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2016 DIGILAW 1129 (GAU)

Aswini Sarma v. Nalini Goswami

2016-12-14

KALYAN RAI SURANA

body2016
JUDGMENT : 1. Heard Mr. B. Banerjee, learned senior counsel for the appellants assisted by Mr. M. Khan, leaned counsel. Also heard Mr. A. Dhar, learned counsel appearing for the respondents. 2. This appeal under section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 26.5.2016 passed by the learned Additional District Judge No. 2, Kamrup at Guwahati in Title Appeal No. 21 of 2013 by which the appeal was filed by the appellant/defendants was dismissed by allowing the judgment and decree dated 16.7.2013 passed by the learned Civil Judge No. 2, Kamrup at Guwahati in Title Suit No. 367 of 2005. 3. Brief summary argument made by Mr. Banerjee is that the plaintiffs had initially filed a suit for declaration of right, title and interest over ‘A’ Schedule land, for recovery of Khas possession of Schedule ‘B’ land, for confirmation of possession as well as permanent injunction of Schedule C land, interest and other release. At this stage, the description of the land is not given for the sake of brevity. The projected case of the plaintiffs in the plaint was that while they were the owner of 4 Bigha, 4 Katha, 4 Lechas of land, the original defendant No. 2 Sita Kanta Sharma tried to dispossess the plaintiffs by executing the power of attorney in favour one Joydeep Bhatthacharjee. It is further projected that earlier the plaintiffs filed Title Suit No. 39 of 1998 in the Court of Civil Judge (Junior Division) No. 1, seeking permanent injunction to restrain one Joydeep Bhattacharjee who was the holder of power of attorney by virtue of deed dated 5.10.1995 and it was projected that an ad interim injunction was granted in favour of the plaintiffs ad Title Suit No. 39 of 1998 was decreed as ex parte. It was projected that the said Joydeep Bhattacharjee had also initiated Title Suit No. 308 of 1997 before the court of Civil Judge (Junior Division) No. 1, Guwahati, seeking permanent injunction in respect of the land which is described in the Schedule A of the land. But the suit was dismissed due to non-prosecution by order dated 17.9.1999. It was projected that the said Joydeep Bhattacharjee had also initiated Title Suit No. 308 of 1997 before the court of Civil Judge (Junior Division) No. 1, Guwahati, seeking permanent injunction in respect of the land which is described in the Schedule A of the land. But the suit was dismissed due to non-prosecution by order dated 17.9.1999. The appellants herein submit that after dismissal of the Title Suit No. 308 of 1997, said Joydeep Bhattacharjee along with some other persons forcefully entered into the Schedule ‘A’ land on 14.10.2005 at 12.30 AM (night) for which an FIR was lodged before the police on 14.10.2005 and the police restrained the defendant No. 2 from entering into the Schedule ‘N land. But, on 15.10.2005, the police was withdrawn and on 16.10.2005, the land described in Schedule B was forcefully encroached by the defendants and therefore, Title Suit No. 367 of 2005 was filed on 14.10.2005. It has been further stated that on 24.2.2006 the plaintiffs were dispossessed from the Schedule ‘C’ land requiring amendment of the plaint and amendment plaint filed on 6.1.2011. In the amendment plaint, the plaintiffs had prayed for a decree for recovery of Khas possession for land described in Schedule ‘B’ and Schedule ‘C land. By filing written statement the defendant Nos. 1 and 2 claimed their right over the scheduled land by submitting that they had purchased the suit land from one Girija Nanda Choudhury and, therefore, they had right, title and interest over the suit land. The learned trial court on materials available on record framed as many as 6 issues which are quoted below: (1) Whether there is cause of action for the suit? (2) Whether the suit is bad for non-joinder of necessary parties? (3) Whether the plaintiffs were illegally dispossessed from the Schedule A land and the house described in the Schedule B by the defendants on 16.10.2005? (4) Whether the plaintiffs have right, title and interest over the Schedule A land? (5) Whether the judgment and decree passed in Title Suit No. 39 of 1998 conclusively establishes the right, title and interest of the plaintiffs over the suit land to the exclusion of all others? (6) Whether the plaintiffs are entitled to recovery of Khas possession of the suit property? (7) Whether the plaintiffs are entitled to a decree of permanent injunction? (8) To what other relief/reliefs parties are entitled? 