Karamchun Begam, W/O Late Hachan Ali v. Dinabandhu Rudra Paul, S/O Kanai Rudra Paul
2016-11-30
S.C.DAS
body2016
DigiLaw.ai
JUDGMENT AND ORDER : Heard learned counsel, Mr. P. Chakraborty for the appellants. 2. The second appeal is filed challenging concurrent finding of two courts below. In the Memorandum of Appeal the following substantial questions of law suggested on behalf of the plaintiff-appellants for hearing of the second appeal: (A) Whether the learned courts below committed error of law by not appreciating the evidence on record? (B) Whether the judgments of the learned courts below are bad in law because of not appreciation of evidence on record properly? 3. The appellants as plaintiffs instituted Title Suit No.106 of 2008 in the Court of Civil Judge, Sr. Division, Court No.2, Agartala, seeking declaration of title and recovery of possession of the suit land described in the Schedule of the plaint measuring 3.10 acres. In their pleadings the plaintiffs pleaded that the suit land originally belonged to one Abdul Rahaman and after his death his son Hachan Ali was possessing the suit land by cultivating the same. Hachan Ali also died in the year 1989 and thereafter the plaintiffs were cultivating the suit land by growing crops and were maintaining their livelihood. The plaintiffs shifted from the suit land to Purba Barjala for their convenience in the month of December, 1985 and taking advantage of it the defendants dispossessed them on 20.12.2003. 4. The defendants in their written statement pleaded that Abdul Rahaman was the owner of the suit land and he gifted the land to Hachan Ali and Muktar Hossain and they all left for East Pakistan and by a Deed of Exchange the predecessors of the defendants got the suit land and entered into possession of the suit land and continuously possessing the same. The plaintiffs, being the successors of Hachan Ali and Muktar Hussain, subsequently, entered into the Indian Territory and had been residing at Purba Barjala. They never possessed the suit land and so were not entitled to get the declaration of recovery of possession. 5. The trial Court framed four issues, namely— (i) Is the suit maintenance in its present form? (ii) Have the plaintiffs any right, title, interest over the suit land? (iii) Whether the plaintiffs are entitled to a decree for recovery of khas possession by evicting the defendants from the suit land? (iv) Any other relief or reliefs the plaintiffs are entitled? 6.
(ii) Have the plaintiffs any right, title, interest over the suit land? (iii) Whether the plaintiffs are entitled to a decree for recovery of khas possession by evicting the defendants from the suit land? (iv) Any other relief or reliefs the plaintiffs are entitled? 6. Both side adduced oral and documentary evidence in course of trial and the trial Court by impugned judgment dated 17.06.2013 passed in T.S. No.106 of 2008 dismissed the suit. 7. Aggrieved, the plaintiffs preferred Title Appeal No.62 of 2013 and it was also dismissed by judgment dated 09.09.2015 passed by learned District Judge, West Tripura. 8. Hence, this second appeal. 9. Learned counsel, Mr. Chakraborty prayed for admitting the second appeal on the ground of perversity of finding. According to Mr. Chakraborty, the evidence has not been properly appreciated and hence the second appeal should be heard on merit. 10. At the very outset, after going through the copy of the plaint annexed with the Memo. of Appeal, I find that the plaintiffs did not make any averment in the plaint as to how they became owner of the suit land. In the absence of any such specific pleadings made in the plaint I find no case of the plaintiffs at all. The question of appreciation of evidence will arise later on. If the plaintiffs fail to make out their case in their pleadings itself, production of evidence will be of no use. The pleadings of the defendants also cannot prove or establish the claim of the plaintiffs. The plaintiffs simply stated that Abdul Rahaman was the original owner of the suit land and after his death his son Hachan Ali was possessing the suit land and after the death of Hachan Ali they entered into possession of the suit land. There is no pleadings that they inherited the property after the death of Hachan Ali as legal heirs or otherwise. In the absence of any such pleading the trial Court as well as the appellate Court though has mentioned that the plaintiffs claimed to have inherited the property, such finding is beyond pleadings and has no basis at all. 11. Under such position of the suit, which is inherently defective I find no justification at all to frame any substantial question of law for hearing of the matter afresh after concurrent finding of two courts below. 12.
11. Under such position of the suit, which is inherently defective I find no justification at all to frame any substantial question of law for hearing of the matter afresh after concurrent finding of two courts below. 12. The second appeal therefore is found to be devoid of any merit and hence stands dismissed.