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2015 DIGILAW 255 (GAU)

Mousumi Deb Roy v. Bijit Deb Roy

2015-03-03

SUMAN SHYAM

body2015
JUDGMENT Suman Shyam, J. 1. This second appeal has been preferred against the judgment and decree dated 01-03-2004 passed by the learned District Judge, Cachar, Silchar in Title Appeal No. 08/1998 allowing the appeal thereby reversing the judgment and decree dated 24-08-1998 passed by the learned Civil Judge (Sr. Dn.) No. 2, Cachar, Silchar in Title Suit No. 86/1998 decreeing the suit of the plaintiffs. 2. The brief fact of the case as set out in the plaint is that the suit land belonged to proforma defendant No. 8 i.e. "Shri Shri Madan Mohan Bigrah". The aforesaid plot of land measuring 13K 1Chattak covered by Dag No. 498 of 2nd R.S. Patta No. 32 surveyed from Dag No. 312 of R.S. Patta No. 13 covered by Municipal Holding No. 184 of Ward No. 24, Silchar Town was taken on lease by Late Rabindra Kr. Deb Roy i.e. the father-in-law of plaintiff No. 1, grandfather of plaintiff No. 2 to 4 and father of the defendant No. 7, in the year 1950 by means of a registered deed of lease on condition of payment of rent of Rs. 15/-. On the basis of the said deed of lease the predecessor-in-interest of the plaintiffs and the defendant No. 7 late Rabindra Kr. Deb Roy took over possession of the land and thereafter constructed permanent houses thereupon within 1 year from the date of settlement and dug a tank towards the eastern side of the plot of land and had actually resided on the said plot of land with his family until his death in the year 1970. Rabindra Kr. Deb Roy died leaving behind 2 sons viz. Ramendra Kr. Deb Roy and the defendant No. 7 Pradip Deb Roy. After the death of Rabindra Kr. Deb Roy his 2 sons, Ramendra Kr. Deb Roy and Pradip Deb Roy (defendant No. 7) inherited the suit property in equal shares. Ramendra Kr. Deb Roy is the predecessor-in-interest of the plaintiffs. 3. It is the case of the plaintiffs that the plaintiff No. 1 to 4 being the legal heirs of Ramendra Kr. Deb Roy was entitled to exclusive right, title and interest as well as possession over 50% of the suit land whereas the defendant No. 7 was entitled to similar rights in respect of the balance 50% of the land and properties described in the schedule of the plaint. Deb Roy was entitled to exclusive right, title and interest as well as possession over 50% of the suit land whereas the defendant No. 7 was entitled to similar rights in respect of the balance 50% of the land and properties described in the schedule of the plaint. The plaintiffs have further pleaded that the predecessor of the defendant No. 1 to 6 viz. Birendar Kr. Deb Roy was a refugee from east Pakistan and after coming to Silchar he had no business or income to support himself and his family. Considering the wretched condition of Birendra Kr. Deb Roy, late Rabindra Kr. Deb Roy acting purely on humanitarian consideration, allowed Birendra Kr. Deb Roy to reside in a part of the suit house with his family temporarily as a licensee. Birendra Kr. Deb Roy entered into possession of the suit house as a licensee under Rabindra Kr. Deb Roy promising to vacate the same on demand and/or by making arrangement of alternative accommodation. After the death of Birendra Kr. Deb Roy, his legal heirs viz. defendant No. 1 to 6 and more particularly the defendant No. 1 requested the husband of the plaintiff No. 1 to allow them to reside in the suit house for further period as a licensee and acting on the basis of such request and the relationship between the parties, the defendant No. 1 to 6 were allowed to continue in possession of the suit house as a licensee. The husband of the plaintiff late Ramendra Kr. Deb Roy was an employee of the ONGC, Sivasagar. In the year 1968 Rabindra Kr. Deb Roy had gone to Sivasagar along with his son Ramendra Kr. Deb Roy wherein he fell seriously ill and ultimately died at Sivasagar due to his illness in the year 1970. Ramendra Kr. Deb Roy was transferred from Sivasagar to Agartala in the year 1972 where he served the ONGC until his death on 18-05-1974. 