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2015 DIGILAW 769 (GAU)

MAJUMDAR RAJBONGSHI v. HARESWAR BARMAN

2015-06-18

SUMAN SHYAM

body2015
JUDGMENT 1. Heard Dr. B. Ahmed, learned counsel for the appellant. 2. This Second Appeal has been preferred against the concurrent judgment and decree dated 20.09.2014 passed by the learned Civil Judge, Nalbari in Title Appeal No.8/2014 dismissing the appeal and upholding the judgment and decree dated 21.12.2013 passed by the learned Munsiff No.1, Nalbari in Title Suit No.57/2009 dismissing the suit of the plaintiff. 3. The plaintiff’s case, in brief, is that he is the owner of a plot of land measuring 4 kathas of village Barkhetri Banekuchi of K.P. Patta No.150 covered by dag No.246 which is the suit land. The name of the plaintiff and his brothers had been mutated in the revenue record in respect of the suit patta. One of his brother Pabitra Rajbongshi died and there is no adverse interest with his brother Upen Rajbongshi. As such, the plaintiff had possessed the suit land under the guidance of his mother till attaining the age of majority and after attaining majority the plaintiff owned and possessed the suit land without any interference from any quarter. The suit land was bounded by bamboo fencing and Rabi crops was planted by the plaintiff till February, 2009. It is the case of the plaintiff that on 08.03.2009 the principal defendants entered into the suit land with weapons, broke open the bamboo fencing and ploughed the suit land claiming the same to be their own purchased land from one Intaj Ali by means of registered deed of sale bearing No.1114/82 executed in the year 1982. The plaintiff had initially started proceeding in the Court of Executive Magistrate, Nalbari under Section 145 Cr.P.C. However, later on, realizing that the Civil Court would be the appropriate forum for resolution of the dispute between the parties, the plaintiff had instituted the aforementioned suit praying for declaration of his right, title and interest over the suit land and also for recovery of khas possession and other consequential reliefs. 4. On receipt of summons, the defendant Nos.1, 2, 3 and 14 appeared and contested the suit filed by the plaintiff by filing a joint written statement contending, inter alia, that the suit is not maintainable for want of cause of action; the same being bad for non-joinder of necessary parties. The defendants case, in brief, is that the father of the plaintiff died long ago when the plaintiff was a minor. The defendants case, in brief, is that the father of the plaintiff died long ago when the plaintiff was a minor. Thereafter, the mother of the plaintiff had become the head of the family and on 04.06.2009 the mother of the plaintiff sold 2 kathas of land to one Sarbeswar Barman by means of registered deed of sale bearing No.4880/69. The name of Sarbeswar Barman was duly mutated in respect of the aforesaid 2 kathas of land on 18.05.1972. Thereafter, Sarbeswar Barman sold the said plot of land to one Atowar Rahman on 26.05.1975 by means of registered deed of sale bearing No.4383/75. Atowar Rahman sold the said plot of land to Md. Intaj Ali on 07.09.1977. Intaj Ali sold the land to Uday Chandra Barman i.e. the father of the contesting defendants by executing a registered deed of sale bearing No.1114/82 in the year 1982. Pursuant to the aforesaid purchase, Uday Chandra Barman got his name mutated in respect of the said plot of land and continued to possess the same. After the death of Uday Chandra Barman in the year 1990, the defendant Nos.1 to 3 have been in possession of the aforesaid 2 kathas of land. The defendants have further contended that the boundary given in the schedule of the plaint is not the boundary of 4 kathas of land but it is the boundary of 2 kathas of land belonging to the defendants. 5. Based on the pleadings of the parties, the learned trial Court had framed four issues which are as follows :- “1. Whether the suit is bad for non-joinder of necessary parties? 2. Whether the plaintiff’s predecessor had disposed of the suit land or any part of it? 3. Whether the plaintiff has right, title and interest over the suit land? 4. Whether the plaintiffs is entitled to the reliefs or any relief as claimed for?” 6. During the course of trial the plaintiff’s side had examined as many as three witnesses and exhibited some documents. The defendants’ side had also examined five witnesses and exhibited certain documents. After a close scrutiny of the evidence on record and also on hearing the counsels for the parties, the learned trial Court had passed the judgment and decree dated 21.12.2013 dismissing the suit filed by the plaintiff. 7. The defendants’ side had also examined five witnesses and exhibited certain documents. After a close scrutiny of the evidence on record and also on hearing the counsels for the parties, the learned trial Court had passed the judgment and decree dated 21.12.2013 dismissing the suit filed by the plaintiff. 7. Being aggrieved by the aforesaid judgment and decree passed in Title Suit No.57/2009 the plaintiff as appellant had preferred Title Appeal No.8/2014 in the Court of learned Civil Judge, Nalbari. After hearing the parties the learned First Appellate Court had passed the judgment and decree dated 20.09.2014 dismissing the Title Appeal filed by the plaintiff. 