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2016 DIGILAW 1065 (GAU)

Lily Borah v. Robindra Nath Sharma

2016-11-28

KALYAN RAI SURANA

body2016
JUDGMENT AND ORDER : Kalyan Rai Surana, J. Heard Mr. A. Das, learned counsel for the appellant. Also heard Mr. S.S. Dey, learned Senior Counsel appearing for the respondent assisted by Ms. A. Bhattacharjee, learned counsel. This appeal is preferred by the plaintiffs, whose suit i.e. T.S. No.172/2006 was dismissed. For the sake of convenience, the parties are arrayed as plaintiffs and defendants as arrayed in the suit. 2. At the outset, Mr. Das, learned counsel for the appellants has submitted for consideration of this Court, the below Substantial Question of law, which he submits, would emerge on the perusal of the records. Those questions are:- (a) Whether the finding of the learned Court below is vitiated by non-consideration of Ext. Cha i.e. Sale Deed dated 22.10.1981 as well as wrong appreciation facts pertaining to the date of purchase of the suit land by the predecessor of the appellant? (b) Whether the finding of the learned Court below is in contravention of Regulation 41 (2) of the Assam Land Revenue Regulation, 1886 while appreciating Ext. Dha? 3. In order to substantiate his stand, Mr. Das, learned counsel for the appellants has projected that on an earlier occasion, he had filed Title Suit No. 42 of 2000 against Biman Goswami, S/o. Kalyan Goswami in the Court of Civil Judge (Senior Division), Nagaon. In the plaint of that suit, he projected that the suit was decreed ex-parte declaring the right, title interest and for appointment of a Survey Commission for partition as per the Preliminary decree passed in the said suit. He submitted that the judgment passed on 28.05.2004 in the said T.S. No. 42/2000 had attained finality as no appeal was preferred. 4. He also submits that the plaintiffs' case is that a Commission for Survey was appointed to Survey the suit land covered by Dag No.163 of P.P No.27, for partition as per the decree dated 28.05.2014 in Title Suit No.42/2000 and the writ was issued to the Circle Officer, Nagaon in this regard. The Commission measured the suit land and prepared a field book and submitted his report before the court of Civil Judge (Senior Division), Nagaon, and at that stage, it had came to his notice that by that time, the suit land was in possession of the defendant and he had even constructed a RCC building thereon. The Commission measured the suit land and prepared a field book and submitted his report before the court of Civil Judge (Senior Division), Nagaon, and at that stage, it had came to his notice that by that time, the suit land was in possession of the defendant and he had even constructed a RCC building thereon. In the plaint, the suit land consists of land measuring 1 katha out of 2 bigha- 1 katha- 1 lecha, covered by Dag No.163 of Periodic Patta No. 27 situated in Nortom Kissam under Town Mouza, District-Nagaon. Further, Mr. Das projects that a separate patta for the suit land along with another 5 lechas of land, total land measuring 1 katha- 5 lechas was decreed in the name of the defendant under Patta No. 679 with new Dag No. 1187. He has projected that as the defendant has trespassed into the suit land, he has filed T.S. No. 172/2006 before the Court of Munsiff No.1, Nagaon, inter-alia, praying for declaration of right, title and interest of the plaintiff in respect of the suit land, recovery of the suit land from the defendants by removing all constructions, and for a decree for a permanent injunction against the defendant with cost. 5. By taking this Court through the evidence on record, Mr. Das submits that his predecessor-in-interest had purchased the suit land by virtue of Deed No.6222 (Ext.1), dated 14.06.1973. As per the schedule of his sale deed, it appears that 1 katha land out of 2 bigha- 1 katha- 1 lecha under Dag No.163, Periodic Patta No.27 was sold and he projects that by Ext.2, i.e., jamabandi, the suit land is shown to be mutated in the name of the vendor of his predecessor-Kalyan Goswami, whose name is recorded in the original pattadar and also projects that the plaintiff's predecessor had purchased 1 katha land on 14.06.1973 and by relying on Ext.4 and Ext.5. Mr. Das submits that the said report constitutes evidence to prove that the defendant, Sri Rabindra Nath Sarma had taken over the possession of the suit land came to the plaintiffs notice for the first time. Mr. Das submits that the said report constitutes evidence to prove that the defendant, Sri Rabindra Nath Sarma had taken over the possession of the suit land came to the plaintiffs notice for the first time. He submits that the plaintiff had duly proved his title and that there is no basis for the learned courts below to accept that the defendant had derived title over the suit land from Anupama Chakraborty, Lilabati and Shailaballa, who are the daughters of Brindavan Goswami as the said 3 daughters of Brindavan Goswami did not have any semblance of right, title, and interest over the suit land and therefore, the defendant could not have derived a better or a valid title from the estate of Late Brindavan Goswami by way of Gift Deed No.3119/1981, executed by the said 3 daughters in respect of 1 bigha- 3 katha- 11 lechas land. Mr. Das submits that, therefore, the defendant- Rabindra Nath Sarma, does not have a better title and projects that both the learned Court had committed erroneous appreciation of facts and the finding on Ext."Cha" was totally vitiated, and submits that substantial question of law exists for consideration of this Court for admission of the present appeal. 