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2016 DIGILAW 691 (GAU)

Kamal Chandra Ghose v. Babul Rakshit

2016-07-28

SUMAN SHYAM

body2016
JUDGMENT AND ORDER : Suman Shyam, J. Heard Mr. S.K. Ghosh, learned counsel appearing for the appellants in both the appeals. Also heard Mr. B.K. Bhattacherjee, learned counsel representing the respondent Nos. 1 and 2. Since both the second appeals arise out of the common judgment and decree dated 18/04/2007 passed by the Court of District Judge, Morigaon in Title Appeal No. 12/2006 raising common questions of law and facts, hence, both the second appeals are being taken up for disposal by this common order. 2. The case of the plaintiffs/appellants, in brief, as apparent from the record, is that land measuring 3 katha 1 lessa covered by dag No. 538 of periodic patta no. 288 of Jagiroad Revenue Town Kissam, Mouza-Gova, District-Morigaon, originally belonged to Mangal Singh. The proforma defendant No. 1 Bulbuli Mura come into possession in respect of the said plot of land, as a result of which her name was mutated on 18/03/1972 in respect. Out of the said land measuring 3 Katha 1 Lessa, late Brojendra Ghose i.e. the predecessor-in-interest of the plaintiff was in possession of land measuring 1 katha 10 lessa. Such being the position, a proposal was made by Brojendra Ghose to Bulbuli Mura for sale of the aforesaid 1 katha 10 lessa of land in his favour. The said land measuring 1 katha 10 lessas is the suit land. An agreement for sale (un-registered) dated 27/02/1975 was thereafter, executed by Bulbuli Mura in favour of Brojendra Ghose by paying an advance amount of Rs. 150/-. Thereafter, Bulbuli Mura had also executed an unregistered deed of sale dated 20/02/1976 in respect of suit land in favour of Brojendra Ghose for the sale consideration of Rs. 1500/-. At the time of execution of the un-registered sale deed, Brojendra Ghose was already in possession of the land. Brojendra Gosh died in the year 1976. After his death, the suit land was mutated in favour of his wife Jamuna Bala Ghose in the year 1981-82. However, due to a mistake, the area of land was shown as 1 Katha 1 Lessa instead of 1 Katha 10 Lessa. On 30/09/1986, the records were corrected and the defect was rectified. Ultimately, the suit land was inherited by the plaintiff No. 1 who is the son of Brojendra Ghosh. 3. However, due to a mistake, the area of land was shown as 1 Katha 1 Lessa instead of 1 Katha 10 Lessa. On 30/09/1986, the records were corrected and the defect was rectified. Ultimately, the suit land was inherited by the plaintiff No. 1 who is the son of Brojendra Ghosh. 3. While the plaintiffs were possessing the suit land, on 21/07/1990, the defendant no.1 had filed a mutation appeal bearing no. 6/90 challenging the order of mutation dated 24/02/1982 granted in favour of Jamunabala Ghose and it is from the said appeal that the plaintiffs for the first time, come to know about the registered deed of sale bearing no. 3361 dated 08/04/1976 executed in favour of the defendant no. 2 in respect of the suit land. The case of the plaintiffs is that although the aforesaid deed of sale date 08/04/1976 was executed by proforma defendant no.1 (Bulbuli Mura) in favour of the defendant no.2, yet, there was no delivery of possession to her as a result of which the suit land continued to remain in the possession of the plaintiffs. On such basis, the plaintiffs had filed the suit seeking a decree declaring their right, title and interest over the suit land and also for confirmation of their possession besides praying for a decree cancelling the sale deed no. 3361 dated 08/04/1976. 4. The defendant nos. 1 and 2 contested the suit by filing the written statement-cum-counter claim wherein it has been categorically pleaded the proforma defendant no.1 (Bulbuli Mura) and Shri Sachindra Neogi were the original owners in possession in respect of total land measuring 3 Katha 1 Lessa, which included the suit land. The said owners being in need of money, had sold the entire 3 Katha 1 Lessas of land to the defendant nos. 1 and 2 by executing registered deeds of sale. According to the contesting defendants, proforma defendant no.1 Bulbuli Mura and Shri Neogi had executed 3 (three) registered deeds of sale bearing no. 3312/3361/3363, all dated 08/04/1976, covering the entire area of 3 Katha 1 Lessa of land and thereafter delivered possession of the land to the contesting defendants. 1 and 2 by executing registered deeds of sale. According to the contesting defendants, proforma defendant no.1 Bulbuli Mura and Shri Neogi had executed 3 (three) registered deeds of sale bearing no. 3312/3361/3363, all dated 08/04/1976, covering the entire area of 3 Katha 1 Lessa of land and thereafter delivered possession of the land to the contesting defendants. However, since the predecessor of the plaintiffs, viz, Brojendra Ghose had requested the defendants to allow him to stay with his family members over the northern portion of the land (i.e. the suit land) in the month of January, 1984, hence, the answering defendants had allowed him some time to stay in the suit land by constructing 3 (three) thatched houses over there. After 3/4 years, when the defendants had requested Brojendra Ghose to vacate the land, he promised to do so within a short period of time. However, in the mean time Brojendra Ghose died and later, his wife Jamunabala Ghose got the land mutated in her name behind the back of the defendants and continued to occupy the land instead of vacating the same. According to the defendants, the plaintiffs are trespasser in respect of the suit land and, therefore, in their counter -claims, the defendants had prayed for a decree declaring their right, title and interest over the suit land and also for recovery of khas possession in respect thereof. 