Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 198 (GAU)

GANESH KUMAR v. ELIZA KHATOON

2015-02-19

HRISHIKESH ROY

body2015
ORDER (ORAL) Heard Mr. PK Kalita, the learned counsel appearing for the petitioners (plaintiffs). The counsel for the respondent (defendant) are absent. 2. The T.S. No.1136/2006 was filed under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as ‘the 1963 Act’). In the suit, the petitioners pleaded that they own and possess a plot of land measuring 2 (two) katha and this land was originally under the occupation of one Anil Kr. Chatterjee, the khatiandar under the land owner Abdul Haque. The Rayati Khatian No.1 was issued in the name of Anil Kr. Chatterjee. 3. Through an unregistered sale deed dated 13.4.1978, the father of the petitioners i.e. Late Harendra Kr. Dey purchased the possessory right of the land from the khatiandar, in the name of his 3 sons, namely, Kartik Ch. Dey, Dinesh Ch. Dey (who changed his name as Ganesh Kumar) and Jitendra Ch. Dey. Although this land adjoining the stream (locally known as ‘Bongal Nodi’) was initially used for cultivation, because of rapid development and construction in the area, the stream was closed and cultivation had to be discontinued. 4. Since the Hatigaon-Bhetapara PWD Road was then constructed by encroaching about 4 ft. of the plaintiffs’ land, a three roomed roadside house was constructed, where one Sobodh Dey, a related brother of the petitioners was put in occupation and he managed a pan-shop and a tea stall in the 3 room roadside house. 5. The related brother Sobodh Dey died in 1999 and in the meantime further urbanization took place in the surrounding areas of the Sorusajai Stadium for the ensuing National Games. The Hatigaon-Bhetapara PWD Road was then expanded considerably for which some more land of the petitioners were usurped during the road widening exercise. The petitioners pleaded in their case that although front portion of their road side house was demolished in the process of expansion of Hatigaon-Bhetapara PWD Road, the rear portion of the house with GMC Holding No.3852 of Ward No.34, was left intact. 6. It was further pleaded that on 23.11.2006, the defendant accompanied by some weapon wielding young men entered the suit land and tried to fence it with tarja boundary. When the plaintiffs were informed of the attempted dispossession at their Panbazar residence in the evening, next morning they went to the suit land but the defendant obstructed them from entering into their own property. When the plaintiffs were informed of the attempted dispossession at their Panbazar residence in the evening, next morning they went to the suit land but the defendant obstructed them from entering into their own property. Thereafter an FIR was filed on 24.11.2006 before the Basistha P.S. Four days later, the defendant filed a counter FIR on 28.11.2006, where it was alleged that the petitioner No.1 had obstructed her in the repairing works on her own property. 7. After summons were received in the suit under Section 6 of the 1963 Act, the defendant entered appearance and she claimed that she purchased land measuring 1 Bigha 1 Katha 19 Lecha from the original pattadar Abdul Hoque by Regd. Sale Deed No.7986/69. But this land under Dag No.512 was declared to be ceiling surplus land on 29.6.1976 and the land was thus converted to Govt. land. But through the order dated 19.3.1979, the Addl. Dy. Commissioner released 1 Bigha 4 Katha 8 Lecha land covered by Dag No.512 (old) of K.P. Patta No.3 and thereafter the defendant got her name mutated. She sold 1 Bigha land to different persons and occupied the balance land by construction of an ek-chalia house. The defendant further stated that on 28.11.2006, the plaintiff (petitioner No.1) obstructed the defendant from repairing her ek-chalia house and therefore an FIR was filed in the Basistha P.S. 8. After exchange of pleadings, the learned trial Court framed the following five issues:- 1. Whether the suit is maintainable in its present form? 2. Whether there is cause of action for the suit? 3. Whether the plaintiffs were in possession of the suit land at any point of time? 4. Whether the plaintiffs were dispossessed from the suit land on 23-06-06? 5. Whether the plaintiff is entitled to the reliefs claimed in the suit? 9. As the Issue No.3 relates to possession, this issue will have a vital bearing for the suit under the 1963 Act, as the Court is required decide the issue of possession and wrongful dispossession and not the title of the suit property (see Musstt. Abeda Khatun vs. Nazimuddin Laskar reported in (1989) 1 GLR 177. 10. The first plaintiff Ganesh Kumar (PW.1) testified under what circumstances his cultivator father purchased the suit land from the khatiandar. In his cross-examination PW.1 proved the FIR (Exhbt.6) lodged by him, when he was forcibly dispossessed by the defendant on 23.11.2006. Abeda Khatun vs. Nazimuddin Laskar reported in (1989) 1 GLR 177. 