6. Mr. Das further submits that the findings by both the learned Courts below are in violation and/or disregard to the provisions of Regulation 41(2) of the Assam Land and Revenue Regulation, 1886 and as both the Court below has wrongly interpreted Ext." Dha" (Chitha in respect of suit land). He submits that Ext."Dha" contains the name of Kalyan Goswami as the recorded owner of the suit land and therefore submits that by wrong appreciation of the said evidence the issues framed by the trial court were incorrectly decided. 7. Per contra, Mr. S.S. Dey, learned Senior counsel appearing for the respondent submits that he is raising a preliminary issue that owing to concurrent finding recorded by both the courts below, there exists no question at all, lest to speak of any substantial question of law to be decided in this appeal. He submits that the 2 (two) substantial questions of law presented by the appellant/plaintiff pertains to re-appreciation of the evidence on record and submits that even on perusal of records, it appears that two views may prima facie be available, the second appellate court should be slow to accept the second plausible view. He submits that the 2 (two) substantial questions of law presented by the appellant/plaintiff pertains to re-appreciation of the evidence on record and submits that even on perusal of records, it appears that two views may prima facie be available, the second appellate court should be slow to accept the second plausible view. He submits that the issue sought to be raised now are pure questions of facts and those issues cannot be said to be substantial question of law. He further submits that in this present case, the controversy in issue before the trial court as well as the appellate court was whether while weighing evidence, the plaintiff was able to prove his better or superior title over the suit land. He projects that as per evidence of the PWs, the plaintiff is not even aware of the date on which the Ext.1 was executed and submits that by an order dated 26.09.1974 passed in Mutation Case No.127/72-73, the mutation in favour of Kalyan Goswami was cancelled, and on the basis of the said irrefutable evidence, the first appellate court while deciding the matter has held that on and from 26.09.1974, Sri Kalyan Goswami was not a recorded pattadar, which the predecessor of the plaintiff had purchased in the year 1977. Mr. Dey submits that the Sale Deed executed in favour of the plaintiffs do not confer any title over the suit land and, as such, he further submits that at best the plaintiff can secure his remedy against his vendors but not against the defendant. Moreover, Mr. Dey submits that the provisions of Section 41 of the Assam Land & Revenue Regulation, 1886 is to be read against the plaintiff and in favour of the defendant as because contrary to the said provision of law the plaintiff's vendor was not the recorded pattadar on the land and his name was struck out from the land revenue records w.e.f. 26.09.1974. Mr. Dey further argues that when there is strong and contested dispute as regards title, mere entry in the record of rights cannot confer any title in light of the fact that the mutation of the name of Kalyan Goswami was removed from land revenue records. Mr. Dey further argues that when there is strong and contested dispute as regards title, mere entry in the record of rights cannot confer any title in light of the fact that the mutation of the name of Kalyan Goswami was removed from land revenue records. He further submits that Ext.3, i.e., jamabandi was not even +issued by the land revenue department and in this connection he has referred to the relevant paragraph-25 of the judgment passed by the first appellate court, wherein the court has discussed the reason why the Ext.3 was not an admissible piece of evidence by holding that Ext.3 was a copy made from a copy and he submits that therefore, Ext.3 is not an admissible secondary evidence. Mr. Dey, learned Senior Counsel further submits that the plaintiff was unable to stand on his own legs and could not prove his case and therefore assuming that there is any deficiency is in the defence of the defendant, that cannot be a ground for the purpose of admission of second appeal and submits that the plaintiff shall have stand on his own leg in order to prove his case. 8. Mr. Dey submits that the trial court had framed as many as 7 issues and the first appellate court formulated the following points for determination: i. Whether vendor of plaintiff sale deed No.6222/73 have right, title in respect of suit patta land to transfer the same to any person? ii. Whether the plaintiff's predecessor and plaintiff acquired any right, title, interest in respect of the suit land and on the strength of sale deed No.6222/73? iii. Whether suit of the plaintiff is barred by Section 34 of the Specific Relief Act and is not maintainable under the law? 9. Mr. Dey's pointed argument is that the first appellate court, while appreciating the entire evidence has examined the evidence of PW-12 and PW-2, observed that these two witnesses have stated that in their respective cross-examination that they were not present when the Sale Deed No.6222/73 was executed and registered and deposed that the original deed was misplaced. The PW-1 further deposed to the effect Kalyan Goswami was the owner of 2 bigha-1 katha-1 lechas land, but she did not know how he got the land. Mr. The PW-1 further deposed to the effect Kalyan Goswami was the owner of 2 bigha-1 katha-1 lechas land, but