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2020 DIGILAW 8 (GAU)

Pramod Kalita v. Anil Kalita

2020-01-03

MIR ALFAZ ALI

body2020
JUDGMENT : Mir Alfaz Ali, J. 1. This regular first appeal is by the plaintiffs against the judgment and decree dated 12.01.2017 passed by the learned Civil Judge (No. 1), Kamrup, Guwahati in Title Suit No. 122/2007 dismissing the suit of the plaintiffs. 2. The appellant as plaintiff filed the suit for declaration of right, title, interest, recovery of possession and permanent injunction. The case of the plaintiff was that Late Lalit Ch. Bharali was the original owner of the suit land measuring 1 bigha 16 lechas covered by Patta No. 241 and Dag No. 466 described in the schedule of the plaint. The plaintiff No. 1 by registered sale deed No. 2316 dated 10.03.2005 purchased 2 katha 18 lechas of land out of Dag No. 466 from Mrigen Bharali (proforma defendant No. 5) being the legal heir of late Lalit Ch. Bharali. The plaintiff No. 2 also purchased 2 katha 18 lechas of land out of the said Dag No. 466 from Mrigen Bharali by sale deed No. 2317 dated 10.03.2005. It was stated that one Bhaben Rongpi cultivated the land under the original pattadar and on an amicable settlement with the Bhaben Rongpi, the legal heir of Lalit Ch. Bharali, proforma defendant No. 5 sold the entire land of Dag No. 466. Both the plots of land purchased by the plaintiffs being contiguous, the plaintiffs jointly constructed boundary wall covering the entire land of the suit dag as one plot. However, later on, it was revealed that the vendor of the plaintiff wrongly gave possession of the land covered by Dag No. 473, instead of land covered by Dag No. 466, which was purchased by the plaintiffs and the plaintiffs also came to know that that the land of Dag No. 473, possession of which was given to the plaintiffs, actually belong to one Giridhar Taro. Having come to know about the possession of Dag No. 473, the plaintiffs made an application before the Settlement Officer to demarcate the Dag No. 466, which was purchased by them and accordingly, the Lot Mondol demarcated the Dag No. 466, which was purchased by the plaintiffs. After such demarcation and identification of Dag No. 466 by Lot Mondol, the plaintiffs took possession thereof and erected bamboo fencing covering the entire suit land covered by Dag No. 446. After such demarcation and identification of Dag No. 466 by Lot Mondol, the plaintiffs took possession thereof and erected bamboo fencing covering the entire suit land covered by Dag No. 446. Both the plaintiffs being Government servant, could not visit the suit land regularly and on the last week of July, 2006, when the plaintiffs went to the suit land, they found that the defendant No. 1 has trespassed into the suit land and constructed a house thereon. When the plaintiffs informed the defendant No. 1, that the land belongs to them, the defendant No. 1, agreed to settle the matter amicably by measuring the land. However, the defendant No. 1, on various pretexts did not come forward to settle the dispute and in the meantime, the defendant No. 2, 3 & 4 also constructed temporary sheds over the suit land. Having found no alternative, the plaintiffs have filed the suit for declaration of right, title and interest and the consequential reliefs as indicated above. 3. The defendants No. 1 to 4 filed a joint written statement. Besides the legal pleas of maintainability, bar of limitation and non-joinder of necessary parties, etc., the specific case of the defendants No. 1 to 4 was that the proforma defendant No. 7 was in possession of the land covered by Dag No. 465 as well as 466 and he acquired title over the said land by virtue of long and uninterrupted possession. The defendant No. 1, 2, 3 & 4, namely, Sri Anil Kalita, Sri Soneswar Baruah, Sri Dwijen Talukdar and Biren Chandra Bharali purchased the possessory right over 5 kathas 10 lechas of land covered by Dag No. 465 from Sri Bhaben Rongpi (proforma defendant No. 7) by four numbers of (unregistered) deeds and all of them took possession thereof. The unregistered deeds in favour of defendant No. 1, 3 & 4 were executed on 28.06.2002 and the deed in favour of defendant No. 2 was executed on 02.07.2007. The possession of remaining land of the said dags was sold to two other persons, namely, Satish Medhi and Madhab Deka and Satish Medhi in turn sold his portion of land to Kishor Talukdar and all of them were possessing the respective land by constructing houses. The possession of remaining land of the said dags was sold to two other persons, namely, Satish Medhi and Madhab Deka and Satish Medhi in turn sold his portion of land to Kishor Talukdar and all of them were possessing the respective land by constructing houses. The pleaded case of the defendants was that they have been possessing the land, which was purchased by them from Bhaben Rongpi and the plaintiffs have given a wrong boundary in the schedule of the plaint covering the land in possession of the defendants. It was also the case of the defendants that the land purchased by them from Bhaben Rongpi was Government land and the same has no relation with the land of Dag No. 466. It was also stated in the written statement that out of the said 1 bigha 16 lechas of total land in Dag No. 466, 3 katha 18 lechas was acquired by the Government for Oil India and a separate patta was issued in respect of said 3 katha 18 lechas and therefore, only 1 katha 18 lechas of land was left out in the Dag No. 466 and therefore, the vendor of the plaintiffs could not have sold, nor the plaintiffs could acquire title over the entire 1 bigha 16 lechas of land of Dag No. 466. It was also stated that the land was occupied by one occupancy tenant, namely, Gong Mikir and therefore, the pattadar could not have sold the land in view of occupancy right of the tenant. 