4. The plaintiffs have pleaded that the plaintiff No. 1 along with her minor children had all along accompanied her husband Ramendra Kr. Deb Roy to the places of posting outside Silchar. However, after the death of her husband the plaintiff No. 1 became absolutely helpless. The plaintiff No. 1 was employed with the ONGC on compassionate ground and after some time she was transferred to Silchar wherein she moved along with her daughters. Deb Roy to the places of posting outside Silchar. However, after the death of her husband the plaintiff No. 1 became absolutely helpless. The plaintiff No. 1 was employed with the ONGC on compassionate ground and after some time she was transferred to Silchar wherein she moved along with her daughters. The plaintiff No. 1 has been repeatedly requesting the defendant No. 1 to vacate the houses in their possession standing over the suit land as the same was required by the plaintiffs for their own occupation. But the defendant No. 1 to 6 did not pay any heed to such request made by the plaintiff No. 1. On the contrary the plaintiff No. 1 found that taking advantage of their absence from Silchar, the defendant No. 1 had illegally raised some permanent construction over the land and also made some addition/alteration of the existing houses without taking permission from the concerned authority. It was only after the plaintiff No. 1 had made complaints before the Development Authority as regards such illegal construction undertaken by the defendant No. 1 without taking any permission that the Development Authority interfered in the matter and stopped the illegal construction undertaken by the defendant No. 1. The plaintiff therefore claimed that such illegal act on the part of the defendant No. 1 to 6 more particularly defendant No. 1 has given raise to the cause of action for the plaintiffs to institute Title Suit No. 86/1990 in the court of Civil Judge (Sr. Div.) No. 1, Cachar, Silchar, inter alia, praying for a decree declaring that plaintiffs have 50% lease hold right, title and interest and share in the property mentioned in the schedule to the plaint; for recovery of khas possession of their 50% share on land by demolishing the construction made by the defendant illegally; a preliminary decree be passed partioning the land and declaring separate possession of the plaintiff as well as the defendant No. 7 over their respective share; permanent and temporary injunction and for other consequential relief. 5. The suit filed by the plaintiff was contested by the defendant No. 1 to 7 by filing a joint written statement wherein the said defendants have raised formal pleas regarding maintainability of the suit, want of cause of action, suit being barred by limitation waiver and acquiescence. 5. The suit filed by the plaintiff was contested by the defendant No. 1 to 7 by filing a joint written statement wherein the said defendants have raised formal pleas regarding maintainability of the suit, want of cause of action, suit being barred by limitation waiver and acquiescence. Besides denying the claim of the plaintiffs, the stand taken by the contesting defendants in the written statement is that the suit land was taken in settlement in the year 1950 by Rabindra Kr. Deb Roy as a head of the joint family constituted of his younger brother Birendra Kr. Deb Roy. At the time when the settlement was taken by Rabindra Kr. Deb Roy, he was living in a joint mess with his younger brother Birendra Kr. Deb Roy who is the predecessor-in-interest of the defendant No. 1 to 6. It is the case of the defendants that after the settlement was taken a kachcha house was constructed on the land for residential purpose and thereafter the two brothers separated their mess and they were residing in the same homestead in different mess. Upon expiry of the original period of settlement which was 10 years, a fresh settlement was taken by Rabindra Kr. Deb Roy from shebait of the deity "Shri Shri Madan Mohan Bigrah and Shri Sivalinga Bigrah" by executing the bilateral deed of lease dated 23-12-1968 in respect of the suit property. According to the defendants, the present houses standing in the land were not constructed by Rabindra Kr. Deb Roy although the holding stands in the name of Rabindra Kr. Deb Roy. The defendants further pleaded that the municipal tax, betterment tax, urban area tax and rent to the land lord are being paid by the defendants. The defendants have also denied that Birendra Kr. Deb Roy was admitted in the suit property as a licensee and on the contrary they asserted that Birendra Kr. Deb Roy being the younger brother of late Rabindra Kr. Deb Roy, and the lease settlement having been taken by Rabindra Kr. Deb Roy as head of the