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2015 DIGILAW 229 (GAU)

Abdul Matin v. Abdul Fattah

2015-02-25

SUMAN SHYAM

body2015
JUDGMENT Suman Shyam, J. 1. This Second Appeal has been preferred against the judgment dated 07.07.2004 passed by learned Civil Judge (Senior Division), Karimganj in Title Appeal No. 9/2001 dismissing the appeal and affirming the judgment and decree dated 21.12.2000 passed in Title Suit No. 58/1996 by the Civil Judge (Junior Division) No. 2, Karimganj. 2. The case of the plaintiff, as set out in the plaint, is that the plaintiff had purchased land measuring 1 (one) josthi described in 1st Schedule to the plaint from the defendant No. 2 vide registered sale deed dated 28.03.1988 pursuant whereto he was put in possession of the purchased land. The plaintiff has been continuing his business on the house standing upon the suit land and he has been paying house tax to the Gaon Panchayat. The defendant No. 2 sold land measuring one josthi in the south of the suit 1st Schedule land to one Asaddar Ali vide registered sale deed dated 04.05.1988 pursuant whereto Asaddar Ali constructed a shop in his purchased land wherein Niaj Ali, brother of Asaddar Ali is doing business. It is the case of the plaintiff that the defendant No. 2 had actually sold land of dag No. 575 under Khatian No. 71 of mouza Bakharsal Part-II but wrongly mentioned dag No. 621 in the sale deed. The plaintiff further averred that the defendant No. 2 had sold another plot of land to the adjacent north and east of his earlier sold land to one Abu Saleh Fakaruddin by a registered deed dated 14.02.1989 and delivered him possession of the same. In the said sale deed the defendant No. 2 had mentioned about the aforementioned two josthis of land which he had sold earlier which resembles the 1st Schedule land insofar as the description of the boundaries are concerned. The plaintiff alleges that although the plots of land sold by the aforesaid three deeds pertain to dag No. 575 of the final Khatian No. 71 of mouza Bakharsal Part-II yet the defendant No. 2 erroneously mentioned dag No. 621 in the sale deed, although the boundaries of the land sold by the defendant No. 2 remain correct and consistent with the actual possession of the land in the field. The defendant No. 2 had also handed over possession of the land covered by dag No. 575 at the time of executing the sale deed. The defendant No. 2 had also handed over possession of the land covered by dag No. 575 at the time of executing the sale deed. However, recently the plaintiff came to know that in his purchase deed as well as the purchase deed of Asaddar Ali the dag No. has been wrongly mentioned as 621 instead of 575. Although the defendant No. 2 had corrected the sale deed of Asaddar Ali by correction deed dated 01.02.1993 bearing No. 366 such request made by him to the defendant No. 2 for rectification of the sale deed has been turned down by his vendor. The plaintiff alleges that the defendant No. 1 is the son of defendant No. 2 and the defendant No. 3 is the brother of the defendant No. 2. Taking advantage of the wrong mention of dag No. 621 instead of dag No. 575 in the sale deed of the plaintiff the defendant No. 2 had created a false and collusive document dated 23.5.94 in respect of the land in dag No. 575 in favour of defendant No. 3 behind the back of the plaintiff in a most illegal manner and the said document was registered as deed No. 2139. The plaintiff came to know about the said deed only on 08.02.1996 after obtaining a copy of the said deed from the office of the Sub Registrar. The plaintiff further pleaded that the defendants are persons of desperate nature and on 15.01.1996 they entered the shop house of the plaintiff by breaking open the lock of the same and removed all articles therefrom and had thus dispossessed the plaintiff from the suit land and the house. The aforesaid illegal action of the defendants had compelled the plaintiff to institute the present suit praying for a decree of declaration to the effect that the plaintiff is the owner and possessor of the land of Schedule-I and house mentioned in Schedule-II and for a decree of recovery of khas possession by evicting the defendants. The plaintiff has also prayed for a decree of correction of deed No. 969 dated 23.8.88 executed by the defendant No. 2 in favour of the plaintiff by mentioning dag No. 575 in place of dag No. 621; for a declaration that deed No. 2139 dated 23.5.94 is illegal, null and void; for permanent and temporary injunction and for other consequential reliefs. 3. The defendant Nos. 3. The defendant Nos. 1, 2 and 3 contested the suit filed by the plaintiff by submitting their written statement questioning the maintainability of the suit itself. Besides taking the formal objections regarding existence of cause of action, non-joinder of necessary parties, suit being barred by waiver, estoppel and acquiescence and limitations etc., the contesting defendants took a pleaded stand that the defendant No. 2 being the original owner of the suit land constructed a house thereon and started a business in the said house with the knowledge of all concerned including the plaintiff. The business of the defendant No. 2 having failed and the said defendant being in urgent need of money, decided to sell the suit schedule land and the house standing thereupon and the defendant No. 3 having agreed to purchase the same, the same was sold to the defendant No. 3 by executing a registered sale deed for an amount of Rs. 7000/-. After purchase of the land in the 1st schedule the defendant No. 3 renovated the house standing thereon with the knowledge of all concerned. The defendant Nos. 2 and 3 have