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2015 DIGILAW 541 (GAU)

Sulachana Rath Sarma v. Bibekananda Sarma

2015-05-08

SUMAN SHYAM

body2015
JUDGMENT 1. Heard Mr. I.H. Saikia, learned counsel for the appellants. Also heard Mr. B.K. Purkayastha, learned counsel representing the respondents. 2. This Second Appeal has been preferred against the concurrent judgment and decree dated 08.05.2003 passed by the learned Civil Judge (Senior Division) No.2, Cachar, Silchar in Title Appeal No.26/2000 affirming the judgment and decree dated 31.03.2000 passed by the learned Civil Judge (Junior Division) No.2, Silchar in Title Suit No.100/1995 decreeing the suit filed by the plaintiff. 3. The plaintiff’s case, as projected in the plaint, in brief, is that he has been in occupation of the land measuring 5 kathas described in Schedule-I of the plaint since the year 1949 as an occupancy tenant under Ghanashyam Dubey. Subsequently, by a registered deed of sale dated 29.07.1988 the plaintiff purchased the ‘malikana’ right in respect of the First Schedule land from Ghanashyam Dubey. It is the case of the plaintiff that defendant No.1, who is the brother-in-law of the plaintiff, had approached him in a very poor condition seeking shelter. Being sympathetic to such approach of the defendant Sadananda Rath Sarma (since deceased) the plaintiff had allowed him to occupy the land and house standing over Schedule-II of the suit land on condition of vacating the same as and when it was demanded by the plaintiff. In this manner the defendant No.1 had come into occupation of the Schedule-II land as a licensee under the plaintiff about 32/34 years back. It has been averred in the plaint that in the last part of 1994, taking advantage of the absence of the plaintiff from the suit land, the principal defendant viz., Sadananda Rath Sarma had constructed a temporary structure on the eastern boundary adjacent to the road and in the southern boundary of the Schedule-II land and thereafter inducted proforma defendant Nos.2 to 5 as tenants. Immediately upon his return, the plaintiff had raised protest against such illegal act of the defendant No.1 thereby asking the defendant to vacate the Schedule-II premises with immediate effect. Such demand of the plaintiff for vacating the Schedule-II premises not having been complied with by the defendant No.1, the plaintiff had been compelled to institute the present suit seeking a decree declaring his right, title and interest over the Schedule-II land and also for injunction. 4. Such demand of the plaintiff for vacating the Schedule-II premises not having been complied with by the defendant No.1, the plaintiff had been compelled to institute the present suit seeking a decree declaring his right, title and interest over the Schedule-II land and also for injunction. 4. The original defendant No.1 (Sadananda Rath Sarma) contested the suit by filing his written statement wherein he had raised question on the maintainability of the suit by taking various pleas therein. The contesting defendant had denied the fact that he was a licensee under the plaintiff or that the plaintiff had not acquired ‘malikana’ right in respect of the suit land as claimed by him. According to the contesting defendant, Ghanashyam Dubey had granted settlement of the entire suit land in favour of defendant No.1 on condition of payment of rent sometime in the year 1930-31 whereafter, the contesting defendant had constructed his residential house over the suit land. He had also claimed that as per the provisions of the Assam Temporarily Settled Areas Tenancy Act, 1955, the Government had also issued tenancy khatian No.75 recording his name as an occupancy tenant in respect of the suit land and that he has been occupying the land by paying regular rent to the landlord. The contesting respondent had also claimed that he had executed one ‘Kabuliyat’ on 25.11.1965 in favour of Ghanashyam Dubey in respect of his earlier tenancy over a plot of land measuring 4 kathas which included the entire Schedule-II land of the plaint. He constructed permanent house with CI sheet roof and inducted ‘bharatias’ in a portion of that house 30-35 years back. On such grounds the contesting defendant had prayed for dismissal of the suit. 5. Based on the pleadings of the parties, the learned trial Court had framed as many as nine issues, which are as follows :- “1. Whether the suit is maintainable in law and facts? 2. Whether there is cause of action for the suit? 3. Whether the suit is barred by limitation? 4. Whether the suit is bad for non-joinder of the pattadars in the suit patta? 