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2015 DIGILAW 536 (GAU)

Mahendra Bora v. Guna Bora

2015-05-07

SUMAN SHYAM

body2015
ORDER 1. Heard Mr. P.P. Baruah, learned counsel for the appellant. Also heard Mr. G.N. Sahewalla, learned Senior Counsel appearing for the respondent. This second appeal has been preferred against the judgment and decree dated 13-02-2003 passed by the learned Civil Judge (Senior Division), Sivasagar in Title Appeal No. 03 of 1994 reversing the judgment dated 24-01-1994 and decree dated 02-02-1994 passed in Title Suit No. 91 of 1990 by the learned Munsiff No. 1, Sivasagar dismissing the suit filed by the plaintiff/ respondent. 2. The facts of the case, as emerged from the record is that the suit land originally belonged to the predecessor-in-interest of the plaintiff. The father of the plaintiff were four brothers, namely, (1) Sadananda Bora, (2) Phanidhar Bora, (3) Bapuram Bora and (4) Biren Bora. All the brothers except Biren Bora have died. Phanidhar Bora and Bapuram Bora died without leaving behind any legal heirs. Biren Bora went away to some other place leaving behind his house and landed property under the care and custody of Sadananda Bora i.e. the father of the plaintiff. Sadananda Bora died leaving behind two sons, namely, (1) Guna Bora i.e. the plaintiff and (2) Ratneswar Bora. According to the plaintiff, Ratneswar Bora had given him the power to institute the suit on his behalf. It is the case of the plaintiff that the defendant had taken the suit land on mortgage from his father during their life time and had been possessing the same. The father of the plaintiff died in the year 1977 and before his death he wanted to take over possession of the suit land from the defendant but failed to do so. The plaintiff has, therefore, instituted the suit for redemption of mortgage on payment of mortgaged money and also for recovery of possession of the suit land. 3. The defendant contested the suit by filing his written statement whereby the defendant had pleaded that the suit was not maintainable in the eye of law as well as in the facts and circumstances of the case. It was further pleaded that there was no cause of action of the suit and that the suit was barred by limitation as well as under the principles of waiver, estoppels and acquiescence. It was further pleaded that there was no cause of action of the suit and that the suit was barred by limitation as well as under the principles of waiver, estoppels and acquiescence. While denying the statement made in the plaint the defendant had pleaded that he had been possessing the suit land since 28-03-1977 by denying the right, title and interest of the predecessor-in-interest of the plaintiff. The defendant had claimed that late Phanidhar Bora died in the house of the defendant after being looked after by him including providing medical care and treatment during his old age. Out of gratitude towards the defendant, late Phanidhar Bora had sold a plot of land measuring 1B-13L covered by Dag No. 622 of periodic patta No. 227 of Gharfalia Japihojia Gaon for consideration of Rs. 2475/- to the defendant by executing a “katcha deed” and agreed to execute permanent sale deed in favour of the respondent/ defendant but could not do so since he had died before execution of formal sale deed. The remaining part of land measuring 1B-4K-18L has been in possession of the respondent defendant who claims to have acquired title in respect thereof by virtue of adverse possession by denying the title of the appellant plaintiff and others since 1977. Defendant had, therefore, claimed right over the land measuring 1B-4K-18L by means of adverse possession and hence, prayed for dismissal of the suit with cost. 4. Upon the pleadings of the parties the learned First Appellate Court had framed as many as eight issues which are as follows: 1. Is there any cause of action for the suit? 2. Is the suit is maintainable in its present form? 3. Is this suit bad for the non joinder of necessary parties? 4. Whether the defendant took the suit land or mortgaged land from the father of the plaintiff? 5. Whether the plaintiff has got right, title and interest over the suit land? 6. Whether the suit land belong to Late Phanidhar Borah and that he delivered the said land to the defendant on consideration of Rs. 2475/- by executing or katcha deed? 7. Whether the defendant possess 1 bigha 4 kathas 18 lechas of land in the dag No. 622 and PP No. 227 by virtue of adverse possession? 8. To what relief, if any the parties are entitled? 5. 2475/- by executing or katcha deed? 7. Whether the defendant possess 1 bigha 4 kathas 18 lechas of land in the dag No. 622 and PP No. 227 by virtue of adverse possession? 8. To what relief, if any the parties are entitled? 5. The plaintiff side had adduced one witness in the form of the plaintiff himself as PW-1. The defendant side had examined two witnesses including the defendant. Upon appreciation of the pleading as well as the materials on record the learned Trial Court had dismissed the suit filed by the plaintiff by judgment dated 24-01-1994 and decree dated 02-02-1994 passed in Title Suit No. 21 of 1990, inter alia, holding that the plaintiff has failed to furnish sufficient evidence so as to prove and establish his case that the suit land was mortgaged to the defendant thereby deciding the issues No. 5 and 6 against the plaintiff. 6. Being aggrieved by the judgment and decree passed by the learned Trial Court in Title Suit No. 21 of 1990 the plaintiff as appellant had preferred Title Appeal No. 03 of 1994 in the court of Civil Judge (Senior Division), Sivasagar on the grounds and reasons mentioned in the memo of appeal. Upon hearing the counsel for the parties, the learned First Appellate Court was pleased to pass judgment and decree dated 13-02-2003 thereby reversing the decree of dismissal passed by the Trial Court and decreed the suit filed by the plaintiff. 