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2017 DIGILAW 839 (GAU)

Sarudhan alias Khagen Rajkhowa v. Debeswar Bora

2017-06-23

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. P. Mahanta, learned counsel for the appellants. However, none has entered appearance on behalf of the sole respondent. 2. The present respondent, as plaintiff, preferred Title Suit No. 11/2002 in the court of learned Civil Judge (Jr. Divn.), Biswanath Chariali, against the present appellants/ defendants. Within a short radius, the case of the present respondent is that he purchased land measuring 1 Bigha out of 7B 1K 13L covered by Dag No. 318 (old)/693 (new) of Periodic Patta No. 145 (old)/24 (new) of village Napamua Guadhara under Mouza Kalangpur in the district of Sonitpur. The said land was purchased by way of registered sale deed No. 1337 dated 30.04.1974 from one Laibhya Bora (deceased) and since then he had been possessing the land by cultivating the same till the year 1997 as its exclusive owner. Laibhya Bora, inherited the said land measuring 7B 1K 13L from her husband along with the present appellant/defendant No. 2 and proforma defendants No. 5 and 6. Laibhya Bora died leaving behind her three daughters i.e. appellant/defendant No. 2 and the proforma defendants No. 5 and 6. The defendant/appellant No. 2 married one Guna Bora and out of the said marriage, one son, namely, Haren Bora was born to them. Later on, the said defendant/appellant No. 2 married the present defendant/appellant No. 1. The present defendants/appellants No. 1, 3 and 4 interfered with the peaceful possession of the plaintiff/respondent over the said land measuring 1 Bigha which was resisted by the plaintiff/respondent. However, on 05.07.1997 the said defendants/appellants entered into his land illegally and planted Sali crops. An FIR was lodged on 06.07.1997 whereafter, the plaintiff/respondent planted Sali crops and harvested the same. On the basis of the said FIR, a proceeding under Section 145 of the Code of Criminal Procedure (for short, Cr.P.C.) was drawn up by the learned Executive Magistrate and in the said proceeding, possession was declared in favour of the plaintiff/respondent on 20.05.1999. Being aggrieved, the defendants/appellants preferred a revision petition and vide order dated 05.09.2001, the learned Sessions Judge, Sonitpur at Tezpur allowed the revision petition by setting aside the order passed by the learned Executive Magistrate in the proceeding initiated under Section 145 Cr.P.C. Taking advantage of the said judgment passed in the revision, the defendants/appellants took possession over the suit land. Thereafter, the plaintiff/ respondent filed the suit for declaration of his right, title and interest, recovery of possession and permanent injunction. 3. The defendants/appellants contested the suit by filing their written statement. In the defence, the defendants/appellants denied that the plaintiff/respondent ever possessed the suit land and cultivated thereon. It was also denied that the plaintiff/respondent became the legal owner of the suit land during the life time of Laibhya Bora, the vendor. It was also denied that the plaintiff/respondent was holding the possession of the suit land prior to the drawal of the proceeding under Section 145 Cr.P.C. It is admitted that after the order passed by the revisional court, they took possession over the suit land. It is the case of the defendants/appellants that one Akanman Keot alias Bogiram Bora was the exclusive owner of various land including the land covered by Dag No. 318/693 measuring 7B 1K 13L. After the death of Akanman Bora, his wife Laibhya Bora and daughters, namely, Smti. Anila Bora (proforma defendant No. 5), Smti. Rohini Bora (proforma defendant No. 6) and Smti. Bhogeswari Bora (defendant No. 2) became the joint owners of the properties left by Akanman Bora and each has ¼th share over the total land. Their names were mutated in Mutation Case Nos. 334/71-72, 335/71-72, 336/71-72 and 172/72-73. The said proforma defendants No. 5 and 6 sold their respective shares of land vide registered sale deed in favour of defendant/appellant No. 2 and her sons. Subsequently, their names were also mutated in the Records of Rights. Out of the total land measuring 7B 1K 13L, the defendants/appellants became the rightful owners of land measuring 5B 2K 9L under Dag No. 693. One Niranjan Bora (the son born out of the marriage of defendant/appellant No. 2 with Guna Bora referred herein above), the grandson of Smti. Laibhya Bora was possessing her share of land who ultimately vide a registered deed of gift No. 2274/1980 dated 21.08.1980, gifted her land in his favour. Niranjan Bora mutated his name in the Records of Rights. A plea has also been taken as a defence, that though plaintiff/respondent purchased the land in the year 1974, he did not have possession over the suit land at any point of time. Niranjan Bora mutated his name in the Records of Rights. A plea has also been taken as a defence, that though plaintiff/respondent