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2018 DIGILAW 1191 (GAU)

Radha Charan Mahanta v. Nilkamal Das

2018-08-13

SUMAN SHYAM

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JUDGMENT : SUMAN SHYAM, J. 1. Heard Ms. T. Goswami, learned counsel for the appellants. None appears for the respondents though name of their counsel have been reflected in the Cause List. 2. This Second Appeal has been preferred against the concurrent judgment and decree dated 02.08.2007 passed by the learned Civil Judge No.2, Guwahati in Title Appeal No.41/2005 affirming the judgment and decree passed by the learned trial Court. 3. The case of the plaintiffs/respondents, in brief, is that the plaintiff No.1 had inherited a plot of land measuring 7 Lechas covered by Dag No.508 of K.P.Patta No.423 of village Sarpara and thereafter constructed a residential house thereupon. Accordingly, the plaintiffs have been living with their family on the said plot of land. Alleging that on 21.04.2002 the defendants had tried to forcefully dispossess the plaintiffs from the suit land and take over possession of the same, Title Suit No.102/2002 had been filed by the plaintiffs inter-alia praying for a decree declaring their right, title and interest over the suit land; a decree for confirmation of possession over the suit land; a decree for recovery of khas possession of the suit land and for other consequential reliefs. 4. The appellants/defendants had contested the suit by filing their written statement inter-alia denying the case of the plaintiffs. In their written statement, the appellants/defendants have stated that the suit land has been wrongly described in the plaint and that the plaintiffs have wrongly included a small portion of their land, on which, an old tin house of the defendants stood since long back, by taking advantage of the fact that the said portion was contiguous plot of land to the land measuring 2 Katha 11 Lechas covered by Dag No.322 (old)/518 (new) of K.P. Patta No.249(old)/ 13(new) of village Sarpara. In other words, the defendants have categorically stated that there is a boundary dispute pertaining to the land and therefore, the decree as prayed for by the plaintiffs be refused by the Court. 5. Taking note of the pleadings of the parties, following issues were framed by the learned trial Court :- "(1) Whether there is any cause of action for the suit? (2) Whether the suit land measuring 7 lechas is included in Dag No.508, K.P. Patta No.423 or Dag No.322 (old)/518 (new) of K.P. Patta No.249(old)/13(new)? 5. Taking note of the pleadings of the parties, following issues were framed by the learned trial Court :- "(1) Whether there is any cause of action for the suit? (2) Whether the suit land measuring 7 lechas is included in Dag No.508, K.P. Patta No.423 or Dag No.322 (old)/518 (new) of K.P. Patta No.249(old)/13(new)? (3) Whether the plaintiff has any right, title and interest over the suit land? (4) Whether the land demarcation notice by the Circle Officer of Palasbari Circle is binding on the plaintiff? (5) Whether the plaintiff is entitled to any relief/relieves as prayed for?" 6. During trial both parties had led evidence in support of their respective cases. On appreciation of the evidence brought on record, the learned trial Court had decided the Issue Nos.1, 2 and 3 in favour of the plaintiffs. Consequently, the Issue Nos.4 and 5 were held to be redundant. Having decided as above, the learned trial Court had passed the following order :- "It is therefore held that the plaintiffs are entitled to a decree on the following terms. (1) Decreed for plaintiffs right, title and interest over the suit land. (2) Decreed for recovery of khas possession and confirmation of possession. (3) Decreed for the cost of the suit. ORDER In the result suit is decreed on contest with cost. Judgment given under my hand and seal of this court on this 12th day of April, 2005." 7. Title Appeal No.41/2005 preferred by the defendants/appellants was also dismissed by the learned Lower Appellate Court by the judgment and order dated 02.08.2007 as a result of which the present Second Appeal has been preferred, which was admitted to formal hearing by framing the following substantial questions of law :- "1. Whether the suit of the plaintiff declaring right, title and interest in respect of a portion of the land in Dag No.508 of KP Patta No.423 as well as claim for recovery of khas possession can be decreed in the absence of the other co-pattadars as party respondents when there is no partition of the land amongst the co-pattadars as disclosed in the evidence; and 2. Whether the suit can be decreed without appointment of Amin Commission in so far it relates to the boundary disputes." 8. Although several grounds had been taken in the memorandum of appeal, yet, during the course of argument Ms. Whether the suit can be decreed without appointment of Amin Commission in so far it relates to the boundary disputes." 8. Although several grounds had been taken in the memorandum of appeal, yet, during the course of argument Ms. Goswami has fairly submitted that her clients' basic objection pertains to the contradictory claim made by the plaintiffs in seeking a decree of confirmation of possession and at the same time, a decree of recovery of khas possession in respect of the suit land, which would be impermissible in the eye of law. Ms. Goswami submits that the learned trial Court has granted both the reliefs in favour of the respondents/plaintiffs and the appeal preferred by her clients has also been rejected by the learned Lower Appellate Court without addressing the said issue. Considering the fact that there is a boundary dispute involving the suit land, the relief of confirmation of possession and recovery of khas possession granted by the learned Court below in favour of the plaintiffs would not only be dehors the law but would also cause serious prejudice to the rights and interest of her clients, who are occupying the contiguous plot of land. Ms. Goswami has further submitted that the learned Court below ought not to have passed the decree for recovery of possession without appointing an Amin Commissioner and therefore, the questions of law framed by the order dated 19.12.2007 deserves to be answered in favour of the appellants. 9. From a careful scrutiny of the materials available on record, I find that in the Title Suit, the plaintiffs has not only prayed for a decree for declaration of their right, title and interest over the suit land but have also prayed for a decree for confirmation of possession over the suit land. Through the pleadings contained in the plaint, the plaintiffs had projected a case which goes to show that they have been in possession of the suit land and when the defendants tried to dispossess them from the suit land on 21.04.2002, the plaintiffs resisted the same as a result of which, the defendants did not succeed. There is nothing on record to show that the plaintiffs were ever dispossessed by the defendants from the suit land. There is nothing on record to show that the plaintiffs were ever dispossessed by the defendants from the suit land. From a reading of the judgments and orders passed by the learned Courts below I do not find any indication therein to show that the plaintiffs were ever dispossessed from the suit land. If that be so, the question of granting a decree for recovery of khas possession of the suit land, in the opinion of this Court, did not arise in this case. 10. The pleadings brought on record by the rival parties clearly go to show that there is a boundary dispute raised by the defendants. Notwithstanding the same, no issue has been framed by the learned trial Court as to the proper identity of the suit land. Despite the same, a decree for recovery of khas possession has been passed by the learned trial Court. I, therefore, find force in the submission of Ms. Goswami that in the absence of any proper finding of fact recorded by the Courts below as regards the true identity of the suit land and the factum of dispossession of the plaintiffs there from, granting a decree of recovery of khas possession would prejudicially affect the interest of her clients, and to such extent, the decree calls for interference by this Court. 11. For the reasons stated herein above, I am of the view that the impugned judgment and decree, in so far as the decree for recovery of khas possession in favour of the plaintiffs/respondents is concerned, is unsustainable in law and is accordingly set aside. It is, however, made clear that the remaining part of the decree shall remain undisturbed. The impugned decree stands modified to the above extent. With the above observation, the Second Appeal stands partly allowed. Decree be prepared accordingly. Parties to bear their own cost. Send back the LCR.