joint family being the elder brother, both Rabindra Kr. Deb Roy and Birendra Kr. Deb Roy would have equal rights and interest over the suit property. Deb Roy being the younger brother of late Rabindra Kr. Deb Roy, and the lease settlement having been taken by Rabindra Kr. Deb Roy as head of the joint family being the elder brother, both Rabindra Kr. Deb Roy and Birendra Kr. Deb Roy would have equal rights and interest over the suit property. Therefore, the plaintiff No. 1 to 4 will be entitled to 1/4 of the share of the land and houses whereas the defendant No. 7 will also be entitled to 1/4 share. The remaining 1/2 portion of the suit land and houses will fall in the share of the legal heirs of Birendra Kr. Deb Roy who are represented by the defendant No. 1 to 6. The defendant No. 8 did not contest the suit filed by the plaintiffs. 6. On the basis of the pleadings of the parties the learned Trial Court framed as many as 7 issues, which are as follows: 1) Is the suit maintainable in its present form? 2) Is there any cause of action for the suit? 3) Is the suit bad for estoppels, waiver and acquiescence? 4) Have the plaintiff title to the extent as claimed? 5) Is the suit barred by limitation? 6) Have the contesting defendants Nos. 1 to 6 title and interest in the suit property? 7) To what relief, if any, the plaintiffs are entitled to? 7. Issue No. 4 and 6 being the key issues, were taken up together for consideration. After threadbare discussion of the material evidence on record the learned Trial Court recorded a finding in respect of issue No. 4 in favour of the plaintiffs. Issue No. 6 was decided against the contesting defendants. As the findings in regard of other issues had also been recorded in favour of the plaintiffs, hence, by the judgment and decree dated 24-08-1998 the learned Trial Court decreed the suit in favour of the plaintiffs. Being aggrieved by the aforementioned judgment and decree passed by the learned Trial Court, the defendant preferred Title Appeal No. 08/1998 in the court of learned District Judge, Cachar, Silchar assailing the judgment and decree passed by the Trial Court. After hearing the parties the learned First Appellate Court allowed the appeal by reversing the judgment and decree passed by the Trial Court thereby dismissing the suit filed by the plaintiffs. 8. After hearing the parties the learned First Appellate Court allowed the appeal by reversing the judgment and decree passed by the Trial Court thereby dismissing the suit filed by the plaintiffs. 8. Being aggrieved and dissatisfied by the judgment and decree dated 01-03-2004 passed by the District Judge, Cachar, Silchar in Title Appeal No. 08/1998 the plaintiffs as appellants preferred the instant second appeal which was admitted for hearing on the following substantial questions of law: (a) Whether the lease agreement, dated 23-12-68, relied upon by the learned lower appellate Court in support of the claim of the defendants/respondents in the suit is admissible in evidence? (b) Whether the impugned judgment, order and decree passed by the learned lower appellate Court without taking consideration of the evidence of PW 1, DW 1 and DW 2 in the case record are sustainable in law? (c) Whether the findings of the learned lower appellate Court that the predecessor of the plaintiffs had got no title over the suit land, oral evidence of the parties clearly confirms that both deeds Exhibit-1 and Exhibit-A are bilateral deeds executed by Rabindra Kumar Deb Roy etc. are perverse? 9. I have heard Mr. N. Dhar, learned counsel appearing for the appellant/plaintiffs. None appeared for the respondents/defendants when the appeal was taken up for hearing notwithstanding the fact that the names of the counsel have been duly reflected in the cause list. 10. Mr. N. Dhar, learned counsel for the appellant submits that the learned Trial Court had meticulously examined the pleadings of the parties as well as the evidence available on record pursuant whereto discreet findings of fact have been recorded by the Trial Court in respect of each of the issues. It is on the basis of such findings of fact recorded on the basis of material evidence available before the court, that the suit filed by the plaintiff/appellant was decreed. On the contrary, a perusal of the judgment and decision rendered by the First Appellate Court would go to show that the judgment and decree of the