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2015 DIGILAW 259 (GAU)

Kanak Chandra Goswami v. Nirada Das and others

2015-03-03

SUMAN SHYAM

body2015
Suman Shyam, J. (Oral) – This Second Appeal is directed against the judgment and decree dated 16.07.2004 passed by the learned Civil Judge (Senior Judge) No.2, Guwahati in Title Appeal No.64/2002 allowing the appeal and setting aside the judgment and decree dated 30.09.2002 passed by the Civil Judge (Junior Division) No. 2, Guwahati in Title Suit No.93/1997. 2. The plaintiff/appellant's case in brief is that he had purchased the suit land measuring 2 kathas from its registered owner by means of registered deed of sale bearing No.5776/1968 and thereafter got delivery of possession of the purchased land. Subsequently, the name of the plaintiff had also been mutated in the revenue records in respect of the said plot of land. However, since the plaintiff had to remain away from the suit land in connection with his service, the defendants, being the legal heirs of vendor, forcibly entered the suit land in the year 1989 and refused to vacate the said land. On several occasions, the plaintiff had requested the defendants to vacate the suit land and even served notices upon the defendants but to no availed. Such being the position, the plaintiff was compelled to institute the Title Suit No.93/1997 in the Court of Civil Judge (Junior Division) No.2, Gauhati, praying for a decree declaring his right, title and interest over the suit land and also for recovery of khas possession by evicting the defendants therefrom. 3. The defendants/respondents contested the suit by filing written statement. The case of the defendants, projected in the written statement, is that at no point of time late Balen Chandra Das i.e., the predecessor-in-interest of the defendants had sold the suit land to the plaintiff. They also denied that the possession of the suit land was never delivered to the plaintiff. According to the defendants, late Balen Chandra Das, during his life time, had constructed a thatched house on the suit land and had been living therein with his family until his death. After the death of Balen Chandra Das, the defendants removed the thatched house and constructed an Assam type house over the suit land. The defendants also questioned the maintainability of the suit on the ground of limitation, improper valuation of the suit and deficit Court fee. After the death of Balen Chandra Das, the defendants removed the thatched house and constructed an Assam type house over the suit land. The defendants also questioned the maintainability of the suit on the ground of limitation, improper valuation of the suit and deficit Court fee. On the basis of the pleadings of the parties, learned trial Court framed as many as 9 issues which are as follows:- "(1) Whether the suit is maintainable in its present form and circumstances? (2) Whether there is any cause of action? (3) Whether the suit is barred by limitation? (4) Whether the suit property is properly valued and prayer court fee is paid on the valuation of the suit land and separate fixed court fee for declaration? (5) Whether the sale deed No.5776 of 1968 has been executed by Lt. Balen Ch. Das? (6) Whether the sale deed No.5776 of 1968 is forged, false and fabricated? (7) Whether the plaintiff has right, title and interest over the suit land? (8) Whether the plaintiff was in possession of the suit land and entitled to khas possession of the suit land? (9) What relief/or reliefs the parties are entitled under the law and equity?" 4. The plaintiff side adduced evidence by examining 3 (three) witnesses viz, PW-1, PW-2 and PW-3, besides producing documentary evidences in support of his case. The defendant's side had also examined witnesses besides adducing documentary evidences. Upon considering the materials on record, the learned Trial Court decreed the suit filed by the plaintiff by answering all the issues in favour of the plaintiff by the judgment and decree dated 30.09.2002. 5. Being aggrieved by the judgment and decree dated 30.09.2002 passed in Title Suit No.93/1997, the defendants as appellants preferred Title Appeal No.64/2002 before the Court of Civil Judge (Senior Division) No. 2, Guwahati. The learned First Appellate Court upon hearing the parties and examining the materials on record categorically recorded the findings that the plaintiff has been able to prove the registered deed of sale and therefore, the question of title of the plaintiff over the suit land as well as delivery of possession was found in favour of the plaintiff. The learned First Appellate Court however, held that since the appellant suit was not filed within 12 years of alleged dispossession, hence, the same was hit by the bar of limitation under article 64 of the Limitation Act 1963. The learned First Appellate Court however, held that since the appellant suit was not filed within 12 years of alleged dispossession, hence, the same was hit by the bar of limitation under article 64 of the Limitation Act 1963. The learned First Appellate Court held that the plaintiff had also not properly valued the suit and therefore no proper Court fee has been paid by the plaintiff. On the basis of the aforesaid findings, the suit filed by the plaintiff was dismissed by the judgment dated 16.07.2004 passed in Title Appeal No.64/2002. 6. Being aggrieved by the aforesaid judgment and decree passed by the learned First Appellate Court in Title Appeal No.64/2002, the plaintiff as appellant has preferred the Second Appeal. 