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2019 DIGILAW 599 (GAU)

Chitta Ranjan Dey v. Nilmoni Nandi

2019-05-14

SUMAN SHYAM

body2019
JUDGMENT : 1. Heard Mr. M.H. Rajbarbhuiya, learned counsel appearing for the appellants. I have also heard Mr. D. Chakraborty, learned counsel representing the respondent Nos.1 to 5. None appears for the remaining respondents. 2. This second appeal has been preferred against the concurrent judgment dated 19.05.2008 and decree 27.05.2008 passed by the learned District Judge, Hailakandi in Title Appeal No.53/2006 affirming the judgment dated 26.08.2004 and decree dated 09.09.2004 passed by the court of learned Civil Judge (Senior Division), Hailakandi in Title Suit No.9/1999. 3. The facts of the case, shorn of unnecessary details, are as follows. The suit land measuring 18 kathas 14 chattaks in total described in 1st Schedule of the plaint was part of a larger plot of land under possession of Raj Kumar Deb, Gagan Chandra Roy and Suryamoni Roy. The said plot of land under their possession was covered by Dag Nos.522, 523 and 530 of annual patta No.13. According to the plaintiffs, the land covered by Dag Nos.530 and 535 were under the exclusive possession of Gagan Chandra Roy and Suryamoni Roy, who had transferred their possession over the entire land measuring 18 kathas 14 chattaks of Dag No.530 in favour of Radhamadhav Dey by executing a deed of memorandum dated 22.07.1952. Thereafter, Radhamadhav Dey had transferred the possession in respect of the said plot of land in favour of Nitai Nandi i.e. the predecessor-in-interest of the plaintiffs, by executing a deed of memorandum dated 10.01.1953. The said plot of land was thereafter, developed by Nitai Nandi, i.e. the father of the plaintiffs, by carrying out earth filling thereby transforming the land into Bhita land and he had also constructed dwelling houses upon a portion of the land. After the death of Nitai Nandi, the plaintiffs had inherited the suit land and continued to remain in possession over the same. The plaintiffs then applied for grant of periodic patta in respect of the said plot of land by filing application before the competent authority. On the basis of the application filed by the plaintiffs, by the order dated 22.12.1984 passed in Conversion Case No.40/84-85 issued by the learned S.D.C., Hailakandi, periodic patta No.236 was issued in the name of the plaintiff No.1 after deposit of the requisite premium. In this manner, the plaintiffs became the owner in possession of the land described in Schedule-I to the plaint. In this manner, the plaintiffs became the owner in possession of the land described in Schedule-I to the plaint. However, the case of the plaintiffs is that one Madov Chandra Dey i.e. the predecessor-in-interest of the defendant Nos.1 to 5, in collusion with the revenue staff, had illegally got his name mutated in the jamabondi of suit patta No.236 along with the plaintiffs so as to claim his right over the suit land. Having come to know about the said fact, the plaintiffs had filed petitions before the Collector, Hailakandi for cancellation of the mutation entry made in the name of Madov Chandra Dey with regard to the land covered by the suit patta. On the basis of the petition filed by the plaintiffs, Misc. Case No.1/1988 was registered but when the matter was pending disposal before the competent authority, Madov Chandra Dey had expired leaving behind the defendant Nos.1 to 5 as his legal heirs. According to the plaintiffs, taking advantage of the fact that the houses of the defendant Nos.1 to 5 were situated on the adjacent south eastern boundary of the suit land, they had forcibly dispossessed the plaintiffs from the 2nd schedule land measuring about 3 kathas in the year 1998. As such, the plaintiffs had instituted Title Suit No.9/1999 inter-alia praying for a decree declaring their right, title and interest over the 1st schedule land and for recovery of possession of the 2nd schedule land. It transpires from the record that during the pendency of the suit, the plaintiffs were dispossessed by the defendant Nos.1 to 5 from an additional area of 9 kathas of land as a result of which, the plaint had to be amended on 26.11.1999 and the prayer for recovery of khas possession of the 3rd schedule land being the 9 kathas of land had to be incorporated. 