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2015 DIGILAW 743 (GAU)

Ajoram Nath v. Basanti Bala Nath

2015-06-12

SUMAN SHYAM

body2015
Judgment : This second appeal has been preferred against the judgment and decree dated 27-03-2006 passed by the court of learned Civil Judge, Bongaigaon in Title Appeal No. 13/2003 affirming the judgment and decree dated 20-08-2003 passed by the Civil Judge (Jr. Div.), Abhayapuri in Title Suit No. 21/1999 decreeing the suit filed by the plaintiff. 2. The case of the plaintiff/ respondent, as projected in the plaint filed in the title suit, is that the grandfather of the plaintiff late Lebaru Nath was the original khatiyandar in respect of a plot of land measuring 17B-4K-5L covered by Dag No. 50 of Khatiyan No. 20 (new Patta No. 3) in village- Dhaknabari under Boithamari Circle, more fully described in the schedule-A to the plaint. Lebaru Nath died leaving behind three sons, namely, Lankeswar Nath, Prathama Nath and Har Kumar Nath. Prathama Nath died leaving behind the plaintiff as the sole surviving legal heir, whereas the defendant Ajoram Nath is the sole surviving legal heir of late Lankeswar Nath. Proforma defendant No. 1, 2 and 3 are the sons of Har Kumar Nath. 3. It is the case of the plaintiff that after the death of Lebaru Nath the property described in schedule-A to the plaint was jointly inherited by his aforementioned three sons and thereafter on the basis of an amicable partition by and between the three brothers, Lankeswar Nath and Har Kumar Nath had been put in possession in respect of land measuring 6 bighas each, which they continued to occupy by way of right of inheritance. Based on such amicable partition, the remaining land measuring 5B-4K-5L fell in the share of the father of the plaintiff viz. Prathama Nath. In this manner the three brothers, during their life time, had amicably partitioned the total area of land measuring 17B-4K-5L inherited by them from their father late Lebaru Nath. 4. The plaintiff’s case is that being the sole surviving heir of late Prathama Nath, plaintiff has become the owner in respect of the aforesaid plot of land measuring 5B-4K-5L, more fully described in the schedule-B to the plaint, by right of inheritance. However, the father of the plaintiff expired when she was still a minor. 4. The plaintiff’s case is that being the sole surviving heir of late Prathama Nath, plaintiff has become the owner in respect of the aforesaid plot of land measuring 5B-4K-5L, more fully described in the schedule-B to the plaint, by right of inheritance. However, the father of the plaintiff expired when she was still a minor. As such, during the settlement operation held in the year 1963 a khatiyan covering the suit land was erroneously issued in the name of the defendant at a stage when even he was a minor. Upon attaining majority, the plaintiff had made relevant enquires whereafter she could come to know regarding the recording of the name of the defendant in respect of the entire land in the khatiyan. As such, the plaintiff had made an application for correction of the records pursuant whereto the name of the plaintiff in respect of the schedule-B land had been included in the records of right in the year 1973 in her capacity as the legal heir of Prathama Nath and accordingly, a final khatiyan had also been issued including her name therein. The plaintiff’s further case is that she has been possessing the schedule-B land since last 25 years without any interruption from any person by employing her men so as to cultivate the said land. Since the plaintiff resides at a distance place i.e. about 3 miles away from the suit land, hence, the plaintiff has been growing crops on the said plot of land by employing her man Babur Ali and, accordingly, the plaintiff had also cultivated “Ahu Paddy” which was harvested in the month of Ashar, 1397 B.S. (1990 English year). On the afternoon of 27 Bhada of 1397 B.S. corresponding to 13-09-1990, Babur Ali informed the plaintiff that in the morning period of the said day the defendant had wrongfully and illegally entered into the suit land belonging to the plaintiff and started ploughing thereon. Immediately on coming to know about the said incident, the plaintiff visited the suit land and asked the defendant to vacate the same. Thereafter, at the intervention of the neighbors the plaintiff could succeeded in driving away the defendant from the suit land. Immediately on coming to know about the said incident, the plaintiff visited the suit land and asked the defendant to vacate the same. Thereafter, at the intervention of the neighbors the plaintiff could succeeded in driving away the defendant from the suit land. Subsequently, the defendant had made another attempt and dispossessed the plaintiff from the suit land, as a result of which the plaintiff was compelled to file