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2015 DIGILAW 206 (GAU)

Sondhya Rani Ghosh v. Amal Ghosh

2015-02-19

SUMAN SHYAM

body2015
JUDGMENT : Suman Shyam, J. 1. This second appeal is directed against the judgment and decree dated 19.05.2005 passed by the learned Civil Judge (Senior Division), Sonitpur, Tezpur in Title Appeal No. 14/2002 affirming the judgment and decree dated 29.06.2002 passed by the Civil Judge (Junior Division) No. 2, Tezpur in Title Suit No. 29/1997. Plaintiffs' case in brief is that the plaintiff No. 1 and plaintiff No. 2 are husband and wife. Plaintiff No. 1 purchased a plot of land measuring 1 Bigha 3 Kathas 0 Lecha being the southern part of the plot of land measuring 3 Bighas 1 Katha 0 Lecha covered by Dag No. 512(old)/688 (new) of Periodic Patta No. 5 (old)/12/13(new) of village-Eragaon, Mouza-Balipara, P.S. Rangapara in the District of Sonitpur from its registered owner, viz., Kabindra Singh Kothari, i.e. the Defendant No. 2, by means of a Registered Deed of Sale bearing No. 4739/78 dated 15.12.1978. Thereafter, the possession of the aforesaid land was delivered to the plaintiff No. 1 by the defendant No. 2. The name of the plaintiff No. 1 had also been duly mutated by virtue of the purchase and her possession over the land vide order dated 2.11.1987 passed by the SDC, Sadar, Tezpur. 2. Plaintiff No. 2 also purchased land measuring 1 Bigha 3 Kathas 0 Lecha being the remaining part of the aforesaid land measuring 3 Bighas 1 Katha 0 Lechas from the defendant No. 2 by means of Registered Deed of Sale bearing No. 809/88 executed on 19.4.1988, pursuant whereto the plaintiff No. 2 was put in possession of the land. The name of the plaintiff No. 2 was also mutated in respect of his purchased land by the order dated 3.1.1989 passed by the SDC, Sadar, Tezpur. It is the case of the plaintiff's that both of them are jointly in possession of the total area of land purchased by them measuring 3 Bighas 1 Katha, which is a compact plot of land and has been described in Schedule-A to the plaint. It is the case of the plaintiff's that at the time of purchase of the aforesaid plot of land, the defendant No. 1, who is the elder brother of the plaintiff No. 2, was a tenant under the defendant No. 2. It is the case of the plaintiff's that at the time of purchase of the aforesaid plot of land, the defendant No. 1, who is the elder brother of the plaintiff No. 2, was a tenant under the defendant No. 2. After the purchase of the land measuring 3 Bighas 1 Katha, as aforesaid, the plaintiff's remodeled the old residential house standing upon the plot of land which is shown in Schedule-B to the plaint. The defendant No. 1 had been permitted by the plaintiff's to use and occupy a plot of land measuring more or less 1 Katha with definite boundary which has been described in Schedule-C. Being the elder brother of plaintiff No. 2, the defendant No. 1 was allowed to live in the said plot of land covered by Schedule- C purely as a permissible occupier. However, taking advantage of the aforesaid permission of the plaintiffs, the defendant No. 1 had surreptitiously filed an application seeking mutation of his name over 1 Katha 17 lechas of land forming a part of Schedule-A land and, with that end in view, he had filed Miscellaneous Case No. 4/1991-92 as well as Miscellaneous Case No. 17/1991-92. On the basis of representation as well as objection raised by the plaintiff No. 2, the aforementioned two miscellaneous cases were eventually dismissed. Thereafter, the plaintiff No. 2 had sent advocate's notice to the defendant No. 1 to vacate the land. However, despite receipt of the said notice, the defendant No. 1 did not comply with the same. On the contrary, he had turned a deaf ear even to the advice given by the respectable persons of the locality, although the plaintiff No. 2 was willing to abide by such advice. Situated thus, the defendants No. 1 and 2 colluded to execute a Registered Deed of Sale bearing No. 1031/96 dated 5.7.1996 executed by defendant No. 2 in favour of the defendant No. 1 transferring an area of land measuring 1 Katha 17 lecahs pertaining to the aforementioned Dag and Patta. It is the case of the plaintiff's that after selling the land to the plaintiffs, as aforesaid, the defendant No. 2 did not have the right, title or authority to execute the Sale Deed dated 5.7.1996 in favour of the defendant No. 1. It is the case of the plaintiff's that after selling the land to the plaintiffs, as aforesaid, the defendant No. 2 did not have the right, title or authority to execute the Sale Deed dated 5.7.1996 in favour of the defendant No. 1. As such, the plaintiff's had been compelled to institute the present suit for declaration of their right, title and interest over the Schedule-A land; recovery of khas possession of the Schedule-C land; cancellation of Sale Deed bearing No. 1031/96; a decree of permanent injunction and for other consequential reliefs. 