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2019 DIGILAW 1231 (GAU)

Rajani Rajbangshi v. Natghar

2019-11-15

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. This regular second appeal is by the defendant against the judgment and decree passed by learned District Judge, Nalbari in Title Appeal No. 6/2006. 2. The respondent Nos. 1 to 4, as plaintiffs filed the suit (T.S. No.33/2004) for declaration of right, title, and interest and recovery of possession of the suit land. The case of the plaintiff was that the proforma defendant No. 6 was the owner of the suit land. He gifted the suit land by a registered deed to the plaintiffs and delivered possession. It was also stated that the proforma defendant No. 5, Tangalu Das, who was in possession of the suit land, vacated and handed over possession to the plaintiff, in view of the execution of the gift deed by the proforma defendant No. 6. Accordingly, the plaintiffs have been possessing the suit land for the purpose of constructing a "Natghar" (theatre house). 3. The defendant contested the suit by filing written statement and also raised a counter claim seeking declaration of title and confirmation of possession. The pleaded case of the defendants was that they purchased the suit land from proforma defendant No. 5, Tangalu Das by a kacha deed (unregistered document) and have been possessing the same for more than 12 yrs. It was also pleaded case of the defendants, that they have acquired title over the suit land by adverse possession for more than 12 years with the knowledge of the plaintiffs. The proforma defendant Nos. 5 and 6 by filing separate written statement supported the case of the plaintiffs. In his written statement, the proforma-defendant No. 5, Tangalu Das clearly stated that he vacated the suit land and delivered possession to the plaintiffs, as the owner, the proforma defendant No. 6 gifted the suit land to the plaintiffs, for promotion of art and culture. On the basis of the above pleadings of the parties, learned trial court framed the following issues :- 1. Is there any cause of action for the suit ? 2. Whether proforma defendant no. 2 Gopi Kanta Goswami executed a deed of gift in favour of the plaintiff in respect of the suit land ? 3. Whether the plaintiff has right, title and interest over the suit land and the defendants dispossessed the plaintiffs from a portion of the suti land ? 4. 2. Whether proforma defendant no. 2 Gopi Kanta Goswami executed a deed of gift in favour of the plaintiff in respect of the suit land ? 3. Whether the plaintiff has right, title and interest over the suit land and the defendants dispossessed the plaintiffs from a portion of the suti land ? 4. Whether the plaintiffs are entitled for the decree as prayed for ? 5. Whether the proforma defendant No. 1 Tangalu Das sold the possessory right of the suit land to the defendant and the defendant has right, title and interest over the suit land on the strength of adverse possession ? 5. Whether the plaintiff is entitled for the decree as claimed in the counter claim ? 7. To what other relief’s the parties are entitled ? 4. Both the parties adduced evidence and after hearing the parties, learned trial court decreed the suit in favour of the plaintiffs and dismissed the counter claim of the defendants. Aggrieved by and dissatisfied with the judgment and decree of the learned trial court, the defendants preferred an appeal, which also stood dismissed. 5. Aggrieved, the defendants have filed the instant second appeal, which was admitted to be heard on the following substantial questions of law : "1. Whether a gift deed of which certified copy has been authenticated from the Registrar of the Sub-Registrar office can be held to have proved the contents of the documents of transaction of gift under Section 64 of the Evidence Act unless proving the very fact of granting gift of the suit land by donor and giving of possession of the same and acceptance of the gift by the done without evidence of acceptance of the donee ? 2. Whether the findings in respect of plaintiff's dispossession by the defendants are perverse to the evidence on records ? 3. Whether in a case where the plaintiff has not claimed dispossession but adduced evidence for granting only permanent injunction for restraining the defendants from disturbing the peaceful possession of the plaintiffs, the decree of recovery of possession can be granted and whether such decree is perverse to the records ?" 6. I have heard Mr. P. Das, learned counsel for the appellant and Mr. HK Barman, learned counsel for the respondent. 7. I have heard Mr. P. Das, learned counsel for the appellant and Mr. HK Barman, learned counsel for the respondent. 7. The pleaded case of the plaintiffs was that the suit land was gifted by proforma defendant No. 6 to the plaintiffs and in order to substantiate the plea plaintiffs proved the certified copy of the gift deed as Ext.