Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 765 (GAU)

Gita Rani Dhar v. Milan Kanti Dey

2015-06-17

SUMAN SHYAM

body2015
ORDER : Heard Mr. R.C. Sanchati, learned counsel appearing for the appellants. Also heard Mr. Sheeladitya, learned counsel representing the respondents. 2. Being aggrieved by the judgment and decree of reversal dated 24-12-2003 passed by the learned Civil Judge (Sr. Div.) No. 2, Kamrup, Guwahati in Title Appeal No. 21/1992 whereby the judgment and decree dated 24-04-1992 passed by the learned Sadar Munsiff, Guwahati in Title Suit No. 20/1982 was set aside and the suit filed by the plaintiff respondent was decreed on appeal, the defendant as appellant has preferred this second appeal before this Court. 3. The plaintiffs case, as setout in the plaint, is that he had purchased a plot of land measuring 3K-6L covered by Dag No. 686(Kha) of K.P. Patta No. 280 of village Kamakhya under Jalukbari mouza, more fully described in schedule-‘A’ to the plaint from the proforma defendant on 22-09-1975 by means of a registered deed of sale pursuant where to he has also been enjoying possession in respect thereof. The defendant had also purchased a plot of land measuring 3K-10L covered by Dag No. 686 of K.P. Patta No. 280 of the same village, described in schedule-‘B’ to the plaint, from the proforma defendant and has been enjoying possession in respect of the land purchased by him. The land purchased by the plaintiff is situated adjacent to the schedule-‘B’ land of the defendant and the plaintiff and the defendant had been peacefully residing in their respective plot of land having a friendly relationship with each other. Taking advantage of the friendly relationship between the parties the defendant started construction of his dwelling house in schedule-‘B’ land and thereafter, without the knowledge of the plaintiff, extended his construction into the schedule-‘A’ land of the plaintiff, thereby encroaching upon the plaintiff’s land. When the defendant was constructing his sanitary latrine the plaintiff happened to visit the construction site and thereafter found to his utter surprise that the latrine has been constructed upon the schedule-‘A’ land belonging to the plaintiff. When the plaintiff raised objection to such construction made by the defendant, he had claimed that the construction has been made over his own land and not upon the land of the plaintiff. When the plaintiff raised objection to such construction made by the defendant, he had claimed that the construction has been made over his own land and not upon the land of the plaintiff. Since the effort on the part of the plaintiff to amicably resolve the dispute between the parties did not meet with any success, hence, the plaintiff was compelled to institute the aforementioned title suit praying for a decree declaring his right, title and interest over the schedule-‘A’ land (which is the suit land); recovery of khas possession of the suit land by evicting the 4. The defendant contested the suit by filing written statement, inter alia, raising objection regarding the maintainability of the suit on the ground of want of cause of action; suit being barred by limitation; suit being bad for non-joinder of necessary parties with a further prayer that the plaint be rejected under Order VII Rule 11 CPC. The defendant has emphatically asserted that the construction of his house and latrine was being carried out upon the schedule-‘B’ land belonging to the defendant himself and not upon the land of the plaintiff. The defendant has also raised objection as regards failure on the part of the plaintiff to give a proper description by furnishing the requisite particulars as regards that portion of the land alleged to have been encroached by the defendant by taking the plea with in the absence of any such particulars no decree for recovery of khas possession can be passed in favour of the plaintiff. 5. On the basis of the pleadings of the parties the learned Trial Court had framed as many as 6 issues which are as follows: 1. Is there any cause of action for the suit? 2. Whether the suit is bad for nonjoinder of necessary parties? 3. Whether the suit has been property valued and proper court fee has been paid by the plaintiff? 4. Whether there is clear cut boundaries of the land of the plaintiff and defendant? 5. Whether the defendant had encroached upon the land of the plaintiff and has constructed by structure upon the land of the plaintiff? 6. To what relief/ reliefs if any the plaintiff is entitled to? 6. The plaintiff side has examined three witnesses whereas the defendant had examined only himself as a witness. 5. Whether the defendant had encroached upon the land of the plaintiff and has constructed by structure upon the land of the plaintiff? 