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2019 DIGILAW 1175 (GAU)

Samsul Haque v. Jamiran Nessa Wife

2019-11-01

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. This second appeal is by the plaintiff against the judgment and decree, passed by the learned Civil Judge, Barpeta in Title Appeal No. 3/2009, whereby the learned first appellate court, allowing the appeal filed by the respondent/defendant, dismissed the suit filed by the plaintiff. 2. The appellant as plaintiff filed T.S. No. 118/2007 for declaration of right, title and interest as well as recovery of possession and also cancellation of mutation in favour of the defendant. 3. The case of the plaintiff was that the defendant No. 1, Ashraf Ali as plaintiff filed T.S. No. 138/1999 in the court of the learned Munsiff No. 1, Barpeta praying for declaration of right, title, interest and confirmation of possession over the suit land measuring 10 bighas, 3 kathas and 8 lechas covered by Dag No. 69 and Patta No. 79 (N). The said suit was dismissed. An appeal was preferred against the judgment and decree passed by the learned Munsiff, which also stood dismissed. After dismissal of the T.S. 138/1999, both by the trial as well as appellate court, the present defendant dispossessed the plaintiff from the suit land on 23.10.2006 taking advantage of the mutation of his name in the record of rights. Hence the plaintiff filed the suit for declaration of tile and recovery and possession. 4. The defendant contested the suit by filing written statement. The pleaded case of the defendant was that the land measuring 13 bighas, 0 katha and 18 lechas along with other lands of the suit patta was settled with Purna Chandra Wakil and Satish Chandra, which was sold in auction by Mouzadar for realization of revenue and was purchased by four persons, namely, Samanta Moni Das, Kebal Moni Das, Khaiam Mohan Mani Das and Dasami Moni Das. The predecessor of the defendant, Nasimuddin purchased 11 bighas 3 kathas and 18 lechas of land of the suit dag and the plaintiff had purchased 1 bigha 2 kathas and 10 lechas of the said Dag and the names of both, plaintiff and Nasimuddin, predecessor of the defendant was mutated in the revenue record. During settlement operation of 1958 to 1965, the said land was jointly settled in favour of Nasimuddin, the predecessor of the defendants and the present plaintiff Samsul Hoque. During settlement operation of 1958 to 1965, the said land was jointly settled in favour of Nasimuddin, the predecessor of the defendants and the present plaintiff Samsul Hoque. Though Bhagaban Chandra Das mutated his name in respect of 8 bigha 9 lecha of land allegedly by right of purchase from the plaintiff, neither plaintiff nor the proforma defendant Bhagaban Chandra Das had any right, title and interest over the suit land and they also never possessed the suit land. 5. On the basis of the above pleadings of the parties, 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 plaintiff's suit is maintainable in the present form? 4. Whether the plaintiff has right, title and interest on the suit land? 5. Whether the plaintiff is entitled for a decree of khas possession over B schedule land? 6. Whether the plaintiff is entitled to a decree as prayed for?" 6. Both the parties adduced evidence, oral as well as documentary and after hearing the parties, the learned Munsiff decreed the suit of the plaintiff. 7. Aggrieved, the defendant preferred an appeal and the learned first appellate court allowing the appeal dismissed the suit of the plaintiff. Aggrieved by and dissatisfied with the judgment and decree passed by the learned first appellate court, the plaintiff preferred the instant regular second appeal, which was admitted to be heard on the following substantial questions of law. "1. Whether the learned lower court was correct, in the facts and circumstances of the case, in holding that the plaint did not disclose any cause of action for declaration of right, title and interest f the plaintiff and that the suit is not maintainable in the present form? 2. Whether the First Appellate Court was correct in not taking into consideration the decree passed in earlier Title Suit No. 138/1999 filed by the present defendants/respondents against the appellant/plaintiff, which was decided in favor of the appellant? 3. Whether the findings of the learned lower appellate court that the plaintiff has no right, title and interest over the suit property is perverse to the evidence on record." 8. I have heard Mr. K. Sarma, learned counsel for the appellant and Mr. R. Ali, learned counsel for the respondent. 9. Learned counsel Mr. 3. Whether the findings of the learned lower appellate court that the plaintiff has no right, title and interest over the suit property is perverse to the evidence on record." 