a Suit under Section 6 of the Specific Relief Act, which suit had to, however, be withdrawn with liberty to file afresh due to some formal defects in the plaint. After the withdrawal of the aforesaid suit, apprehending breach of peace the plaintiff had to initiate a proceeding under Section 145 Cr.P.C. in the court of 5. The defendant had contested the suit by filing written statement. However, despite receipt of summons the proforma defendant Nos. 1 to 3 did not contested the plaintiff’s suit. 6. In the written statement filed by the defendant objections had been raised as regards maintainability of the suit on the ground of the suit being undervalued; for non-joinder of necessary parties and also suit on account of the same being barred by law of limitation as well as the principles of resjudicata. In the written statement the defendant had denied the assertion made by the plaintiff that there was an amicable partition of the schedule-A land amongst the three sons of Lebaru Nath. The defendant had also denied that pursuant to such amicable partition the father of the defendant had got 6 bighas of land or that late Prathama Nath had got 5B-4K-5L of land which was ultimately inherited by the plaintiff. The real facts, as stated by the defendant in the written statement, is that the schedule-A land originally belonged to Lebaru Nath. During the lifetime of Lebaru Nath the father of the plaintiff had become the sole owner of the schedule-A land. After the death of his father, the name of the defendant was recorded in the Final Khatiyan during the first survey and settlement operation, although he was a minor at that time. The defendant has further pleaded that Lebaru Nath was the owner of several other plots of land besides the schedule-A land and during the lifetime of Lebaru Nath, the schedule-A land was received as his share by the father of the defendant including some other plots of land. The defendant has further pleaded that Lebaru Nath was the owner of several other plots of land besides the schedule-A land and during the lifetime of Lebaru Nath, the schedule-A land was received as his share by the father of the defendant including some other plots of land. Accordingly, the plaintiff’s father and the father of the proforma defendants had also got various other plots of land as their share of ancestral property which were enjoyed by them. The defendant further stated that taking advantage of the fact that he was an illiterate person of very simple nature, the plaintiff had fraudulently entered her name in the final patta in collusion with the revenue officials, thereby claiming right, title and interest and possession in respect of the suit land. Defendant claimed that the plaintiff had never possessed the suit land as has been claimed by her but on the contrary has cooked up a story with the sole objective of grabbing the land by instituting false case against the defendant. It had also been stated in the written statement that defendant had already taken steps for cancellation of the plaintiff’s name from the record of rights. On the basis of such averments the defendant has prayed for dismissal of the suit. 7. Based on the pleadings of the parties the learned Trial Court had framed as many as 11 issues which are as follows: 1. Whether the suit maintainable in it’s present form? 2. Whether the suit is under valued and under stamped? 3. Whether the suit is bad for non joinder of necessary parties? 4. Whether there is cause of action in the suit? 5. Whether the suit is barred by resjudicata? 6. Whether there was wrong record in the record of right during the first settlement operation of 1963? 7. Whether three brothers Lankeswar Nath, Prathama Nath and Har Kumar Nath have amicably partitioned the land of their father’s property and possessed separately each of their share? 8. Whether Prathama Nath got 5B-4K-5Ls the suit land out of the total land of 17B-4K-5Ls the schedule-A land? 9. Whether the plaintiff is the pattadar of the suit land? 10. Whether the plaintiff has been dispossessed by the plaintiff on 13.9.90? 11. Whether the Executive Magistrate declared wrongly possession on 29.9.98 in favour of the defendant in Misc. Case No. 45/97? 8. 9. Whether the plaintiff is the pattadar of the suit land? 10. Whether the plaintiff has been dispossessed by the plaintiff on 13.9.90? 11. Whether the Executive Magistrate declared wrongly possession on 29.9.98 in favour of the defendant in Misc. Case No. 45/97? 8. The plaintiff’s side had examined four witnesses including the plaintiff herself as PW-1 whereas the defendant side had examined three witnesses. 