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2015 DIGILAW 980 (GAU)

Ramdhani Chouhan v. Karna @ Karnadhar Mazumdar

2015-08-07

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. P. Khataniar, learned counsel for the appellants. There is no appearance on behalf of the respondents on both the dates of hearing. 2. The second appeal is presented against the judgment and decree dated 28.07.2005 passed by the learned Civil Judge (Sr. Divn.), Nagaon in Title Appeal No.19/2003, dismissing the appeal and upholding the judgment and decree dated 15.03.2003 passed by the learned Civil Judge (Jr. Divn.), Hojai in Title Suit No.10/1999, decreeing the suit. 3. The plaintiff filed the suit for declaration of right, title and interest in respect of 10 Bigha of land out of which, 8 Bigha covered by Dag No.15 and 2 Bigha in Dag No.16 appertaining to Periodic Patta No.53 of Matikhola Kisamat of Jugijan Mouza in Nagaon District for recovery of khas possession of the suit land, permanent injunction etc. 4. The pleaded case, in short, as projected in the plaint is that the plaintiff had purchased the suit land by a registered sale-deed dated 21.05.1983 executed by one Deo Narayan Nunia @ Chouhan and he was put in possession of the land sold. The land is in one block and the boundaries are also given in the Schedule to the plaint. It is also averred that in the sale-deed, Dag No.15 had been inadvertently mentioned as Dag No.25. The vendor died in the year 1988. Consequent upon purchase of the land, his name was also entered in the record of rights. The principal defendant No.1 is the son-in-law and principal Defendant No.5 is the daughter of Deo Narayan Nunia and principal defendant Nos.2 to 4 are their sons. Two sons of Deo Narayan Nunia were also impleaded as pro forma defendant Nos.6 and 7 along with another person as pro forma defendant No.8. They were sought to be dispossessed on 17.07.1998 as well as in the month of February, 1998 by the principal defendant Nos.1 to 5. However, such attempts were thwarted. Subsequently, by way of amendment of the plaint, it was pleaded that on 25.03.2000, the principal defendants dispossessed the plaintiff. They were sought to be dispossessed on 17.07.1998 as well as in the month of February, 1998 by the principal defendant Nos.1 to 5. However, such attempts were thwarted. Subsequently, by way of amendment of the plaint, it was pleaded that on 25.03.2000, the principal defendants dispossessed the plaintiff. By way of amendment of the plaint, it was also brought on record that on the date of execution of the sale-deed on 21.05.1983, the plaintiff had executed a registered Deed of Agreement promising to convey the said land to Deo Narayan Nunia on repayment of Rs.9995.00 within 3 years from the date of execution of the deed of agreement. However, Deo Narayan Nunia did not take any steps for specific performance of contract during his lifetime. The stand taken in the written statement by the defendants apart from various legal pleas was that Deo Narayan Nunia never sold the suit land, but admitted that he had approached the plaintiff for loan of Rs.9995.00 and the plaintiff had lent the said amount to Deo Narayan Nunia @ Chouhan on 21.05.1983 and he mortgaged the said land to the plaintiff as security for the loan and accordingly, had executed a registered sale-deed on 21.05.1983 with a condition that the plaintiff will reconvey the said land. The plaintiff had also executed a registered Deed of Agreement on 21.05.1983 being registered deed No.3707 incorporating a condition that he would reconvey the land on repayment of loan of Rs.9995.00. However, despite many requests made by Late Deo Narayan Nunia, the land was not reconveyed. It was also pleaded that possession of the suit land was not delivered to the plaintiff by Late Deo Narayan Nunia and that the suit land was possessed by the principal defendant No.1, who became a “Ghar Jamai” (a son-in-law, who resides voluntarily in the house of father-in-law). He had planted jackfruits and constructed a house in Dag No.16. In the additional written statement filed consequent upon the amendment of the plaint, it is averred that plaintiff had no possession and he cooked up the story of his possession. 5. On the basis of the pleadings, the learned Trial Court had framed the following issues:- “1. Whether the suit is maintainable ? 2. Whether the suit is barred by limitation ? 3. Whether the suit is bad for defects of the parties ? 4. 5. On the basis of the pleadings, the learned Trial Court had framed the following issues:- “1. Whether the suit is maintainable ? 