High Court
Case Details
RSA 134/2011 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY Heard Mr. D Mazumdar, learned counsel appearing for the appellant and Mr. S Ali, learned counsel representing the respondents.
Legal Reasoning
2. This second appeal is directed against the Judgment and Decree dated 29. 6.2010 passed by the learned Civil Judge, Darrang, Mangaldai, in Title Appeal No . 4 of 2007, affirming the Judgment and Decree dated 30.6.2007, passed by the le arned Munsiff at Udalguri in T.S. No. 17/ 1997. The appellant as plaintiff filed a title suit, praying for declaration o 3. f right, title and confirmation of possession by demolishing house of the defend ant and for permanent injunction. 4. The plaintiff case, in brief, is that the plaintiff and his brother, nam ely, Nuru Seikh were co-owner of annual patta land measuring 16B-1K-4L. About 26 /27 years back, the land was amicably partitioned in terms of the oral family se ttlement. In that amicable partition 8B-0K-12L of land fell in the share of the plaintiff and thus he became exclusive owner in the patta land. Out of the said 8B-0K-12L’s land, the plaintiff sold 7 Bighas of land from its northern part to one Kanu Das by a registered sale deed and remaining 1B-0K-12L of land was in t he possession on the plaintiff. It is stated that about 9/10 years ago, the plai ntiff borrowed Rs.1200/ from the defendant No. 1 and the said land was orally mo rtgaged by the plaintiff to the defendant No. 1, as a security for repayment of the debt. Accordingly, the defendant No.1 took possession of the suit land. The defendant No. 1 was allowed to enjoy the possession of the suit land in lieu of the interest until repayment of the principal amount borrowed by him. It is stat ed on behalf of the plaintiff/ appellant that on 13.3.1997 the plaintiff went to repay the loan to the defendant No. 1 but he refused to accept the repayment by saying that he was the owner of the suit land as a purchaser. It is stated by the defendant that on 23.3.1997 the defendant Nos. 1, 2 5. , 3, 4, 5 and 6 forcibly trespassed into the suit land and constructed one thatc hed houses on the southern part and thereafter, again on 31.3.97, the defendant made similar attempts which was protested by the plaintiff. 6. The defendant No. 1 and 2 contested the suit by filing written statement and counter claim. The defendant denied the claim of the plaintiff. The defenda nt took the stand that the suit land was purchased by late Sahadat Ali, father o f the defendant No. 1 and 2, when they were alive, by executing a Katcha Deed on 8.8.1967, for a consideration of an amount of Rs. 700/ and the possession of th e suit land in question was delivered to the father of the defendant No. 1 and 2 . The land in question remained in possession and enjoyment by right of inherita nce to the defendants after the death of their father. It was submitted that the defendants are protected under Section 53A of the T.P. Act. The suit land is an annual patta land in possession of the defendants and the plaintiff having tran sferred its possession 30 years before i.e. on 8.8.1967, the plaintiff now canno t be said to have right, title and interest over the suit land. 7. The defendant filed counter claim for recovery of possession stating the rein that the suit land in question was forcibly taken over by the plaintiff, du ring the pendency of the suit, despite injunction issued by the trial court rest raining the plaintiff. On the basis of the pleadings of the parties, following i ssues framed by the trial court:- (cid:28)1. Whether the suit is maintainable in its present from? 3. Whether the suit is bad fro non-joinder or misjoiner of necessary 2. Whether there are cause of action in the suit? party? 4. Whether the plaintiff have right, title and interest over the suit land? 5. Whether the plaintiff orally mortgaged the suit land to the defendant No. 1 a nd whether the defendant refused to accept money and released the suit land. Wha t the plaintiff wanted to make repayment on 13.3.97? 6. Whether the defendant on 23.3.97 and 31.3.97 constructed two thatched houses illegally by changing the nature of the suit land? 7. Whether the plaintiff sold the possessory right over the suit land to the fat her of the defendant by executing a katcha deed on 8.8.68 and handed over posses sion? 8. Whether the defendant has acquired right, title, and interest over the suit l and and deserves protection U/s. 53A of the T.P. Act? 9. Whether the plaintiff is entitled to a decree for permanent injunction? 10. Whether the counter claim is under valued? 11. Whether there is cause of action for counter clam? 12. To what relief parties are entitled to? (cid:29) 8. In order to substantiate the issues framed, the plaintiff adduced as man y as 4(four) witnesses and the defendants adduced by 5 (five) witnesses. The lea rned trial Court as well appellate court decided all important issues in favour of the defendants against the plaintiff. The plaintiffs suit was dismissed. Howe ver, the counter claim of the defendant was decreed.