7. Being aggrieved by the judgment and decree of reversal dated 13-02-2003, the defendant as appellant has preferred the instant second appeal which was admitted by this Court to be heard on the following substantial questions of law: (1) Whether a decree declaring right, title and interest can be passed in favour of the plaintiff in respect of a unpartitioned joint family property without making the other co-owner/pattadar as party to the suit, as the suit is hit by Order 1 Rule 9 of the Civil Procedure Code. (2) Whether a decree for recovery of khas possession can be passed in a suit filed after twelve years of dispossession in view of Article 64 and 65 of Indian Limitation Act, 1882. (2) Whether a decree for recovery of khas possession can be passed in a suit filed after twelve years of dispossession in view of Article 64 and 65 of Indian Limitation Act, 1882. (3) Whether an un-registered sale deed can be looked into for collateral purpose i.e. to prove the possession of the purchaser over the property and the said unregistered sale deed can take into consideration to prove the adverse possession. (4) Whether a decree for declaration of right title and interest of the plaintiff can be passed without there being any proof of right and title. 8. Mr. P.P. Baruah, learned counsel for the appellant submits that from a perusal of the judgment and decree passed by the First Appellate Court it would be apparent that the plaintiff had failed to prove and establish his title over the suit land by adducing cogent evidence on record. The plaintiff had also failed to show that his brother Ratneswar Bora had authorised him to institute the suit for declaration of title and recovery of possession. Even if it is assume that the plaintiff had succeeded in establishing his title over the suit land being his ancestral property, even in that case, he would not be entitle to any relief, the same being barred by limitation. By drawing the attention of this Court to the pleadings contained in paragraph 12 of the written statement as well as the evidence adduced by the defendant, Mr. Baruah submits that the defendant has succeeded in proving and establishing a case of adverse possession, which the learned First Appellate Court failed to take note of. He submits that even if it is assumed that the “katcha deed” could not have convey any valid title to the defendant even in that case the period of limitation would continue to run during the period when the defendant claims to have been possessing the suit land by virtue of the “katcha deed” (unregistered deed) for the purpose of establishing his claim of adverse possession. Mr. Mr. Baruah also submits that since the pleaded case of the plaintiff was that the suit land had been taken by the defendant on mortgage, hence, both the courts below having concurrently decided the said issue against the plaintiff, there was no occasion for the First Appellate Court to decree the suit of the plaintiff by reversing the judgment and decree passed by the learned Trial Court. 9. Per-contra, Mr. G.N. Sahewalla, learned Sr. counsel appearing for the respondent submits that as would be evident from the discussions in the impugned judgment passed by the learned First Appellate Court, although the appellant had failed to prove his case that the suit land had been mortgaged to the defendant, yet the plaintiff had succeeded in bringing in sufficient evidence on record including the certified copy of the jamabandi as well as the land revenue paying receipt to show that the suit land was a part of the ancestral property of the plaintiff. Moreover, the said fact is also admitted by the defendant in his written statement whereby he has claimed to have taken over possession of the suit land from the predecessor-in-interest of the plaintiff and therefore, acquired title partly on the basis of “katcha deed” of sale and partly by way of adverse possession. Hence, taking note of such materials available on record the learned First Appellate Court was well within its jurisdiction to mould a relief and pass a decree in favour of the plaintiff. He further submits that the defendant side has failed to establish the veracity of the pleadings contained in paragraph 12 of the written statement so far as the same relates to the claim of adverse possession made by the defendant. 10. I have considered the rival submissions made by and on behalf of the parties and have also examined the materials on record. It appears that although the projected case of the plaintiff in the plaint was that the suit land was given in mortgage to the defendant by the predecessor-in-interest of the plaintiff and hence, the suit was filed for declaration of right, title of the plaintiff over the suit land, recovery of possession and also for cancellation of mortgage, yet the plaintiff has not been able to prove and establish his case by leading cogent evidence. Both the courts below have recorded concurrent findings of the fact to the effect that the plaintiff has not been able to establish his pleaded case of suit land being mortgaged as projected in the plaint. However, taking note of the fact that there was no dispute regarding the factual position that the suit land originally belong to the predecessor-in-interest of the plaintiff and having regard to the fact that the plaintiff had been able to produce the certified copy of the jamabandi as well as the revenue paying receipt, which documentary evidence had not been denied or dispute by the defendant, learned First Appellate Court was of the view that the plaintiff has been able to prove and establish his title over the suit land the same being a part of the ancestral property of the plaintiff. As a matter of fact the defendant also admits that the suit land is a part of ancestral land of the plaintiff. The plaintiffs suit being one for recovery of possession based on title, he would be entitled to the decree as prayed for unless it is shown that the defendant has perfected title over the land by adverse possession. Having come to the conclusion as above the only question that would now arise for consideration by this Court is as to whether the defendant has been successful in establishing his case of perfecting title over the suit land by way of adverse possession. 