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2017 DIGILAW 301 (GAU)

Dhanada Saikia v. Peshan Saikia

2017-03-09

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : Heard Mr. N.N. Upadhayaya, learned counsel for the appellants. None appears on call so far the respondents are concerned. The matter is long pending one and as such the same is taken up for disposal. 2. The appellants herein are the plaintiffs in title suit No. 12/2002 in the Court of learned Civil Judge (Sr. Divn.), Lakhimpur which was filed for declaration of title and possession. The suit was filed by the appellant plaintiffs against the defendant respondents and the facts of the case of the plaintiff appellants are that both the parties to the suit are the lineal descendants of late Golap Saikia. The said Golap Saikia had 4 sons along with one daughter and his wife. The property of late Golap Saikia were partitioned among the 4 sons, one daughter and his wife by way of a Village Batowara on 03.08.1969. The land involved in the suit is a plot of land measuring 4 Katha pertaining to Dag No. 812 and periodic Patta No. 372 of Lakhimpur Shahar under Nakari Mouza with an old house standing thereon described in the Schedule of the plaint. Golap Saikia died in the year 1965. As per the Village Batowara the suit land was jointly given to two of the brothers, namely, Jagat Saikia, husband/ father of the defendant respondents and Dulal Saikia, husband/ father of the plaintiff appellants. On the expiry of Dulal Saikia in the year 1984 his brother Jagat Saikia was looking after the suit land in all respect. Jagat Saikia also expired in the year 1994 leaving behind the defendant respondents No. 1 to 6 as legal heirs and successor-in-interest. The defendant respondents No. 2 to 4 have been looking after the suit land along with the house constructed by late Golap Saikia. The plaintiff appellant No. 1 sought mutation of her name in place of the original pattadar before the Circle Officer, North Lakhimpur. In that proceeding, the defendant respondents No. 2 to 4 objected against the mutation of the said plaintiff respondent No. 1 on the ground that the plaintiff appellants had no right, title and interest over the suit land on the ground that the defendant respondents acquired the suit land on the basis of a partition made between late Jagat Saikia and late Dulal Saikia. However, as the defendant respondents failed to prove their case, the Circle Officer passed the mutation order in favour of the plaintiff appellant No. 1 alone over the entire suit land. However, on an appeal preferred against the said order of the Circle Officer, the appellate Court allowed joint mutation of both plaintiff appellant No. 1 and the defendant respondents No. 2 to 4. Against the said order the plaintiff appellants did not prefer any appeal and the name of the plaintiff appellant No. 1 was allowed to be recorded as joint owner with the defendant respondents. The plaintiff appellant No. 1 through her counsel demanded the defendant respondents No. 1 to 4 to vacate half of the suit land and deliver possession thereof to the plaintiff appellant No. 1 by way of a notice dated 15.02.2002. Against the said notice, the defendant respondents replied that the share of late Dulal Saikia (predecessor-in-interest of plaintiff appellants) was given at Gobarisali Revenue Map under Nakari Mouza as per the partition. The defendant respondents did not deliver possession as demanded by the plaintiff appellants even after several demands. As per the plaintiff appellants, the possession of the defendant respondents over the entire suit land measuring 4 K was illegal and they are supposed to deliver possession of half of the suit land to the plaintiff respondents and as such they preferred the suit praying for declaration of right, title and interest and also for delivery of possession of the suit land. 3. The defendant respondents No. 1 to 4 contested the suit by filing a joint written statement. The main contention of the defendant respondents were that the suit land are not the joint property of late Jagat Saikia and late Dulal Saikia. After partition of their ancestral property there was an amicable partition between the said late Jagat Saikia and late Dulal Saikia, the predecessor-in-interest of the defendant respondents and the plainitiff appellants respectively with respect to the properties given to them jointly. The suit land with the rented house thereon was given to late Jagat Saikia and the cultivable land of 12 B 3 K which was physically 10 B of Gobarisali Revenue Map of periodic Patta No. 39 was given to late Dulal Saikia. On the death of Jagat Saikia and Dulal Saikia, their respective landed properties were enjoyed by their successor-in-interest. On the death of Jagat Saikia and Dulal Saikia, their respective landed properties were enjoyed by their