10. The first plaintiff Ganesh Kumar (PW.1) testified under what circumstances his cultivator father purchased the suit land from the khatiandar. In his cross-examination PW.1 proved the FIR (Exhbt.6) lodged by him, when he was forcibly dispossessed by the defendant on 23.11.2006. 11. The PW.2 was Sunil Teron is an independent witness and was a nearby resident of the suit land. The witness stated that he knew the plaintiffs and also their father Harendra Kr. Dey, who used to cultivate land in the area. But since water source was necessary for paddy cultivation, the father Harendra Kr. Dey purchased some stream side land, from the khatiandar Anil Kr. Chatterjee. He also testified how Sobodh Dey, the related brother of the plaintiffs was occupying the plaintiffs’ house, where he managed a small shop. The PW.2 accompanied the funeral party to the cremation ground in 1999, when Sobodh Dey expired. The witness also mentioned about the foundation pillars for a building laid by the plaintiffs and temporary abandoning of the construction because of possible further expansion of the PWD road for the National Games. More significantly PW.2 testified about the forcible occupation of the plaintiffs’ property by the defendant on 23.11.2006. 12. On the other hand, the defendant in her evidence as DW.1 and particularly in her cross-examination, failed to indicate that she knew about the suit property and from whom, her father purchased the suit land. She couldn’t specify those in the neighbourhood of her claimed property. The DW.1 was ignorant about the original land owner Abdul Hoque and the khatiandar Anil Kr. Chatterjee. The defendant was also unaware of the total land under the Dag No.512. 13. DW.2 Md. Zakir Hussain claimed to be a neighbor of the defendant near her Kumarpara residence. Although this witness knew of the original land owner Abdul Hoque and his ownership of the land covered by Dag No.512, the witness was unable to specify the area of the ceiling acquired land released subsequently, by the Government. Moreover DW.2 was unable to testify when the new Dag No.2807 was curved out of the old Dag No.512. 14. Although this witness knew of the original land owner Abdul Hoque and his ownership of the land covered by Dag No.512, the witness was unable to specify the area of the ceiling acquired land released subsequently, by the Government. Moreover DW.2 was unable to testify when the new Dag No.2807 was curved out of the old Dag No.512. 14. But despite the unconvincing evidence from the defendants side and by ignoring the clear evidence of the independent witness Sunil Teron (PW.2) and also the specific evidence of PW.1 which couldn’t be shaken, the Trial Court held that the plaintiffs were unaware of the date of dispossession. Thus the joint assertion of the PW.1 & PW.2 that the plaintiffs were dispossessed on 23.11.2006 was ignored and by disregarding the FIR (Exhbt.6), the Court below answered the issue No.3 against the plaintiffs and on this basis, the suit for restoration of possession under the 1963 Act was dismissed on 23.11.2009 (Annexure-3). 15. I have considered the submission made by the learned counsel for the petitioners and have also noted the evidence in the case. In suits under the 1963 Act, the key issue for consideration of the Court is whether the plaintiff was in possession and whether he was forcibly dispossessed by the defendant. In this case, the testimony of PW.1 and the independent witness Sunil Teron (PW.2) disclosed clearly that the plaintiffs were in possession of the suit property which was purchased on 13.4.1978 (Exhbt.1). The forcible dispossession by the defendant can also be noticed from the Exhbt.6 FIR, filed on 24.11.2006 by the PW.1. Moreover the DW.1 failed to identify the suit property and there was no convincing evidence to show that she was in possession prior to 23.11.2006. The materials suggest that they might have purchased some land in the area from the original land owner Abdul Hoque but their possession of the suit land couldn’t be established prior to plaintiffs’ dispossession. 16. In the above facts and circumstances, I find that the impugned judgment dated 23.11.2008 was rendered by ignoring the material evidence in the case. Thus the learned Court acted illegally and with material irregularity and have also failed to exercise the jurisdiction vested under the Specific Relief Act. 16. In the above facts and circumstances, I find that the impugned judgment dated 23.11.2008 was rendered by ignoring the material evidence in the case. Thus the learned Court acted illegally and with material irregularity and have also failed to exercise the jurisdiction vested under the Specific Relief Act. Having concluded thus, the impugned judgment dated 23.11.2009 (Annexure-3), in the T.S. No.1136/2006, rendered by the learned Munsiff No.2, Guwahati is declared to be unsustainable and the same is quashed. The Revision Petition stands allowed accordingly, without any order on cost. 17. The Registry should return back the L.C.R. with a copy of this order.