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2015 DIGILAW 376 (GAU)

SACHINDRA ROY v. BASANTI ROY

2015-03-26

HRISHIKESH ROY

body2015
ORDER (ORAL) Heard Mr. S.K. Ghosh, the learned counsel for the petitioners, who were the defendants in the Title Suit No.118/1993. But there is no representation from the respondents, although notice was duly served upon them, as was recorded on 23.04.2013 by this Court. 2. The predecessor of the respondents, Bhabesh Chandra Roy filed the suit under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as the “S.R. Act”) against the present petitioners as defendants in the Court of the learned Civil Judge (Jr. Division) No.1, Hailakandi. This case was registered as the Title Suit No.118/1993 for restoration of possession of the suit land. The defendants (petitioners herein) on receipt of the summons entered appearance and contested the said proceeding under Section 6 of the S.R. Act by denying the claim of the plaintiff regarding possession and also asserting that Bhabesh Chandra Roy, (son of Late Sonachand Roy) is in fact not the plaintiff and the person who has filed the suit is Bhabesh Chandra Roy, (son of Durjodhan Roy). In fact Bhabesh Chandra Roy, son of Sonachand Roy died in long back. 3. The learned Civil Judge (Jr. Division) No.1, Hailakandi, decreed the Title Suit on 22.12.1999 by answering the Issue No.3 in favour of the plaintiff and directed restoration of possession of the suit land under Section 6 of the S.R. Act. 4. The aggrieved defendants then filed the CRP No.150/2000, where it was projected that the Trial Court failed to discuss the evidence from the defendants’ side. Accepting this contention to be correct, the Revision Petition was disposed of on 15.02.2006 (Annexure-2) by quashing the decree dated 22.12.1999 and remanding the case to the Trial Court by confining the adjudication process to Issue Nos.3, 4 and 5 respectively. 5. Following the remand, the case was considered afresh and through the impugned judgment dated 14.05.2009 (Annexure-3), the suit was again decreed by directing restoration of possession to the plaintiff. Consequently, this 2nd Revision Petition is filed by the aggrieved defendants. 6. Mr. S.K. Ghosh, the learned counsel submits that despite this Court’s direction in the earlier round, the trial Court failed to take into account the evidence led by the defendants. He further submits that the date of dispossession of the plaintiff was not determined nor proved by the plaintiff and therefore the restoration of possession was undeservingly granted by committing jurisdictional error. He further submits that the date of dispossession of the plaintiff was not determined nor proved by the plaintiff and therefore the restoration of possession was undeservingly granted by committing jurisdictional error. The counsel also submits that the suit land was the ancestral property of the defendants inherited from their father Sonachand Roy and the plaintiff being a half brother, can at best be a co-sharer with the defendants for the suit property and there cannot be a dispossession of a co-sharer, since all the inheritors jointly possess the ancestral property. 7. The plaintiff Bhabesh Chandra Roy testified as PW-4 and in his testimony he failed to mention any specific date of dispossession. But PW-4 stated that he informed Jalal Uddin Choudhury (PW-5) immediately after the aggression of the defendants. But interestingly the PW-5 in his cross-examination was unable to testify when the defendants forcefully ploughed the suit land. Similar vague evidence was given by the PW-1 Kamal Hussain, who stated about dispossession of the plaintiff 3½ years ago on a Saturday. Interestingly the PW-3 Tabarak Ali had stated that the suit land was under possession of both the plaintiff and the defendants. In his cross-examination, he couldn’t indicate when the defendants dispossessed the plaintiff or who possessed the land. The PW-2 Kamar Uddin did not speak of any date of dispossession. 8. On the other hand, the defendant No.1 Sukhlal Roy stated that the plaintiff is his half brother, who is the son of Durjodhan Roy and Surabala. But after Durjodhan died, the widow Surabala lived with the defendants’ father Sonachand Roy. The witnesses further stated that the plaintiff as a half brother was allowed to occupy 2 powa (approximately 1440 sq.ft. of land) of Tilla land where he still resides and he has no other land in his possession, as he did not inherit any ancestral property of Sonachand Roy. Similar evidence was given by the DW-2 Sachindra Roy, who stated that the plaintiff has not acquired any right over the paternal property and the plaintiff is residing on a Tilla land as a licencee and he does not possess any other land except the homestead land. The DW-4 Anowar Uddin as a co-villager stated that the plaintiff is in possession of only the homestead land given by the defendant Sukhlal Roy and there was no partition of the family property of late Sonachand Roy. 9. The DW-4 Anowar Uddin as a co-villager stated that the plaintiff is in possession of only the homestead land given by the defendant Sukhlal Roy and there was no partition of the family property of late Sonachand Roy. 9. From the above evidence, it is clear that none of the plaintiff’s witnesses could prove the exact date of dispossession. In cases under Section 6 of the S.R. Act, the possession and dispossession are the relevant issues and in the absence of any finding on the precise date of dispossession and also on possession of the plaintiff over the suit land, discretionary relief under Section 6 can’t be granted to any litigant. 10. But despite the non-availability of the evidence on the precise date of dispossession and disregarding the defendants’ evidence, the Trial Court ordered for restoration of possession, by decreeing the suit. 11. What is glaring here is that the learned Munsiff failed to consider that the defendants are co-sharers and the suit relates to ancestral property and the evidence do not show that this family property was partitioned and demarcated share was handed over to the respective legal heirs. Moreover, the vital evidence of the defendants was not discussed and considered, despite the specific direction given in the CRP No.150/2000. Therefore it is apparent that the impugned judgment is not in conformity with the direction given by this Court on 15.02.2006 (Annexure-2) in the CRP No.150/2000. 12. For the aforesaid reason, the judgment and decree dated 14.05.2009 (Annexure-3) in the Title Suit No.118/1993 rendered by the learned Munsiff No.1, Hailakandi, is found to be unsustainable and is set aside. The matter is remanded back for a fresh adjudication in light of the observation made in the preceding paragraphs. It is ordered accordingly. As the respondents/plaintiffs are absent, the learned Trial Court will issue fresh notice on them. 13. The Revision petition is allowed with the above direction without any order on cost. The Registry should send down the LCR with a copy of this order.