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2015 DIGILAW 584 (GAU)

Satyendra Malakar and Ors. v. Monoranjan Das

2015-05-15

A.K.GOSWAMI

body2015
Arup Kumar Goswami, J. 1. This second appeal is preferred against the judgment and decree dated 16.02.2006, passed by the learned Civil Judge (Senior Division), Karimganj in Title Appeal No. 25/1997 dismissing the appeal and affirming the judgment and decree dated 31.03.1997, passed by the learned Civil Judge (Junior Division) No. 3, Karimganj in Title Suit No. 386/1981. The appeal is preferred by the legal representatives of defendant No. 2 in the suit. 2. By way of preface, it may be indicated that plaintiff claims to have purchased a plot of land as described in Ext. 1, a sale deed executed by defendant No. 1 dated 11.04.1979. Defendant No. 2 is the brother of defendant No. 1. Defendant No. 2 claims to have purchased the suit land vide Ext. B dated 27.03.1978 from defendant No. 1. 3. In the suit, it was pleaded that suit land as described in the schedule to the plaint was in possession of the defendant Nos. 1 and 2 by virtue of their purchase of tenancy rights. The defendants had amicably partitioned the aforesaid land and the suit land fell in the share of defendant No. 1. Out of the land falling in the share of defendant No. 1, one powa of land with the boundaries as described in the schedule was sold to the plaintiff by the defendant No. 1 and in such sale transaction, the defendant No. 2 had taken initiative. The sale deed (Ext. 1) was registered on 11.04.1979. Possession was not delivered to the plaintiff on the ground that the shares of the two brothers would be permanently demarcated and then possession would be delivered to the plaintiff. Subsequently, the defendant No. 2 disclosed that he had purchased the suit land earlier, and therefore, the defendant No. 1 had no title over the suit land. It was pleaded that defendant No. 2 never purchased the suit land and in any view of the matter, the sale deed was a collusive document by virtue of which, the defendant No. 2 is continuing in possession. 4. It was pleaded that defendant No. 2 never purchased the suit land and in any view of the matter, the sale deed was a collusive document by virtue of which, the defendant No. 2 is continuing in possession. 4. Accordingly, the plaintiff filed the suit with the following prayers: "A) For declaration of tenancy right of the plaintiff by virtue of purchase of land described in the schedule below and to get possession thereof by evicting of the defendant No. 2 from possession of the said land, and B) For declaration that the sale deed stated to have been executed in favour of the defendant No. 2 in respect of the suit land is artificial, illegal and inoperative in law and for declaration that the defendant No. 2 has no title over the suit land, and C) For recovery of Rs. 4000/- from the defendant No. 1 and 2 being the purchase value of the suit land by the plaintiff in the event if the title of the plaintiff over the suit land is not declared or if the title of the defendant No. 2 is declared over the suit land, and D) For recovery of Rs. 4000/- from the defendant No. 1 if the defendant No. 2 is not found not responsible for payment of the said amount, and E) For such further or other relief, and F) For cost of the suit with interest against the defendants." 5. The defendant No. 2 stated that the suit land is situated in the northern portion of the land described in the schedule to the written statement and he was in joint possession with defendant No. 1 in equal shares. The defendant No. 1 transferred his right to the extent of his half share of the land described in the schedule to the written statement measuring 1/2 (half) Kedar along with other land to the defendant No. 2 by executing a sale deed dated 27.03.1978 (Ext. B), which was registered on 30.03.1978. The sale deed executed in his favour being prior in point of time, the defendant No. 1 did not have any saleable interest to sell the suit land to the plaintiff. It was pleaded that the original sale deed was lost and a certified copy of the sale deed (Ext. A) was filed along with the written statement. The sale deed executed in his favour being prior in point of time, the defendant No. 1 did not have any saleable interest to sell the suit land to the plaintiff. It was pleaded that the original sale deed was lost and a certified copy of the sale deed (Ext. A) was filed along with the written statement. The defendant No. 2 denied any collusion in between himself and defendant No. 1. 6. On the basis of the pleadings, learned trial Court framed the following issues: "1. Is there any cause of action for the suit? 2. Is the suit properly valued and stamped? 3. Whether the defendant No. 1 had any subsisting interest over the suit land to transfer to the plaintiff on 11.4.79? 4. Whether the plaintiff acquired title over the suit land by the alleged purchase from defendant No. 1? 5. Whether the defendant No. 2 approached the plaintiff to purchase the suit land from the defendant No. 1 as alleged? 