Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 854 (GAU)

Sk. Fakar Uddin v. Sk. Faijul Haque

2015-07-16

A.K.GOSWAMI

body2015
JUDGMENT : 1. Heard Ms. R. Choudhury, learned counsel for plaintiffs/appellants. Also heard Mr. S. K. Ghosh, learned counsel for the respondents. 2. This Second Appeal is directed against the judgment and decree dated 31.07.2004 passed by the learned Civil Judge, Senior Division, Hailakandi, in Title Appeal No. 33/03, allowing the appeal and setting aside the judgment and decree dated 21.05.2003, passed by the learned Civil Judge, Junior Division No. 2, Hailakandi, in Title Suit No. 75/2000 (Original Title Suit No. 18/1990), decreeing the suit of the plaintiff. 3. The Second Appeal was admitted to be heard by an order passed on 20.03.06 on the following substantial question of law: “Whether the question of limitation has been decided in accordance with law by the Appellate Court?” 4. There was an earlier suit, being Title Suit No. 74/73, between the defendant Nos. 12, 13 and 23 of the present suit, and the predecessor of the plaintiffs of the present suit in respect of the very same land involved in the present suit. The present suit was contested only by the defendant No. 12 by filing written statement. The predecessor of the present plaintiffs was the defendant in the said suit. The plaintiffs in Title Suit No. 74/73 had prayed for right, title, interest and for confirmation of possession. The suit was dismissed by the judgment passed on 16.05.1983. Title Appeal No. 58/86 was dismissed on 16.12.87 and the Second Appeal preferred before this Court, being RSA 157/88, was dismissed on 27.02.96. 5. During pendency of the Second Appeal, the present suit was filed claiming right, title and interest in respect of the suit land, as indicated in the Schedule of the plaint, for preliminary decree as well as final decree for partition along with khas possession, etc. The plaintiffs had exhibited sale deed dated 12.11.1927 as Ext.-1 to establish title. The learned Trial Court, on the basis of the evidence on record, held that dispossession of the plaintiffs from a part of the suit land had taken place in the year 1985-1986. The learned Trial Court partially decreed the suit of the plaintiffs declaring right, title and interest of the plaintiffs over the plot of land measuring 1 Bigha 11 Katha and 13 Chattak in Dag No. 1133, 1133/1372, covered by 2nd RSA Patta No. 174, with a direction for drawing a preliminary decree. The learned Trial Court partially decreed the suit of the plaintiffs declaring right, title and interest of the plaintiffs over the plot of land measuring 1 Bigha 11 Katha and 13 Chattak in Dag No. 1133, 1133/1372, covered by 2nd RSA Patta No. 174, with a direction for drawing a preliminary decree. Precept to the revenue authorities was also issued for preparation of Saham. It was also held that land measuring 10 Katha 10 Chattak in the said patta was acquired in a land acquisition process. 6. The learned Lower Appellate Court concurred with the finding of the learned Trial Court with regard to the title of the plaintiffs. However, the appeal was allowed holding that the suit was barred by limitation. The learned Lower Appellate Court came to the aforesaid conclusion by holding that the materials on record do not disclose any positive evidence to the effect that the plaintiffs were in possession of the suit land and that they were dispossessed by the defendants within a period of 12 years and, therefore, the suit is hit by the provisions of Article 64 and 65 of the Limitation Act and that the right, title and interest, if any, of the plaintiffs had been extinguished by lapse of time. It was also noted that in the plaint the plaintiffs had stated that they had been dispossessed by the defendants during the pendency of the earlier Title Suit No. 74/73. 7. Ms. Choudhury, learned counsel for the appellants has submitted that the findings of the learned Lower Appellate Court is utterly perverse because in Ext.-3, which is judgment dated 16.05.83 in Title Suit No. 74/73, a finding was recorded that the predecessor-in-interest of the present appellants were in possession of the suit land. It is also submitted that the learned Lower Appellate Court could not have ignored the finding rendered in Title Suit No. 74/73, which stood confirmed in successive appeals. She has also submitted that nowhere in the plaint the plaintiffs had stated that the plaintiffs had been dispossessed during the pendency of the earlier Title Suit No. 74/73 and, based on such erroneous reading of the plaint, and ignoring the materials on record, learned Lower Appellate Court dismissed the suit of the plaintiffs as barred by limitation and, therefore, the substantial question of law deserves to be answered in favour of the appellants. 