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2019 DIGILAW 757 (GAU)

Gunadhar Gogoi v. Dhrubajyoti Baruah

2019-06-17

SANJAY KUMAR MEDHI

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JUDGMENT : Sanjay Kumar Medhi, J. This is an appeal presented against a judgment and decree dated 04.06.2012 passed by the learned Additional District Judge (FTC), Dibrugarh in Title Appeal No. 14/2011, whereby, the judgment and decree dated 22.12.2010 passed by the learned Court of the Munsiff No. 1, Dibrugarh in Title Suit No. 121/2008 has been upheld. 2. The brief facts of the case can be put in nutshell as follows. 3. The present appellants were the defendants in the suit. The suit was instituted by the present respondents as plaintiffs for declaration of right, title and interest and recovery of khas possession. The plaintiffs' case was that they had purchased a plot of land measuring 1B covered by Dag Nos. 175 (part) and 176 (part) under PP No. 65 from the vendor late Biswanath Shah vide registered Sale Deed No. 343/86 dated 04.02.1986 for consideration. Accordingly, the possession was delivered to the plaintiffs and their names duly mutated. Thereafter, drains were dug around the boundary of the suit land and boundary pillars were erected and government revenue was regularly paid. 4. It is the case of the plaintiffs that taking advantage of their absence, the defendant No. 1 who had purchased a plot of land of 2 khatas from the same vendor along with the defendant No. 2 have encroached part of the plaintiffs land and had erected boundary fencing thereby reducing the area of the plaintiff from 1B to 3K 10L. As no heed was paid to the request of the plaintiffs to vacate from the encroached land, the present suit was instituted. 5. The defendants had contested the case by filing written statement. It was projected that a plot of land measuring 1K 10L out of a total of 2B 1K 9Lw was initially taken on lease by the defendants from the said Biswanath Shah. The said plot of land was subsequently purchased by the defendants vide Sale Deed dated 12.01.2000 for consideration. The defendants were enjoying peaceful possession over their purchased land and the allegation of encroaching upon the land of the plaintiffs was denied. The defendants had also filed a counterclaim for declaration and perpetual injunction restraining the plaintiffs from disturbing. 6. The said plot of land was subsequently purchased by the defendants vide Sale Deed dated 12.01.2000 for consideration. The defendants were enjoying peaceful possession over their purchased land and the allegation of encroaching upon the land of the plaintiffs was denied. The defendants had also filed a counterclaim for declaration and perpetual injunction restraining the plaintiffs from disturbing. 6. The plaintiffs thereafter filed written statement on the counterclaim and consideration of the pleadings, the following issues were framed by the learned Trial Court (I) Whether the suit as well as the counterclaim are maintainable in law and facts including the point of non-joinder of necessary parties? (II) Whether there is cause of action for the suit and the counterclaim? (III) Whether plaintiffs have right, title and interest over the suit land Schedule-A? (IV) Whether the land mentioned in Schedule-B of the plaint is included in the land mentioned in Schedule-1 of the counterclaim? (V) Whether the defendant encroached the Schedule land-B or the aforesaid land has been in their possession since long and thereafter, they became the owner thereof by way of purchase? (VI) Whether the defendants have right, title and interest and possession over the land mentioned in the Schedule-1 of the counterclaim? (VII) Whether the plaintiff and the defendants are entitled to the respective relief claimed for? (VIII) What relief’s, the parties are entitled to? 7. The plaintiffs examined 5 PWs whereas the defendants examined 2 DWs. The Trial Court had also called for a survey report by Kanungo on an application filed by the plaintiffs and accordingly a report dated 22.03.2010 along with a Trace Map was furnished after such survey (Ext. X). 8. The learned Trial Court vide judgment and order dated 22.12.2010 had decreed the suit in favour of the plaintiffs holding that the plaintiffs had got right, title and interest over the suit land and was entitled for recovery of possession of the encroached portion by the defendants, besides other consequential relief. While deciding issue Nos. 3, 4, 5 & 6, the learned Trial Court took into consideration the report and the deposition by the Kanungo as PW 5 who was an official witness. The said report of the PW 5 establishes the allegation of encroachment of the plaintiffs land by the defendants from the northern side. While deciding issue Nos. 3, 4, 5 & 6, the learned Trial Court took into consideration the report and the deposition by the Kanungo as PW 5 who was an official witness. The said report of the PW 5 establishes the allegation of encroachment of the plaintiffs land by the defendants from the northern side. The learned Court had also taken into consideration that the plaintiffs had purchased the plot of land on prior point of time than the defendants and upon measuring the suit land, the report of PW 5 clearly supports the case of the plaintiffs. A further consideration has been taken by the learned Trial Court that from the records of mutation, it appears that after selling of different plots of land to various parties by the same vendor, land of about 16 lechas were left and therefore it was not possible to execute the Sale Deed of 2 khatas of land in favour of the defendants. 9. The aforesaid judgment of the learned Munsiff No. 1, Dibrugarh was put to challenge before the learned Court of the Additional Sessions Judge (FTC), Dibrugarh. The learned First Appellate Court, however, dismissed the appeal and concurred with the findings of the learned Trial Court. As regards the findings on the relevant issues, namely, 3, 4, 5 & 6, the learned First Appellate Court by relying upon the survey report of the Kanungo/Mandal (Ext. X) had come to the finding of encroached by the defendants. The learned Court had also taken into consideration that the defendants had challenged the survey report (Ext. X) but failed to substantiate that Schedule-B land of the plaintiffs corresponded to Schedule-1 land of the counterclaim over which they right, title and interest. It was also observed that the survey report was prepared in presence of the parties. 