11. From the pleadings contained in the written statement what can be seen is that the defendant purchased a plot of land measuring 1B-13L covered by Dag No. 622 of PP No. 227 by means of a “katcha deed” of sale from late Phanidhar Bora for consideration of Rs. 2475/- pursuant whereto he has been put in possession of the said plot of land. The defendant had also pleaded that Phanidhar Bora had assured him to execute the registered deed of sale but the same could not be done due to sudden death of Phanidhar Bora. In the written statement filed by the defendant/ appellant there is neither any mention of the date on which “katcha deed” was executed by late Phanidhar Bora nor has it been mentioned as to on which date Phanidhar Bora died. In the written statement filed by the defendant/ appellant there is neither any mention of the date on which “katcha deed” was executed by late Phanidhar Bora nor has it been mentioned as to on which date Phanidhar Bora died. That apart the said plot of land was admittedly an ejmali property and therefore, Phanidhar Bora could not have sold any part of the same before partition. An unregistered deed of sale cannot confer any title to the defendant in respect of the said plot of land. Since it is the pleaded case of the defendant that he was possessing the land measuring 1B-13L covered by Dag No. 622 on the assurance given by Phanidhar Bora to execute the registered deed of sale it cannot be said that such possession was hostile to the title of the true owner during such period in the absence of any specific pleadings supported by material evidence on record to prove and establish the contrary. Moreover, the defendant has not claimed title over the said plot of land measuring 1B-13L by adverse possession as is apparent from the pleadings contained in the written statement. Therefore, this Court is of the opinion that the defendant has failed to prove and establish the case of adverse possession in respect of the said 1B-13L of land covered by Dag No. 622 of PP No. 227. 12. Coming to the claim made by the defendant as regards 1B-4K-18L of land covered by Dag No. 623 of PP No. 227, the defendant had clearly set out a case claiming title over the said plot of land by way of adverse possession, the land having been in his continuous possession since 28-03-1977. It is also the case of the defendant that his possession over the said plot of land measuring 1B-4K-18L covered by Dag No. 623 of PP No. 227 has been open, continuous and in denial of the title of predecessor-in-interest of the plaintiff. From the case projected in the plaint, it can also be seen that the plaintiff had admitted that an attempt was made by the predecessor-in-interest of the plaintiff to take over possession of the said plot of land way back in the year 1977, which attempt did not succeed. From the case projected in the plaint, it can also be seen that the plaintiff had admitted that an attempt was made by the predecessor-in-interest of the plaintiff to take over possession of the said plot of land way back in the year 1977, which attempt did not succeed. The aforesaid admission on the part of the plaintiff is sufficient to conclude that the defendant has been in possession of the said plot of land since the year 1977 having animus possidendi. The plaintiff side had also failed to dislodge the oral testimony of DW-1 by cross-examining the said witness so as to disprove his claim that the said plot of land has been in open and continuous possession of the defendant by denying the right, title and interest of the plaintiff and/ or his predecessor-in-interest. The suit having been instituted in the year 1990, was clearly beyond the period of 12 years from the date of such dispossession. 13. Such being the position, I am of the considered opinion that the defendant has succeeded in proving and establishing a clear case of perfecting title over the plot of land measuring 1B-4K-18L covered by Dag No. 623 of PP No. 227 by means of adverse possession. As such, the learned First Appellate Court ought not to have passed the decree declaring right, title and interest of the plaintiff in respect of the said plot of land. In the result this second appeal is partially allowed. The judgment and decree passed by the learned First Appellate Court would stand modified to the extent that the decree passed by the lower Appellate Court, insofar as the declaration of title and recovery of possession in respect of land measuring 1B-4K-18L covered by Dag No. 623 of PP No. 227, in possession of the defendant is concerned, shall stand rejected the same being barred by adverse possession. The questions of law framed by this Court earlier shall answered accordingly. Having regard to the facts and circumstances of the case, there would be no order as to cost. Prepare the decree accordingly. LCR be send back.