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2015 DIGILAW 98 (GAU)

Hanif Ali v. Alok Kumar Roy

2015-01-31

SUMAN SHYAM

body2015
JUDGMENT : Suman Shyam, J. 1. The second appeal has been directed against the judgment dated 21.11.2002 and decree dated 04.12.2002 passed by the learned Civil Judge, (Senior Division) No. 2, Guwahati in Title Appeal No. 01/2000 decreeing the suit filed by the plaintiff by reversing the judgment and decree dated 14.10.1999 passed by the learned Civil Judge (Junior Division) Pragjyotispur in 111 T.S. No. 66/1996, subsequently, re-numbered as T.S. No. 10/1999. The second appeal was admitted vide order dated 07.02.2003 to be heard on the following substantial questions of law:-- "(1) Whether a suit can be decreed against the defendant/appellant when the defendant is in occupation of a plot of land which is not the land in the suit? (2) Whether the 1st Appellate Court acted as per law in not remanding the suit to the Trial Court for ascertaining the location of the suit land? (3) Whether in view of the clear finding of the Trial Court that the suit is not maintainable due to wrong description of the suit land, the Appellate Court acted as per law in reversing the said finding? (4) Whether 1st Appellate Court was justified in admitting the copy of the land revenue receipt as evidence (Exhibit-2) in absence of the original receipt? (5) Whether the suit is barred by limitation has found by the trial Court and whether the 1st Appellate Court is justified in reversing the said finding without any evidence on record?" The plaintiff's case in brief is that he is the recorded pattadar and was possessing the suit land measuring 3 kathas 14 lechas covered by Dag No. 1, K.P. Patta No. 1 of Bonda F.S. grant No. 2, Mouza-Beltola, since a long time. However, the defendant Nos. 1 and 2 had forcibly trespassed into the suit land in the month of July, 1994 and dispossessed the plaintiff, thereby, raising ek-chali house over the suit land. The plaintiff informed the matter to the police and at the timely intervention of the police, managed to push the defendants out of the suit land. However, the defendant Nos. 1 and 2 had forcibly trespassed into the suit land in the month of July, 1994 and dispossessed the plaintiff, thereby, raising ek-chali house over the suit land. The plaintiff informed the matter to the police and at the timely intervention of the police, managed to push the defendants out of the suit land. But subsequently, defendants had again entered into the suit land and constructed some thatched houses thereupon as a result of which the plaintiff was compelled to institute a proceeding under Section 145/146 of the Cr.P.C. Thereafter, the plaintiff filed the suit for declaration of his right, title and interest and for confirmation of possession over the suit land, praying for an alternative relief for recovery of possession in respect of the suit land in the event, he is found to have been dispossessed. 2. The suit filed by the plaintiff was contested by the defendant No. 1, by filing his written statement whereby the defendant has denied and disputed the claims made in the plaint. The projected case of the defendant No. 1 is that the suit land measuring about 2 bighas covered by Dag Nos. 21, 22 and 23 of K.P. Patta No. 1 Bonda F.S. No. 2, Mouza Beltola, originally belonged to its recorded pattadar, Sri Jadulal Mukherjee, Dhirendralal Mukherjee and Nirendralal Mukherjee. The aforesaid plot of land had been purchased by one Manu Gogoi from its recorded pattadars and subsequently, the defendant No. 1 purchased the possessory right in respect of the suit land from Manu Gogoi. It is the specific case of the defendant that he has been in continuous physically possession of the suit land since 1984 and therefore, the claim made by the plaintiff in the plaint is completely without any basis. 3. On the basis of the pleadings of the parties, the learned trial Court framed as many as 4 (four) issues:- "(1) Whether the plaintiff has right, title and interest over the suit land? (2) Whether the suit is barred by limitation? (3) Whether the suit is bad for non-joinder of necessary parties? (4) Whether the plaintiff is entitled to the relief prayed for in the plaint and/or any other relief?" 4. The plaintiff side examined 4 witnesses and exhibited some documents whereas the defendant had examined four witnesses. Ex. (2) Whether the suit is barred by limitation? (3) Whether the suit is bad for non-joinder of necessary parties? (4) Whether the plaintiff is entitled to the relief prayed for in the plaint and/or any other relief?" 4. The plaintiff side examined 4 witnesses and exhibited some documents whereas the defendant had examined four witnesses. Ex. 1 is the copy of jamabandi pertaining to K.P. patta No. 1 which have been produced by the plaintiff in support of his claim of title over the suit land. Ex. 2 is the series of revenue receipts. The order dated 03.01.1997 passed in case No. 586m/1996 in connection with the proceeding drawn under Section 145/146 Cr.P.C. had been exhibited by the plaintiff as Ex. 3, whereas, the Ex. 4 is the written statement filed by the DW.1 in connection with the said case. The plaintiff relied upon the oral testimony of the witnesses and the aforementioned documents to established his claim for declaration of right, title and interest as well as recovery of possession in respect of the suit land. On discussing the materials available on record, the learned trial court answered all the issues against the plaintiff by holding that the plaintiff has not been able to prove and establish his right, title and interest over the suit land. The learned trial court has also held that the plaintiff's suit was barred by limitation. Being aggrieved by the said judgment and decree passed by the learned trial court, the respondent plaintiff preferred Title Appeal No. 01/2000 in the Court of Civil Judge (Senior Division) No. 2, Guwahati. By the impugned judgment and decree, the learned Civil Judge, (Senior Division) No. 2, allowed the title appeal filed by the respondent plaintiff by answering the issue Nos. 1 and 2 in favour of the plaintiff by holding that the plaintiff has been able to prove and establish his claim of title over the suit land and also that the suit was not barred by limitation. Being aggrieved by the aforesaid judgment and decree passed by the learned First Appellate Court, the defendant No. 1, appellant has preferred the instant second appeal. 