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2015 DIGILAW 1398 (GAU)

Abdul Jalil v. Abdur Rahman

2015-11-06

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. A.R. Sikdar, learned counsel for the appellant. Also heard Mr. M.A. Sheikh, learned counsel for the respondent Nos. 1, 2 and 3. 2. This appeal is preferred by the plaintiff against the judgment and decree dated 11.2.2011 passed by the learned Additional District Judge, (FTC), Barpeta in Title Appeal No. 14/2005 dismissing the appeal and affirming the judgment and decree dated 6.10.2005 passed by the learned Civil Judge (Senior Division) Barpeta, in Title Suit No. 7/2002, whereby the suit of the plaintiff was dismissed and the counter-claim of the defendant Nos. 1, 2 and 3 was decreed. 3. The appeal was admitted to be heard by an order dated 18.1.2012 on the following substantial question of law:- “1. Whether the learned courts below are justified in dismissing the suit of the plaintiff as barred by time, in view of Article 64 of the Schedule of the Limitation Act, the suit of the plaintiff being the suit for declaration of right, title and interest and possession based on title and being governed by Article 65 of the Schedule to the Limitation Act?” 4. Today after hearing the learned counsel for the parties, one more substantial question of law is formulated to the following effect:- “2. Whether the finding recorded by the learned courts below that the plaintiff dispossessed the defendant Nos. 1, 2 and 3 is perverse to the materials on record.” 5. Though one more substantial question of law is formulated today, the learned counsel for the parties submit that they are ready with the case and are prepared to argue the case today itself and that they will not seek any adjournment and accordingly, on that basis hearing has continued. 6. The case of the plaintiff, as projected in the plaint, is that he had purchased Schedule B land measuring 3 katha 8 lecha out of Schedule A land measuring 5 bigha 4 katha 8 lecha in the year 1965 and his name was also mutated on 1.3.1966. While he was so in possession, defendants threatened to dispossess him on 21.3.2002 and on the basis of the said threat of dispossession, the suit was filed by the plaintiff praying for right, title, interest and confirmation of possession over the Schedule B land; partition of the plaintiff’s share of the suit land out of Schedule A land; permanent injunction etc. 7. The defendant Nos. 7. The defendant Nos. 1, 2 and 3 filed a written statement and a counter-claim. Besides taking various legal pleas such as no cause of action, non-maintainability of the suit etc., it is pleaded that the plaintiff, principal defendant Nos. 1, 2 and 3 and the profroma defendants are the pattadars of Schedule A land. The plaintiff and one Naimuddin had purchased 1 bigha 1 katha 16 lecha of land in equal share with specific boundary and on the basis of such purchase, mutation was granted to plaintiff and Naimuddin on 1.3.1966 by an order passed by the Sub Deputy Collector. The plaintiff was in possession of 3 katha 8 lecha in the eastern part and Naimuddin was in possession of 3 katha 8 lecha in the western part. The plaintiff had another plot of land in a separate Dag to the west of the land measuring 1 bigha 1 katha 16 lecha of land. On the death of Naimuddin, by an order dated 2.1.1977 passed by the Sub Deputy Collector, the names of five sons of Naimuddin including that of Abed Ali and Sabed Ali were mutated in respect of 3 katha 8 lecha of land. Subsequently, Abed Ali and Sabed Ali executed two registered sale deeds, being sale deed Nos. 3144/83 and 3145/83 dated 13.3.1984, each conveying 15 lecha, totaling 1 katha 10 lecha, to the defendants and delivered possession. The defendants also got their names mutated on 28.2.1987. There were valuable trees over the land purchased by the defendants, who resided 9 kilometers away from the disputed land and taking advantage of the same, the plaintiff forcibly entered into the said 1 katha 10 lecha of land on 19.3.2002, removed some valuable trees and constructed a temporary challi thereby dispossessing the defendants illegally. It is averred that the land measuring 3 katha 8 lecha as claimed by the plaintiff is still in his possession and the boundary given in the Schedule do not relate to the land purchased by the plaintiff. Accordingly, the counter-claim was filed praying for, amongst others, separate patta over the suit land in favour of the defendant and for khas possession by evicting the plaintiff from Schedule A land as described in the counter-claim measuring 1 katha 10 lecha. 8. Accordingly, the counter-claim was filed praying for, amongst others, separate patta over the suit land in favour of the defendant and for khas possession by evicting the plaintiff from Schedule A land as described in the counter-claim measuring 1 katha 10 lecha. 8. A written statement was filed by the plaintiff against the counter-claim praying for dismissal of the same and to treat the averments made in the plaint as written statement to the counter-claim. 9. On the basis of the pleadings, the following issues were framed:- “1) Whether the suit is maintainable in the present form? 2) Whether the suit is barred by limitation? 3) Whether the plaintiff got mutation of suit land and the defendants threatened the plaintiff to dispossess plaintiff from the suit land on 21.3.2002? 4) Whether the defendants purchased 1k-10Ls of land from Abed Ali and Sabed Ali, s/o Late Naimuddin by registered Deed Nos. 3145/83 and 3144/83 dated 13.3.1984 and took possession of the suit land and plaintiff has dispossessed the defendants from the said land on 19.3.2002? 