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2015 DIGILAW 398 (GAU)

Pranati Sarma v. Ganesh Phukan

2015-03-31

HRISHIKESH ROY

body2015
Hrishikesh Roy, J. – Heard Mr. SK Ghosh, the learned counsel appearing for the petitioner (plaintiff). Also heard Mr. GN Sahewalla, the learned senior counsel appearing for the respondent (defendant). 2. The T.S. No.26/2004 was filed for recovery of possession of the suit land under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as 'the S.R. Act'). The case of the plaintiff is that her future husband Hamen Sarmah was occupying the suit land since the year 1969 as a tenant under the original owner Late Puni Moral. After the plaintiff got married, she came to reside in the suit land with her husband Hamen Sarmah and together they purchased the land in the year 1975, from the original owner, for a sale consideration of Rs. 5110/-. The suit house contained two houses and in the house on the western boundary, the petitioner herself resided and the 2nd house on the eastern boundary, was let out by the plaintiff to one Chandan Bordoloi. As the plaintiff's house became dilapidated, she constructed another house and was hoping to move into the new house shortly but at that stage, the defendant instituted a false case under Section 144 of the CrPC on 19.12.2004 and forcibly dispossessed the plaintiff and occupied the newly constructed house. The tenant of the plaintiff from the other house was also dispossessed. Therefore restoration of possession under Section 6 of the S.R. Act was sought in the suit. 3. The defendant in his W.S. claimed to be lawful owner of the suit land which he purchased from the legal heirs of the original owner Late Puni Moral, through a registered sale deed and since the purchase, the defendant is in possession of the suit land. Moreover the plaintiff was projected to be a tenant under the defendant at a monthly rent of Rs. 500/- P.M. The defendant denied that Chandan Bordoloi was a tenant of the plaintiff but stated that as a close relative, Chandan Bordoloi resided in the plaintiff's house. 4. On the basis of the pleadings, several issues were framed by the Trial Judge but the following two issues are relevant for this case under the S.R. Act: ". (v) Whether plaintiff was in possession of the suit land of holding No.1503/A of ward No.6, till dispossessed by the defendant? . 4. On the basis of the pleadings, several issues were framed by the Trial Judge but the following two issues are relevant for this case under the S.R. Act: ". (v) Whether plaintiff was in possession of the suit land of holding No.1503/A of ward No.6, till dispossessed by the defendant? . (viii) Whether defendant damaged the newly constructed house of the plaintiff by trespassing her land? " 5. In support of her case, the plaintiff examined herself as PW.1 and she produced the revenue receipts (Exhbt. Nos.1, 2 & 3) to show that land revenue was paid for the suit land on 22.5.2001, for the entire period from 1977-2001. But since payment of revenue do not indicate possession, the Exhbt. Nos.1, 2 & 3 were not considered relevant for the issues to be decided. More significantly, the PW.2 Manchung Ho in his cross-examination admitted that he had not witnessed the alleged act of dispossession but he heard of the same. Likewise PW.3 Chan Mahammad in his cross-examination admitted that he has no personal knowledge about the dispossession but heard of the same, from the husband of the plaintiff. Surprisingly the plaintiff did not produce her husband Hamen Sarmah nor her tenant Chandan Bordoloi, who could have been the best witness to testify, whether the petitioner was forcibly dispossessed by the defendant. 6. On the other hand, the defendant who examined himself as DW.1 proved that the suit land was purchased by him on 24.5.1990 by a registered sale deed (Exhbt. A) and the rectification deed dated 28.6.1991 (Exhbt.B). After the purchase, the DW.1 constructed a katcha house and inducted the plaintiff's husband as a tenant and that is how the plaintiff and her husband were staying in the Schedule-B land. The DW.3 Upen Baruah witnessed the possession of the purchased land being handed over by the legal heirs of Late Puni Moral and this witness also testified that the defendant constructed the katcha house in 1994 and the said house was let out to the husband of the plaintiff. As the nearest neighbour, the evidence of DW.1 was found to be reliable by the Court. Another witness Birason Moral (DW.4), one of the legal heirs of Late Puni Moral, testified about the suit land being sold to the defendant, by executing a registered sale deed and consequent delivery of possession. As the nearest neighbour, the evidence of DW.1 was found to be reliable by the Court. Another witness Birason Moral (DW.4), one of the legal heirs of Late Puni Moral, testified about the suit land being sold to the defendant, by executing a registered sale deed and consequent delivery of possession. He further stated that when the suit land was sold, no house was on the land. 7. The Trial Judge considered the testimony of DW.1, 3 & 4 and the registered sale deed and the rectification deed (Exhbt. A & Exhbt.B). It was also noted that the relevant witnesses i.e. the husband of the plaintiff Hamen Sarmah and the tenant Chandan Bordoloi were not produced by the plaintiff as witness. Consequently the Trial Court concluded that the plaintiff has failed to prove that she possessed the suit land prior to the alleged date of dispossession on 28.2.2004 and accordingly answering the issue Nos.(v) and (viii) against the plaintiff, the suit was dismissed. 8. Assailing the legality of the impugned order of the Trial Judge, Mr. SK Ghosh, the learned counsel refers to the fact that the Exhbt.9 document was not considered by the Trial Judge. This Exhibit was the petition filed by the defendant on 19.12.2003 (Annexure-14), under Section 144 of the CrPC where it was alleged that the defendant trespassed into the plaintiff's property on 18.12.2003 and tried to construct a katcha house on the suit land, which was protested by the defendant. 9. Responding to the petitioner's above submission, Mr. GN Sahewalla, the learned senior counsel points out that a proceeding under Section 144 of the CrPC was drawn up at the instance of the defendant only because, there was an attempt to trespass into the suit property by the plaintiff and that is why prohibitory order was immediately issued by the Magistrate on 19.12.2003. Because of the prohibitory order, the attempted trespass of the plaintiff failed and therefore he contends that the Exhbt.9 document can have no bearing on the suit filed under the S.R. Act, for restoration of possession. 10. In cases under Section 6 of the S.R. Act, the relevant question to be answered is whether the plaintiff is in possession and whether the plaintiff was forcibly dispossessed by the defendant. 10. In cases under Section 6 of the S.R. Act, the relevant question to be answered is whether the plaintiff is in possession and whether the plaintiff was forcibly dispossessed by the defendant. The plaintiff is required to prove her case but in the present suit, the relevant witnesses i.e. Hamen Sarmah (the husband of the plaintiff) and Chandan Bordoloi (the tenant of the plaintiff) were not adduced as witness. On the other hand, the DW.1, 3 & 4 proved the purchase of the suit land by the defendant through the registered sale deed and the possession of the defendant since the date of purchase. The status of the plaintiff as a tenant under the defendant was also proved by the defendant's witnesses. In such circumstances, the conclusions reached by the Court against the plaintiff are found to be based on cogent evidence and therefore no illegality is found with the impugned judgment. 11. In fact, the defendant could also establish that he purchased the suit land by registered sale deed from the legal heirs of Late Puni Moral and when he purchased the land, no house was standing thereon. Therefore there was no basis to accept the plaintiff's contention that she was in possession of the suit land since 1969, as on the date of purchase i.e. on 24.5.1990, the Schedule-A land was found to be vacant and devoid of any house. 12. Therefore I am of the considered opinion that the decision of the Trial Court in consistent with the evidence and is correctly given and interference with the said decision is unjustified. With this conclusion, the case is dismissed. The parties will bear their own cost. The Registry should return back the LCRs to the concerned Court with a copy of this order.