Trial Court has been reversed by the learned First Appellate Court without recording any concrete reasons based on materials on record. The grounds cited by the learned First Appellate Court leading to reversal of the decree is wholly based on surmises and conjectures having absolutely no footing on the evidence that was available on record. The grounds cited by the learned First Appellate Court leading to reversal of the decree is wholly based on surmises and conjectures having absolutely no footing on the evidence that was available on record. Relying upon the judgment passed by the Hon'ble Supreme Court in the case of Ishwar Dass Jain (Dead) through LRS Vs. Sohan Lal (Dead) by LRS reported in (2000) 1 SCC 434 . Mr. Dhar submits that the court of First Appeal is duty bound to examine the entire relevant evidence on record and thereafter arrive at an independent finding by giving reasons before reversing the judgment and decree passed by the lower court. He submits that in the instant case, no such exercise has been carried out by the learned First Appellate Court. 11. Relying on the decision of the Hon'ble Supreme Court reported in (2001) 3 SCC 190 Sanjay @ Kaka Vs. State (NCT of Delhi) Mr. Dhar submits that there is no conspicuous application of mind and recording of findings by the learned First Appellate Court before reversing the judgment and decree under appeal. He, therefore, submits that the judgment and decision rendered by the lower Appellate Court is not sustainable in the eye of law on such count alone. 12. Mr. Dhar further submits that the defendants had completely failed to prove and establish their case by proving Exhibit-A lease deed. Even the witnesses called by the defendants more particularly DW 2 did not support their case. Therefore, there was no material basis for the court below to arrive at a conclusion that the settlement of the suit schedule land was not taken by Rabindra Kr. Deb Roy for his exclusive enjoyment but was actually taken on behalf of the joint family as claimed by the defendant No. 1 to 7. In such view of the matter, Mr. Dhar submits that the impugned judgment and decree was not sustainable in the eye of law and hence, liable to be interfered. 13. I have considered the submissions made by Mr. Dhar, learned counsel for the appellant. I have also perused the material evidence on record as well as the judgment rendered by both the courts below. From the materials on record it can be seen that the Exhibit-1 deed of lease executed in the year 1950 is an admitted document and has not been questioned by the defendants in any form. I have also perused the material evidence on record as well as the judgment rendered by both the courts below. From the materials on record it can be seen that the Exhibit-1 deed of lease executed in the year 1950 is an admitted document and has not been questioned by the defendants in any form. The fact that Rabindra Kr. Deb Roy had taken the suit land in settlement from the defendant No. 8 in the year 1950 has not only been admitted in the written statement but the DW 1 (defendant No. 1) has also admitted the said fact in his evidence. Such being the position, from Exhibit-1 it is established beyond any doubt that the suit schedule land was taken by way of lease by late Rabindra Kr. Deb Roy in his own name, in the year 1950, pursuant whereto he was put in possession of the land where he has been residing with his family members until his death. The learned Trial Court has rightly recorded the findings on the basis of evidence on record deciding the issue No. 4 in favour of the plaintiffs. On the other hand, defendants though having claimed that subsequently the original lease was renewed by means of the fresh deed of lease dated 23-12-1968 marked as Exhibit-A by means of which the settlement was taken by Rabindra Kr. Deb Roy in his capacity as elder brother of the joint family constituted of the brothers including the predecessor of the defendants Nos. 1 to 6 viz. Birendra Kr. Deb Roy, the defendants could not prove the said Exhibit-A deed. 14. In the above context it would be relevant to point out herein that Exhibit-A appears to be certified copy of the alleged lease deed dated 23-12-1968. From the examination of evidence on record it can be seen that when the said documents was being introduced by DW 1, the plaintiff side had raised objection which has been duly recorded