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2016 DIGILAW 687 (GAU)

Bijoy Kumar Baruah v. Konmai Baruah

2016-07-27

N.CHAUDHURY

body2016
JUDGMENT AND ORDER : N. Chaudhury, J. 1. Challenging the concurrent findings arrived at by the learned trial Court and the First Appellate Court, the plaintiff has preferred this Second Appeal. 2. The present appellant as plaintiff instituted Title Suit No. 37/2000 in the Court of learned Civil Judge (Junior Division) No. 1, Jorhat, on 10.07.2000 stating that the suit land measuring 1B 3K 15Ls described in Schedule-A to the plaint is owned by the plaintiff and the proforma defendants no. 2 and 3 by inheritance. According to the plaintiff, the land was originally owned and possessed by Ramkumar Baruah, his father, and defendant no. 1, Basanta Kumar Baruah, happens to be the step brother of said Ramkumar Baruah. Ramkumar Baruah purchased the suit land in the year 1966 from one Sidananda Bhuyan, Someswar Bhuyan and Rameswar Bhuyan and he obtained mutation to the suit land vide order dated 15.03.1966 passed by the learned Sub-Deputy Collector of Jorhat. Ramkumar Baruah died in the year 1997 and accordingly the plaintiff and the proforma defendants no. 2 and 3 got their names duly mutated in the records of rights by right of inheritance on 24.02.2000. Ramkumar Baruah and his brothers, the proforma defendants no. 2 and 3 had permitted the defendant no. 1 way back in 1996 to make a temporary structure on the suit land for his dwelling purpose but after death of Ramkumar Baruah defendant no. 1 occupied the entire suit land and refused to vacate on being asked to do so. According to the plaintiff, defendant no. 1 does not have any semblance of right, title and interest thereto as the suit land is the purchased property of Ramkumar Baruah. With these averments prayer was made for passing a decree declaring right, title and interest of the plaintiff and the proforma defendants no. 2 and 3 over the suit land and also for recovery of khas possession by evicting the defendant no. 1 and demolishing and removing the structures built by him over the suit land. 3. On being summoned the defendant no. 1 appeared and submitted written statement wherein he claimed that the suit land was originally owned by Manik Baruah, father of Ramkumar Baruah, Basanta Kumar Baruah and Prafulla Kumar Baruah. Manik Baruah had married twice. 1 and demolishing and removing the structures built by him over the suit land. 3. On being summoned the defendant no. 1 appeared and submitted written statement wherein he claimed that the suit land was originally owned by Manik Baruah, father of Ramkumar Baruah, Basanta Kumar Baruah and Prafulla Kumar Baruah. Manik Baruah had married twice. While Ramkumar was born to the first wife, Basanta Kumar and Prafulla Kumar were born after death of the first wife from the second wife of Manik Baruah. Basanta Kumar and Prafulla Kumar were young when Manik Baruah died and so Ramkumar Baruah being the eldest brother reared and nurtured them. The property having been acquired by Manik Baruah it devolved on his legal heirs including Basanta Kumar and Prafulla Kumar. Basanta Kumar Baruah being defendant no. 1 was permitted by Ramkumar Baruah during his lifetime to exclusively and absolutely own and possess the suit land whereas the other properties were retained by him. This was done because there was no enough accommodation in the paternal residential house. The defendant no. 1, therefore, claimed that he being the legal heir of Manik Baruah has valid right, title and interest to the suit land and it is rather the plaintiff and the proforma defendants no. 2 and 3 who having other properties do not have any right, title and interest with respect to the suit land described in Schedule-A to the plaint. He, therefore, prayed that the suit of the plaintiff be dismissed with cost. It may be mentioned herein that Basanta Kumar being defendant no. 1 filed his written statement and after his death when his legal heirs were impleaded the impleaded defendants also filed a separate written statement, however, maintaining the same stand and thus there are two sets of written statement on behalf of the defendant no. 1. 4. The learned trial Court after consideration of the averments made by the parties in their respective pleadings framed following nine issues and thereafter in course of trial three more issues were framed. All these issues are quoted below for ready reference:- "1. Whether there is a cause of action for the suit? 2. Whether the suit is hit by principles of law of limitation? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the defendant no. All these issues are quoted below for ready reference:- "1. Whether there is a cause of action for the suit? 2. Whether the suit is hit by principles of law of limitation? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the defendant no. 1 constructed the house in 1978 over the suit land after obtaining consent from the plaintiff's father? 5. Whether the defendant no. 1 has any right, title and interest over the suit land? 6. Whether the suit land is an ancestral property of the defendant no. 1? 7. Whether the plaintiff's father gave permission to the defendant no. 1 to occupy the entire suit land? 8. Whether the plaintiff is entitled to get a decree as prayed for? 9. What relief the parties are entitled to?" "Additional Issues:- 1. Whether the defendants with Sri Prafulla Kumar Baruah are entitled to the paternal property of Late Manik Ch. Baruah by inheritance? 2. Whether the proforma defendant Nos. 2 and 3 are entitled to the right, title and interest in the suit land? 3. Whether permanent building of the defendants was constructed by the deceased Basanta Kr. Baruah during the lifetime of the late Ram Kumar Baruah, the father of the plaintiff?" 