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2015 DIGILAW 339 (GAU)

Powal Bora and Ors. v. Cheniram Bora and Ors.

2015-03-19

SUMAN SHYAM

body2015
Suman Shyam, J. 1. Heard Mr. I. Hussain, learned counsel for the appellant also heard Ms. P. Bhattacharya, learned counsel representing the respondents. This second appeal has been filed challenging the concurrent decision of the learned First Appellate Court rendered by the judgment and decree dated 24.09.2003 passed in Title Appeal No. 13/2000 affirming the judgment and decree dated 29.09.2000 passed in Title Suit No. 117/1993 by the learned Civil Judge (Jr.Div.) No. 1, Jorhat. The plaintiffs' case in brief is that their father late Bhola Katoni, as well as late Muhiram Bora and late Tholok Bora were all brothers being the sons of the late Fedela Bora. The father of the plaintiffs acquired ownership over the entire land measuring 12B-2K-7L covered by the PP No. 22 of Randhanijan Gaon under Parbotia mouza. It is the case of the plaintiffs that their father late Bhola Katoni got his name mutated in respect of the said land along with the recorded pattadar Smti. Swamalata Baruani (since deceased). However, after the death of Bhola Katoni, Muhiram Bora i.e. predecessor-in-interest of the defendant No. 2 to 6 got their names mutated on 09.11.1983 surreptitiously along with the plaintiffs therein, all of whom are heirs of late Bhola Katoni. The plaintiffs could come to know about the said mutation order, when they obtained certified copy of jamabandi of the suit patta. Being aggrieved by such illegal inclusion of the names of the predecessor-in-interest of the defendants in the jamabandi, the plaintiffs were compelled to institute the suit praying for declaration of right, title and interest, recovery of possession, for issuing precept to the District Revenue Authority and other consequential relief 2. The defendant No. 1, Muhiram Bora died before filing of the written statement. His legal representatives had been brought on record by substitution and as such the said legal representatives contested the suit filed by the plaintiffs by filing their written statement. In the written statement the contesting defendants, inter alia, took the plea that the suit patta originally belong to late Swamalata Baruani but the same was under the possession and occupation of Fedela Bora, predecessor-in-interest of both the parties. In the written statement the contesting defendants, inter alia, took the plea that the suit patta originally belong to late Swamalata Baruani but the same was under the possession and occupation of Fedela Bora, predecessor-in-interest of both the parties. On the death of Fedela Bora the aforesaid land was partitioned amongst the three sons and accordingly late Bhola Katoni, late Muhiram Bora and late Tholok Bora became the owner in possession of 1/3 share of land measuring 4B-15L each out of the total area of land measuring 12B-2K-7L in the occupation of Fedela Bora. It is also the case of the defendant that upon the land falling in the share of late Muhiram Bora, Govt. of Assam installed a water supply scheme. That apart, the local people of that area had also established a 'Namghar' on another part of the suit land. The defendants had claimed that they have been enjoying their share of land by paying land revenue without any interruption and as such submitted that there is no cause of action for filing the suit and hence the same deserves to be dismissed. Defendant have also pleaded that the suit was bad for non-joinder of necessary parties. 3. Upon the pleadings of the parties the learned Trial Court had framed following issues: (a) Whether there is any cause of action for the suit? (b) Whether the suit land is properly described in the schedule to the plaint? (c) Whether the suit is barred by limitation? (d) Whether the suit is bad for non-joinder of necessary parties? (e) Whether the plaintiffs are irregular? (f) Whether the parties are entitled to any relief, as sought for? (g) Whether the plaintiffs have any right to institute the instant suit? 4. On the basis of the materials available on record the Trial Court dismissed the suit of the plaintiff by deciding the issue No. 6 and 7 against the plaintiffs. 5. Being aggrieved by the aforesaid judgment and decree passed by the Trial Court in Title Suit No. 117/1993, the plaintiff as appellant preferred Title Appeal No. 13/2000 in the court of Civil Judge (Sr. Div.), Jorhat. By the judgment and decree dated 24.09.2003 passed in Title Appeal No. 13/2000 the learned Civil Judge (Sr. Div.), Jorhat dismissed the appeal filed by the appellant on the grounds and reasons mentioned therein. Div.), Jorhat. By the judgment and decree dated 24.09.2003 passed in Title Appeal No. 13/2000 the learned Civil Judge (Sr. Div.), Jorhat dismissed the appeal filed by the appellant on the grounds and reasons mentioned therein. Being aggrieved by such concurrent judgment and decree passed by the courts below the plaintiffs as appellants have preferred this appeal which was admitted for hearing on the following substantial questions of law: "1. Substantial question of law arises as to whether the first Appellate Court misread the evidence on records and failed to appreciate the evidence on records in its true perspective and arrived at a wrong conclusion and decision. 