5) Whether the plaintiff is entitled to get decree? 6) Whether the defendants are entitled to get decree in respect of their counter-claim? 7) To what relief/reliefs the parties are entitled?” 10. Both the sides examined four witnesses each. 11. The learned trial court held the suit to be maintainable and that the same was not barred by limitation. It was also held that the plaintiff had got mutation over 3 katha 8 lecha of land but recorded a finding that plaintiff failed to prove the threat of dispossession by the defendants on 21.3.2002. Issue No. 4 was decided by holding that the defendants validly purchased 1 katha 10 lecha of land on the strength of Ext. Kha and Gha, which were not challenged by the plaintiff and that the plaintiff had dispossessed the defendants from the suit land on 19.3.2002. As the plaintiff failed to prove threat of dispossession, the learned trial court held that the plaintiff is not entitled to any decree and as it was found by the learned trial court that the plaintiff dispossessed the defendants, the counter-claim was decreed. 12. The learned lower appellate court, however, recorded the finding that as per Article 64 of the Limitation Act, 1963 the suit of the plaintiff is barred by limitation. 12. The learned lower appellate court, however, recorded the finding that as per Article 64 of the Limitation Act, 1963 the suit of the plaintiff is barred by limitation. The learned lower appellate court reversed the finding of the learned trial court by holding that the defendants threatened the plaintiff to dispossess him from the suit land on 21.3.2002. The learned lower appellate court concurred with the finding of the learned trial court regarding dispossession of the defendants by the plaintiff and accordingly, dismissed the appeal. 13. Mr. Sikdar, learned counsel for the appellant has submitted that the learned trial court had dismissed the suit of the plaintiff on the ground that the plaintiff had failed to prove threat of dispossession, which finding was set aside by the learned lower appellate court. It is submitted by him that the learned lower appellate court thoroughly misconstrued the case of the plaintiff and on a wrong notion of facts, held that Article 64 of the Limitation Act, 1963 applies in the instant case and that the suit is barred by limitation as the suit was filed after 18 years of purchase of the land by the defendants on 13.3.1984. He has submitted that the plaintiff has not claimed the land of the defendants in Schedule A of the counter-claim and threat of dispossession was in respect of the Schedule B of the plaint and therefore, finding of the learned lower appellate court regarding the suit being barred by limitation is perverse. 14. With regard to the second substantial question of law formulated today, the learned counsel submits that the defendants were not clear with regard to the identity of the suit land. The boundary described by DW 2 and DW 4 is totally different from the Schedule A land of the counter-claim and therefore, the defendant failed to prove their case of dispossession and the learned courts below failed to consider this aspect of the matter and as such the impugned judgments of the learned courts below regarding the finding that the plaintiff dispossessed the defendants is not tenable in law and the same is occasioned by perverse appreciation of evidence on record. 15. Mr. M.A. Sheikh, learned counsel for the respondent Nos. 15. Mr. M.A. Sheikh, learned counsel for the respondent Nos. 1, 2 and 3, in his usual fairness, has submitted that the learned lower appellate court was not correct in holding the suit of the plaintiff to be barred by limitation by application of Article 64 of the Limitation Act. He submits that the plaintiff had purchased, along with Naimuddin, 1 bigha 1 katha 16 lecha of land and therefore, the plaintiff has got right, title and interest in respect of 3 katha 8 lecha of land but it is contended by him that the boundary given in Schedule B of the plaint is not correct and by giving that boundary, the land of the defendants is sought to be encroached. He has submitted that it is borne out from record that plaintiff had taken eastern side of 1 bigha 1 katha 16 lecha measuring 3 katha 8 lecha and Naimuddin had taken his share of 3 katha 8 lecha in the western part. The plaintiff has separate land covered by separate Dag in the western boundary of the land of Naimuddin and to fortify the submission, the learned counsel has drawn the attention of the court to the sale deeds, Ext. Kha and Ext. Gha executed in favour of the defendants wherein the western boundary man was shown as Abdul Jalil, the plaintiff. When the aforesaid sale deeds are not in dispute, the boundary given in Schedule B showing plaintiff himself in the western side is wholly incorrect and the same is deliberately made to illegally occupy the property of the defendants. Therefore, the plaintiff is not entitled to a decree in respect of the land with the boundary as described in Schedule B of the plaint, he submits. It is further submitted by him, by relying upon Ext. Gha, an enquiry report submitted by Circle Officer, Barpeta dated 10.4.2002, that the plaintiff’s land measuring 68 lecha (3 katha 8 lecha) is in possession of his brothers, namely, Badaruddin and four others and on 19.3.2002 Abdul Jalil and his sons forcibly entered the land of Mofizuddin, i.e. defendant No. 3, meaning thereby the land of defendants. He has further submitted that it is not correct, as contended by Mr. He has further submitted that it is not correct, as contended by Mr. Sikdar, that the boundary described by DW 2 and DW 4 is different from Schedule A land as described in the counter-claim and therefore, there is no merit in the submissions of Mr. Sikdar. Accordingly, he submits that there is no merit in this appeal and the same is liable to be dismissed. 