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2015 DIGILAW 240 (GAU)

Monoj Dihingia v. Nabin Kr. Gupta

2015-02-27

RUMI KUMARI PHUKAN

body2015
JUDGMENT : Rumi Kumari Phukan, J. 1. Heard Mr. B. Banerjee, learned counsel for the appellants. Also heard Mr. P.P. Baruah, learned counsel for the Respondents. This is an appeal under Order 41 Rule 1 of the Code of Civil Procedure, 1908, against the judgment & decree dated 31.03.2005 passed by the learned District Judge, Dhemaji, in Title Suit No. 13/98. 2. The brief facts of the case, is that the appellants as plaintiff instituted a Title Suit, mentioned above, before the Court of learned District Judge, against the respondents defendants originally praying for a decree of ejectment of the defendant No. 1 who was a tenant in respect of the house, let out by the plaintiff/appellant to the said defendants/respondents and also to declare right, title, interest over the suit land, with a further prayer for declaration of Sale Deed dated 24.04.1967, as void, illegal and for its cancellation, which was allegedly made in favour of the Respondents No. 2 and 3. The father of the appellants, late Mahendra Nath Dihingia, was the owner of a plot of total land measuring 3 Bighas 4 Kathas 2 lechas under periodic Patta No. 42 Dag No. 180 and under periodic patta No. 43, dag No. 182 of Block No. 2 of Dhemaji Town. Out of that, land 2 kathas 10 lechas is the suit land as described in the schedule of the plaint. The father died in 1981 and gave the suit land in favour of the appellants in 1978 and on 30.12.1978, the names of the appellants were recorded on Revenue Record as Pattadars of the said Suit Land. The appellant No. 1 had constructed his permanent dwelling houses over the suit land during the lifetime of his father. He subsequently let out some of his houses constructed over a period of time over the said suit land, on monthly rental basis, including Respondent No. 1/defendant No. 1. However, the Respondent No. 1 has failed to pay his due rents and denied the ownership of the appellants over the suit land and claimed to be a tenant under the Respondents No. 2 and 3. Hence, the said suit was filed by the plaintiffs/appellants. The appellants has been paying revenue and other municipal taxes and other dues to the authorities concerned and relevant receipts have already been submitted before the Court below. 3. Hence, the said suit was filed by the plaintiffs/appellants. The appellants has been paying revenue and other municipal taxes and other dues to the authorities concerned and relevant receipts have already been submitted before the Court below. 3. The Respondent No. 1, submitted his written statements denying the right of the plaintiffs as his landlords. The defendants No. 2 and 3 had also submitted written statements denying the right of the plaintiff as men landlords and a counter claim praying for a decree of declaration of right, title, interest over the suit land and also for delivery of possession by demolishing the houses constructed by the plaintiffs over the said suit land. 4. In response to that, the plaintiffs/appellants had filed their written statements. As many as 7 witnesses were on behalf of the appellants/plaintiffs and 5 witnesses were examined on behalf of the respondents/defendants. 5. On perusal of the records and after hearing the learned counsel appearing for the parties, the learned Court below came to an illegal finding on wrong appreciation of the record, by rejecting the claim of the plaintiffs/appellants and by decreeing the counter claim of the defendants/respondents by its judgment dated 23.03.2005 and decree dated 31.03.2005 passed in Title Suit No. 13/98 by the learned District Judge, Dhemaji. 6. Being highly aggrieved with the said judgment/decree, abovementioned, the appellants/plaintiffs have preferred the instant appeal, on the grounds that (i) the learned Court below has committed gross error of law as well as fact in declaring the T.S. No. 13/98; (ii) the learned Court below has failed to determine the validity of the alleged Sale Deed, in question; (iii) the learned Court below has also failed to determine the right, title of the plaintiffs/appellants over the disputed land; (iv) the learned Court below has failed to appreciate the evidence in respect of the fact that admittedly the names of the defendants/respondents Nos. 2 & 3 were stuck off from the revenue record; (v) the counter claim filed by the defendant/respondents is not maintainable and barred by Law of Limitation; and (vi) the decree passed by the learned Court below is not in conformity with the Judgment or the claim of the parties as such, the said Judgment/ decree is liable to be set aside and quashed. 7. 