Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 576 (GAU)

Ratna Kanta Das and Anr. v. Kamala Kanta Das

2015-05-14

A.K.GOSWAMI

body2015
Heard Mr. K.K. Mahanta, learned Senior Counsel for the appellants. 2. None appears for the respondents despite the names of the counsel being shown in the cause-list. 3. This appeal is preferred against the judgment and decree dated 27.02.2004 passed by the learned Civil Judge (Sr. Division), Morigaon in Title Appeal No.1/2004 decreeing the suit by reversing the judgment and decree of dismissal dated 13.11.2003 passed by the learned Civil Judge (Jr. Division) No.1, Morigaon in Title Suit No.22/2001. 4. This second appeal was admitted to be heard by an order dated 29.07.2004 on the following substantial questions of law:- “1. Whether the impugned judgment and decree of reversal passed by the lower appellate court is vitiated for non-compliance with the provisions of Order 41, Rule 31 CPC ? 2. Whether the impugned decree of reversal can be sustained in law due to non-consideration as well as for not recording of any reason for non-relying upon the Exts. 'Ka' to 'Unga' duly proved in law ?” 5. The plaintiffs filed the suit for declaration of the plaintiffs' right, title and interest over both (A) & (B) Schedule land and for recovery of Khas possession by demolishing and removing boundary walls constructed in the suit land. 6. The case projected in the plaint is that the plaintiff No.1 is the father of the plaintiff No.2 and the plaintiff No.1 purchased land measuring 2 katha 5 lecha covered Dag No.335 of Periodic Patta No.354 at village Morigaon from Sri Nara Nath Kaibatta (pro forma defendant No.1) by a registered sale deed No.553/75 dated 02.04.1975. The possession was delivered to him and after mutation of the land in his name, he delivered possession to his son, plaintiff No.2, by way of an oral gift and since then he has been living there peacefully with the members of his family. However, on 08.03.2001, plaintiffs were dispossessed from 7 lecha of land, which is the Schedule (A) land. Plaintiff No.1 had also purchased a plot of land measuring 3 katha 10 lecha covered by Dag No.445 in Periodic Patta No.647 at village Morigaon from Ramakanta Das, husband/father, respectively of pro forma defendant Nos.2 and 3 on execution of a registered sale deed No.1106/67. On 08.03.2001, the plaintiffs were dispossessed from 18 lecha of land which is the land in Schedule (B). On 08.03.2001, the plaintiffs were dispossessed from 18 lecha of land which is the land in Schedule (B). Thus, case of the plaintiffs is that they had been dispossessed from a total of 25 lecha of land on 08.03.2001 and on that very date, they prayed before the Deputy Commissioner, Morigaon vide petition No.504 praying for assistance of the police from restraining the defendants from erecting permanent walls, but by the time steps could be taken after enquiry, construction was already raised by the defendants. It is also pleaded that the defendants had a “Namghar” (prayer hall) in a plot of land measuring 1 katha 4 lecha standing in between Schedule (A) and Schedule (B) land. 7. The defendants had filed written statement by stating that the defendant “Namghar” committee possessed the land by way of adverse possession. It is stated that walls on both northern and southern sides of the “Namghar” were constructed after survey was conducted and after giving notice to the plaintiffs. Plaintiffs along with Lat Mandals, Gaonburah and police personnel were all present and they had raised no objection during the time of raising of the construction of the wall which took about 30 days for completion. The “Namghar” was established about a hundred years back and it was using a path in the southern side and a pucca well in the northern side. In the northern side, the “Namghar” possessed about 6 lecha of land and in the southern side, it possessed about 8 lecha of land, apart from the land measuring 1 katha 4 lecha of land which was allotted to the “Namghar” by the Government. It is further pleaded that the original patta-holders of both the sides had relinquished the disputed land in question in favour of the “Namghar”. The original patta-holder, on the southern side was Late Rana, Tiken and Gopal and after the plaintiff No.1 had purchased the land, possession was, accordingly, delivered excluding the Schedule (B) land which is a public path running from east to west. Similarly, on the northern side also, land measuring about 6/7 lecha was relinquished by the original patta-holder Late Nahor, who was the grandfather of Nara Nath Kaibatta, vendor of sale deed dated 02.04.1975. Similarly, on the northern side also, land measuring about 6/7 lecha was relinquished by the original patta-holder Late Nahor, who was the grandfather of Nara Nath Kaibatta, vendor of sale deed dated 02.04.1975. There was a pucca well which was being used for more than 100 years exclusively for “Namghar” purposes and when plaintiff purchased the plot of land in Dag No.335, possession was delivered excluding the (A) Schedule land towards northern side of the “Namghar”. It is also stated that many people were present including the plaintiffs when the foundation stone of the walls were laid by the President of the “Namghar”. 8. On the basis of the pleadings, the learned trial court framed the following issues:- “(1) Whether there is any cause of action for the suit ? (2) Whether the suit is maintainable in its present form ? (3) Whether the suit is barred by law of adverse possession ? (4) Whether the proper court fee has paid ? (5) Whether the original pattadars have relinquished their right over the 'A' and 'B' schedule land and whether possession was delivered to the plaintiff No.1 excluding the disputed/suit land ? (6) Whether the plaintiff possesses right, title and interest over the suit land ? (7) Whether the plaintiff is entitled to relief as prayed for ? (8) To what other relief/reliefs the parties are entitled to ?” 