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2015 DIGILAW 211 (GAU)

Kamala Rani Namasudra & Ors. v. Sasthi Sarkar

2015-02-23

MANOJIT BHUYAN

body2015
1. Smt. Sasthi Sarkar, respondent/plaintiff had instituted Title Suit No. 195/1999 before the court of learned Civil Judge (Junior Division) No. 2 Karimganj, with prayer for declaration of land holder's right, title, interest and possession over the Schedule II land and for recovery of khas possession of the same. The said prayer was made on account of the land being purchased by her vide registered Sale Deed No. 1100 dated 7.6.1999 from her father Rasik Lal Namasudra. 2. The appellants/defendants contested the suit by filing written statement together with a counter claim. The case, as set out by the defendants, is that one Behari Paul, who was the original owner of the suit land, had donated 3 pows of land to Rasik Lal Namasudra (father of the plaintiff) and Jitendra Namasudra (husband of the defendant No. 1 and father of the defendant Nos. 2, 3 and 4). According to the defendants, the said 3 pows of land was partitioned among the two brothers and the suit land fell into the share of Jitendra Namasudra and accordingly, said Jitendra Namasudra had become the absolute owner. Having land holder right over the land described in the Schedule I of the plaint, be it mentioned that over the said parcel of land, Jintendra Namasudra had also constructed his residential house. On the demise of Jitendra Namasudra, the defendants became the owners of the suit land by virtue of being legal heirs. 3. It is the case of the defendants that having come to know about the existence of aforesaid Sale Deed No. 1100 dated 7.6.1999 the same had clouded their status in respect of the property described in the Schedule. Accordingly, the defendants along with written statements had also put up counter claims. The defendants prayed for a decree against the plaintiff and in their favour with further prayer for declaration of possessory right over the land described in the Schedule I of the plaint and as well as for a declaration that the registered Sale Deed No. 1100 dated 7.6.1999 is void, illegal and in-operative. 4. On the basis of rival pleadings, the trial court framed as many as 9 Issues and Issue No, 6, which pertains to as to whether the defendants are licencee in respect of the suit land, is the Issue directly related to the substantial question of law, so formulated,-in this appeal. 5. 4. On the basis of rival pleadings, the trial court framed as many as 9 Issues and Issue No, 6, which pertains to as to whether the defendants are licencee in respect of the suit land, is the Issue directly related to the substantial question of law, so formulated,-in this appeal. 5. Upon appreciation of evidence on record, more particularly, Exhibit 6 produced by the plaintiff being the registered Sale Deed executed by Rasik Lal Namasudra in favour of the plaintiff, which was duly proved by PW2, i.e., the Deed writer, the said Issue No. 6 was answered by holding that since there was no evidence to support the title of Jitendra Namasudra in respect of the suit land, accordingly, the defendants have been occupying the suit land without any right, title and interest as licencee. The said Issue No. 6 was decided against the defendants by taking note of the deposition of PW1, whereby the statement was made that the defendants had taken 15 days' time to vacate the suit land. 6. The trial court having held that the plaintiff was entitled to a decree in view of the findings of Issue No. 4 relating to right, title and interest of the plaintiff over the suit land, therefore, decreed the suit on contest with declaration that the plaintiff has right, title and interest over the Schedule II land of the plaint and is also entitled to recover possession of the same by dismantling the temporary house existing over it, together with permanent injunction against the defendants from encroaching upon any portion of the Schedule I land. The judgment and decree in the said Title Suit No. 195/1999 was passed on 8.5.2002. 7. Title Appeal No. 34/2002 was preferred by the appellants/defendants and the First Appellate Court, upon appreciation of evidence on record, dismissed the appeal on contest by affirming the judgement and decree passed by the trial court. The said Title Appeal No. 34/2002 was dismissed vide judgement and decree dated 24.5.2004. 8. On second appeal before this court, the same was admitted for hearing vide order dated 11.10.2004. on the following substantial question of law: "(I) Whether a permissive occupant who had constructed a residential house on a land; with the consent of the predecessor-in-interest of the plaintiff had attained the status of an irrevocable licensee?" 9. In the course of arguments, Mr. on the following substantial question of law: "(I) Whether a permissive occupant who had constructed a residential house on a land; with the consent of the predecessor-in-interest of the plaintiff had attained the status of an irrevocable licensee?" 9. In the course of arguments, Mr. M. Dutta, learned counsel, appearing for the appellants, placed reliance under section 60 of the Indian Easements Act, 1882; section 3(g) read with sections 8 and 9 of the Assam Land Revenue Regulation, 1986 as well as in the case of Upendra Kisor Sarkar v. Shaik Khalil Fakir and Others, AIR 1932 Kol. 568 to say that the father of the plaintiff, i.e., Rasik Lal Namasudra, not being a land holder, was not legally competent to transfer the land to the plaintiff by way of sale. At this stage, it is noted that no issue was framed with regard to the arguments now advanced by Mr. M. Dutta, learned counsel for the appellants and as such, this is a new plea raised for the first time in the second appeal. 10. In that view of the matter, the provisions of the statutes and the case law relied upon by Mr. M. Dutta, learned counsel for the appellants, is not relevant for deciding this present appeal. 11. Both the courts below have unanimously held that the plaintiff has right, title and interest over the suit land and also held that the defendants have been occupying the suit land without any right, title and interest as licencee. The said decisions of the courts below are based on the evidence on record, both oral and documentary. 12. It is too well settled in the law that the adequacy and sufficiency of evidence "cannot be gone into in second appeal unless the findings are perverse or there has been substantive error or defect in the procedure resulting in error in decision. At the same time, this court, while exercising power under section 100, CPC, cannot make a fresh appraisal of the evidence on record and come to a different finding contrary to the findings recorded by the courts below. In other words, this court is not permitted to re-appreciate the evidence, especially when both the courts below had rendered concurrent findings on all issues. The question, as to whether the defendants are licencee, has been appreciated and gone into by the courts below. 13. In other words, this court is not permitted to re-appreciate the evidence, especially when both the courts below had rendered concurrent findings on all issues. The question, as to whether the defendants are licencee, has been appreciated and gone into by the courts below. 13. The existence of a substantial question of law being a sine-qua-non for exercise of powers under section 100, CPC , this court, on appreciation of the evidence on record, is of the opinion that no such substantial question of law is involved in this appeal. As a result, this appeal stands dismissed, however, without any order as to costs. 14. I have heard Mr. M. Dutta, learned counsel, appearing for the appellants. None appears for the respondent.