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2017 DIGILAW 40 (GAU)

Osman Gani Mollah v. Ishrawati Devi

2017-01-09

KALYAN RAI SURANA

body2017
ORDER : 1. Heard Mr. S.K. Saharia, learned counsel for the petitioner. Also heard Mr. B.D. Deka, learned counsel for the respondent. 2. By filing this revision under Section 115 of the Code of Civil Procedure, the petitioner has challenged the legality and validity of the judgment dated 29.09.2016 as well as the decree drawn up on 07.10.2016 by the learned Civil Judge, Goalpara in Title Suit No. 13/2007, thereby decreeing the suit of the plaintiffs/respondents for recovery of the khas possession of the suit land. Mr. Saharia submits that the title suit was filed under Section 5 and 6 of the Specific Act, 1963 for recovery of possession of immovable property. However, as many as seven following prayers were made in the plaint: (i) For a decree to recover possession of the suit land described in Schedule-C of the plaint by evicting the Defendants, their men, women & agents therefrom. (ii) For a declaration that the new construction, made by the Defendants on the suit land in spite of Plaintiffs’ protests, are accretions to the suit land and the Plaintiffs are entitled to retain the same along with the suit land. (iii) Alternatively, for a decree of declaration that the Plaintiffs have right, title and interest to the suit land and also for a decree of khas possession of the suit land by evicting the Defendants, their men, women & agent by demolishing and removing the house and other structures therefrom at the costs of the Defendants. (iv) For a declaration that the Defendants have no right to dispossess the plaintiffs from the suit land without due process of law and that the Plaintiffs, for said reason, have acquired right to recover possession of the suit land by evicting the Defendants, their men, women & agents therefrom. (v) For a declaration the Sale Deed No. 1393/1166 dated 22.10.2007, Sale Deed No. 1392/1165 dated 22.10.2007, Sale Deed No. 1391/1164 dated 22.10.2007, Sale Deed No. 1370/1147 dated 09.10.2007, Sale deed No. 1371/1148 dated 09.10.2007, Sale Deed No. 1372/1149 dated 09.10.2007 and Sale Deed No. 1373/1150 dated 09.10.2007 are fraudulent invalid, void & inoperative and for a decree of cancellation of said sale deeds. (vi) For a decree of manse profit @ 3000.00 (Rupees three thousand) per month from the date of institution of the suit till the date of recovery of possession of the suit land provided the suit is not decreed U/S 6 of the Sp. R. Act. (vii) For costs and other reliefs to which the Plaintiffs are entitled to under law and equity. 3. On the perusal of those prayers would indicate that not only the plaintiff/respondent had prayed for declaration but also for decreeing of mense profit as well as for decree to recover possession. The petitioners herein, were the defendants No. 1 to 11 and 14 to 21 in the said suit and they had contested the suit by filing their written statement as well as the counter claim. By the said written statement cum counter claim, not only the said petitioners/defendants had set up a case claiming title but also justified their physical possession over the said suit land. In the counter claim the following prayers were made: (i) A decree be passed declaring that the deeds of sale vide nos. 715/576 dated 11.05.2007 and 1086/889 dated 24.07.2007 executed by Nirendra Ch. Das in favour of the plaintiff No. 1 and 2 respectively are void and inoperative ab-initio which are subject to cancellation. (ii) A decree be passed declaring that the sale deeds vide No. 1393/1166 dated 22.10.2007 in favour of defendants No. 1, 2, 3 and 4; 1391/1164 dated 22.10.2007 in favour of defendant No. 6 and 1392/1165 dated 22.10.2007 in favour of defendant No. 5 all executed by defendants No. 12, 13, 14 and 15 and sale deeds vide No. 1370/1147 dated 09.10.2007 in favour of defendants No.7; 1373/1150 dated 09.10.2007 in favour of defendant No. 2 all executed by defendants No. 16, 17, 18, 19, 20 and 21 are bona-fide and valid. 4. The learned Trial Court on perusal of the materials on record framed as many as seven issues as follows: (i) If there any cause of action for the suit? (ii) Is the suit is maintainable in its present form and manner? (iii) Whether the plaintiff’s were possession the suit land prior to the alleged dispossession on 04.11.2007? (iv) Whether the defendants, on 04.11.2007, dispossessed the plaintiffs from the suit land, without his consent, by any means otherwise than in due course of law? (ii) Is the suit is maintainable in its present form and manner? (iii) Whether the plaintiff’s were possession the suit land prior to the alleged dispossession on 04.11.2007? (iv) Whether the defendants, on 04.11.2007, dispossessed the plaintiffs from the suit land, without his consent, by any means otherwise than in due course of law? (v) Whether the plaintiff’s have instituted this suit within 6(six) months from the date of dispossession? (vi) Whether the plaintiff’s are entitled to get a decree for recovery of possession of the suit land? (vii) To what reliefs the parties are entitled to? 5. At the time of trial, the plaintiffs’ side examined six witnesses and exhibited twelve documents and the defendant side had examined as many as ten witnesses and exhibited eight documents. The Trial Court primarily decided the issue of dispossession of the plaintiffs from the suit land in exercise of jurisdiction under Section 6 of the Specific Relief Act and decreed for the recovery of the possession of the suit land from the possession of the defendants. 