High Court
Case Details
RSA 134/2001 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
This appeal by the defendant is directed against the judgment an d decree dated 31.07.2001 passed by the learned Civil Judge (Sr. Division), Darr ang at Mangaldoi, in Title Appeal No.17/1999, whereby and whereunder the appeal preferred by the present appellant has been dismissed by affirming the judgment and decree dated 19.05.1999 passed by the learned Civil Judge (Junior Division) No.1, Mangaldoi, in Title Suit No.14/1997. The respondent as plaintiff instituted a suit for declaration of possess 2. ory right and for recovery of khas possession by ejecting the defendant/appellan t from the land described in Schedule-1 and 2 to the plaint, contending inter al ia that the land was originally under the possession of their predecessor-in-int erest and the proforma defendant No.2 Sudhir Kr. Dutta, out of which land measur ing 5 bighas 2 kathas 10 lechas covered by dag No.283 in village Moamari has bee n under possession of the plaintiff since the year 1973 and land measuring 4 big has 4 kathas covered by das No.282 of the said village was under possession of t he proforma defendant No.2. It has also been contended that by virtue of a famil y settlement, the proforma defendant No.2 was allotted the land described in Sch edule-3 of the plaint and the plaintiff got 10 bighas 1 katha 10 lechas in Sched ule-1 and 2 to the plaint, who has been possessing the same. The further case of the plaintiff is that the proforma defendant No.2 proposed to sell the possessi on of 4 bighas 3 kathas of land in favour of the defendant No.1 at Rs.4,700/- in dag No.137 of Schedule-3 land, for which a katcha sale deed was also executed. The further pleaded case of the plaintiff is that the land which fell in his sha re being land described in Schedule-1 and 2 was given to the defendant No.1 for cultivation on Adhi system, who, however, has subsequently refused to share the crops claiming purchase of the land from the proforma defendant No.2 by a katcha deed. 3. The defendant No.1/appellant has filed the written statement denying the claim of the plaintiff and contending inter alia that he possesses the suit lan d after purchasing the possession by a katcha deed dated 15.05.1979. According t o the said defendant the plaintiff has no possession over the suit land describe d in Schedule-1 and 2. The proforma defendant No.2 by filing the written stateme nt has supported the case of the plaintiff. The proforma defendant No.3 by filin g the written statement has contended that he has no claim over the suit land ex cept being receiver. The Trial Court on the basis of the pleadings framed the following issue Whether there is cause of action for the suit? Whether the suit is maintainable in its present form? Whether the plaintiff has got possessory right over the suit land? Whether the defendant purchased possessory right over the suit land from 4. s for determination:- (i) (ii) (iii) (iv) proforma defendant No.2? (v) Addl. Issue: (i) To what other relief/reliefs the parties are entitled? Whether the suit land has been properly described? 5. The Trial Court upon appreciation of the evidence on record as adduced b y the parties, decreed the suit of the plaintiff vide judgment and decree dated 19.05.1999. Being aggrieved the defendant No.1 preferred Title Appeal No.17/1999 , which has been dismissed vide judgment and decree dated 31.07.2001. Hence the present appeal. 6. the following substantial question of law:- The appeal has been admitted for hearing vide order dated 03.12.2001 on Whether the learned Trial Court as well as the First Appellate Court have commit ted an error in discarding Ext.-’Gha’, an unregistered sale deed?
Legal Reasoning
I have heard Mr. N.C. Das, learned Sr. counsel for the appellant. None a 7. ppears for the respondents, though the names of the learned counsel appearing fo r the respondents are reflected in the cause list. It has been contended by Mr. Das, learned Sr. counsel for the appellant 8. that though Ext.-’Gha’ deed is an unregistered one, the same can be considered f or collateral purpose i.e. to demonstrate the possession of the defendant over t he suit land, when the plaintiff has claimed declaration of possession based on his previous possession. The learned Sr. counsel submits that the Courts below h ave discarded the Ext.-’Gha’ deed only on the ground that the same is not a regi stered instrument and did not take into consideration the said document to ascer tain the possession of the defendant over the suit land. It appears from the judgments passed by the Courts below that the Ext.-’ 9. Gha’ deed, though is not a registered instrument, has been considered by both th e Courts below. The First Appellant Court has found that the Ext.-’Gha’ instrume nt cannot be believed as the description of the property was subsequently added that too by different ink and hand, which has also not been supported by the pro forma defendant No.2. It has also been found that to prove the contents of the s aid document even the writer of the document has not been examined. The First Ap pellate Court has also discussed the evidence on record. It has also been found that none of the boundary witness was examined by the appellant to substantiate his claim of possession over the suit land i.e. the land described in Schedule-1 and 2 to the plaint. Ext.-’Gha’ deed was also found to be not relating to the s uit land being Schedule-1 and 2. The same having been taken into consideration b y both the Courts below for collateral purpose i.e. relating to the possession, the substantial question of law as formulated does not exist in the present appe al. 10. me is dismissed. No cost.
Decision
In view of the above, the appeal is devoid of any merit and hence the sa 11. The Registry is directed to send down the records forthwith.