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2017 DIGILAW 639 (GAU)

Anwar Hussain Laskar A. v. Md. Sarif Uddin Mia

2017-05-23

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : Prasanta Kumar Deka, J. Heard Mr. S. Banik, the learned counsel appearing on behalf of the appellant. None appeared on behalf of the respondents though names of the learned counsels are shown in the cause list. Considering the length of pendency of this second appeal this is taken up for hearing. 2. The appellants herein are the plaintiffs in Title Suit No. 87/2003 preferred against the present respondents/defendants therein. The suit of the plaintiffs/appellants is for recovery of possession and permanent injunction simpliciter. The case of the plaintiffs/ appellants in brief is that the land described in Schedule-1 of the plaint belonged to Musod Ali, Kurman Ali, Sadim Ali, Azam Ali and Moimunnessa Bibi. Azam Ali died living behind his son Jamal Uddin and wife Harisha Bibi as his legal heirs inheriting land to the extent of his share in the suit patta. The said pattadars Musod Ali, Sadim Ali, Jamal Uddin and Harisha Bibi jointly sold their entire land of suit patta to one Siraj Uddin, son of other pattadar Kurman Ali. Since then, the said Siraj Uddin was in possession of 10K 8Ch of land in the suit patta till the transfer of such land by way of sale to one Faizuddin Laskar vide registered sale deed dated 06.04.1981 and delivered possession thereon. The said Faizuddin Laskar also purchased the entire share of the pattadar Kurman Ali from his legal heirs by two different sale deeds dated 11.02.1981 and 12.10.1981 and maintained his possession thereof. Faizuddin Laskar, accordingly became the owner of the land measuring 13K 4Ch in Dag No. 93 of second RS Patta No. 9 along with other land in other dags and patta of the same mouza. The said Faizuddin Laskar being the exclusive owner and in possession of the land of suit patta, transferred his entire right, title and interest over his total land in suit patta along with other lands to the plaintiffs/appellants Nos. 1 to 4 jointly by registered sale deed No. 4129 dated 07.09.1990 and delivered possession to them. The legal heirs of another pattadar Musstt. Moimunnessa Bibi also sold her share in the said patta measuring 2K 8Ch. vide registered sale deed 5368 dated 11.12.1990 to the plaintiff No. 5 and delivered possession thereof. Thus the plaintiffs jointly became the absolute owner of Schedule-1 property measuring 15K 12Ch having possession thereon. 3. The legal heirs of another pattadar Musstt. Moimunnessa Bibi also sold her share in the said patta measuring 2K 8Ch. vide registered sale deed 5368 dated 11.12.1990 to the plaintiff No. 5 and delivered possession thereof. Thus the plaintiffs jointly became the absolute owner of Schedule-1 property measuring 15K 12Ch having possession thereon. 3. The plaintiffs/appellants instituted Title Suit No. 101/1997 in the court of Civil Judge (Junior Division) No. 1, Silchar against the present defendants/respondents along with some other defendants praying for declaration of right, title and interest and confirmation of possession over the Schedule-1 land and for declaration that the sale deed No. 4301 dated 18.09.1990, on the basis of which the said defendants/respondents claimed their right, title and interest over the suit land to be illegal and liable to be cancelled. The said suit was decreed in favour of the plaintiffs/respondents and the said decree was put into execution in Title Execution Case No. 11/2002. The said decree was finally executed and as a result, the registered sale deed No. 4301 dated 18.09.1990 was cancelled and the names of the defendants/respondents were struck off from the records. The defendants/respondents arranged a path from their land in Dag No. 88 and 89 of Second RS patta No. 5 on the Northern boundary of the Schedule-1 land up to the embankment-cum bund of the Southern boundary of the Schedule-1 land and, as a result the said stretch which is fully described in Schedule-2 of the plaint, was trespassed by the said defendants/respondents thereby dispossessing the plaintiffs/appellants. Hence the suit. 4. The present respondent/defendant No. 1 contested the suit by filing his written statement denying all the allegations made in the plaint against the said defendants. It is the case of the defendant/respondent No. 1 that the defendants/respondents purchased 18K 4Ch of land in the suit patta for valuable consideration from Faizuddin Laskar by registered sale deed No. 628 dated 07.02.1988 along with other land and got possession. The defendants/respondents claimed that over the Schedule-2 land their exists a path which was used by them peacefully along with other persons since long time. Accordingly they prayed for dismissal of the suit. 5. Upon pleadings, the learned trial court framed the following issues: "1. Is there any cause of action for the suit? 2. IS the suit barred by limitation? 