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2015 DIGILAW 638 (GAU)

Ananta Phukan v. Satyendra Ch. Bezbaruah and Ors.

2015-05-26

SUMAN SHYAM

body2015
Suman Shyam, J. 1. This Second appeal has been preferred against the judgment dated 25.07.2003 and decree dated 06.08.2003 passed by the learned Civil Judge (Senior Division), Jorhat in Title Appeal No. 17/2002 partly allowing the appeal and reversing the judgment and decree dated 05.03.2002 passed in Title Suit No. 47/1998 by the learned Civil Judge (Junior Division), Jorhat. 2. The case of the plaintiff, as projected in the plaint, is that the plaintiffs are the owners of a plot of land measuring 4 bighas 4 kathas 4 lechas covered by dag No. 9514 of periodic patta No. 152, which is standing adjacent to the land owned by the defendant measuring 1 bigha 15 lechas covered by dag No. 9517 of periodic patta No. 104. 3. Both the plots of land are separated by a earthen drain dug by the plaintiffs way back in the year 1954. In the year 1997, the plaintiffs had cleared the jungles in the land whereafter, they found that the defendant had filled up the drain on the southern side as well as on the northern side thereby encroaching about 5 lechas of land belonging to the plaintiffs. The matter having been pointed out by the plaintiffs, the defendant had initially agreed to vacate the encroached portion of the land if the allegation was found to be correct upon proper measurement. Acting on such assurance given by the defendant, the plaintiffs had applied before the Circle Officer (Jorhat East) to conduct a survey of the land whereafter, the learned Circle Officer had carried out a measurement of the land in presence of both the parties in connection with Case No. 30/97-98. On such measurement, the claim of the plaintiffs turned out to be correct. However, despite the same, the defendant did not vacate the encroached portion of the land of the plaintiffs and on the contrary started to collect building materials on a portion of the land (i.e. the suit land) for the purpose of making construction of permanent structure thereupon. Since, the defendant did not relent despite objections raised by the plaintiffs, hence, the plaintiffs were compelled to institute the title suit praying for declaration of the right, title and interest over the suit land as well as for recovery of khas possession by evicting the defendant therefrom. 4. Since, the defendant did not relent despite objections raised by the plaintiffs, hence, the plaintiffs were compelled to institute the title suit praying for declaration of the right, title and interest over the suit land as well as for recovery of khas possession by evicting the defendant therefrom. 4. The defendant contested the suit by filing written statement whereby the averments made in the plaint have been denied in general. The defendant, on the other hand, had claimed that the earthen drain demarcating the boundaries of the plot of land owned by the defendant as well as the plaintiffs still stands where it was. He further claimed that when the land was measured by the Lat Mandal, it was found that the defendant had never encroached upon the land of the plaintiffs. It is also the pleaded case of the defendant that when he had started construction of a bathroom cum latrine and a water reservoir on its roof, in the year 1998, the plaintiffs suddenly raised objections to such construction without any valid reason. The defendant, therefore, prayed for dismissal of the suit with cost. 5. It appears from the record that even before framing of the issues, the learned Trial Court had issued a survey commission at the instance of the plaintiffs to carry out a local inspection and submit a report. The Commissioner had conducted a local inspection in respect of the disputed land and thereafter filed a report before the Court, which was accepted after hearing both the parties. 6. Thereafter, on the basis of the pleadings of the parties, the following issues were framed:- (i) Whether there is a cause of action for this suit? (ii) Whether the suit is barred by limitation? (iii) Whether the suit is bad for non-joinder of necessary parties? (iv) Whether the defendant encroached/trespassed into the suit land, thereby illegally possessed the same? (v) Whether the plaintiffs have right, title and interest over the suit land? (vi) Whether the defendant has been possessing the suit land since 1984? (vii) Whether the plaintiffs are entitled to a decree as prayed for? (viii) What relief/reliefs the parties are entitled to? 7. In course of trial, both the parties adduced oral evidence as well as produced documentary evidence in support of their respective cases. (vi) Whether the defendant has been possessing the suit land since 1984? (vii) Whether the plaintiffs are entitled to a decree as prayed for? (viii) What