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2015 DIGILAW 1457 (GAU)

Tapan Kumar Pradhan v. Sabya Neor

2015-11-23

SUMAN SHYAM

body2015
JUDGMENT : 1. Heard Ms. P. Bhattacharya, learned counsel for the appellant. Also heard Ms. A. D. Choudhury, learned counsel appearing on behalf of the respondents/plaintiffs. 2. This Second Appeal arises out of the judgment and decree dated 29.11.2004 passed by the learned Civil Judge (Senior Division), Barpeta, in Title Appeal No.5/2003 allowing the appeal filed by the respondents/plaintiffs thereby setting aside the judgment and decree dated 23.12.2002 passed by the learned trial Court in Title Suit No.4/1999 dismissing the suit filed by the plaintiffs. The Second Appeal preferred by the principal defendant as appellant had been admitted by this Court to be heard on the following two substantial questions of law : “1) Whether the learned lower appellate court erred in law in reversing the judgment passed by the trial court deciding the title in respect of 1 katha 3 lechas of land in favour of the respondent/ plaintiff on failure to prove the title thereon as alleged. 2) Whether the finding arrived at by the learned trial court is perverse.” 3. The brief factual matrix of the case of the plaintiffs is that the plaintiff No.1 being the mother of her two minor daughters i.e. plaintiff Nos.2 and 3 had purchased a plot of land measuring 3 kathas covered by dag No.720 by means of a registered deed of sale dated 12.01.1998 from the proforma defendant No.14, Shri Prabhat Narayan Choudhury, who was the owner in possession of a total area of land measuring 3 bigha 3 katha 12 lechas covered by the said dag No.720 of N.K. Patta No.13 of village – Muguria, mouza- Uttar Bajali in the district of Barpeta. Out of the aforesaid 3 kathas of land the plaintiffs had sold land measuring 2 kathas 5 lechas to Hitesh Roy and Nirupama Roy on 27.04.1998 thereby retaining 15 lechas of land from dag No.720. Subsequently, on 10.03.1999 the plaintiffs had again purchased land measuring 1 katha from the aforesaid dag No.720 as a result of which the plaintiffs became the owner in possession in respect of a total area of land measuring 1 katha 15 lechas from dag No.720 of N.K. Patta No.13. Accordingly, the plaintiffs had claimed title over land measuring 1 katha 10 lechas of dag No.720 described in Schedule-(A)(2) to the plaint. 4. Accordingly, the plaintiffs had claimed title over land measuring 1 katha 10 lechas of dag No.720 described in Schedule-(A)(2) to the plaint. 4. It is also the case of the plaintiffs that the husband of the plaintiff No.1, Bhojbir Neor, was a tenant under the landlord Prabhat Narayan Choudhury and in his capacity as such, had acquired non-evictable tenancy right in respect of land measuring 9 lechas covered by dag No.770 of N.K. Patta No.71 of Pathsala Town under mouza – Uttar Bajali in the district of Barpeta, Assam in the year 1980 out of which land measuring 5 lechas was sold away thereby retaining 4 lechas of land of the dag No.770 described in Schedule-(B)(I) to the plaint. On the basis of the aforesaid claim the plaintiffs have prayed for a decree declaring their right, title and interest over the suit land; decree for partition and declaration of separate possession of the plaintiffs by evicting the defendant and for temporary and permanent injunction in respect of the aforesaid land mentioned in Schedule-(A)(2) and Schedule-(B)(I) to the plaint alleging that the defendant had started construction of a pucca wall and a temporary house upon the suit land thereby seeking to dispossess the plaintiffs therefrom. 5. On receipt of summons in connection with the suit the defendant No.1 appeared therein and contested the suit by raising a number of formal pleas questioning the maintainability of the suit on the ground of want of cause of action; suit being not maintainable and that no proper court fee have been paid by the plaintiffs. While disputing the boundary mentioned in the plaint, thereby raising a dispute as regards the identity of the suit land, the defendant’s case was that he is the adopted son of the husband of plaintiff No.1 viz. Bhojbir Neor and as such he has interest in the property left behind by his father. The contesting defendant had also resisted the prayer made in the suit on the ground that land measuring 1 katha 10 lechas pertaining to dag No.720 was gifted to him by the proforma defendant No.14, Prabhat Narayan Choudhury, pursuant whereto possession of the land was also delivered in his favour. The contesting defendant had also resisted the prayer made in the suit on the ground that land