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2015 DIGILAW 966 (GAU)

Kameswar Deka v. Surendra Deka

2015-08-05

SUMAN SHYAM

body2015
1. Heard Mr. D. Choudhury, learned counsel appearing for the appellant, i The respondents' counsel submits that they are not in touch with the clients and the record is also not available with them. Hence, they submits that this court may pass appropriate order as per the materials available on record. 2. This second appeal has been filed against the concurrent judgment and decree dated 28.5.2004 passed by the learned Civil Judge (Sr. Div.), Nalbari in Title Appeal No. 02/2003 dismissing the appeal filed by the plaintiff/appellant thereby affirming the judgment and decree dated 27.11.2002 passed by the learned Civil Judge (Jr. Div.) No. 1, Nalbari in Title Suit No. 06/1999. 3. The fact of the case as projected in the plaint is that the land described in Schedule-'Ka' of the plaint is the ancestral property of the plaintiff's father. After the death of the plaintiff's father in the year 1994, the b brothers of the plaintiff, i.e., proforma defendant Nos. 7, 8, 9 and 10 together with the plaintiff had inherited the Schedule 'Ka' land, whereafter, their names have also been duly mutated in respect there of in the revenue records. Since the plaintiff had been in possession of the suit land by constructing residential house thereupon, the other brothers c of the plaintiff had relinquished their right over the suit land by executing a registered deed on 15.11.1994. It is the case of the plaintiff that the contesting defendant were never in possession of the suit land but notwithstanding the same they filed a mutation case bearing No. 19/97-98 in the office of the Circle Officer, Tihu praying for mutation of their j name in respect of suit land on the basis of a registered deed of sale dated 27.10.1981 described in Schedule 'Kha' of the plaint. The plaintiff submits that initially the learned Circle Officer passed an order dated 18.12.1997 allowing the prayer of the defendant No. 1 for mutation. The plaintiff had preferred an appeal before the Deputy Commissioner, Nalbari against the said order dated 18.12.1997 whereby the learned Deputy Commissioner, Nalbari had set aside the order of the Circle Officer, Tihu. The plaintiff submits that initially the learned Circle Officer passed an order dated 18.12.1997 allowing the prayer of the defendant No. 1 for mutation. The plaintiff had preferred an appeal before the Deputy Commissioner, Nalbari against the said order dated 18.12.1997 whereby the learned Deputy Commissioner, Nalbari had set aside the order of the Circle Officer, Tihu. The plaintiff further submits that it is in connection with the mutation case that the defendant No. 1 had exhibited the certified copy of the sale deed dated 27.10.1981 which was allegedly executed by one Haro Ram Kalita in his favour and the defendant No. 1 is claiming title over the suit land of the basis of said sale deed. The plaintiff had categorically stated in the plaint that the father of the plaintiff was late Hareswar Deka. Hareswar Deka and Haro Ram Kalita are not the same persons. He had further averred in the plaint that his father had never executed any deed in respect of the suit land in favour of anybody and, 8 therefore, the plaintiff had instituted the suit praying for a decree declaring that the sale deed bearing No. 206/1981 dated 27.10.1981 is a fraudulent document; for confirmation of possession and for permanent injunction. 4. Upon receipt of summons in connection with the case, the defendant Nos. 1 to 6 contested the suit by filing their joint written statement wherein it has been averred that the defendant No. 1 had purchased the suit land by means of a registered deed of sale bearing No. 206/1981 on 27.10.1981 for a consideration of Rs. 200 from Haro Ram Kalita, i.e., the father of the plaintiff. It is also the case of the defendants that after the sale, Haro Ram Kalita had delivered the possession of the land to the a defendant No. 1 and since then the defendant No. 1 is in possession of the suit land peacefully. On the basis of such pleadings, the defendant prayed for dismissal of the suit. 5. Based on the pleadings of the parties the learned trial court had framed the following issues : "1. Whether there is cause of action for the suit? 2. Whether the suit is barred by provisions of limitation? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the suit is bad for mis-joinder of cause of action? c 5. Whether the suit properly valued? Whether there is cause of action for the suit? 2. Whether the suit is barred by provisions of limitation? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the suit is bad for mis-joinder of cause of action? c 5. Whether the suit properly valued? 6. Whether plaintiff got right, title and interest over Schedule 'Ka' of plaint? 