6. To what relief/ reliefs if any the plaintiff is entitled to? 6. The plaintiff side has examined three witnesses whereas the defendant had examined only himself as a witness. The learned Trial Court had also appointed a Survey Commissioner so as to demarcate the suit land and furnish a report. The Survey Commissioner was examined as PW-4. On appreciation of the materials available on record the learned Trial Court has dismissed the suit filed by the plaintiff by deciding the issue No. 5 against the plaintiff. The learned Trial Court was of the view that the plaintiff having failed to give proper description of the encroached area of land allegedly under the occupation of the defendant the suit was liable to be dismissed the plaint being contravention with requirement of Order VII Rule 3 of the CPC. 7. Being aggrieved by the judgment dated 20-04-1992 and decree dated 28-04-1992 respectively passed by the learned Trial Court in Title Suit No. 20/1982 dismissing the suit filed by the plaintiff, the plaintiff as appellant had preferred Title Appeal No. 21/1992 before the court of learned Civil Judge (Sr. Div) No. 2, Kamrup, Guwahati. Upon hearing the learned counsel for the parties the learned lower Appellate Court had allowed the appeal filed by the plaintiff by setting aside the judgment and decree passed by the Trial Court in Title Suit No. 20/1982 thereby decreeing the suit filed by the plaintiff. 8. Being aggrieved by the judgment and decree dated 24-12-2003 passed by the learned lower Appellate Court allowing the Title Appeal No. 21/1992, the defendant as appellant had approached this Court by filing the instant second appeal which was admitted for hearing by framing the following substantial questions of law: 1. Whether the learned appellate Court committed illegality in reversing the judgment and decree passed by the learned trial Court without setting aside the findings recorded by the learned trial Court? 2. Whether the learned lower appellate Court committed illegality in reversing the judgment and decree without considering the admissions of the plaintiff and his vendor in their evidence as PW 1 and PW 2 respectively? 9. Mr. 2. Whether the learned lower appellate Court committed illegality in reversing the judgment and decree without considering the admissions of the plaintiff and his vendor in their evidence as PW 1 and PW 2 respectively? 9. Mr. Sanchati, learned counsel for the appellant submits that having regard to the nature of grievance expressed in the suit the plaint ought to have contain a schedule-‘C’ giving a proper description of the area of the defendant. However, since the plaintiff has failed to give any such description by specifically indicating the coordinates and dimension of land alleged to have been encroached, hence, the decree insofar as the recovery of khas possession by evicting the defendant is concerned, cannot be granted in the eye of law as such a decree would not be executable in the absence of proper description of the land. 10. Mr. Sanchati further submits that the learned First Appellate Court had decreed the suit of the plaintiff by solely relying upon Exhibit-‘AH’ report of the Survey Commissioner. Even a perusal of the said report will go to show that although the Survey Commissioner has mentioned that 14 lechas of land on the western side belonging to the plaintiff is under encroachment, he has not indicated clearly in his report as to who had encroached the said plot of land. In that view of the matter the learned First Appellate Court ought not to have decreed the suit for recovery of khas possession as the same has the potential of posing unnecessary obstruction in the way of enjoyment of the schedule-‘B’ land by the defendant, even though the plaintiff has not claimed any right, title and interest over the schedule-‘B’ land under the possession of the defendant. Mr. Sanchati has, however, submitted in all fairness that the defendant is not claiming any right over the schedule-‘A’ land and rather admits the title and possession of the plaintiff over the schedule-‘A’ land to that extent his client does not have any objection as regards the decree declaring right, title and interest of the plaintiff over the schedule-‘A’ is concerned. 