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2017 DIGILAW 599 (GAU)

Gobinda Goala v. Hari Nandan Goala

2017-05-17

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. S Nath, learned counsel appearing on behalf of the appellants and Ms. S Senapati, learned counsel appearing on behalf of the respondents. 2. This second appeal is against the judgment and decree dated 31.03.2016 passed by the learned Civil Judge No. 1, Cachar at Silchar in title appeal No. 17/2013. The present appellants are the plaintiffs in title suit No. 42/2001 which was filed in the court of learned Munsiff No. 2, Cachar at Silchar. The plaintiff appellants’ plea that the suit land was owned by her father, one Ramhit Goala which was sold to him by one Ramjosh alias Ramjoy Goala. Since then the father of the plaintiffs were enjoying the possession over the suit land. The said sale took place by way of registered sale deed bearing No. 5476 dated 14.10.1966 and on the death of Ramhit Goala the plaintiff appellant No. 2 being the daughter of Ramhit Goala has been residing in the homestead land so purchased and also cultivating the agricultural land with her husband. The principal defendant No. 1 started digging the suit land forcibly following which a proceeding under Section 145/146 of the Cr.P.C. was drawn up. However, the same had to be dropped on the question of maintainability of the same. The plaintiffs/appellants came to know on enquiry that the principal defendant No. 1 in collusion with one Ramswarup Goala and his son Ramjosh alias Ramjoy Goala (the vendor of Ramhit Goala) filed title suit No. 12/1968 in the court of Assistant District Judge No. 2, Cachar in respect of land of the suit patta. The defendants/respondents on the suit being dismissed, preferred title appeal No. 7/1969 before the learned District Judge, Cachar at Silchar and thereafter second appeal No. 100/1973, which was renumbered as second appeal No. 41/1983 was preferred before this court and in the said second appeal vide order dated 08.01.1998 as revealed that a compromise had been effected between the parties on 01.04.1984 in title suit No. 12/1968. The plea was taken by the plaintiffs/appellants that prior to filing of the suit the suit land was transferred to Ramhit Goala in the year 1966 and as such in order to deceive the plaintiffs/appellants of their legitimate right of Schedule 1 land the suit was filed and subsequently the same was compromised. The plea was taken by the plaintiffs/appellants that prior to filing of the suit the suit land was transferred to Ramhit Goala in the year 1966 and as such in order to deceive the plaintiffs/appellants of their legitimate right of Schedule 1 land the suit was filed and subsequently the same was compromised. Therefore, the plaintiffs/appellants preferred the suit for declaration of right, title and interest over the schedule 1 land and confirmation of possession. It was also prayed for declaration that the decree obtained by the principal defendant No. 1 in title suit No. 12/1968, title appeal No. 7/1969 and the purported decree of compromise in second appeal No. 41/1983 and the compromise effected on 01.04.1984 are fraudulent and not binding upon the plaintiff appellants and for permanent injunction. 3. The defendant respondents entered appearance and filed their written statement. They took a specific plea tha the suit referred above by the plaintiffs/appellants was filed and numbered as title suit No. 74/1965 in the court of the learned Sub-Judge No. 1, Silchar on 15.11.1965 which was renumbered as title suit No. 289/1966 which was further renumbered as title suit No. 12/1968. The sale deed so executed in favour of Ramhit Goala on 14.10.1966 was during the pendency of the suit as aforesaid and the sale is hit under Section 52 of the Transfer of Property Act and as such the plaintiffs/appellants are bound by the judgment and decree of title suit No. 12/1968. It was also pleaded in the written statement that the boundary of plot No. 1 of schedule 1 of title suit No. 12/1968 measures an area of 6B 0K 1Ch but the same inadvertently shown as 4B 8K 5Ch 10G and that they are in continuous possession over the suit land which was under the Ramjoy Goala for more than 30 years. Accordingly, the defendants/respondents prayed for dismissal of the suit. 4. The learned trial court framed various issues and out of it the issue No. 6 which was with respect to the plaintiffs’ right, title and interest over the land described in schedule 1 was decided and as to whether they entitled for declaration of confirmation of possession. Accordingly, the defendants/respondents prayed for dismissal of the suit. 4. The learned trial court framed various issues and out of it the issue No. 6 which was with respect to the plaintiffs’ right, title and interest over the land described in schedule 1 was decided and as to whether they entitled for declaration of confirmation of possession. The learned trial court came to the finding against the said issue No. 6 holding that the Exhibit-6 (the registered sale deed in favour of Ramhit Goala) was executed during the pendency of title suit No. 12/1968 and vide Exhibit-A (the judgment) the learned trial court came to the conclusion that the Bhagi right and possession of Raj Kumar Goala over the suit land was declared and subsequently affirmed vide Exhibit-3. Thus under section 52 of the TP Act, the plaintiffs/appellants are bound by the judgment and decree of the said title suit inasmuch as the land measuring 6B 0K 1Ch was identifiable. It was also held further that the plaintiffs/appellants failed to bring any substantial piece of evidence to show that the title suit No. 12/1968, title appeal No. 7/1969 and second appeal No. 41/1983 are collusive. Giving the said findings in issue No. 6, the learned trial court decided the rest of the issues against the plaintiffs/appellants. The said judgment and decree was affirmed by the learned first appellate court in title appeal No. 17/2013 by the judgment and decree dated 31.03.2016 passed by the learned Civil Judge No. 1, Cachar at Silchar. Being aggrieved, the plaintiffs/appellants have filed this second appeal. 5. Mr. S Nath, learned counsel for the appellants, submits that the learned courts below ought to have examined the submission of the plaintiffs/appellants, inasmuch as, it is their case that Ramjosh Goala was the owner with regard to 10 Bighas and odd land out of total 20 Bighas and odd land. Under such circumstances, Ramjosh Goala had sold the land to Ramhit Goala by the said sale deed in the year 1966 to an extent area measuring 6B and odd leaving another 4B with Ramjosh Goala. As such, there is perversity in the findings of both the learned courts below. 6. Per contra, Ms. Under such circumstances, Ramjosh Goala had sold the land to Ramhit Goala by the said sale deed in the year 1966 to an extent area measuring 6B and odd leaving another 4B with Ramjosh Goala. As such, there is perversity in the findings of both the learned courts below. 6. Per contra, Ms. Senapati, learned counsel for the respondents, submits that the plaintiffs/appellants failed to bring on record that Ramjosh Goala was the absolute owner with respect to 10 B of land as pleaded in the plaint nor could they show before the learned courts below that the compromise decree so referred in their pleadings was a collusive one. Under such circumstances, the findings of both the courts below need not be interfered with by this court inasmuch as law is clear that if a party to a suit transfers any immovable property during the pendency of the said suit, the said sale is subject to the outcome of the suit pending during the said sale transaction. 7. This court considered the submissions of both the learned counsels and also perused the judgments passed by both the courts below. The submission of Mr. Nath, if considered, is a clear question of fact and on the other hand the submission of Ms. Senapati is a clear question of law. The findings of both the courts below cannot be held to be perverse, inasmuch as, both the courts below had examined the relevant judgment passed in the title suit No. 12/1968 and came to a final conclusion that the land involved in the earlier suit is similar to the one involved in the present suit. This has reference of the evidence on record of none other than the PW 1 who is one of the plaintiffs/appellants. Accordingly, this court finds no substantial question of law involved in the second appeal and accordingly the same is dismissed. 8. This second appeal is accordingly disposed of.