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2015 DIGILAW 1258 (GAU)

Gohin Sonowal v. Kalpana Konwar

2015-09-30

SUMAN SHYAM

body2015
Judgment : Heard Ms. B. Sarma, learned counsel for the appellant. Also heard Mr. A.K. Dutta, learned counsel representing the respondent. This second appeal has been preferred against the judgment and decree of reversal dated 05-06-2006 passed by the leaned Civil Judge (Sr. Div.), Dibrugarh in Title Appeal No. 08/2005 which was admitted by this Court to be heard on the following substantial question of law: “Whether a suit for perpetual injunction is maintainable without prayer for declaration of right, title and interest and possession over the land involved in the suit?” 2. The plaintiff/ appellant had instituted Title Suit No. 29/2002 in the court of Civil Judge (Jr. Div.), Dibrugarh seeking a decree of perpetual injunction restraining the defendant and her engaged workers etc. from entering into or interfere with the peaceful possession of the plaintiff over the suit land measuring 2 kathas covered by Dag No. 151 of PP No. 47 situated at Nizkadomoni gaon, Dibrugarh Town Mouza, district- Dibrugarh more fully described in the schedule to the plaint. The plaintiff’s case is that he had purchased the suit land by means of a registered deed of sale from one Monorama Devi on 17-08-2000 pursuant where to he was put in possession in respect of the purchased land. The plaintiff’s name was duly mutated in respect of the suit land. While the plaintiff was in possession of the suit land, as aforesaid, on 31-03-2002, he had noticed that some construction materials had been stored over a part of the suit land by the defendant to which the plaintiff had raised objection and asked the defendant to remove the said materials from the suit land but she refused to do so. The defendant had no right to enter the suit land but notwithstanding the same she had illegally encroached the suit land by dumping construction materials, as a result of which the plaintiff was compelled to institute the suit seeking a decree of perpetual injunction. 3. On receipt of summons the defendant had appeared and contested the suit. The basic plea of the defendant is that the suit land formed a part of a larger area of land measuring 9B-2K-5L originally owned by the defendant. By means of a registered sale deed No. 1552/91, the defendant had sold the suit land to the vendor of the plaintiff i.e. Monorama Devi. The basic plea of the defendant is that the suit land formed a part of a larger area of land measuring 9B-2K-5L originally owned by the defendant. By means of a registered sale deed No. 1552/91, the defendant had sold the suit land to the vendor of the plaintiff i.e. Monorama Devi. However, later on while delivering possession, the vendor of the plaintiff could not delivered the possession of the entire 2 kathas of land to the plaintiff since the land measuring 1 katha was already under encroachment. After sale of the aforesaid land to Monorama Devi, the defendant had raised a boundary wall in the northern side of the land and hence, there cannot be any question of encroachment of the land of the plaintiff by the defendant. On the basis of such pleadings the defendant had prayed for dismissal of the suit. 4. Based on pleadings of the parties the lower Appellate Court had framed the following issues: 1. Whether the suit is maintainable in law as well as it facts? 2. Whether the suit is barred by the principles of waiver acquisance and estoppels. 3. Whether the plaintiff has right to sue? 4. Whether the suit is bad for non-joinder of necessary party? 5. Whether there is any cause of action? 6. Whether the plaintiff is entitled to relief as prayed for? 5. Both sides had examined the witnesses in support of their respective cases. 6. Upon appraisal of the evidence on record as well as on hearing the learned counsel for the parties, the learned Trial Court had decreed the suit filed by the plaintiff by making the following observation: “It is order that the suit is decreed on contest with no cost. 1. The plaintiff’s suit is allowed. The plaintiff’s possession over the suit is declared. 2. The defendant her relatives, agent on of her any worker are restraint permanently to enter into the suit land.” 7. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendant as appellant has preferred the aforementioned title appeal before the court of learned Civil Judge (Sr. The plaintiff’s possession over the suit is declared. 2. The defendant her relatives, agent on of her any worker are restraint permanently to enter into the suit land.” 7. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendant as appellant has preferred the aforementioned title appeal before the court of learned Civil Judge (Sr. Div.), Dibrugarh, inter alia, on the ground that by declaring the possession of the plaintiff over the suit land, the learned Trial Court had granted relief to the plaintiff in excess of what has been prayed for since the suit of the plaintiff was only for a decree of perpetual injunction. Upon hearing the learned counsel for the parties the learned lower Appellate Court had reversed the decree passed by the Trial Court by holding that the Trial Court had committed gross illegality by passing a decree of possession of the plaintiff whereas the only prayer in the suit was for perpetual injunction. 8. Being aggrieved and dissatisfied with the judgment and decree dated 05-06-2005 passed by the learned lower Appellate Court in Title Appeal No. 08/2005 the plaintiff as appellant had preferred the instant second appeal. 9. Ms. B. Sarma, learned counsel for the appellant submits that the defendant has not denied the fact that the plaintiff is the purchaser of the suit land from Monorama Devi. It is also not in dispute that the suit land was sold by the defendant to the plaintiff’s vendor viz. Monorama Devi. As such, there is no dispute regarding title of the plaintiff in the instant case. The only issue that has been raised by the defendant is that Monorama Devi could not deliver possession of the entire 2 kathas land to the plaintiff at the time of execution of the registered deed of sale and that the plaintiff could not prove and establish his possession by examining the Lat Mandal in terms of stand taken in the plaint. She submits that there is sufficient evidence available for the learned Trial Court to record a finding to the effect that the plaintiff was the owner-in-possession in respect of the suit land and as such, he was entitled to a decree of permanent injunction. 