8. I have heard Mr. K. Sarma, learned counsel for the appellant and Mr. R. Ali, learned counsel for the respondent. 9. Learned counsel Mr. K. Sarma, submitted that the judgment and decree passed by the learned first appellate court was perverse, inasmuch as, the learned first appellate court failed to take into account the documentary evidence adduced by the plaintiff as well as the decree passed in the previous suit (T.S. No. 138/1999). 10. Supporting the impugned judgment and decree of the first appellate court, learned counsel for the respondent contended, that there was no pleadings from the side of the plaintiff, showing, as to how they acquired title over the suit land and therefore, the learned first appellate court rightly allowed the appeal and dismissed the suit holding that the documentary evidence adduced by the plaintiff was not admissible in absence of pleadings. It was further contended by the learned counsel for the respondent, that in the earlier T.S. No. 138/1999, neither the plaintiffs, who were defendant in the said suit (TS 138/1999) made any counter claim nor there was any decree in favour of the present plaintiff declaring their title and therefore, mere dismissal of the previous suit (TS 138/1999) could not be the basis of plaintiff's title in the present suit. 11. It is trite law, that in a suit for declaration of right, title, interest and recovery of possession, the burden is on the plaintiff to prove his title by necessary pleading and evidence and the plaintiff can succeed only on the strength of his own case. Plaintiff cannot rely upon the weakness of the defendant's case. When a suit is filed by the plaintiff seeking declaration of his right, title and interest, it was obligatory on the part of the plaintiff to spell out his title or source of title over the suit property by necessary averment in the pleading and also to adduce evidence to establish such pleading claiming title. In the present case, surprisingly, there was absolutely no pleading or averment in the plaint as to how the plaintiff got title over the suit land. In the present case, surprisingly, there was absolutely no pleading or averment in the plaint as to how the plaintiff got title over the suit land. Only averment made in the plaint was that there was an earlier suit filed by the defendant seeking right, title, interest and confirmation of possession, which was dismissed. Even if, it is assumed for the sake of argument, that there was a previous suit between the parties filed by the defendant and the same was dismissed, such decree of dismissal against the plaintiff per-se, would not confer title on the defendant, unless the decree positively and specifically declare title in favour of the defendant. Therefore, mere dismissal of the suit filed by the plaintiff automatically does not confer title of the suit land on the defendant. In the present case, evidently, the plaintiff while adducing evidence proved the certified copy of the jamabandi as well as proceeding of mutation before the revenue authority to show, that the suit land originally belongs to the father of the plaintiff and they inherited the suit land, but irony of the fact is that there was absolutely no pleading to that effect. 12. The celebrated principle of variance between pleading and proof is that no amount of evidence can be looked into in absence of pleadings. The rule of variance between pleadings and proof is based on the principle, that no party should be taken by surprise. One party must know the case of the other party. If a party is allowed to adduce evidence to set up a new case which was never pleaded in his pleadings, that would certainly prejudice the other party. Therefore, general rule is that evidence can be adduced only on the plea, which has been duly raised in the pleadings and relief also can be granted only on the basis of the pleadings. Court cannot decide a case or grant a relief which was not set up in the pleadings. Therefore, when there was absolutely no pleadings or averment in the plaint spelling out the title of the plaintiff over the suit land, mere proving of jamabandi cannot establish the title of the plaintiff for two simple reasons :- firstly, such evidence cannot be looked into as there is no pleading to that effect. Therefore, when there was absolutely no pleadings or averment in the plaint spelling out the title of the plaintiff over the suit land, mere proving of jamabandi cannot establish the title of the plaintiff for two simple reasons :- firstly, such evidence cannot be looked into as there is no pleading to that effect. Secondly, the mutation entry neither creates nor extinguish title and therefore, title over the suit properly needs to be proved by necessary pleadings and evidence of title. 