5. The plaintiffs had filed their written statement against the counter-claim denying the case of the defendants/counter claimants and had also set up a plea that their possession over the suit land was protected under section 53-A of the Transfer of Property Act. 6. Based on the pleadings of the parties, the learned Trial Court had framed the following issues :- "(i) That, then learned court below committed gross error of law, as well as facts in passing the impugned judgment and decree declaring the agreement of sale dated 27.2.75 and unregistered sale deed dated 20.2.76 to be inconsequential. (ii) That, the learned court below failed to consider the facts and law relating to continuous possession of the suit land by the plaintiff since last 33 years. (iii) That, the value of Mutation in respect of the suit land has also not been considered by the learned Court below in proper perspective. (ii) That, the learned court below failed to consider the facts and law relating to continuous possession of the suit land by the plaintiff since last 33 years. (iii) That, the value of Mutation in respect of the suit land has also not been considered by the learned Court below in proper perspective. (iv) The fact that the land revenue in respect of the suit land being regularly paid has also been ignored. (v) It has also not been taken into consideration that the plaintiffs have been in possession of the suit land by constructing permanent structure for a period of 33 years. (vi) That, the signature of Bulbuli Mura was wrongly compared by the learned court below instead of sending to the hand-writing expert. (vii) That, the claim of the defendants should not have been decreed on the basis of the counter claim. (viii) That, the learned court below did not discuss the deposition of the witnesses of the plaintiffs, but instead, more attention was given to the evidence of the witnesses of the defendants. (ix) That, the learned court below arrived at a wrong findings, and hence, granted a Decree in favour of contesting defendants, which deserves to be set aside." 7. After hearing the parties and on analysis of the evidence on record, the Trial Court passed the judgment and decree dated 27/04/2001 and 04/05/2001 respectively in Title Suit No. 242/99 dismissing the suit filed the plaintiffs while decreeing the counter-claim filed by the contesting defendant nos. 1 and 2. Being aggrieved by the judgments and decree passed by the Trial Court in TS No. 24/99, the plaintiffs as appellants had preferred Title Appeal No. 12/2006 in the Court of District Judge, Morigaon. The learned District Judge, Morigaon had also dismissed the appeal filed by the plaintiffs, thereby affirming the judgment and decree passed by the learned Trial Court. 8. Being aggrieved by the concurrent judgment and decree passed by the Courts below, the plaintiffs as appellant had preferred second appeal No. 75/2007 assailing the judgment and decree passed by the lower appellate court, in so far as the same relates to the dismissal of the plaintiff's suit is concerned. Second appeal no. 85/2007 had been filed by the plaintiffs as appellants assailing that part of the judgment and decree by means of which the counter-claim filed by the defendant nos. Second appeal no. 85/2007 had been filed by the plaintiffs as appellants assailing that part of the judgment and decree by means of which the counter-claim filed by the defendant nos. 1 and 2 had been decreed by the first appellate court. 9. Mr. Ghosh, learned counsel for the appellants fairly admits that since the suit for declaration of right, title and interest as well as confirmation of possession over the suit land filed by the appellants/plaintiffs was based on an unregistered deed of sale, hence, there may not be any good ground available to the appellants to assail the decree of dismissal of their Title Suit in second Appeal No. 75/2007. Mr. Ghosh, however, emphatically submits that having regard to the pleaded stand of the plaintiffs that their predecessor-in-interest had been in continuous physical possession over the suit land even before the execution of the purported sale deed dated 08/04/1976 and in view of the admission made by the defendants that it was the father of the plaintiff no.1 Brojendra Ghose, who was in possession of the suit land, the learned Court below could not have decreed the counter claim filed by the defendants by completely ignoring the plea of protection of possession taken by the plaintiffs under Section 53-A of the Transfer of Property Act. 10. Mr. B.K. Bhattacherjee, learned counsel representing the respondents, on the other hand, submits that the possession of the father of the plaintiff no.1 over the suit land was a permissive possession under his clients and, therefore, Section 53-A of the transfer of Property Act would not have any application in the facts and circumstances of the present case. In such view of the matter, according to the learned counsel for the respondents, the substantial question of law sought to be urged by the appellants does not arise for decision in the present appeal. 11. I have considered the submissions made by the learned counsels for the parties and have also gone through the record. 