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2019 DIGILAW 936 (GAU)

Rase Priya @ Rase Bala Barman v. Uttam Barman

2019-08-27

PRASANTA KUMAR DEKA

body2019
JUDGMENT : Prasanta Kumar Deka, J. Heard Mr. S. K. Goswami, learned counsel for the appellants and Mr. S.Sarkar, learned counsel for the respondents. 2. The judgment and decree dated 13.6.2011 passed in Title Appeal No. 7/2010 by the learned Civil Judge, Nalbari is under challenge in this second appeal. The appellants are the defendants in Title Suit No. 31/2007 in the court of learned Munsiff No. 1 at Nalbari which was filed by the plaintiffs respondents for recovery of khas possession and permanent injunction. 3. The case of the plaintiffs respondents is that the predecessor-in-interest of the defendants appellants late Harakanta Das sold the suit land to the plaintiff respondent No.1 and one late Jaltipriya Barman vide sale deed in the year 1970 and delivered possession of the same . The plaintiffs respondents constructed houses thereon and possessing one part after letting out the other part to the tenant. The plaintiff respondent No. 1 and Jaltipriya applied for regular mutation but the Circle Officer refused to grant the mutation order on the ground that the names of the heirs of Harakanta were mutated over the entire share of land of late Harakanta in the suit patta. Finding no alternative the plaintiff respondent No. 1 and Jaltipriya instituted Title Suit No. 15/1980 in the court of Munsiff No.2, Nalbari for declaration of right, title and interest, confirmation of possession over the suit land and for a precept directing the Circle Officer to mutate the name of the plaintiffs therein. The said Title Suit No. 15/1989 was decreed vide judgment and decree dated 11.6.1986 declaring right, title and interest therein over the suit land therein, confirming the possession of the plaintiffs respondents and also issued precept to the revenue authority to mutate the names of plaintiffs respondents. The said judgment and decree was challenged in the first appellate court by the defendants appellants which was dismissed and RSA 2/1999 was also filed which was also dismissed vide judgment dated 30.3.2006. Thereafter on the basis of the precept issued by the executing court in Title Execution No. 4/2006, the names of the plaintiff respondent No. 1 and that of Jaltipriya were mutated. Thereafter on the basis of the precept issued by the executing court in Title Execution No. 4/2006, the names of the plaintiff respondent No. 1 and that of Jaltipriya were mutated. During the continuation of the execution proceeding the defendants appellants No. 2 and 3 dispossessed the plaintiff respondent on 24.5.2006 and forcefully entered into the suit land and started construction of a plinth by demolishing existing house over about 1 katha of suit land. A proceeding under Section 145 Cr.P.C. in respect of said 1 katha of suit land was initiated and the suit land was attached. But the defendants appellants started residing over the suit land by constructing temporary shed and virtually dispossessed the plaintiffs respondents from the suit land. Thereafter the present suit was filed. 4. The defendants appellants contested the suit by filing written statement admitting the fact of filing Title Suit No. 15/1980 and the decree passed in favour of plaintiff respondent No. 1 and one Jaltipriya. But at the same time, plea was taken that the said plaintiffs respondents had no possession over the suit land even at the time of filing the earlier suit. It is the defence of the defendants appellants that the total suit land was under their possession and as such, the plaintiffs respondents are not entitled for the relief of recovery of possession. On the basis of the said pleadings the learned trial court framed the following issues: 1. Whether there is a cause of action for the suit ? 2. Whether the suit is maintainable in its present form ? 3. Whether the plaintiffs were unlawfully dispossessed from the suit land and they are entitled to recover the possession of the suit land on the basis of their title ? 4. Whether the plaintiffs are entitled to relief as prayed for ? 5. Whether to what other relief or reliefs the plaintiffs are entitled to? 5. The plaintiffs respondents examined three witnesses and exhibited several documents including judgment and decree passed in Title Suit No. 15/1980. The defendants appellants also examined four witnesses and exhibited documents. The trial court decided all the issues in favour of the plaintiffs respondents. While deciding the issue No. 3 in respect of the fact of dispossession of the plaintiffs respondents, the court below took into consideration the evidence of the plaintiff respondent No.1 Uttam Barman as PW 1. The defendants appellants also examined four witnesses and exhibited documents. The trial court decided all the issues in favour of the plaintiffs respondents. While deciding the issue No. 3 in respect of the fact of dispossession of the plaintiffs respondents, the court below took into consideration the evidence of the plaintiff respondent No.1 Uttam Barman as PW 1. In his evidence he stated that vide Ext.3 i.e sale deed No. 4484/70 the predecessor-in-interest of the defendants appellants sold the suit land to the plaintiff respondent No.1 and Jaltipriya, since deceased. They possessed the suit land by constructing houses over it and let out some of the rooms to the tenant. As the concerned Circle Officer refused to mutate their names because of the fact that the names of the legal heirs of Harakanta Das were recorded, Title Suit No. 15/1980 was filed and the same was