4. The defendant Nos.1 to 5 had contested the suit by denying the claim of the plaintiffs inter-alia questioning the suit on the ground of want of cause of action and the same being barred under the principles of waiver, estoppel and acquiescence. The contesting defendants had denied the right, title and interest of the plaintiffs over the suit land, save and except admitting their possession over a plot of land measuring 4.5 kathas. The contesting defendants had denied the right, title and interest of the plaintiffs over the suit land, save and except admitting their possession over a plot of land measuring 4.5 kathas. According to the defendant Nos.1 to 5, the land measuring 18 kathas 14 chattaks was under the possession of Suryamoni Roy and Gagan Chandra Roy who had leased out the said plot of land to one Nityananda Dey by executing a kachha deed on 05.03.1956. Nityananda Dey had thereafter, handed over possession of the said plot of land to the predecessor-in-interest of the defendant Nos.1 to 5 viz., Madov Chandra Dey by executing an unregistered deed dated 13.12.1973. According to the contesting defendants, the father of the plaintiffs viz., NItai Nandi, was allowed to possess land measuring 4.5 kathas only in the suit dag by Madov Chandra Dey and therefore, the contesting defendants had denied the claim of the plaintiffs over the 1st schedule land. The contesting defendants had also denied the fact of dispossession of the plaintiffs from the 3rd schedule land during the pendency of the suit. 5. The defendant Nos.6 to 8 being Government officials had also filed their written statement inter-alia stating that the land measuring 18 kathas 14 chattaks entered by Dag No.530 of Patta No.236 was recorded in the name of the plaintiffs along with the father of the defendant Nos.1 to 5. 6. Based on the pleadings brought on record by the parties, the learned trial court had framed the following five issues for trial in the suit :- "(1) Is there any cause of action? (2) How much land in dag No.530 consists at present? (3) Whether the plaintiffs and defendants are owners or tenants in respect of dag Nos.530? (4) Whether the plaintiffs acquired any right over the dag, and if so, to what extent? (5) Whether the defendants dispossessed the plaintiffs from the 2nd schedule land and if so whether they are entitled to khas possession?" 7. During the course of trial, the plaintiffs had examined four witnesses and exhibited documentary evidence while the defendants had also examined two witnesses besides exhibiting some documents. (5) Whether the defendants dispossessed the plaintiffs from the 2nd schedule land and if so whether they are entitled to khas possession?" 7. During the course of trial, the plaintiffs had examined four witnesses and exhibited documentary evidence while the defendants had also examined two witnesses besides exhibiting some documents. Upon conclusion of the trial, the learned trial court had decided the issues in favour of the plaintiffs thereby decreeing the suit filed by the plaintiffs granting all the reliefs save and except the prayer No.1 which pertains to cancellation of the field mutation granted in favour of Madov Chandra Dey i.e. the predecessor-in-interest of the defendant Nos.1 to 5. The learned trial court had declined the said prayer of the plaintiffs on the ground that such a relief by the civil court was barred under section 154(1) of the Assam Land and Revenue Regulations, 1886. 8. Being aggrieved by the judgment and order dated 26.08.2004 passed by the learned trial court in Title Suit No.9/1999, the defendant Nos.1 to 5, as appellants, had preferred Title Appeal No.53/2006 before the court of learned District Judge, Hailakandi. After hearing the parties and on consideration of the materials on record, the learned First Appellate Court had dismissed the appeal by the judgment and order dated 19.05.2008. Aggrieved thereby, the defendant Nos.1 to 5, as appellants, have approached this court by filing the present Second Appeal which was admitted by this Court to be heard on the following substantial question of law :- "Whether the learned Courts below erred in declaring the right, title and interest of the respondents/plaintiffs in the suit land on the basis of the documents Exhibit 1 and 2, though the same were compulsorily registrable under Section 17(1)(b) and (d) of the Indian Registration Act, 1908?" 9. By referring to the judgment and order passed by the learned court below, Mr. Rajbarbhuiya, learned counsel for the appellants, submits that the inclusion of the name of the predecessor-in-interest of the defendant Nos.1 to 5, viz., Madov Chandra Dey, in the jamabondi of the suit patta goes to show that the predecessor of the contesting defendants had possession over the suit land. Under the circumstances, the learned courts below were not justified in decreeing the suit filed by the plaintiffs merely by relying upon two deeds of memorandum viz. Under the circumstances, the learned courts below were not justified in decreeing the suit filed by the plaintiffs merely by relying upon two deeds of memorandum viz. Exhibits-1 and 2, which were unregistered documents and therefore, did not meet the requirement of Section 17(1)(b) and (d) of the Indian Registration Act, 1908. Mr. Rajbarbhuiya, therefore, prays for setting aside the appellate decree and for dismissal of the suit. 10. Mr. Chakraborty, learned counsel for the respondent Nos.1 to 5, on the other hand, contends that the relief