6. Whether the defendant No. 2 is liable to compensate the plaintiff in case plaintiff fails to establish his title over the suit land? 7. To what relief the plaintiff is entitled to? 8. Whether the sale deed dated 30.3.79 in the name of defendant No. 2 was executed and registered by the defendant No. 2 and whether the said deed is a collusive document and with consideration?" 7. The suit proceeded ex-parte against the defendant No. 1. The plaintiff examined himself as well as one more witness. Defendant also examined two witnesses. Both the sides exhibited their respective sale deeds and some other documents. The learned trial Court had come to the conclusion that Ext. B is a collusive document. The learned trial Court also found contradiction in the evidence of defendant No. 2 vis-a-vis Ext. B with regard to purchase area. The trial Court decreed the suit of the plaintiff to the extent that the plaintiff is entitled to get a declaration of his title over the suit land and to get recovery of possession thereof. However, no declaration as such was given in respect of Ext. B as prayed for by the plaintiff. The appeal preferred by the defendant No. 2 also came to be dismissed. 8. The learned lower Appellate Court, however, held that defendant No. 2 had proved due execution of Ext. B. Therefore, Ext. However, no declaration as such was given in respect of Ext. B as prayed for by the plaintiff. The appeal preferred by the defendant No. 2 also came to be dismissed. 8. The learned lower Appellate Court, however, held that defendant No. 2 had proved due execution of Ext. B. Therefore, Ext. B is a valid document and continues to remain in force. The learned lower Appellate Court considered the report of the Amin Commissioner and found that land in Ext. 1 is not included in Ext. B. 9. This second appeal was admitted to be heard by an order dated 09.06.2006 on the following substantial question of law: "Whether the learned Courts below are correct in decreeing the suit of the plaintiff on the basis of Ext. 1, sale deed dated 11.04.1979, executed subsequent to the Ext. (B), sale deed dated 07.03.1978 by which defendant/appellant possesses the suit land?" 10. Mr. Dhar, learned counsel for the appellants has submitted that though undisputedly the sale deed executed in favour of the defendant No. 2 was prior in point of time and though the learned lower Appellate Court had recorded the finding that defendant No. 2 successfully proved execution of Ext. B sale deed executed by the defendant No. 1 in favour of the defendant No. 2, dismissed the appeal on the ground that the schedule referred to in Ext. B did not tally with the suit land. The learned counsel submits that the defendant No. 2 had purchased a larger tract of land as compared to one powa of land purchased by the plaintiff, and therefore, naturally, boundaries of the suit land will not synchronize and tally with the land purchased by the defendant No. 2. To that extent, there is a perversity in the appreciation of evidence of the learned Court below and in the facts and circumstances of the case, substantial question of law will have to be answered in the affirmative in favour of the appellants, he submits. 11. Mr. G.N. Sahewalla, learned Senior Counsel for the plaintiff/respondent, on the other hand, submits that the plea of perversity as raised by the appellants has got no basis whatsoever and both the Courts below on the basis of evidence on record as well as on the basis of the report of the Amin Commissioner determined that land described in Ext. B does not include the suit land. B does not include the suit land. The said report was not objected to by the defendant despite taking adjournment on a number of occasions and finally prayer for further adjournment to file objection to the Report of the Amin Commissioner was rejected on 29.06.1991. Therefore, there is no merit in the second appeal and the same is liable to be dismissed, he submits. 12. I have heard the learned counsel for the parties and have considered the materials on record. 13. The report of the Amin Commissioner is dated 04.11.1989. Order-sheet of the learned trial Court dated 20.11.1999 shows the submission of the Report of the Amin Commissioner. Number of dates were fixed for objection, if any, to the Report of the Amin Commissioner. The order of the Court dated 29.06.1991 shows that prayer for time made by the defendant No. 2 for submission of objection was rejected and the case was fixed for argument. 14. Order 26 Rule 10(2) C.P.C. provides that report of the Commissioner shall be evidence in the suit. Therefore, the learned lower Appellate Court is justified to take into account the evidence of the Amin Commissioner. The report categorically states that while boundary given in Ext. 1 matches with the boundaries in the field, the same is not the case in respect of the boundaries given in Ext. B in relation to the field verification. It is also categorically stated that the suit land is not part of Ext. B. 15. In view of the above, I find no merit in this appeal, and accordingly, same is dismissed. The land involved in both the sale deeds being different, substantial question of law as formulated by this Court does not arise for consideration. 16. Registry will send back the records.