7. The Second Appeal was admitted to be heard on the following substantial questions of law:- "(i) Whether the learned Lower Appellate Court was justified in applying Article 64 of the Limitation Act in the instant case which was a suit for possession based on titile? (ii) Whether the learned Lower Appellate Court who in concurrence with the finding of the trial Court held that the plaintiff has title over the suit land by right of purchase and that the plaintiff got possession of the suit land which was vacant at the time of purchase; was justified in dismissing the plaintiff's suit though no plea of adverse possession was raised or proved by the defendant? (iii) Whether the decision of the learned Judge on the question of limitation of the present suit is tenable under the law?" 8. I have heard Ms. T. Goswami, learned counsel appearing for the appellant. None appeared for the respondents despite the names of the learned counsels having been duly reflected in the cause list. 9. Ms. Goswami, learned counsel for the appellant submits that the suit of the plaintiff being one for recovery of possession based on title, article 65 of the Limitation Act 1963 would be applicable and not Article 64 of the Act of 1963 as has been held by the learned First Appellate Court. She submits that since the defendants have not claimed any adverse possession nor have they challenged the purchased deed of the plaintiff, the suit filed by the plaintiff for declaration and recovery of khas possession could not have been dismissed by holding the same to be barred by time. In support of her argument Ms. She submits that since the defendants have not claimed any adverse possession nor have they challenged the purchased deed of the plaintiff, the suit filed by the plaintiff for declaration and recovery of khas possession could not have been dismissed by holding the same to be barred by time. In support of her argument Ms. T. Goswami has relied upon a decision of the Hon'ble Supreme Court in the case of Indira v. Arumugam and Anr reported in AIR 1999 Supreme Court 1549 wherein, the Hon'ble Apex Court held that when the suit is based on title for possession, the plaintiff cannot be non-suited unless the defendants proves adverse possession for the prescriptive period. She submits that both the Courts below having recorded the concurrent findings of fact holding that the plaintiff has been able to prove his title, the learned appellate Court below erred in law in dismissing the suit filed by the plaintiff. 10. I have considered the submissions made by Ms. T. Goswami and have also perused the records. From the perusal of the judgment under appeal it is evident that the learned First Appellate Court has concurred with the finding of fact recorded by the trial Court as regards the question of title and delivery of khas possession in favour of the plaintiff in respect of the suit land. The plaintiff side had exhibited the registered sale deed marked Ex-1 and has proved the same. The plaintiff side had also exhibited the copy of the jamabandi Ex-3, certified copy of the order of mutation Ex-2 as well as land revenue paying receipts marked as Ex-4(1) & 4(9). Such finding of fact recorded by the Court below holding that the plaintiff has been able to prove his title and delivery of possession of the suit land has not been assailed by the defendants by filing any cross appeal. 11. The defendants side although, has alleged that the Ex-1 sale deed was a forged one, they neither challenged the sale deed in any appropriate proceeding nor have they been able to lead any evidence to establish that the sale deed was in fact a forged one. The defendants having taken the plea that the sale deed was forged, the burden was upon the defendants to prove and establish the same which they have failed to do. The defendants having taken the plea that the sale deed was forged, the burden was upon the defendants to prove and establish the same which they have failed to do. The defendants have not claimed any right over the suit land by way of adverse possession. 12. From the perusal of the pleadings of the parties it is evident that the plaintiff has alleged dispossession in respect of the suit land in the year 1989. As such, having regards to the pleaded stand of the plaintiff, the Title Suit having been instituted in the year 1997, the same was evidently not barred by limitation. It is trite law that in a suit based on title for recovery of possession once the title is established, the claim for recovery of possession made by the plaintiff cannot be defeated unless the defendants prove and establish their right by way of adverse possession. In a case where recovery of possession is based on title, the provision of article 65 of the Limitation Act 1963 would be applicable. In the case of Indira (supra) the Hon'ble Supreme Court has observed as follows:- "(5) It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the second appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the question of law framed by the learned Judge for disposing of the second appeal, this appeal is allowed. The impugned decision rendered is set aside and the second appeal is restored to the file of the High Court with a request to proceed further with the hearing of the appeal with respect to the substantial question aforementioned in accordance with law. No costs." 13. In view of the aforesaid discussions and the law declared by the Hon'ble Supreme Court it is evident that the learned Appellate Court has committed error in law by dismissing the suit even after finding the title in respect of the suit land in favour of the plaintiff. The questions of law framed by this Court therefore stand answered accordingly. In view of the aforesaid discussions and the law declared by the Hon'ble Supreme Court it is evident that the learned Appellate Court has committed error in law by dismissing the suit even after finding the title in respect of the suit land in favour of the plaintiff. The questions of law framed by this Court therefore stand answered accordingly. The judgment and decree passed by the learned First Appellate Court stands interfered with. The suit filed by the plaintiff would stand decreed. 14. Before parting with the records it would be pertinent to mention herein that although the learned First Appellate Court has held that the plaintiff has not valued the suit correctly and no proper Court fee has been paid by the plaintiff, yet such findings have neither been assailed by the appellant nor has any question of law been framed. It is also not the case of the appellant that any question of law arises for determination as regards the aforesaid issue. In that view of the matter it is made clear that the plaintiff would be liable to pay Court fee as has been determined by the learned First Appellate Court. The Second Appeal stands allowed to the extent indicated above. Decree be prepared accordingly. Registry to send back the LCR. Appeal allowed.