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2015 DIGILAW 950 (GAU)

Monoranjan Nath v. Sukamoy Nath

2015-08-04

SUMAN SHYAM

body2015
JUDGMENT : 1. Heard Mr. M. H. Rajbarbhuiya, learned counsel appearing for the appellants. Also heard Mr. N. Dhar, learned counsel representing the respondent Nos.1 to 3. Mr. G. Sarma, learned Govt. Advocate, Assam, appears for respondent No.5. 2. The instant Second Appeal has been preferred by the defendants as appellants being aggrieved by the concurrent judgment and decree dated 24.05.2004 and 07.06.2004, respectively, passed by the learned Civil Judge(Senior Division), Karimganj in Title Appeal No.26/2001 affirming the judgment and decree dated 15.09.2001 passed by the learned Civil Judge (Junior Division) No.3, Karimganj in Title Suit No.210/1993 decreeing the suit of the plaintiffs. 3. The brief facts of the case, as projected in the plaint, is that the father of the plaintiff was a jote tenant at a yearly rent of Rs.3/- under the ex-proprietor Late Pulin Behari Deb Choudhury. He had purchased the said plot of land measuring 6 kedars from Pulin Bihari Deb Choudhury by means of a registered deed of sale dated 06.10.1955 and thereafter became absolute owner in respect of the said plot of land by way of right of purchase exercising maliki right. Thereafter, in pursuance of the requisition of the permanently settled estates of Karimganj Sub-Division, Raicharan Nath i.e. the father of the plaintiff acquired status of landlord in respect of the aforesaid plot of land. Thereafter Raicharan Nath had made partition in respect of his property to be divided amongst each of his sons and daughters after his death and according to the said partition the land measuring 5 kedars covered by dag No.825of final khatian No.468 of Mouza Pathu Part-I, phargana – Boropara in the district of Karimganj fell in the share of the plaintiff No.1. The aforesaid plot of land measuring 5 kedars is the suit land in the plaintiffs’ suit. After acquiring his absolute title over the suit land by virtue of the partition carried out in respect of the property of Raicharan Nath amongst his sons and daughters, plaintiff No.1 had constructed a residential house on the said plot of land and has been residing thereupon since last 30 years. It is the case of the plaintiffs that the homestead land of the defendants is situated to the adjacent south of the suit land belonging to the plaintiffs. It is the case of the plaintiffs that the homestead land of the defendants is situated to the adjacent south of the suit land belonging to the plaintiffs. The plaintiffs have further stated that the defendants have no right, title, interest or possession over the land described in the schedule to the plaint. However, during the time of re-settlement operation carried out in the year 1988, it had come to the knowledge of the plaintiff that the name of the father of the principal defendant Nos.1 and 2 i.e. Late Jai Charan Nath was wrongly included in the final khatian No.468 of mouza – Pathu Part-I of district Karimganj which comprises of land covered by dag No.825 belonging to the plaintiffs. Having come to know about the said fact the plaintiff No.1 submitted a petition to the Settlement Officer, Karimganj for correction of the record of rights by filing Misc. Case No.41/91-92. However, instead of deciding the miscellaneous application the Settlement Officer vide order dated 12.05.1993 directed the parties to approach the Civil Court and establish their title over the disputed dag. Hence, the plaintiffs had instituted the Title Suit, inter alia, seeking declaration of the right, title and interest of the plaintiff No.1 over the suit land and for other consequential reliefs. 4. The defendant Nos.1 and 2 contested the suit by filing the written statement. The other defendants including the proforma defendants did not contest the suit and, therefore, the suit proceeded ex parte against them. In the written statement filed by the defendant Nos.1 and 2 they have questioned the maintainability of the suit on the ground of want of cause of action, the suit being bad for waiver, estoppels and acquiescence etc. The case of the contesting defendants, as projected in the written statement, is that the suit land appertains to Mohal Dawshana 16236/1 Taluk Murari Chandra Das for a long period of time until prior to 1985. The aforesaid land was cherra type land. The defendants have pleaded that Raicharan Nath and his brother Kanai Nath were the owners of the said plot of land having equal shares therein and both the brothers were possessing the said plot of land by having equal shares in respect thereof. The aforesaid land was cherra type land. The defendants have pleaded that Raicharan Nath and his brother Kanai Nath were the owners of the said plot of land having equal shares therein and both the brothers were possessing the said plot of land by having equal shares in respect thereof. After the death of Kanai Nath his wife Sunita Devi has sold land measuring 2 kedars 2 jasti being the share of her husband in the suit land vide registered sale deed No.1089 dated 13.02.1958 in favour of Kuti Nath and Jai Charan Nath i.e. father of the defendant Nos.1 and 2, pursuant whereupon the possession was also delivered to the said buyers. While enjoying the possession of the purchased land Kuti Nath died leaving behind his wife and the defendant No.3 Jai Chanran Nath also died leaving behind his wife and two sons, viz. the defendant Nos.1 and 2 and one daughter Arati Bala Devi. During the first settlement operation held about 30 years back the Settlement authority having found Jai Charan Nath and Raicharan Nath to be in possession of the suit land each having share of 8 pons, recorded their name in the settlement record which was made final on 06.12.1968. During the lifetime of Raicharan Nath and Jai Charan Nath none had raised any objection against such entry of each other’s names in the record of rights. However, during the last settlement operation in 1988, the settlement authority found Jai Charan Nath and Binoy Nath in possession of the suit land and their names were duly recorded in the settlement record and a patta was also issued. Although the defendants had purchased the share of one of the co-owners Kanai Nath, yet the plaintiffs did not partition the suit land by demarcating the share of the defendants. On the contrary, the plaintiffs have made attempt to grab the land belonging to the defendants. The defendants have therefore prayed for a decree of partition of the suit land so as to demarcate their shares and to that effect made a counter-claim. 