8. Mr. 8. Mr. S. K. Ghosh, learned counsel for the respondents has submitted that the plaintiffs did not indicate any specific date as to when they had been dispossessed from part of the Schedule land and, in order to obtain a decree, the plaintiffs have to prove their own case and cannot take the benefit of weakness, if any, in the case of the defendants. In support of his submission, he has relied on the decision of the Apex Court, rendered in the case T.K. Mohammed Abubucker (D) Thr. LRs. And Others v. P.S.M. Ahamed Abdul Khader and Others, reported in (2009) 14 SCC 224 . 9. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 10. In Title Suit No. 74/73, Issue No. 6 was as to whether the plaintiffs in the said suit were in possession as claimed in the plaint? While discussing the evidence on record in the said suit, the learned Trial Court had recorded the finding with regard to the purchase made by the present plaintiffs way back in the year 1927 on the strength of Ext.-A, which is exhibited by the plaintiffs in the present suit as Ext.-1. Categorical findings were recorded that the suit land was never in possession of the plaintiffs of the said suit and that the suit land was in possession of the defendants, i.e. the plaintiffs in the present case. 11. It appears that the learned Lower Appellate Court, though made a passing reference to Ext.-3, did not peruse the contents therein. The present plaintiffs were in possession of the land in question when the Title Suit No. 74/73 was decided in the year 1983. The learned Lower Appellate Court also made a perverse assumption that the plaintiffs had claimed that they had been dispossessed while the Title Suit No. 74/73 was pending. 12. The defendant No. 12, who had contested the present suit, has his plots of land situated in the Northern, Southern and Western side encircling the suit land and he was gradually encroaching upon a part of the land of the present plaintiffs, which necessitated filing of the suit. Such dispossession is apparently after 1983. Though no specific date has been mentioned in the plaint, the evidence on record discloses that such encroachment/dispossession had taken place in the year 1985/1986. 13. Such dispossession is apparently after 1983. Though no specific date has been mentioned in the plaint, the evidence on record discloses that such encroachment/dispossession had taken place in the year 1985/1986. 13. Considered in the touchstone of the evidence on record, the finding of the learned Lower Appellate Court that there is no positive evidence that the plaintiffs were dispossessed by the defendants within a period of 12 years is clearly not sustainable in law as the suit was filed in the year 1990. 14. The facts in T.K. Mohammed (supra) was entirely different. In the aforesaid case, the plaintiff’s title was not established and, apart from that, the Apex Court had observed that the plaintiff had deliberately withheld evidence as to the date from which the defendants were in possession. The same is not the case here. There is no withholding of evidence by the plaintiffs. Rather, they have also brought on record Ext.-3, as referred to earlier, to demonstrate that in the earlier round of litigation, possession was declared in unequivocal terms in favour of the present plaintiffs. Plaintiffs’ title is also established. The plea taken by the defendant No. 12 in the present suit that notwithstanding the fact that he had failed to succeed in the suit filed by him and others, he continues to remain in possession, cannot be accepted in view of the conclusion arrived at in this respect in the earlier round of litigation between the parties. The finding has attained finality. The defendant No. 12 also does not have any semblance of right, title and interest in respect of the suit land as such claim, made in the suit filed by him and others, had been rejected throughout up to Second Appeal. 15. In view of the above discussions, the appeal deserves to the allowed. Accordingly, the appeal is allowed by setting aside the judgment and decree of the learned Lower Appellate Court. The judgment and decree of the learned Trial Court is restored. Substantial question of law is answered accordingly. No cost. 16. Registry will send back the records.