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2017 DIGILAW 1523 (GAU)

Purnendu Sen Mazumder v. Shyamali Sen Mazumder

2017-12-11

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. S. Ali learned counsel appearing for the appellant as well as Mr. A. Mannaf learned counsel for the respondent. By this appeal under section 96 CPC, the appellant, who is the defendant in the suit has challenged the judgment and decree dated 08.05.2013 passed by the learned Additional Deputy Commissioner, Dima Haso, Haflong in T.S. No. 8/08, thereby decreeing the suit of the respondent/plaintiff. 2. The case of the respondent/plaintiff in brief is that on 26.05.2000 her mother Late Lilabati Sen Mazumder had donated 1-Katha land covered by periodic patta No. 117, Dag No. 238 at Haflong town out of 4-Katha land owned by her to the respondent/plaintiff. The appellant herein who is the defendant in the suit after the death of their mother applied for transfer of 4-Katha of land in his name without knowledge of the respondent. It is projected that the respondent had submitted her objection against the mutation of the land of the respondent in respect of the said land. 3. However, on finding that the Revenue official are not taking any steps for which she had filed a suit for declaration, claiming for a decree of title in respect of 1-Katha land, which was transferred in the name of the appellant. The respondent has also prayed for cost of the suit and any other relief which she may be entitled to. 4. The appellant contested the suit by filing his written statement with counter-claim, wherein a stand was taken that the affidavit by which their mother had donated 1 -Katha land to the respondent, although said to be enclosed as Annexure-1 to the plaint, but the said document was actually not filed along with the plaint The appellant further pleaded that the transfer by way of gift was without fulfilling the ingredients of the provisions of 123 of the Transfer of Property Act and, as such, the affidavit for the purpose of recording the gift was not tenable. All other averments made in the plaint was also denied. All other averments made in the plaint was also denied. By taking a plea that the respondent had illegally occupied 1 Katha land, the appellant had filed a counter-claim, inter-alia, prayed for dismissal of the suit with compensatory cost, for declaring him as the sole pattadar in respect of the land described in the schedule-I and houses standing thereon with further declaration that only the appellant had the right, title and interest over the said land and that the respondent was an unauthorized occupier of the house described in Schedule-II for which the respondent was liable to pay compensation to the appellant for unauthorized use of Schedule-II house from June 2006 to May 2009, and for eviction of the respondent for permanent and temporary injunction and other reliefs. 5. The learned Trial Court on the basis of pleadings, framed the following issues for trial: 1. Is there any cause of action? 2. Whether the Plaintiff has acquired any right over 1 katha of land donated by her mother? 3. Whether the defendant is the sole owner of 4 kathas of land belonging to his mother? 4. To what relief the plaintiff is entitled to? 6. In respect of issue No. 1, it was held that there was cause of action for the suit. In respect of issue No. 2, the learned Trial Court accepted the affidavit as the donation of 1 Katha of land to the respondent and it was held that she was in physical possession of the plot of land and therefore, the issue No. 2 was decided in favor of the respondent by declaring that the respondent had acquired right over the plot of land measuring 1-Katha donated by her mother. In respect of issue No. 3, it was held that the respondent had every right to claim her share since the land was her paternal property and therefore, it was also held that it was possible to manipulate the application for mutation of 4-Katha land in favor of the applicant by manipulating 3-Katha land into 4-Kathas land and therefore, the issue No. 3 was decided in favor of the respondent. 7. 7. Accordingly, in respect of issue No. 4 it was held that the respondent was entitled to get reliefs as prayed for in the plaint and it was declared that the respondent was one of the legal heirs of Late Lilabati Sen Mazumder and that she was entitled to get her share as legal heir as well as because her mother had donated 1-Katha land in her favor and the respondent was permitted to approach the Revenue Authority to get her name mutated over the said 1 -Katha of land. Aggrieved by the said judgment and decree dated 8.5.2013 passed by the learned Trial Court, this appeal has been preferred. 8. The learned counsel for the appellant submits that in the present case in hand, the respondent did not give any evidence and did not prove any documents. On the other hand, the appellant had submitted bis evidence on affidavit, but the respondent did not cross-examine the witness of the appellant/plaintiff and therefore, every statement made in the evidence of affidavit by the appellant remained un-contradicted. However, the learned Trial Court by totally ignoring the evidence-on-affidavit submitted by the appellant, decided the suit in favor of the respondent/plaintiff. It is submitted that in the process neither the evidence of the appellant was discussed, nor any judgment or decree was passed in the counter-claim as if the learned Trial Court had totally ignored the evidence as well as the counter-claim set up by the appellant. 9. It is further submitted that as the respondent could not prove the existence of the valid gift deed and, as such, the impugned judgment and decree passed by the learned Trial Court was totally perverse, dehors the pleadings and evidence on record because the respondent had not been able to prove any statement made in the plaint by not adducing any evidence and thereby, did not face any cross-examination. The learned counsel for the appellant prays for a decree of reversal in the suit and for a decree in the counterclaim. 10. The learned counsel for the appellant prays for a decree of reversal in the suit and for a decree in the counterclaim. 10. Per contra, the learned counsel for the respondent has referred to the submissions made in the plaint and submits that as the respondent was one of the legal heirs and her deceased mother, namely, Late Lilabati Sen Mazumder, the respondent had an indefeasible right over the suit land and, as such, she could not be evicted and hence, there was no ground for either interfering with the judgment passed in the suit or for allowing the prayers made in the counter-claim, which was rightly ignored by the learned Trial Court. 