decreed . Ext. 4 is the certified copy of the judgment passed in Title Suit No. 15/1980. Ext. 5 is the certified copy of the judgment and order passed in RSA 2/1999. Decree in the said suit declared the right, title and interest of the plaintiffs respondents and further confirmed their possession over the suit land. PW 1 further deposed that they were dispossessed by the defendants appellants and during the pendency of the proceeding under Section 145 Cr.P.C the defendants appellants hurriedly constructed the house over 1 katha out of the suit land and dispossessed the plaintiffs from the entire 1 katha of land . DW 1 Anil Barman defendant appellant No.2 in his evidence admitted the fact of the judgment and decree in favour of the plaintiffs respondents. In the 145 Cr.P.C. proceeding i.e. Case No. 94m/2006 the police and the Circle Officer enquired and submitted a report stating that the defendants appellants had possession over the suit land and the plaintiffs respondents had no possession over the suit land. Ext. Ga is the certified copy of the petition in Case No. 94m/2006, Ext. Gha is the certified copy of the preliminary order passed in Misc. Case No. 94m/2006 under Sections 145/146 Cr.P.C. and Ext. Unga is the order dated 4.12.2007 passed in the said 145 Cr.P.C. proceeding dropping the said proceeding. 6. Ext. Ga is the certified copy of the petition in Case No. 94m/2006, Ext. Gha is the certified copy of the preliminary order passed in Misc. Case No. 94m/2006 under Sections 145/146 Cr.P.C. and Ext. Unga is the order dated 4.12.2007 passed in the said 145 Cr.P.C. proceeding dropping the said proceeding. 6. The learned trial court held that in the earlier suit i.e. Title Suit No. 15/1980, it was decreed that the plaintiffs respondents have right, title and interest over the suit land and further confirmed possession of the plaintiffs respondents thereon. For the said reasons it was held that the defendants appellants cannot raise the issue in respect of the possession of the plaintiffs respondents over the suit land. Referring to the admission by the defendants appellants that they are possessing the suit land, it accordingly held that the defendants appellants came to the possession of the suit land by dispossessing the plaintiffs respondents there from the suit land. Accordingly the said issue No.3 was decided in favour of the plaintiffs respondents for recovery of khas possession of the suit land 7. Being aggrieved by the said judgment and decree of the trial court the defendants appellants preferred Title Appeal No. 7/2010 in the court of learned Civil Judge, Nalbari and the same was dismissed vide judgment and decree dated 13.6.2011 upholding the findings of the learned trial court. Thereafter this second appeal was preferred which was admitted on 25.11.2011 on the following substantial questions of law- 1. Whether the decree of the Munsiff as well as the appellate court is legally maintainable for not framing the material issue ? 2. Whether the present decree passed by the Munsiff and the Appellate court is based on inadmissible evidence and no evidence at all and was based without discussing any evidence adduced by the plaintiffs. 8. Mr. Goswami submits that the courts below failed to frame proper issues which are material to decide the dispute on the maintainability of the suit. Further the courts below accepted some inadmissible evidence without discussing the evidence on record adduced by the plaintiffs respondents. It is submitted that the court ought to have framed appropriate issue under Order 2 Rule 2 of CPC inasmuch as the plaintiffs respondents had no possession over the suit land even after execution of the registered sale deed, Ext. 3. Further the courts below accepted some inadmissible evidence without discussing the evidence on record adduced by the plaintiffs respondents. It is submitted that the court ought to have framed appropriate issue under Order 2 Rule 2 of CPC inasmuch as the plaintiffs respondents had no possession over the suit land even after execution of the registered sale deed, Ext. 3. In fact the cause of action for the relief of recovery of possession accrued while Title Suit No. 15/1980 was filed but suppressing the fact that the plaintiffs respondents had no possession over the suit land sought for relief of confirmation of possession over the suit land. The courts below accepted the certified copy of the judgment passed in Title Suit No. 15/1980 which was marked as Ext. 4 and the certified copy of the judgment and decree dated 30.3.2006 passed in RSA 2/1999 without production of the records of Title Suit No. 15/1980. Accordingly though an objection was raised while exhibiting the said judgment and decree passed in Title Suit No. 15/1980, but the courts below never discussed to that effect rather the courts below accepted the judgment and decree and on presumption held that the defendants appellants dispossessed the plaintiffs respondents. 9. Mr. Sarkar on the other hand, countered the said submission of Mr. Goswami submitting that there is no specific plea raised by the defendants appellants that the suit is barred under Order 2 Rule 2 of the CPC nor there is any specific pleading in the written statement that the suit is barred under Order 2 Rule 2 CPC. As such the said issue cannot be framed as there is no such plea to that effect and at the second appellate stage the defendants appellants cannot raise the issue before this Court. Regarding the admissibility of the evidence of the judgment and decree, it is the contention that the said fact of a judgment and decree in favour of the plaintiffs respondents is admitted one and admitted fact need not be proved. So the second appeal is liable to be dismissed. 