7. The basic contention of the learned counsel for the appellants is that the findings of the learned Court below is not maintainable on account of the fact that no issue upon the counter claim was framed by the learned Court below and the fact that the name of the respondents No. 2 and 3 were stuck off from the revenue record, is also not considered. It is also the contention of the learned counsel for the appellants that the counter claim is barred by law of limitation. On the other hand, the learned counsel for the respondents, has vehemently opposed the submission of the appellants' side on the ground that the learned Court below has properly appreciated each and every aspect of the case including the counter claim and as such, non-framing of issue on the counter claim will not affect the merit of the case. There is no irregularity in the impugned judgment which may call for interference by the appellant Court on such technical aspect. According to the learned counsel for the appellants, the appellants being the Hindu, are governed by the law of inheritance and as they have not denied about the ownership of their father over the disputed land, so they cannot defy the Sale Deed on the saying that "that they are not bound by any such Sale Deed executed by their father". The appellants have also not challenged the counter claim allowed by the trial court and filed the appeal, merely, on hypothetical ground. The appellants cannot claim right, title and interest over the disputed land merely on the entry in the revenue record. 8. After going through the rival contentions of the parties and findings of the learned Court below having regard to the pleadings between the parties, some other aspect appears to have more importance over and above the submissions of the parties. If we go through the plaint in the LCRs, it would disclose that the case has been filed in a vague manner which itself fails to divulge as to from what point of time, the defendant No. 1 was allowed to stay in the disputed land and pointing to the year 1981, it is stated that after the death of their father, they resolved to claim rent from defendant No. 1. For the first time, they sent a Legal Notice on 06.01.1997 to defendant No. 1 claiming rent when the defendant denying the tenancy under the plaintiff/appellants, disclosed that one late Punaram Gogoi is the owner of the said room. Denying any sort of transaction by their father, the appellants have filed the case claiming rent from the respondent at the rate of Rs. 500/- w.e.f. 06.01.1997. Thus, the case of the appellants is itself under camouflage and no specific reason is made out for staying of respondent No. 1 upon their land for more than a decade and suddenly claimed the defendant as tenant The appellants amended the plaint in view of assertion of the defendant No. 2 & 3 that the land has been sold far back in the year 1967, by their father and they prayed for cancellation of the Sale Deed dated 24.04.1967 as well as prayed for right, title, and interest over the suit land and also prayed for recovery of possession and realization of 'arrear rent'. 9. The learned Court below framed the following issues for adjudication of the matter. "(i) Whether there is cause of action for the suit? (ii) Whether the plaintiff has right, title, and interest over the suit property? (iii) Whether the defendants No. 2 and 3 namely Thanda Gogoi and Chandra Gogoi have right, title, and interest over the suit property? (iv) Relief/reliefs the parties are entitled to?" 10. It can be seen that the defendants No. 2 and 3 contended that the disputed land has already been sold to their grandfather Manohar Gogoi and they were possessing the land by way of inheritance and thus, they preferred the counter claim, claiming right, title and interest, in view of which issue No. 3 was framed and it appears that it covers the counter claim also and the learned Court below has appreciate all the aspects under the above issue. So non-framing of separate issue on the counterclaim does not vitiate the trial. Both the issues No. 2 and 3 relates to one answer as to which party has the right, title and interest over the disputed land and it covers the discussion as regards counter claim. 11. So non-framing of separate issue on the counterclaim does not vitiate the trial. Both the issues No. 2 and 3 relates to one answer as to which party has the right, title and interest over the disputed land and it covers the discussion as regards counter claim. 11. To assert the right, title, and interest over the disputed land, the appellants have relied upon the revenue records whereas the defendants have relied upon the copy of chita book as well as the Sale Deed executed by the father of the appellants in favour of late Manohar Gogoi who was the grandfather of the defendants. It is the evidence of the defendants that the Sale Deed was executed by way of registration on 24.04.1967 but the appellants' side showed ignorance about the execution of the registered Sale Deed by their father and also disclosed that they are not bound by such Sale Deed even if it was executed by their father. In the case of Sawarni (Smt) Vs. Inder Kaur (Smt) & Ors, reported in (1996) 6 SCC 223 , it has been held that mutation of name in revenue records does not create or extinguish the title nor has any presumptive value on title it only entitles the person concerned to pay land revenue. 