Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 845 (GAU)

Jona Das v. Meena Bora

2015-07-15

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. G.P. Bhowmik, learned Senior Counsel for the appellants. Also heard Ms. P. Bhattacharjee, learned counsel appearing for the respondents. 2. This appeal by the defendants is preferred against the judgment and decree dated 07.04.2003 passed by the learned Civil Judge (Sr. Divn.), Lakhimpur in Title Appeal No.4/2002 allowing the appeal preferred against the judgment and decree dated 06.09.2002 passed by the learned Civil Judge (Jr. Divn.) No.1, North Lakhimpur in Title Suit No.14/1998. 3. The plaintiff No.1 claimed to have purchased 1 Katha 15 Lecha land in Dag Nos.1742 and 1743 of Periodic Patta No.59 of Ward No.4 in Bihpuria Town from Mahim Chandra Das, who was the predecessor-in-interest of defendant Nos.1 to 4 and a near relative of defendant No.5. Another plot of land measuring 15 Lecha in the aforesaid Dag and Patta was purchased from the husband of pro forma defendant No.8 and thus, total land of the plaintiffs in Dag Nos.1742 and 1743 came to be 2 Katha 10 Lecha. Over and above the said land, the plaintiff also purchased 1 Bigha land from pro forma Defendant No.22 in Dag No.466 of Periodic Patta No.78 of Ward No.1 of Bihpuria Town. Suit was filed alleging illegal occupation by the principal defendants, numbering 5 along with some 8 number of persons, in ‘Ka’ and ‘Kha’ Schedule. Plaintiffs prayed for right, title and interest and khas possession in respect of ‘Ka’ and ‘Kha’ Schedule. ‘Ka’ Schedule is in Dag No.466 and measures 17 Lecha 19’; ‘Kha’ Schedule is in Dag Nos.1742 and 1743 and measures 15 Lecha 18’. Total land which was encroached, thus, came to be 1 Katha 12 Lecha and 47’. 4. A written statement and counter-claim was filed by the defendants. It was contended that there was no proof of selling of any land by Mahim Chandra Das. But it was admitted that 2 Katha 10 Lecha land in Dag Nos.1742 and 1743 was allowed to be used by the plaintiffs by way of permissive occupation. It was pleaded that they would file a separate suit for recovery of possession of the aforesaid 2 Katha 10 Lecha land. It was also pleaded that boundary of the land in paragraph 9 was wrongly shown covering 1 Katha 17 Lecha land remaining with the defendants and described what they called the correct boundary of land of the plaintiffs measuring 2 Katha 10 Lecha. It was also pleaded that boundary of the land in paragraph 9 was wrongly shown covering 1 Katha 17 Lecha land remaining with the defendants and described what they called the correct boundary of land of the plaintiffs measuring 2 Katha 10 Lecha. It is averred that in Dag No.1742, there is 1 Katha 1 Lecha land and in Dag No.1743, there is 4 Katha 5 Lecha of land, totaling 1 Bigha 6 Lecha. Periodic Patta No.59 was issued in respect of 18 Bigha 8 Lecha land in different Dags in favour of the predecessor of the defendants. The original pattadars had allowed a road to be constructed to the southern side of Dag Nos.1742 and 1743 to go to their other land and after construction of the road, 4 Katha 7 Lecha remained in both the above Dags. Out of the aforesaid 4 Katha 7 Lecha land, 2 Katha 10 Lecha land were allowed to be used by the plaintiffs by way of permissive occupation. The counter-claim was limited to 1 Katha 17 Lecha covered by Dag Nos.1742 and 1743 in respect of which the defendants prayed for right, title and possession. 5. The learned Trial Court framed the following issues:- “1. Whether there is any cause of action for the suit ? 2. Whether the suit is maintainable in its present form ? 3. Whether the plaintiff side has right, title and interest over the suit land ? 4. Whether the defendant side has right, title and interest over the suit land ? 5. Whether the plaintiff side is entitled to get khas possession of the suit land ? 6. To what relief or reliefs if any, the parties are entitled to ? 6. The plaintiffs examined 4 witnesses and exhibited 8 documents, whereas, defendants examined 3 witnesses and exhibited 3 documents. 7. The learned Trial Court recorded the finding that 19 Lecha land was donated by the predecessors of the defendants in Dag Nos.1742 and 1743 for construction of the road. It was held that there was total land measuring 1 Bigha 6 Lecha in Dag Nos.1742 and 1743. It was also held that excluding the claim of the plaintiffs in respect of 2 Katha 10 Lecha and 19 Lecha land used for the purpose of construction of the road, there still remained 1 Katha 17 Lecha in Dag Nos.1742 and 1743. 8. It was also held that excluding the claim of the plaintiffs in respect of 2 Katha 10 Lecha and 19 Lecha land used for the purpose of construction of the road, there still remained 1 Katha 17 Lecha in Dag Nos.1742 and 1743. 