10. Aggrieved, the defendants have preferred the present appeal. This Court while admitting the appeal vide order dated 14.09.2012 had formulated the following substantial questions of law 1. Whether the impugned judgments of the lower Courts below passed on the basis of Ext. X, report of the Kanungo, are sustainable in law, considered along side the cross-examination of the Kanungo? 2. Whether the impugned judgments and decrees are perverse to the evidence on record? 11. I have heard Shri G. N. Sahewalla, learned counsel for the appellants assisted by Shri H. K. Sarma. X, report of the Kanungo, are sustainable in law, considered along side the cross-examination of the Kanungo? 2. Whether the impugned judgments and decrees are perverse to the evidence on record? 11. I have heard Shri G. N. Sahewalla, learned counsel for the appellants assisted by Shri H. K. Sarma. I have also heard Shri P. J. Saikia, learned counsel for the respondents. 12. Before adventing to deal with this appeal, this Court is conscious of the limited scope in an appeal preferred under Section 100 of the C.P.C. more-so when the appeal is against concurrent findings of fact. As a Second Appellate Court, its duty is to examine whether the views and findings of the Courts below are plausible views based on the materials on record and only because another view is available, interference may not be warranted. Substituting a plausible view of the lower Court below is not the outlook of this Court. Unless there is perversity of the findings vis- -vis the materials on record or such materials have been wholly ignored, a mere error in appreciation of the materials would not lead to automatic interference in a Second Appeal. 13. Keeping the above principles in mind, the findings of the issue Nos. 3, 4, 5 & 6 may be examined. While deciding these issues, the learned Court below have taken into consideration the survey report (Ext. 1) prepared and submitted by the Kanungo/Mandal who was himself examined as PW 5. The Court have also taken into consideration the fact that though the Sale Deed in favour of the appellants/defendants were not under challenge, it appears that after examination of the mutation orders, 2 Khatas of land was not even available for sale by the vendor Biswanath Shah and only 16 lechas were available. Learned counsel for the respondents, however, submits that the remaining land was actually not even 16 lechas but 8.5 lechas and therefore, a Sale Deed for sale of anything more than the land available was non-est in law. 14. Shri Sahewala, the learned Senior Counsel for the appellants, submits that the aforesaid survey report was absolutely vague and could not have been taken into consideration. Criticizing the said survey report, the Senior Counsel had submitted that the same was prepared in a most perfunctory manner. 14. Shri Sahewala, the learned Senior Counsel for the appellants, submits that the aforesaid survey report was absolutely vague and could not have been taken into consideration. Criticizing the said survey report, the Senior Counsel had submitted that the same was prepared in a most perfunctory manner. However, it is seen that apart from the fact that the report was prepared in presence of both the parties, the officer was himself examined as PW 5 whom the parties had cross-examined. In the said report, the claim of the plaintiffs was fully established. The further findings of fact are the land adjacent to the suit land (encroached land) was available where a pond was dug. 15. The Senior Counsel further submitted that no challenge being made to the Sale Deed made on behalf of the defendants concerning 2 K of land, the findings of the Court was wholly unjustified. Referring to the pleadings, it has been argued that the plaintiffs have themselves admitted the Sale Deed in favour of the defendants. Though the execution of the Sale Deed may be admitted, it has to be examined whether the vendor had valid title upon the land in question before executing such Sale Deed. In this connection, Shri Saikia, the learned counsel for the respondents, has relied upon a case reported in (Subudini Kar & Ors. Vs. Sabitiri Rani Deb, (2012) 4 GauLT 338 ) to buttress the point that "no man can convey a title which he does not have". Reliance is also placed on the case of Premsingh Vs. Birbal, (2006) 5 SCC 353 , wherein the Hon'ble Apex Court has laid down as follows "16. When a document is valid, no question arises of its cancellation. When a document is void ab inito, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity." 16. In view of the above settled position of law, this Court finds force in the argument of the learned counsel for the respondents that no specific challenge is required to be made to the Sale Deed in favour of the appellants/defendants. In view of the above settled position of law, this Court finds force in the argument of the learned counsel for the respondents that no specific challenge is required to be made to the Sale Deed in favour of the appellants/defendants. In any case, this Court is of the opinion that the principal issue being dispossession from the land covered by the Sale Deed dated 04.02.1986, there is no requirement for the plaintiffs to challenge the Sale Deed of the year 2000 in the favour of the appellants/defendants which pertains to a different and distinct plot of land. 17. In the instant case, it appears that the vendor of both the plaintiffs and the respondents is the same, namely, Biswanath Shah, and between 1988 till 2000, the said Biswanath Shah had sold different plots of land to different individuals which are evident from the mutation orders. The Courts below came to a finding of fact that the vendor had only 16 lechas of land remaining and therefore, could not have transferred 2 khatas of land to the defendants. The aforesaid findings are findings of fact which is affirmed by the First Appellate Court after appreciation of materials on records and this Court as the Second Appellate Court would be loath in interfering with such findings. 18. In view of the aforesaid facts and circumstances and the discussions made above, the substantial questions of law are answered in favour of the respondents/plaintiffs and against the appellants/defendants. In other words, no infirmity is found with the impugned judgments which amongst others were based on Ext. X and further no perversity is found in the impugned judgments vis- -vis the evidence on record. 19. The present appeal is accordingly dismissed however with no order as to cost. Registry is directed to transmit the records to the learned Court below.