11. Per contra Mr. 11. Per contra Mr. Sheeladitya, learned counsel appearing for the respondent submits that learned First Appellate Court had rightly decreed the suit of the plaintiff by relying upon the report of the Survey Commissioner (Exhibit-‘AH’) which was duly supported by the Exhibit-‘E’ i.e. trace map of whole dag and Exhibit-‘EE’ trace map of schedule-‘A’ and schedule-‘B’ land. He submits that the Survey Commissioner (PW-4) was cross-examined by the defendants during the course of the trial but no suggestion was put to the PW-4 that his finding regarding encroachment of 14 lechas of land belonging to the plaintiff is an erroneous finding. Since the dispute was between the plaintiff and defendant pertaining to encroachment of a portion of schedule-‘A’ land, hence, the failure to make any suggestion to the Survey Commissioner challenging his findings in the report of the Commissioner would have to be understood to have on acceptance by the defendant about the fact of encroachment made by the defendant and nobody else. Although Mr. Sheeladitya admits that the suit could have been constituted in a better manner by giving the description in a separate schedule indicating the land under encroachment, yet he submitted that failure to do so would not have any fatal consequence in the outcome of the suit primarily because of the fact that there is no question as regards the title of the plaintiff over the schedule-‘A’ land. 12. I have considered the rival submissions made by and on behalf of both the parties. A perusal of the plaint goes to show that the plaintiff has claimed a declaratory decree in respect of schedule-‘A’ land which is his purchased land and also for recovery of possession of the same by evicting the defendant. Since the case of the plaintiff, as projected in the plaint, is that the defendant had encroached a portion of the schedule-‘A’ land, the plaintiff ought to have describe the encroached portion of the land in the form of schedule-‘C’ which has not been done in the instant case. Be that as it may. Since the case of the plaintiff, as projected in the plaint, is that the defendant had encroached a portion of the schedule-‘A’ land, the plaintiff ought to have describe the encroached portion of the land in the form of schedule-‘C’ which has not been done in the instant case. Be that as it may. Since it is not in dispute that the schedule-‘A’ land belongs to the plaintiff and having regard to the fact that the plaintiff is not claiming any land beyond the schedule-‘A’ land therefore, in my considered opinion, the omission to describe the encroached land by giving a separate schedule would not have any fatal consequence in the outcome of the plaintiff’s suit. 13. From the records of this case it appears that the Trial Court had appointed a Survey Commissioner to demarcate the land who had also submitted his report dated 14-09-1991 (Exhibit-‘AH’) after carrying out a local inspection. In the said report it has been clearly mentioned the 14 lechas of land in the area falling under the ownership of the plaintiff is under encroachment. The fact that 14 lechas of land from the schedule-‘A’ is under encroachment has not been disputed by the defendant during the time of cross-examination of the PW-4. It is however, also a fact that the Survey Commissioner did not indicate in his report in specific terms that the aforesaid 14 lechas of land under encroachment was in the occupation of the defendant. 14. It has been held by the Hon’ble Apex Court in the case of Pratibha Singh & Anr. Vs. Shanti Devi Prasad & Anr. reported in (2003) 2 SCC 330 that noncompliance of the requirement of Order VII Rule 3 CPC cannot be a ground to defeat a decree passed by the court in favour of a party. Paragraph 17 of the said judgment is quoted herein below for ready reference: “When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case – which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 CPC by the court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 CPC.” 14. From the above it is clear that although the plaintiff has failed to give specific description of the area of land under encroachment yet, from the report of the Survey Commissioner it is apparent that 14 lechas of land is under encroachment. Since the encroachment of the aforesaid 14 lechas of land pertains to the schedule-‘A’ land, hence, the decree passed by the learned First Appellate Court cannot be executed in any manner so as to disturb the possession of the defendant over the schedule-‘B’ land under his possession. In other words it is made clear that in purported execution of the decree passed by the learned First Appellate Court in Title Appeal No. 21/1992 the possession of the defendant over any portion of the schedule-‘B’ land cannot be disturbed. With the above observation, this second appeal is disposed of by upholding the judgment and decree passed by the learned First Appellate Court declaring the right, title and interest of the plaintiff in respect of the schedule-‘A’ land. The question of law framed by this Court stands answered accordingly. However, having regard to the facts and circumstance of the case, there would be no order as to cost. Registry to send back the LCR.