16. I have considered the submissions of the learned counsel for the parties and perused the materials on record. 17. With regard to substantial question of law No. 1, no elaborate discussion is required as Mr. Sheikh has submitted that the learned lower appellate court was not correct in holding the suit of the plaintiff to be barred by limitation. Suffice it to say that the plaintiff had filed the suit in connection with the land purchased by him and not the land purchased by the defendants on 13.3.1984. Proximate cause for filing the suit was stated to be alleged threat of dispossession on 21.3.2002 and therefore, obviously the finding recorded by the learned lower appellate court that the suit is barred by limitation for being filed after 18 years from the date of purchase by the defendants is entirely misconceived. Accordingly, substantial question of law No. 1 is answered in favour of the appellant. 18. DW 2 had described the boundary of 1 katha 10 lecha of land of the defendants as – North-Jasmat Ali, South- Kayakuchi bazaar, East- Abul Hasem and West- Abdul Jalil. DW 4 also stated the boundary of the land of defendants as - North-Jasmat Ali, South- Kayakuchi bazaar, East- Abul Hasem and West- Abdul Jalil. Such description of the land is same as given in Schedule A of the counter-claim. DW 2 in his cross-examination had stated that Hatem is in the North. But Hatem is none other than son of Jasmat Ali and therefore, there is no contradiction in the evidence of DW 2. DW 4 in his cross-examination had stated that in the North there is land of Abdul Jalil but it is also not the case of the plaintiff that in the northern side, there is his land. DW 4 in his cross-examination had also stated that in the east, there is land of Mazibur Mullah. DW 4 in his cross-examination had stated that in the North there is land of Abdul Jalil but it is also not the case of the plaintiff that in the northern side, there is his land. DW 4 in his cross-examination had also stated that in the east, there is land of Mazibur Mullah. Mazibur Mullah is the father of Abul Hasem who is the proforma defendant No. 15 and who was stated to be in the eastern side in Schedule A. In that view of the matter, it cannot be said that defendants failed to prove the identity of the suit land and as such failed to prove their case of dispossession. The finding in Ext. Gha that the plaintiff forcibly entered the land of the defendants was also not assailed by the plaintiff and therefore, it is not a case that a finding that the plaintiff dispossessed the defendants from Schedule A land had been recorded without there being any evidence on record. 19. It is to be noted that in the plaint, the plaintiff had not disclosed that 1 bigha 1 katha 16 lecha in the suit dag and patta was purchased by him along with Naimuddin and this fact was only brought out by the defendants in their written statement and it was accepted by the plaintiff in his evidence also. By Ext. 5, Naimuddin and Abdul Jalil (plaintiff) had purchased in total 1 bigha 1 katha 16 lecha. It is only later on, the evidence on record had disclosed, that both the plaintiff and Naimuddin had taken 3 katha 8 lecha each. In other words, the purchased property was divided in equal share. This fact was not disclosed in the plaint though Schedule B of the plaint refers to 3 katha 8 lecha of land. Evidence of DW 1 shows that 1 bigha 1 katha 16 lecha was divided by Abdul Jalil and Naimuddin and 3 katha 8 lecha was taken by the plaintiff in the eastern side and Naimuddin had taken his share of 3 katha 8 lecha on the western side. It has also come out from his evidence that on the western boundary of the land of Naimuddin, there was other land of the plaintiff in another dag. The land of Naimuddin was in between the land of the plaintiff falling in the eastern side and in the western side. Ext. It has also come out from his evidence that on the western boundary of the land of Naimuddin, there was other land of the plaintiff in another dag. The land of Naimuddin was in between the land of the plaintiff falling in the eastern side and in the western side. Ext. Kha and Ext. Gha, the sale deeds exhibited in favour of the defendants show that on the western side there is land of Abdul Jalil, i.e., the plaintiff. These two sale deeds are not in challenge. Therefore, the boundary given by the plaintiff that on the western side of Schedule B, there is his own purchased land in the suit dag and patta cannot be correct. There is no evidence on record that the plaintiff had purchased any land of Naimuddin. Having regard to the evidence on record, it has to be held that in respect of 3 katha 8 lecha of land of the plaintiff in Dag No. 9 of Patta No. 177(new)/164(old), there could not have been any land of the plaintiff on the western side as Naimuddin had taken 3 katha 8 lecha on the western side. 20. In that view of the matter, though the plaintiff had purchased along with Naimuddin 1 bigha 1 katha 16 lecha and though admittedly, the plaintiff had taken 3 katha 8 lecha land, having regard to the wrong boundary given in Schedule B, in the facts of the case, no decree can be passed in favour of the plaintiff. 21. In view of the above discussions, the appeal fails and is accordingly, dismissed. The judgments and decrees passed by the learned courts below are affirmed. No cost. 22. Registry will send back the records.