11. It is submitted that the gift by way of an affidavit was rightly accepted by the learned Trial Court. 12. On the basis of submissions made by the learned counsels for both sides, the only point of determination in this case is that whether the suit of the respondent/plaintiff could have been decreed without any evidence on her behalf and whether the learned Trial Court was correct in ignoring the evidence-on-affidavit filed by the appellant/defendant? 13. This Court has perused the Trial Court's record. The said part does not show that any evidence on affidavit was filed by the respondent. A perusal of the order sheet of T.S. 8/08, it appears that by order dated 6.9.2011, the respondent had verbally prayed for time to produce witnesses and accordingly, the next date for production of plaintiff's witness was fixed on 30.03.2012. Subsequent orders dated 30.03.2012, 10.4.2012, 21.4.2012, 30.4.2012, 16.5.2012, 11.6.12, 19.6.2012, 1.8.2012, 4.9.2012, 10.1.2013, 19.2.2013 shows that the respondent/plaintiff did not pray for any further time to produce her witness and she had herself did not lead any evidence in the suit. 14. The appellant had filed evidence on affidavit on 04.05.2012. The said evidence on affidavit was directed to be put up on the CR. There is no order by the learned Court to accept the said evidence on affidavit filed by the appellant i.e. DW 1. By order dated 20.3.13, it is recorded that by the learned Trial Court that the documents produced by both the parties have been perused and the parties were heard and the suit was fixed for judgment on 08.05.2013 and on the said date, the judgment was passed. 15. By order dated 20.3.13, it is recorded that by the learned Trial Court that the documents produced by both the parties have been perused and the parties were heard and the suit was fixed for judgment on 08.05.2013 and on the said date, the judgment was passed. 15. Therefore, it is seen that the respondent/plaintiff did not prove any pleading and did not exhibit any documents. 16. In the absence of marking of any documents as exhibit, it is a case where there appears to be no evidence of the respondent on record. The learned Trial Court has not recorded any reason in discarding the evidence filed by the appellant or to indicate why no part of the evidence on affidavit filed by the appellant was considered in the impugned judgment dated 08.05.2013. 17. Having seen that no evidence on affidavit has been tendered by the respondent and the purported gift to the respondent by mother of the parties having not been proved in accordance with law, this is a case where there is total absence of evidence from the respondent/plaintiff. Therefore, the title declared by the learned Trial Court is not sustainable in the eye of law. 18. Having seen that if the appellant/defendant had submitted his evidence-on-affidavit on record, the absence of any finding in respect of the counter-claim made by the appellant is also not sustainable. At this stage, the learned counsel for the appellant submits that ideally the appellant was required to file two appeals, one for the decree passed in the suit and the other so far as the counterclaim is considered. However, in the present case as the learned Trial Court did not touch the counter-claim by which neither counterclaim is allowed nor the counter-claim is dismissed, the non-filing of the two appeals cannot be said to be fatal. On considering the said submissions made by the learned counsel for the appellant, it is found to be a case where the decree is not found to be sustainable. In so far as the counter-claim of the appellant is concerned it is deemed to be in the interest of justice to remand the counter- claim back to the learned Trial Court. The point of determination as formulated above is answered accordingly. 19. In so far as the counter-claim of the appellant is concerned it is deemed to be in the interest of justice to remand the counter- claim back to the learned Trial Court. The point of determination as formulated above is answered accordingly. 19. On receipt of the copy of the order, the learned Trial Court is directed to frame the following issues:- (i) Whether the counter-claim is maintainable in facts and law? (ii) Whether the defendant is entitled to relief as prayed for? 20. The learned Trial Court shall grant opportunity to the respondent to cross-examine the DW and thereafter the learned Trial Court shall proceed to decide the matter in accordance with law. As there is no formal order in the Trial Court's record for accepting the counter-claim and to allow the respondent/plaintiff to submit their written statement, the learned Trial Court shall offer an opportunity to the plaintiff to submit their written statement against the counterclaim if, so advised Accordingly, if the respondent avails such opportunity, then the appellant/defendant shall be at liberty to file additional evidence-on-affidavit if so advised. And thereafter, the counter-claim shall proceed in accordance with law. 21. As per the case record it appears that the parties are siblings, therefore, the learned Trial Court shall make an endeavor for a amicable settlement of the dispute between the parties either under the provisions of Order XXXII-A or under section 89 CPC as deemed appropriate, and on failure of any settlement, the case/counter-claim in T.S. No. 8/08 would proceed in accordance with law. 22. Therefore, in view of the discussions made above, the judgment and decree passed by the learned Additional Deputy Commissioner, Dima Haso, Haflong in T.S. No. 8/08, is not found sustainable and the same is hereby set aside by dismissing the suit filed by the respondent and the counter-claim filed by the respondent is remanded back for fresh adjudication on the basis of the above mentioned issues as formulated by this Court. 23. However, it is made clear that the Court would be at liberty to re-frame the other issues on the basis of the materials available on record if so required. 24. 23. However, it is made clear that the Court would be at liberty to re-frame the other issues on the basis of the materials available on record if so required. 24. Both the parties who are duly represented by the learned counsel are directed to appear before the learned Court of Munsiff, Dima Hasao District, Haflong on 18.01.2018 without any further notice on such appearance, by producing a certified copy of this order, the parties shall seek further instruction from the said learned Court. 25. Let the LCR be returned forthwith to the Court of Munsiff, Dima Hasao District, Haflong as in the meanwhile, Civil Courts have been established in the District. 26. The decree be prepared accordingly. The appeals stands allowed.