High Court
Case Details
RSA 31/2010 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
Heard Mr. Sharif, learned counsel for the appellants and Mr. Bhowmik, le arned counsel appearing for the respondent. This appeal by the defendants is directed against the judgment and decre e dated 11.11.2008 passed by the learned Civil Judge, Dhubri, in Title Appeal No .71/2006, dismissing the appeal preferred by the present appellants by affirming the judgment and decree dated 10.08.2003 passed by the learned Munsiff No.1, Dh ubri, in Title Suit No.163/1994, whereby and whereunder the suit filed by the pr esent respondent as plaintiff for declaration of right, title and interest and r ecovery of khas possession has been decreed. The respondent as plaintiff instituted the said suit for declaration of right, title and interest in respect of the land measuring 5 bighas 12 lechas, m ore fully described in schedule to the plaint, contending inter alia that the su it land has been purchased by him in an auction purchase in the years 1972 and h e was put into possession after such auction purchase. It has also been pleaded that on 15.03.1994 the defendants forcibly trespassed into the land and disposse ssed the plaintiff, which necessitated filing of the suit for declaration of rig ht, title and interest and recovery of khas possession. The defendants contested the suit by filing joint written statement, con tending inter alia that they are possessing the suit land since 1970 and that th e plaintiff has never been in possession of the suit land and hence there is no question of dispossession as alleged by the plaintiff. The defendants have also pleaded that they have acquired the right by adverse possession. Based on the pleadings of the parties, the Trial Court framed the follow ing issues for determination:- Whether the suit is maintainable in its present form and manner? (i) Whether there is any cause of action for the suit? (ii) Whether the suit is barred by limitation? (iii) Whether the suit is properly valued and stamped? (iv) (v) Whether the defendants never possessed the suit land prior to 15-3-94 an d/or whether the original owner and their legal heirs of the land consented the possession of the land by the defendants? (vi) (vii) (viii) Whether the plaintiff has right, title and interest over the suit land? Whether the plaintiff is entitled to get the decree as prayed for? To what relief or reliefs, if any, the parties are entitled? The plaintiff examined 2(two) witnesses and also proved the sale certifi cate issued by the Sub-Deputy Collector on 04.11.1972 (Ext.-2) certifying that t he plaintiff has purchased the suit land in auction purchase and the Jamabandi ( Ext.-3) and also the land revenue receipt (Ext.-1). The defendants after filing of the written statement did not participate in the suit and did not cross-examine the plaintiff’s witness and also examined any witness in support of their pleadings. The Trial Court based on the evidence adduced by the plaintiff, decreed the suit by holding that the plaintiff has acquired right, title and interest by virtue of the auction purchase, based on which sale certificate dated 04.11.197 2 (Ext.-2) was issued, who has been dispossessed by the defendants on 15.03.1994 . Being aggrieved the defendants preferred the aforesaid appeal, which has also been dismissed by affirming the judgment and decree passed by the Trial Co urt. Hence the present appeal. Mr. Sharif, the learned counsel appearing for the appellants submits tha t the defendants have no claim over the land which has been purchased by the pla intiff in the auction purchase, but as the plaintiff has instituted the suit giv ing the description of the suit land in the plaint, which is not the land purcha sed in the auction purchase, the Courts below ought not to have decreed the suit of the plaintiff without recording finding as to whether the suit land was the land purchased by the plaintiff in the auction purchase. It has also been submit ted that the defendants are in possession of the land as described in the plaint , which is not the land purchased by the plaintiff in the auction purchase. On the other hand, Mr. Bhowmik, the learned counsel appearing for the re spondent/plaintiff, has submitted that it is apparent from the findings recorded by both the Courts below that the plaintiff could prove that the land described in the schedule to the plaint was purchased by him in auction purchase, for whi ch the sale certificate dated 04.11.1972 was issued. It has also been submitted that the contention of the appellants/defendants as raised in the present appeal cannot be accepted as there is not pleading to that effect in the written state ment filed. I have considered the submissions advanced by the learned counsel for th e parties and also perused the judgments and decrees passed by both the Courts b elow. As noticed above, the plaintiff’s suit is based on the auction purchase. The plaintiff in support of the plea has proved the sale certificate dated 04.1 1.1972, which has been marked as Ext.-2, apart from the revenue paying receipt ( Ext.-1) and the Jamabandi mutating his name in the revenue record in respect of the suit land, which has been marked as Ext.-3. The defendants despite filing of the written statement did not participate further in the suit and they have not cross-examined the plaintiff’s witness and also did not adduce any evidence. Th e plea raised by the learned counsel appearing for the appellants/defendants in the present appeal, which has already been noticed above, has not been pleaded i n the written statement filed, as the defendants in the said written statement n ever pleaded that the suit land described in the schedule to the plaint is not t he land purchased by the plaintiff in the aforesaid auction purchase. Such plea of the appellants/defendants, therefore, cannot be accepted. In view of the aforesaid position, I do not find involvement of any subs tantial question of law to admit the appeal. Hence the appeal stands dismissed. No costs.