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2020 DIGILAW 85 (GAU)

Yijum Potom v. Tumbi Karga

2020-01-27

KALYAN RAI SURANA

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JUDGMENT Kalyan Rai Surana, J. - Heard Mr. M. Boje, learned counsel for the appellant. None appears on call for the respondent. 2. This appeal under the provisions of Section 96 read with Order XLI Rule 1 CPC is directed against the order dated 04.03.2014, passed by the learned Addl. District Judge, Eastern Zone, West Siang District, Basar in BSR/TS- 154/13, thereby allowing Misc. Case No. 64/2014 and resultantly the plaint was rejected under the provisions of Order Issue No. VII Rule 11(d) CPC. 3. The appellant is the plaintiff in the suit filed under Section 12 of the Specific Relief Act, 1963, which was registered as TS 154/2013. The case in the plaint is that the appellant had purchased a plot of land at Rupin Litak area from the husband of the respondent at Rs.300/- and resided therein from 1975 to 1979 by constructing dwelling house. It was claimed that in the year 1979, the vendor requested the appellant to vacate the purchased land because of his dispute with Bango parties and the government. The appellant accepted the request and vacated the dwelling house, inter-alia, on condition that if the vendor won the case relating to the said land he shall give 20 ft. from the present medical complex Kamba Bazar market line to the appellant in lieu of payment of consideration money of Rs.300/- by entering into an agreement. In course of time survey was conducted for TransArunachal Highway for payment of compensation and accordingly, the appellant had applied for and his name was enlisted at Sl. No.71 for the plot of land of Kamba Medical Complex on the basis of the sale deed, which entitled the appellant for Rs.29,700/-. However, the compensation was paid to the respondent No.1. It was also claimed that before awarding of compensation, the appellant had submitted an application dated 10.12.2012 before the Addl. Deputy Commissioner, Kamba (proforma respondent No.2) not to award compensation in respect of medical complex and, as such, the appellant was awarded compensation for land measuring 33 X 76 metre = 2508 metre amounting to Rs.29,700/-. It is projected that in a dispute between the respondent No.1 and her son, a local keba was conducted at Kamba. Thereafter, on 25.02.2013, a second district level keba was conducted at Aalo. It is projected that in a dispute between the respondent No.1 and her son, a local keba was conducted at Kamba. Thereafter, on 25.02.2013, a second district level keba was conducted at Aalo. The second keba was decided in favour of respondent No. 1, based on which, the compensation of Rs.29,700/- to which the appellant claims to be entitled to, was paid to the respondent No.1. It is projected that the appellant was not a party in the dispute but he was summoned for the second keba. Accordingly, the appellant had submitted an application before the Deputy Commissioner, Aalo that his dispute, if any with the respondent No. 1 should be separated and he had submitted that he did not desire to be a party in the property dispute between the respondent No. 1 and her son and prayed for transfer of his dispute at Kamba. However, without considering his prayer, an ex-parte decision was passed against him. In connection with the second keba, it is also claimed that the appellant was not aware of the proceeding of second keba and he came to know about it through an RTI application. The appellant approached the Deputy Commissioner, West Siang District to dispose of his application for transfer of the case to Kamba, which was not considered. Accordingly, the appellant prayed for the following three reliefs in the suit: wxyz i. That as to why the land occupied by the Govt. kabma medical complex may not be ejected and directed to vacate and the same may be awarded compensation over the said plot prepared by the Govt. of Arunachal Pradesh Trans Arunachal Highway Committee total area of 33X76 (LXB) area to the petitioner in term of present market value. zyxw wxyz ii. That as to why the compensation prepared by the Addl. Deputy Commissioner, Kamba West, Siang District under the Trans Arunachal Highway amounting to Rs.29,700/- shall not be awarded to the plaintiff on strength of lime light sale deed agreement of dated 26.11.1975 in between late husband of the respondent and the plaintiff. zyxw wxyz iii. That as to why the Right, title, interest, possession and ownership over the 20 feet of or 33X76 = Medical Complex, Kamba