purchased the land in the year 1974, he did not have possession over the suit land at any point of time. It was also pleaded by the defendants/appellants that there was no formal partition between the co-owners of the land, but for their own convenience, each of them had their own portion demarcated. Share of Laibhya Bora was on the north-west boundary of the total land covered by Dag No. 693 which, at present, is under the possession of Niranjan Bora. In the gift deed, Laibhya Bora gave her boundary of her share of land on the north western side of the total land covered by Dag No. 693. Thus, by way of registered sale deed, executed in favour of the plaintiff/respondent by Laibhya Bora, he has not acquired any right, title and interest over the land so purchased as the vendor had no possession over the land so sold to the plaintiff/respondent. Further, if any right acquired by the plaintiff/respondent, same has extinguished long ago due to continuous, uninterrupted and hostile possession of the defendants/appellants. Accordingly, they prayed for dismissal of the suit. 4. On perusal of the pleadings of both the parties, the learned trial court framed the following issues:- 1. Whether the suit is maintainable under the law? 2. Whether there is a cause of action for the suit? 3. Whether the suit is barred by limitation? 4. Whether the suit is bad for non-joinder of necessary party? 5. Whether the plaintiff was in possession of the suit land at any point of time? 6. Whether the plaintiff is entitled to get a decree as prayed for? 7. Whether the parties are entitled to get any relief or reliefs as may be deem fit and proper? 5. The plaintiff/respondent examined 3 (three) witnesses including himself as PW-1. On the other hand, the defendants/appellants examined 3 (three) witnesses and documents were also exhibited by both the parties. The learned trial court after hearing the parties, decreed the suit in favour of the plaintiff/respondent. 6. While deciding the issue No. 5, the learned trial court came to the finding that the plaintiff/respondent had possession over the suit land till he was dispossessed in the year 1997. The learned trial court after hearing the parties, decreed the suit in favour of the plaintiff/respondent. 6. While deciding the issue No. 5, the learned trial court came to the finding that the plaintiff/respondent had possession over the suit land till he was dispossessed in the year 1997. In order to come to the said finding, the learned trial court took into consideration the deposition of the PW-3, one Tankalal Sonari who in his evidence stated that he cultivated the suit land for the period 1995 to 1997, whereafter the plaintiff/respondent was dispossessed by the defendants/appellants. It was also taken into consideration by the learned trial court that the defendants/appellants in their written statement had clearly admitted at paragraph 15 that after the order passed in the revision petition, they entered into possession of the suit land. Accordingly, the learned trial court disbelieved the fact of their possession over the suit land against the claim of the plaintiff/respondent. 7. In respect of the mutual settlement arrived at by the legal heirs of Late Akanman Bora alias Bogiram, as pleaded in the written statement, the learned trial court disbelieved the same, inasmuch as, the defendants/appellants failed to produce any document in support of the said claim. Against the plea taken by them in the written statement that the share of Laibhya Bora stood on the north western portion of the entire land of Dag No. 693, the same was disbelieved and the learned trial court came to a finding that the suit land forms part of the total land covered by Dag No. 693. Thus, the learned trial court disbelieved the fact of mutual settlement nor any partition thereof the suit land. While discussing the issues No. 6 and 7, the learned trial court came to the finding that Laibhya Bora, the vendor of the plaintiff/respondent being the mother of the three daughters used to cultivate the land including the suit land and further held that Laibhya Bora executed sale deed in favour of the plaintiff/respondent and delivered possession of the suit land to the plaintiff/respondent. With regard to non-mutation of the name of the plaintiff/respondent, the learned trial court came to the finding that owing to objections, raised by the defendants/appellants, his name was not mutated by the concerned official which finds support from the deposition of PW-1, the plaintiff. With regard to non-mutation of the name of the plaintiff/respondent, the learned trial court came to the finding that owing to objections, raised by the defendants/appellants, his name was not mutated by the concerned official which finds support from the deposition of PW-1, the plaintiff. The gift deed in favour of Niranjan Bora executed by Laibhya Bora has not been challenged as the land covering the gift deed is situated on the north western boundary of the entire land covered by Dag No. 693. Non-mutation