5. The plaintiffs had filed their written statement against the counter claim taking several pleas pertaining to the maintainability of the same. 6. The defendants have therefore prayed for a decree of partition of the suit land so as to demarcate their shares and to that effect made a counter-claim. 5. The plaintiffs had filed their written statement against the counter claim taking several pleas pertaining to the maintainability of the same. 6. Based on the pleadings of the parties, the learned trial Court had framed as many as four issues arising out of the suit and the counter-claim, which are as follows :- “1) Is there any cause of action for the suit? 2) Is the suit maintainable in its present form? 3) Whether the plaintiff have right, title and interest over the suit land? 4) Whether the plaintiffs are entitled to relief as prayed for?” 7. The plaintiff’s side had examined three witnesses and submitted documentary evidence in the form of exhibits 1 to 6, whereas the defendants side had also examined three witnesses and submitted documents marked as Exts-A to P as documentary evidence. 8. After hearing the learned counsel for the parties and on appraisal of the material evidence on record, the learned trial Court had decreed the suit filed by the plaintiffs while rejecting the counter claim made by the defendants. The learned trial Court was of the opinion that the plaintiffs side had been able to prove and establish their case by adducing evidence to the effect that the plaintiff No.1 was the registered owner in possession in respect of the land described in the schedule to the plaint having inherited the same from his father Raicharan Nath, as a share of his ancestral property. Having held so the learned trial Court had also gone on to conclude that the defendants side though have claimed that the suit land was jointly owned by the plaintiffs’ father Raicharan Nath and his brother Kanai Nath, have failed to prove the said fact by leading evidence. The defendants have also failed to prove the fact that the name of Jai Charan Nath have been entered in the record of right (Ext-5) by following the due process of law so as to establish the title of the defendants over the suit land. On the basis of such finding the trial Court had answered all the issues in favour of the plaintiffs thereby decreeing the suit. 9. On the basis of such finding the trial Court had answered all the issues in favour of the plaintiffs thereby decreeing the suit. 9. Being aggrieved by the judgment and decree dated 15.09.2001 passed by the learned trail Court in Title Suit No.210/1993 the defendants as appellants had preferred Title Appeal No.26/2001 before the Court of learned Civil Judge (Senior Division), Karimganj. By the judgment dated 24.05.2004 and decree dated 07.06.2004 the learned Lower Appellate Court had dismissed the appeal filed by the defendants thereby affirming the judgment and decree passed by the trial Court in Title Suit No.210/1993. 10. Being aggrieved by the judgment and decree passed by the learned Lower Appellate Court in Title Appeal No.26/2001 the defendant Nos.1 and 2 as appellants have preferred the instant Second Appeal. It appears from the record that the Second Appeal was admitted by this Court by the order dated 07.03.2005. However, at the time of admission of the appeal no substantial question of law was framed by this Court. As such, by the order dated 20.06.2015 this Court had framed the substantial question of law after hearing the learned counsels for both parties which is quoted herein below :- “Whether the impugned judgments and decrees of the learned courts below are perverse to the evidence on record?” 11. Mr. M. H. Rajbarbhuiya, learned counsel for the appellants, submits that the findings recorded by the Court below are perverse to the evidence on record. By drawing the attention of this Court to the evidence of PW 1 Mr. Rajbarbhuiya submits that it is admitted case of the plaintiffs that the plot of land claimed by the defendants had been sold to them by means of a registered deed of sale by Smti. Sunita Devi i.e. the widow of Kanai Nath. Therefore, in view of the aforesaid admission made by PW 1 the case of the defendants stands fortified without any further evidence. He further submits that the defendants have adduced documentary evidence in the form of Ext-A which is the registered deed of sale by means of which the predecessor of the defendant Nos.1 and 2 had purchased the plot of land which is situated in the adjacent southern boundary of the plaintiffs’ land. The defendants are in possession of the said plot of land since past more than 30 years. The defendants are in possession of the said plot of land since past more than 30 years. As such, the plaintiffs cannot have any right, title and interest over the land measuring 2 kedars 2 jastis under the possession of the defendants/appellants and the said fact has also been duly admitted by the PW 1 during his cross-examination as well as the PW 3 at the time of adducing evidence. He, therefore, submits that there is no illegality in inclusion of the name of the defendants in Ext-5. He further