shall not declared in favour of the plaintiff. zyxw 4. zyxw wxyz iii. That as to why the Right, title, interest, possession and ownership over the 20 feet of or 33X76 = Medical Complex, Kamba shall not declared in favour of the plaintiff. zyxw 4. The learned trial Court, upon perusal of records and after hearing both sides arrived at a finding that on 27.04.2012, the keba members give their decision in the dispute between the respondent No.1 and Shri Binken/ Karken Karga, wherein the appellant was one of the keba members who had put his signature at Sl. No.4 and prior to the same, on 21.02.2012, the appellant had filed an application before the proforma respondent No.2 for hearing the dispute regarding land which was claimed by Shri Binken Karga which was heard on 01.08.2012. Accordingly, the learned trial Court found it surprising that although the appellant had objection regarding the claim made by Binken Karga, he did not raise such dispute while sitting as keba member and gave his decision in favour of Binken Karga. The learned trial Court had also found that in the district level keba, the appellant was summoned twice but he failed to appear on 17.01.2013 and 25.02.2013 and he also did prefer any appeal or revision against the keba decision dated 25.02.2013. The learned trial Court held that despite knowledge of the keba decision, the appellant approached the proforma respondent No.2 on 23.09.2013 and without assailing the keba decision, the suit was filed. Accordingly, by holding that the appellant had represented material facts, caused unnecessary harassment to the respondent No.1. Hence, the plaint was rejected. 5. The learned counsel for the appellant had narrated the pleadings made in the plaint and he has meticulously referred to all the documents of the case and had pressed all the grounds of the appeal, with which this order has not been burdened. 6. The only point of determination in the appeal is whether the impugned order passed by the learned trial Court is sustainable or not. 7. 6. The only point of determination in the appeal is whether the impugned order passed by the learned trial Court is sustainable or not. 7. Primarily the plaint has been rejected because the keba decision rendered on 27.04.2012, where the appellant was one of the keba members, had attained finality and further by decision dated 25.02.2013, the district level keba had decided the title, ownership and interest of the respondent No.1 in respect of the suit land, which had also attained finality and in this connection, the learned trial Court had categorically held that the appellant had notice of the keba proceeding. In this connection, the learned counsel for the appellant has not been able to demonstrate that the finding recorded by the learned Trial Court that the appellant did not appear on the two herein before mentioned dates despite service of notice was not sustainable on facts. Therefore, as the proceedings and decision of keba had attained finality, the Court is of the unhesitant opinion that a suit would not lie for grant of relief as prayed for in the plaint without interfering with the keba decision, rendered in exercise of powers under the Assam Frontier (Administration of Justice) Regulation, 1945, as such, the impugned order dated 04.03.2014 is sustained. 8. Thus, as the relief claimed by the appellant in the plaint is allowed, it would nullify the keba decision dated 27.04.2012 as well as district level keba decision dated 25.02.2013, which were both passed in exercise of power conferred under the Assam Frontier (Administration of Justice) Regulation, 1945. Thus, the point of determination of this appeal is answered in the affirmative and against the appellant by holding that the impugned order does not suffer from any illegality and the said order of rejection of plaint is sustainable because those two keba decisions have attained finality. 9. Before parting with the records, the Court is of the further opinion that even otherwise, the suit of the appellant is without any merit. The reasons thereof are given in the following paragraphs. 10. The sale deed dated 26.11.1975 is unregistered. The sale deed itself does not contain any description like area of land and four boundaries of the land sold by the vendor. The reasons thereof are given in the following paragraphs. 