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2017 DIGILAW 740 (GAU)

Bibi Devi v. Rabi Sankar Saikia

2017-06-06

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. P.K. Roy Choudhury, learned counsel for the appellants and Mr. B.D. Das, learned Senior counsel assisted by Ms. M. Deka, learned counsel appearing on behalf of the respondents. 2. The present appellants are the plaintiffs in Title Suit No. 82/2006 in the court of learned Munsiff No. 1, Jorhat which was filed against the present respondents/defendants. It is pertinent to mention here that originally Kiranbala Devi, the mother of the present plaintiffs/appellants, filed a suit and on her death, during the pendency of the said suit, the present plaintiffs/appellants were substituted as the legal heirs of Late Kiranbala Devi. 3. The case of the plaintiffs/appellants in brief is that they are the absolute owners of a plot of land measuring 2K 18¼L covered by various dag numbers of Periodic Patta No. 66/245 of Block No. 3 of Jorhat town. One Deben Sarma had his plot of land at the back side of the plaintiffs’ land and had no entrance for ingress and egress to his land from the main Kakatigaon road. Said Deben Sarma sold his land to the predecessor-in-interest of the present defendants/respondents. Thereafter, the predecessor-in-interest of the defendants/ respondents requested the mother of the plaintiffs/appellants to allow them to use a part of her land on the southern part of the plaintiffs’ land described in Schedule A of the plaint for their entry to the land which they purchased from Deben Sarma. The mother of the plaintiffs/appellants allowed them to use a strip of her land measuring 6 feet in breadth and 120 feet in length out of the Schedule A land which is described in Schedule B of the plaint and since then the said predecessor of the defendants/respondents including the present defendants/respondents are using the said plot of land as their entry to their respective plot of land. It is pleaded that on the southern side of the said Schedule A land, a drain of 3½ feet in breadth existed since time immemorial connecting the main drain just by the side of the Kakatigaon road. The said drain was used by the plaintiffs/appellants as outlet of draining out household water of their residential premises. It is pleaded that on the southern side of the said Schedule A land, a drain of 3½ feet in breadth existed since time immemorial connecting the main drain just by the side of the Kakatigaon road. The said drain was used by the plaintiffs/appellants as outlet of draining out household water of their residential premises. A Hume pipe was used covering the said drain temporarily for the outlet of the accumulated water as there was accumulation of water owing to filling up of the said drain for widening the passage on the plea of marriage of the daughter of late Padmadhar Saikia on the condition that the same would be removed after the marriage. The defendants/respondents added the 3½ feet original drain with the existing 6 feet wide passage path thereby increasing the breadth of the said path by earth filling. The plaintiffs/appellants protested the said illegal encroachment within the premises of the plaintiffs’ basti land by crossing the original drain on the northern side upon which the defendants/respondents threatened them with dire consequences. Owing to the blockade of the said drain, water started accumulated causing unhygienic condition and accordingly the plaintiffs/appellants on 15.03.1998 attempted to dig up the old draining system by fitting the new hume pipe which the defendants/ respondents obstructed. The grievance of the plaintiffs/appellants is that the original 6 feet wide passage was converted to 12 feet wide passage by encroaching about 2½ feet land in width of the plaintiffs/appellants by crossing the original drain on the northern side. It is also pleaded that the father of the defendant /respondent No. 1 purchased land measuring 6’ x 120’ for the passage on 06.01.1968 by executing a registered sale deed. Accordingly, the suit was filed for declaring that the plaintiffs have got right, title and interest over the Schedule A land measuring 2K 18¼L and for decree for recovery of possession of the suit land described in Schedule B of the plaint which forms a part of the Schedule A land. It is pertinent to mention here that the said 6’ x 120’ land described in Schedule B land consists of 3½ feet wide drain which was the private drain of the plaintiffs/appellants over their Schedule A land. 4. The defendants/respondents No. 1 to 5 contested the suit by filing their written statement. It is pertinent to mention here that the said 6’ x 120’ land described in Schedule B land consists of 3½ feet wide drain which was the private drain of the plaintiffs/appellants over their Schedule A land. 4. The defendants/respondents No. 1 to 5 contested the suit by filing their written statement. It is the defence taken by them that the plaintiffs/appellants are estopped from denying the execution of the deed of transfer dated 06.01.1968 in respect of 6¼ L of land out of their original land measuring 3K 4½L in favour of Debendra Nath Sarma. Defendants /respondents contended that the said Debendra Nath Sarma converted the 6¼L land into a path/passage in order to connect their land with the Kakati Gaon road. Accordingly, they prayed for dismissal of the suit. 5. On the basis of the pleadings, the learned trial court framed the following issues:- 1. Whether there is cause of action for the suit? 2. Whether the suit is barred by law of limitation? 3. Whether the suit is maintainable in its present form? 4. Whether the suit is barred by principle of estoppel? 5. Whether the plaintiff has right, title and interest over the suit land? 6. Whether the plaintiff was disposed from the suit land as alleged in the plaint? 