5. In course of trial plaintiff examined himself and two other witnesses and exhibited two documents. Ext-1 is the jamabondi of the suit land and Ext-2 is a revenue paying receipt. The defendant examined himself as DW 1 and another witness. The learned trial Court after hearing the parties and on perusal of the evidence led by the parties dismissed the suit with cost. Aggrieved, plaintiff preferred Title Appeal No. 31/2003 in the Court of learned Additional District Judge (Ad hoc) at Jorhat who allowed the appeal and remanded the matter to the learned trial Court for disposal afresh by framing another additional issue as follows:- "Whether the suit land is a self acquired property of Ramkumar Baruah (now deceased), father of the plaintiff?" 6. After the records were sent back to the learned trial Court on remand the plaintiff adduced additional evidence and produced two original sale deeds, one dated 04.07.1941 and the other dated 07.05.1943 marked as Exts-3 and 4 respectively. By Ext-3 plaintiff purchased 7B 5K 7½L land being half of the land of PP No. 48 of Charigaon mouza of Jorhat Police Station. By Ext-3 plaintiff purchased 7B 5K 7½L land being half of the land of PP No. 48 of Charigaon mouza of Jorhat Police Station. By Ext-4 Ramkumar Baruah had purchased land measuring 1B 17Ls in Dag No. 560 of PP No. 48 of the same gaon and mouza. According to the plaintiff, suit dag pertains to the aforesaid dag and patta as mentioned in Exts-3 and 4. The defendants, however, declined to lead any evidence after remand of the suit. Be that as it may, the learned trial Court after consideration of the respective case of the parties by his judgment and decree dated 27.06.2005 dismissed the suit of the plaintiff holding that Exts-3 and 4 do not attract the suit land. The reason for such finding is that the suit land has been described to be a piece of land 1B 3K 15L covered by Dag No. 1683 of P.P. No. 127 of Dahikhor Gaon in Charigaon Mouza in Jorhat district in the body of the plaint under Schedule-A whereas the sale deed did not refer to the aforesaid dag and patta. Rather, the sold land was described to be covered by Patta No. 48 and Dag No. 560. As the plaintiff could not produce any material to show that land covered by Dag No. 560 of PP No. 48 of Charigaon mouza was the same as that of the suit land described in Schedule-A to the plaint, the learned trial Court did not believe the sale deeds Exts-3 and 4 as document of title for the suit land and consequently the suit of the plaintiff was dismissed with cost. 7. Aggrieved, plaintiff preferred Title Appeal No. 32/2005 in the Court of learned Civil Judge (Senior Division) at Jorhat and claimed that suit land is covered by Exts-3 and 4. The learned First Appellate Court in his judgment and decree dated 06.03.2006 took the same view as that of the learned trial Court and dismissed the appeal against the plaintiff. This is how plaintiff being aggrieved at the concurrent findings of the learned Courts below has preferred this Second Appeal. 8. The learned First Appellate Court in his judgment and decree dated 06.03.2006 took the same view as that of the learned trial Court and dismissed the appeal against the plaintiff. This is how plaintiff being aggrieved at the concurrent findings of the learned Courts below has preferred this Second Appeal. 8. This Court while admitting the Second Appeal on 28.06.2006 framed only one substantial question of law and the same is quoted below:- "Whether the learned Court below was justified in passing the impugned judgment and decree holding that Ext-1 does not confer any title upon the appellant?" The aforesaid substantial question of law, perhaps, was framed upon argument put forward by the learned counsel for the appellant that in endorsements of Ext-1 Jamabondi were made on the basis of possession and title derived vide Exts-3 and 4. 9. I have heard Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. P. Deka, learned counsel for the appellant. None appears for the respondents although names of learned engaged counsel are shown in the cause list. I have perused the lower Court records including the exhibits adduced by the plaintiff. It is to be noted here that pursuant to an order passed by this Court on 21.09.2015 the appellant submitted an application under Order 41, Rule 27 of the CPC for adducing additional evidence so as to bring on record some materials to show that land covered by PP No. 48 of 1941-43 were resurveyed as land under Patta No. 127 and Dag No. 1683 of the Ext-1. This application was also taken up for consideration at the time of hearing of this Second Appeal. 10. Drawing attention of this Court to Ext-1, Mr. Sahewalla, learned senior counsel for the appellant, argued that PP No. 127 (new) and Dag No. 1683 shows that Sidananda Bhuyan, Someswar Bhuyan and Rameswar Bhuyan were the original three owners of the suit land. Vide endorsement No. (Ka) in place of the aforesaid three original pattadars name of Ramkumar Baruah was inserted vide order dated 15.03.1966 passed by the Sub-Deputy Collector, Jorhat on the basis of purchase and possession. After death of Ramkumar Baruah names of the plaintiff and the proforma defendants no. 2 and 3 have been incorporated in the records of rights vide order dated 24.02.2000 passed by the Circle Officer and this is borne by endorsement No. (kha) of Ext-1. After death of Ramkumar Baruah names of the plaintiff and the proforma defendants no. 2 and 3 have been incorporated in the records of rights vide order dated 