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2015 DIGILAW 580 (GAU)

Khagen Baruah v. Tulu Koch alias Bora

2015-05-15

A.K.GOSWAMI

body2015
JUDGMENT : This appeal by the appellant/defendant No.1 is directed against the judgment and decree dated 11.04.2003, passed by the learned Additional District Judge (FTC), Sonitpur at Biswanath Chariali, in Title Appeal No.1/1999 affirming the judgment and decree dated 21.09.1998, passed by the learned Civil Judge (Junior Division), Biswanath Chariali, in Title Suit No. 20/1991. 2. The case set out in the plaint is that 5 Bigha 2 Katha 6 Lecha of land, covered under Dag No. 578 (old)/84 (new) of Periodic Patta No.236 (old)/193 (new), situated at village Moralgaon, Mouza-Biswanath, originally belonged to one Khemia, who had two sons, namely, Maghiram Koch and Thaneswar Koch. After the death of Khemia, both the brothers made amicable partition of the aforesaid land in equal shares about 25 years ago and accordingly, land measuring 2 Bigha 3 Katha 13 Lecha fell in the share of Thaneswar Koch alias Bora, and he was in absolute possession of the same. The defendants, who had no manner of right, title and interest or possession, had forcibly taken possession of the land described in the Schedule on 11.10.1982 taking advantage of the bedridden condition of Thaneswar Koch and, since then, they were in possession of the land. Thaneswar Koch died on 02.03.1991 leaving behind the plaintiffs as his heirs and successors. The plaintiffs requested the defendants to handover possession whereupon the defendant No. 1 informed them that he had purchased the suit land from Thaneswar Koch alias Bora by a registered Deed long time back. Accordingly, the plaintiffs made enquiries in the Office of the concerned Sub-Registrar and obtained certified copy of two registered Sale Deeds on 08.04.1991, being No. 2423 for the year 1979, and another being No. 2269 for the year 1981. It was pleaded that Thaneswar Koch alias Bora never executed any registered Sale Deed and both the Sale Deeds are forged documents. By Sale Deed No. 2423, 1 Bigha of land, covered by Dag No. 517 of Periodic Patta No. 13, and by Sale Deed No. 2269, 1 Bigha of land, covered By Dag No. 570 of Periodic Patta No. 21, both of village Moralgaon, was sold. The aforesaid Patta land never belonged to Thaneswar and, therefore, the defendant No.1 cannot claim any right, title and interest on the strength of the said Sale Deeds. The aforesaid Patta land never belonged to Thaneswar and, therefore, the defendant No.1 cannot claim any right, title and interest on the strength of the said Sale Deeds. It was pleaded that Thaneswar was a trespasser and, accordingly, suit was filed praying declaration of the plaintiffs’ right, title and interest over the suit land and for recovery of khas possession, etc. 3. Defendant No. 1 in his written statement stated that with an ulterior motive, the boundaries of the suit land were not given in the plaint and the boundaries of the land, covered by the Sale Deeds, are relatable to the suit land. It was denied that he had entered into possession of the suit land on 11.10.1982 unauthorisedly taking advantage of the sickness of Thaneswar Koch. While admitting that Thaneswar Koch died in 1991, it was denied that he was suffering from prolonged illness and that he left behind the plaintiffs as his heirs and successors. It is further pleaded that since 1974, defendant No. 1 alongwith his father was in open and hostile possession of the suit land without any interruption from any quarter and, therefore, Thaneswar Koch sold the remaining part of his share of land to defendant No. 1. The Dag Nos. and Patta Nos. were written in the Sale Deed according to instructions of Late Thaneswar Koch and, as the boundaries of the land in their possession matched with the boundaries of the land mentioned in the Deeds, it was presumed by the defendant No. 1 and his father that the Dag Nos. and Patta Nos. were rightly given and, even assuming but not admitting that the Dag Nos. and Patta Nos. do not match with the records, the land that was in his possession is within the boundaries of the land mentioned in Sale Deed No. 2423 for the year 1979, and Sale Deed No. 2369 for the year 1981. Defendant No. 1, thus, claimed ownership on the basis of the purchase and also claimed right of adverse possession. 4. The defendant No. 2 filed written statement stating that the suit land was in possession of the defendant No. 1 by virtue of purchase since the time his father was alive. It was stated that he was engaged as an Adhiar by the defendant No. 1 and, prior to him, one Khargeswar was engaged as Adhiar by the defendant No. 1. It was stated that he was engaged as an Adhiar by the defendant No. 1 and, prior to him, one Khargeswar was engaged as Adhiar by the defendant No. 1. It was also pleaded that the plaintiffs were not the legal heirs of Thaneswar Koch. 5. On the basis of the pleadings, the learned trial Court framed the following issues: “(i) Whether the suit is maintainable? (ii) Whether the suit is barred by limitation? iii) Whether the suit is bad for non-joinder and misjoinder of parties? (iv) Whether the suit is barred by estoppels and acquiescence, waiver and Specific Relief Act? (v) Whether there is no cause of action? (vi) Whether the plaintiffs have right and title over the suit land? (vii) Whether the defendant is liable to be evicted from the suit land? (viii) Whether the plaintiff is entitled to any other relief as prayed for?” 6. Later on, one additional issue was framed, which is as follows: “(ix) Whether the plaintiffs have right to sue the defendants for an area of land measuring 2 Bigha 3 Katha and 13 Lecha?” 