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2015 DIGILAW 226 (GAU)

NARAYAN SINGHA v. MILAN SINGHA

2015-02-25

HRISHIKESH ROY

body2015
ORDER (ORAL) Heard Mr. P.K. Kalita, the learned counsel appearing for the petitioners, who filed the Title Suit No.21/2007 for recovery of possession, of the suit land under Section 6 of the Specific Relief Act, 1963. The respondent (defendant) is unrepresented and on 05.09.2013 this Court ordered for ex-parte proceeding against him. 2. The petitioners are the successors of late Moneswar Singha and late Sarbeswar Singha. The father of the first 3 plaintiffs late Moneswar Singha, was occupying Schedule-A land measuring 1 bigha 1 katha in Dag No.77 of Annual Khiraj Patta No.22(O)/20(N) and the Schedule B land measuring 3 bighas land in Sakuli Tauzi Map No.52(O)/49(N). Similarly the 4th plaintiff’s father late Sarbeswar Singha was occupying 2 bighas of land covered by Sakuli Tauzi Map No.39. The defendant Milan Singha initially worked as a cultivator under the two predecessor’s 3rd brother, Sachindra Singha and he married the younger daughter Akani of Sachindra Singha. After the marriage, his father-in-law provided the defendant with 1 bigha of land under Sakuli Tauzi Map No.52(O)/49(N). 3. While occupying the 1 bigha gifted to him, on 30.06.2007, the defendant encroached and fenced the plaintiffs’ land measuring 6 bighas 1 katha described in Schedules-A, B and C of the plaint and when he didn’t vacate the encroached land despite the demand of the plaintiffs, the claim for land restoration was made through the Title Suit No.21/2007. 4. After the defendant appeared and filed his WS, the learned Court framed the following 3(three) issues for deciding the case: “(i) Whether the plaintiffs have been in possession of the property in dispute (i.e. the suit land)? (ii) Whether the plaintiffs have been dispossessed from over the suit land otherwise than in due course of law within a period of 6(six) months preceding the date of institution of the suit? (iii) To what relief/reliefs the plaintiffs are entitled?” 5. 4(four) witnesses were produced on behalf of the plaintiffs, whereas the defendant adduced 2(two) witnesses. Both sides also relied on some documentary evidence. 6. Although dispossession from 6 bighas 1 katha land was pleaded by the plaintiffs, the learned Court couldn’t understand the pleadings in paragraph 7 of the plaint and accordingly found some purported contradiction in the case of the plaintiffs. Both sides also relied on some documentary evidence. 6. Although dispossession from 6 bighas 1 katha land was pleaded by the plaintiffs, the learned Court couldn’t understand the pleadings in paragraph 7 of the plaint and accordingly found some purported contradiction in the case of the plaintiffs. Moreover, after taking note of the Exhibit-A notice dated 14.06.2007 issued to the plaintiffs for cancellation of the annual patta i.e. Eksona Patta land (for alleged illegal transfer of rights), the suit was dismissed and restoration was refused to the plaintiffs. 7. In paragraph 7 of the plaint, it was clearly averred by the plaintiffs that the total land under Schedules-A, B and C measures 7 bighas 1 katha, which includes the 1 bigha under the permissive possession of the defendant. Therefore, dispossession only from 6 bighas 1 katha land was alleged in the suit. But unfortunately the learned Trial Court misread the 7th paragraph of the plaint and erroneously noticed contradictions, which were not there in the pleaded case of the plaintiffs. 8. The notice in the N.R. Case No.1/2007, of the Circle Officer was for cancellation of Eksona Patta and his order dated 30.06.2007 shows that the cancellation proceeding is confined to 1 bigha 4 kathas of land. But although cancellation of Eksona Patta relates to only 1 bigha 4 kathas land, the defendant taking advantage of the Circle Officer’s order, illegally dispossessed the plaintiffs from 6 bighas 1 katha land but this aspect was not appropriately considered by the learned Trial Court. 