3. Defendants No. 1 and 2 contested the suit filed by the plaintiff's by filing separate written statements. In the written statement filed by the Defendant No. 1, he has generally denied the case of the plaintiff's while taking the formal objections pertaining to the maintainability of the plaintiffs' suit. The case of the Defendant No. 1, as set out in the written statement in short, is that he had occupied an area of 1 Kama 17 Lechas of land out of the total 3 Bighas 1 Katha of land of Dag No. 688 of P.P. No. 12/13 as a tenant of Mahasingh Meghraj Rai Bahadur and, thereafter, under the defendant No. 2 by paying monthly rent regularly since more than past 50 years and has been residing in the said land by erecting thatched house thereon. Earlier, the defendant No. 1 used to reside together with the plaintiff No. 2 and their mother. However, after the marriage of the plaintiff No. 2 with the plaintiff No. 1, both of them had started living separately from the defendant No. 2 and his mother, over a portion of Schedule-A land. The defendant No. 1 continued to live in the aforesaid land as a tenant under the defendant No. 2. Subsequently, by executing a Registered Deed of Sale bearing No. 1031/96, the defendant No. 2 had sold a plot of land measuring 1 Katha 17 Lechas to Defendant No. 1 out of the total area of land measuring 3 Bighas 1 Katha covered by Dag No. 688 of P.P. No. Old(12)/new(13) of Village-Eragaon under Mouza-Balipara. It is the case of the defendant No. 1 that pursuant to the purchase, he had constructed house over the said land and have been residing therein since past many years. It is the case of the defendant No. 1 that pursuant to the purchase, he had constructed house over the said land and have been residing therein since past many years. The defendant No. 1 has also denied that the land described in Schedule-A forms a compact plot of land. He, therefore, prays for dismissal of the plaintiffs' suit. 4. The defendant No. 2, i.e., the vendor of the plaintiff's No. 1 and 2, had also contested the suit filed by the plaintiff's by filing a written statement. In the said written statement, the defendant No. 2 has admitted the execution of the two sale deeds in favour of the plaintiff's No. 1 and 2 by means of which he had sold two plots of land measuring 1 Bigha 3 Kathas each, pursuant whereto the plaintiff's No. 1 and 2 had been put in possession of their respective purchased land. What, however, has been disputed by the defendant No. 2 is that the land purchased by the plaintiff No. 1 vide Ext-1 sale deed pertains to Dag No. 512 of P.P. No. 5 and not the land covered by Dag No. 512(old)/688(new) of P.P. No. 5 (old)/12/13 (new), as has been claimed by the plaintiff No. 1. It is also the stand of the defendant No. 2 that the land purchased by the plaintiff No. 2 by means of Ext. 2 Sale Deed pertains to Dag No. 688 of P.P. No. 13, which is also the claim of the plaintiff No. 2. The defendant No. 2 has also admitted the fact that he had sold the land measuring 1 Katha 17 lechas to the defendant No. 1 by executing the Registered Deed of Sale and the defendant No. 1 is also in possession of his purchased plot of land. The stand of the defendant No. 2 reduced to its essence would mean that the claim made by the plaintiff's No. 1 and 2 regarding purchase and possession of the land is admitted, save and except the fact that the Dag numbers and Patta numbers under which they are claiming is different from what has actually been transferred in their favour. 5. On the basis of the pleadings of the parties, the learned Trial Court had framed as many as five issues, which are as follows. "(1) Whether the plaintiff has right, title and interest over the suit land ? 