prayed for in the suit, save and except the relief No.1, was based on the patta No.236 issued in favour of the plaintiffs. That apart, submits Mr. Chakraborty, the plaintiffs side had led cogent evidence to show that they were illegally dispossessed from the 3rd schedule land even during the pendency of the suit. After taking note of the materials available on record the learned court below has recorded concurrent findings of fact deciding all the issues in favour of the plaintiffs/respondent Nos.1 to 5 thereby decreeing the suit of the plaintiffs. As such, submits Mr. Chakraborty, there is no scope for this court to interfere with the concurrent finding of facts in the present appeal, more so, when the title of the plaintiffs over the suit land had been declared by the learned court below based on the patta (Exhibit-4). 11. I have considered the arguments advanced by learned counsel for both the parties and have also meticulously gone through the materials available on record. 12. From a careful scrutiny of the LCR, I find that by order dated 22.11.1984 (Exhibit-4) passed by the learned S.D.C., Hailakandi in connection with Conversion Case No.40/84-85, Patta No.236 pertaining to the land described in the 1st Schedule of the plaint was issued in favour of Sri Nilmoni Nandi, who is the plaintiff No.1 in the suit. The plaintiffs have not only produced periodic patta No.236 before the court below but have also duly proved the document marked as Exhibit-4. It is trite law that a patta is a document of title and in this case, the plaintiffs have proved the existence of a valid title document in their favour. The defendants have not challenged the validity of Exhibit-4 by filing any counter-claim in the suit. It is trite law that a patta is a document of title and in this case, the plaintiffs have proved the existence of a valid title document in their favour. The defendants have not challenged the validity of Exhibit-4 by filing any counter-claim in the suit. Therefore, it can be safely concluded that the plaintiffs have succeeded in proving their title over the suit land by adducing cogent materials on record. 13. Besides establishing their title over the suit land, the plaintiffs have also led evidence to show that they were in possession of the 1st schedule land but were subsequently dispossessed by the defendant Nos.1 to 5 on different dates compelling them to seek a decree for recovery of possession of the land described in the schedules-2 and 3 of the plaint. The jamabondi copy produced and relied upon by both the parties go to show that the names of the plaintiffs are recorded therein with regard to the suit patta along with the name of the predecessor-in-interest of the defendant Nos.1 to 5 and the said fact has also been confirmed by the defendant Nos.6 to 8 in their written statement. While the plaintiffs have succeeded in showing their possession and title over the suit land there is nothing on record to indicate as to the basis on which the name of Madov Chandra Dey i.e. the predecessor of the defendant Nos.1 to 5 was included in the jamabondi. Taking note of the said fact the learned court below has expressed an opinion that the inclusion of the name of the predecessor-in-interest of the defendant Nos.1 to 5 in the jamabondi was without any valid basis. I do not find any justifiable ground to disagree with the said finding of fact concurrently recorded by the learned courts below. 14. In the present case, as noted above, the title of the plaintiffs over the suit land have been derived on the basis of the patta (Exhibit-4) which is a document of title. Although the possession of the land was acquired by the predecessor-in-interest of the plaintiffs on the strength of Exhibits-1 and 2, which are unregistered documents, yet, such possession was subsequently regularised by issuing patta in their favour. Therefore, it cannot be said that the title of the plaintiffs had been affected in any manner due to non-registration of Exhibits-1 and 2. Therefore, it cannot be said that the title of the plaintiffs had been affected in any manner due to non-registration of Exhibits-1 and 2. That apart, the learned court below has decreed the suit of the plaintiffs declaring their right, title and interest over the suit land, besides granting the consequential reliefs after declaring the title of the plaintiffs over the 1st schedule land on the strength of the patta (Exhibit-4). Having regard to the materials available on record, I do not find any justifiable ground to disturb the concurrent findings recorded by the learned courts below. In the result, the substantial questions of law urged by the appellants in this case stand answered in favour of the respondents and against the appellants. 15. Consequently, this appeal is held to be devoid of any merit and the same is accordingly dismissed. Parties to bear their own cost. Registry to send back the LCR.