4. The proforma defendant No. 7 by filing a separate written statement adopted the written statement submitted by the defendants No. 1 to 4. The further case of the proforma defendant No. 7 was that he was possessing the land covered by Dag No. 465 and 466 by his own right title and interest and that he was never tenant under the original owner Lalit Ch. Bharali. 5. On the basis of the above pleadings, learned Civil Judge framed the following issues: "1. Whether the suit is maintainable in its present form? 2. Whether there is cause of action for the suit? 3. Whether the suit is bad for non-joinder for necessary parties? 4. Whether the plaintiffs purchased the suit land by two separate registered sale deeds? 5. On the basis of the above pleadings, learned Civil Judge framed the following issues: "1. Whether the suit is maintainable in its present form? 2. Whether there is cause of action for the suit? 3. Whether the suit is bad for non-joinder for necessary parties? 4. Whether the plaintiffs purchased the suit land by two separate registered sale deeds? If so, whether the plaintiffs have right, title and interest over the suit land by virtue of purchase admittedly by only a co-sharer of the land? 5. Whether the plaintiffs having no land in Dag No. 466 and are trying to grab the land of defendants in their possession in Dag No. 465? 6. Whether the plaintiffs are entitled to recovery of khas possession of the suit land? 7. To what other relief/reliefs the parties are entitled?" 6. Both the parties adduced evidence and upon hearing the parties, learned Civil Judge by the impugned judgment dismissed the suit of the plaintiffs. 7. Aggrieved, the plaintiffs have preferred the instant appeal. 8. Learned counsel Mr. K. Sarma for the appellants and learned counsel Mr. J. Deka for the respondents were heard. 9. Learned Civil Judge decided the issue No. 1 & 2 in favour of the plaintiffs. However, the issue No. 3 to 7 were decided against the plaintiffs. There is no challenge against the findings of the learned Civil Judge with regard to issue No. 1 & 2. Having regard to the nature of dispute, relief claimed and the rival submission of both the sides, the following two points are considered necessary for adjudication of this first appeal. (i) whether the suit was bad for non-joinder of necessary parties? (ii) whether the plaintiffs have right, title and interest over the suit land? POINT NO. 1 10. Learned trial court held that admittedly, the original owner of the suit land was late Lalit Ch. Bharali and he had another son and two daughters besides, Mrigen Bharali, the vendor of the plaintiffs. However, all the legal heirs of Lalit Bharali were not made party in the suit and therefore, in absence of all the legal heirs of Lalit Bharali, learned Civil Judge decided the issue pertaining to non-joinder of necessary party against the plaintiffs. The specific case of the plaintiffs was that they have purchased the suit land from Mrigen Bharali (proforma defendant No. 5), son of Lalit Ch. The specific case of the plaintiffs was that they have purchased the suit land from Mrigen Bharali (proforma defendant No. 5), son of Lalit Ch. Bharali and the other son of Lalit Bharali has been arrayed as proforma defendant No. 6. Although the defendants raised the plea of non-joinder of necessary party for not impleading all the legal heirs of Lalit Bharali, there was no pleading from the side of the defendant that the property left by Lalit Ch. Bharali was not partitioned and for that matter Mrigen Bharali was not the absolute owner of the suit land. The specific pleading of the plaintiffs was that they purchased the land from Mrigen Bharali. The admitted position is that Lalit Bharali was the original owner of the suit land and Mrigen Bharali was the legal heir of Late Lalit Ch. Bharali being one of his son. Neither the defendant 5, Mrigen Bharali nor the defendant No. 6 Upen Bharali has contested the suit. When besides, Mrigen Bharali, the other son of Lalit Bharali was also made party in the suit and no objection was raised by said Upen Bharali being son and legal heir of Lalit Bharali, there was no reason for the learned trial court to assume that Mrigen Bharali did not have title over the suit land, when admittedly Mrigen Bharali was the legal heir of Lalit Bharali. Though the other legal heirs being two daughters were not made party, evidently, besides Mrigen Bharali, the other son of Lalit Bharali was made party in the suit, who was not vendor of the plaintiffs and did not raise any plea of absence of partition or defect in the title of Mrigen Bharali. This being the position, the defendants No. 1 to 4 being stranger, could not question the title of Mrigen Bharali, more particularly, when the defendants did not raise any claim over the suit land of Dag No. 466 sold by Mrigen Bharali in favour of the plaintiffs. 