5. On the basis of the pleadings of the parties, the learned Trial Court had framed as many as five issues, which are as follows. "(1) Whether the plaintiff has right, title and interest over the suit land ? (2) Whether the suit is barred by law of limitation? (3) Whether the defendant No. 1 was tenant under the defendant No. 2 and his predecessors ? If so, whether his possession as tenant is protected under the law ? (4) Whether the plaintiff is entitled to the relief of declaration and other consequential relief as prayed for ? (5) To what other relief/reliefs are the parties entitled to ?" 6. The plaintiffs' side had examined five witnesses including the plaintiff's themselves and also executed some documents, whereas the defendants' side examined three witnesses besides exhibiting some documents. 7. On examination of the materials on record, the learned Trial Court had dismissed the suit filed by the plaintiff's holding, inter alia, that the plaintiff's are not sure about the identity of their land and, as such, it was held that the plaintiff's have failed to prove their right, title and interest over the suit land. Accordingly, by the judgment dated 29.6.2002, the plaintiffs' suit was dismissed. 8. Being aggrieved by the judgment and decree dated 29.6.2002, the plaintiff's as appellants preferred Title Appeal No. 14/2002 in the Court of Civil Judge (Senior Division), Sonitpur, Tezpur. The Title Appeal No. 14/2002 was also dismissed by the learned Civil Judge (Senior Division), Sonitpur, Tezpur, by the judgment and decree dated 19.05.2005 whereby the learned Lower Appellate Court had agreed with the findings of the Trial Court on Issues No. 1 to 5. 9. Being aggrieved by the judgment and decree dated 19.05.2005, the plaintiff's as appellants has preferred this second appeal which was admitted for hearing by framing the following substantial question of law:- "As to whether the learned Court below erred in law in passing the impugned judgment and decree without considering the admission of the defendants/respondents made in paragraph-13 of the written statement ?" 10. I have heard Mr. T.C. Khatri, learned senior counsel appearing for the appellants and also heard Mr. R. Sarma, learned counsel appearing for the respondents. 11. Mr. I have heard Mr. T.C. Khatri, learned senior counsel appearing for the appellants and also heard Mr. R. Sarma, learned counsel appearing for the respondents. 11. Mr. Khatri, learned senior counsel submits that since it is not in dispute that the defendant No. 2 had in-fact sold two plots of land, each measuring 1 Bigha 3 Katha, by means of Registered Sale Deeds - Ext. 1 and Ext. 2 and having regard to the fact that the Defendant No. 2 has also categorically admitted that the plaintiff's were in possession of their respective plots of land purchased by them, the learned Courts below committed serious error in dismissing the suit of the plaintiff's for declaration of their right, title and interest merely on a technical ground that there was ambiguity in the identity of the suit land. Mr. T.C. Khatri, learned senior counsel further submitted that evidence on record, more particularly, Exts. 9, 12 and 13 as well as the testimony of RW.4 would go to show that the land originally covered by Dag No. 512 was converted to and/or subsumed by the Dag No. 688, which evidence was not at all considered by the learned First Appellate Court. He further submits that in view of the admission made in the written statement and more particularly the averments made in paragraph- 13 of the written statement filed by the defendant No. 1 wherein he has categorically admitted that the plaintiff's had in-fact constructed house over the Schedule-B land, the learned Lower Appellate Court ought to have considered this aspect of the matter in deciding the Title Appeal filed by the appellants. Mr. T.C. Khatri, learned counsel further submits that there were enough materials available on record to show that the plaintiff's were entitled to a decree as prayed for, but ignoring such material evidence, the learned First Appellate Court dismissed the appeal in a most perfunctory manner merely by looking at the boundary descriptions in the purchase deeds, Ext-1 and Ext. 2, without taking into account the evidence led by the plaintiffs, which explains the discrepancy, if any, as regards identification of the land. 2, without taking into account the evidence led by the plaintiffs, which explains the discrepancy, if any, as regards identification of the land. He submits that in any case mere discrepancy in identification of the land in the facts and circumstances of the case could not have been a valid ground to dismiss the plaintiffs' suit as there are permissible recourse under the law for the Court to ascertain the correct location and description of the land by appointing a Commission. 