2. Substantial question of law arises as to whether the counter claim of the respondents/defendants is maintainable as decided under issue No. by the trial Court. 3. Substantial question of law arises as to whether Exhibit-3, the mutation order dated 15.06.92 is bad and illegal. 4. The substantial question of law arises as to whether the exhibit-2 does not conclusively proves that the suit land is the self acquired property of the plaintiffs father and is therefore is the documentary evidence in this aspect." 6. I have examined the judgment passed by the Court below and also perused the materials on record. From examination of the plaint filed in this case it is apparent that the schedule of the plaint does not indicate as to what is the area of the suit land nor is there any indication in the plaint as to what area of land is under the possession of the defendant the recovery of which is sought by the plaintiffs. In fact there is not even a whisper in the pleadings as to how and when the plaintiffs were dispossessed from the part of the land in respect of which they are claiming recovery of possession. That apart, from the perusal of the materials on record, it appears that the plaintiffs were basing their claim solely on exhibit-2 which is an order of mutation by the Assistant Settlement Officer, Jorhat. However, in the said order nothing has been indicated as to in respect of what area of land pertaining to which dag No. has the mutation in respect of Bhola Katoni been granted. However, in the said order nothing has been indicated as to in respect of what area of land pertaining to which dag No. has the mutation in respect of Bhola Katoni been granted. It will be significant to mention herein that even exhibit-2 order of mutation dated 05.08.1959 makes it clear that the said order of mutation was granted without affecting the title of the other parties of this dispute. In that view of the matter the said order of mutation cannot be held to be of any probative value on the basis of which declaration of title in respect of any area of land could be made in favour of the plaintiffs. 7. On perusal of exhibit-1 copy of jamabandi it is evident that the names of all the three brothers i.e. Bhola Katoni, Muhiram Bora and Tholok Bora have been entered therein in respect of the suit patta. Plaintiffs have failed to lead any evidence to show that same has been done fraudulently or by illegal means. The entries of names in the jamabandi gives raise to a presumption in the eye of law as regards the possession of the persons named therein in respect of the suit land. Although the such presumption to rebuttable in nature yet the plaintiffs have failed to lead any evidence to prove the contrary. Mr. I. Hussain, learned counsel for the appellant submits that even though the plaintiffs have failed to give necessary particulars of the suit land in the plaint clearly describing the area of land which they are claiming yet the said aspect can be gone into if the entire matter be remanded back for fresh trial by the court below. The said submission of Mr. Hussain cannot be accepted in view of the settled position of law that a matter cannot be remanded back to the lower court for retrial unless the judgment under appeal is set aside. The judgment under appeal can be set aside only if the same is found to be illegal for reasons to be recorded. On perusal of the judgment and decree under appeal, I do not find any infirmity in the same. The concurrent findings of facts recorded by the court below also appears to be based on record and therefore is not vitiated by perversity in the eye of law. On perusal of the judgment and decree under appeal, I do not find any infirmity in the same. The concurrent findings of facts recorded by the court below also appears to be based on record and therefore is not vitiated by perversity in the eye of law. Such being the position, there is no justifiable ground for this court to interfere with the concurrent findings of facts recorded by the courts below, more so because the plaintiffs had failed to make out a case for declaration of their right, title and interest over the suit land followed by recovery of possession. In view of the above, there is no merit in this second appeal and the same stands dismissed. Having regards to the facts and circumstances of the case there would be no order as to cost. Registry to send back the record.