been living separately since past many years and that the defendant No. 3 has been maintaining his right, title, interest and possession over the suit land peacefully with the knowledge of all and without any disturbance from any individual. It is also the pleaded stand of the defendants that the plaintiff is a dangerous person having an evil mind and that the plaintiff was jealous with the defendants. Therefore, the plaintiff had ganged up with certain miscreants with a view to gain title and possession over the suit land and the house standing thereon and with that end in view filed the instant suit with the sole objective of making wrongful gain at the cost of the defendants. The defendants, therefore, prayed that the suit be dismissed with a compensatory cost. 4. On the basis of the pleadings of the parties the learned trial court framed five issues which are as follows:- "1) Is there any cause of action for the suit? 2) Is the suit maintainable in its present form? 3) Is the suit bad for defect of parties? 4) Whether the plaintiff has right, title, interest and possession over the suit land? 5) To what relief or reliefs the plaintiff is entitled to get in this suit?" 5. 2) Is the suit maintainable in its present form? 3) Is the suit bad for defect of parties? 4) Whether the plaintiff has right, title, interest and possession over the suit land? 5) To what relief or reliefs the plaintiff is entitled to get in this suit?" 5. The plaintiff side examined 10 witnesses and submitted documentary evidence in the form of Exts-1 to 8 whereas the defendants side examined four witnesses and submitted Exts-A to E as documentary evidence. Upon hearing the parties and relying upon the materials on record the learned trial Court decreed the suit filed by the plaintiff by the judgment and decree dated 21.12.2000. 6. Being aggrieved by the said judgment and decree dated 21.12.2000 the defendants as appellants preferred Title Appeal No. 9/2001 before the Court of Civil Judge (Senior Division), Karimganj. By the impugned judgment and decree dated 07.07.2004 the learned Civil Judge (Senior Division), Karimganj dismissed the appeal filed by the defendants and affirmed the judgment and decree passed by the learned trial Court. 7. Being aggrieved by the judgment and decree of the First Appellate Court the instant Second Appeal has been filed which was admitted by the order dated 20.02.2005 to be heard on the following substantial questions of law:- "(1) Whether the findings of the Courts below are hit by Section 91 and 92 of the Indian Evidence Act, 1872? (2) Whether the findings of the Courts below are perverse on the face of the material evidence available on record?" 8. I have heard Ms. R. Choudhury, learned counsel appearing for the appellants. None appears for the respondent despite the fact that the name of the learned counsel has been shown in the cause list. 9. Ms. R. Choudhury, learned counsel for the appellants, submits that from a bare perusal of the judgment rendered by the First Appellate Court it will be evident that the Court below has not decided the key issues by recording findings supported by reasons. The learned First Appellate Court has merely recorded its concurrence with the findings of the trial Court in a most mechanical manner in respect of Issue Nos. 4 and 5 which were the material issues in the instant case. The learned First Appellate Court has merely recorded its concurrence with the findings of the trial Court in a most mechanical manner in respect of Issue Nos. 4 and 5 which were the material issues in the instant case. She further submits that even the findings of fact recorded by the learned trial Court is absolutely perverse as the same have been recorded by ignoring the relevant material evidence available on record. The conclusions drawn by the learned trial Court in favour of the plaintiff are not based on any evidence but are merely surmises and conjectures drawn by the trial Court. Such being the position the judgment and decree under appeal is bad in law and liable to be set aside. 10. I have considered the submissions made by Ms. R. Choudhury and also meticulously examined the records. On perusal of the judgment rendered by the First Appellate Court it is evident that the learned Court below has merely recorded the versions set out by the respective parties in the plaint as well as in the written statement. The only finding as well as conclusion recorded by the First Appellate Court is quoted as below: "I have meticulously analysed the evidence on record with due care and circumspection. Upon subjecting the whole evidence into searching its scrutiny, it is reflective of the version of DW 1 that his brother Nuruj Ali sold the suit land in favour of the plaintiff vide Ext.4. It was also admitted by DW 1 to the effect that the suit land and its eastern, northern and western boundary were covered by dag No. 575. This find alone prods me to hold that the defendant No. 2 sold the suit land encompassed by dag No. 575. It is further condescending to observe that the plaintiff has the right, title and interest over the suit land besotted by said Dag No. 575 and unquestionably the present suit is maintainable per se. The point is decided accordingly." 