relief/reliefs the parties are entitled to? 7. In course of trial, both the parties adduced oral evidence as well as produced documentary evidence in support of their respective cases. On proper analysis of the materials on record, the learned Trial Court was of the opinion that the plaintiffs had failed to prove and establish their case that the defendant had encroached/trespassed into the suit land by illegally dispossessing the plaintiffs. As such, the Issue No. 4 was decided against the plaintiffs and in favour of the defendant. That apart, the learned Trial Court had also held that there was no cause of action on the part of the plaintiffs to institute the present suit and accordingly, the Issue No. 1 was also decided in the negative. Consequently, the suit filed by the plaintiffs stood dismissed by the Trial Court by the judgment and decree dated 05.03.2002. 8. Being aggrieved and dissatisfied by the dismissal of the suit, the plaintiffs as appellants had preferred Title Appeal No. 17/2002 in the Court of Civil Judge (Senior Division), Jorhat challenging the judgment and decree dated 05.03.2002 passed in Title Suit No. 47/1998. After hearing the parties, the learned First Appellate Court had reversed the findings of the Trial Court as regards Issue No. 1 thereby holding that there was cause of action for the plaintiffs to institute the suit. That apart, taking cognizance of the Survey Commissioner's report (Exhibit-6) as well as the oral testimony of the Commissioner, i.e., PW-4, the learned First Appellate Court arrived at conclusion that the defendant was in illegal possession of the land measuring 1 lecha covered by dag No. 9514 belonging to the plaintiffs and hence the plaintiffs were entitled to a decree for declaration and recovery of possession in respect of 1 lecha of land under encroachment by the defendant. As such, the Title Appeal was partly allowed by decreeing the suit in respect of 1 lecha of land instead of 5 lechas as claimed by the plaintiffs. 9. As such, the Title Appeal was partly allowed by decreeing the suit in respect of 1 lecha of land instead of 5 lechas as claimed by the plaintiffs. 9. Being highly aggrieved and dissatisfied with the judgment dated 25.07.2003 and decree dated 06.08.2003 passed by the learned Lower Appellate Court in Title Appeal No. 17/2002, the defendant as appellant had approached this Court by preferring the instant Second appeal which was admitted for hearing by framing the following two substantial questions of law: (i) Whether the judgment of the appellate Court below was passed in accordance with Order XLI Rule 31 of the CPC and (ii) Whether the appellate Court below erred in law in decreeing the suit on the basis of the exhibit-6, a report of the Survey Commissioner in contradistinction to his subsequent report namely exhibit-7 and survey of Lat Mandal. 10. I have heard Mr. G.N. Sahewalla, learned Senior counsel appearing for the appellant. None appeared for the respondents/plaintiffs despite due service of notice. 11. Mr. Sahewalla, learned Senior counsel for the appellant submits that this is a case where the decree of reversal had been passed by the learned Lower Appellate Court without there being any evidence available on record to prove and establish the case of the plaintiffs. He further submits that the sole basis of the appellate decree appears to be the report of the Survey Commissioner and no other material. However, even a perusal of the said report Exhibit-6 as well as the testimonies of the PW-4 (Commissioner) would go to show that the said report was not credible and/or reliable at all since the Commissioner had admittedly not carried out any measurement in respect of the entire land. Unless the entire land had been measured, it is not understood as to on what basis the PW-4 had arrived at a conclusion that land measuring 1 lecha was under the encroachment by the defendant. 12. Drawing the attention of this Court to Exhibit-6, Mr. G.N. Sahewalla, learned Senior Counsel further submits that even the report of the Commissioner clearly mentions that the latrine/bathroom was being constructed inside the land of the defendant. As such, there was no basis for the learned First Appellate Court to pass the judgment and decree of reversal. 