4. (6) Whether the plaintiffs are entitled to recovery of Khas possession of the suit property? (7) Whether the plaintiffs are entitled to a decree of permanent injunction? (8) To what other relief/reliefs parties are entitled? 4. The learned trial court while deciding the relevant issue No. 4 — whether the plaintiffs have right, title and interest over the Schedule A land, observed that in Ext. 1 it appears that the land conveyed by the same measuring 10 Bigha begins from a Tini Kunia Shil as mentioned in Schedule of Ext. 1 and further observed that the copy of the purchase deed of the defendants side point out in the Schedule land conveyed by the said deeds begins from more than 7,000 ft distance of Tini Kunia Shil as provided in the Schedule of Ext.'A' and Ext/B’. Therefore, the learned trial court arrived at a finding that the land conveyed by the Girija Nanda Choudhury vide Ext. 1 to the predecessor of the plaintiffs that the land conveyed by the Ext. ‘A’ and Ext.’ B’ are not at all akin to each other as the land conveyed by Ext. 1 is the land which begins from Tini Kunia Shil whereas, the land conveyed by the Ext.’ A’ and Ext/B’ are starting from more than 7,000 ft away from Tini Kunia Shil. The learned trial court further observed that the boundary description of the Schedule of Ext.’ A’ transparently spell out that towards the western side of the conveyed land of the said deed, there exists the land of Jogesh Ch. Goswami who is a predecessor of the plaintiffs and, as such, in the back drop of the facts that the learned trial court was of the opinion that the land inherited by the plaintiffs was different from the land claimed by the defendants and accordingly, the plaintiffs were held to have proved their right, title and interest over the suit land. The learned trial court after discussing all the issues pertaining to the suit land, held that the plaintiffs were entitled to recovery their right, title and interest over the suit land described in the Schedule ‘A’ of the plaint and the plaintiffs are entitled to recover their Khas possession of the Schedule ‘A’ land. 5. Mr. The learned trial court after discussing all the issues pertaining to the suit land, held that the plaintiffs were entitled to recovery their right, title and interest over the suit land described in the Schedule ‘A’ of the plaint and the plaintiffs are entitled to recover their Khas possession of the Schedule ‘A’ land. 5. Mr. Banerjee, learned senior counsel submits that in view of the position that there was a decree for confirmation of possession in respect of Schedule ‘C’ land, the suit has attained finality and, therefore, in any event the defendants are not entitled to interfere with the possession of the plaintiffs over the suit land. The appellants had preferred an appeal against the aforesaid judgment and decree dated 16.7.2013 passed by the leaned Additional District Judge No. 2, Kamrup (M), Guwahati, in Title Suit No. 369 of 2005. The appeal was registered and numbered as Title Appeal No. 21 of 2012 and the learned First Appellate Court, i.e., the learned Additional District Judge, Guwahati dismissed the appeal by its judgment dated 26.5.2016. The learned First Appellate Court after appreciation of the matters on record, inter alia, upheld the judgment and decree passed by the learned trial court. 6. At this stage it is relevant to confine the evidence recorded in respect of Issue Nos. 4 and 5 as recorded by the learned First Appellate Court. The learned First Appellate Court upon perusal of the materials available on record observed that after purchase of the suit land vide Ext. A, the name of Jogesh Ch. Goswami was mutated on 17.4.1957 in connection with Mutation Case No. 15 of 1956-1957 and that the name of his legal heirs were mutated by the order dated 5.12.1988 passed in Mutation Case No. 112 of 1983-84 which was stood vide Ext. 4. The learned First Appellate Court observed that the defendants had not challenged the sale deed of Jogesh Ch. Goswami, i.e., the Ext. 1. As per the deposition of DW1, namely, Aswini Sharma, he proved the purchase of 63 Bighas of land by executing five sale deeds which was proved as Exts. A, B, C, D and E and held that, while the sale deed of Jogeh Ch. Goswami was executed on 22.12.1956 Ext. A and Ext. Goswami, i.e., the Ext. 1. As per the deposition of DW1, namely, Aswini Sharma, he proved