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2015 DIGILAW 545 (GAU)

Nagen Singha v. State of Assam

2015-05-11

SUMAN SHYAM

body2015
JUDGMENT Heard Mr. B. Banerjee, learned Sr. counsel for the appellant. Also heard Mr. G. Sarma, learned Govt. Advocate appearing for the respondent No. 1, 2, 3 and 4. 2. This second appeal has been preferred against the concurrent judgment and decree dated 22-10-2014 passed by the learned Civil Judge, Goalpara in Title Appeal No. 07/2012 thereby upholding the judgment and decree dated 08-05-2015 passed in Title Suit No.11/2009 by the Munsiff No.1, Goalpara, dismissing the suit filed by the plaintiff. 3. The case of the plaintiff, as projected in the plaint, is that late Khargeswar Singha, i.e. predecessor-in-interest of the plaintiff and the defendant No. 5, 6, 7 as well as proforma defendant No. 8 left behind his wife Dharmalata Singha and five sons as his legal heirs. Late Khargeswar Singha at the time of his death, was the owner of cultivable land measuring 30 bighas and homestead land measuring 7B-1K-13L. The suit land measuring 15 lechas covered by Dag No. 276/123 of Patta No. 46/16 is a part of the land left behind by Khargeswar Singha. The plaintiff’s case is that in the year 1980 the legal heirs of Khargeswar Singha, i.e. his widow Dharmalata Singha and five sons namely, viz. the plaintiff, defendant No. 5, 6 and 7 and proforma defendant No. 8 decided to amicably partition the landed property left behind by their father on the basis of a family settlement in terms of which Dharmalata Singha got land measuring 3 bighas out of the cultivable land as well as the 15 lechas of land covered by Dag No. 276/123 of Patta No. 46/16, which is the suit land. During her old age she used to live with the plaintiff, who looked after her with great care. After the death of Dharmalata Singha the plaintiff had also performed her cremation and other rituals. Having regard to the care taken by the plaintiff, his mother Dharmalata Singha, during her life time, had made an oral gift in respect of the suit land in favour of the plaintiff in presence of other legal heirs of Khargeswar Singha. Accordingly the suit land was allowed to be recorded in the name of the plaintiff during the settlement operation in the year 1991 and on 27-07-2014 a “katcha patta” was issued in the name of the plaintiff. Accordingly the suit land was allowed to be recorded in the name of the plaintiff during the settlement operation in the year 1991 and on 27-07-2014 a “katcha patta” was issued in the name of the plaintiff. The plaintiff stated that since 1980 he has been in continuous possession of the suit land and in the year 1991, he constructed four rooms over the suit land. In the year 2008, the defendant No. 5, 6 and 7 had submitted an application 4. The defendant No. 1, 2, 3 and 4 filed their written statement wherein it has been stated that the order dated 11-06-2008 was passed after observing all formalities and the order dated 27-07-1994 was cancelled on the basis of an application filed by the other legal heirs of Khargeswar Singha. Since the plaintiff has not preferred any appeal against the order dated 11-06-2008, hence, according to the defendant No. 1, 2, 3 and 4, the suit itself is not maintainable and hence is liable to be dismissed. 5. The defendant No. 5, 6 and 7 in their joint written statement has questioned the maintainability of the suit on the ground of non-joinder of the necessary parties. Said defendants had also stated that beside the legal heirs mentioned in the plaint, late Khargeswar Singha had three daughters, namely, Noni Singha, Bharati Singha and Amole Roy, who have not been made parties to the suit and the said fact has also been suppressed by the plaintiff. The contesting defendants denied the existence of any family arrangement as claimed by the plaintiff and claimed that no property was gifted by Dharmalata Singha to the plaintiff as claimed by him. The defendant No. 5, 6 and 7 have further stated that it is not only the plaintiff but all of them looked after their mother during her old age and there was no such agreement between the parties that one who looked after Dharmalata Singha in her old age would get her movable and immovable property after her death. The defendant No. 5, 6 and 7 had further stated that the name of the plaintiff had been recorded in the record of the rights in collusion with the revenue staff and the same was rightly cancelled after service of proper notice to all the parties. The defendant No. 5, 6 and 7 had further stated that the name of the plaintiff had been recorded in the record of the rights in collusion with the revenue staff and the same was rightly cancelled after service of proper notice to all the parties. Defendants have also stated that although they have requested the plaintiff to go for partition of the suit land yet such request had been declined by the plaintiff. 