12. In so far as RSA 75/2007 is concerned, the claim of the plaintiffs for declaration of their title over the suit land is admittedly based on possession of their father Brojendra Ghose over the land on the basis of an unregistered deed of sale. 12. In so far as RSA 75/2007 is concerned, the claim of the plaintiffs for declaration of their title over the suit land is admittedly based on possession of their father Brojendra Ghose over the land on the basis of an unregistered deed of sale. It is settled law that in view of the provisions of Section 17(1)(b) of The Registrations Act,1908, no right can be created or extinguished over immovable property valued in excess of Rs. 100/- by means of any un-registered instrument. Since, it is the admitted case of the appellants that there is no registered deed of sale executed by the original owner Bulbuli Mura in favour of their predecessor-in-interest pertaining to the suit land, hence, the question of declaration of the title of the plaintiffs over the suit land by the civil court cannot arise in the facts and circumstances of the case. As such, I am of the opinion that the learned Courts below had rightly dismissed the suit filed by the plaintiffs and there is no merit in RSA 75/2007. 13. Coming to the facts of RSA 85/2007, as has been indicated above, this appeal has arisen out of the decree passed in counter-claim of the contesting defendants/respondents. It may be noted herein that both parties admit that proforma defendant no 1 Bulbuli Mura was the owner of the suit land . But the defendants have not claimed that the suit land was under the possession of the proforma defendant No 1 on the date of execution of the registered sale deed by Bulbuli Mura in favour of Lila Rani Rakshit i.e. on 08/04/1976. On the contrary, it is the pleaded stand of the defendants Nos. 1 and 2 that Brojendra Ghosh was in permissive possession in respect of the suit land. The claim of the plaintiffs on the other hand is that Brojendra Ghose continued to remain in possession over the suit land since the year 1975 on the strength of an unregistered deed of agreement for sale and to that extent, they had taken the plea of protection of their possession over the land under Section 53-A of the Transfer of Property Act. 14. 14. A scrutiny of the pleadings on record goes to show that although there was a specific plea taken by the plaintiffs in their written statement asserting their rights under section 53-A of the Transfer of Property Act, yet no issue was framed on the said aspect of the matter. The court below has also not recorded any finding on the point as to who was in possession of the suit land on the date of execution of the registered deed of sale dated 8/4/1976 in favour of Lila Rani Rakshit. This aspect of the matter assumes great significance in view of the admission of the defendants that Brojendra Ghose was in possession of the suit land. Although the defendants have claimed that it was permissive possession, but I find from the record that the court below has not recorded any finding on the above claim of the defendants. 15. In the backdrop of the pleaded stand of the plaintiffs that Brojendra Ghosh was in continuous possession of the suit land and continued to possess the same on the strength of the unregistered deed of agreement for sale dated 27/02/1975, the learned court below committed an error in the eye of law in decreeing the counter-claim without recording any finding on the question of legitimacy of the possession of the suit land by Brojendra Ghosh. A factual determination of the aforesaid aspect of the matter would have a significant bearing on the fate of the counter-claim of the defendants and also in answering the plea of the plaintiffs under Section 53-A of the Transfer of Property Act, which plea ought to have been dealt with by the learned court below having regard to the facts and circumstances of the present case. A determination of the fact as to whether Bulbuli Mura had delivered the physical possession of the suit land to the defendant no 2 would also go to throw light as to whether execution of the registered deed of sale dated 08/04/1976 was merely a paper transaction or not . It was incumbent upon the court below to record proper findings on the aforesaid aspects of the matter before decreeing the counter-claim of the defendants/respondents declaring their title over the suit land, which exercise has evidently not been done in the present case. The impugned decree is, therefore, not sustainable in law on such count alone. 16. It was incumbent upon the court below to record proper findings on the aforesaid aspects of the matter before decreeing the counter-claim of the defendants/respondents declaring their title over the suit land, which exercise has evidently not been done in the present case. The impugned decree is, therefore, not sustainable in law on such count alone. 16. By referring to the evidence available on record, more particularly the testimony of PW-1 and 2, learned counsels for both the parties has urged upon this Court to record a finding on the question of possession of the respective parties over the suit land and thereafter, decide the second appeal on merit. However, it is settled law that the second appellate Court would not record a finding fact for the first time in a matter that has not been gone into by the courts below. 17. In view of what has been discussed hereinbefore, I am of the considered opinion that this Court is left with no option but to remand the matter for a fresh decision on the counter-claim by the first appellate Court, after recording a finding on the aforesaid aspects of the matter. Consequently, RSA No 75 of 2007 stands dismissed whereas RSA No. 85 of 2007 stands allowed to the extent indicated above. 18. Parties would now appear before the Court of learned District Judge, Morigaon on 05/09/2016 for receiving further orders that may be passed by the learned first Appellate Court. Send back the LCR There would be no order as to cost.