13. When there was no pleadings, setting up title of the plaintiffs over the suit land, the learned first appellate court held, and rightly so, that the plaint did not even disclose any cause of action for the suit. Therefore, when there was no pleading stating as to how the plaintiff got title over the suit land or the source of his title, mere making an averment in the plaint that an earlier suit filed by the defendant was dismissed is not sufficient to prove the claim of title over the suit property, inasmuch as, dismissal of suit for title by one party, per-se does not establish the title of the adverse party. That apart, the evidence adduced by the plaintiff also shows that the plaintiff admitted in cross examination that they sold 8 bighas 9 lechas of land out of the suit dag by registered sale deed to proforma defendant Bhagaban Das and Bhagaban Das re-transferred the said land in favour of the plaintiff. But neither any registered sale deed nor any other evidence was produced to establish the averment of reconveyance of the land by Bhagaban Das. Be that as it may, all such evidence were beyond pleadings. In the aforesaid facts and circumstances, learned first appellate court rightly decided that the plaintiff has not been able to prove his title over the suit land and therefore the finding of the learned first appellate court in the facts and circumstances of the case, can by no stretch of imagination be said to be perverse. A finding can be said to be perverse when it is based on no evidence or the finding is against the evidence brought on record. A finding can be said to be perverse when it is based on no evidence or the finding is against the evidence brought on record. In a suit filed by the plaintiff, where there was absolutely no pleading to show title of the plaintiff, mere exhibiting the certified copy of a jamabandi was of no consequence, as the same could not be looked into in absence of pleadings. Accordingly, the substantial question No. 1 is answered in affirmative and substantial question No. 3 is answered in negative. 14. Learned counsel for the appellant strenuously argued that the first appellate court committed illegality by not taking into account the decree passed in the earlier T.S. No. 138/1999. The impugned judgment passed by the learned trial court shows, that the learned trial court indeed considered the judgment of the earlier suit filed by the defendant being T.S. No. 138/1999 and made the following observation - "Even if, for arguments sake, the contents of the documents relating to judgment of TS 138/99 has been considered for judicial notice, it appears that the plaintiff has mainly based their claim on the dismissal of the T.S. No. 138/99 which was filed by the one of the defendants namely Asrab Ali against the present plaintiff Samsul for declaration of his right, title and interest and subsequent confirmation of the said judgment in T.A. No. 21/05. Law is well settled that mere dismissal of a suit cannot be a ground for conferring title on the other side until and unless declared by the court. Law is also ell settled that plaintiff has to stand on his own leg in proving a plea by adducing convincing evidence. In the present case in hand, though the plaintiff claims that his father has purchased the land about 40 to 60 years back, not a scrap of paper has been proved or shown." 15. In view of above observation, it is not correct to say that the first appellate court did not take the earlier decree passed in T.S. No. 138/1999 into account. In view of above observation, it is not correct to say that the first appellate court did not take the earlier decree passed in T.S. No. 138/1999 into account. As already indicated hereinbefore, that the plaintiff has failed to establish his title over the suit land by necessary pleadings and evidence, and as such, dismissal of the earlier suit (TS 138/1999) filed by one of the defendant is of no consequence in respect of proving title of the plaintiff over the suit land, inasmuch as, dismissal of the previous suit filed by the defendant cannot be the basis of plaintiff's title, unless the title of the plaintiff is declared positively in the previous suit. As already indicated above, in the earlier TS 138/1999, where the present plaintiff was defendants, neither raised any counter claim nor his title was declared. Therefore, mere dismissal an earlier suit filed by the defendant, without anything more, cannot be the basis of title of the plaintiff (defendant in previous suit) reason being that the plaintiff in a suit for declaration of title and recovery of possession must succeeds on his own strength and cannot rely upon the weakness of the defendant. The substantial question No. 2 is answered accordingly. 16. In view of what has been stated above, the second appeal is found without merit and accordingly dismissed. 17. Send down the LCR.