successor-in-interest. It was also pleaded in the written statement that out 10 Bighas of land, Dulal Saikia during his life time sold 3 B 15 L to one Rupiram Gogoi without the consent and information of the defendant respondents. Similarly, Soren Saikia, son of plaintiff appellant No. 1, sold 3 B of land to one Rumi Baruah without the consent and information of the defendant respondents. It was totally denied that there was joint possession and enjoyment of rent arising out of the suit land. 4. The defendant respondents further contended that by the Village Batowara dated 03.08.1969 the properties of late Golap Saikia were divided into three parts out of which one part was given to late Jagat Saikia and Dulal Saikia which includes the suit land and the house thereon along with 10 B of land of Gobarisali Revenue Map under Periodic Patta No. 39. Second part was allotted to Sri Lekhon Saikia and Sri Padmeswar Saikia, both sons of late Golap Saikia and the third part was allotted to the wife of late Golap Saikia and his daughter jointly. Thereafter it is the contention of the defendant respondents that there was no dispute amongst the legal heirs of late Golap Saikia till the date of filing the suit by the plaintiff appellants claiming half portion of the suit land. Thus, the defendant respondent prayed for dismissal of the suit. 5. The learned trial court on the basis of the pleadings of the parties framed the following issues:- 1. Whether there is any cause of action for the suit? 2. Whether the plaintiff has right, title and interest and possession over the suit land? 3. Whether the late husband of plaintiff No. 1 has exchanged the suit land with other land before filing of this suit? 4. Whether some portions of the suit land were sold out by the plaintiff before filing of this suit? 5. Whether suit is maintainable in its present form? 6. During the trial, both the parties adduced evidence supported by documentary evidence exhibited by both the parties. The learned trial court after perusal of the materials on record and on hearing the parties dismissed the suit of the plaintiff appellants vide judgment and decree dated 21.04.2004 passed in title suit No. 12/2002. 7. 6. During the trial, both the parties adduced evidence supported by documentary evidence exhibited by both the parties. The learned trial court after perusal of the materials on record and on hearing the parties dismissed the suit of the plaintiff appellants vide judgment and decree dated 21.04.2004 passed in title suit No. 12/2002. 7. Being aggrieved, the plaintiff appellants preferred title appeal No. 10/2006 and the learned first appellate Court after hearing both the parties dismissed the appeal vide judgment and decree dated 07.06.2007. 8. This second appeal is preferred by the plaintiff appellants challenging the judgment and decree dated 07.06.2007 passed in title appeal No. 10/2006 by the learned Additional District Judge (FTC), North Lakhimpur, Lakhimpur which was admitted on 04.01.2008 on the following substantial questions of law:- 1. Whether the principle of estoppels is applicable in case of Joint Family property against the plaintiff/ appellants on the plea of alienating some part of land other than the disputed land which was under his possession? 2. Whether the principle of estoppels by deed is applicable when there is no evidence at all about the existence of any Deed/ Agreement of partition between the parties? 3. Whether the rights & title of immovable property can be transferred on the strength of an agreement for sale? 4. Whether the defendants can claim the benefits of principle of estoppels against the plaintiff without challenging the Revenue’s Court decision of declaring equal rights over the disputed land which is known to her? 9. The first appellate Court while deciding the appeal concluded that the property of late Golap Saikia was divided into three shares and to that effect there was a Village Batowara and the same was recorded in Exhibit-1 and Exhibit-Ka. As per the said batowara (arrangement) the suit land measuring 4 K along with 10 B of cultivable land of Gobarisali Revenue Map were given jointly to late Jagat Saikia and late Dulal Saikia. The defendant respondents claimed that there was a mutual agreement between Jagat Saikia and Dulal Saikia whereby the suit land measuring 4 K was given to late Jagat Saikia, the predecessor-in-interest of the defendant respondents and the other land measuring 10 B of Gobarisali Revenue Map was given to late Dulal Saikia, the predecessor-in-interest of the plaintiff appellants. The defendant respondents claimed that there was a mutual agreement between Jagat Saikia and Dulal Saikia whereby the suit land measuring 4 K was given to late Jagat Saikia, the predecessor-in-interest of the defendant respondents and the other land measuring 10 B of Gobarisali Revenue Map was given to late Dulal Saikia, the predecessor-in-interest of the plaintiff appellants. However, the defendant respondents failed to produce any document or evidence to establish their claim and accordingly the learned first appellate Court came to the concurrent finding that there was no mutual agreement between Jagat Saikia and Dulal Saikia. 