Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1389 (GAU)

Prafulla Kr. Das v. Jaganath Mahaprabhu Ashram

2015-11-05

SUMAN SHYAM

body2015
JUDGMENT : Heard Mr. N. Dhar, learned counsel for the appellants. Also heard Mr. S.P. Choudhury, learned counsel representing the respondents. This second appeal arises out of judgment and decree dated 20-05-2005 passed by the learned Civil Judge (Sr. Div.), Karimganj in Title Appeal No. 98/2002 dismissing the appeal preferred by the appellants/defendants assailing the judgment and decree dated 02-08-2002 passed by the court of learned Civil Judge (Jr. Div.) No. 2, Karimganj in Title Suit No. 203/1997 decreeing the suit filed by the plaintiff. 2. The basic dispute involved in this proceeding revolves around the question of ownership and possession in respect of a pond covered by Dag No. 337 covered under Khatian No. 2 pertaining to P.S. Estate Taluk No. 15002/313 Maluk Chand Revenue, village Merera, Part- II, more fully described in schedule- II in the plaint. The claim of the plaintiffs is that by means of a Khatian the rights in respect of the schedule-II land and pond has been settled with the plaintiff No. 2 deity and accordingly the said pond has been under regular use by all Hindu people of Merera village including the devotees of Sree Sree Jagannath Mahaprabhu Bigraha. However, the contesting defendants are trying to illegally dispossessed the plaintiff from the land described in schedule-I and II in the plaint although they have in no manner right, title and interest in respect of the said plots of land. The plaintiffs had, therefore, instituted the suit praying for a decree for declaration of land holder right of the plaintiff No. 2 in respect of the properties described in schedule- I and II to the plaint; for a declaration that defendants have got no right, title and interest or possession over the land described in schedule-I and II; for a decree of permanent injunction and for other consequential reliefs. 3. The defendants contested the suit by questioning the maintainability of the same on several grounds including the question of locus standi of the plaintiffs to maintain the suit and also on the ground that the suit was barred by law of limitation. The claim of the contesting defendants/ appellants is that schedule- II land forms part of the properties acquired by the predecessor-in-interest of the defendant No. 1, namely, viz. Binoy Krishna Das who had purchased the same by means of two registered deeds of sale from the registered owner in the year 1963. The claim of the contesting defendants/ appellants is that schedule- II land forms part of the properties acquired by the predecessor-in-interest of the defendant No. 1, namely, viz. Binoy Krishna Das who had purchased the same by means of two registered deeds of sale from the registered owner in the year 1963. Since then, the defendant No. 1 and 2 have been in continuous physical possession in respect of the southern portion of the pond described in schedule- II of the land whereas the northern portion of the land has been allowed to be used by the Akhrah setup for worshiping the plaintiff No. 2 deity. 4. The case of the defendants is that the land covered by Dag No. 337 stands in the name of the defendant and as such the Final Khatian issued in favour of the plaintiff No. 2 in derogation of the registered deed of sale dated 09-01-1963 by means of which the father of the defendant No. 1 had purchased the said plot of land is illegal. The defendants have also made counter claim praying for declaration of their land holder right and possession in respect of half portion of the second schedule land; for permanent injunction and for other consequential reliefs. 5. Mr. N. Dhar, learned counsel appearing for the appellant submits that the appellants do not have any claim over any part of the schedule-I land and to that extent they are not aggrieved by the judgment and decree passed by the court below. However, insofar as the southern portion of the schedule-II pond is concerned, there is no justifiable ground for the lower Appellate Court to declare the title of the plaintiffs over the entire second schedule land by ignoring title document produced by the defendant in the form of Exhibit-‘A’ and ‘B’. He, further submits that nowhere in the judgment has the learned lower Appellate Court recorded any finding so as to indicate as to in what manner and from whom have the plaintiffs acquired the right in respect of the schedule-II land based on the khatian Exhibit-3. 6. Mr. S.P. Choudhury, learned counsel for the respondent on the other hand submits that the learned court below have recorded concurrent finding of fact based on materials on record in favour of the plaintiff thereby decreeing the suit. 6. Mr. S.P. Choudhury, learned counsel for the respondent on the other hand submits that the learned court below have recorded concurrent finding of fact based on materials on record in favour of the plaintiff thereby decreeing the suit. The appellants have failed to urge any substantial question of law that arises in the facts and circumstances of the case. As such the appeal deserves to be dismissed. 7. I have considered the submissions made by and on behalf of the parties. From the materials available on record as well as from the submission made by the learned counsels for the parties, it appears that both the parties would be satisfied if they are allowed free access and usage of the pond included in the schedule- II property. It is a part of the record that the disputed pond had been excavated many years back for religious and charitable purpose for the utility of the religious Hindu people. The observation made by the learned Trial Court in this regard is quoted herein below for ready reference: “Admittedly the predecessor of the Mirasdars of the father of D.W.1 excavated the suit pond long ago. D.W.3 has also stated that the suit pond was excavated for the water facilities of the people of village Marera. Therefore, from the contents of the pleadings of the defendants and the oral evidence of D.W.3, I came to the conclusion that the pond over the suit Dag No. 337 was excavated by predecessor of D.W.3 long back about more than 80 years for the use of water by the Hindu people of village Marera. Therefore, it can be reasonable presumed beyond all reasonable doubts that the predecessors of D.W.3 dedicated the suit pond for religious and Charitable purpose and for utility of local Hindu people long ago. Therefore, the suit land once dedicated by the predecessor of D.W.3 for religious and charitable purpose cannot be subsequently sold by executants of Exhibit-A and B. Admittedly the suit pond and the Akhra are situated contiguous to each other and the Akhra is more than one hundred years old. Therefore, local Hindu people of village Marera and people coming to the Akhra uncouthly had been using water of the suit pond un-interruptedly for more than fifty years at least. Hence, they have acquired an easemantary right of use of the pond.” 8. Therefore, local Hindu people of village Marera and people coming to the Akhra uncouthly had been using water of the suit pond un-interruptedly for more than fifty years at least. Hence, they have acquired an easemantary right of use of the pond.” 8. Since the pond is meant for the benefit of all the people of the locality, therefore, regardless of the question of ownership and title of the land involved in the schedule- II land, there cannot be any justification for preventing any person of the locality from free access and usage of the pond. Mr. S.P. Choudhury, learned counsel for the respondents submits that his clients would have no objection if the appellants want free access and usage of the water in the pond without claiming title in respect of the schedule- II land. Mr. N. Dhar, learned counsel for the appellants submits that his clients would also be satisfied if they are permitted free access and usage of the pond. 9. In view of the above submissions made by the learned counsels for the parties the contentious issue leading to the substantial questions of law urged in the second appeal need not be gone into by this Court as the second appeal can be disposed of by an order passed on the consent of both the parties. It is, therefore, provided that without commenting on the merit of the judgment and decree under appeal and without going into the question of validity of title of either party over the schedule- II land and/or the pond standing thereon, this second appeal is disposed of with a direction providing unhindered access to the appellants/defendant No. 1 and 2 to the pond in question, only for the purpose of day to day usage along with the other people of the aforesaid locality including the devotees of the Akhrah. The decree passed by the court below shall stand modified in terms of this order. Prepare a decree accordingly. No order as to cost. Office to send back the LCR.