9. During trial, both the parties examined four witnesses each and exhibited some documents. 10. The learned trial court first took up issue No. 6 for decision. While deciding the said issue, the learned trial court held that purchase of land by plaintiff No. 1 was admitted by the DWs. However, issue No. 6 was decided against the plaintiffs holding that the Namghar was possessed of the land including the well on the north and the road on the south for more than 100 years. It was also held that after execution of the sale deeds, possession was delivered to the plaintiffs excluding the well in northern side and the path in the southern side of the Namghar. The plaintiffs, accordingly, possessed the land excluding the well and the path and therefore, sale was not completed under Section 55 of the Transfer of Property Act and the sale for the entire plot of land was only paper work. The plaintiffs, accordingly, possessed the land excluding the well and the path and therefore, sale was not completed under Section 55 of the Transfer of Property Act and the sale for the entire plot of land was only paper work. The learned trial court while taking note of the admission of the defendants that 1 katha 4 lecha was allotted to it by the Government in Dag No. 336, observed from the Report of the Commissioner that defendants were also possessing 4.90 lecha in Dag No. 445 and 9.5 lecha in Dag No. 335. The evidence of DW 4, a Lat Mandal, to the effect that there was compromise between the parties prior to the construction of the wall and Ext. Kha and Ext. Unga were taken note of along with the evidence of the DWs in concluding that the plaintiffs acquiesced to the construction of the wall and accordingly, the learned trial court held that law of acquiescence and estoppel debars the plaintiffs to claim right over the suit land. On the aforesaid considerations, issue No. 6 was decided against the plaintiffs. 11. In view of the decision in issue No. 6 that the plaintiffs were possessing land excluding suit land, issue No. 5 relating to relinquishment of land by the original pattadars was decided in favour of the defendants. Based on the decisions in issue No.5 and 6, the learned trial court in respect of issue No.1 held that there was no cause of action. Issue No. 3 was also decided in favour of the defendants based on discussions in issue No. 6. Issue No. 2 regarding maintainability of the suit was decided against the plaintiffs holding that plaintiffs' suit is hit by law of waiver, acquiescence and estoppel. Accordingly, the suit was dismissed by the learned trial court. 12. In appeal, the learned lower appellate court reversed the judgment of the learned trial court and decreed the suit of the plaintiffs. 13. Mr. Mahanta has submitted that the judgment of the lower appellate court does not conform to the requirements of Order 41 Rule 31 CPC. He has submitted that impugned judgment of the learned lower appellate court is vitiated for non-consideration of Ext. Kha to Unga duly proved in accordance with law. 13. Mr. Mahanta has submitted that the judgment of the lower appellate court does not conform to the requirements of Order 41 Rule 31 CPC. He has submitted that impugned judgment of the learned lower appellate court is vitiated for non-consideration of Ext. Kha to Unga duly proved in accordance with law. He has vehemently argued that plaintiffs were never in possession of the suit land as possession of the suit land was not delivered to them consequent upon their purchase by the sale deeds in question and the learned lower appellate court, without any basis, reversed the finding relating to adverse possession. 14. I have considered the submission of the learned senior counsel for the appellants and perused the materials on record. 15. At the outset, it will be relevant to note that order dated 29.7.2004 passed in this case indicates that decree passed by the learned lower appellate court had been executed and the plaintiffs had been put in possession by the executing court. 16. A perusal of the judgment of the learned trial court would go to show that based on decision in issue No. 6, all other issues including even cause of action came to be decided against the plaintiffs. Cause of action is a bundle of facts and decision in an issue cannot be the guiding factor to determine cause of action. Plaintiff may not succeed in establishing his case. However, cause of action cannot be equated with establishment of a case for the purpose of grant of relief. Both stand on different footings. Materials on record unequivocally demonstrate that there was a dispute between the parties. The learned trial court had totally misdirected itself and rightly, the learned lower appellate court had reversed the finding in issue No. 1. Similarly, approach of the learned trial court was also wrong in deciding issue No. 2. 17. It is important to note that categorical averments were made by the defendants in their written statement that respective original patta-holders had relinquished the suit land, both in the northern and the southern side. Relinquishment is not transfer of property by a person to another. 