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2015 DIGILAW 908 (GAU)

Promode Sarkar v. Sitala Bala Das

2015-07-24

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. S.S. Sarma, learned Senior Counsel for the appellants. Also heard Mr. A. Iqbal, learned counsel for the respondent. 2. The defendants, as the appellants, had filed the second appeal against the judgment and decree dated 01.02.2005, passed by the learned District Judge, Bongaigaon, dismissing Title Appeal No. 2/2000 and upholding the judgment and decree dated 31.05.2000, passed by the learned Civil Judge (Senior Division), Bongaigaon in Title Suit No. 4/1999. 3. This second appeal was admitted to be heard by an order passed on 21.12.2005 on the following substantial question of law: “Whether mere execution of sale deeds leads one to a conclusion that possession of the land was delivered to the transferee and whether some positive evidence of delivery of possession to transferee is needed and whether such evidence was led by the plaintiff-respondent?” 4. The plaintiff filed a suit for declaration of right, title and interest and for recovery of khas possession in respect of a plot of land measuring 1 Bigha. The case set out in the plaint is that the suit land originally belonged to Prakash Chandra Sarkar, predecessor-in-interest of the defendant Nos. 1, 2, 3 and 4. He sold the suit land to Late Tarapada Paul, the predecessor-in-interest of pro forma defendant Nos. 1, 2 and 3 vide registered Sale Deed dated 24.05.1968 and delivered possession of the same. Tarapada Paul sold the suit land vide registered Sale Deed dated 07.10.1969 to Sudhir Chandra Pathak, predecessor-in-interest of the pro forma defendant Nos. 4, 5 and 6 and delivered possession of the land. Sudhir Chandra Pathak had mutated his same and continued to possess the same till 19.12.1984. By a registered Sale Deed dated 19.12.1984, Sudhir Chandra Pathak sold the suit land to the plaintiff and delivered possession of the suit land and since then, she was in possession of the suit land. Her name was also recorded in the revenue records. On 04.06.1996, the defendants dispossessed the plaintiff from the suit land and as a result, the suit came to be filed. 5. The case set out by the defendant Nos. 1, 2, 3 and 4 in their written statement is that they had no knowledge of registered Sale Deeds dated 24.05.1968 and 07.10.1969 and the plaintiff has no right, title and interest over the suit land. 5. The case set out by the defendant Nos. 1, 2, 3 and 4 in their written statement is that they had no knowledge of registered Sale Deeds dated 24.05.1968 and 07.10.1969 and the plaintiff has no right, title and interest over the suit land. It is further pleaded that question of trespass did not arise as they were in possession of the suit land. It is also averred that Assistant Settlement Officer, Srijan Gram Revenue Circle confirmed right, title, interest and possession of the defendant Nos. 1 and 2 in Mutation Case No. 14/1997. 6. Pro forma defendant Nos. 4, 5 and 6, by filing written statement, supported the case of the plaintiff. 7. During trial, the plaintiff examined herself and 4 other witnesses and defendants also examined 4 witnesses. Both the parties exhibited a number of documents. Issue No. 3 framed in the suit was whether the plaintiff had derived right, title and interest over the suit land by right of purchase as claimed and had been in possession over the suit land. 8. On the basis of Exhibit – 1, i.e., Sale Deed in favour of the plaintiff by Sudhir Chandra Pathak, Exhibit – 2, i.e., Sale Deed in favour of Sudhir Chandra Pathak by Tarapada Paul and Exhibit – 3, i.e., Sale Deed in favour of Tarapada Paul by Prakash Chandra Sarkar, which had not been challenged, the learned Courts below came to the finding that the plaintiff had right, title and interest in the suit land. The learned Courts below also recorded the finding that at the time of sale, possession of the land was also transferred to the new purchaser, and accordingly, plaintiff was also delivered possession. 9. Mr. S.S. Sarma, learned Senior Counsel for the appellants, in support of the substantial question of law framed, submits that the findings recorded by the learned Courts below that the plaintiff was delivered possession of the suit land is perverse. It is submitted that in order to enable the plaintiff to get the decree for right, title and interest, it will be obligatory for the plaintiff to prove delivery of possession. 10. Mr. Iqbal, learned counsel for the respondent, on the other hand, submits that no plea on adverse possession was set up by the defendant Nos. It is submitted that in order to enable the plaintiff to get the decree for right, title and interest, it will be obligatory for the plaintiff to prove delivery of possession. 10. Mr. Iqbal, learned counsel for the respondent, on the other hand, submits that no plea on adverse possession was set up by the defendant Nos. 1, 2, 3 and 4/appellants and assuming that defendants were in possession, same would be of no consequence once the plaintiff establishes her right, title and interest. It is submitted by him that in their evidence, P.Ws. 2, 3 and 4 had clearly stated that the plaintiff was delivered possession. The learned Courts below on a thorough examination of materials on record, recorded a finding that the plaintiff had been delivered possession, and therefore, there is no merit in the second appeal and the same is liable to be dismissed, he submits. 11. I have considered the submissions of the learned counsel for the parties and have perused the materials on records. 12. It is not in dispute that on the strength of Exhibits – 1, 2 and 3, the plaintiff was able to establish the right, title and interest in respect of the suit land. In fact, in this appeal, there is no assailment with regard to declaration of right, title and interest in favour of the plaintiff. 13. Under Section 54 of the Transfer of Property Act, 1882, sale of immovable property does not contemplate that there has to be simultaneous delivery of possession. The right of possession over a property is a facet of title. As soon as deed of sale is registered, the title passes to the vendor. It is also noticeable that there is no plea of adverse possession by the defendants, who happened to be the sons and daughters of Prakash Chandra Sarkar, the original owner. Plaintiff is the mother-in-law of P.W. 2. P.W. 2 deposed that he had purchased 2 Bighas of land from the brother of Sudhir Chandra Pathak and the plaintiff had purchased 1 Bigha from Sudhir Chandra Pathak. He has clearly deposed that possession was delivered. P.W. 3 is the son of Plaintiff (P.W. 1), who had also deposed that Sudhir Chandra Pathak, i.e., the vendor had delivered possession and that the defendants had forcefully possessed the suit land in the year 1996. P.W. 4 is the son of the vendor. He has clearly deposed that possession was delivered. P.W. 3 is the son of Plaintiff (P.W. 1), who had also deposed that Sudhir Chandra Pathak, i.e., the vendor had delivered possession and that the defendants had forcefully possessed the suit land in the year 1996. P.W. 4 is the son of the vendor. He had deposed that he was present at the time of handing over possession. He had also categorically deposed that his father had purchased the plot of land from Tarapada Paul, who was in possession of the suit land. 14. In view of the overwhelming evidence on record, regarding delivery of possession to the plaintiff, I am unable to accept the submission of Mr. Sarma that finding with regard to the possession of the plaintiff or for that matter delivery of possession at the time of sale is perverse. Consequently, I find no merit in the appeal, and accordingly, the same is dismissed. Substantial question of law is, accordingly, answered. No cost. 15. Registry will send back the records.