in the deposition. Such objection having been raised, it was necessary for the court to consider as to whether on account of non compliance of the condition laid down under Section 65 of the Indian Evidence Act, 1872, the defendant could have produced secondary evidence in the form of the documents Exhibit-A at all. Such objection having been raised, it was necessary for the court to consider as to whether on account of non compliance of the condition laid down under Section 65 of the Indian Evidence Act, 1872, the defendant could have produced secondary evidence in the form of the documents Exhibit-A at all. That apart, although DW 2 being the legal heir of the shebait of defendant No. 8 "Bigrah" was called as a witness to prove Exhibit-A, yet the said witness did not support the case of the defendant nor did he prove the Exhibit-A deed. It is the admitted position of fact that the scribe of Exhibit-A was still alive. However, no explanation is available as to why the defendants did not call the scribe or the surviving attesting witnesses to prove the Exhibit-A deed on the face of objection raised by the plaintiffs terming the said document a forged one. 15. On examination of materials on record it is thus clear that the defendants have failed to prove the document Exhibit-A. Another important aspect that needs to be mentioned herein is that it the consistent stand of plaintiffs that Rabindra Kr. Deb Roy had left for Sivasagar along with his son Ramendra Kr. Deb Roy on 15-12-1968 and thereafter never returned back to Silchar. The PW 1 in her testimony has categorically deposed the said fact and has also stated that having left Silchar on 15-12-1968 her father-in-law never returned back to Silchar and he in fact died in the year 1972 at Sivasagar. The said testimony of PW 1 has remained unchallenged as the defendants had not even made any suggestion against the said evidence led by the plaintiffs. If that be the case then the question of Rabindra Kr. Deb Roy executing the Lease Deed dated 23-12-1968 at Silchar cannot arise at all. 16. There is also no explanation as to why the defendant No. 7, who was a vital witness did not examined himself despite filing the joint written statement supporting the case of the defendant No. 1 to 6. From the aforesaid materials it appears that learned Trial Court rightly decide the issue No. 6 against the defendants and in favour of the plaintiff. Such being the position the consequent outcome of the suit was rightly decide in favour of the plaintiffs. 17. From the aforesaid materials it appears that learned Trial Court rightly decide the issue No. 6 against the defendants and in favour of the plaintiff. Such being the position the consequent outcome of the suit was rightly decide in favour of the plaintiffs. 17. On examination of the reasonings cited by the learned First Appellate Court I do not find any concrete basis for the First Appellate Court to reverse the findings of fact recorded by the Trial Court. It appears that merely relying upon the oral submission made by and on behalf of the defendants the learned First Appellate Court has reversed the judgment and decree passed by the Trial Court by holding that the plaintiffs were only entitled to 1/4 share in the suit property. The judgment of the First Appellate Court does not discussed any of the issues nor does it indicate any reason as to why the decision and conclusion recorded by the Trial Court is erroneous. I further find that the conclusion drawn by the First Appellate Court are wholly without any basis and the same have been recorded by ignoring material evidence on record. The First Appellate Court cannot reverse the judgment and decree passed by the Trial Court without recording independent findings on each of the material issues by discussing the evidence on record. 18. From the records of the case it is clear that the plaintiffs have been able to prove and establish their case by leading cogent evidence. However, the defendants side have failed to prove their version set out in the written statement. Such being the position the impugned judgment and decree passed by the First Appellate Court is not sustainable in the eye of law and as such the same is hereby set aside. The plaintiffs suit would stand decreed in terms of the judgment and decree passed by the Trial Court. The lower court record be send back. Parties to bear their own cost.