High Court
Case Details
RSA 184/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL) This appeal by the successors-in-interest of the defendant No.1, namely, Ajit Barua, is directed against the judgment and decree dated 15.05.2002 passed by the learned Civil Judge (Sr. Division) No.1, Kamrup at Guwahati in Title App eal No.49/2000, whereby and whereunder the appeal preferred by the plaintiffs ha s been allowed by setting aside the judgment and decree dated 08.08.2000 passed by the learned Civil Judge (Jr. Division) No.1, Kamrup at Guwahati, in Title Sui t No.399/1996 (renumbered from Title Suit No.76/1988), whereby and whereunder th e suit of the plaintiffs was initially dismissed. 2. The respondents herein as plaintiffs instituted the aforesaid suit for d eclaration of right, title and interest in respect of the land measuring 3 katha s 10 lechas, more fully described in Schedule-A to the plaint, and also for reco very of khas possession by evicting the defendants, for a decree that the sale d eed dated 19.03.1985 executed by the defendant No.2 in favour of the defendant N o.1 is null and void and not binding on the plaintiffs, apart from permanent and mandatory injunction, contending inter alia that a vast land was originally bel onged to Rajendra Narayan Deb and after his death his successors-in-interest, na mely, Smt. Lakshmi Priya Devi, widow of Rajendra Narayan Dev; Kumar Jatindra Nar ayan Dev and Kumar Dwijendra Narayan Dev, both sons of late Rajendra Narayan Dev ; and Smt. Madhuri Choudhury, W/O Dilip Ch. Choudhury and daughter of Rajendra N arayan Dev, by means of a family partition on 19.06.1965, distributed the land a t Beltola Mouza amongst them and accordingly the land described in Schedule-Kha to the said family partition (Ext.-4), which includes the suit land, fell in the share of Kumar Jatindra Narayan Dev, who by a registered deed of sale dated 03. 07.1969 (Ext.-1) sold the suit land to the plaintiffs. It has further been plead ed that they were in possession of the suit land prior to such purchase and cont inued to be so after such purchase. Further pleaded case is that while they were enjoying the peaceful possession, Suprabha Devi, widow of Kumar Dwijendra Naray an Dev, instituted a proceeding under Section 145 Cr.P.C., which has been regist ered and numbered as Misc. Case No.282(m)/1985, where vide order dated 26.10.198 7, the learned Executive Magistrate declared the possession of Suprabha Devi, th e vendor of the defendants, and the first party in the 145 proceeding, for which the plaintiffs had to institute Title Suit No.67/1987, which, however, was subs equently withdrawn with liberty to re-file the suit on 30.11.1988 and consequent ly the present suit has been filed praying for the relief as noticed above.
Legal Reasoning
The defendant No.1, namely, Ajit Barua, the predecessor-in-interest of t 3. he present appellants, and the defendant No.2, namely, Suprabha Devi, widow of K umar Dwijendra Narayan Dev, filed their respective written statements. In the wr itten statement filed by the defendant No.1, it has been contended that the land measuring 1 bigha, which includes the suit land, was sold by Suprabha Devi in f avour of Ajit Barua and Charu Bala Barua, wife of Ajit Barua, by two separate sa le deeds, both dated 19.03.1985 (Exts.-1 and 2) (It appears that the documents p roved by both the plaintiffs and the defendants are marked as exhibit in numeric al number by the Trial Court by mistake) and they were put into possession. The defendant No.1 also denied execution of sale deed in favour of the plaintiffs. A ccording to the defendant No.1 by virtue of such purchase, the defendant No.1 as well as his wife Charubala Barua became the owner of the land measuring 1 bigha including the suit land in Dag No.314 of Patta No.32. 4. The defendant No.2, the vendor of the defendant No.1, in the written sta tement has pleaded that there was amicable partition amongst the successors-in-i nterest of Kumar Rajendra Narayan Dev and the suit land fell in the share of Kum ar Dwijendra Narayan Dev, after whose death she sold the land measuring 1 bigha including the suit land in favour of the defendant No.1 by two sale deeds, both dated 19.03.1985. The defendant No.2 has also denied that the suit land fell in the share of Kumar Jatindra Narayan Dev. Based on the pleadings of the parties, the Trial Court framed the follow Whether the suit is maintainable? Whether the suit is barred by limitation? Whether there is cause of action for the suit? Whether the suit is bad for non-joinder of necessary parties? Whether the sale deed of defendant is fraudulent and is null and void? Whether the defendant acquire valuable right, title and possession over 5. ing issues for determination:- (i) (ii) (iii) (iv) (v) (vi) the suit land? (vii) uit land and are entitled to recovery of possession? (viii) legal? (ix) (x) Whether the plaintiffs are entitled to the reliefs as prayed for? To what relief if any the plaintiffs are entitled? Whether the plaintiff acquire the right, title and possession over the s Whether G.M.C. permission obtained by the defendant is fraudulent and il 6. Both the plaintiffs and the defendants examined their respective witness es, who have been cross-examined by the respective parties. They have also prove d a number of documents including the sale deed dated 03.07.1969 (Ext.