5. Whether defendant is licensee under the plaintiff over the Schedule II land of the plaint and is liable to be evicted? 6. Whether the defendant is a tenant over the suit land and that Khatian No.75 was validly and legally granted to him? 7. 4. Whether the suit is bad for non-joinder of the pattadars in the suit patta? 5. Whether defendant is licensee under the plaintiff over the Schedule II land of the plaint and is liable to be evicted? 6. Whether the defendant is a tenant over the suit land and that Khatian No.75 was validly and legally granted to him? 7. Whether the plaintiff has right, title and interest over the suit land? 8. Whether the plaintiff is entitled to a decree, as prayed for? 9. To what relief/reliefs the parties are found entitled?” 6. The plaintiff had examined two witnesses and exhibited documentary evidence. However, the defendant side did not examine any witness nor proved any document in support of his case. 7. Upon hearing the learned counsels for the parties and on due consideration of the materials available on record, the learned trial Court had answered the Issue Nos.5, 6 and 7 in favour of the plaintiff by holding that the plaintiff has been able to prove his title and possession over the suit land by virtue of Ext-1 (registered deed of sale) as well as Ext-2 (copy of Jamabondi) demonstrating the possession of the vendor of the plaintiff. Referring to the report of the Survey Commissioner (Ext-4) the learned trial Court had further recorded the finding as regards the entitlement of the plaintiff over 3 Katha 4 Chattaks of land in dag No.45 covered by RS Patta No.9. It was, however, observed that the plaintiff had no land in dag No.41. Referring to the testimony of the PW 2 the learned trial Court had further observed that the plaintiff has been able to prove and establish his plea that the defendant had entered into the suit premises as a licensee under the plaintiff. 8. Since the Issue Nos.5, 6 and 7 were found in favour of the plaintiff, hence by the judgment dated 31.03.2000 and decree dated 07.04.2000 the learned trial Court had decreed the suit filed by the plaintiff. 9. Being highly aggrieved and dissatisfied with the judgment and decree passed by the trial Court, the substituted legal heirs of the defendant No.1 as appellants had preferred Title Appeal No.26/2000 in the Court of Civil Judge (Senior Division) No.2, Cachar at Silchar. 9. Being highly aggrieved and dissatisfied with the judgment and decree passed by the trial Court, the substituted legal heirs of the defendant No.1 as appellants had preferred Title Appeal No.26/2000 in the Court of Civil Judge (Senior Division) No.2, Cachar at Silchar. The learned Civil Judge (Senior Division) No.2, Cachar had dismissed the appeal filed by the appellants/defendants by concurring with the findings and conclusions drawn by the learned trial Court. 10. Being aggrieved by such concurrent judgment and decree dated 08.05.2003 passed by the learned Lower Appellate Court in Title Appeal No.26/2000 the substituted defendants as appellants have approached this Court by filing the instant Second Appeal which was admitted to be heard on the following substantial questions of law :- “1. Whether Ext-1 which contains specific area of land under Dag No.41 and Dag No.45 can give right and title to the plaintiff beyond the area of land specified in the said Dags in the said Ext-1? 2. Whether the land sold by the respondent/plaintiff prior to Ext-1, has a bearing in deciding issue No.7 against the plaintiffs/ respondent? 3. Whether the findings on Issue No. 6 is perverse? 4. Whether the suit is bad for non-joinder of parties i.e. the original pattadar, Sri Ganashyam Dubey and his legal heirs? 5. Whether the suit is barred by limitation as the appellants have in possession of the suit land for 32/34 years prior to 1995 and when the suit land was purchased vide Ext.1 in 1988 and the suit was filed in 1995? 6. Whether any permanent injunction can be granted without any prayer and without payment of Court fees ? 7. Whether the appellants are protected under Assam Temporarily Settled Areas Tenancy Act as he had Khatian No.75 in his name and paying land revenue and having permanent house and is a tenant since last 30/35 years?” 