Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 674 (GAU)

Renuka Rabha v. Gopal Ch. Deka

2015-06-02

SUMAN SHYAM

body2015
JUDGMENT : This second appeal has been preferred against the judgment dated 25-05-2007 and decree dated 27-07-2007 respectively passed by the learned Civil Judge (Sr. Div.) No. 1, Kamrup, Guwahati in Title Appeal No. 78/2004 reversing the judgment and decree dated 19-08-2004 and 20-09-2004 respectively passed by the learned Civil Judge (Jr. Div.) No. 1, Kamrup, Guwahati in Title Suit No. 42/1986. 2. The plaintiff’s case in brief is that the plaintiffs are the owners in possession in respect of a total area of land measuring 1B-2K-11L covered by Dag No. 211 of KP Patta No. 13 of Village- Jatia, Mouza- Beltola in the district of Kamrup, Assam. The plaintiffs have been possessing the said plot of land since the time of their ancestor and have also been paying the land revenue regularly. After the death of their father a patta was issued in the name of the plaintiffs Kandura Rabha and Baburam Rabha. While the plaintiffs were in peaceful possession of the aforementioned plot of land as its registered owners, the defendant, Gopal Ch. Deka had forcefully occupied land measuring 1K-3L out of the aforementioned 1B-2K-11L of land belonging to the plaintiff, on 14-10-1985 and thereafter constructed two ekchali houses and also setup cycle repairing shop thereupon. On 28-11-1985, the plaintiff had come to know about the said illegal trespass committed by the defendant in respect of the aforementioned land measuring 1K-3L and accordingly on 07-12-1985 and thereafter on 22-01-1986, requested the defendant to vacate the suit property. However, despite such request made by the plaintiff, the defendant failed to vacate the suit property for which the plaintiff had been compelled to institute the instant suit for declaration of their right, title and interest in respect of the land measuring 1K-3L, i.e. the suit land and also for recovery of khas possession in respect thereof by evicting the defendant therefrom. 3. The defendant contested the suit by filing his written statement. The defendant had taken a stand that one Saru Ram Rabha was a tenant in respect of the suit land under the plaintiffs. On 18-01-1960 the said Saru Ram Rabha handed over possession of the suit property to the defendant upon receipt of a sum of Rs. 500/- as advance. On 23-03-1979 Saru Ram Rabha sold the suit land to the defendant by executing ‘katcha’ (unregistered) sale deed for a consideration of Rs. 2000/-. On 18-01-1960 the said Saru Ram Rabha handed over possession of the suit property to the defendant upon receipt of a sum of Rs. 500/- as advance. On 23-03-1979 Saru Ram Rabha sold the suit land to the defendant by executing ‘katcha’ (unregistered) sale deed for a consideration of Rs. 2000/-. Since then the defendant has been possessing the land by paying the municipal tax etc. The defendant has further averred that the plaintiffs, without any valid reason, had attempted to dispossess the defendant from the suit land as a result of which a proceeding under Section 107 of the Cr.P.C. had to be started. Again, the plaintiff had dug up a drain in front of the suit land with a view to obstruct the ingress and egress of the defendant to and from the suit land for which the defendant had to file another case which was registered as Misc. (J) Case No. 665/2005. It was at that stage, averred the defendant, the plaintiff had institute the suit with a view to harass him and accordingly the defendant had prayed for dismissal of the suit. 4. On the basis of the pleadings of the parties the learned Trial Court had framed as many as ten issues including three additional issues which may be noticed herein below: 1) Is there any cause of action for the suit? 2) Is the suit is maintainable in its present form? 3) Whether the plaintiff has got right, title and interest over the suit land? 4) Whether the defendant had trespassed over the suit land and constructed house upon it remained there without authority of law? 5) Whether the defendant has purchased the suit land from Saru Ram Rabha as alleged in the written statement? 6) Whether the plaintiff is entitled to a decree as prayed for? 7) To what relief if any, the plaintiff is entitled? Addl. Issues: 7(a) Whether the suit is bad for non-joinder of necessary parties? 7(b) Whether the defendant possessed the suit land adversely against the plaintiff? 7(c) Whether the vendor of the defendant Saru Ram Rabha had subsisting title to dispose of the same in favour of the defendant? 5. The plaintiffs examined as many as four witnesses and defendant also examined five witnesses. 7(b) Whether the defendant possessed the suit land adversely against the plaintiff? 