-1) stated to be executed by Kumar Jatindra Narayan Dev in favour of Dhirendra Nath Sarma, the predecessor-in-interest of the plaintiffs, and the sale deeds dated 19.03.1 985 (Exts.-1 and 2), executed by Suprabha Devi, widow of Kumar Dwijendra Narayan Dev, in favour of the defendant No.1 and his wife Charubala Barua, apart from o ther documents. The Trial Court upon appreciation of the evidence on record, both oral a 7. nd documentary, has dismissed the suit of the plaintiffs by holding that the pla intiffs could not prove the partition and hence the suit land belonged to both K umar Jatindra Narayan Dev and Kumar Dwijendra Narayan Dev. It has further been h eld that the plaintiffs could not prove the sale by Jatindra in their favour. 8. Being aggrieved the plaintiffs preferred the aforesaid appeal, which has been allowed by the first appellate Court thereby decreeing the suit of the pla intiffs by holding that the plaintiffs could prove the family partition (Ext.-4) of the land amongst the successors-in-interest of Kumar Rajendra Narayan Dev, t hat the suit land fell in the share of Kumar Jatindra Narayan Dev and that since the defendants did not dispute/deny the execution of the sale deed by Kumar Jat indra Narayan Dev in favour of the plaintiffs, the sale in favour of the plainti ffs stands proved. Hence the present appeal. This appeal was admitted for hearing vide order dated 11.03.2003 on the Whether the suit of the respondents plaintiffs is maintainable in view o 9. following substantial questions of law:- (cid:28)(i) f the Order 23 Rule 1(4) of the CPC? (ii) Whether the learned court below erred in holding that the Sale Deed Ext. 1 was not required to be proved as the same was neither disputed nor denied by t he appellants defendants by over looking the stand to the contrary taken by them in their written statement? (iii) Whether the learned court below erred in holding that the land covered b y Dag No.100 and 314 of the suit patta No.32 was one and the same, by totally ig noring the plaint, Ext. (cid:29)Umo (cid:29) and the affidavit Ext.4? (cid:29)
Legal Reasoning
10. and Mr. S. Medhi, learned counsel for the respondents/plaintiffs. I have heard Mr. N. Dhar, learned counsel for the appellants/defendants 11. Mr. Dhar, the learned counsel referring to Ext.-4, deed of partition, ha s submitted that it is apparent therefrom that the land in Schedule-Kha to the s aid deed fell in the share of Kumar Jatindra Narayan Dev and since Schedule-Kha land does not include the land covered by Patta No.32, the first appellate Court ought not to have held that by virtue of such family partition the suit land co vered by Patta No.32 fell in the share of Kumar Jatindra Narayan Dev. It has als o been submitted that the finding recorded by the first appellate Court that the defendants did not deny the execution of sale deed by Kumar Jatindra Narayan De v in favour of the plaintiffs on 03.07.1969, is a perverse finding, as the defen dants in the written statement in clear terms have denied such sale and also cla imed that the said suit land fell in the share of Kumar Dwijendra Narayan Dev, w hose successor-in-interest, namely, Suprabha Devi, sold the suit land along with other land in favour of defendant No.1 and his wife by two registered sale deed s, both dated 19.03.1985. Mr. Dhar further submits that possession of the plaint iffs over the suit land having not been proved, the appellate Court ought not to have disturbed the finding recorded by the Trial Court in that regard, which ha s been done by the first appellate Court ignoring the other evidence on record i ncluding the admitted position that in the 145 proceeding instituted by Suprabha Devi, the possession was declared in her favour. The learned counsel, therefore , submits that the judgment and decree passed by the first appellate Court needs to be set aside by upholding the judgment and decree passed by the Trial Court. Per contra, Mr. Medhi, the learned counsel appearing for the respondents 12. , has submitted that it is evident from Ext.-4, deed of partition, that there wa s amicable partition of the land in Beltola Mouza amongst the heirs of Kumar Raj endra Narayan Dev and the suit land along with other land fell in the share of K umar Jatindra Narayan Dev, who subsequently on 03.07.1969 sold the suit land in favour of the predecessor-in-interest of the plaintiffs, namely, Dhirendra Nath Sarma vide Ext.-1 sale deed. Mr. Medhi further submits that after the resettleme nt operation, subsequent to the family partition dated 19.06.1965, the Patta No. 170, which fell in the share of Kumar Jatindra Narayan Dev, has been renumbered as Patta No.32. It has also been submitted that though the defendant No.1 in the written statement filed has denied the execution of Ext.