10. Ms. She submits that there is sufficient evidence available for the learned Trial Court to record a finding to the effect that the plaintiff was the owner-in-possession in respect of the suit land and as such, he was entitled to a decree of permanent injunction. 10. Ms. Sarma submits that the Trial Court had practically granted a decree of permanent injunction and no relief has been granted to the plaintiff beyond what has been prayed for in the plaint. Notwithstanding the same, the learned lower Appellate Court had reversed the decree passed by the Trial Court on an erroneous understanding of the judgment and decree passed by the Trial Court and without making any independent discussion of the issues based on evidence available on record. 11. Per contra, Mr. A.K. Dutta, learned counsel for the respondent submits that although the defendant has not questioned the title of the plaintiff insofar as the sale deed is concerned, yet, there was serious discrepancy in the description of the suit land given by the witnesses produced by the plaintiff. He, further, submits that in view of the pleaded stand taken by the defendant denying the claim of possession of the plaintiff over the entire suit land it was the duty of the plaintiff to establish his possession by examining the Lat Mandal which has apparently not been done in the instant case without any valid reason. As such, submits Mr. Dutta, there is no illegality or infirmity in the finding recorded by the lower Appellate Court. 12. I have considered the submission made by and on behalf of the parties and have also perused the materials available on record. A meticulous scrutiny of the judgment and decree passed by the lower Appellate Court goes to show that the decree of the Trial Court has been reversed by the lower Appellate Court on the sole ground that the Trial Court had granted relief in excess of what has been prayed for in the plaint. It has also been observed that in absence of a decree of declaration of right, title and interest and possession of the suit land, no relief of permanent injunction can be granted by the court. The observation made by the learned lower Appellate Court is quoted herein below for ready reference: “Thus, it appears that the present Title suit is not maintainable without declaration for right, title, interest and possession. The observation made by the learned lower Appellate Court is quoted herein below for ready reference: “Thus, it appears that the present Title suit is not maintainable without declaration for right, title, interest and possession. No relief on permanent injunction can be granted. Here, no relief is sought for declaration of right, title, interest and possession. Thus, it appears that the ld. Lower Court committed gross illegality by passing the decree for possession of the plaintiff while there is only prayer for perpetual injunction.” 13. Having regard to the facts and circumstances of the case, I am of the opinion that the view taken by the learned lower Appellate Court is not justified in the eye of law inasmuch the suit for a decree of permanent injunction simpliciter would be maintainable, if there is no dispute as regards the title of the person claiming to be in possession of the suit land. However, if the defendant disputes the title and possession of the plaintiff over the suit land then in that event the plaintiff would not succeed in getting a decree of permanent injunction in the absence of proof being furnished as regards the title and possession of the plaintiff over the suit land. In the instant case, it appears from the record that the lower Appellate Court has not recorded any independent finding as regards the issues on the basis of evidence available on record. By referring to the evidence adduced by the PW-1, 2, 3 and 4 the learned Trial Court had recorded categorical finding of fact that the plaintiff was put in possession in respect of the purchased land. The learned Trial Court has also disbelieved the evidence adduced by DW-2 holding the same as unreliable. However, the learned lower Appellate Court has not discussed the testimony of the aforesaid witnesses so as to record its own finding on the question of possession of the plaintiff over the suit land but on the contrary has gone on to reversed the decree passed by the Trial Court on a misconception of law that in absence of title no relief for permanent injunction can be granted. 14. In view of what has been discussed hereinbefore, the substantial question of law framed by this Court stands answered in favour of the appellant/ plaintiff and against the respondent/ defendant. 14. In view of what has been discussed hereinbefore, the substantial question of law framed by this Court stands answered in favour of the appellant/ plaintiff and against the respondent/ defendant. As such, the impugned judgment and decree passed by the learned lower Appellate Court is held to be unsustainable in the eye of law and hence, same is hereby set aside. However, since the lower Appellate Court has not recorded any independent finding on merit as regards the issues framed in the suit on the basis of assessment of the evidence available on record and having regard to the observation made by this Court in the forgoing paragraphs, I am of the considered opinion that the present is a fit case for remanding the matter to the First Appellate Court for the purpose of a fresh decision of the title appeal on the basis of evidence available on record. Accordingly, the matter stands remanded to the First Appellate Court for a fresh decision in the Title Appeal No. 08/2005 on its merit without being influenced by any finding and observation recorded by this Court. The parties would appear before the lower Appellate Court on 16-11-2015 for further hearing in the matter. Since this order is being passed in presence of both parties, no further notice is required to be issued in the appeal by the lower Appellate Court. Office to transmit the LCR at the earliest. There would be no order as to cost. With the above observation this second appeal stands disposed of.