7(c) Whether the vendor of the defendant Saru Ram Rabha had subsisting title to dispose of the same in favour of the defendant? 5. The plaintiffs examined as many as four witnesses and defendant also examined five witnesses. Thereafter on the basis of the pleaded stand of the parties as well as the materials available on record the learned Trial Court had passed judgment dated 19-08-2004 decreeing the suit filed by the plaintiff by deciding all the issues in favour of the plaintiff. 6. Being aggrieved by the judgment dated 19-08-2004 and decree dated 20-09-2004 passed by the learned Trial Court in Title Suit No. 42/1986 the defendant as appellant had preferred Title Appeal No. 78/2004 in the Court of learned Civil Judge (Sr. Div.) No. 1, Kamrup, Guwahati. 7. Upon hearing the learned counsel for the parties the First Appellant Court had allowed the appeal by reversing the decree dated 20-09-2004 passed by the Trial Court. 8. Being highly aggrieved and dissatisfied with the judgment dated 25-05-2007 and decree dated 27-06-2007 passed by the learned First Appellate Court in Title Appeal No. 78/2004 the plaintiffs as appellants had approached this Court by presenting the instant second appeal which was admitted for hearing by framing the following three substantial questions of law: 1. Whether the First Appellate Court misconstrued the illegally took up an un-pleaded case by misconstruction of document. 2. Whether the learned First Appellate Court committed illegality in allowing the appeal on a different case, which is not pleaded by either party to the suit. 3. Whether the First Appellate Court had committed the illegality in not considering the provision of Assam Tenancy Act, 1971 in coming to a finding that defendant came to a possession vide Exhibit-5. 9. Heard Mr. H.K. Deka, learned Sr. counsel appearing for the appellant. None appears for the respondent. 10. Mr. Deka, learned Sr. counsel submits that from a perusal of the judgment and order passed by the learned Trial Court it would be apparent that the plaintiff has been able to prove and establish their case by leading cogent evidence on record. On the contrary the learned Trial Court has held that the defendant has failed to prove any semblance of right, title and interest in respect of the suit land. On the contrary the learned Trial Court has held that the defendant has failed to prove any semblance of right, title and interest in respect of the suit land. It was also categorically held that the defendant has also failed to prove and establish his alternative claim of having acquired title in respect of the suit land by way of adverse possession. On the basis of such conclusion drawn by the learned Trial Court, the suit filed by the plaintiff had been decreed. Such being the position and having regard to the fact that the learned First Appellate Court had also practically answered all the issues in favour of the appellant/ plaintiff, there was no legal justification for the learned First Appellate Court to dismiss the suit filed by the plaintiff based on such conclusion which was dehors the pleaded stand of either of the parties. 11. Mr. Deka, learned Sr. counsel further submits that from a perusal of the written statement filed by the defendant it would be apparent that the defendant himself has stated that Saru Ram Rabha was a tenant under the plaintiff and that the defendant had purchased the suit land by a ‘katcha’ deed from the said Saru Ram Rabha. Despite the said categorical pleadings contained in the written statement, which was denied by the plaintiff, the learned First Appellate Court recorded a finding that the defendant was a tenant under the plaintiff, which was not the case of either of the parties. He further submits that such perversed findings has purportedly been recorded on the basis of Exhibit-4 lawyers notice produced by the defendant which document is neither admissible in evidence nor has the same been proved in accordance with law. Since the learned First Appellate Court has not disagreed with the finding recorded by the learned First Appellate Court in respect of all the issues save and except issue No. 4 to some extent, and in view of the fact of the findings recorded in respect of the issue No. 4 is also neither based on cogent evidence on record nor has any reason been recorded for arriving at such a finding, hence, the judgment and decree of reversal passed by the learned First Appellate Court is not sustainable in the eye of law and is liable to be set aside. 