17. It is important to note that categorical averments were made by the defendants in their written statement that respective original patta-holders had relinquished the suit land, both in the northern and the southern side. Relinquishment is not transfer of property by a person to another. Under Section 34(d) of the Assam Land and Revenue Regulation, 1886, a settlement-holder may, after giving notice and in the manner prescribed, relinquish the estate of which he has accepted a settlement or any part thereof on which a separate part of the revenue has been apportioned and shall thereupon be released from all future obligation to pay the revenue of the estates, or the part thereof so apportioned, as the case may be. Apparently, claim of the defendants of a right to possess the suit property on the basis of relinquishment in their favour is wholly not tenable in law. 18. In the written statement, the defendants had made only a solitary statement that the suit is bad for right of adverse possession of the defendants Namghar Committee. In this connection, it is relevant to note that defendant in the written statement had not denied purchase of land by the plaintiffs in Dag No. 335 and Dag No. 445. The stand taken was relinquishment of the suit land by the original patta-holders as a consequence of which suit land was not delivered to the plaintiffs by their vendors. Taking note of the evidence of DW-1, the vendor of 2 katha 5 lecha in Dag No. 335 that he had sold 2 katha 5 lecha of land and that in the sale deed he had not indicated that any land was relinquished by him, it was opined by the learned lower appellate court that the plaintiffs had purchased 2 kathas 5 lecha of land and that since ownership was proved, it was not necessary to go into the question of possession. The learned trial court committed manifest error of law in holding that the sale of land to the plaintiffs was not completed as no possession was delivered, in as much as, Section 54 of the Transfer of Property Act does not contemplate delivery of possession in respect of immovable property value of which is more than Rs. 100/- as a condition precedent for a valid sale. 100/- as a condition precedent for a valid sale. The learned lower appellate court held that the defendants had failed to state since when the possession of the defendants became hostile and adverse to the interest of the plaintiffs. It is also held that mere possession for a long time does not automatically lead to the conclusion that the possession is adverse to the interest of the true owner. 19. Admittedly, suit land is beyond the land allotted by the Government in favour of the Namghar. In a suit for possession of immovable property based on title, Article 65 of the Limitation Act is attracted. There is no pleading with regard to adverse possession except for a bald statement in Paragraph 4 of the written statement and the learned lower appellate court rightly held that the defendants failed to prove adverse possession. There is no evidence that the possession of the defendants has been hostile to the real owner. Mere possession of the land, in absence of animus possidendi to hold the land adverse to the title of the true owner, does not constitute and/or result in adverse possession. In the backdrop of the factual scenario and more particularly, taking note of the stand of the defendants that there was “relinquishment” of the suit land, at the most it can be said that the defendants, who have a Namghar, were permitted to use the suit land for the purposes of the Namghar. 20. It is relevant to note that in the written statement filed by the defendants, no averments were made that the dispute was compromised. All that was said was that no objection was raised by the plaintiffs at the time when the construction was raised. It is to be noted that as per the own averments of the defendants, hundreds of people of Namghar Committee were present when the foundation stone of the walls were laid and in the given situation, one may be guarded in raising objection. It is not correct to say that the learned lower appellate court had totally over looked Ext. Kha to Ext. Ungo. In support of its conclusion in issue No. 6, the learned trial court had referred to Ext. Kha to Ext. Ungo. Ext. Ka was the application filed by the plaintiffs for demarcation of land of Dag No. 335. Ext. Kha was a report submitted by DW 4. Ext. Kha to Ext. Ungo. In support of its conclusion in issue No. 6, the learned trial court had referred to Ext. Kha to Ext. Ungo. Ext. Ka was the application filed by the plaintiffs for demarcation of land of Dag No. 335. Ext. Kha was a report submitted by DW 4. Ext. Kha (2) is also another report submitted on 21.2.2001. Ext. Ga is a notice and Ext. Gha is a report of Process Server. Ext. Ungo purports to be a report on compromise. Ext. Kha (2) recites that both the parties had compromised. What was compromised and how it was compromised is not even reflected there. Ext. Ungo is a part of Ext. Gha. Ext. Ungo (1) is the signature of the plaintiff No. 1. Ext. Ungo (2) contains some signatures on behalf of the second party. None of them are parties in the suit. The said report also indicates that there was some settlement on the basis of mutual give and take without even mentioning where the boundary was demarcated. These exhibits do not throw any light on the dispute or in the resolution thereof by alleged compromise. In these circumstances, impugned judgment and decree of the learned lower appellate court cannot be held to be not sustainable in law for not entering into an elaborate discussion on the same. Accordingly, substantial question of law No. 2 is decided against the appellants. 21. I am also unable to persuade myself to agree with the submission of Mr. Mahanta that the impugned judgment is vitiated because of the same being not in conformity with Order 41 Rule 31 CPC. The learned lower appellate court had rendered its decision with reasoning on consideration of the materials on record, after adverting to the reasonings given by the learned trial court. In that view of the matter, substantial question of law No. 1 is also decided against the appellants. 22. Resultantly, the appeal is dismissed. The judgment and decree of the lower appellate court is upheld. No cost. 23. Registry will send down the records.