10. The learned first appellate Court while deciding the issue No. 2 with regard to the right, title and interest and possession of the plaintiff appellants over the suit land, held that Dulal Saikia, the predecessor-in-interest of the plaintiff appellants during his life time sold 3 B 15 L of land out 10 B of land to one Rupiram Gogoi and after the death of Dulal Saikia, his son Soren Saikia, the plaintiff appellant No. 6, sold another 3 B of land to one Smti. Rumi Baruah of Gobarisali Revenue Map under periodic patta No. 39. The learned first appellate Court also came to the finding that as late Dulal Saikia and his son Soren Saikia sold land measuring 6 B 15 L out of 10 B of Gobarisali Revenue Map which is more than half portion of 10 B of land allotted to the predecessor-in-interest of the plaintiff appellants and the defendant respondents, so the act of such sale makes it clear that there was no possession of the defendant respondents over the land of Gobarisali Revenue Map measuring 10 Bighas. Drawing such inference, the learned first appellate Court accordingly came to the conclusion that the plaintiff appellants have no right over the suit land measuring 4 K as they independently enjoyed 10 B of land of Gabarisali Revenue Map out of which they had already disposed of more than 50% of the total land. Thus, the plaintiff appellants are barred by the Doctrine of Estoppel to claim half of the suit land measuring 4 K under the provision of Section 115 of the Indian Evidence Act, 1872. Considering the same, the learned first appellate Court concurred with the findings of the learned trial Court. 11. Thus, the plaintiff appellants are barred by the Doctrine of Estoppel to claim half of the suit land measuring 4 K under the provision of Section 115 of the Indian Evidence Act, 1872. Considering the same, the learned first appellate Court concurred with the findings of the learned trial Court. 11. Considering the nature of the substantial questions of law so formulated, the substantial questions of law No. 1, 2 and 4 are discussed together. Mr. N.N. Upadhaya, learned counsel for the appellants, submits that the plea of estoppel is to be specifically taken in the written statement which the defendant respondents had failed to take. He also submits that to be an estoppel by deed there must be in existence of any deed/agreement of partition between the parties. But in the case in hand, both the learned courts below concurrently came to the conclusion that the defendant respondents failed to produce any document or evidence to establish their claim that there was an arrangement between late Jagat Saikia and late Dulal Saikia whereby Dulal Saikia gave up his share of the suit land in exchange of the share of late Jagat Saikia over 10 B of land in Gobarisali Revenue Map. Under such circumstances, the principle of estoppel by deed cannot be invoked by the learned courts below. Mr. Upadhaya further submits that the defendant respondents allowed the name of Smti. Dhanada Saikia, the plaintiff appellant No. 1 to remain in the Jamabandi of the suit land as the co-owners along with the defendant respondents No. 1 to 4 and the same has attained its finality. Under such circumstances, the defendant respondents cannot claim the benefits of the principle of estoppel against the plaintiff appellants, inasmuch as, knowing fully well that the plaintiff appellants are entitled to share the suit land with the defendant respondents. So the learned counsel submits that the substantial questions of law are to be decided in the affirmative. 12. Considered the submissions of the learned counsel for the appellants, perused the case records along with the exhibits including the Exhibit-1 and Exhibit-Ka and recordings of the family settlement. So the learned counsel submits that the substantial questions of law are to be decided in the affirmative. 