11. This apart, even assuming for the sake of argument that Mrigen Bharali was not the sole legal heir, even then, there was no bar in selling a land by one of the co-owner in view of Section 44 of the Transfer of Properties Act (TP Act). 11. This apart, even assuming for the sake of argument that Mrigen Bharali was not the sole legal heir, even then, there was no bar in selling a land by one of the co-owner in view of Section 44 of the Transfer of Properties Act (TP Act). As per Section 44 of the TP Act, one of the co-owner of an un-partitioned property may transfer and convey valid title to the extent of his share. Therefore, unless there is specific pleading that the vendor of the plaintiff's did not have title over the suit land or he had sold the land beyond the extent of his interest in the joint property, there is no difficulty in deciding the title of the plaintiffs over the suit land even in absence of other co-owner, reason being that admittedly Lalit Bharali was the owner of the suit land and Mrigen Bharali, the vendor of the plaintiffs was the legal heir of late Lalit Bharali having title over the suit land. In any view of the matter, when other legal heir of Lalit Bharali, besides, the vendor of the plaintiffs was already on record and the estate was represented and also no plea was raised by such legal heir of Lalit Bharali being defendant No. 6 against the claim of the plaintiffs, that Mrigen Bharali was owner of the suit land covered by Dag No. 466, there could not be any difficulty in deciding the suit even in absence of other legal heir of Lalit Bharali, inasmuch as, admitted position was that Mrigen Bharali, the vendor of the plaintiffs was the legal heir of Lalit Bharali, the original owner of the suit land. In the present case, plaintiffs filed the suit for declaration of title over the suit land covered by Dag No. 466 of Patta No. 241 by virtue of purchase from proforma defendant No. 5, and the contesting defendants did not raise any claim over the said land of Dag No. 466. In the present case, plaintiffs filed the suit for declaration of title over the suit land covered by Dag No. 466 of Patta No. 241 by virtue of purchase from proforma defendant No. 5, and the contesting defendants did not raise any claim over the said land of Dag No. 466. There was also no dispute as to the proforma defendant No. 5 & 6 being legal heirs of Lalit Bharali, the original owner of the land, and as such, the dispute involved in the suit relating to title over the suit land could be effectively decided even in absence of the other legal heirs of Lalit Bharali and as such, the suit could not be held to be bad for non-joinder of necessary parties. 12. One must bear in mind the difference between "non-joinder of necessary party" and "non-joinder of party." Order 1 Rule 9 CPC provides that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the court may in every suit deal with the matter on controversy so far as regards the rights and interests of the parties actually before it. Therefore, mere non-joinder or misjoinder of party is not fatal. What is fatal is the non-joinder of necessary parties and a necessary party is one without whom an effective decree cannot be passed or without whom the suit cannot legally proceed. Thus, it is not the absence or non-joinder of a party, rather the inability of the court to decide the dispute effectively. Therefore, whether a party is necessary party or a mere formal party, has to be looked into from the point of view of the court's ability to decide the lis effectively and not from the point of view of the party. When the court is in a position to decide the dispute or right of the parties effectively without the presence of a party or parties, though such party may be a formal party, the suit cannot be held to be bad for non-joinder of such party or parties. In view of the above facts and circumstances, in my considered view the finding of the learned trial court that the suit was bad for non-joinder of necessary party was not proper and therefore, the issue No. 3 deserves to be decided in favour of the plaintiffs. POINT NO. 2. 13. In view of the above facts and circumstances, in my considered view the finding of the learned trial court that the suit was bad for non-joinder of necessary party was not proper and therefore, the issue No. 3 deserves to be decided in favour of the plaintiffs. POINT NO. 2. 