measuring 1 katha 10 lechas pertaining to dag No.720 was gifted to him by the proforma defendant No.14, Prabhat Narayan Choudhury, pursuant whereto possession of the land was also delivered in his favour. It has been alleged in the written statement that in the garb of obtaining a decree pertaining to the Schedule-(A)(2) and (B)(I) land of the plaint the plaintiffs are actually trying to oust the defendant from his basti land gifted by proforma defendant No.14 even though the plaintiffs do not have any semblance of right, title and interest over the said land. It would, however, be significant to mention herein that in the written statement the defendant has not challenged the validity of the claim of title made by the plaintiffs on the basis of the title deeds referred thereto. 6. Based on the pleadings of the parties, the learned trial Court had framed as many as six issues, which are as follows :- “1. Whether there is any cause for the suit? 2. Whether the plaintiffs have not paid proper court fee? 3. Whether the boundary of the suit land is wrong? 4. Whether the plaintiffs have right, title and interest over the suit land and the defendant dispossessed the plaintiffs from the suit land? 5. Whether the plaintiff is entitled to decree as prayed for? 6. What relief or reliefs the parties are entitled to?” 7. During the course of trial both parties had adduced evidence in support of their respective cases. On appraisal of the evidence available on record as well as upon hearing the learned counsels for the parties the learned trial Court had decided the Issue Nos.3 and 4 against the plaintiffs and in favour of the defendant by holding that the plaintiffs have failed to adduce evidence to show that the boundary of the suit land conforms to the document of title under which the plaintiffs were claiming. The learned trial Court had also disbelieved the claim of the plaintiffs regarding dispossession from the suit land. Consequently, the Issue Nos.5 and 6 were also decided against the plaintiffs by the trial Court as a result of which the suit filed by the plaintiffs stood dismissed. 8. The learned trial Court had also disbelieved the claim of the plaintiffs regarding dispossession from the suit land. Consequently, the Issue Nos.5 and 6 were also decided against the plaintiffs by the trial Court as a result of which the suit filed by the plaintiffs stood dismissed. 8. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by the trial Court, the plaintiffs, as appellants, had preferred Title Appeal No.5/2003 in the Court of learned Civil Judge (Senior Division), Barpeta. After hearing the learned counsels for the parties and also on a re-appraisal of the evidence available on record the learned Lower Appellate Court had reversed the findings of the trial Court pertaining to the Issue Nos.3 and 4 as a result of which the suit filed by the plaintiffs was decreed with the reliefs prayed therein. 9. Questioning the legality and validity of the judgment and decree dated 29.11.2004 passed by the learned Lower Appellate Court in Title Appeal No.5/2003 the defendant has approached this Court by filing the instant Second Appeal. 10. Ms. Bhattacharya, learned counsel for the appellant, submits that there is no dispute regarding the claim of title made by the plaintiffs over the suit land. However, the defendant has resisted the claim of the plaintiffs on account of lack of clarity as regards the boundary description given in the plaint since the said aspect of the matter would have relevant bearing on the civil rights of the defendant/appellant since he has been gifted a different plot of land measuring 1 katha 10 lechas from the same dag No.720 by the proforma defendant No.14. Claiming that the learned Lower Appellate Court has committed illegality in failing to consider the fact that on the teeth of the pleaded stand taken by the contesting defendant in the written statement, the plaintiffs’ side had failed to prove and establish their case by leading evidence. That apart, submits Ms. Bhattacharya, the finding recorded by the learned Lower Appellate Court as regards Issue Nos.3, 4 and 5 are also perverse to the evidence on record inasmuch as the suit of the plaintiffs has been decreed based on the lacunae on the part of the defendant to lead evidence in support of his case. 11. Per contra, Mr. Bhattacharya, the finding recorded by the learned Lower Appellate Court as regards Issue Nos.3, 4 and 5 are also perverse to the evidence on record inasmuch as the suit of the plaintiffs has been decreed based on the lacunae on the part of the defendant to lead evidence in support of