7. Whether plaintiff is entitled to cancellation of regd. deed dated 27.1.1981 at Tihu Sub-Registry Office? 8. To what other relief/reliefs parties are entitled to? 6. In course of hearing, the plaintiff had examined three witnesses whereas the defendant side had examined four witnesses. After going through the evidence on record and upon hearing the learned counsel for the parties, the learned Civil Judge (Jr. Div.) No. 1, Nalbari had dismissed the Title Suit No. 06/1999 filed by the plaintiff, inter alia, by holding that the plaintiff's suit was barred by limitation. 7. Being aggrieved by the judgment and decree dated 29.11.2002 as well as 4.12.2002 passed by the learned Civil Judge (Jr. Div.) No. 1, Nalbari, the plaintiff as appellant had preferred Title Appeal No. 02/2003 before the Civil Judge (Sr. Div.), Nalbari. The learned lower Appellate Court had also dismissed the appeal filed by the present appellant thereby affirming the judgment and decree passed by the trial court. 8. Being aggrieved by the judgment and decree passed by the learned lower Appellate Court in Title Appeal No. 02/2003, the plaintiff as appellant had preferred the instant second appeal which was admitted for hearing by framing the following substantial questions of law : (1) Whether in a suit, the sale deed challenged as fraudulent and concealed fraudulently, the limitation shall not begin to run until the same could be discovered a per section 17 and article 59 of the Limitation Act, 1963 and whether under the law the suit is filed within time, i.e., within three years from the date of knowledge of the fraudulent sale deed? (2) Whether the evident of Ext.3 establishes the relinquishment on 15.11.1994, i.e., after death of the father, and if so whether the findings of Civil Judge, Junior Division, Nalbari is perverse? (3) Whether the Endings that the defendants came to possession of the suit land after purchase of the same in 1981 by defendants is perverse? 9. Mr. (2) Whether the evident of Ext.3 establishes the relinquishment on 15.11.1994, i.e., after death of the father, and if so whether the findings of Civil Judge, Junior Division, Nalbari is perverse? (3) Whether the Endings that the defendants came to possession of the suit land after purchase of the same in 1981 by defendants is perverse? 9. Mr. D. Choudhury, learned counsel for the appellant submits that the issue No. 2 on the point of limitation has been erroneously decided by both the courts below holding the suit to be barred under the law of limitation merely by taking cognizance of an averments made in the plaint that the cause of action arose on 27.1.1981 which is the date of the registered deed of sale bearing No. 206/1981. Mr. Choudhury submits that it has been the consistent plea of the plaintiff that he had come to know about the registered deed of sale bearing No. 206/1981 only when the defendant No. 1 had produced the certified copy of the sale deed in connection with the mutation case bearing No. 19/97-98 in the court of learned Circle Officer, Tihu. The said fact has also been mentioned in the plaint. The suit having been instituted in the year 1999, the same was not barred under law of limitation having been instituted within a period of three years from the date of knowledge regarding the execution of the registered deed of sale bearing No. 206/1981. 10. Mr. Choudhury further submits that despite the specific denial on the part of the plaintiff/appellant to the effect that Haro Ram Kalita and Hareswar Deka are two different persons, the learned courts below have recorded finding in respect of issue No. 6 in favour of the defendants and against the plaintiff. However, the courts below have not recorded any finding as regards the question of possession of the defendant over the suit land. Even assuming that the registered deed of sale dated 27.10.1981 was executed by the father of the plaintiff in favour of defendant No. 1, even then, unless it is proved that the possession of the land was delivered to the defendant No. 1 pursuant to the sale and that the defendant No. 1 in fact was in continuous physical possession, no valid title can be conferred upon the said defendant No. 1 by virtue of such alleged sale deed. Since the plaintiff has prayed for a decree of confirmation of possession and on account of the fact that the defendant have failed to prove and establish their possession over the suit land by leading cogent evidence, hence, the learned court below had committed manifest illegality in dismissing the suit filed by the plaintiff without recording the findings as regards the possession of the defendant over the suit land. 11.I have considered the submission made by Mr. Choudhury and also gone through the records of the case. It is a fact that the plaintiff had taken a categorical stand