-1 and jamabandi as Ext.-2 as well as the revenue paying receipt, Ext. 3. The Ext.-1 and the Ext.-2 shows that the proforma-defendant No. 6 was the original owner of the suit land. In fact, there is no dispute as to the title of the donor Gopi Kanta Goswami, proforma-defendant no. 6 the original owner of the suit land. Whereas, only case of the defendants is that the suit land was in physical possession of proforma defendant No. 5, Tangalu Das, who handed over the possession of the land to the defendants by a kaccha (unregistered) deed. However, the proforma defendants No. 5 and 6 supported the case of the plaintiffs by filing written statement. The PW-2, the son of the donor, Gopi Kanta Goswami, deposed that his father gifted the suit land to the plaintiffs. The proformadefendant No. 5, Tangalu Das also deposed that he handed over the possession of the suit land to the plaintiffs and denied the claim of the defendants including the execution of the kacha deed. Section 123 of the Transfer of Property Act provides that "for the purpose of making a gift of immovable property, the transfer must be affected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. Therefore, the oral evidence of PW-1, PW-2 and PW-3 coupled with the documentary evidence (gift deed, Ext.4) and the certified copy of the jamabandi (Ext.-2) clearly established that the suit land was gifted to the plaintiffs by the owner/proforma defendant No. 6. In fact, the execution of the gift deed by proforma-defendant No. 6, the original owner of the suit land was also not in dispute, inasmuch, the donor himself being a party to the suit admitted the factum of gift by the registered deed. This being the position, Section 58 of the Evidence Act also can be pressed into service, which provides that no fact needs to be proved in any proceeding, which the parties thereto admits at the hearing or by pleadings. This being the position, Section 58 of the Evidence Act also can be pressed into service, which provides that no fact needs to be proved in any proceeding, which the parties thereto admits at the hearing or by pleadings. In view of the above evidence, both oral and documentary, and clear admission of the proforma-defendant No.6, the defendants being a stranger to the gift, did not have the locus to question the validity of the gift. Therefore, the plaintiffs having proved the factum of gift by both oral and documentary evidence, I find no substance in the submission of the learned counsel for the appellant, that the gift was not proved. Accordingly, the substantial question No. 1 is answered in favour of the plaintiffs/respondents. 8. Learned counsel for the appellant, P. Das placing reliance on a decision of the Apex Court in Madhya Pradesh in Kanaklata -Vs.- Subadhdhra and Ors., (2009) AIR M.P. 268 submitted that both the courts fell in error by passing a decree of recovery of possession, as no relief of recovery of possession was sought for. It is also submitted by the learned counsel for the appellant that findings of the courts below regarding plaintiff's dispossession by the defendants was perverse. The specific case of the plaintiffs both in evidence and pleadings was that the defendants trespassed into the suit land, stored building materials thereon and started construction. Therefore, the plaintiffs have made the following prayer : "It is therefore, prayed that your Honour will be graciously pleased to pass a decree - 1. declaring that plaintiffs have right, title interest over the suit land and his possession of the suit land may be confirmed. 2. That decree for recovery of possession of the suit land by evicting the defendants 1 to 4 from the suit land if in the meantime, the plaintiffs are evicted. 3. Permanent injunction. 4. Cost of the suit. Any other relief to which the plaintiffs otherwise entitled may be granted." 9. From the prayer No. 2, it is evident that plaintiffs clearly sought for recovery of possession in the event of their dispossession from the suit property during pendency of the suit. The specific case of the defendants in the written statement was that they have dispossessed the plaintiffs and claimed title over the suit land by right of adverse possession of more than 12 years. The specific case of the defendants in the written statement was that they have dispossessed the plaintiffs and claimed title over the suit land by right of adverse possession of more than 12 years. In view of the above pleadings, the defendants cannot turn around and say that they did not dispossess the plaintiffs or criticise the findings of the courts with regard to dispossession of the plaintiffs by the defendants as perverse. A finding can be said to be perverse, which is apparently against the strength of evidence brought on record. In the present case, when admittedly the defendants have dispossessed the plaintiffs and claimed adverse possession over the suit land, there was no question of perversity in the findings of the learned trial court holding, that the plaintiffs were dispossessed by the defendants. 