10. The sale deed dated 26.11.1975 is unregistered. The sale deed itself does not contain any description like area of land and four boundaries of the land sold by the vendor. The English translated copy of the unregistered sale deed is extracted below: wxyz "1) Shri Gambin Karga dated 26.11.1975, given this land at consideration of Rs.300/- (Rupees three hundred) only. zyxw wxyz 2) In near future in case Bango parties gives problem he shall responsible and help the purchaser. zyxw wxyz 3) I have sold this land to Sh Yijum Potom. zyxw wxyz 4) Bango parties in case I near future give problem them he shall offer bazaar line land to purchaser. I have accepted the above mention condition with Mr. Yijum & Boya both." zyxw 11. On 26.06.1976, the appellant and his vendor entered into another agreement, which is extracted below: wxyz "Today Gambin Karga, Gamkar, Binken, Bindo, Tapak and Boya on dated 26.06.1976, they passed that sh Gambin Karga shall provided land from Bazar line kamba (present medical premises) to sh Yijum Potom. In case if sh Gambin Karga get only 20 feet of land from Govt. then he shall not get land and this 20 feet of land shall be awarded to sh Yijum Portom. In case if he get more Gambin karga and he (late Gambin karga) had no objection on the said above condition. The name of accepted parties. zyxw wxyz 1) Sh Gambing Karga zyxw wxyz 2) " Gamkar " zyxw wxyz 3) " Binken " zyxw wxyz 4) " Bindo " zyxw wxyz 5) " Tapak " zyxw wxyz 6) " Boya Patom zyxw wxyz 7) " Yijum Potom zyxw wxyz Copy to zyxw wxyz 1) Gambi Karga zyxw wxyz 2) Yijum Potom zyxw wxyz 3) Bindo Karga." zyxw 12. In paragraph 3 of the plaint, the appellant had stated that he had constructed his dwelling house over the said plot and stayed for four years from 1975 to 1979, but in the year 1979 at the request of his vendor, the appellant had vacated the said plot of land because of dispute between his vendor with Bango parties and government. Therefore, from the statement made in paragraph 3 of the plaint and on examining the contents of the purported sale deed dated 26.11.1975 and the purported land transaction agreement dated 26.06.1976, the Court cannot come to any conclusion that which particular land the appellant had purchased and in view of the contents of the land transaction agreement dated 26.06.1976, the Court is unable to accept the contention of the learned counsel for the appellant that the appellant had right, title and interest over the suit land. From the contents of the sale deed, the description of suit land including its area of the boundary is not available. Therefore, there is every likelihood that any oral evidence led for the purpose of contradicting, varying, adding to such terms would be excluded under Section 92 of the Evidence Act, 1872. Hence, the reason that there is no merit in the suit is that the sale deed is unregistered. The registration is compulsory under Section 17(1)(b) of the Registration Act, as such, a bar is created under Section 49 of the Registration Act, 1908 for such documents being received as evidence of any transaction affecting the suit land. Moreover, the existence of the suit land itself is not ascertainable solely on the basis of the sale deed and if the agreement dated 26.06.1976 is considered, the appellant does not arrive title over the claimed area of 33X76 metre = 2805 metre exclusively from his vendor alone because agreement dated 26.06.1976 contains names of seven persons as accepting parties including the appellant and his vendor. 13. Moreover, on a reading of the agreement dated 26.06.1976, the tone, tenor and contents thereof leads to a conclusion that the said agreement is a sort of contingent contract, which cannot take the character of a sale deed by any stretch of imagination. Therefore, even if any valid sale deed exists, as per paragraph 3 of the plaint, the appellant had relinquished the right flowing from such sale deed in the year 1979, yet there is no explanation as to explain the delay in approaching the trial Court for declaration of right, title and interest after about 34 years. As admitted in paragraph 3 of the plaint, the appellant had relinquished his title and possession over the suit land which he had claimed to be in possession from 1976 to 1979. As admitted in paragraph 3 of the plaint, the appellant had relinquished his title and possession over the suit land which he had claimed to be in possession from 1976 to 1979. Therefore, the claim for title appears to be bar by applying Article 64 and/ or Article 65 of the Schedule of the Limitation Act, 1973. 14. As a result, in view of the decision on the point of determination as indicated above, the present appeal fails and the same is dismissed. However, there shall be no order as to cost of the present appeal. 15. Let the LCR be returned forthwith.