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2015 DIGILAW 232 (GAU)

Dimbeswaridutta and Ors. v. BDS Memorial High School

2015-02-25

MANOJIT BHUYAN

body2015
Heard Mr. S. K. Ghosh, learned counsel, appearing for the appellants. Also heard Mr. T. J. Mahanta, learned Senior counsel, appearing for the respondent school, assisted by Mrs. P. Bhattacharjee, Advocate. 2. Title Suit No. 25/1993 was instituted by Bidya Dhar Sharma Memorial High School, Jorhat, herein respondent/plaintiff, for eviction of the original defendant, i.e., Someshar Dutta, as well as for khas possession confirming the right, title of the plaintiff over the suit house, as described in the Schedule to the plaint. The cause of action arose when the original defendant, who was occupying the suit house in his capacity as the Chowkidar of the plaintiff’s school, refused to vacate the premises even after his retirement from service. Despite service of notices to the original defendant, the suit house was not vacated and the respondent/plaintiff was constrained to file the suit before the Court of Munsiff at Jorhat. 3. The original defendant, appellant herein, contested the suit and filed written statement alleging that the suit house was never a part of the school building and the same was constructed by him over Government waste land. The further averment in the written statement is to the effect that he had been occupying the suit house for about 27 years and the plaintiff’s school has no right to ask him to vacate the said premises. 4. Upon appreciation of the pleadings of both sides, the Trial Court framed as many as 4 (four) Issues, out of which Issue Nos. 2 and 3 were deemed more relevant. In the course of the trial, the plaintiff examined 2 (two) witnesses and exhibited 7 (seven) documents, whereas the defendant examined himself without exhibiting any documents. The Trial Court, while deciding upon the Issue Nos. 2 and 3, took into consideration the documents at Exhibit 1 to 7 produced by the plaintiff’s school. 2 and 3 were deemed more relevant. In the course of the trial, the plaintiff examined 2 (two) witnesses and exhibited 7 (seven) documents, whereas the defendant examined himself without exhibiting any documents. The Trial Court, while deciding upon the Issue Nos. 2 and 3, took into consideration the documents at Exhibit 1 to 7 produced by the plaintiff’s school. For ready reference, Exhibit 1 is the certified copy of the jamabandi; Exhibit 2 is the Certificate issued by the Sub-Deputy Collector, Jorhat, showing that the suit dags stand in the name of the plaintiff’s school; Exhibit 3 is the Municipality Tax Payment Receipt; Exhibit 4 is the Notice dated 16.12.1992 served upon the original defendant to vacate the premises; Exhibit 5 is the postal acknowledgement receipt thereof; Exhibit 6 is the application of the original defendant to the Head Master of the plaintiff’s school asking for permission to fix Corrugated Iron sheets on the roof of the suit house and Exhibit 7 is the Acquittance Roll showing the defendant working as Chowkidar since 05.03.1974. 5. The Trial Court took note of the fact that the original defendant, in his cross-examination, had deposed that he has no documents to show that the suit house and/or the land belonged to him. The Trial Court, upon appreciation of evidence, held that the suit house is covered by the patta land of the plaintiff’s school and the said suit house is situated within the compound of the plaintiff’s school. While affirming that the suit house had been constructed by the plaintiff’s school, also held that there is no evidence in support of the defendant to show that the suit house was constructed by him. The suit was decreed against the original defendant for eviction and khas possession, confirming the right, title of the plaintiff over the suit house. The said judgment and decree of the Trial Court was passed on 07.07.1997. 6. Title Appeal No. 25/1997 was preferred by the original defendant, later substituted by his legal heirs on his death, before the Court of the Additional District Judge (Adhoc), Jorhat. The First Appellate Court, upon appreciation of evidence on record, both oral and documentary, dismissed the appeal thereby affirming the judgement and decree of the Trial Court. The dismissal of the said Title Appeal No. 25/1997 was passed by judgement and decree dated 16.08.2003. 7. The First Appellate Court, upon appreciation of evidence on record, both oral and documentary, dismissed the appeal thereby affirming the judgement and decree of the Trial Court. The dismissal of the said Title Appeal No. 25/1997 was passed by judgement and decree dated 16.08.2003. 7. On second appeal before this Court, the same was admitted for hearing vide order dated 18.05.2004, on the following substantial question of law:- “I) Whether the learned lower Courts below erred in law in declaring the right, title and interest of the plaintiffs in spite of the fact that the plaintiff failed to produce any document of title? II) Whether the learned lower Appellate Court’s judgment is contrary to the provisions of Order 41, Rule 31 C.P.C.? “ 8. In so far as the first substantial question of law, so formulated, is concerned, the right of the respondent/plaintiff had been gone into and duly answered to by the Courts below. It is basically a question of fact and no interference is warranted, inasmuch as, the same would amount to reappreciation of evidence and arriving at a different finding contrary to the findings recorded by both the Courts below. Besides, the said substantial question of law, so formulated, is also found not relevant to the issue in hand. Accordingly to Mr. Ghosh, learned counsel, the Courts below could not have declared the right, title and interest of the plaintiff over the suit land on the basis of the Jumabandi produced and exhibited by the respondent/plaintiff. However, the fallacy in the arguments advanced by Mr. Ghosh is ex facie apparent. The plaintiff’s prayer in the suit is not for declaration of right, title and interest over the suit land but on the suit house only. In that view of the matter, the substantial question of law with regard to the suit land, as submitted by Mr. Ghosh, is of no relevance for the purpose of deciding this apeal. On the second substantial question of law, so formulated, this Court is of the opinion that the same also do not involve a substantial question of law, inasmuch as, there is no substantial defect in the procedure followed by the First Appellate Court while rendering its Judgement. As a result, no interference is warranted. 9. On the second substantial question of law, so formulated, this Court is of the opinion that the same also do not involve a substantial question of law, inasmuch as, there is no substantial defect in the procedure followed by the First Appellate Court while rendering its Judgement. As a result, no interference is warranted. 9. The existence of a substantial question of law being sine-qua-non for exercise of jurisdiction under Section 100 CPC, in the instant appeal, no such substantial question of law is involved. Accordingly, this appeal stands dismissed, however, without any order as to costs. 10. The Registry is to send back the records of the case to the appropriate Court forthwith.