3. Is the suit bad for non-joinder of necessary parties? 4. Accordingly they prayed for dismissal of the suit. 5. Upon pleadings, the learned trial court framed the following issues: "1. Is there any cause of action for the suit? 2. IS the suit barred by limitation? 3. Is the suit bad for non-joinder of necessary parties? 4. Is the suit maintainable in the present form and manner? 5. Whether the suit land has been properly described? 6. Whether the plaintiffs were dispossessed from the suit land by defendants? 7. Whether the plaintiffs are entitled to get a decree as prayed for? Addl. Issue 8. Whether Ext. A to E (admitted under objection) are admissible in evidence?" 6. The learned trial Court after hearing the parties and on perusal of the evidence of the witnesses of both the sides, and on examination of the documents exhibited by the parties, decreed the suit in favour of the plaintiffs/appellants vide judgment and decree dated 11.08.2005. The learned trial Court took up the issue No. 4. While discussing the said issue No. 4, the learned trial court took into consideration the exhibit-7 which is the certified copy of the judgment passed in Title Suit No. 101/1997. It is pertinent to mention here that the present suit filed by the plaintiffs/appellants is for recovery of possession and for permanent injunction but without declaration of right, title and interest over the said suit land. A plea was raised by the defendants/respondents with regard to the maintainability of the suit as there was no relief sought for declaration of right, title and interest of the plaintiffs/appellants over the suit land and as such no consequential relief could be passed. In deciding the said issue, which is the issue No. 4, the learned trial Court considered the said exhibit-7 and came to the finding that the plaintiffs/ appellants need not pray for declaration of right, title and interest as the same was discussed thoroughly while passing the judgment as per exhibit-7. The learned trial Court also considered the copy of the plaint in Title Suit No. 101/1997 and thereafter the said court came to the finding that although the right, title and interest of the plaintiffs/appellants over Schedule-1 land was not an issue, however, in discussion in issue Nos. The learned trial Court also considered the copy of the plaint in Title Suit No. 101/1997 and thereafter the said court came to the finding that although the right, title and interest of the plaintiffs/appellants over Schedule-1 land was not an issue, however, in discussion in issue Nos. 4, 5 and 6 of the said judgment the same was discussed at length by the trial court and the said court held that the plaintiffs/appellants have right, title and interest over the Schedule-1 land. Against such finding in Title Suit No. 101/1997, no appeal was preferred by the defendants/respondents and as such the learned trial court held that the defendants/respondents are estopped from raising such plea of non-maintainability of the suit. Accordingly, the learned trial court held the suit to be maintainable without seeking the relief of declaration of right, title and interest. Finally, while deciding issue No. 7, the learned trial court on the basis of the judgment and its finding in Title Suit No. 101/1997 and also taking into consideration of the fact of dispossession held in issue No. 6 decreed the suit of the plaintiffs/appellants. 7. The said judgment and decree dated 11.08.2005 passed by the learned trial Court was put under challenge in Title Appeal No. 58/2005 before the learned Civil Judge No. 1, Silchar. The learned First Appellate Court after hearing both the parties reversed the finding of the learned trial Court in issue No. 4 and finally allowed the appeal thereby setting aside the judgment and decree passed by the trial Court. The said judgment of the First Appellate Court was passed on 09.03.2007. The plaintiffs/appellants accordingly preferred this second appeal challenging the said judgment and decree dated 09.03.2007 passed by the learned First Appellate Court. This second appeal was admitted on 20.08.2007 on the following substantial questions of law: "1. Whether a suit for recovery of possession and permanent injunction in respect of a particular plot of land without prayer for declaration of right, title and interest is not maintainable when a finding of absolute ownership of properties in question, which has since become final, was recorded in a judgment in an earlier suit but without a decree to that effect? 2. Whether the judgment of the learned lower appellate court is vitiated because of perverse appreciation of Exhibit 7 i.e. the judgment rendered in Title Suit No. 101/97?" 8. Mr. 2. Whether the judgment of the learned lower appellate court is vitiated because of perverse appreciation of Exhibit 7 i.e. the judgment rendered in Title Suit No. 101/97?" 