12. I have considered the submission made by Mr. Deka, learned Sr. 12. I have considered the submission made by Mr. Deka, learned Sr. counsel and have also perused the materials available on record. In the instant case the plaintiffs have prayed for declaration of their right, title and interest and also for recovery of khas possession in respect of the suit land by evicting the defendant. In support of their claim, the plaintiff had produced a copy of the patta (Exhibit-1) as well as revenue paying receipt (Exhibit-2 to 13). That apart, copy of the jamabandi (Exhibit-14) has also been duly adduced by the plaintiffs besides producing copy of the Exhibit-5 (certificate issued by the Revenue Authority). During the cross-examination the defendant would not dislodge the evidence adduced by the plaintiffs in support of their claim. As such, it is apparent that the plaintiffs had been able to prima facie establish their right, title and interest in respect of the suit land so as to entitle them to a decree of recovery of possession by evicting the defendant. On the contrary the defendant had claimed to have purchase the said plot of land by means of a “katcha deed” from Saru Ram Rabha for consideration of Rs. 2000/-. It has also been claimed by the defendant that Saru Ram Rabha was a tenant under the plaintiff. On examination of the evidence on record, I do not find either any tenancy khatiyan or any other document produced by the defendant to show that Saru Ram Rabha was an occupancy tenant under the plaintiff at any point of time. As such the aforesaid claim of the defendant remained completely unsubstantiated and not proved. That apart, it is settled law that in case of immovable property of value of Rs. 100/-, or more, no title in respect thereof can be acquired by an unregistered document. Such being the position the “katcha deed” Exhibit-5 produced by the defendant is neither admissible in evidence in view of bar created by Section 49 of the Indian Registration Act, nor can the same be held to have conferd any right, title and interest over the land of the defendant. Such being the position it is apparent that defendant had failed to lead any evidence in support of his version as setup in his written statement. Such being the position it is apparent that defendant had failed to lead any evidence in support of his version as setup in his written statement. As such the learned Trial Court was justified in the eye of law in decreeing the suit of the plaintiff by taking cognizance of the evidence available on record. 13. On perusal of the judgment and decree passed by the First Appellate Court what can be seen is that the learned lower Appellate Court did not reversed the finding of fact recorded by the learned Trial Court in favour of the plaintiff in respect of any of the issues, but had gone on to record a conclusion that the defendant was a tenant under the plaintiff. On examination of the pleadings contained in the written statement this Court could not find any such assertion having been made by the defendant. That apart, the reliance placed by the learned First Appellate Court to Exhibit-4 is also completely misplaced inasmuch as a perusal of the said exhibit goes to show that the same is not even admissible in evidence since the Exhibit-4 is a typed copy of a lawyers notice issued by one C.B. Goswami but the same does not bear the signature of any person. Moreover, even assuming that the said document is admissible evidence in the eye of law even in that case defendant has not proved Exhibit-4 in accordance with law so as to place any reliance of the said document. As such it is apparent that the finding recorded by the learned First Appellate Court to the effect that the defendant was a tenant under the plaintiff is vitiated by perversity as the said finding is dehors any pleadings or any evidence available on record. Since the sole basis of reversing the judgment and order passed by the learned Trial Court is the conclusion drawn by the learned First Appellate Court that the defendant was a tenant under the plaintiff, hence, I am of the considered opinion that the impugned judgment and decree passed by the learned First Appellate Court is vitiated by perversity and non-application of mind. As such, the same is not sustainable in the eye or law. As such, the same is not sustainable in the eye or law. Apart from the reasons stated hereinbefore, the judgment and decree passed by the learned First Appellate Court not being inconformity of the mandate of Order XLI Rule 31 CPC, is liable to be set aside on that count as well. As such the appellate judgment and decree stands interfered with. The questions of law framed by this Court is answered in favour of the plaintiff in the manner indicated herein below. 14. With the above observation this second appeal stands allowed. The judgment and decree passed by the learned Trial Court stands affirmed. Prepare a decree accordingly. Having regard to the facts and circumstance of the case there would be no order as to cost. Registry to send back the LCR.