v. TUWARI RAJDHAR

2015-09-16

A.K.GOSWAMI

body2015
JUDGMENT : 1. Heard Mr. J. Roy, learned counsel for the appellant. None has appeared for the respondents. 2. This appeal by the plaintiff is preferred against the judgment and decree dated 20.04.2004 passed by the learned Civil Judge, Senior Division, Darrang, Mangaldoi, in Title Appeal No. 3/2003, dismissing the appeal and affirming the judgment and decree dated 16.12.2002, passed by the learned Civil Judge, Junior Division, Udalguri, in Title Suit No. 15/1996, whereby the suit of the plaintiff was dismissed. 3. By an order dated 12.08.2005, the Second Appeal was admitted to be heard on the following substantial questions of law: “1. Whether the findings of the Courts below that there can be no question of possession over the suit land by the appellant in the absence of a registered sale deed can at all stand the scrutiny of law in view of the application of provisions of Section 110 of the Evidence Act in the facts and circumstances of the case? 2. Whether the issue as regards interest and possession over “Tezu Bahi” land can legally be decided on the basis of the absence of existence of a registered sale deed?” 4. The plaintiff filed the suit for declaration of right, title, interest and possessory title over a plot of land, covered by Dag No. 417, 418 and 419 of T.B. No. 83. The case projected in the plaint was that Harilal Rajbhar, who was in possession of the land and who is the husband of defendant No. 1, sold his possessory right by an unregistered sale deed in consideration of an amount of Rs. 23, 916/- and delivered possession of the same to the plaintiff and left for Bihar. On 18.06.1996, defendant No. 1 and some others sought to dispossess the plaintiff. 5. The defendants filed written statement stating that Harilal Rajbhar was a mentally unsound person who had also been admitted in Tezpur Mental Hospital for treatment. He went missing and police was, accordingly, informed and, after such disappearance of Harilal Rajbhar, the plaintiff, along with some others, demanded the defendant No. 1 on 09.06.1996 to vacate the land described in the suit. However, despite threat of dire consequences, the defendants did not vacate their possession. It is stated that the suit land was never sold out and possession was also never given to the plaintiff. However, despite threat of dire consequences, the defendants did not vacate their possession. It is stated that the suit land was never sold out and possession was also never given to the plaintiff. But, taking advantage of the helpless condition of the defendant No. 1, the plaintiff wants to take the land in her possession. 6. In support of their respective contentions, the plaintiff had examined 5 witnesses and the defendants examined 6 witnesses. None of the parties exhibited any document. 7. At the hearing, Mr. Roy, learned counsel for the appellant has submitted that he will not be urging the substantial question of law No. 2. It is submitted by him that the plaintiff was in possession of the land and, therefore, it is not necessary that he must be in possession only on execution of the registered sale deed. In tune with the substantial question of law No. 1, he submits that Section 110 of the Evidence Act takes care of the case of the appellant and the learned Courts below have failed to consider this aspect of the matter and, therefore, the appeal deserves to be allowed. 8. Both the courts below have held that the plaintiff failed to prove sale of the suit land and consequent delivery of possession. Learned Lower Appellate Court held that transfer of tangible immovable property of the value of Rs. 100/- and above can only be made by a registered document in terms of Section 54 of Transfer of Property Act, 1882. The learned Lower Appellate Court also held that the suit land was all along under the possession of the defendants. 9. Section 110 of the Evidence Act provides that when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. In the instant case, the applicability of Section 110 does not arise inasmuch as the defendants were held to be in possession. The plaintiff’s claim of purchase was also rejected by the learned Courts below. 10. In view of the above discussion, I find no merit in this appeal. Accordingly, the appeal is dismissed. Substantial question of law No. 1 is answered as above. No cost. 11. Registry will send back the records.