2. Whether the suit is barred by limitation ? 3. Whether the suit is bad for defects of the parties ? 4. Whether the plaintiff has right, title and interest over the suit land ? 5. Whether the plaintiff was in possession of the suit land and he was dispossessed therefrom on 25.03.2000 by the defendant ? 6. Whether the plaintiffs are entitled to the decree as prayed for ?” 6. During trial, plaintiff examined 3 witnesses and the defendants examined 5 witnesses. Both the parties exhibited documents in support of their respective cases. 7. As noticed earlier, the learned Trial Court decreed the suit of the plaintiff which was also affirmed by the learned lower Appellate Court. 8. By an order dated 08.06.2009, the appeal was admitted to be heard on the following substantial questions of law: “1. Whether the plaintiff had any existing or subsisting right, title and interest over the suit land despite the fact that the sale deed purported to have been made in favour of the plaintiff was in respect of Dag No.25 and not the suit land which is covered by Dag No.15? 2. Whether the Court’s below misread the evidence on record or mis applied the evidence on record in proper perspective vitiating the entire proceedings before the said learned Courts ? 3. Whether the impugned First Appellate Judgment is sustainable for not having independently evaluating the evidence on record and in not following the provisions of Order 41 Rule 31 CPC in pronouncing the Judgment ?” 9. Mr. Khataniar has submitted that the impugned judgment of the learned lower Appellate Court does not conform the requirements of Order 41 Rule 31 CPC as evidence on record was not evaluated independently. It is submitted that it is obligatory on the part of the learned lower Appellate Court to independently assess the evidence on record which is not the case herein. No finding with regard to dispossession was also recorded and therefore, grant of decree for khas possession is also not sustainable in law, he submits. He has further submitted that finding with regard to possession of the plaintiff is perverse to the evidence on record. Further submission of Mr. No finding with regard to dispossession was also recorded and therefore, grant of decree for khas possession is also not sustainable in law, he submits. He has further submitted that finding with regard to possession of the plaintiff is perverse to the evidence on record. Further submission of Mr. Khataniar is that in view of admitted discrepancy in the sale-deed in question, no right, title and interest could have been declared in favour of the plaintiff in respect of the suit land. 10. I have considered the submissions of Mr. Khataniar and have perused the evidence on record. 11. The learned courts below negated the contention of the defendants that suit land was mortgaged and held that Ext-1 is a sale-deed executed by Deo Narayan Nunia in favour of the plaintiff. It is also noticed that principal defendants, in the additional written statement had admitted with regard to execution of a deed on 21.05.1983 as a sale-deed. In view of the recitals in Ext-1, the learned courts below were correct in holding that suit was sold and not mortgaged as sought to be contended by the defendants in the written statement. It is also relevant to note that there was no recital of reconveyance in the said Ext-1. Period of 3 years as indicated in the deed of recoveyance dated 21.05.1983 had long expired prior to the death of Deo Narayan Nunia in the year 1988 and there is no dispute that no steps, recognized in law, were taken by Deo Narayan Nunia for obtaining reconveyance of the land. Notwithstanding the deed of reconveyance executed by the plaintiff, the right, title and interest of Deo Narayan Nunia stood transferred in favour of the plaintiff and plaintiff had the right, title and interest in respect of land sold. 12. In the additional written statement, as indicated earlier, the principal defendants had admitted that Deo Narayan Nunia had executed a registered sale-deed in respect of the suit land and therefore, it is crystal clear that there is no dispute with regard to the suit land, bounded on 4 sides with specific description. When the boundaries are clear and not disputed, wrong mentioning of the Dag number in the sale-deed cannot defeat the claim of the plaintiff. Name of the plaintiff was also mutated vide Ext-2 in Dag No.15 and Dag No.16 in place of Deo Narayan Nunia. When the boundaries are clear and not disputed, wrong mentioning of the Dag number in the sale-deed cannot defeat the claim