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2015 DIGILAW 1187 (GAU)

Paramjit Singh v. Ramakanta Chakraborty

2015-09-16

A.K.GOSWAMI

body2015
JUDGMENT Heard Mr. P.P. Baruah, learned counsel for the appellant. None appears for the respondent. 2. Defendant No.1 in the suit has preferred this appeal against the judgment and decree dated 30.09.2004 passed by the learned Civil Judge (Sr. Divn.), Hailakandi, in Title Appeal No.21/2004, partly modifying the judgment and decree dated 26.03.2004 passed by the learned Civil Judge (Jr. Divn.) No.1, Hailakandi, in Title Suit No.40/1999. 3. The other defendants including defendant No.4, to whom some land was sold by the defendant No.1, have not preferred this appeal, though they were all appellants before the learned lower Appellate Court. 4. The second appeal was admitted to be heard by an order dated 06.06.2005 on the following substantial question of law: “Whether the learned courts below erred in law in decreeing the suit of the respondents/plaintiffs in respect of land contained in sale deed (Ext-1) though different from the suit land.” 5. The case projected in the plaint, shorn in details, is that one Sardar Chandra Singh was owner in respect of a vast area of land measuring 142 Bigha 19 Katha 13 Lecha covered by various dags as indicated in detail in paragraph 2 of the plaint. On his death, his properties were inherited by his legal representatives including Renuka Devi, his wife; Lakshmi Devi, his daughter and Mansa Singh, his son and who is the father of the defendant No.1. The properties were mutually partitioned and Renuka Devi and Lakshmi Devi sold 8 Katha of land out of an area of 4 Bigha 4 Katha of land of Dag No.15 of Patta No.7, which was part of land falling in their share, to one Srikanta Chakraborty by executing a registered deed No.7219 dated 27.12.1978 and delivered possession. Srikanta Chakraborty was in possession of the land and he sold to the plaintiff, by a registered deed No.4062 dated 17.11.1987, 8 Katha of land described in schedule to the plaint and delivered possession. Repeated attempts were made by the defendant No.1 to dispossess the plaintiff and on 08.06.1998, he dispossessed the plaintiff from an area where there was a dilapidated structure. Later on, on 15.03.1999, the defendant No.1 along with others including the defendant No.3 dispossessed the plaintiff. 6. Two written statements were filed, one by the defendant Nos.1,2 and 3 and the other by defendant No.4. Later on, on 15.03.1999, the defendant No.1 along with others including the defendant No.3 dispossessed the plaintiff. 6. Two written statements were filed, one by the defendant Nos.1,2 and 3 and the other by defendant No.4. In the written statement filed by defendant Nos.1,2 and 3, apart from other pleas, a plea regarding suit being barred by the principles of res judicata was taken. It was pleaded that father of the defendant No.1, Mansa Singh had filed a title suit being Title Suit No.69/1985 against Srikanta Chakrabroty, the vendor of the plaintiff, for his eviction along with other reliefs from a plot of land measuring 13 Katha lying to the contiguous east of the present suit land. It is pleaded that in the said title suit, the present plaintiff ought to have impleaded himself as defendant, but instead of doing so, he filed a separate suit. It is also mentioned that the plot of land purchased by sale deed dated 17.11.1987, which was registered on 19.11.1987, is not relatable to the suit land. It was also stated that father of defendant No.1 was the owner of the suit land and one Jamir Uddin was his tenant and defendant No.1, on 13.06.1975, by a registered deed, purchased the tenancy right and entered into possession and later on, on the death of his father, he became the owner by inheritance. He had a workshop for fabricating iron grills and the defendant Nos.2 and 3 were residing there as his tenants. In the additional written statement filed by the defendant No.1, it was pleaded that sale deeds executed by him in favour of defendant No.2 and defendant No.4 is not part of the suit land. The defendant No.4, in her written statement, had stated that the land purchased by her, Harkesh Tiwari and Lakhi Singh from defendant No.1 is not part of the suit land. 7. Issue No.2 framed by the learned Trial Court was as to whether the suit was barred by principles of res judicata. Issue No.3 was relating to whether the plaintiff has got any right, title and interest over the suit land and if so, whether he is entitled to get a decree for recovery of khas possession of the same. 8. Two witnesses were examined by the plaintiff and 4(four) witnesses on behalf of the defendants. 9. Issue No.3 was relating to whether the plaintiff has got any right, title and interest over the suit land and if so, whether he is entitled to get a decree for recovery of khas possession of the same. 8. Two witnesses were examined by the plaintiff and 4(four) witnesses on behalf of the defendants. 9. At the stage, it will be relevant to note that Title Suit No.69/1985 was dismissed. So also the first appeal preferred by the predecessor-in-interest of defendant No.1 along with others. The second appeal, being S.A. No.43/1997, was also dismissed by this Court by an order dated 01.03.2004. 10. The learned Trial Court, on consideration of the materials available on record, held that present suit was completely different and issues arising in the suit was not directly and substantially in issue in the earlier suit and therefore, the present suit is not barred by the principles of res judicata. 