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2015 DIGILAW 771 (GAU)

Jyotish Deka v. Gajendra Deka

2015-06-18

A.K.GOSWAMI

body2015
JUDGMENT Heard Mr. D. Choudhury, learned counsel for the appellants. Also heard Mr. B. Banerjee, learned Senior Counsel assisted by Mr. S.K. Mukhtar, learned counsel for the respondents. 2. This appeal is by the plaintiffs against the judgment and decree dated 20.01.2005 passed by the learned Civil Judge (Sr. Divn.), Nalbari in Title Appeal No.17/2004 allowing the appeal of the defendant and reversing the judgment and decree dated 28.06.2004 in Title Suit No.22/01 passed by the learned Civil Judge (Jr. Divn.) No.1, Nalbari, whereby suit of the plaintiffs was partly decreed without cost. 3. The case set out by the plaintiffs is that father of the plaintiffs, namely, Rajendra Deka and Gajia @ Gaji were brothers. Gaji was untraced for 30/35 years and as such the plaintiffs’ father was possessing the entire land in K.P. No.189 of Village- Narayanpur. There is 2 Bigha 9 Lecha, 1 Bigha 4 Katha and 1 Bigha 2 Katha 11 Lecha, in Dag Nos.62, 76 and 94 of K.P. No.189, respectively, totaling 5 Bigha 2 Katha. Defendant has his land near the said plots of land in a different Dag and Patta. Father of the plaintiffs died about 4 years back from the date of filing of the suit, that is to say, around 1997. After demise of the father, plaintiff No.2 was taking care of the suit land and while depositing land revenue, on 19.02.2001, he came to learn that defendant got his name mutated in place of plaintiffs’ father in Schedule ‘Kha’ measuring 1 Bigha 4 Katha land in Dag No.76 of K.P. No.189 and the name of the father was also mutated in place of Gaji by right of inheritance in Schedule ‘Kha’ land. It is averred that defendant had mutated his name in place of the father of the plaintiffs by right of purchase. The father of the plaintiffs had never sought for any mutation in respect of ‘Kha’ Schedule in place of Gaji. On being protested by the plaintiffs, defendant acknowledged that he had mutated his name and denounced the title of the plaintiffs. Accordingly, plaintiffs filed the suit. 4. In the written statement filed, defendant pleaded that Gaji went missing about 45 to 46 years back and not 30/35 years back as stated by the plaintiffs. It was admitted that share of Gaji was enjoyed by Rajendra. Accordingly, plaintiffs filed the suit. 4. In the written statement filed, defendant pleaded that Gaji went missing about 45 to 46 years back and not 30/35 years back as stated by the plaintiffs. It was admitted that share of Gaji was enjoyed by Rajendra. It was pleaded that as Gaji was not seen for more than 7 years, father of the plaintiffs became the owner in respect of share of Gaji and he sold ‘Kha’ Schedule land on 16.10.1964 and delivered possession to him. The vendor also stated that he would have no objection if he gets his name mutated and consequently, by disclaiming the right, title and interest of Rajendra, he was in possession of the said land openly and without any interruption for more than 12 years as his own land and he had continued to remain in possession of the same. It is admitted that no sale deed was executed by Rajendra but he had signed in the chitha. Rajendra had not made any objection in his life time in respect of the mutation and such mutation was effected long time before Rajendra had died. 5. On 16.112005, this court framed the substantial questions of law, which are as follows:- “1. Whether the findings substituted by the appellate Court to hold the possession of the defendant for 12 years adverse to the interest of the actual owner of the land inspite of admission of the defendant in cross examination as D.W.-1 that he was in possession for 8-9 years, is perverse findings and whether the findings of him can be substituted in place of the reasoned findings of learned Civil Judge, Jr. Division, Nalbari on this point ? 2. Whether the adverse possession by dint of possession for 8 & 9 years by the defendant can have the right, title and interest by right of adverse possession under Article 64 of the Limitation Act ? 3. Whether the Chitha mutation can provide the claim of right, title and interest of the defendant over the suit land without having any proof of transfer of title under the transfer of Property Act ? 4. Whether for inheritance of the property of the person not known for seven years, there is requirement of any declaration under the law for devolution of the land and mutation to the sole legal heir ? 5. 4. Whether for inheritance of the property of the person not known for seven years, there is requirement of any declaration under the law for devolution of the land and mutation to the sole legal heir ? 5. Any other question, which may be raised to be allowed by the court at the time of hearing ?” 6. The learned counsel for the parties submit that in substantial question of law No.2, Article 64 of the Limitation Act is wrongly recorded instead of Article 65. 