of the plaintiff. Name of the plaintiff was also mutated vide Ext-2 in Dag No.15 and Dag No.16 in place of Deo Narayan Nunia. Mutation is effected on the basis of title and possession and under Section 40 and 41 of the Assam Land and Revenue Regulation, 1886, entries in the records of rights are deemed to be correct unless the contrary is proved. In view of the above position, when there is no dispute with regard to the identity of the suit land, I find no force in the submission of Mr. Khataniar that plaintiff was not entitled to grant of declaration of right, title and interest in respect of Dag No.15 as the sale-deed mentioned Dag No.25 only. It has also not been brought on record that the vendor Deo Narayan Nunia had land in Dag No.25. Accordingly, the substantial question of law No.1 is answered against the appellant. 13. Though Mr. Khataniar had argued that finding with regard to possession is perverse, the learned counsel was unable to point out the evidence which would have persuaded the court to agree with his submission. Ext-1, sale-deed, clearly says that possession was delivered to the plaintiff. PW-2 also states that he was present at the time of delivery of possession. Both he and PW-3 also state that plaintiff was cultivating the suit land. Plaintiff in his evidence had also stated that he was in possession until dispossessed and he was cultivating sugarcane. It is to be borne in mind that the sale-deed was executed by none other than the father of defendant No.5 with a clear recital that delivery of possession was also effected. Evidence of defence witnesses were also considered. DW-1, in a remarkable shift from the stand taken in the written statement, had deposed that the suit land was orally gifted to him. There is no semblance of any right, title and interest of the defendants in respect of the suit land. The defendants in their written statement had also not taken any plea of adverse possession. DW-1, in a remarkable shift from the stand taken in the written statement, had deposed that the suit land was orally gifted to him. There is no semblance of any right, title and interest of the defendants in respect of the suit land. The defendants in their written statement had also not taken any plea of adverse possession. When the plaintiff has been able to establish his right, title and interest, the plaintiff will be entitled to recover possession of the land from which he has dispossessed in absence of a plea of adverse possession set up and established by the defendants. Therefore, I am of the view that the substantial question of law No.2 also requires to be answered against the appellant. 14. This takes the Court to the third substantial question of law. The impugned judgment of the learned lower Appellate Court is a judgment of affirmation of the judgment of the learned Trial Court. The first Appellate Court being final court of facts, it is incumbent on the appellate court to consider the evidence adduced by the parties and documents exhibited. In a case where the appellate court agrees with the view of the trial court on the evidence, it may not be necessary for the appellate court either to reiterate the reasons given by the trial court or to reaffirm the effect of the evidence. In such a case, expressions of general agreement with the reasoning given in the judgment which is under challenge before the appellate court would normally suffice. In the case of affirmation of a judgment appealed against, the reasoning offered by the trial court can be said to be the view or reasons of the appellate court. However, when it is a case of judgment of reversal, the learned appellate court is required to independently assess the evidence on record. 15. The impugned judgment of the learned lower Appellate Court goes to show that the learned lower Appellate Court had summarized the evidence on record and only thereafter had concurred with the finding of the learned Trial Court and therefore, it cannot be said that the impugned judgment of the learned lower Appellate Court does not satisfy the requirements of Order 41 Rule 31 CPC. 16. The third substantial question of law having also been answered against the appellant, resultantly, the appeal has to be dismissed and accordingly, the same is dismissed. 16. The third substantial question of law having also been answered against the appellant, resultantly, the appeal has to be dismissed and accordingly, the same is dismissed. 17. The judgments and decrees of the learned courts below are upheld. No cost. 18. Registry will send back the records forthwith.