his case. 11. Per contra, Mr. A. D. Choudhury, learned counsel appearing for the respondents, submits that a bare perusal of the pleadings contained in para 6 of the written statement would go to show that there is no dispute as regards claim of title made by the plaintiffs in respect of the suit land and the claim made in the plaint has been admitted by the contesting defendant for all practical purposes. He submits that the plaintiffs have also led evidence on record to prima facie prove and establish their title and possession in respect of the land claimed in the suit. On the contrary, the contesting defendant has neither been able to substantiate his claim of being the adopted son of the husband of plaintiff No.1 nor has he produced the original of the gift deed as evidence to show that any land has been gifted to him pertaining to dag No.720 as has been claimed. Such being the position, submits Mr. Choudhury, the substantial questions of law urged by the appellant do not arise for decision in the facts and circumstances of the present case. 12. I have considered the submissions made by and on behalf of the learned counsels for the parties and have also perused the materials available on record including the judgment and decree rendered by both the Courts below. A perusal of the pleadings of the parties goes to show that the defendant has admitted the claim of title of the plaintiffs over the suit land by virtue of pleadings contained in para 6 of the written statement. A scrutiny of the records also goes to show that the plaintiffs’ sides has produced the title documents in support of their claim of title in respect of Schedule-(A)(2) as well as Schedule-(B)(I) land of the plaint. There is nothing on record to dispute the claim of title made by the plaintiffs in respect of the suit land. A scrutiny of the records also goes to show that the plaintiffs’ sides has produced the title documents in support of their claim of title in respect of Schedule-(A)(2) as well as Schedule-(B)(I) land of the plaint. There is nothing on record to dispute the claim of title made by the plaintiffs in respect of the suit land. As such, there can hardly be any doubt about the fact that the plaintiffs’ side has been able to lead cogent evidence to prima facie establish their title and possession over the suit land. 13. Since the defendant had taken the plea of being the adopted son of the husband of plaintiff No.1 and also that a plot of land measuring 1 katha 10 lechas was gifted to him by the proforma defendant No.14 by executing a gift deed dated 01.04.1998, hence, the onus to prove and establish the said facts were clearly upon the contesting defendant under the law. However, evidence on record goes to show that the defendant has failed to establish his aforesaid claim. There is no material available on record to accept the claim that the defendant is the adopted son of the husband of plaintiff No.1. As regards the question of gift, save and except producing a photocopy of an alleged gift deed, the defendant has not been able to produce any documentary evidence in support of his claim. Record reveals that even the photocopy had not been exhibited in accordance with the requirement of law. Taking note of the aforesaid position, the learned Lower Appellate Court had held that the defendant has failed to prove his dual claim, as noticed above, due to failure on his part to lead evidence. Having regard to the materials available on record, I do not find any infirmity in the conclusions drawn by the learned Lower Appellate Court as regards Issue Nos.3, 4 and 5. Such being the position, I am of the considered view that there were cogent reasons available for the learned Lower Appellate Court to reverse the judgment and decree passed by the learned trial Court leading to the plaintiffs’ suit being decreed. 14. Such being the position, I am of the considered view that there were cogent reasons available for the learned Lower Appellate Court to reverse the judgment and decree passed by the learned trial Court leading to the plaintiffs’ suit being decreed. 14. In view of the discussions made in the foregoing paragraphs, it is apparent that the substantial questions of law raised by the appellant does not arise for a decision in favour of the appellant in the facts and circumstances of the present case and as such both the substantial questions of law stand decided against the appellant/defendant. Consequently, this Second Appeal is held to be devoid of any merit and hence, the same would stand dismissed. There would be no order as to cost. Office to send back the LCR expeditiously.