9. Upon evaluation of the evidence on record the learned Trial Court had recorded findings in respect of all the issues including issue No. 7, 8 and 9 in favour of the plaintiff holding that the plaintiff has succeeded in proving her case. The learned Trial Court had also recorded a finding that the plaintiff had been wrongfully dispossessed from the suit land on 13-09-1990. On the basis of such finding of fact recorded by the Trial Court the plaintiff’s suit was decreed. 10. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendant as appellant had preferred Title Appeal No. 13/2003 in the court of Civil Judge (Sr. Div.), Bongaigaon. Upon hearing the learned counsel for the parties the First Appellate Court had passed judgment and order dated 27-03-2006 recording independent findings with regard to each of the issues based on evidence on record, thereby dismissing the Title Appeal. 11. Being aggrieved by the concurrent judgment and decree dated 27-03-2006 passed by the learned First Appellate Court in Title Appeal No. 13/2003 the defendant as appellant has preferred the instant second appeal, which was admitted for hearing by framing the following substantial questions of law: 1. Whether the decision of the learned Court below is vitiated for non-consideration of Exts-Ka and Kha in its proper perspective carrying the legal effect of these two documents? 2. Whether the finding of the learned Court below on the Issue No. 7 is perverse? 12. I have heard Mr. D. Baruah, learned counsel appearing for the appellant and also heard Ms. R. Choudhury, learned counsel representing the respondent. 13. Mr. D. Baruah, learned counsel for the appellant submits that the court below failed to appreciate the evidential value of the document Exhibit-‘Ka’ and ‘Kha’ in their proper perspective and wrongfully decreed the suit filed by the plaintiff by ignoring the said piece of evidence brought on record by the defendant. R. Choudhury, learned counsel representing the respondent. 13. Mr. D. Baruah, learned counsel for the appellant submits that the court below failed to appreciate the evidential value of the document Exhibit-‘Ka’ and ‘Kha’ in their proper perspective and wrongfully decreed the suit filed by the plaintiff by ignoring the said piece of evidence brought on record by the defendant. He, further, submits that Exhibit-1 being based on chitha mutation, the same cannot be relied upon for the purpose of declaration of the plaintiff’s right, title and interest over the suit land by ignoring Exhibit-‘Ka’ and ‘Kha’. He further submits that the court below had also failed to appreciate the Exhibit-2 series of land revenue paying receipt which would go to show that the land revenue had been paid on behalf of the defendant. Mr. Baruah, therefore, contended that the learned court below had failed to appreciate the provision of Section 35 as well as Section 90 of the Indian Evidence Act and erroneously went on to decree the suit of the plaintiff by ignoring the fact that the plaintiff has failed to prove and establish her case. 14. Mr. Baruah submits that it has already been held by this court in a number of decisions that mutation does not confer any right, title or interest in immovable property. By relying upon a recent decision of this court in the case of [Abdul Ali & Ors. Vs. Ibrahim Ali ] reported in (2015) 1 GLT page 751, Mr. Baruah, submits that any entry based on draft chitha would not be of any conclusive value . He, further, submits that even at the second appellate stage it is permissible for the court to travel through the evidence and arrive at a conclusion as regards the finding recorded by the court below, if such finding of fact is found to be perversed. In support of his aforesaid argument Mr. Baruah has placed reliance on a decision of this Court in the case of [State of Manipur and Ors. Vs. Soukhojam Haokip and Ors.] reported in 2011 (4) GLT 519. Mr. Baruah, also submits that the plaintiff’s suit is barred under the Goalpara Tenancy Act, although he could not substantiate the said plea during the course of argument. 15. Per contra Ms. Vs. Soukhojam Haokip and Ors.] reported in 2011 (4) GLT 519. Mr. Baruah, also submits that the plaintiff’s suit is barred under the Goalpara Tenancy Act, although he could not substantiate the said plea during the course of argument. 15. Per contra Ms. R. Choudhury, learned counsel for the respondent submits that from the pleadings of the parties it would be apparent that the fact that Lebaru Nath was the original owner in possession in respect of schedule-A land is not in dispute. It is also not in dispute that the Lebaru Nath died leaving behind three sons named above as his legal heirs. As such, under the law of inheritance, the aforementioned three sons would inherit such property left behind by their father in equal share. Neither in the pleadings nor in the evidence lead by the defendant, he has been able to show as to on what basis his father Lankeswar Nath had become the sole owner of the entire schedule-A land. She further submits that although the defendant has claimed that there were other properties belonging to Lebaru Nath beside the schedule-A land yet, he has failed to give any particulars whatsoever in respect of such other properties. There is no material available on record so as to show semblance of title of the defendant in respect of the entire schedule-A land. In that view of the matter the learned court below had rightly decreed the suit filed by the plaintiff and the same does not call for any interference by this Court. She, further, submits that in view of the concurrent finding of fact recorded by the courts below based on evidence on record, the question of law framed by this Court does not raise for decision in the second appeal. 