High Court · 2012

a decree for a declaration that the defendant No.2,3 and 4 have no right to transfer and the defendant No.1 did not acquire right, title and interest by such illegal transfer in respect of the suit land and the suit houses as descri bed in schedule I and II of the suit land and house (iii) a decree for khas possession of the suit land and the suit house as desc ribed in schedule I and II of the plaint from the defendant No.1 by removing all his belongings from the suit house; (iv) a decree for a permanent injunction restraining the defendant No.1 from demolishing, adding to, renovating and/or in any way altering the nature of the suit house and also restraining him from putting up new construction on the vaca nt house site and/or in any manner whatever altering the nature and character of the vacant suit land, a temporary and an ad-interim injunction in terms of prayer iv above; any other relief/reliefs which the Court deems fit and proper in the fac (v) (vi) ts and circumstances of the case. (cid:29) The case set out in the plaint, in a nutshell, is that one Bhadra Kanta Baruah, who was the original owner of the suit land along with 3 kathas in addition ther eto, described in Schedule I of the plaint with an Assam Type house and an R.C.C sanitary latrine standing thereon, described in Schedule II of the plaint, died on 9.7.1998 leaving behind the plaintiff, his only daughter, defendant No.2, hi s daughter-in-law and defendant Nos. 3 and 4, his grand daughters. His son Upen Baruah pre-deceased him. Bhadra Kanta Baruah had executed a will on 6.7.1993 be queathing Schedule I and Schedule II with other lands in favour of the plaintiff . The plaintiff filed a case being Misc (Prob) 95/98 in the Court of District Judg e, Darrang, Mangaldoi for grant of the probate with the will annexed in favour o f the plaintiff. The said probate case was contested by defendant Nos. 2,3 and 4 and the case came to be registered as regular Title Suit being TS No.8/2002. By judgment and order dated 24/6/2003, the learned District Judge granted probate. The defendant Nos. 2,3 and 4 were residing with Bhadra Kanta Baruah and after th e grant of probate also they resided in the suit house with permission of the pl aintiff. It is also averred that the plaintiff resides in Guwahati away from the suit premises and the suit land. On 16.3.2004, when she had visited the suit pr operties, she found defendant No.1 in possession of the said property and there was no signs of defendant Nos. 2,3 and 4. On query, defendant No.1 stated that h e was in occupation of the suit premises on the basis of an unregistered sale de ed executed by defendant Nos. 2,3 and4 in his favour and that the land was mutat ed in their names. The plaintiff disclosed that that the mutation of defendant N os. 2,3 and 4 was already cancelled and the plaintiff’s name was mutated by righ t of the probate granted by the learned District Judge, Darrang, Mangaldoi. The request to vacate possession of the suit land and house was not heeded by the de fendant No.1 and he started re-novating the suit house. The defendant No.1 only filed written statement. The other defendants neither fi led written statement nor participated in the suit. In the said written statemen t, it has been stated that on 10.4.2003, defendant Nos. 2,3 and 4 met him and pr oposed to sell the suit land and house and on making due enquiries, finding that the names of defendant Nos.2,3 and 4 were mutated in the revenue record, agreed to purchase the suit land and the house and accordingly, an agreement with defe ndant No.1 was made. Pursuant thereto, on 20.12.2003, defendants Nos 2,3 and 4 also received a sum of Rs.3,50,000/- and an unregistered sale deed was executed on 20.12.2003 in respe ct of the suit land and house and on the basis thereof, possession was delivered to him. It is averred that defendant Nos.2,3 and 4 had not executed the registe red sale deed in respect of the suit land and house. The defendant No.1 also cha llenged the genuineness of the will in the said written statement on the ground that undue influence was exercised by the plaintiff. It is also pleaded that in view of Section 53 A of Transfer of Property Act, 1882, defendant No.1 cannot b e evicted from the suit land and house. The learned trial Court framed the following issues:- (cid:28)1. 2. 3. 4. and estopple? 5. it land and the suit house? 6. Whether the genuineness of the probate granted by a competent court afte r contest can be assailed by the defendant who is a stranger to the proceedings? Whether the alleged sale of the suit land on 20/12/03 by defendant No.2, 7. 3 and 4 to defendant No.1 is hit by the doctrine of lis-pendens under Section 52 Whether the suit is maintainable in the present form? Whether the suit is barred by limitation? Whether the pliantiff’s suit is barred by rules of waiver, acquiescence Whether the plaintiff has right, title and interest in respect of the su Whether there is any cause of action for the suit? of the T.P. Act? To what relief(s), if any, the plaintiff is entitled? (cid:29)

8. During trial, the plaintiff examined 1 witness and exhibited 13 nos. of document s. The defendant No.1 examined 4 witnessess and exhibited 4 documents. On consideration of the materials on record and after hearing the parties, the l earned trial Court decreed the suit of the plaintiff. The right, title and inter est over the Schedule I and Schedule II land and house was declared in favour of the plaintiff and recovery of possession by evicting defendant No.1 was also gr anted. It is further declared that defendant Nos.2,3 and 4 have no right to tran sfer the suit land and house and defendant No. 1 did not acquire any right over the suit land and house. The defendant No.1 was also restrained from making any changes in the suit land and house till he was evicted therefrom by the plaintif f. The appeal preferred against the said judgment and decree being Title Appeal 24/ 10 in the Court of Civil Judge, Darrang, Mangaldoi also came to be dismissed by judgment and decree dated 5/11/2011. Mr. Mazumdar, learned counsel for the appellant submits that though in the plain t, the plaintiff had prayed for declaration that the defendant No.1 did not acqu ire right, title and interest by transfer, the unregistered sale deed (Ext-Ka) a bout which disclosures were made in the written statement, was not put to challe nge in the suit by way of amendment and as such in absence of any challenge to t he said unregistered sale deed dated 20.12.2003, the learned courts below commit ted manifest error of law in decreeing the suit of the plaintiff and therefore, a substantial question of law arises as to whether in absence of the challenge m ade to the unregistered sale deed, the learned Courts below could have lawfully passed a decree in favour of the plaintiff. On a query made by this Court, it is submitted by Mr. D. Mazumdar, that no appea l was carried against the judgment and decree dated 24.6.2003 passed in T.S. No. 8/2002. A perusal of the plaint shows that the defendant No.1 had refused to disclose as to when he had purchased the suit land and house by the said unregistered sale deed (Ext-Ka) and had also refused to show it to the plaintiff. The learned Dist rict Judge vide Ext-4, had passed judgment in T.S.Case No.8/02 on 24.6.2003 in r espect of the will (Ext-3) of Late Bhadra Kanta Baruah. The unregistered sale de ed (Ext-Ka) was executed on 28.12.2003, much later to the passing of the judgmen t in the probate proceeding. Apart from the fact that the sale deed was unregist ered though the property was valued more than Rs.100/-, the defendant Nos.2,3 an d 4 did not have any right to transfer the suit property on 20.12.2003 and, ther efore, in the facts and circumstances of the case, not challenging the said unre gistered sale deed dated 20.12.2003 specifically will not derail the plaintiff’s case inasmuch as prayers were made for grant of decree declaring that the defen dant Nos,2,3 and 4 had no right, title and interest to transfer the suit propert y and that the defendant No. 1 did not acquire any right, title, interest by suc h illegal transfer. In that view of the matter, I find no substantial question of law involved in th is appeal and accordingly, the same is dismissed. No cost.