13. The pleaded case of the plaintiffs was that they have purchased the suit land covered by Dag No. 466 and Patta No. 241 from Mrigen Bharali by registered sale deed and in support of such claim, they have proved the sale deeds (Ext. 9 & Ext. 10). The specific plea of the defendants was that they have purchased the possessory right of the land covered by Dag No. 465 from proforma defendant No. 7 and the contesting defendants did not raise any claim over the land covered by Dag No. 466. During evidence also, DW-1 & DW-2 clearly stated that the land covered by Dag No. 466 is myadi land and they have no claim over the land covered by Dag No. 466 and they have also no objection, if the suit is decreed in respect of Dag No. 466. It was further stated both by DW-1 & DW-2, that they were occupying the land covered by Dag No. 465 and not Dag No. 466, nor they have purchased the land covered by Dag No. 466. Therefore, admittedly the defendants' claim was over Dag No. 465 and not on Dag No. 466 and they also admitted the claim of the plaintiffs over Dag No. 466. Only dispute raised by the defendants, as revealed from the pleadings and evidence is that the description of the suit land has been wrongly given and thereby, the contesting defendants, in fact, have challenged the identity of the suit land. According to the defendants, the boundary given by the plaintiff in the schedule relates to the Government land possessed by the defendants, which falls under Dag No. 465 and not under Dag No. 466. However, the learned Civil Judge decided the issue of title against the plaintiffs, apparently on some extraneous matters, which were event not in the pleadings of the parties as well as on certain documents, more particularly, Ext. M, a copy of chitha, which itself is not admissible in evidence. 14. However, the learned Civil Judge decided the issue of title against the plaintiffs, apparently on some extraneous matters, which were event not in the pleadings of the parties as well as on certain documents, more particularly, Ext. M, a copy of chitha, which itself is not admissible in evidence. 14. The crux of the dispute and the real controversy in the present suit was as to whether the suit land, as described in the plaint falls under Dag No. 466 or Dag No. 465. If it is falls under Dag No. 466, then the plaintiffs' suit could not have been rejected in toto, inasmuch as, the claim of the plaintiffs over Dag No. 466 has not been denied by the contesting defendants, rather they have admitted in evidence that they have no objection in case of passing a decree in respect of Dag No. 466 in favour of the plaintiffs and that the title of the plaintiffs' vendor was also not in dispute. 15. While rejecting the claim of title of the plaintiffs, learned Civil Judge observed that although, there were other legal heirs, the sale deeds in favour of the plaintiffs were executed by Mrigen Bharali alone and no certificate or document showing no objection by the proforma defendant No. 6 has been adduced. It was also held by the learned trial court, that jamabandi of the land has not been produced to show that the name of Mrigen Bharali was mutated in respect of the suit land. It was also held by the learned Civil Judge that Bhaben Rongpi was cultivating the land and no deed of compromise or settlement with Bhaben Rongpi has been produced. As already indicated above, admittedly, Mrigen Bharali was the legal heir of Lalit Bharali, the original owner of the suit land (Dag No. 466) and therefore, there was no bar on the part of Mrigen Bharali, being legal heir of the original owner of the land to execute the sale deed. As already indicated above, admittedly, Mrigen Bharali was the legal heir of Lalit Bharali, the original owner of the suit land (Dag No. 466) and therefore, there was no bar on the part of Mrigen Bharali, being legal heir of the original owner of the land to execute the sale deed. When Upen Bharali, the brother of Mrigen Bharali was already on record as party to the suit and did not contest the suit, nor raised any objection against competency of Mrigen Bharali to execute the sale deed, the finding of the learned Civil Judge that no document has been produced by the plaintiff to show, that Upen Bharali has given no objection in selling the land appears to be perverse, inasmuch as, when Upen Bharali being legal heir of Lalit Bharali himself is a party, has not objected to the competency of Mrigen Bharali, the court cannot make out case of its own, which was not pleaded by the parties in the suit. Failure of the plaintiffs to show mutation of Mrigen Bharali in respect of the suit land as observed by the learned trial court is also of no consequence. When admittedly Mrigen Bharali was the legal heir of Lalit Bharali, even if the name of Mrigen Bharali was not mutated or his name was not recorded in the jamabandi, that does not affect the right of Mrigen Bharali being legal heir to inherit the property. The observation of the learned Civil Judge, that non production of the deed of amicable settlement between Bhaben Rongpi, the alleged tenant over the suit land and Mrigen Bharali, rendered the transaction of sale of suit land between the proforma defendant No. 5 and the plaintiffs ineffective also appears to be fallacious, inasmuch as, Bhaben Rongpi himself being defendant in the suit by filing written statement stated that he was never tenant under Mrigen Bharali or Lalit Bharali, rather he claimed title by way of long possession. This apart, there was no evidence on record to show, that Bhaben Rongpi was the occupancy tenant in respect of the suit land. 16. It was also held by the learned Civil Judge on the basis of Ext. This apart, there was no evidence on record to show, that Bhaben Rongpi was the occupancy tenant in respect of the suit