8. Mr. Banik, the learned counsel appearing on behalf of the appellants submits that the learned First Appellate Court purely on the wrong inference from the judgment passed in Title Suit No. 101/1997 reversed the finding of issue No. 4. Taking this Court to the discussions made in issue Nos. 4, 5 and 6, in the judgment passed in Title Suit No. 101/1997, Mr. Banik submits that though specific issue had not been framed but even then before reaching the final outcome of the said title Suit No. 101/1997, the learned trial Court discussed each and every material piece of evidence therein on record of TS No. 101/1997 including the various sale deeds exhibited therein and came to the finding that the sale deed No. 4301 dated 18.09.1990 on the basis of which the present defendants/respondents claimed the suit land, to be a fraudulent one and accordingly directed it to be cancelled. The said deed had already been cancelled in pursuance of the said judgment and decree passed in Title Suit No. 101/1997. 9. Mr. Banik further submits that even if the said finding in Title Suit No. 101/1997 is not considered at all, then also the present defendants/respondents are estopped in claiming the present suit land on the basis of a separate sale deed. The learned First Appellate Court ought to have considered the said aspect of the matter and ought not to have reversed the finding of the learned trial court. It is submitted that non-consideration of the said findings by the learned First Appellate Court is purely a perverse appreciation of exhibit-7 and the same is liable to be set aside inasmuch as, the earlier suit was between the same parties as the one in the present suit and the said judgment and decree having not been challenged still binds the defendants/respondents, who were parties to the said Title Suit No. 101/1997. It is also submitted that a decree arising out of a judgment even if there is wrong findings the same binds the parties therein until and unless the same is set aside by the higher court. It is also submitted that a decree arising out of a judgment even if there is wrong findings the same binds the parties therein until and unless the same is set aside by the higher court. The present defendants/respondents having not moved the higher Court challenging the judgment passed in Title Suit No. 101/1997 are bound by the said judgment and as such there is no requirement further for a fresh declaration of right, title and interest over the suit land forming the part of the land which was the subject matter in Tile Suit No. 101/1997. So, Mr. Banik submits that both the substantial question of law are to be decided in favour of the plaintiffs/appellants. 10. In Anathula Sudhakar v. P. Buchi Reddy and others reported in 2008 (4) SCC 594 the Hon'ble Apex Court held as follows: "13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, as suit for an injunction simpliciter will lie. A person has right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction against the rightful owner. 13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction." 11. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction." 11. In the said decision the Hon'ble Apex Court laid down the ratio as to when a simple suit for permanent injunction would lie and when it is necessary to file a suit for declaration for title with injunction as consequential relief. It is held that a person having lawful possession of property and if such possession is interfered the said person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. It was also held that where the title of the plaintiff is not disputed but he is not in possession then his remedy is to file a suit for possession and ask in addition, if necessary, for an injunction. However, a person out of possession cannot seek for the relief of injunction simpliciter without claiming the relief of a possession. 12. Keeping in view the ratio, let us discuss the findings of the learned First Appellate Court. The First Appellate Court while reversing the finding of issue No. 4, held that no issue was framed with regard to right, title and interest of the present plaintiffs/appellants in Title Suit No. 101/1997. With regard to the observation of the learned trial Court with regard to the findings of issue No. 6 in exhibit-7, the learned First Appellate Court came to the finding that the said observation does not amount to declaration of right, title and interest of the plaintiffs/appellants over the Schedule-1 land. It is also held that such observation in the judgment is not a decree and as such the plaintiffs/appellants having not sought for the relief of the declaration of right, title and interest over the Schedule-1 land, it was held that the suit was not maintainable. 