she did not know how he got the land. Mr. Dey argues that PW-1 had deposed that Kalyan Goswami had got the land from Gauri Prava Goswami, but the said witnesses had stated that she has not seen any document which could show that Gauri Prava had right and title over the suit patta. The PW-1 and PW-2 stated that Late Brindavan had only one son and their evidence points out that Kalyan was not that son. Mr. Dey also submits that this finding by the Court below that the defendant No.1 by his evidence proved that Biman Goswami died before enactment of Hindu Succession Act, 1956, leaving behind his minor wife Kalpana, who inherited all the property left behind by Late Biman Goswami and that she, by executing registered Gift Deed No.742/70 dated 16.01.1970, gifted land to Aparna Chakraborty, Lilabati and Smt. Shailaballa, daughters of Late Brindaban Goswami, and these three ladies in turn gifted 1 bigha- 3 katha- 11 lechas land to Biman Goswami and accordingly, Mr. Dey projects that the land which Biman Goswami had held was not the land inherited by his father- Kalyan Goswami, but the title of Biman is derived from the aforesaid 3 daughters of Late Brindavan Goswami. Mr. Dey further submits that on issue No.5, the finding recorded by the courts below is that in the previously instituted T.S. No. 42/2000 instituted by the plaintiff, although a preliminary decree was passed by this court, but the finding of fact recorded by the courts below on appreciation of evidence was that the said suit was dismissed as the plaintiff did not take steps after the report of the Survey Commissioner was submitted before the court, recording that the suit land was possessed by the defendant No.1 and that he was residing there by constructing a building. Therefore, Mr. Dey submits that in view of the order of dismissal of the suit, the mere passing of a preliminary decree cannot be of any aid to the plaintiff as the said preliminary decree got merged with the order of dismissal of TS No. 42/2000 and, as such, that there is no infirmity with the judgment of the courts below. At the hearing of the appeal today, Mr. At the hearing of the appeal today, Mr. Dey has submitted the list of dates before this court which is kept on record. He further submits that this court by order dated 28.9.2915 had called for LCR and observed that as the parties are represented, an attempt would be made to dispose of the case on the next date. 10. I have perused the LCR and on the basis of the evidence adduced by the parties, I find that the submissions of Mr. S.S. Dey, learned Senior Counsel for the respondent is fully acceptable. The defendant was able to disprove the claim of the plaintiff for declaration of right, title and interest over the suit land. The defendant is found to be in possession of the suit land by constructing a RCC building thereon on the strength of right, title, interest and possession, conferred upon him by execution and registration of Sale Deed No. 292/2000 dated 14.01.2000, which was followed by delivery of possession. It is seen that no relief was sought for in the plaint in respect of the title deeds of the defendant. The title of the plaintiff stands disproved by order dated 26.09.1974 passed by the Settlement Officer in Mutation Case No. 127/1972-73, cancelling the mutation of name of plaintiff's vendor i.e. Kalyan Goswami from the suit land. DW-7 has proved that the suit land stood in the name of Brindavan Goswami. The said Brindavan Goswami is not the predecessor of the plaintiff's vendor. Hence, the defendant has been able to prove his defence by disproving the case of the plaintiff. Hence, this court is of the opinion that there is no reason to interfere with the finding of fact as recorded by both the Courts below. This court finds that the appellate court has re-appreciated the entire gamut of evidence available on record in respect of the comparative title claimed by both the parties, and the evidence appreciated by the first appellate court is to the effect that the plaintiff could not prove his case. This court finds that the appellate court has re-appreciated the entire gamut of evidence available on record in respect of the comparative title claimed by both the parties, and the evidence appreciated by the first appellate court is to the effect that the plaintiff could not prove his case. The evidence shows the plaintiff had exhibited secondary evidence of Sale Deed No. 6222/73 and therefore, the appellate court correctly appreciated that the PW-1 has stated that the sisters of Kalyan Goswami were still alive, but to prove the valid execution of Ext.1, no believable evidence has been put in the plaintiff and the plaintiff made an attempt to prove the said title link deed through the evidence adduced by one of the employee of the Sub-Registrar's office, Nagaon, who at the relevant time was not even working there and had not seen the execution of Ext.1. Hence, when the execution of a sale deed is a matter of challenge, the examination of persons from Sub-Registrar's office cannot constitute a sufficient proof of the circumstances of execution, which is required to be proved as per the mandate of section 67 of the Evidence Act. Therefore, viewed from that angle also, I find no infirmity in the decision of the first appellate court. 11. In the view of above, this Court is of the opinion that this is not a fit case for admission of the second appeal as no substantial question of law exists in this case. Accordingly, the appeal stands dismissed with no order as to costs. 12. Registry to send back the LCR forthwith.