the purchase of 63 Bighas of land by executing five sale deeds which was proved as Exts. A, B, C, D and E and held that, while the sale deed of Jogeh Ch. Goswami was executed on 22.12.1956 Ext. A and Ext. B, the sale deed of Sita kanta Sharma were executed on 16.4.1957 and 4.1.1957, respectively and therefore, the sale deed of the respondents side were executed earlier to the sale deed executed in favour appellants. The learned First Appellate Court also observed that as per Schedule of the land mentioned in Ext. 1 it appears that it had started from Tini Kunia Shil and on the other hand, the Schedule of Ext. ‘A’ shows that the land sold vide Ext.’A’ starts from distance of 7,633 ft’ from Tini Kunia Shil. The schedule of Ext. B shows that the land sold vide Ext. B starts from the distance of 7658 ft from the said Tini Kunia Shil. Therefore, the learned First Appellate Court concluded that the plaintiff-respondents had right, title and interest over the land purchased by the predecessor-in-interest and which they inherited after the death of Jogesh Ch. Goswami and no infirmity was found in the decision of the learned trial court in connection with the issue No. 4. Moreover, holding that the land of the plaintiffs started from the Tini Kunia Shil and the land of the defendants started from the distance of more than 7,344 ft’ Tini Kunia Shil, the land of the parties can be easily identifiable. Accordingly, the learned First Appellate Court did not find any infirmity with the decision of the learned trial court in respect of the issues holding that the issues were rightly decided. Accordingly, the appeal was dismissed with cost. 7. Mr. Banerjee, learned senior counsel for the appellants, under the facts and circumstances of the case prays for admission of this appeal by pressing following substantial questions of law: Whether the learned courts below are justified in decreeing the suit for confirmation of possession whereas no relief of confirmation of possession has been sought in respect of ‘C’ Schedule land which is a substantial question of law require interference under section 100 of the Code of Civil Procedure, 1908? 8. This court has perused the materials available on record. 8. This court has perused the materials available on record. There is no dispute as regards the identification of the land of the parties vis-a-vis Ext. 1 and Exts. A and B. The description of land given in the Schedules clearly show the starting point from which the measurement of land has started in respect of both the contesting parties and as the appellants herein have not challenged the finding in so far as the title deeds of the plaintiff/respondents, in the opinion of this court the defendants cannot have any justifiable claim on the land of the plaintiffs. Anxiety expressed at the bar by the learned senior counsel for the appellants that there is every possibility that by taking advantage of the decree, the respondents may oust the appellants from their own land appears to be far-fetched. Although there was a prayer for recovery of Khas possession, the learned First Appellate Court upheld the decree only for confirmation of possession and therefore, the respondents derive no authority to execute the said decree for delivery of Khas possession of the ‘C’ Schedule land. 9. As already stated above, as the concurrent findings of fact recorded by both the learned courts below is to the effect that the land of the plaintiffs and defendants is distinctly identifiable, this court finds that the appellants cannot be said to have been prejudiced by passing of a decree of confirmation of possession when the prayer in the suit was for recovery of Khas possession of Schedule C land, inasmuch as, if the decree was erroneous, it was for the plaintiff-respondents to file a cross appeal against the said judgment. In that view of the matter and owing to the concurrent findings of facts recorded by both the courts below, this court is not inclined to admit the appeal and the appeal is hereby dismissed. However, this court wants to clarify that the executing court shall take notice of the fact that the decree, inter alia, is with regard to decree for confirmation of possession in respect of the plaintiffs over the land described in Schedule ‘A’ of the plaint. Hence, while executing the decree, the Executing Court shall be mindful to execute the same strictly in terms of the decree. With these observations, this appeal stands closed. No order as to costs.