12. Here lies the crux of the matter. The appellants could not assail the legality/validity of the Sale Deed so executed by their father. A simple denial of such execution can not made non-est the very execution. It is also not denied that their father was not the owner of the property so as to sale his property. The appellants itself inherited the property from their father, men they cannot challenge the capacity of their father to dispose of his property. The property was sold far back in the year 1967 and it has been brought on evidence by the defendants that the name of Punaram Gogoi who is the son of Manohar Gogoi (who purchased the land) was inserted in the chita book of the surveyed village in respect of the suit land but PW 6/Laat Mandal failed to disclose as to how the name of the appellants was inserted in the chita book by deleting the name of the said Punaram Gogoi. The very fact that the name of Punaram Gogoi initially was inserted in the chita book indicates that it was done on the basis of the Sale Deed. That is also the legal position that title cannot be claimed on the basis of revenue record and it can only be claimed by way of inheritance or by way of sale/gift, etc. The learned court below has dealt with the subject in a lucid manner and has rightly hold that the registered Sale Deed is a valid deed of transfer. In absence of any other ground like fraud, insanity, etc, while execution of the registered Sale Deed, there is nothing to disbelieve/discard the registered Sale Deed proved by the defendants. 13. As per the Transfer of Property Act, there are only two modes of transfer of immovable property, by sale (i) registered deed and (ii) delivery of possession. Ordinarily, the Sale Deed which was registered first has to prevail in the matter of conveyance of title over others. The title under a Sale Deed passes on the day of execution of the Sale Deed even if the registration of the Sale Deed is completed on a later date. A combined reading of Sections 8 and 54 of the Transfer of Property Act, suggest that on execution and registration of a Sale Deed, the ownership and all interests in the property, passes to the transferee. 14. Learned counsel for the appellant has submitted that the impugned judgment based on the counter claim of the defendant and vide Para 16 of the written statement the defendants specifically admitted that cause of action arose in the year 1993 but they have not filed any suit within 3 years as required under Article 113 of the Limitation Act. The Court also framed no issue on the point of limitation. Refuting the argument so advanced it has been argued by the learned counsel for the respondent that the claim of the defendant/ respondent by way of counter claim is govern by Article 64 i.e. 12 years from the date of dispossession. The said point of limitation had neither raised by the plaintiffs/appellants nor stated in their pleadings. Non framing of an important issue is not fatal inasmuch as admittedly in the instant case the counter claim is not bar by limitation it does not prejudice any of the litigants. The said point of limitation had neither raised by the plaintiffs/appellants nor stated in their pleadings. Non framing of an important issue is not fatal inasmuch as admittedly in the instant case the counter claim is not bar by limitation it does not prejudice any of the litigants. Both parties were aware of the issue and led evidence and in the impugned judgment all matters on the pleadings has been discussed. In AIR (2003) SCC 2985 Sayeda Akhtar Vs. Abdul Ahad, it has been held that non framing of specific issue is not fatal where the parties were aware of that issue and has lad evidence and the court considering the pleadings of the parties on the issue as also materials brought on record as decided the suit Similarly in AIR (1994) Guw 64 Monwanjan Paid & Ors. Vs. Norendra Kr. Paul & Ors., it has been held on the omission to frame issue as under:- "since the parties went to trial knowing fully the rival case and led all evidences not only in support of their contentions but in refutation of those of the other side it cannot be said that the absence of an issue was fatal to the case or that there was that mistrial which vitiate proceedings." 15. In view of the legal pronouncement if we consider the case in hand that both the parties have already led their evidence knowing fully about the claim and counter claim etc, so the impugned judgment cannot be discarded for non framing of issue. In respect of the submission about application of Article 113 of Limitation Act, there appears no any basis as to why this point has been raised as the Article 113 is applicable for the suit for which there is no prescribed period which runs as follows: "Article 113 any suit for which no period of limitation is provided elsewhere in the schedule-period of limitation of 3 years when the right to sue accrues." Evidently, this Article is not applicable to the case in hand nor the Article 64 of the limitation is applicable as has been submitted by the learned counsel for the respondent. In view of the fact that the defendant/respondent has prayed for right, title and interest and possession over the suit land by way of counter claim so the case will be covered by Article 65 of limitation Act, Wherein it