7. Whether the plaintiff is entitled to any relief? 8. What relief, if any, they are entitled to? The learned trial court after hearing the parties and considering the evidence led by the parties to the suit, decreed the suit as per the reliefs claimed by the plaintiffs/appellants. 6. The learned trial court took up issue No. 6 and considered the evidence on record. From the evidence of the various witnesses on the side of the plaintiffs, the learned trial court came to the conclusion that the original passage which was 6’ in breadth at the time of purchase by Deben Sarma covering 6L of land from the mother of plaintiffs/appellants had swelled up to 11L. The PW-2, Archana Sarma, deposed that originally they had 3K 4½L of land and out of that, 6L of land was sold to Deben Sarma and the remaining land measuring 2K 18L is described in Schedule A. Out of that land the defendants/respondents had encroached land measuring 6 feet in breadth and 120 feet in length. The PW-2, Archana Sarma, deposed that originally they had 3K 4½L of land and out of that, 6L of land was sold to Deben Sarma and the remaining land measuring 2K 18L is described in Schedule A. Out of that land the defendants/respondents had encroached land measuring 6 feet in breadth and 120 feet in length. It is also deposed that on the pretext of the marriage of the daughter of late Padmadhar Saikia, they filled up the drain which is on the northern side of the suit path on a condition that after the marriage, the same would be cleared up for easy flow of the waste water from the campus of the plaintiffs/appellants. However, the said promise was never kept even after the marriage was over, rather they widened the existing 6 feet wide path by encroaching another 2½ feet of land out of Schedule A and as a result almost 6 feet width of land was encroached by making the existing 6 feet wide road to 12 feet wide. 7. The DW-1, Ram Sankar Saikia, son of Late Padmadhar Saikia, deposed that Deben Sarma purchased 6L of land (7½ feet width and 120 feet in length) towards the southern side of the land owned by Kiran Bala Devi to widen the existing passage of 3 feet to 12 feet width and 120 feet in length and during the purchase of the land of Deben Sarma by his father, the entire suit path was transferred to his father. The DW-3 and DW-4, who are the present defendants/respondents, supported the evidence of DW-1. Having discussed the evidence on record, the learned trial court considered the report of the Survey Commissioner. The said commission was issued on the prayer of defendants/respondents vide order dated 07.02.2005 by the learned trial court. The report was submitted on 09.02.2007 and on 09.05.2007, the plaintiffs/appellants submitted before the said court below that they have no objection so far the commission’s report is concerned. Accordingly, the said report formed the record of the suit. By considering the said report of the Survey Commissioner, the learned trial court accepted that the original 6L of land which was purchased by late Deben Sarma had increased to 11L in area. It was also considered that there exists no 3 feet wide road prior to purchase of 6L of land by Deben Sarma from the predecessor-in-interest of the plaintiffs/appellants. It was also considered that there exists no 3 feet wide road prior to purchase of 6L of land by Deben Sarma from the predecessor-in-interest of the plaintiffs/appellants. Considering the said materials on record, the learned trial court decided issue No. 6 thereby holding that the plaintiffs/appellants were dispossessed from the suit land and deciding the rest of the issues in favour of the plaintiffs/appellants, decreed the suit. 8. Being aggrieved by the said judgment and decree of the learned trial court, the respondents/defendants preferred Title Appeal No. 15/2007 in the court of learned Civil Judge, Jorhat. The said title appeal No. 15/2007 was allowed by reversing the findings of the trial court. Thereafter, the plaintiffs/appellants have preferred this second appeal which was admitted on 29.09.2008 by framing the following substantial questions of law:- 1. Whether the learned lower appellate court committed illegality in reversing the judgment and decree passed by the learned trial court by totally ignoring the Amin Commissioner’s report and the findings which were accepted by the trial court and which formed a part of the record as an important piece of evidence? 2. Whether the judgment and decree passed by the learned lower appellate court suffers from perversity for non-consideration of the respective pleadings of the parties? 9. Mr. Roy Choudhury, learned counsel appearing on behalf of the appellants, submits that the learned first appellate court has misinterpreted the evidence of PW 2, Archana Sarma, inasmuch as she deposed in her chief that originally there was 3K 4½L of land in Dag No. 5326/5612 of periodic patta No. 66/245 and out of the said land their mother sold 6L of land leaving 2K 18L of land described in the Schedule A land. But the learned first appellate court by considering the said piece of evidence of the said PW-2, came to the finding that there was an admission on the part of the PW-2 that land was sold by her mother by way of registered sale deed dated 06.01.1968 and as such there was no need for further evidence by producing the original registered sale deed which the defendants/respondents could not exhibit. Thereafter, abruptly the learned first appellate court came to the finding that the plaintiffs/appellants have no right, title and interest over the aforesaid passage as described in Schedule-B of the plaint and further came to the finding that the learned trial court erroneously decided issue No. 6 in favour of the plaintiffs/appellants. Taking that particular issue, as lead issue, the learned first appellate court accordingly reversed all the issues decided in favour of the plaintiffs/appellants by the learned trial court. 