16. I have considered the rival submission made by and on behalf of the parties. From a perusal of the judgment rendered by the court below what is apparent is that issue No. 7, 8, 9 and 10 are the key issues, the answer to which would have a material bearing in the outcome of the suit filed by the plaintiff. I have considered the rival submission made by and on behalf of the parties. From a perusal of the judgment rendered by the court below what is apparent is that issue No. 7, 8, 9 and 10 are the key issues, the answer to which would have a material bearing in the outcome of the suit filed by the plaintiff. A perusal of the pleadings contained in the plaint goes to show that the plaintiff is claiming her right, title and interest over the schedule-B land by right of inheritance as the legal heir of Prathama Nath who was admittedly one of the sons of the Lebaru Nath. It is not in dispute that Lebaru Nath was the owner in possession in respect of a total area of land measuring 17B-4K-5L and that he died leaving behind three sons viz. Lankeswar Nath, Prathama Nath and Har Kumar Nath as his legal heirs. Naturally, therefore, under the Hindu Law of Succession Lebaru Nath’s three sons would jointly inherited the property left behind by their father in equal share. The plaintiff has claimed that pursuant to an amicable partition of the property the schedule-B land fell in the share of her father Prathama Nath. In support of her case the plaintiff had adduced oral evidence in the form of PW-1, 2, 3 and 4. In her oral testimony the plaintiff had categorically stated that the land in question had been amicably partitioned between the three brothers pursuant whereto the schedule-B land fell in the share of her father. The said version of the PW-1 had also been duly supported by PW-3, Manik Nath who is one of the sons of Har Kumar Nath and proforma defendant in the suit. The PW-4 had also supported the case of the plaintiff. There is nothing to show that such oral testimony of the plaintiff’s witnesses could be dislodge by the defendant side. The plaintiff had also proved the Exhibit-1 Final Khatiyan as well as Jamabandi showing that her name had been duly recorded in respect of the suit land. The proforma defendants also did not contest the suit and instead, have testified before the court to the effect that they were enjoying their share in the ancestral property thereby supporting the version of the plaintiff. 17. The proforma defendants also did not contest the suit and instead, have testified before the court to the effect that they were enjoying their share in the ancestral property thereby supporting the version of the plaintiff. 17. The DW-1, although in his oral testimony had stated that the land described in schedule-A belonged to Lebaru Nath and the same was never partitioned amongst the three sons of Lebaru Nath yet, during his cross-examination the DW-1 had admitted that he did not know how much land was actually owned and possessed by Lebaru Nath. He had also admitted that he did not know whether the landed property of Lebaru Nath had been partitioned amongst the three sons or not. Learned court below has recorded a finding that from the testimony of DW-2 and 3 it was not possible to conclude that the landed property of Lebaru Nath was not partitioned, as the said witness did not seem to have any knowledge about the said fact. 18. Further, from a perusal of the pleadings contained in paragraph 18 of the written statement, what can be seen is that the defendant has, for all practical purposes, admitted the fact of partition of the properties of Lebaru Nath, without however, giveing any details in respect thereof. In fact the defendant’s stand is that the schedule-A land fell in the share of his father Lankeswar Nath whereas the other two brothers got different land as their share out of the property belonging to Lebaru Nath. The aforementioned pleading contained in the written statement would only go to show that even the defendant admits that there was partition of the property belonging to Lebaru Nath as otherwise the question of Lankeswar Nath getting his share, as