11. Mr. I. H. Saikia, learned counsel for the appellants, submits that once the Court below had observed that the plaintiff did not have any land in Dag No.41 which fact is also evident from the cross-examination of the PW 1, there was no scope for the Court below to decree the suit filed by the plaintiff. He further submitted that the plaintiff cannot claim any land under Dag No.41 and to that extent the decision and conclusions recorded by the Court below are perverse in the eye of law. He further submitted that the plaintiff cannot claim any land under Dag No.41 and to that extent the decision and conclusions recorded by the Court below are perverse in the eye of law. 12. Per contra, Mr. B. K. Purkayastha, learned counsel for the respondents/plaintiffs, submits that the claim of the plaintiff is based on Ext-1 registered deed of sale which contains a schedule giving clear description of the suit land. The plaintiff is not claiming any land beyond what he has acquired by virtue of the Ext-1 sale deed which document the plaintiff has been able to prove by adducing evidence. Mr. Purkayastha further submits that since the plaintiff has been able to prove and establish the fact not only that his vendor has possession and title over the land but also the fact that the plaintiff himself had acquired possession and title over the suit land, there was no ground for the learned Court below to deny the relief as prayed for by the plaintiff, particularly in view of the fact that the defendants have not been able to lead any evidence in support of their version as projected in the written statement. 13. I have considered the submissions made by the learned counsels for both the parties and have also perused the evidence on record. On a scrutiny of the materials available on record it is seen that the plaintiff has been able to prove Ext-1 sale deed by means of which he had purchased the suit land described in Schedule-I of the plaint from Ghanashyam Dubey. The Ext-2 Jamabondi which has also been adduced in evidence by the plaintiff goes to show the title and possession of the plaintiff’s vendor in respect of the suit land. Further, the Ext-4, Survey Commissioner’s report also corroborates the case of the plaintiff as projected in the plaint. Having regard to the fact that the plaintiff has been able to adduce evidence to show that the original defendant No.1 had entered the Schedule-II land and house as a permissive occupier under him, the defendant was bound to vacate the said premises once the plaintiff had demanded the same out of him. Having regard to the fact that the plaintiff has been able to adduce evidence to show that the original defendant No.1 had entered the Schedule-II land and house as a permissive occupier under him, the defendant was bound to vacate the said premises once the plaintiff had demanded the same out of him. Once the plaintiff has been able to prove his prima facie case by adducing sufficient evidence on record the Courts below could not have declined the decree to the plaintiff unless the defendant had succeeded in leading evidence to disprove the case of the plaintiff. In the instant case, it is not in dispute that the defendants did not lead any evidence in support of their case. In that view of the matter, I do not find any justifiable ground to interfere with the judgment and decree passed by the learned Courts below recording concurrent finding of facts in favour of the plaintiff. 14. However, before parting with the record, it would be pertinent to observe herein that although the defendant has not been able to adduce any evidence, yet it appears from the record that certain documents were produced by the defendants at the stage of trial although the same were not proved in accordance with law. It appears that taking note of the contents of such documents the learned trial court had recorded a finding that the land claimed by the defendant No.1 was different from the suit land as purchased by the plaintiff by means of registered deed of sale Ext-1. It also appears that there were some discrepancies in the description of the suit land as given in the plaint on the basis of right of purchase made by Ext-1. Since it is the admitted position of fact that the plaintiff is not claiming title and interest over any land save and except what had been purchased by him by means of Ext-1 sale deed, hence it is made clear that the decree passed by the learned trial Court in favour of the plaintiff will be applicable and would remain confined to the description of the land as contained in Ext-1 sale deed alone and not against any other land. 15. With the above observation, this Second Appeal would stand disposed of. However, having regard to the facts and circumstances of the case, there will be no order as to cost. 15. With the above observation, this Second Appeal would stand disposed of. However, having regard to the facts and circumstances of the case, there will be no order as to cost. The questions of law framed by this Court stands answered accordingly. Prepare a decree accordingly. Registry to send back the LCR.