submits that this is a fit case where the trial Court ought to have passed an order for demarcation of the land held by the plaintiff No.1 as well as the defendants since it is the admitted position of fact that both the parties are in possession of their respective plots of land which had been purchased by means of registered deed of sale. 12. Mr. N. Dhar, learned counsel for the respondent Nos.1 to 3, submits that the Courts below have recorded concurrent finding of fact by answering the issue Nos.3 and 4 in favour of the plaintiffs holding that the plaintiffs have been able to prove and establish their title over the suit land by producing documentary as well as oral evidence. On the contrary, the defendants, although have projected a story in the written statement regarding the purchase of the suit land, had not been able to prove and establish their version as has been rightly found by both the Courts below. He further submits that the counter claim made by the defendants had been rightly rejected by the trial Court while decreeing the suit filed by the plaintiffs. Further, since the contesting defendants did not prefer any appeal against the said order of rejection of the counter claim, as such, the substantial question of law urged by the appellants/defendant Nos.1 and 2 does not arise in the facts and circumstances of the present case and the instant appeal being devoid of merit is liable to be dismissed by this Court. 13. I have considered the submissions made by and on behalf of the parties and have gone through the materials on record. 13. I have considered the submissions made by and on behalf of the parties and have gone through the materials on record. A perusal of the record, more particularly the documents in the form of Exts-1, 2, 3 and 4, clearly goes to show that the title and possession of the plaintiff over the suit land has been proved and established on the basis of said documents. Ext-1 is the registered sale deed dated 06.10.1955 executed by Sri Pulin Bihari Deb Choudhury in favour of the father of the plaintiff No.1 Raicharan Nath. The said document had been produced from the custody of the plaintiff No.1 and the same is evidently a document which is more than 30 years old. As such, there cannot be any doubt as regards the genuineness of the said document nor has the said document been challenged by the defendants. A perusal of the Ext-1 goes to show that land measuring 6 kedars akin to the suit land had been purchased by Raicharan Nath from the jotedar Pulin Bihari Deb Choudhury. Exts-2, 3 and 4 also goes to show that the name of Raicharan Nath have been duly mentioned as jotedar in respect of land under Mohal Dawshana 16236/1 Taluk Murari Chandra Das and rent in respect of said land has also been paid by the plaintiff side. Such being the position, the plaintiff No.1 has also succeeded in leading evidence to show that pursuant to a partition amongst the family members in respect of the properties left behind by Raicharan Nath amongst his sons and daughters the suit land fell in the share of the plaintiff No.1. Therefore, the name of the predecessor of the plaintiff as entered in the final khatian appears to be genuine and as such the claim of plaintiff over dag No.825 pertaining to the land described in the schedule to the plaint stands substantiated. 14. It is pertinent to point out herein that the plaintiff No.1 claims title by virtue of purchase made by Raicharan Nath on the basis of Ext-1 registered deed of sale whereas the defendant Nos.1 and 2 are claiming title over the land measuring 2 kedars 2 jastis purchased by their predecessor from Sunita Devi by virtue of registered deed of sale Ext-A. Neither party has challenged their respective sale deeds. That apart, both the parties claim to be in possession of their respective plots of land and neither of them have any claim over each other’s land under their respective possession. It is also the admitted position of fact that the land occupied by the defendants is situated in the contiguous southern boundary of the suit land and the land occupied by the plaintiff No.1 is situated in the northern contiguous boundary of the land under the occupation of the defendant Nos.1 and 2. In that view of the matter, it is difficult to perceive as to what precisely is the controversy that needs to be resolved in this appeal since neither party have any claim in respect of each other’s plot of land. Be that as it may, as has been indicated herein before, on a threadbare examination of the materials available on record, I am of the opinion that finding of fact recorded in favour of the plaintiff by both the courts below are based on cogent evidence available on record. Therefore, the learned Court below has rightly decided the issues in favour of the plaintiff thereby decreeing the suit filed by the plaintiffs. 15. It might be the case that the PWs 1 and 3 have admitted that the defendants’ predecessor has purchased the land measuring 2 kedars 2 jastis from Sunita Devi by means of registered deed of sale. However, there is nothing to establish that the said plot of land forms part of the land purchased by Raicharan Nath by means of sale deed Ext-1 since the written statement does not indicate any description of the said plot of land by furnishing the dag nos., patta nos. as well as the boundary. Be that as it may, since the counter claim of the defendants have already been rejected by the Courts below it would not be necessary for this Court to go any deeper into that aspect of the matter. 16. In view of what has been discussed herein before, I am of the opinion that this appeal is devoid of any merit and the same must fail. Accordingly, this Second Appeal stands dismissed. However, having regard to the facts and circumstances of the case, there would be no order as to cost. Registry to transmit the LCR as expeditiously as possible.