8. Being aggrieved by the concurrent judgment and decree dated 20.09.2014 the plaintiff as appellant has preferred the instant Second Appeal. 9. Dr. B. Ahmed, learned counsel for the appellant, submits that the learned Court below has dismissed the suit of the plaintiff primarily on the ground that the registered deed of sale by which the contesting defendants claimed to have purchased the plot of 2 kathas comprising the suit land not having been challenged by the plaintiff, no decree for declaration of their title and recovery of possession could be passed in favour of the plaintiff. He submits that even assuming that the defendants have valid title over 2 kathas of land, yet, the learned Court below ought to have taken note of the fact that the sale deed produced by the defendants refer to more than one dag whereas the claim of the plaintiff is only in respect of land covered by dag No.246 of K.P. Patta No.150. Dr. Ahmed submits that the non-consideration of the aforesaid aspect of the matter by the Court below has vitiated the judgment and decree under appeal and therefore, the present is a fit case for setting aside the judgment and decree under appeal and remand the matter for a fresh decision by the First Appellate Court by considering the aforesaid aspect in its right perspective. 10. I have considered the submissions made by Dr. B. Ahmed, learned counsel for the appellant, and have also perused the records. 10. I have considered the submissions made by Dr. B. Ahmed, learned counsel for the appellant, and have also perused the records. From an examination of the judgment and decree under appeal as well as the materials on record it can be seen that the plaintiff has prayed for declaration of his title and recovery of possession in respect of 4 kathas of land covered by dag No.246 of K.P. Patta No.150. The said plot of land, admittedly, belonged to the predecessor-in-interest of the plaintiff. However, the defendants side had produced documentary evidence to show that by means of sale deed bearing No.4880/69 i.e. Ext-B(1) the plot of land measuring 2 kathas was sold by the mother of the plaintiff to one Sarbeswar Barman. Thereafter, by registered deed of sale bearing No.4383/75 i.e. Ext-C(1) Sarbeswar Barman sold the land to one Atowar Rahman. Thereafter, Atowar Rahman sold the said plot of land to Md. Intaj Ali by means of sale deed No.4919/77 i.e. Ext-D(1) and finally by means of registered deed of sale No.1114/82 i.e. Ext-E the father of the defendants i.e. Uday Chandra Barman, had purchased the said plot of land from Md. Intaj Ali. The defendants had proved the Exts-B(1), C(1), D(1) and E. However, the plaintiff has neither amended the plaint not challenged the aforementioned sale deed despite the fact that the said documents were available on record. That apart, based on sale deed ExtA(1) the learned Court below had recorded a finding that one Manju Patowary has purchased 2 kathas of land from one Surendra and the northern boundary of Maju Patowary’s land showed the land of Uday Chandra Barman. Hence, it was found that although the mother of the plaintiff sold 2 kathas of land by mentioning two dags but the land is a compact plot which falls on the north of Surendra. Moreover, the plaintiff’s witness PW 3 had corroborated the fact that the defendants were in possession of the suit land since last 25/30 years. The learned Court below had also recorded concurrent finding of fact that the boundary of the suit land and the boundary of the land sold by mother of the plaintiff to Sarbeswar Barman are the same. Moreover, the plaintiff’s witness PW 3 had corroborated the fact that the defendants were in possession of the suit land since last 25/30 years. The learned Court below had also recorded concurrent finding of fact that the boundary of the suit land and the boundary of the land sold by mother of the plaintiff to Sarbeswar Barman are the same. Therefore, the Court below had recorded a finding that the mother of the plaintiff Godapria Rajbongshi sold the suit land to Sarbeswar Barman on behalf of the plaintiff and his two brothers while the plaintiffs and his brothers were minor. On the basis of such categorical finding of facts the learned Court below had come to the conclusion that the plaintiff is not entitled to the decree prayed for in the suit. 11. On a proper scrutiny of the materials available on record, I do not find any perversity or infirmity in the findings and conclusions recorded by the learned Courts below. Therefore, there is no substantial question of law that arises for adjudication in the present appeal in as much as in the facts and circumstances of the case the suit of the plaintiff cannot be decreed. Moreover, the omission to challenge the sale deed Ext-B(1), C(1), D(1) and E would certainly have a fatal bearing in the outcome of the suit having regard to the nature of relief prayed for by the plaintiff. In that view of the mater, it is held that the Second Appeal is devoid of any merit and accordingly the same stands dismissed.