Legal Reasoning
9. The learned counsel appearing for the appellant by referring to the disc ussions and decisions on issue Nos. 7 and 8, submitted that the document despite being 30 years old, is not admissible in evidence unless the content of the doc uments are proved and thus pointed out that doctrine of part performance as pe r provision of Section 53A of the T.P.Act, would not apply. 10. But before proceeding to discuss the legal right of the defendant, the p laintiff has to establish his own right. The plaintiff was admittedly a mortgago r in respect of the suit land. Now question arises, did the plaintiff conducted him as a mortgagor. Not at all. We may see whether the possession of the defendant has been protected a 11. s part performance of the contract in terms of the provision of Section 53-A of the T.P. Act. From a plain reading of the aforesaid provision of Section 53-A o f the T.P. Act, it is evident that a party can take shelter behind this provisio n when the following conditions are fulfilled. They are: (i) The contract should have been in writing signed by or on behalf of the trans feror; (ii) The transferee should have got possession of the immovable property covered by the contract; (iii) The transferee should have done some act in furtherance of the contract; a nd (iv) The transferee has either performed his part of the contract or is willing to perform his part of the contract. 12. A party can take advantage of this provision only when it satisfies all the conditions aforesaid. All the postulates are sine qua non and a party cannot derive benefit by fulfilling one or more conditions. Both courts below have rei terated that factual condition were sufficient to attract the provisions of Sect ion 53 A of T.P.Act, in favour of the respondents, therefore there is no scope t o frame yet another substantial questions of law on facts, which have been settl ed by the learned Courts below. The protection under Section 53 A of T.P.Act is available as a shield against the transferor, the proposed vendor, and would dis entitle him from disturbing the possession of the proposed transferees ,who are put in possession pursuant to such an agreement. The provisions of Section 53-A of T.P.Act 1882, recognize a right of a transferee, where a transferor has given and the transferee has taken possession of the property or any part thereof. 13. When forcible dispossession is apparent and admitted by the plaintiff al so, no more findings would be essential to grant the relief to the defendant. Th e plaintiffs admittedly gave the suit property in mortgage to the defendant. The plaintiff also admitted to have forcibly dispossessed the defendants during the pendency of the suit. No amendment of the plaint or prayer was ever made to tha t effect by the plaintiff. However, the suit was filed by the plaintiff for decl aration of right title and confirmation of possession. Learned counsel for the d efendant pointed out that the defendants were forcibly dispossessed during the p endency of the suit, despite injunction order passed by the Court. The learned c ounsel for the appellant vehemently submitted by that since there is no findings by the Courts below regarding dispossession, the relief sought for in the count erclaim could not have been granted. In the facts and circumstances of the case , the Plaintiff cannot be heard to say that the respondent would not have any r ight to relief. On perusal of the discussion on the issues on facts and law made by the learned trial court as well as appellate court it clearly appears that t he defendants were dispossessed forcibly by the plaintiff during the pendency of the suit violating the injunction order. Therefore, a suit filed by the plainti ff for confirmation of possession, after forcible dispossession of the defendant from suit property, during the pendency of the suit , which was in fact admitt edly given on mortgage to the defendant by the plaintiff is not tenable in law. By resorting to forcible dispossession during the pendency of suit, the plain tiff has taken law into their own hands. Those who seek equity must do equity. The plaintiff failed to pursue the legal course in respect of the suit land. On this count alone, the plaintiffs case is devoid of merit. Both the Courts below after due discussion of all issues on facts decide 14. d the suit against the plaintiff. Considering the above discussion I am of view that the learned trial court rightly decided these issues in favour of the defe ndants. 15. On a careful perusal of the materials on record and evidence laid by the respective parties, I am of the view that there is no substantial question of L aw to be decided in this second appeal. Accordingly, the second appeal filed by the plaintiff stands dismissed.