5. I have heard Mr. N. Deka, learned counsel appearing for the appellant/defendant No. 1. Also heard Mr. S. Das, learned counsel appearing for the respondent/plaintiff. Being aggrieved by the aforesaid judgment and decree passed by the learned First Appellate Court, the defendant No. 1, appellant has preferred the instant second appeal. 5. I have heard Mr. N. Deka, learned counsel appearing for the appellant/defendant No. 1. Also heard Mr. S. Das, learned counsel appearing for the respondent/plaintiff. While pointing out the findings recorded by the learned First Appellate Court in respect of issue No. 1, Mr. Deka submits that the learned Appellate Court has committed manifest illegality in declaring the title of the plaintiff over the suit land without recording any findings as to how the plaintiff had acquired such title over the suit land. Mr. Deka submits that the Plaintiff had failed to either specifically plead or lead cogent evidence to prove and establish his case. 6. Per-contra Mr. S. Das, submits that the plaintiff has exhibited the jamabandi and also the revenue paying receipts in support of his claim that he has been in possession of the suit land for a long period of time. Therefore, there is no illegality or infirmity in the judgment and decree passed by the learned First Appellate Court. 7. I have considered the submissions made by the learned counsel for the parties and also examined the records. On perusal of the plaint, I find that in the pleadings nothing has been mentioned to indicate as to from where the plaintiff has inherited/acquired the suit land. There is no averment showing the flow of title in the plaint Although the plaintiff has claimed to be the owner of various other plots of land including the suit land covered by different dags of patta No. 1 of Bonda F.S. grant No. 2 Mouza-Beltola, yet there is nothing in the pleadings to indicate as to which are those plots, who were the original pattadars from whom the plaintiff has acquired title or as to in what manner he acquired the title. Not only has the plaintiff/respondent failed to plead such relevant facts but he has also failed to adduce any evidence on record to show that he has even a semblance title over the suit land. 8. It is settled law that irrespective of the stand taken by the defendant in the written statement, it is the burden of the plaintiff to prove and establish his case by leading evidence. 8. It is settled law that irrespective of the stand taken by the defendant in the written statement, it is the burden of the plaintiff to prove and establish his case by leading evidence. In the present case the plaintiff has neither pleaded the facts to show the flow of title nor has he produced any evidence whatsoever to establish his title over the suit land. The learned First Appellate Court appears to have decreed the suit of the plaintiff by reversing the judgment and decree of the learned trial court by merely taking cognizance of jamabandi (Ex-1). However, on perusal of the Jamabandi, it can be seen that the name of the plaintiff appears therein along with several other pattadar for K.P. Patta No. 1. Even the dag number mentioned against the plaintiff's name does not tally with the dag No. of the suit land. There is absolutely no nexus of Ex. 1 to the suit land except that the patta number is same. Ex. 2, series of revenue paying receipts which have been relied upon by the plaintiff/respondent are also obtained at least 3 to 4 years after the date on which the alleged dispossession of the plaintiff had happened and as such the same could not have afforded any reasonable basis to conclude that the plaintiff respondent was in fact in possession of the suit land on the date of alleged dispossession. 9. On perusal of Ex-3, order dated 03.01.1997 it is found that instead of establishing the claim of the plaintiff the said document goes to show that the land in possession of the defendant No. 1 is covered by dag No. 21 of patta No. 1 and that it was the defendant No. 1 who is in actual physical possession of the said land. It is the settled law that mutation alone does not confer right, title and interest over a land. Since the plaintiff's suit was one for confirmation/recovery of possession based on declaration of right, title and interest over the suit land there was heavy burden cast upon the plaintiff to specifically plead and establish his case by leading cogent evidence on record in support of such pleadings. Since the plaintiff's suit was one for confirmation/recovery of possession based on declaration of right, title and interest over the suit land there was heavy burden cast upon the plaintiff to specifically plead and establish his case by leading cogent evidence on record in support of such pleadings. From the materials on record, it is found that the plaintiff has completely failed to discharge his burden under Section 101, 102 of the Evidence Act Such being the position, the impugned judgment and decree passed by the lower appellate Court is not sustainable in the eye of law and as such, the same is hereby set aside. The plaintiff's suit is dismissed. The second appeal accordingly stands allowed. However, having regard to the facts and circumstances of the case, there will be no order as to cost.