12. Drawing the attention of this Court to Exhibit-6, Mr. G.N. Sahewalla, learned Senior Counsel further submits that even the report of the Commissioner clearly mentions that the latrine/bathroom was being constructed inside the land of the defendant. As such, there was no basis for the learned First Appellate Court to pass the judgment and decree of reversal. He further submits that even the survey Commission could not have been issued by the Court below prior to commencement of trial and therefore, the report Ext-6 would not have any validity in the eye of law. 13. I have considered the submissions made by Mr. G.N. Sahewalla, learned Senior Counsel and also perused the records. It appears that the plaintiffs' case was initially based on the findings recorded by the Circle Officer in connection with Case No. 30/97-98. However, surprisingly enough, during the course of trial, the plaintiffs did not adduce any evidence from the records of the said case nor was the same produced before the learned Trial Court. It appears from the records that the plaintiffs' side had failed to adduce any cogent evidence so as to prove and establish their case that the defendant had encroached any land belonging to the plaintiffs. The only basis on which the appellate decree had been passed appears to be the report of the Survey Commissioner (Exhibit-6). 14. In the above context, it may be pointed out herein that, from the records what is discernible is that the Survey Commission was issued by the Trial Court even before framing of issues in the case. Order XXVI Rule 9 CPC certainly permits the Court to issue a commission to make a local investigation for the purpose of elucidating any matter in dispute. However, such local inspection could not have been issued by the Court before framing issues and even before commencement of trial of the suit without recording any valid reasons. The prayer of issuing commission for local Investigation is a discretionary power available with the Court, which is required to be exercised on being satisfied that such an inspection would be necessary for elucidating facts and particulars regarding any matter in dispute so as to pronounce a judgment. When a commission is asked for, the Court has to record reasons that sufficient ground for issuance of a Commission exists. When a commission is asked for, the Court has to record reasons that sufficient ground for issuance of a Commission exists. In the instant case, Survey Commission was issued even before the commencement of the trial without recording any reason thereof. Be that as it may, since the defendant had not raised any objection and on the contrary participated in the cross-examination of the PW-4 (Commissioner) hence, he cannot be allowed to raise any objection in that regard at this stage. 15. On a perusal of the report of the Commission, it appears that the Survey Commissioner had himself mentioned that there were certain lacuna in Exhibit-6 and therefore, he had on his own accord submitted a rejoinder report (Exhibit-7) rectifying such lacuna. However, there is nothing on record to indicate as to what was the lacuna in Exhibit-6 and in what manner the same had been rectified by Exhibit-7. A perusal of Exhibit-6 also does not mention as to on what basis the Commissioner had arrived at a conclusion that land measuring 1 lecha had been encroached by the defendant since he had not carried out measurement of the entire land. Since it is the admitted position that the defendant was constructing the bathroom inside his own land, as it appears from the report of the Commissioner, therefore, the report also contradicts the pleaded stand of the plaintiffs. It is settled law that the plaintiff must succeed on the strength of his own case. But the evidence on record suggest that the plaintiffs side has failed to prove their own case. 16. In view of what has been discussed above, this Court is of the opinion that the plaintiffs' side had failed to establish their claims by leading cogent evidence so as to entitle them to a decree as prayed for. Besides, the mere fact that the plaintiffs have not relied upon the records of Case No. 30/97-98 and the findings of the learned Circle Officer (Jorhat East) during the course of trial of the suit also goes to raise serious doubts about the genuineness of the claim made by the plaintiffs and affords a basis for drawing adverse presumption. Besides, the mere fact that the plaintiffs have not relied upon the records of Case No. 30/97-98 and the findings of the learned Circle Officer (Jorhat East) during the course of trial of the suit also goes to raise serious doubts about the genuineness of the claim made by the plaintiffs and affords a basis for drawing adverse presumption. In such view of the matter, this Court is of the opinion that the judgment and decree passed by the learned Court below suffers from perversity in the eye of law the same not being based on any cogent evidence on record. 17. For the foregoing reasons, the judgment and decree passed by the learned First Appellate Court is held to be not sustainable in law and hence the same is set aside. The judgment and decree passed by the trial Court stands uphold. The substantial questions of law framed by this Court stands unanswered accordingly. However, under the facts and circumstances of the case there would be no order as to costs. Registry to send back the LCR.