12. Per contra, Mr. R. Sarma, learned counsel for the respondents submits that there is no dispute regarding the fact that the plaintiff's have purchased the land as claimed. He submits that the dispute, if any, is with regard to the fact as to whether the land purchased by the defendant No. 1 forms the part of the land purchased by the plaintiff's No. 1 and 2 by means of Exts. 1 and 2. To that extent, Mr. R. Sarma, learned counsel fairly submits that this aspect of the matter has not at all been examined by the learned Lower Appellate Court while passing the judgment and decree dated 19.05.2005. 13. I have considered the rival submissions and also perused the records. On a threadbare scrutiny of the materials on record, it appears that there is no dispute about the fact that the plaintiff's No. 1 and 2 had purchased the two plots of land measuring 1 Bigha 3 Kathas each from the defendant No. 2 by means of Registered Deed of Sale and has been in possession of the said plots of land since past many years. It is also not in dispute that after the purchase of the land, they had made construction by remodeling the old house in Schedule-B land, which fact has also been categorically admitted by the defendant No. 1 in paragraph-13 of the written statement. If that be so, then it is not possible to readily to infer that Schedule-B land comprising of total area of 2 Bighas 4 Kathas 10 Lechas, out of the total area of land of 3 Bighas 1 Katha is not one compact plot of land. If that be so, then it is not possible to readily to infer that Schedule-B land comprising of total area of 2 Bighas 4 Kathas 10 Lechas, out of the total area of land of 3 Bighas 1 Katha is not one compact plot of land. In that case, the defendant No. 1's claim that he had purchased 1 Katha 17 Lechas of land form a part of 3 Bighas 1 Katha of the original land by means of subsequent Deed of Sale apparently contradicts the case of the defendant No. 1 set out in the written statement. 14. Besides the above, on a perusal of the record, it could be seen that RW.4, who is the Record Keeper of the Revenue Section has appeared as a witness along with the records whereby he had deposed that the land originally covered by Dag No. 512 had been subsequently converted into Dag No. 688. The aforesaid piece of evidence would have vital importance in adjudicating the issues involved in the present proceeding. However, it appears that the learned First Appellate Court had not discussed the impact of the material evidence available on record. The Court below had not even considered the effect of the admission made by the defendant No. 1 in his written statement which was obviously a significant admission in the facts and circumstances of the case. What valued such admission as well as the material evidence on record would carry in the ultimate analysis is a different matter altogether. It appears that the learned First Appellate Court has not considered any of these materials available on record and, on the contrary, has affirmed the judgment of the Trial Court most mechanically without giving any reason based on evidence on record in doing so. Since the First Appellate Court has failed to frame points of determination and thereafter give its decision on each point by citing proper reasons, hence, the impugned judgment is in clear violation of Order XLI Rule 31 of the C.P.C. Such being the position, the judgment and decree dated 19.05.2005 is not sustainable in the eye of law as the learned Lower Appellate Court has not considered the grounds taken in the Title Appeal by giving appropriate reason. As such the judgment and decree under appeal stand set aside. As such the judgment and decree under appeal stand set aside. The matter is now remanded back to the First Appellate Court for a fresh decision on all the issues involved in the Title Suit by passing a reasoned order without being influenced by any observation made in this order. Having regard to the facts and circumstances of the case, there would be no order as to cost. The LCR be sent back forthwith. Parties to appear before the Lower Appellate Court on 23.3.2015.