of the name of the plaintiff/respondent in the Records of Rights cannot affect the title of the plaintiff/respondent as per the finding of the learned trial court. Accordingly, as the plaintiff/respondent has proved the right, title and interest over the suit land, so the learned trial court decreed the suit. 8. Being aggrieved, the defendants/appellants preferred Title Appeal No. 6/2005 in the court of learned Civil Judge, Sonitpur at Tezpur. The learned first appellate court vide judgment and decree dated 12.12.2006 dismissed the appeal by upholding the findings of the learned trial court against each and every issues. Thereafter, the present second appeal has been preferred by the defendants/appellants. This second appeal was admitted on 14.05.2007 on the following substantial question of law:- “Whether the learned Courts below erred in decreeing the suit of the respondent/plaintiff by overlooking that the land demised by Ext. 1, in his favour included a share of the appellant/defendant No. 2, heir of late Bogiram Bora @ Akanman?” 9. Mr. Mahanta, learned counsel for the appellants, submits that both the courts below failed to consider the admission of the plaintiff/respondent to the fact that at the time of execution of the registered sale deed No. 1337 dated 30.04.1974 (Exhibit-1), his vendor, Laibhya Bora informed him that the suit land forms a part of the joint patta land which was partitioned amongst herself and her three sisters who have been possessing their respective shares. Under such circumstances, a duty was cast upon the plaintiff/respondent at least to verify the share of the vendor, inasmuch as, the said vendor gifted her share of land subsequently in the year 1980 to her grandson, Niranjan Bora which is situated on the north western corner of the total land covered by Dag No. 693. Under such circumstances, a duty was cast upon the plaintiff/respondent at least to verify the share of the vendor, inasmuch as, the said vendor gifted her share of land subsequently in the year 1980 to her grandson, Niranjan Bora which is situated on the north western corner of the total land covered by Dag No. 693. On the other hand, the plaintiff/respondent claimed the suit land which he purchased on the southern side of the total land covered by Dag No. 693 wherein the share of the defendant/appellant No. 2 is situated. It is also submitted that the learned courts below came to a wrong finding that the plaintiff/respondent maintained his possession since the date of purchase till the date of dispossession in the year 1997. Mr. Mahanta further questioned the findings of the learned courts below that there was no document/documents to show that a partition took place between the legal heirs of the said Akanman alias Bogiram Bora i.e. the parties to the suit. A mutual family settlement was entered into amongst the legal heirs of late Akanman alias Bogiram Bora whereafter Laibhya Bora, the vendor of the plaintiff/respondent gifted her entire share of the land on the north western side to her grandson. Thus, being fully aware of the fact that there was a partition which took place between the legal heirs of late Bogiram Bora alias Akanman, both the courts below had erred in decreeing the suit, inasmuch as, such passing of the decree has caused prejudice to the defendant/appellant No. 2, being one of the legal heirs of late Bogiram Bora alias Akanman. Finally, Mr. Mahanta submits that non consideration of the fact of partition is vital and as such, the substantial question of law, so formulated, is to be decided in favour of the appellants thereby setting aside the judgment and decree passed by both the courts below. 10. Considered the submissions of the learned counsel for the appellants. Perused the pleadings of both the parties and the evidence led by various witnesses of the parties to the suit. The plaintiff/respondent, as PW-1, in his chief deposed that at the time of purchase of the suit land, the defendant No. 2 along with the proforma defendants No. 5 and 6 were not in possession of any part of the land covered by Dag No. 693 including the suit land. The plaintiff/respondent, as PW-1, in his chief deposed that at the time of purchase of the suit land, the defendant No. 2 along with the proforma defendants No. 5 and 6 were not in possession of any part of the land covered by Dag No. 693 including the suit land. There was no partition amongst the legal heirs of Bogiram Bora alias Akanman. In the cross examination he deposed that, at the time of purchase, Laibhya Bora informed that there was a partition amongst legal heirs of Bogiram Bora but the fact as to their shares was never informed. However, it has been deposed that the total land was under the possession of Laibhya Bora. He admitted the possession of Niranjan Bora. However, it has been denied that Laibhya Bora had given 1 Bigha of land out of her share to Niranjan Bora by way of registered gift deed. It is also deposed that he filed the suit for the southern portion of the land covering the suit land