6. On the basis of the pleadings of the parties the learned Trial Court had framed following issues: 1. Whether there is cause of action for the suit? 2. Whether the present suit is maintainable in its present form and manner? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the mother of the plaintiff and defendants has gifted the suit land to the plaintiff? 5. Whether the order dated 11-06-2008 passed by the A.S.O. without serving notice to the plaintiff? 6. Whether the plaintiff is entitled to any relief prayed for? 7. What other relief the parties are entitled to? 7. Upon examination of the materials on record and also hearing learned counsel for both the parties, the learned Trial Court was pleased to dismiss the suit filed by the plaintiff by the judgment and decree dated 08-05-2012 passed in Title Suit No. 11/2009 by inter-alia, holding that the plaintiff has not been able to prove and establish his case by adducing cogent evidence. The issue No. 4, 5 and 6 were decided against the plaintiff. Consequently the suit of the plaintiff was dismissed by the Trial Court. 8. Being aggrieved by the judgment and decree dated 08-05-2012 passed by the learned Trial Court, the plaintiff as appellant had preferred Title Appeal No. 07/2012, which was also dismissed by the learned First Appellate Court by the judgment and decree dated 22-10-2014 by affirming the judgment and decree passed by the Trail Court. The learned First Appellate Court while discussing the issues on re-appreciation of the evidence on record, came to the conclusion that the suit filed by the plaintiff was bad in the eye of law due to non-impleading three daughters of late Khargeswar Singha who were necessary parties to the suit. The learned First Appellate Court while discussing the issues on re-appreciation of the evidence on record, came to the conclusion that the suit filed by the plaintiff was bad in the eye of law due to non-impleading three daughters of late Khargeswar Singha who were necessary parties to the suit. Learned First Appellate Court also held that under Section 123 of Transfer of Properties Act a gift of immovable property cannot be made orally and therefore, the claim of the plaintiff of having acquiring title over the suit land on such oral gift was rejected. The learned First Appellate Court had also held that since the plaintiff has not preferred any appeal against the order dated 11-06-2008 passed by the Assistant Settlement Officer, hence, remaining relief claimed in the suit was barred under Section 154 of the Assam Land and Revenue Regulation 1886. On the basis of such findings the First Appellate Court had dismissed the appeal filed by the plaintiff. 9. Being highly aggrieved and dissatisfied by the judgment and decree dated 22-10-2014 passed in Title Appeal No. 07/2012 the plaintiff as appellant had approached this Court by filing this instant second appeal. 10. Mr. B. Banerjee, learned Sr. counsel for the appellant submits that it would be established from a bare perusal of the materials on record that there was an family arrangement between the legal heirs of Khargeswar Singha pursuant whereto the plaintiff had become the owner of the share falling in his part. Subsequently, the share held by his mother Dharmalata Singha, having been gifted to him in presence of other legal heirs, he had became the owner in respect of the suit land as well. Mr. Banerjee, further submits that evidence on record will go to show that there is no denial of the fact that Dharmalata Singha was looked after by the plaintiff alone during her old age and as such being prompted love and affection towards the plaintiff his mother had made the gift in favour of the plaintiff. Courts below have committed manifest illegality in failing to pursued the pleadings as well as the evidence available on record which establishes the case of the plaintiff. 11. While supporting the judgment and decree under appeal Mr. G. Sarma, learned Govt. Courts below have committed manifest illegality in failing to pursued the pleadings as well as the evidence available on record which establishes the case of the plaintiff. 11. While supporting the judgment and decree under appeal Mr. G. Sarma, learned Govt. Advocate, Assam appearing for the respondent No. 1, 2, 3 and 4 submits that since the plaintiff as appellant has not preferred any appeal against the Asstt. Settlement Officer the suit itself was not maintainable in view of the bar created under Section 154 of the Assam Land and Revenue Regulation, 1886. He, therefore, submits that the suit filed by the plaintiff has been rightly dismissed by both the courts below. 