land. 16. It was also held by the learned Civil Judge on the basis of Ext. M, the Jamabandi, that out of 1 bigha 16 lechas of land in Dag No. 466, 3 katha 18 lechas was acquired by Government for Oil India and a separate patta was issued and as such, only 1 katha 16 lechas of land was left out in Dag No. 466 and therefore, the vendor of the plaintiffs could not have executed two sale deeds in respect of entire 1 bigha 16 lechas of land of the suit dag. This finding of the learned Civil Judge also appears to be perverse being contrary to the evidence on record. Ext. M Jamabandi shows, that old No. of Dag 466 was 336, which contain 1 bigha 16 lechas of land and out of the 1 bigha 16 lessas, only 18 lechas of land was curved out from Dag No. 336 (New-466) and included in the separate patta issued in favour of Oil India and remaining 2 katha 8 lechas of land was curved out from Dag No. 324. Therefore, when the documentary evidence relied by the learned Civil Judge shows that only 18 lechas of land from Dag No. 466 was curved out and included in the separate patta in favour of Oil India, the observation of the learned Civil Judge that 3 katha 18 lechas was curved out from Dag No. 466, leaving only 1 katha 16 lechas was apparently perverse and against the evidence on record. 17. When the plaintiffs have filed the suit for declaration of right, title, interest and possession, there is no doubt about the legal proposition that burden lies on the plaintiffs to prove their case and the plaintiff can succeed on his/their own strength. However, the nature and standard of such burden cannot be same in all cases. For example, in a case where the title of the plaintiff is not disputed, the burden of the plaintiff obviously shall be lessor or lighter than in a suit where the title of the plaintiff is denied. However, the nature and standard of such burden cannot be same in all cases. For example, in a case where the title of the plaintiff is not disputed, the burden of the plaintiff obviously shall be lessor or lighter than in a suit where the title of the plaintiff is denied. Therefore, while deciding the title of the plaintiff or the standard of proof required for the same, the court must give due regard to the pleadings and the nature of controversy in a given case. In the present case, from the evidence on record it is apparent that the defendants have not disputed the claim of the plaintiffs over Dag No. 466 and the plaintiffs also adduced evidence to support their claims, that they have purchased the land measuring 1 bigha 16 lechas covered by Dag No. 466. When there is no dispute with regard to the plaintiffs' title over the land purchased by sale deed (Ext. 9 & Ext. 10) covered by Dag No. 466 and the specific case of the defendants was that they were possessing the land covered by Dag No. 465, allegedly purchased from the proforma defendant No. 7 and raised the dispute only in respect of identity of the suit land, with specific pleading that the suit land possessed by them was covered by Dag No. 465 and not by Dg No. 466, necessarily the burden stood shifted to the defendants to prove their plea with regard to the identity of the suit land. What I find from the impugned judgment and the evidence on record is that the learned Civil Judge without deciding the real controversy in the suit as to whether the suit land as described in the plaint was covered by Dag No. 466 or Dag No. 465 dismissed the suit holding that the plaintiffs have failed to prove their title. Having regard to the nature of controversy involved in the suit, question of title of the plaintiffs over the suit land could not be decided without deciding the question as to whether the suit land fell in Dag No. 465 or Dag No. 466 and as such, the findings of the learned Civil Judge holding that the plaintiffs failed to prove their title cannot be allowed to hold the field. Though, learned Civil Judge could have issued Amin Commission to determine the identity of the land, neither the parties urged the court for issuance of Commission nor the learned Civil Judge has made any endeavor to determine the real controversy with regard to identity of the suit land and dismissed the suit without deciding the real controversy involved in the suit. 18. Having considered the above facts and circumstances, this court is of the view that this is a fit case for sending back the matter to the learned trial court for fresh disposal after determining the real controversy with regard to the identity of the suit land and title of the plaintiffs, if necessary by issuing the Amin Commission. The point No. 2 is answered accordingly. 19. When the suit of the plaintiffs was dismissed without determining the real controversy involved in the suit, the impugned judgment and decree cannot be sustained. Accordingly, the judgment and decree passed by the learned Civil Judge is hereby set side. The matter be remitted back to the learned Civil Judge, who shall decide the suit afresh, if necessary by allowing the parties to adduce further evidence and issuing Amin Commission to decide the dispute with regard to the identity of the suit land. 20. The appeal is allowed in the terms as indicated above. No cost. 21. Send back the LCR.