10. I have given due consideration to the submission of the learned counsel. On perusal of the written statement, it is found that there is no specific plea taken by the defendants appellants that the suit is barred under Order 2 Rule 2 CPC. So the second appeal is liable to be dismissed. 10. I have given due consideration to the submission of the learned counsel. On perusal of the written statement, it is found that there is no specific plea taken by the defendants appellants that the suit is barred under Order 2 Rule 2 CPC. Rather it is an admitted fact that the plaintiffs respondents got a decree of confirmation of possession over the suit land in Title Suit No. 15/1980 but they took the plea that it is the defendants but not the plaintiffs respondents, who are in possession of the suit land since prior to the date of filing of the written statement. It is further pleaded in the written statement that in the 145 Cr.P.C. proceeding, as per report of Circle Officer, the possession of the suit land was under the defendants appellants. 11. There is an admission in respect of the decree passed in Title Suit No. 15/1980 in favour of the plaintiffs respondents. In such a situation if the plea as raised by the defendants appellants here that the plaintiffs respondents had no possession at the time of filing Title Suit No. 15/1980, the same ought to have been raised in the earlier suit. On perusal of the judgment passed in Title Suit No. 15/1980, it is found that the defendants appellants took the plea that they have constructed several houses over the suit land and let out those houses and the plaintiff respondent No.1 also occupied one of such houses at the monthly rent of Rs 10/-. If the said plea is considered in my opinion, the subsequent defence cannot be raised by the defendants appellants as the same is barred by the principles of res-judicata considering the relief granted confirmation of possession in favour of plaintiffs respondents. In the earlier suit the defendants appellants stated that they have constructed houses over the suit land and let out one house to the plaintiff respondent No.1 so the fact of non possession of the suit land by plaintiffs respondents at all cannot be accepted as raised by the defendant appellant. In the earlier suit the defendants appellants stated that they have constructed houses over the suit land and let out one house to the plaintiff respondent No.1 so the fact of non possession of the suit land by plaintiffs respondents at all cannot be accepted as raised by the defendant appellant. Accordingly, the learned courts below rightly held that as the possession of the plaintiffs respondents were confirmed in the earlier suit as such, subsequently, the admission of defendants appellants that they are in possession over the suit land in the subsequent suit gives the inference that the defendants appellants dispossessed the plaintiffs respondents from the suit land. Accordingly, in my opinion, the courts below rightly framed the issues keeping in view the pleadings of the parties and there is no omission in framing any material issue and the substantial questions of law No.1 is decided against the defendants appellants. 12. The contention of Mr. Goswami that the records of Title Suit No. 15/1980 ought to have been produced and non production of the same amounts to inadmissible acceptance namely of the judgment and decree passed in Title Suit No. 15/1980 i.e. Ext. 4 cannot be accepted. The judgment and decree passed in Title Suit No. 15/1980 is itself a relevant fact under Section 13 of the Indian Evidence Act wherein it is stipulated that where the question is as to the existence of any particular instances in which the right was claimed and recognized, is itself a relevant fact. The Ext. 4 if taken into consideration shows that the plaintiffs respondents claimed their right, title and interest over the suit land and the competent court on the basis of the said claim as the plaintiff in Title Suit No. 15/1980 decreed the suit thereby recognizing the status of plaintiff respondent over the suit land as the owner. Similarly Section 40 of the Indian Evidence Act stipulates that the existence of any judgment or decree which by law prevents any court from holding a trial is a relevant fact when the question is whether such court ought to hold such trial. Similarly Section 40 of the Indian Evidence Act stipulates that the existence of any judgment or decree which by law prevents any court from holding a trial is a relevant fact when the question is whether such court ought to hold such trial. Even if it is pleaded in the present suit that the plaintiffs respondents had no possession even at the time of earlier suit but because of the fact that there is a judgment and decree passed in Title Suit No. 15/1980 the courts below rightly did not frame the issue as urged by Mr. Goswami, keeping in view that the judgment itself is a relevant fact to hold that no further issue is required to be framed in order to determine as to whether the plaintiffs respondent had possession over the suit land before filing of Title Suit 15/1980. In my opinion the reliance of the said judgment and decree by the courts below cannot be held to be inadmissible evidence. Accordingly substantial question of law No.2 is also decided against the defendants appellants. 13. From the aforesaid discussion and the findings , I am constrained to hold that this second appeal has no merit and as such the same is dismissed without any cost. 14. Send back the LCR.