7. During trial, the plaintiffs examined five witnesses including the plaintiff No. 1 as PW-1 and pro forma defendant Meghiram Koch, brother of Thaneswar Koch as PW3 and exhibited 6 documents. The defendants examined three witnesses including both the defendants and also exhibited some documents. 8. By an order dated 04.11.2003, this Second Appeal was admitted to be heard on the following substantial questions of law: “(i) Whether the plaintiff No. 1, being not a legally married wife and being not entitled to inherit a property, can maintain a suit, more so, when the first wife is surviving? (ii) Whether the suit filed by the plaintiffs is bad for non-joinder of necessary parties, namely, the first wife (the word “wife” was dropped in the order dated 04.11.2003) and her son, who are, admittedly, surviving and have no interest over the suit property? (iii) Whether the mutation of the names of the plaintiffs in the revenue records confer any title on the plaintiffs without there being any proof of title?” 9. Mr. (iii) Whether the mutation of the names of the plaintiffs in the revenue records confer any title on the plaintiffs without there being any proof of title?” 9. Mr. P. P. Baruah, learned counsel for the appellant has submitted that the plaintiffs must, under the law, prove their title over the land, and records of right does not confer any title and, therefore, the right, title and interest, in respect of the land, could not have been declared in favour of the plaintiffs on the basis of Ext.-6, Jamabandi. He has also submitted that in absence of the first wife and the son, who are necessary parties, the suit of the plaintiffs was liable to be dismissed and both the Courts below have committed manifest error of law in not doing so. 10. Ms B. Choudhury, learned counsel for the plaintiffs/respondents supported the impugned judgments and submits that there cannot be any dispute that plaintiff Nos. 2 and 3 are entitled to file the suit, who were minors, represented by their mother, who was also the plaintiff No. 1 and therefore, the suit is maintainable. The plea of non-joinder of necessary parties was not even pleaded in the written statement and the learned lower appellate court moulded the relief protecting the interest of the first wife and the son. The plaintiffs had proved the patta as Ext. 1. Both the courts below had concurrently held that the appellant is liable to be evicted by rejecting the pleas put forward by the appellant. Accordingly, she submits that the instant appeal is liable to be dismissed. 11. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 12. The learned trial Court decreed the suit of the plaintiff primarily basing on Ext.-1, suit Patta, and on Ext.-6, Jamabandi. The learned trial Court rejected the contention of the defendants as unreliable. The plea taken that one Rohdoi, who is alive alongwith her son, was the first wife of Thaneswar was not averred in the written statement. The learned lower Appellate Court, though discussed all the nine issues, omitted to list Issue No.(ix) while referring the issues framed in paragraph 8. The plea taken that one Rohdoi, who is alive alongwith her son, was the first wife of Thaneswar was not averred in the written statement. The learned lower Appellate Court, though discussed all the nine issues, omitted to list Issue No.(ix) while referring the issues framed in paragraph 8. The learned lower Appellate Court noted while decreeing Issue No. 1 that it was elicited through cross-examination of PW1 that the plaintiff No. 1 was the second wife of Thaneswar, whose marriage was solemnized by way of an affidavit and that Rohdoi was the socially married first wife, who has a son through Thaneswar Koch alias Bora. Accordingly, it was held by the learned lower Appellate Court that the plaintiff No. 1 would not be entitled to inherit property though plaintiff Nos. 2 and 3 would be entitled to inherit property left by Thaneswar Koch and, accordingly, held the suit to be maintainable. The learned lower Appellate Court held that that the defendant No. 1 had claimed to have purchased 1 Bigha of the suit land in the year 1974, on the strength of Ext.-A, and another 1 Bigha of the suit land vide Ext.-2, in the year 1979, and 1 Bigha, vide Ext.-3 in the year 1981. Accordingly, it was held that once there is a claim of purchase, the claim of adverse possession, in respect of the same land, cannot stand. The claim of purchase is also bound to fall flat as the Dag No. and Patta No. of the land purchased vide Ext.-A, Ext.-2 and Ext.-3 are not correct and in such Dag Nos. and Patta Nos., Thaneswar Koch had no land. It was also held that plaintiffs deliberately avoided making Rohdoi and her son as parties. 