12. Considered the submissions of the learned counsel for the appellants, perused the case records along with the exhibits including the Exhibit-1 and Exhibit-Ka and recordings of the family settlement. In the written statement, the defendant respondents took the defence that late Jagat Saikia and late Dulal Saikia later on after partition of their property inherited from late Golap Saikia again amicably entered into partition between them and accordingly the suit land with the rented rooms thereon was given to late Jagat Saikia with an intention of having an earning source for him and in lieu of the said share, late Dulal Saikia as he had his service took entire cultivable land of 10 B of Gobarisali Revenue Map under periodic patta No. 39. The findings of both the courts below to the said pleadings of the defendants/respondents are against the said pleadings and both the learned courts below held that there was no mutual arrangement as pleaded by the defendant respondents. The case of the plaintiff appellants is specific that their predecessor-in-interest late Dulal Saikia is entitled to 50% share of the suit land measuring 4 K whereupon the rented house is standing. From the concluded facts arrived at by both the learned courts below it is very much apparent that the plea of the defendant respondents that there was an agreement between late Jagat Saikia and late Dulal Saikia on the basis of which late Dulal Saikia waived particular right promising that he would not press that right in the future in consideration of the alleged agreement is disproved. Now let us consider the effect of mutation from the point of principle of estoppel. It is the case of the plaintiff appellants that the plaintiff appellant No. 1 applied for mutation of her name on the Record of Rights (ROR) of the suit land measuring 4 K. The same was objected by the defendant respondents. Even then the name of the plaintiff appellant No. 1 was allowed to be mutated without allowing the names of the defendant respondents No. 1 to 4 to be mutated. Thereafter appeal was preferred by the defendant respondents and the names of the said defendant respondents No. 1 to 4 were allowed to be mutated along with the plaintiff appellant No. 1. Thereafter appeal was preferred by the defendant respondents and the names of the said defendant respondents No. 1 to 4 were allowed to be mutated along with the plaintiff appellant No. 1. However, the said order and the mutation allowing the name of plaintiff appellant No. 1 to be mutated was never challenged by the defendant respondents No. 1 to 4 subsequently which has attained its finality nor the defendant respondents preferred any suit/ counter claim to enforce any such agreement except taking the plea in the suit filed by the plaintiff appellants. Now considering the concurrent findings of the learned courts below that there was no mutual arrangement between the predecessor-in-interest of the parties to the suit and the subsequent acts in allowing the name of the plaintiff appellant No. 1 to remain on the Records of Rights jointly with the defendant respondents No. 1 to 4 it can clearly be concluded that the principles of estoppel cannot be pressed in deciding the disputes between the parties to the suit. Section 115 of the Indian Evidence Act, 1872 is reproduced hereinbelow for ready reference:- “115. Estoppel.– When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” 13. The requirement for applying the said provision is that there must be a declaration, act or omission caused intentionally by a person permitting another person to believe a thing to be true and to act upon such believe by the other person and only under such circumstances, the person who made such declaration, act or omission or his representatives shall not be allowed to deny the truth of that particular declaration, act or omission in any suit or proceeding. 14. 14. As already discussed, the defendant respondents failed to prove that late Dulal Saikia had made any declaration giving up his share under suit land and coupled with said failure on the part of the defendant respondents, the act of allowing the name of the plaintiff appellant No. 1 to be mutated in the Records of Rights of the suit land along with the defendant respondents cannot give any rise for invoking the principles of estoppel or invoking the principles of Section 115 of the Indian Evidence Act, 1872. Both the learned courts below wrongly applied the principles of estoppel while deciding the dispute between the parties to the suit. Accordingly, the substantial questions of law No. 1, 2 and 4 are decided in the affirmative. 15. The substantial question of law No. 3 has no relevancy, inasmuch as, it is well settled that no right, title and interest of an immovable property can be transferred on the strength of an agreement for sale as per the provisions of Section 54 of the Transfer of Property Act. 16. This second appeal is accordingly allowed. The judgment and decree impugned in this appeal are set aside and the same is remanded to the learned first appellate Court to pass a judgment afresh keeping in view the observations made hereinabove. 17. Send back the lower court records immediately. 18. The learned first appellate court shall immediately on receipt of the records notify the parties to the appeal informing the date of appearance and thereafter make an endeavour to dispose of the appeal within a period of 3 months from the date of receipt of the lower court records. No order as to costs.