claimed by the defendant, cannot arise. Having stated as above, the defendant has failed to show as to how his father Lankeswar Nath had got title over the entire property in schedule-A left behind by Lebaru Nath. 19. Placing reliance on Exhibit-1 which is a Final Khatiyan, Exhibit-4(i) to 4(iv) land revenue paying receipt produced by the plaintiff and also Exhibit-3 land holding certificate issued by the Asstt. Settlement Officer, Boithamari Revenue Circle, the learned First Appellate Court had come to the conclusion that the plaintiff was one of the khatiyandars in respect of the schedule-A land measuring 17B-4K-5L. Settlement Officer, Boithamari Revenue Circle, the learned First Appellate Court had come to the conclusion that the plaintiff was one of the khatiyandars in respect of the schedule-A land measuring 17B-4K-5L. Having regard to the fact that the Exhibit-‘Ka’, Final Khatiyan was issued in the year 1961 in the name of the defendant when he was a minor and the same was subsequently corrected and also taking note of the fact that the document Exhibit-‘Kha’, apparently shows the plaintiff also as one of the joint pattadar in respect of the land measuring 17B-4K-5L, the learned First Appellate Court had rightly arrived at a finding that the plaintiff was in fact one of the co-owners in respect of the schedule-A land and therefore, would be entitled to a decree for declaration as prayed for in respect of schedule-B land in her capacity as the legal heirs of Prathama Nath. 20. As regards the claim of the defendant to the effect that Lebaru Nath had some other land beyond the land mentioned in schedule-A, the learned court below had held that the defendant had failed to prove and establish the said fact as he has not only failed to mention any particulars of such other land in the written statement but has also failed to produce any evidence in support of his aforesaid claim. The learned court below had further held that on the basis of the materials available on record it is not possible to conclude that the defendant had become the exclusive owner of the entire area of land measuring 17B-4K-5L by way of right of inheritance. I do not find any reason to disagree with such finding recorded by the learned court below. 21. As regards issue No. 10 both the courts below have recorded a concurrent finding of fact based on evidence on record that the plaintiff was in possession in respect of the suit land until 13-09-1990 on which date the defendant had forcefully entered into the suit land and dispossessed the plaintiff there from. On the basis of such finding the learned First Appellate Court had dismissed the title appeal by affirming the judgment and decree passed by the Trial Court. 22. Upon a meticulous scrutiny of the materials available on record it appears that the concurrent finding of fact recorded by both the courts below is based on materials available on record. On the basis of such finding the learned First Appellate Court had dismissed the title appeal by affirming the judgment and decree passed by the Trial Court. 22. Upon a meticulous scrutiny of the materials available on record it appears that the concurrent finding of fact recorded by both the courts below is based on materials available on record. As such there is no justification for this Court to disturb such concurrent finding of fact in a second appeal. 23. So far as the substantial questions of law framed by this Court is concerned, it is apparent that Exhibit-‘Ka’ Final Khatiyan sought to be relied upon by the defendant was one issued prior to the correction of record. It is the categorically pleaded case of the plaintiff that the said Final Khatiyan had been issued erroneously at a stage when the defendant was a minor and subsequently on the basis of representation made by the plaintiff the same was corrected in the year 1973 where after the Exhibit-1 Final Khatiyan had been issued incorporating the name of the plaintiff thereon as one of the co-owners. In that view of the matter Exhibit-‘Ka’ relied upon by the appellant/ defendant would not have any bearing in the facts and circumstance of the present case. A perusal of Exhibit-‘Kha’ “Katcha Patta” also goes to show that the plaintiff is one of the joint pattadar in respect of the land measuring 17B-4K-5L as her name is also mentioned therein. The said fact has also been recorded by the courts below. Such concurrent finding of fact recorded by the learned courts below does not suffer from any infirmity warranting interference by this court in a second appeal. 24. In view of the discussions made in the foregoing paragraphs it is held that the second appeal is devoid of any merit and accordingly, the same stands dismissed. Having regard to the facts and circumstance of the case, there would be no order as to cost. Registry to send back the LCR.