provides that the possession of immovable property or any interest therein based on title, the limitation is 12 years when the possession of the defendants became adverse to the plaintiff In (1992) 1 GLR 52 A.W. Figgis and Company Pvt. Ltd. Vs. Ms. Barduar Tea and Timber Company Ltd. It has been categorically held as below:-- "The question of period of limitation in case of counter claim has therefore, to be examined in the light of the aforesaid legal position of counter claim. Though no specific period of limitation has been prescribed in Rules 6A to 6D for making a counter claim, such claims will be governed by the period of limitation that would be applicable to a suit to enforce the same. It is also borne out from provisions of section 3(2)(b) of the Limitation Act. 1963, which specifically provides that for the purpose of that Act any counter claim shall be treated as a separate suit and shall be deemed to have been instituted on the date on which the counter claim is made in the court. Rules 6A and 6D of the CPC read with the aforesaid provisions of the Limitation Act made it clear beyond all doubt that counter claims should be filed within the period during which a separate suit could have been filed to enforce the claim (Para 6). As stated above, the counter claim has the effect of a cross suit and it is treated as a plaint. It shall, therefore be governed by the limitation applicable to such suit. It cannot get a different period of limitation when set up as the counter claim than the one available when an independent suit is filed. This view is reinforced from the provisions of Rule 6C which empowers the court, in certain cases, to exclude the counter claims and direct it to be tried as an independent suit." 16. It cannot get a different period of limitation when set up as the counter claim than the one available when an independent suit is filed. This view is reinforced from the provisions of Rule 6C which empowers the court, in certain cases, to exclude the counter claims and direct it to be tried as an independent suit." 16. In the present case in hand the defendant in his counter claim it has been mentioned that in the year 1993 there was forceful possession of the appellant in some of the part of the disputed land but however they did not file any suit due to financial constraint, and has however raised the plea by way of counter claim in the WS which is not barred in view of Article 65 of the Limitation Act and in view of above legal proposition that such counter claim can be treated as plaint and has the affect of cross-suit Accordingly, counter claim is very much maintainable and the learned court below rightly allowed the same considering the entire matter on record. 17. In view of the proposition of law, the registered Sale Deed so executed in favour of the grandfather of the defendants, the seller cease to have any interest, right, over the property equally depriving the plaintiffs/appellants to claim any right over the disputed property by way of inheritance. By simply denial, the appellants cannot resist the result/ consequence of the legally valid documents. It can be safely held that the appellants have no right title, and interest over the disputed land and the subsequent entry in the revenue record in 1978 without any ground cannot confer any title upon the appellants. 18. In view of the status of the appellants who were no more rightful owner of the disputed land, cannot insist the defendants to be the tenant under them nor can claim any arrear rent. The evidence of the appellant/plaintiff No. 1 also reveals that their father allowed Manohar Gogoi to occupy the suit land in the year 1967 and present defendants are legal heirs of the said Monohar Gogoi. The evidence of the appellant/plaintiff No. 1 also reveals that their father allowed Manohar Gogoi to occupy the suit land in the year 1967 and present defendants are legal heirs of the said Monohar Gogoi. There is no any whisper that he was allowed to stay as a tenant Equally, all the witnesses of the plaintiffs admitted the possession of Monhar Gogoi and Punaram Gogoi over the suit land and it is also admitted by all the witnesses of the appellants that the suit land was in the name of the defendants Chanda Gogoi and Jhanda Gogoi as per Municipal Records. 19. In view of all matters on record, it can be arrived at that the mutation of the land in the name of the appellants at the subsequent stage which is again not satisfactorily explained as has been discussed above cannot confer any legal right upon the appellants as has been claimed by them. I find no any irregularity and illegality in the impugned order so passed by the learned District & Sessions Judge, Dhemaji, and there is nothing to set aside the order. Accordingly, the impugned order dated 1.03.05 passed in Title Suit No. 13/98 by the learned District Judge is hereby uphold. However, it is noted that no order has been passed by the learned Court below regarding court Fee the counter claim. So, it is hereby directed that the respondents will pay the necessary Court Fee as regard the counter claim, it not already paid. Return the LCRs forthwith.