9. Mr. P.K. Kalita, the learned counsel refers to the evidence of 2(two) independent witnesses PW-3 Narendra Ch. Biswas and PW-4 Jiban Bhadra, who categorically supported the possession of the plaintiffs over the suit land measuring 6 bighas 1 katha and yet, their evidence was ignored by the learned Trial Court to give the impugned verdict. In fact, the DW-2 in his cross-examination admitted that he was unaware as to who was in possession of the suit property and therefore the petitioners contend that the judgment is rendered in ignorance of the evidence of the case. 10. The PW-1 Madhu Singh gave clear description of the suit lands being under their possession and the forcible dispossession of the plaintiffs by the defendant on 30.06.2007. 10. The PW-1 Madhu Singh gave clear description of the suit lands being under their possession and the forcible dispossession of the plaintiffs by the defendant on 30.06.2007. Similarly, the PW-2 Sina Singha testified that 1 bigha land was given to the defendant by his father-in-law Sachindra Singha and this land was in the middle part of Schedules-A, B and C land. PW-3 Narendra Ch. Biswas was a neighbouring cultivator, who testified about the possession and cultivation of the suit land by the plaintiffs and their dispossession on 30.06.2007 through encroachment made by the defendant. He also testified about the police case filed by the plaintiff No.1 and the visit of the police to the suit land. PW-4 Jiban Bhadra was the 2nd independent witness and he also testified about the forcible dispossession of the plaintiffs from about 6 bighas land, by the defendant. 11. The defendant Milan Singha while testifying as the DW-1, stated that he was formerly a resident of village No.2 Boroguri in Nagaon district and that he shifted to village Rupahi in Lakhimpur district, where he helped Sachindra Singha in cultivation and day to day work and that in 1973 he married the younger daughter of Sachindra Singha. Significantly he admitted that his father-in-law along with his 2 brothers Khageswar Singh and Moneswar Singh were jointly holding about 100 bighas land in the area. He admitted to being a landless person and being settled with some land by his father-in-law. In his cross-examination, the witness admitted that he is an illiterate person and failed to vouch on the description of the suit property as given in Schedules-A, B and C of the plaint. But he claimed that he was otherwise familiar with the suit property. The DW-2 Bhuban Gogoi as a neighbouring witness in his cross-examination was unable to say, who was in possession of the suit land and therefore his testimony doesn’t support the defendant’s case. 12. But despite the pleaded case being supported by the evidence of the 4(four) PWs, which could not be shaken by the defendant’s evidence, the learned Court answered the possession issue No.(i) against the plaintiffs. Moreover, through unnecessary reference to the order passed by the Circle Officer on 30.06.2007 in the N.R. Case No.1/2007, the Trial Court answered the issue No.(ii) against the plaintiffs. 13. Moreover, through unnecessary reference to the order passed by the Circle Officer on 30.06.2007 in the N.R. Case No.1/2007, the Trial Court answered the issue No.(ii) against the plaintiffs. 13. In my understanding the proceeding in the N.R. case meant for cancellation of the Eksona Patta is of no relevance in this suit for restoration of possession under the Specific Relief Act and yet the proceedings of the N.R. case was erroneously relied to give the impugned verdict against the plaintiffs. That apart, the vital evidence of independent witnesses i.e. PWs-3 and 4, was disregarded and therefore the learned Court failed to exercise due jurisdiction vested on it. Considering that the judgment was rendered by ignoring relevant evidence, I feel that case is made out for intervention by the Revisional Court. Consequently the impugned judgment dated 08.12.2009 (Annexure-3) passed by the learned Munsiff No.1, North Lakhimpur, in the Title Suit No.21/2007 is quashed. The case is remanded back for a fresh adjudication by appropriately considering the available evidence in the case. 14. With the above order, the case is allowed without any order on cost.