6. Mr. B.D. Deka, learned counsel for the respondents No. 1 and 2/caveator has argued in support of the impugned judgment by submitting that although many reliefs were sought for in the plaint, but from the cause title of the said plaint it was apparent that the suit was filed by the respondents No. 1 and 2 under Section 6 of the Specific Relief Act and therefore, notwithstanding the other reliefs sought for in the plaint, there was no infirmity in the order passed by the learned court in exercise of section 6 of the Specific Relief Act. He submits that the respondents No. 1 and 2 have been able to prove that they were dispossessed from the suit land within a period of six months prior to the date of institution of the suit and, as such, the said finding of fact is not liable to the disturbed by the revisional court as the evidence cannot be re-appreciated by a revisional court and the court is only require to see whether or not there was a jurisdictional error by the learned Trial Court in terms of the provisions of Section 115 of the Code of Civil Procedure. 7. 7. It is submitted by the petitioners that although the suit was presented under Section 5 and 6 of the Specific Relief Act, but it was not tried summarily by the learned Trial Court as the learned Trial Court had also entertained the counter claim, and owing by the nature of prayers made in the plaint, the suit ought to have proceeded as a regular title suit and the learned Trial Court should have conclusively decided the issues raised before it so as to determine the right title interest and possession of the respective parties in respect of the suit land. 8. On perusal of the materials available on record, it is apparent that the dispute between the parties is not only the issue of possession over the suit land by the contesting parties, but the devolution of the right over the suit land in respect of the various pattadars are also highly disputed. The shares of various pattadars are also in dispute and consequently, various sale deeds executed by the various pattadars are also matters of dispute in the present suit and consequently, the matter of possession of the parties over the suit land is also highly disputed by all the contesting parties. Therefore, this Court is of the opinion that the mere decision by the court as to possession in exercise of power under Section 6 of the Specific Relief Act will not be rendering a complete justice between the parties as those disputed facts would remain to be a bone of contention between all the parties. This Court is of the opinion that the suit under Section 6 of the Specific Relief Act is normally decided in a summary manner without adjudicating the right title interest and possession of the respective parties, but in the present case in hand as both the parties have raised their respective claim and counter claim in the suit there is also a possibility that the decision in this Title Suit No. 13/2007 may be treated as a final decision akin to that passed in a regular trial and may in the way of adjudicating the issues of right title interest and possession in a subsequent suit. 9. 9. This Court is of the opinion that as the learned court below had found the respondents/plaintiffs to have been dispossessed from the suit land on 04.11.2007 and they had filed the suit on 28.11.2007, they had approached the Trial Court within time as prescribed by law as regards dispossession of the respondent/plaintiff from the suit land the learned Trial Court has held in respect of issue No. 3 and 4, that the plaintiffs were in possession of the suit land, believing such possession to be highly probable and believable and that they were forcefully dispossessed on 04.11.2007 , this Court is not inclined to shift through the evidence in order to find out whether there can be any other view as regards the possession and/or dispossession by holding that even if the second view is possible, the revisional court will not normally substitute its view with the one held by the Trial Court which had duly discussed the entire evidence on record while holding that the plaintiff was disposed from the suit land on 04.11.2007. Consequently, the decree passed by the learned Civil Judge, Goalpara for repossession of the land from the defendant and handing over the same to the plaintiff was justified and the same is upheld. The said decree is liable to be executed in accordance with law. 10. However, this Court finds that as there are other issues which were essential for determine the right title interest and possession of the parties. 11. Consequently, the judgment and decree upheld insofar as the decree passed under Section 6 of the Specific Relief Act is concerned and the judgment and decree is modified by remanding the suit back to the court of Civil Judge, Goalpara to decide the other issues considering the respective right, title, interest and possession in respect of the suit land and parties, the learned court shall re-frame the issues if necessary and allow the parties to lead fresh evidence only in respect of recasted and/or re-framed issues. 12. It is made clear that if any party is found entitled to be in possession in the suit land, it shall be within the power and jurisdiction of the learned court below to pass a fresh decree to determine as to who should be lawfully in possession of the suit land. 13. This Court puts on record the appreciation of the assistance by Mr. 13. This Court puts on record the appreciation of the assistance by Mr. S.P. Roy, learned counsel who was requested by this Court to assist in the matter. 14. With the above directions the judgment and decree passed by the learned Civil Judge, Goalpara stands modified. The Revision Petition is disposed of accordingly.