11. The learned Trial Court held that land of Ext-1 by which the vendor of the plaintiff Srikanta Chakraborty had purchased the land is not same land as shown in Ext-B, by which the vendor of the plaintiff Srikanta Chakraborty had purchased jote right. The learned Trial Court negated the plea put forward by the defendant No.1 that he had purchased jote right of the land from his own tenant. Accordingly, the learned Trial Court held that the plot of land sold by Renuka Devi and Lakshmi Devi to Srikanta Chakraborty was the land in their possession which is distinct and separate from the land over which Srikanta Chakraborty had jote right. The learned Trial Court also held that defendant No.1 could not prove that Harkesh Tiwari and Kashinath Tiwari had saleable interest to the extent of 8 Katha which was sold to the defendant No.1 vide sale deeds, Ext-C and Ext-F. Accordingly, the learned Trial Court decreed the suit of the plaintiff. 12. DW-1 in his evidence had stated that he had sold some plots of land to Kumkum Sarkar, Lakhi and Harkesh Tiwari, which were outside the suit land. 13. The learned lower Appellate Court had dismissed the appeal with some modification of the decree passed by the learned Trial Court. 12. DW-1 in his evidence had stated that he had sold some plots of land to Kumkum Sarkar, Lakhi and Harkesh Tiwari, which were outside the suit land. 13. The learned lower Appellate Court had dismissed the appeal with some modification of the decree passed by the learned Trial Court. It was held by the learned lower Appellate Court that the plaintiff would be entitled to a decree in respect of 8 Katha of land within the specified boundary of Ext-1 by which Srikanta Chakraborty had purchased the land from Renuka Devi and Lakshmi Devi. 14. Mr. P.P. Baruah, learned counsel for the appellant has submitted that the learned lower Appellate Court traversed beyond the pleading and the prayers made in the plaint and therefore, the impugned judgment and decree is not sustainable in law. It is submitted that though the name of Srikanta Chakraborty was referred to as pro forma respondent No.4, in the amended plaint his name did not figure in the cause-title. The learned counsel argues that plaintiff has to succeed on the basis of case projected and when the plaintiff had miserably failed to prove that he had right, title and interest in respect of the suit land as given in the schedule to the plaint, logically, suit ought to have been dismissed. It is submitted that the plaintiff had deliberately given wrong schedule in the plaint so as to encroach the land of the defendants. The plaintiff having failed to prove his case as projected, the second appeal deserves to be allowed, he submits. 15. I have considered the submission of Mr. Baruah and have perused the materials on record. 16. It is an admitted position that execution of Ext-1, or for that matter, Ext-2 was not challenged by the defendant No.1. In absence of any challenge thereto, it is only logical to hold that by virtue of execution of sale deed, Ext-1, the purchaser, namely, Srikanta Chakraborty derived right, title and interest in respect of 8 Katha of land within the specified boundary as contained in Ext-1. The case of the plaintiff is that he purchased 8 Katha of land from Srikanta Chakraborty vide Ext-2 dated 19.11.1987. In Ext-2, it was recited that the land sold by the said sale deed is his purchased land. Plaintiff’s case is that he was dispossessed by the defendants from the land purchased by him. 17. The case of the plaintiff is that he purchased 8 Katha of land from Srikanta Chakraborty vide Ext-2 dated 19.11.1987. In Ext-2, it was recited that the land sold by the said sale deed is his purchased land. Plaintiff’s case is that he was dispossessed by the defendants from the land purchased by him. 17. In Ext-1, the boundary was shown as follows: North - Mansa Singh South - P.W.D. Road East - Bishnu Pada Roy West - Paramjit Singh 18. In Ext-2, boundary of the land sold was shown as - North - Paramjit Singh South - P.W.D. Road East - Own land under Jote right West - Paramjit Singh 19. In the schedule to the plaint, the plaintiff had given a boundary, which is as follows: North - Paramjit Singh (presently, residence of Paresh Ghosh) South - P.W.D. Road East - Jote land of Srikanta Chakraborty West - Paramjit Singh (presently residence of Harkesh Tiwari and road leading to Sardar Chanda Singh Memorial School) 20. The learned lower Appellate Court found that there was no explanation by the plaintiff about the change of boundary in the suit land and also on Ext-2. The learned Trial Court, on the evidence on PW-1, corroborated by the evidence of PW-2, held that the plaintiff was in possession of the purchased land from where he was dispossessed. The learned lower Appellate Court had also, on independent appraisal, observed that suit land was a plot independent of the suit land of Title Suit No.69/1985. 21. Purchase of 8 Katha land by the plaintiff vide Ext-2 is not in doubt. But the learned lower Appellate Court, in view of the discrepancy of the boundary, more particularly, on the eastern side, held that plaintiff will be entitled to have right, title and interest of 8 Katha of land in terms of the boundary as indicated in Ext-1. 22. Plaintiff cannot be denied the relief when his vendor had saleable right within the specified boundary by which the vendor had purchased land. 22. Plaintiff cannot be denied the relief when his vendor had saleable right within the specified boundary by which the vendor had purchased land. Therefore, when the plaintiff was found to be dispossessed from his purchased land, no illegality was committed by the learned lower Appellate Court in moulding the relief by confining his right, title and interest in respect of 8 Katha of land within the specified boundary of Ext-1, the sale deed of the vendor of the plaintiff and not as per boundary given in the schedule of the plaint. 23. In that view of the matter, I do not find any good ground to interfere with the judgment of the learned lower Appellate Court. The plaintiff, as observed by the learned lower Appellate Court, will be entitled to a decree in respect of 8 Katha of land within the specified boundary of Ext-1 and not as per the boundary given in the schedule to the plaint. Substantial question of law is answered in terms of the above. The appeal stands dismissed with the above observations. No cost. 24. Registry will send back records.