8. However, the learned Trial Court, noticing that there was no boundary indicated in Ext-1, Sale-deed pertaining to Dag No.466, and holding that plaintiffs had also failed to prove their right, title and interest in respect of Dag Nos.1742 and 1743, dismissed the suit and at the same time allowed the counter-claim of the defendants declaring right, title and interest and confirmed the possession in respect of 1 Katha 17 Lecha land. 9. An appeal was preferred by the plaintiffs and the Appellate Court decided all the issues in favour of the plaintiffs and decreed the suit. 10. The second appeal was admitted to be heard by an order dated 25.07.2003 by formulating two substantial questions of law, which are as follows:- “1. Whether the impugned judgment of the appellate court suffers from perversity and failed to consider the grant of decree in respect of counter-claim preferred by the defendant ? 2. Whether the decree is permissible in the absence of the required steps regarding the area of the land ?” 11. The learned counsel for the parties submit that substantial question of law No.2 is not very clear and therefore, the same may not be taken into consideration and the appeal may be considered and disposed of on the basis of the substantial question of law No.1. 12. Submission of Mr. Bhowmik is that the learned lower Appellate Court committed manifest error of law in not recording any finding with regard to the counter-claim, which was allowed by the learned Trial Court. He has assiduously urged that 1 Katha 15 Lecha land in Dag Nos.1742 and 1743 is separate and distinct from 1 Katha 17 Lecha land in respect of which counter-claim was lodged, though same is also in Dag Nos.1742 and 1743. It is submitted that ‘Kha’ Schedule land is part of Dag Nos.1742 and 1743 though it does not represent the entire 1 Katha 15 Lecha land supposed to have been purchased from Mahim Chandra Das. It is submitted by Mr. Bhowmik that on a total mis-reading of the evidence, Issue No.4 was decided in favour of the plaintiffs. It is submitted that ‘Kha’ Schedule land is part of Dag Nos.1742 and 1743 though it does not represent the entire 1 Katha 15 Lecha land supposed to have been purchased from Mahim Chandra Das. It is submitted by Mr. Bhowmik that on a total mis-reading of the evidence, Issue No.4 was decided in favour of the plaintiffs. It being established on the evidence on record that 1 Katha 17 Lecha land was still available in Dag Nos.1742 and 1743, the learned lower Appellate Court ought not to have decided Issue No.4 against the defendants. He has also pointed out that the learned lower Appellate Court was oblivious of the fact that counter-claim in respect of the said area of land measuring 1 Katha 17 Lecha was decreed and there is no mention in the judgment of the learned lower Appellate Court rejecting the counter-claim. The sum and substance of argument of Mr. Bhowmik is that the counter-claim in respect of 1 Katha 17 Lecha land could not have been dismissed by the learned lower Appellate Court. 13. Ms. P. Bhattacharjee, learned counsel for the respondents has submitted by referring to the written statement filed against the counter-claim lodged by the defendants that the plaintiffs had not encroached land measuring 1 Katha 17 Lecha in Dag Nos.1742 and 1743 and therefore, with regard to the aforesaid 1 Katha 17 Lecha land, the plaintiffs have no claim. She has also submitted that though the learned lower Appellate Court did not, in terms, record any finding with regard to the counter-claim, necessarily and inevitably, the issues having been decided against the defendants, it is apparent that counter-claim was rejected and non-mentioning about the same will not invalidate the judgment of the learned lower Appellate Court. She, however, very fairly submits that whether there is perversity or not, of course, is a different matter altogether. 14. In view of the above submission of Ms. Bhattacharjee that the plaintiffs have got no claim in respect of 1 Katha 17 Lecha land as claimed by the defendants, it may not be necessary for this court to go for a full scale discussion on the materials on record to decide the second appeal. Claim of Mr. Bhowmik is limited to 1 Katha 17 lecha land in Dag Nos.1742 and 1743 and in respect of the aforesaid claim, Ms. Bhattacharjee has no objection. 15. Claim of Mr. Bhowmik is limited to 1 Katha 17 lecha land in Dag Nos.1742 and 1743 and in respect of the aforesaid claim, Ms. Bhattacharjee has no objection. 15. It is on record that there was 1 Bighas 6 Lecha land in Dag Nos.1742 and 1743 and 1 Katha 17 Lecha still remained in the aforesaid Dag i.e. Dag Nos.1742 and 1743. That the predecessor-in-interest of the defendants were the owners of the Dag Nos.1742 and 1743 is not disputed. The learned lower Appellate Court seems to have overlooked this aspect of the matter, as there was some admission on the part of the DW-1 contending that defendants did not have any claim in respect of land in Dag No.466 and also in 2 Katha 10 Lecha land. 16. The appeal is partly allowed. Substantial question of law is answered accordingly. Counter-claim of the defendants is decreed. No cost. 17. Learned counsel for the parties, at this stage, submit that decree may be allowed to be executed in respect of ‘Ka’ and ‘Kha’ Schedule without disturbing the possession of the defendants in 1 Katha 17 Lecha land in Dag Nos.1742 and 1743. It is needless to say that in execution of the decree, possession of the defendants in 1 Katha 17 Lecha in Dag Nos.1742 and 1743 shall not be disturbed. 18. Registry will send back the records.