12. I have considered the rival submission made by and on behalf of the parties and have also perused the record. It is admitted position of fact that the plaintiff is claiming title and ownership over the suit land being the share of his mother Dharmalata Singha, on the basis of an oral gift allegedly made by his mother in presence of other legal heirs. However, materials on record suggests that the other legal heirs of Khargeswar Singha has categorically denied and disputed either the existence of a oral gift made in favour of the plaintiff by his mother or the fact that the plaintiff was the sole person who had looked after their mother during her old age. Both the courts below have recorded concurrent findings of fact holding that the plaintiff has failed to prove the fact that there was any valid gift executed by his mother in his favour or that he was the sole person taking care of his mother during her old age. Even assuming that the claim made by the plaintiff if factually correct, even in that case, in view of the specific provisions of Section 123 of Transfer of Properties Act a gift of immovable property has to be made by a registered instrument signed by at least two witnesses. Such provisions of Section 123 of the Transfer of Properties Act being mandatory in nature, an oral gift in case of immovable property would not have any validity in the eye of law nor would it confer any right, title and interest to the donee in respect of any immovable property. Such provisions of Section 123 of the Transfer of Properties Act being mandatory in nature, an oral gift in case of immovable property would not have any validity in the eye of law nor would it confer any right, title and interest to the donee in respect of any immovable property. Even if it is accepted that there was amicable partition of the ancestral property of Khargeswar Singha amongst his legal heirs even in that case the plaintiff cannot claim any exclusive right, title and interest over the share of his mother unless he is able to show basis of such claim. 13. As has been mentioned hereinbefore the claim of the plaintiff of having acquired title and interest over the suit land to the exclusion of all others having been made on the basis of an oral gift, such a claim would not be tenable in the eye of law in view of the Section 123 of the Transfer of Properties Act. As such the learned courts below have rightly held the said issue against the plaintiff thereby dismissing the suit. 14. From the perusal of the reliefs prayed for in the suit it is apparent that save and except the relief of declaration of right, title and interest over the suit property, the jurisdiction of the civil court is barred under Section 154 of the Assam Land and Revenue Regulation, 1886 in respect of the other reliefs. Once it is held that the plaintiff does not have any right, title and interest over the suit land as claimed by him, the said reliefs cannot be granted to him by the civil court. 15. From the perusal of the records what can be seen is that with plaintiff had suppressed the fact that Khargeswar Singha had three daughters who are alive. If it is held that the plaintiff is entitled to make a claim in respect of the property held by mother Dharmalata Singha, even in that case such a suit seeking declaration of right, title and interest and confirmation of possession would not be maintainable in the absence of all the legal heirs of Khargeswar Singha and Dharmalata Singha having been made a party. Such being the position this Court is of the opinion that there is no illegality or infirmity in the judgment and decree passed by the lower Appellate Court. 16. Such being the position this Court is of the opinion that there is no illegality or infirmity in the judgment and decree passed by the lower Appellate Court. 16. By drawing attention of this Court to a statement made by the DW-1 during his cross-examination reading as follows: “It is not a fact that my mother never gifted the 3 Bigha cultivated land & suit land to Nagen Singha.” Mr. Banerjee submits that even the defendants have not dispute the fact that the plaintiff’s mother had made the gift in his favour. On a conjoint reading of the pleadings in the written statement as well as the complete testimony of the defendants witnesses, it is apparent that the aforesaid statement referred to by Mr. Banerjee is in all probability a typographical error which escape the attention of the court as the said statement is inconsistence with the stand taken by the defendants in the matter of gift throughout the proceeding. Therefore, no credence can be attached to such a stray statement recorded in the cross-examination by ignoring the contrary stand, which has been consistently adopted by the defendants. Even otherwise, due to the provision of Section 123 of Transfer of Properties Act, as has been discussed above, an oral gift of immovable property would not have any validity in the eye of law. 17. In view of the discussions made hereinbefore this Court is of the opinion that there is no substantial questions of law that arises for adjudication in the instant second appeal. Further the concurrent findings of fact recorded by both the courts below appears to be based on materials on record and therefore no perversity is discernable. In that view of the matter there is no merit in the instant second appeal and the same would stand dismissed.