10. Mr. Roy Choudhury further submits that the learned first appellate court did not even bother to take note of the Survey Commission’s report inasmuch as the same forms a part of the record. There was a duty cast upon the learned first appellate court at least to consider the report of the survey commission on record along with other evidence. Having not done so, the judgment passed by the learned first appellate court is, out and out, perverse for non consideration of the respective pleadings of the parties and the evidence on record. As such, this appeal is to be decided in favour of the plaintiffs/appellants by answering the substantial questions of law in their favour. 11. Mr. Das, learned senior counsel, submits that the plaintiffs/appellants claimed ownership over 2K 18¼L of land in Schedule ‘A’ covered by Dag No. 5346/5612 of periodic patta No. 66/245. The Schedule B land measuring 6’ x 120’ is out of the said Schedule ‘A’ land. But from the judgment of the learned trial court it appears that the ‘B’ Schedule land is different from what has been stated in the Commissioner’s report. It is also submitted that there is no mention or any cogent evidence to show that the Schedule-B land consists of any other land leaving aside the one sold to Debendra Nath Sarma on 06.01.1968 by the mother of the plaintiffs/appellants. It is also submitted that the PW-2 in her deposition clarified that there was a passage to the land of Debendra Nath Sarma and as such, he purchased it. She also deposed that the defendants/respondents widened the passage by filling up 3½’ width drain. Therefore, the first appellate court had rightly held that the plaintiffs/appellants have no right over the passage. 12. Considered the submissions of the learned counsels for the appellants and respondents. She also deposed that the defendants/respondents widened the passage by filling up 3½’ width drain. Therefore, the first appellate court had rightly held that the plaintiffs/appellants have no right over the passage. 12. Considered the submissions of the learned counsels for the appellants and respondents. Perused the case records, the survey commission’s report and the evidence of the parties to the suit. Keeping in view of the submissions of the learned counsel of the appellants and respondents, the evidence of the PW-2 is perused. On perusal of the same it reveals that in the chief, the said witness deposed that on the southern side of their land a path measuring 6’ x 120’ exists. The said land covering the said path was sold by her mother to Deben Sarma. The said land was sold because of the fact that Deben Sarma had no path for his ingress and egress from his land to the main road. In the subsequent deposition of the said PW-2 in her chief, she deposed the rest of the pleadings made in her plaint which the learned first appellate court failed to consider inasmuch as she deposed that on the southern side there was a drain of 3½ feet width and the said drain was filled up with land for the purpose of the marriage of the daughter of late Padmadhar Saikia and, the promise made by said Saikia of clearing up the said drain and was never kept and as a result, the original 6 feet width road has been widened to 11½ feet to 12½ by encroaching their land. The PW-2 specifically stated in her deposition that her mother owned 3K 4½L of land and out of the said land, 6L was sold to Deben Sarma. Now, coming to the finding of the learned first appellate court that the plaintiffs/appellants have no right, title and interest over the passage described in Schedule B of the plaint and that too, on the findings and discussions of the learned trial court in issue No. 6, there comes out the perversity of the finding of the learned first appellate court which is very much apparent. In addition to that, the Survey Commission’s report is a piece of evidence which though cannot be taken as the sole piece of evidence in deciding an issue, but if it is taken up and considered in the light of other piece of evidence on record, the same is a valid piece of evidence. The learned trial court has blended the oral piece of evidence of the witnesses on record and the survey commission’s report and finally, out of the said blending of said piece of evidence has given its finding of issue No. 6. On the other hand, the learned first appellate court never even bothered to examine the said blending of evidence by the learned trial court and it makes the judgment passed by the said learned first appellate court perverse. 13. The submission of Mr. Das that the Commissioner’s report varies so far the Dag number is concerned, the same cannot be considered as the Dag No. 5612 is apparent in the judgment of trial court. In fact, to the other submission of Mr. Das is concerned the suit land is described in ‘B’ Schedule land which is leaving aside the land sold to Deben Sarma but not that of the one purchased by the said Sarma which can very well be inferred if the plaint as a whole is read. The rest of the submission of Mr. Das with respect to the finding of the learned First appellate court the same has no force as on that point only the learned appellate court had gone wrong which this court has discussed and came to the conclusion that the findings of the appellate court is perverse. Accordingly, both the substantial questions of law are decided in favour of the appellants. This appeal is allowed thereby setting aside the impugned judgment and decree passed by the learned Civil Judge, Jorhat in Title Appeal No. 15/2007 and upholding the judgment and decree passed by the learned trial court. Accordingly, this second appeal is disposed of. 14. Prepare a decree accordingly. 15. Send down the lower court records. No order as to costs.