10. True it is, as a general rule, the court cannot grant a relief not sought by a party or beyond the pleadings. The learned counsel for the appellant submitted that there was no prayer for recovery of possession and the suit was filed for permanent injunction and confirmation, and as such, the decree passed by the learned trial court for recovery of possession was bad in law. As indicated above, plaintiffs have clearly prayed for recovery of possession in the event of being dispossessed by the defendants. Specific case of the plaintiffs was that the defendants trespassed into the suit land and stored materials for construction and attempted to dispossess the plaintiffs, and therefore, filed the suit seeking the relief of confirmation of possession and alternatively recovery of possession in the event of dispossession. Subsequently, such alternative relief is permissible under the law and therefore, merely because the plaintiffs sought for decree of confirmation of possession, court was not denuded of the jurisdiction to pass a decree for recovery of possession, reason being that the prayer for recovery of possession was also made in the plaint as an alternative relief. Subsequently, such alternative relief is permissible under the law and therefore, merely because the plaintiffs sought for decree of confirmation of possession, court was not denuded of the jurisdiction to pass a decree for recovery of possession, reason being that the prayer for recovery of possession was also made in the plaint as an alternative relief. Though, it was the pleaded case of the plaintiffs that defendants stored building materials and started construction over the suit land and sought for injunction, from the evidence brought on record, it was established that the defendants dispossessed the plaintiffs and therefore, the relief of recovery of possession can by no stretch of imagination be held to be without pleadings, inasmuch as, the plaintiffs clearly sought for the relief of recovery of possession as an alternative relief in the event of the plaintiffs being found dispossessed by the defendants. Therefore, in the facts and circumstances of the present case, there is no scope for holding that the decree for recovery of possession passed by the learned courts below was beyond pleadings. 11. When evidently the plaintiffs made the prayer for confirmation of possession and in the alternative prayed for recovery of possession, in the event of the plaintiff being dispossessed during the pendency of the suit, the court was empowered to grant such relief. Though as a general rule, relief is to be granted by the court on the basis of the case exists on the date of filing of the suit, court is also empowered to take note of the subsequent events in an appropriate case to grant proper reliefs, when a relief sought initially becomes inadequate because of subsequent change. Though, ordinarily the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and for which the other side was not called upon or had no opportunity to meet, the court can certainly pass a decree on the case, which defendant himself makes or on his express admission. (See Firm Srinivas-Vs- Mahavir, (1951) AIR SC 177 : 1951 SCR 277 ). In the instant case apprehending dispossession and subsequent change in the suit property, the plaintiff made an alternative prayer in the suit itself, that in the event of their dispossession, the decree of recovery of possession may be passed. (See Firm Srinivas-Vs- Mahavir, (1951) AIR SC 177 : 1951 SCR 277 ). In the instant case apprehending dispossession and subsequent change in the suit property, the plaintiff made an alternative prayer in the suit itself, that in the event of their dispossession, the decree of recovery of possession may be passed. Therefore, the foundation for a relief of recovery of possession was very much there in the pleadings. More so, it was the admitted case of the defendants that they were in possession of the land and claimed adverse possession, and thereby made a case for passing a decree for recovery of possession, as the title of the plaintiff was established, as indicated above. In view of the above facts and circumstances, when the courts below came to the findings on the basis of pleadings and evidence, that the plaintiffs were dispossessed and granted the relief of recovery of possession along with the declaration of title, such relief is well within the jurisdiction of the court and can by no stretch of imagination be held to be perverse and beyond pleadings. Accordingly, the substantial question Nos. 2 and 3 are also answered in favour of the plaintiffs respondents. 12. In view of forgoing discussions, the second appears to be without merit and accordingly dismissed. 13. No cost. 14. Send back the record.