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2015 DIGILAW 881 (GAU)

Nilamani Sonowal v. Shan Sonowal

2015-07-22

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. P.P. Das, learned counsel for the appellant. The respondents are not represented. 2. This appeal is preferred against the judgment and decree dated 25.11.2004 passed by the learned Civil Judge (Senior Division), Jorhat in Title Appeal No. 2/2003, dismissing the appeal and upholding the judgment and decree dated 25.11.2002, passed by the learned Civil Judge (Junior Division) No. 1, Jorhat in Title Suit No. 3/1999, dismissing the suit of the plaintiff. 3. This second appeal was admitted to be heard on the following substantial question of law: “Whether the Sale Deed on the basis of which the plaintiff claimed title, not having been denied/disputed by the defendant in the suit, the learned Court below erred on substantial question of law in holding the certified copy of the Sale Deed exhibited by the plaintiff to be not admissible in evidence under the provisions of Section 62 and 65 of the Indian Evidence Act.” 4. The plaintiff filed a suit against the defendant No. 1, who is the son of the elder brother of the father of the plaintiff. Suit was filed for declaration of right, title and interest in respect of 1 Bigha of land covered by P.P. No. 1 and Dag No. 4 (Grant No. 139/12/567) of Borhola Chah Bagicha Gaon with a house standing thereon with CI-sheet roof. The boundary of the 1 Bigha of land was also given. It is pleaded that the plaintiff had purchased the said plot of land by a registered Sale Deed No. 571 dated 10.02.1971 from pro forma defendant No. 2. Initially, in the year 1991, defendant No. 1’s brother, Phatik Sonowal was given on rent the aforesaid house. Subsequently, he delivered vacant possession and then his younger brother, Dilip Sonowal was permitted to run a shop there from. Later on, in the year 1995, he handed over vacant possession. 5. Defendant No. 1 was in employment of the father of the plaintiff. Subsequently, he discontinued his employment and then defendant No. 1 approached the father of the plaintiff to permit him for a temporary shelter and the plaintiff, on a request of his father, allowed the defendant No. 1 to stay in the suit house for a short duration. 5. Defendant No. 1 was in employment of the father of the plaintiff. Subsequently, he discontinued his employment and then defendant No. 1 approached the father of the plaintiff to permit him for a temporary shelter and the plaintiff, on a request of his father, allowed the defendant No. 1 to stay in the suit house for a short duration. Subsequently, however, despite requests made, the defendant No. 1 did not vacate the suit land and on the contrary, on 16.02.1999, found that the defendant No. 1 had illegally and unauthorisedly raised 8 Nos. of pucca posts over the suit land. Accordingly, the plaintiff filed the suit for declaration of right, title and interest in respect of the suit land as described in the schedule and for eviction of the defendant No. 1. 6. The defendant No. 1 filed written statement stating that the plaintiff did not purchase land of Dag No. 4 of P.P. No. 1 (Grant No. 139/12/567). His categorical statement is that by the Sale Deed dated 10.02.1971, the suit land was not purchased by the plaintiff and possession was not handed over to him. The entire case projected in the plaint was denied and it was stated that he was in possession of the land in question from 01.12.1970 by constructing dwelling house thereon. It is also stated that the defendant No. 1 is in occupation and possession of land covered by Dag No. 44. It is also pleaded that the suit was barred by adverse possession. 7. Both the Courts below have held that as the plaintiff failed to state the reason as to why he failed to produce the original Sale Deed, the certified copy produced by the plaintiff and exhibited as Exhibit – 2 could not be considered and the Sale Deed was held to be not proved. 8. The Plaintiff had also exhibited certified copy of the Sale Deed of his vendor as Exhibit – 3. It is noticed that vide Exhibit – 3 dated 21.01.1971, it appears that a total of 11 Bighas 1 Katha 9 Lechas in three plots measuring 8 Bighas 4 Kathas 19 Lechas, 1 Bigha and 2 Kathas 10 Lechas were sold by Borhola Assam Tea Company Limited. Thereafter, according to the plaintiff, on 10.02.1971, the pro forma defendant No. 2 sold 1 Bigha of land out of 8 Bighas 4 Kathas 19 Lechas. 9. Thereafter, according to the plaintiff, on 10.02.1971, the pro forma defendant No. 2 sold 1 Bigha of land out of 8 Bighas 4 Kathas 19 Lechas. 9. Though in the substantial questions of law, it is noted that the defendant had not denied or disputed the Sale Deed, a perusal of the written statement would go to show that the defendant No. 1 specifically denied the Sale Deed in question. No explanation was given by the plaintiff as to why the original of the Sale Deed could not be produced. It, however, appears that the certified copy of the Sale Deed was admitted in evidence without any objection. It is noticed that the Sale Deed, Exhibit – 2 does not have any Dag Number. There is also no boundary described in Sale Deed, Exhibit – 2. Even if it is held that the learned Courts below were wrong in not holding Exhibit – 2 as proved, then also the same does not take the case of the plaintiff any further. The Sale Deed is not, in any manner, relatable to the schedule of the plaint, and therefore, on the strength of the said Sale Deed, it cannot be established that the plaintiff has right, title and interest in respect of the land in the schedule to the plaint. 10. In that view of the matter, I find no merit in this appeal and accordingly, the same is dismissed. The substantial question of law, as framed, also does not clearly emerge for consideration as the Sale Deed in question was denied and disputed by the defendant in the written statement. No cost. 11. Registry will send back the records.