that he had come to know about the registered deed of sale only when the certified copy of the same was produced by defendant No. 1 in connection with the mutation case bearing No. 19/ 97-98. There is nothing on record to show that the plaintiff had knowledge a of execution of the sale deed on any date prior to period claimed by the plaintiff. It is correct that under article 56 of the Limitation Act, 1963 a suit for declaring an instrument as void on the ground of forgery is required to be filed within a period of three years. A perusal of the statement made in the plaint shows that the cause of action arose on 27.10.1981 and on the subsequent dates, i.e., 8.11.1997, 24.8.1998 and 25.1.1999. It appears that the date 27.10.1981 had been mentioned merely because that is the date of the execution of the sale deed. The learned trial court appears to have failed to consider the aforesaid statement made in the plaint in its proper perspective having due regard to the facts and circumstances of the case. In that view of the matter, the finding recorded by the court below to the effect that the plaintiff's suit was barred by limitation appears to be perverse and hence, not sustainable in the eye of law. 12. As regards the question of right, title and interest of the plaintiff j over the Schedule-'Ka' land is concerned, the said issue was discussed under issue No. 6 framed by the court. I have perused the findings of both the courts below recorded in connection with issue No. 6. 12. As regards the question of right, title and interest of the plaintiff j over the Schedule-'Ka' land is concerned, the said issue was discussed under issue No. 6 framed by the court. I have perused the findings of both the courts below recorded in connection with issue No. 6. From an examination of the judgments and order of the lower Appellate Court it appears that the court below had not recorded any finding as regards the possession of the parties over the suit land. It is not in dispute that the name of the plaintiff had been recorded in the revenue records along with his brothers soon after the death of his father in the year 1994. On the contrary, although the defendant No. 1 claims to have purchased the suit land by means of a registered deed of sale executed in the year 1981, yet, evidently, no attempt to get his name mutated in the revenue records had been made prior to the year 1997. There is no explanation from the side of the defendant as to why he had to wait for so long for seeking mutation of his name in respect of the suit land. Since mutation raises a rebuttable presumption in favour of possession of the person in respect of the suit land, and having regard to the fact that the actual physical possession over the land by the parties to the proceeding would have a relevant bearing in deciding the competing claim of the plaintiff as well as defendant No. 1 as regards acquisition of title over the suit land, I am of the opinion that in the absence of proper finding recorded by the court below as regards possession of the parties, the issue No. 6 cannot be decided conclusively. 13. In such view of the matter, I am of the view that the finding of the court below in respect of issue No. 6 is not sustainable in the eye of law and deserves to be interfered with. In view of what has been observed hereinbefore, I am of the considered opinion that this is a fit case where impugned judgment and decree is liable to be set aside and the first appeal be remanded back for fresh decision by lower Appellate Court on the basis of materials available on record. It is ordered accordingly. 14. In view of what has been observed hereinbefore, I am of the considered opinion that this is a fit case where impugned judgment and decree is liable to be set aside and the first appeal be remanded back for fresh decision by lower Appellate Court on the basis of materials available on record. It is ordered accordingly. 14. The First Appellate Court may recast the issue, if necessary, after hearing the parties, for the purpose of a just decision of the real issues in controversy in the suit. The parties would now appear before the lower Appellate Court on 24.8.2015. In view of the submission made by the learned counsel representing the respondent, the learned Appellate Court may issue notice upon the respondents/defendants in connection with the appeal. In view of the order passed today the Title Appeal No. 02/ 2003 would stand restored in the file of Civil Judge (Sr. Div.), Nalbari. An attempt may be made by the lower Appellate Court to dispose of the appeal as expeditiously as possible, preferably within a period of six months without being influenced by any observation made hereinbefore. This appeal stands disposed of accordingly. However, no order as to cost. Registry to transmit the LCR as expeditiously as possible.