11. From the above, it is evident that the said judgment and decision of the First Appellate Court is vitiated on the face of the record, the same not being in compliance with Order XLI Rule 31 of the CPC. The learned First Appellate Court has neither applied its mind on any of the issues raised before it nor has it recorded any decision in respect thereof. The learned First Appellate Court has neither applied its mind on any of the issues raised before it nor has it recorded any decision in respect thereof. In that view of the matter, the judgment and decree passed by the First Appellate Court is not sustainable in the eye of law. 12. Having held that, let us now consider whether the evidence on record is sufficient so as to decide the title suit on merit. On an examination of the materials on record it is seen that the plaintiff has purchased the land measuring one josthi by means of Ext-4 sale deed wherein the land has been shown to be covered by dag No. 621. The sale deed Ext-4 also clearly demonstrates that the plaintiff was put in possession of the land of dag No. 621 by his vendor. It is also the admitted position of fact that the boundary given in the Ext-4 sale deed reflects the correct position in the field. The only compliant the plaintiff has is regarding the mention of the dag No. in the sale deed which according to the plaintiff ought to have been 575 instead of 621. 13. On examination of the records, it could be seen that earlier there was a civil proceeding in the form of Title Suit No. 134/1994 by and between Akaddas Ali, Makaddas Ali and the plaintiff which ended in a compromise on the basis of a compromise decree passed on 19.04.1995 issued by the Sadar Munsiff, Karimganj. The said compromise decree has been exhibited as Ext-B. From a perusal of Ext-C, which is the associated compromise petition containing the terms and conditions of compromise, it can be clearly seen that it was mutually agreed by and between the parties including the plaintiff that the land of dag No. 575 was to be enjoyed by Akaddas Ali and Makaddas Ali. From the aforementioned Exts-B & C it appears that the plaintiff had made an attempt even on an earlier occasion to gain over land of dag No. 575 but he could not succeed and the matter ended in a compromise in terms of Ext-C. 14. From the aforementioned Exts-B & C it appears that the plaintiff had made an attempt even on an earlier occasion to gain over land of dag No. 575 but he could not succeed and the matter ended in a compromise in terms of Ext-C. 14. From the pleadings it is clear that the plaintiff has alleged dispossession from the land by the defendants on the night of 15.01.1996 but surprisingly the plaintiff has not lodged any F.I.R. or complaint before any authority registering a protest as regards such illegal dispossession. The version of the plaintiff's witnesses, viz., PW 8 and PW 10 gives out conflicting pictures about the activities that the plaintiff claims to have been carrying out in the Schedule-II shop thereby punching a hole into the claim of possession of the plaintiff over the shop. Further the PW 1 i.e. the plaintiff himself has deposed that he had constructed the shop described in the Schedule-II on the same date on which the land was purchased by means of Ext-4 i.e. 28.03.1988. The aforesaid version of the PW 1 does not at all appear to be credible. Learned trial Court decreed the suit of the plaintiff holding that "the defendant No. 2, Nuruj Ali, sold dag No. 621 to plaintiff but nowhere it is mentioned by the defendants that defendant No. 2 also gave the possession of dag No. 621 to the plaintiff. The version of DW 1 that defendant No. 2 Nuruj Ali sold land of dag No. 621 to the plaintiff is not mentioned in the written statement submitted by the defendants and also no explanation is given regarding the selling of land to the plaintiff." A perusal of the Ext-4 goes to show that possession of the Schedule land covered by Dag No. 621 was delivered to the plaintiff by the defendant No. 2. Therefore, the aforesaid finding of fact appears to be perverse. 15. From a threadbare examination of the bulk of evidence available on record it can be seen that the plaintiff has completely failed to establish his claim that the land sold by Ext-4 pertains to dag No. 575 and not 621 as has been mentioned in the sale deed. Therefore, the aforesaid finding of fact appears to be perverse. 15. From a threadbare examination of the bulk of evidence available on record it can be seen that the plaintiff has completely failed to establish his claim that the land sold by Ext-4 pertains to dag No. 575 and not 621 as has been mentioned in the sale deed. The plaintiff has completely failed to prove and establish the fact that the defendant No. 2 had intended to sell land of dag No. 575 to the plaintiff or that the plaintiff had ever been put in possession of dag No. 575 as has been claimed by him. The plaintiff has also failed to establish by leading cogent evidence that he has been dispossessed from the suit land on 15.01.1996 as claimed by him. Since the plaintiff is claiming title over the Schedule-I land on the basis of Ext-4 sale deed which pertains to dag No. 621, hence, no decree can be passed in favour of the plaintiff appertaining to the suit schedule land which is evidently covered by dag No. 575 as the plaintiff has failed to prove that he had purchased any land from the defendants covered by dag No. 575. 16. In view of the reasons mentioned herein before, it is held that the plaintiff's suit is devoid of any merit. The judgment and order passed by the Court below is not sustainable in law. However, in view of the material evidence available on record sufficient for disposal of the appeal, hence, instead of remanding the matter to the Court below, this Court has invoked the power under Section 103 of the Code of Civil Procedure and decided the suit of the plaintiff on merit by determining the Issue Nos. 4 and 5 in the manner indicated herein above. 17. In the result, the appeal stands allowed. There would be no order as to cost. The records of the lower Court be sent back immediately. Appeal Allowed.