High Court · 2012

In impugnment is the judgment and order dated 11.02.2005, passed by the learned Civil Judge (Sr. Divn), Karimganj in Title Appeal No. 83/2003, dismissing the su it of the appellant-plaintiff. I have heard Mr. AS Choudhury, learned counsel for the appellant-plaintiff. None is present on behalf of the respondent-defendant on record, though served with the notice of the instant appeal. At the time of admission of the appeal, this Court framed the following substant ial questions of law: - (cid:28)I. For that the substantial question of law arises as to whether the findings o f the lower appellate court is legally sustainable for non-consideration of mate rial/relevant evidence on record? II. For that the substantial question of law arises whether the impugned judgmen t suffers from perversity in view of the facts and circumstances of the case and accordingly are based on surmise and conjectures? (cid:29) The appellant-plaintiff along with his two brothers instituted the aforementione d suit against the respondents-defendant No. 1 and eight others, praying for a d ecree, inter alia, for declaration of their right, title and interest in the sui t land measuring 10 kedaras described in schedule to the plaint. According to th em, they were the owners and in possession thereof on the basis of inheritance a nd purchase and, thus, were equipped with the right of land holders under the As sam Land & Revenue Regulations, 1886 (for short hereafter referred to as the Reg ulations). They averred further that they have residential structures thereon al ong with paddy and other crops grown by them. As the defendants cast an evil eye on the suit land and tried to grab the same under the cover of false and malici ous proceedings, the suit was instituted seeking the above relief. The defendants in their joint written statement, while taking preliminary object ions bearing on the maintainability of the suit, questioned the locus standi of the plaintiffs to maintain the same. They averred that the suit was spread over different dags in the same village and that except the plot under dag No. 48, wh ich was the homestead land of the appellant-plaintiffs, the rest was khas land u nder the Regulations and was, amongst others, being used as a gobat for public u se. They alleged that taking advantage of the adjacent khas land to their homest ead land, the plaintiffs illegally trespassed into the same and were trying to r egularize their endeavours under the cover of the suit. They also referred to a proceeding under section 133 Cr.P.C. registered on a public complaint against th e plaintiffs for trespass on the gobat. On the pleading of the parties, the following issues were framed: - (cid:28)1. Is there any cause of action for the suit?

2. Is he suit bad for defect of parties?

3. Whether the suit is barred by law of limitation?

4. Whether the plaintiffs have right, title and possession over the suit land?

5. Whether the suit is properly valued?

6. Whether the plaintiffs are entitled to get a decree as prayed for?

7. To what relief or reliefs the parties are entitled? (cid:29) The records reveal that, whereas the plaintiffs examined only one witness, the d efendants abstained from adducing any evidence. The learned trial court, however , on the consideration of the pleadings of the parties and the evidence on recor ds dismissed the suit. The appeal having met the same fate, the appellant/plaint iff No. 1 is before this Court seeking redress. Mr. Choudhury has urged that the learned courts below fell in gross error of law in dismissing the suit by totally overlooking the averments made in the plaint and the evidence adduced by appellants-plaintiffs in the right perspective and, thus, the impugned judgment and order being patently illegal is liable to be set aside in the interest of justice. As the decision impugned in the instant appea l is vitiated by a total misreading of the pleadings and the evidence on record both oral and documentary, it is a fit case, where this Court, in the exercise o f its power under section 100 of the CPC should interfere to prevent miscarriage of justice. Mr. Choudhury to reinforce his arguments relied, amongst others, on the decision of this Court in Md. Basir Ali & Anr. Vs. Monoranjan Karmakar & Or s., (1991) 1 GLR (NOC) 56. A bare perusal of the impugned judgment and order rendered by the learned lower appellate court would reveal that the suit of the appellants-plaintiffs was dism issed partially by referring to the evidence of appellant/plaintiff No. 1 constr uing the same to be in admission of the pleaded stand of the defendants. Accordi ng to the learned court below, the excerpt from the evidence as referred to in t he impugned judgment and order exhibited unqualified and unequivocal admission o n his part that the entire suit land had been involved in 597(M)/1990 registered under section 133 Cr.P.C. The learned court below thus sought to conclude on th e basis thereof that the entire suit land except the plot covered under dag No. 48 was khas land and thus the appellants-plaintiffs were not entitled to any dec laration of their right, title and interest therein. The appeal was thus, partly allowed and the suit was decreed in favour of the plaintiffs vis-a-vis the land under dag No. 48 only as described in the schedule to the plaint. A plain perusal of the testimony of the appellant/plaintiff No. 1 in the suit wo uld reveal that while reiterating the pleaded stand of the appellants-plaintiffs claiming right, title and interest in the suit land as a whole, he in his cross examination stated that the disputed land of Case No.597(M)/1990 was the suit l and. He further added that there was a gobat running east-west and was situated to the contiguous south of the homestead land of the plaintiffs. This portion of the evidence, as a matter of fact, was acted upon by the learned court below in dismissing the suit substantially. The learned lower appellate court, however, decreed the suit in particular limiting it to the suit land covered by dag No. 4 8, the homestead land of the plaintiffs. Ext. 1, to which the attention of this Court has been drawn by the learned couns el for the appellants-plaintiffs, is the order dated 12.05.1992 passed by the le arned Executive Magistrate, Karimganj in Case No. 597(M) of 1990 under section 1 33 Cr.P.C. It is apparent therefrom that the gobat/public way, the subject matte r thereof, was included only in Dag No. 47. Having regard to the fact that the s uit land described in the schedule to the plaint is spread over various dags bei ng Nos. 44, 45, 46, 47, 48 and 53 and keeping in view the pleaded averments in t he plaint and the evidence of the appellant-plaintiff No. 1 claiming right, titl e and interest therein by inheritance and purchase in particular of 3 poas of la nd in part of dag No. 47, I am constrained to conclude that the learned trial co urt erred in la and on facts in decreeing the suit only vis-a-vis the homestead land of the plaintiffs included in dag No. 48. As the evidence of the appellant- plaintiff No. 1, read as a whole, does not unimpeachably demonstrate an admissio n on his part that the entire suit land to the exclusion of dag No.48, as descri bed in the schedule to the plaint, was Sarkari, the declaration of their right, title and interest only vis-a-vis the land under dag No. 48 as described in Sche dule to the plaint cannot be sustained. The impugned judgment and decree passed by the learned lower appellate court is hereby set aside. As the learned court below is the final court of facts and law , the matter is remanded to it for a fresh disposal on merits. The learned court below is requested to decide the appeal as expeditiously as possible and prefer ably within a period of three (3) months from the date of receipt of the records . The appeal is allowed. No costs. The Office would send down the LCR immediately.