7. Mr. D. Choudhury, learned counsel for the appellants has submitted that in the facts and circumstances of the case, substantial question of law No.4 will not arise for consideration in the instant case and therefore, he will not be pressing the same. It is submitted by him that the finding recorded by the learned lower Appellate Court that the defendant was in possession of the suit property for more than 12 years adverse to the interest of the actual owner of the land, is utterly perverse as the evidence of defendant No.1, who examined himself as DW-1, would itself demonstrate. It is also submitted by him that the defendant claimed to have purchased Schedule ‘Kha’ land and he himself stated that since Gaji was missing for more than 7 years, Rajendra was having right, title and interest of the land of Gaji. Therefore, the learned lower Appellate Court was wrong in making an issue with regard to non-framing of issue regarding death of Gaji and in reversing the finding in issue No.4 relating to right, title and interest of the plaintiff on that count, he submits. He contends that judgment of the learned lower Appellate Court is perverse and inconsistent finding was recorded by the learned lower Appellate Court inasmuch as it was also held that the father of the plaintiffs was the owner of the suit land, but the defendant acquired title on the basis of adverse possession. It is also submitted that the case of the defendant was an oral sale, which is not permissible in law and therefore, on the basis of such alleged oral sale, no right, title and interest can be passed on to defendant. 8. Mr. It is also submitted that the case of the defendant was an oral sale, which is not permissible in law and therefore, on the basis of such alleged oral sale, no right, title and interest can be passed on to defendant. 8. Mr. Banerjee, learned Senior Counsel for the respondent, on the other hand, strenuously urges that name of the defendant was mutated in the land records during the lifetime of Rajendra on 16.10.1964 on the basis of the oral sale made by him to the defendant and the long standing mutation tilts the scales in favour of the defendant, at least, with regard to the plea set up by the defendant that he was having possession adverse to the interest of the plaintiffs for more than statutory period. 9. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 10. Admitted position of the case is that no sale deed was executed by the father of the plaintiffs to the defendant. Section 54 of the Transfer of Property Act, 1882 provides that transfer of tangible immovable property of the value of one hundred rupees and upwards can be made only by a registered instrument. In case the value of the tangible immovable property is less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property and the delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. 11. In the written statement filed by the defendant, the consideration amount was not specified. It was only indicated that reasonable consideration amount was paid. In cross-examination, he had indicated that on 16.10.1964, he had paid about 100/150 rupees and thereafter, he had made payment of further amounts towards the consideration amount. Therefore, it will appear that consideration amount was more than rupees 100 and no sale could have been effected in accordance with law without a registered instrument. Both the courts below had come to the conclusion that no effective sale had taken place to confer right, title and interest upon the defendant on the basis of the alleged oral sale. It also appears from the evidence of D.W.1 that in the mutation case, no notice was issued to Rajendra. Both the courts below had come to the conclusion that no effective sale had taken place to confer right, title and interest upon the defendant on the basis of the alleged oral sale. It also appears from the evidence of D.W.1 that in the mutation case, no notice was issued to Rajendra. DW-1 does not remember who was present with him when Rajendra had put his thumb impression in the chitha. D.W.4, who is a Lat Mondal, stated that he had himself mutated the name of Rajendra and that mutation in ‘Ext.Unga’ was not done on the basis of any application. He had also stated that at the time of mutation, he had not taken the signature of any witness. No further discussion with regard to mutation is necessary as, at any rate, mutation entries neither create nor extinguish any right. Mutation entries, it is an established proposition of law, do not confer title. The argument of Mr. Banerjee that by virtue of mutation of the name of the defendant in the record of rights, defendant has right, title and interest is, thus, not tenable. 12. It is for the defendant to prove the plea of adverse possession. D.W.1, in his cross-examination, had stated that Rajendra had expired about 8/9 years prior to his date of deposition in the year 2003. He made a categorical statement which is as follows: “Rajendra was in possession of the suit land till the time of his death.” Therefore, on the face of this evidence, statutory period of 12 years was not completed to enable the defendant to claim title on the basis of adverse possession. Not only the defendant himself, but his witness D.W.6 also deposed that he had seen Rajendra being in possession of the suit land during his lifetime. The defendant miserably failed to prove the plea regarding adverse possession. The learned lower Appellate Court overlooked the most material part of the evidence of D.W.1 defendant himself and recorded a perverse finding that defendant established the plea of adverse possession. 13. In view of the above discussion, substantial questions of law will have to be answered in favour of the appellants. The appeal is, accordingly, allowed. The impugned judgment of the learned lower Appellate Court is set aside and the decree of the learned trial Court is restored. No cost. 15. Registry will send back the records.