out of the total land covered by Dag No. 693. The suit land is possessed by the defendant/appellant No. 1. Laibhya Bora, his vendor, delivered possession on the southern boundary of the total land. 11. The PW-3, Tankalal Sonari, in his cross examination, described the suit land correctly as per the boundaries mentioned in the schedule of the plaint and it was further deposed that for the period from 1995 to 1997, he cultivated thereon and prior to that, the plaintiff/ respondent cultivated thereon. This piece of evidence could not be shaken by the defendants/appellants. The defendant/appellant No. 1, as DW-1 in his chief, deposed that the defendant/appellant No. 2 is his wife and her share is under his possession. He also admitted that the suit land was purchased by the plaintiff/respondent in the year 1974 by way of registered sale deed. He also admitted that the land of Niranjan Bora is situated on the north western side from his land. He also deposed that along with his wife, the proforma defendants No. 5 and 6 had their shares each measuring 1B 3L. However, he deposed that no Lat Mandol had measured the said land and delivered possession to each of them. 12. He also deposed that along with his wife, the proforma defendants No. 5 and 6 had their shares each measuring 1B 3L. However, he deposed that no Lat Mandol had measured the said land and delivered possession to each of them. 12. The DW-2, Sri Phatik Kath Hazarika who is the boundary man of the suit land, deposed that after the death of the husband, Laibhya Bora looked after her land and admitted that the plaintiff/respondent possessed the suit land. It is also deposed that during the life time of Laibhya Bora, the partition took place of the land. He admitted, while describing the boundary of the suit land that on the northern side of the suit land, it is the land of Laibhya Bora. The DW-1 further deposed that he has no document to show that there was family settlement and/or partition. Rather, he exhibited the copies of Jamabandi whereby it is shown that the names of the legal heirs of Bogiram Bora have been shown jointly as co-owners over the land covered by the patta, consisting the suit Dag No. 693. 13. Thus, from the discussions hereinabove, it is concluded: (a) that Laibhya Bora by way of Exhibit-1, the registered sale deed, transferred land measuring 1 Bigha which is the suit land. (b) that after purchase, the plaintiff/respondent possessed the suit land and he carried out cultivation through the PW-3 for the period from 1995 to 1997 whereafter the dispute took place. 14. Now if the deposition of PW-1, in his cross examination is considered, Laibhya Bora informed at the time of sale of the suit land to PW-1 that partition of the land covered by Dag No. 693 took place amongst the legal heirs, coupled with the deposition of DW-1, that for their own convenience mutual settlement amongst the legal heirs of Bogiram alias Akanman Bora was carried out, then it can be concluded that oral partition took place whereafter defendants/appellants are possessing their respective shares. Further, if the deposition of DW-1 in chief is taken into consideration that he had been possessing the share of his wife, defendant/appellant No. 2, then it can very well be arrived that share of land of defendant/appellant No. 2 is not covered by the suit land. Further, if the deposition of DW-1 in chief is taken into consideration that he had been possessing the share of his wife, defendant/appellant No. 2, then it can very well be arrived that share of land of defendant/appellant No. 2 is not covered by the suit land. There is no evidence to show that Niranjan has been possessing the total share of land of Laibhya Bora so gifted, so far land covered by Dag No. 693 is concerned. The defendants/appellants have not challenged the sale deed in order to get it cancelled on the ground that the plaintiff/ respondent is possessing the share of land of defendant/appellant No. 2. This itself indicates that the defendants/appellants have accepted the title of the plaintiff/respondent over the suit land. This has the support from the pleadings of the defendants/appellants whereby they even claimed adverse possession over the suit land pleading extinguishment of the title of the plaintiff/respondent over the same. This shows clearly as to why defendants/appellants and the plaintiff/respondent never intended to seek for the relief of partition on the ground of inclusion of the share of the defendants/appellant No. 2 in the suit land. Had it been the case of the defendants/appellants that the suit land includes the share of the defendant/appellant No. 2 then there does not arise any occasion for them to take the plea of adverse possession. So, it can be concluded that no share of land of defendant No. 2 is under the possession of the plaintiff/respondent. Accordingly, the substantial question of law is decided against the appellant. 15. This second appeal is accordingly dismissed. No order as to costs. 16. Send down the lower court records.