13. Perused the exhibit-7 and the discussions made in issue No. 4 and 5 by the learned Court in Title Suit No. 101/1997. On its perusal it is apparent that the present plaintiffs/appellants had exhibited their sale deeds which were marked as exhibit-1 to 6 and exhibit-7 is the zamabandi of the suit patta. 13. Perused the exhibit-7 and the discussions made in issue No. 4 and 5 by the learned Court in Title Suit No. 101/1997. On its perusal it is apparent that the present plaintiffs/appellants had exhibited their sale deeds which were marked as exhibit-1 to 6 and exhibit-7 is the zamabandi of the suit patta. The learned trial court, in Title Suit No. 101/1997 on going through the copy of zamabandi i.e. exhibit-7 took note of the names of the pattadars and thereafter considered the sale deeds exhibited by the plaintiffs/ appellants and came to the conclusion that the concerned pattadars as the vendors had already sold their land exhausting their respective shares by executing the registered sale deeds, exhibits-1 to 6. Thereafter, the defendants/respondents claimed to purchase the land out of which the present suit land forms a part by way of a registered sale deed dated 18.09.1990 bearing No. 4301. The learned Court in Title Suit No. 101/1997 held that the vendors of the present defendants/appellants having exhausted their respective shares of land again sold the land to the defendants/respondents vide the sale deed dated 18.09.1990 and finally came to the conclusion that subsequent sale deed dated 18.09.1990 purported to be executed by the vendors of the plaintiffs/appellants is a fraudulent one and liable to be cancelled. 14. The learned First Appellate Court while discarding the findings of the learned trial court came to the finding that the observation in the judgment passed in Title Suit No. 101/1997 is not a decree. This is totally a wrong finding inasmuch as the said observation would amount to resjudicata so far the defendants/respondents are concerned. In addition to that, the said findings bind the defendants/respondents inasmuch as on the basis of the discussions and observations made therein, the learned court in Title Suit No. 101/1997 came to the finding on the basis of which the relief of declaration and cancellation of the said sale deed dated 18.09.1990 was passed. 15. The plaintiffs/appellants in the plaint pleaded that the defendants/respondents dispossessed the plaintiffs/appellants from a strip of land of Schedule-1 in its Eastern boundary on 10.10.2002 and constructed a path from their land in Dag No. 88 and 89 on Second RS Patta No. 5 in the Northern boundary of Schedule-1 land up to the embankment cum road in the Southern boundary of the Schedule-1 land. Thereafter, the defendants/respondents forcibly and illegally used the said land as their path from their homestead land to the embankment cum road though they have no right, title and interest over the said land in view of the decree passed in Title Suit No. 101/1997. The present defendants/respondents in their written statement simply pleaded that they purchased land measuring 18 K 4 Ch in the suit patta from Faizuddin Laskar, named by the plaintiffs/ appellants in their plaint, by registered sale deed No. 628 dated 07.03.1988 along with other lands and got possession thereof from the seller so they are co-sharers in the un-partioned suit patta. The pleading of the defendants/respondents claiming themselves to be the co-sharers of the unpartitioned suit patta land along with the plaintiffs/appellants goes to show that they have not challenged the title of the plaintiffs/appellants. In such a situation, on the face of the claim of the plaintiffs/appellants that the defendants/ respondents had dispossessed them from the said land described in Schedule-2 of the plaint needs no declaration of right, title and interest as per the ratio laid down by the Hon'ble Apex Court in the decision (supra). 16. The dispute is with respect to the possession of the suit land which the plaintiffs/appellants pleaded that they were dispossessed. The defendants/respondents without disputing the title of the plaintiffs/appellants simply pleaded that they purchased land from Faizuddin Laskar (vendor of plaintiffs/appellants) and as such they are also co-sharers of the suit patta land. 17. The present suit of the plaintiffs/appellants is well covered by the ratio of the decision (supra) wherein the title of the plaintiffs/appellants are not disputed and keeping in view the earlier findings in Title Suit No. 101/1997 in favour of the plaintiffs/appellants, rightly the plaintiffs/appellants had filed the suit for possession and injunction. The mis-interpretation of exhibit-7 by the learned First Appellate Court and the reversal of the finding of the learned trial Court is clearly a case of perversity. Accordingly both the substantial questions of law are decided in favour of the appellant. 18. Accordingly, this second appeal is allowed. 19. No cost. 20. Send back the LCR.