-1 sale deed dated 03.0 7.1969 by Kumar Jatindra Narayan Dev in favour of the predecessor-in-interest of the plaintiffs, the defendants during cross-examination never challenged the ex ecution of the said sale deed and hence the first appellate Court has rightly pa ssed the judgment and decree. It has also been submitted that it is evident from the judgment passed by the first appellate Court that the plaintiffs could prov e that before passing of the order by the Executive Magistrate in the proceeding under Section 145 Cr.P.C., the plaintiffs were in possession. The learned couns el, therefore, submits that the appeal needs to be dismissed. 13. I have considered the submissions advanced by the learned counsel for th e parties and also perused the judgments and decrees passed by the Courts below. 14. It is evident from the stand taken by the defendant No.2 in the written statement that the factum of family partition of the land in Beltola Mouza has b een admitted, as the defendant No.2 in her written statement has pleaded that af ter the family partition, the suit land along with other land fell in the share of late Dwijendra Narayan Dev and she thereafter sold it to the defendant No.1 a nd his wife vide two sale deeds dated 19.03.1985, along with other land. There i s also no challenge to the Ext.-4 family partition. 15. It appears from the Ext.-4 family partition that the land originally bel onged to Rajendra Narayan Dev was partitioned amongst his successor-in-interest including Kumar Jatindra Narayan Dev and Kumar Dwijendra Narayan Dev and while l and described in Schedule-Kha to the said deed fell in the share of Kumar Jatind ra Narayan Dev, the land described in Schedule-Ga fell in the share of Kumar Dwi jendra Narayan Dev. Neither in Schedule-Kha nor in Schedule-Ga of Ext.-4 Patta N o.32 has been mentioned. It has however been submitted by Mr. Medhi, the learned counsel appearing for the respondents in the second appeal, that Patta No.170 w hich appears in Schedule-Kha of the said family partition, has subsequently been renumbered as Patta No.32. The first appellate Court did not decide this questi on whether Patta No.170 has been renumbered as Patta No.32 after the resettlemen t operation, though the same was the most important question to be answered by t he first appellate Court, as it is the claim of the plaintiffs that by virtue of such family partition the suit land fell in the share of Kumar Jatindra Narayan Dev. It also appears from the judgment passed by the first appellate Court th 16. at the right, title and interest of the plaintiffs has been declared by holding that as the defendants have admitted the execution of the sale deed dated 03.07. 1969 by Kumar Jatindra Narayan Dev in favour of the predecessor-in-interest of t he plaintiff, their title stands proved and they are not required to prove such sale deed. It appears from the written statement filed by the defendant No.1 tha t he has denied the execution of such sale deed. The only ground on which the sa le deed was taken to be proved is the admission of the defendants, execution of which, as noticed above, has been denied by the defendant No.1 in the written st atement filed. Such finding of the first appellate Court is therefore perverse. The first appellate Court has not gone into the other evidence as to whether suc h sale deed has been proved. It also appears from the judgment passed by the fir st appellate Court that the question of possession has been decided in favour of the plaintiffs without taking into consideration the order passed by the execut ing Court apart from other relevant evidence. 17. That being the position, I am of the view that the aforesaid three quest ions need to be answered by the first appellate Court. Hence the judgment and de cree passed by the first appellate Court is set aside and the appeal is remitted to the first appellate Court for deciding the aforesaid questions, based on the evidence already adduced by the parties. The appellate Court, however, would al low the parties to lead evidence only in respect of the change of the Patta numb er from 170 to 32, as claimed by Mr. Medhi, the learned counsel appearing for th e respondents/plaintiffs in the present appeal. The appellate Court would not al low the parties to lead evidence on other questions. The suit having been instit uted in the year 1988, the first appellate Court is directed to decide the appea l within the outer limit of 6(six) months from the date of appearance of the par ties. The parties are directed to appear before the first appellate Court on 05. 12.2013. 18. The appeal stands allowed to the extent as indicated above. No costs. 19. ach the first appellate Court on or before the date of appearance. The Registry is directed to send down the records forthwith, so as to re