13. Without any elaboration, in Paragraph 1 of the written statement of the appellant, it was stated that suit was not maintainable in its present form. The appellant, in his written statement in paragraph 3 had stated that the suit is bad for non-joinder and misjoinder of necessary parties in as much as, the plaintiffs had no right to file the suit against the defendant. It was not even pleaded that the first wife and her son are necessary parties. Only during evidence, the fact of Thaneswar Koch having a first wife and a son had surfaced. It was not even pleaded that the first wife and her son are necessary parties. Only during evidence, the fact of Thaneswar Koch having a first wife and a son had surfaced. There is no dispute that Thaneswar Koch and plaintiff No. 1 lived together for a long time till Thaneswar Koch died and that plaintiff Nos. 2 and 3 are off-springs of Thaneswar Koch. For the purpose of succession to the properties of their parents, illegitimate children are treated as legitimate and therefore, so far as plaintiff Nos. 2 and 3 are concerned, they are certainly entitled to bring a suit and being minors, they have to be represented by their mother. The plaintiff No. 1 alone may not have been able to maintain a suit. However, as the plaintiff Nos. 2 and 3 are very much on record as plaintiffs, the suit filed by them is maintainable notwithstanding that plaintiff No. 1 had joined as plaintiff. The suit cannot be dismissed on the ground that plaintiff No. 1 is not entitled to inherit any property of Thaneswar Koch. Though the plaintiffs have not claimed any relief against the first wife and the son, they were certainly proper parties. Order 1 Rule 9 of CPC provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties. Evidence on record had disclosed that the first wife of Thaneswar Koch, namely, Rohdoi had left her matrimonial house while she was carrying. The learned lower appellate court had also noted that Rohdoi and her son apparently had not taken any interest in respect of the properties of Thaneswar Koch. 14. The learned courts below had rejected the plea of the appellant regarding purchase as well as adverse possession. PW 3 Maghiram Koch, the elder brother of Thaneswar Koch had supported PW 1 when he stated that after death of their father, he and Thaneswar had mutually partitioned the land measuring 5 bigha 2 katha 6 lecha equally and northern portion of the said land was taken by him and the southern portion was taken by Thaneswar and they were accordingly possessing the land. In between Maghiram and Thaneswar, there is no dispute with regard to the identity of land and PW 3 in his evidence had also given the boundary of the suit land. PW 1 had exhibited the periodic patta as Ext. 1. In between Maghiram and Thaneswar, there is no dispute with regard to the identity of land and PW 3 in his evidence had also given the boundary of the suit land. PW 1 had exhibited the periodic patta as Ext. 1. PW 5, the SDO (Civil) had proved the Jamabandi as Ext. 6. The learned lower appellate court had, however, wrongly treated the Jamabandi as Ext. 1 and Ext. 6 as the patta. In the case of Amiya Bala Dutta vs. Mukut Adhikari and ors., reported in 1998 (4) GLT 137, this Court had held that patta must be considered and is always considered to be a document of title. In Ext. 1, names of Maghiram and Thaneswar appear. In the Jamabandi, after the death of Thaneswar, names of all the plaintiffs are entered. Mutation entries may not be the basis of title. However, it is not that the plaintiffs had sought to establish title only on the basis of mutation entries. As noted above, the periodic patta was exhibited demonstrating title of Thaneswar Koch along with Maghiram Koch in respect of 5 bigha 2 katha 6 lecha of land in Dag No. 578 (old) 84 (new) of periodic patta No. 236 (old) 193 (new). Maghiram Koch, by examining himself as PW 3 had deposed that the suit land fell in the share of Thaneswar on the basis of an amicable partition. 15. In view of the above discussion, substantial questions of law are answered against the appellant. 16. The learned lower Appellate Court held that it was not inclined to send back the case for impleadment of the first wife and the son of Late Thaneswar Koch alias Bora and observed that in the event of Rohdoi and her son obtaining any decree, they will be entitled to proportionate share of the properties left behind by Thaneswar Koch, by way of moulding the relief. I am of the considered opinion that in the facts and circumstances of the case, it will be more appropriate to hold that Rohdoi and her son, whose name is not appearing in the records of the case, will also have right, title and interest along with plaintiff Nos.2 and 3 in the suit land. Plaintiff Nos.2 and 3 are to be put in possession by evicting the defendants with their men and materials etc. 17. Plaintiff Nos.2 and 3 are to be put in possession by evicting the defendants with their men and materials etc. 17. The appeal is dismissed with the modification of the impugned judgment of the learned lower appellate court as above. No cost. 18. Send back the lower court records.