24.02.2000 passed by the Circle Officer and this is borne by endorsement No. (kha) of Ext-1. This exhibit shows that suit land covered by Dag No. 1683 under PP No. 127 was originally owned by three persons, namely, Sidananda Bhuyan, Someswar Bhuyan and Rameswar Bhuyan and they transferred possession in favour of Ramkumar Baruah. Ramkumar Baruah having purchased the same got his name mutated and after his death the plaintiff and proforma defendants no. 2 and 3 stepped into the shoes as legal heirs. Similarly, in Exts-3 and 4, original owners are Sidananda Bhuyan, Someswar Bhuyan and Rameswar Bhuyan and Ramkumar Baruah is the purchaser with respect to the land covered by these two sale deeds. These two are registered sale deeds and they have been brought on record in original but the demised land in the aforesaid two sale deeds has been shown to have been covered by Dag No. 560 of PP No. 48 of mouza Charigaon under Jorhat Police Station. The suit land also fall under mouza Charigaon in the district of Jorhat. Only difference lies in dag No. and Patta No. According to Mr. Sahewalla, Dag No. and Patta No. of the land as on 1941 and 1943 were subsequently changed after resettlement operation in the year 1957-58 and the present Dag No. and Patta No. have been mentioned in Ext-1. The land covered by Ext-1 is same as that of land covered by Exts-3 and 4. In support of his claim he has produced on record photocopies of chita and jamabondi by way of filing an application under Order 41, Rule 27 CPC. Perusal of the draft chita of Charigaon village and Dahikhor village under mouza Charigaon it appears that the plot of land covered by Dag No. 1683 (new) is the land of old Dag No. 560. It is to be noted that in a mouza there is only one plot of land covered by a particular dag. There may be similarity in the No. of Patta but in a mouza there is no duplicity of Dag No. Land is described by Dag Nos. in seriatum in the records of rights. It is to be noted that in a mouza there is only one plot of land covered by a particular dag. There may be similarity in the No. of Patta but in a mouza there is no duplicity of Dag No. Land is described by Dag Nos. in seriatum in the records of rights. Patta No. is nothing but the serial No. of the lease deed issued by the Government. Patta of a land, therefore, does not have any distinguishing feature as to the identity of the land. The identity of the land is denoted by the Dag No. in a given mouza. This is why a given Dag No. is given to only one plot of land in a mouza and same dag No. cannot occur in two places in a particular mouza. Now, according to Mr. Sahewalla, if old Dag No. 560 has been resurveyed as new Dag No. 1683, in that event Exts-3 and 4 are very much applicable to the suit land. He has also drawn the attention of this Court to old draft jamabondi of the same village and mouza to show that old Patta No. 48 has been resurveyed as new Patta No. 127 in the same document and the land covered by old Dag no.560 is shown to be the new Dag No. 1683. These documents were not placed on record during the course of trial or at the first appellate stage. 11. Since the crux of the dispute between the parties is as to whether the suit land covered by Dag No. 1683 and PP No. 127 is same as that of Dag No. 560 of PP No. 48, the jamabondi for surveyed village and the chita are necessary documents for adjudicating the dispute. These documents not having been produced earlier it is necessary to take the same on record under the provision of Clause (b) of Rule 27 Order 41. The application has been filed before the Second Appellate Court but in the absence of the learned counsel for the respondents it is not possible to accept this document at this stage and thus it would be proper to remand the matter to the learned First Appellate Court for allowing the parties to lead further evidence under Order 41, Rule 27 in support as well as against this contention. The learned Courts below on earlier occasion did not feel the necessity for calling these documents. It would have been appropriate on the part of the learned trial Court to exercise jurisdiction under Section 30 of the CPC to call for these documents at the trial stage which would have enabled the learned Court to arrive at a correct finding. This not having been done the judgment passed by the learned First Appellate Court which upheld the finding of the learned trial Court is hereby set aside and the matter is remanded to the learned First Appellate Court to allow the parties to lead further evidence so as to bring on record documents to show as to whether the suit land covered by Dag No. 1683 of PP No. 127 pertaining to Charigaon mouza of Dahikhor Gaon in the district of Jorhat is same and was resurveyed from Dag No. 560 of old Patta No. 48 of the same mouza. The sole substantial question of law is accordingly decided in favour of the appellant. This is because entry made in the Ext-1 may be on the basis of Exts-3 and 4 and in that event endorsement made in Ext-1 cannot be brushed aside. 12. The Second Appeal stands allowed. The impugned first appellate judgment and decree is hereby set aside and the matter is remitted to the learned First Appellate Court with the above directions. Since it is a suit of the year 2000, the learned First Appellate Court shall endeavour to dispose of the same within a period of six months from today. 13. Since the respondents did not appear at the time of hearing, the learned First Appellate Court shall issue notice upon the respondents for appearance. The appellant shall appear before the learned First Appellate Court on 05.09.2016. Registry shall send down the records in the meantime.