High Court
Case Details
RSA 82/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. R. Sarma, learned counsel for the appellant/defendant No.1 and
Legal Reasoning
Mr. Sheeladitya, learned counsel appearing for the respondents/plaintiffs. This appeal by the defendant No.1 is directed against the judgment and d ecree dated 06.12.2010 passed by the learned Civil Judge No.2, Kamrup at Guwahat i, in Title Appeal No.7/2010, whereby and whereunder the appeal preferred by the present appellant has been dismissed by upholding the judgment and decree dated 11.12.2009 passed by the learned Munsiff No.2, Kamrup at Guwahati, in Title Sui t No.55/2006. The respondents herein as plaintiffs instituted the said suit for declar ation of right, title and interest over the B schedule land, though wrongly ment ioned as C schedule land and also for permanent injunction restraining the defen dants from entering into the suit land etc., contending inter alia that a plot o f land measuring 1 bigha 2 kathas 12 lechas covered by Dag Nos.3481 and 3482 of K.P. Patta No.437 of village No.2 Rampur under Rampur Mouza within Palasbari Rev enue Circle was purchased by their father by registered deed of sale dated 10.04 .1963 (Ext.-1) from the defendant No.1 and his father late Bangshi Ram Kalita, w ho were the owners of the said land, and were put into possession, out of which the land measuring 2 kathas 16 lechas, described in Schedule-A to the plaint was given up by plaintiffs for the benefit of the public in lieu of a separate plot of land proposed to be settled in favour of the plaintiffs. According to the pl aintiffs, the land measuring 4 kathas 12 lechas described in Schedule-B to the p laint remains with the plaintiffs. It has also been pleaded that the defendant N o.1 and his men on 05.07.2006 armed with deadly weapon trespass into the B sched ule land and started demolishing the house of the plaintiffs, for which the plai ntiffs had to bring the suit as aforesaid. The defendant No.1 contested the suit by filing written statement conten ding inter alia that the land belonged to him as neither he nor his father has e ver transferred the right, title and interest in respect of the suit land in fav our of the predecessor-in-interest of the plaintiffs by executing any sale deed as contended by the plaintiffs. 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? 1. Whether there is cause of action for the suit? 2. Whether the suit is bad for non-joinder and mis-joinder of parties? 3. Whether the suit is barred by limitation? 4. 5. Whether the defendant Shiva Charan Kalita and his father sold the suit l and to the predecessor in interest of the plaintiffs late Prabhat Kalita by exec uting a registered sale deed on 10/4/63? 6. Whether the plaintiff is entitled to the relief claimed in the suit? Both the plaintiffs and the defendant No.1 in support of their respectiv e claim, examined three witnesses each and proved a number of documents includin g the sale deed dated 10.04.1963 (Ext.-1). The Trial Court has decreed the suit of the plaintiffs by holding that they could prove their right, title and intere st by virtue of the sale deed dated 10.04.1963, which is more than 30 years old. The story put forward by the defendant No.1 that the defendant’s father, who wa s also one of the alleged vendor died prior to execution of the sale deed, howev er, has been negated on the ground that there is no pleading in that respect in the written statement filed. Being aggrieved the defendant No.1 preferred the aforesaid appeal, which has also been dismissed by the First Appellate Court by holding that though the burden lies on the defendant to prove that the sale deed dated 10.04.1963 (Ext. -1) is fraudulent and was never executed by the defendant No.1’s father, who cla imed to have been died on 12.08.1962 i.e. prior to execution of the sale deed, n o evidence, however, could be led, though the First Appellate Court in its judgm ent has noticed the evidence adduced by the defendant No.1/appellant in that reg ard. Having heard the learned counsel for the parties, the following substant ial question of law has been formulated today for hearing of the appeal:- Whether the First Appellate Court was justified in dismissing the appeal by hold ing that no evidence was led by the defendant No.1/appellant to prove that his f ather died on 12.08.1962, when the First Appellate Court itself has in its judgm ent noticed the evidence led, without, however, observing anything relating to t he admissibility or trustworthiness of the evidence adduced? As agreed to by the learned counsel for the appearing parties, the appea l has been heard on the aforesaid substantial question of law today itself. It has been contended by the learned counsel for the appellant that the First Appellate Court though in the judgment has noticed the oral evidence adduc ed by the defendant No.1, without commenting anything on the reliability or trus tworthiness of the evidence, the First Appellate Court has simply dismissed the appeal on the ground that no evidence was led by the defendant No.1 on the plea that his father died on 12.08.1962, which is contrary to the evidence available on record, which has also been noticed by the First Appellate Court in its judgm ent. The learned counsel appearing for the respondents, on the other hand, ha s submitted that though the First Appellate Court did not in so many words say t hat the evidence as led by the defendant No.1 and noticed by the said Court is n ot believable, in fact that is the finding recorded by the First Appellate Court , as it has held that there is no evidence adduced to that effect, meaning there by that the evidence which has been led by the defendant No.1 is not believable, reliable and trustworthy. I have considered the submissions advanced by the learned counsel appear ing for the parties. The First Appellate Court has dismissed the appeal preferred by the defe ndant No.1 on the ground that no evidence was adduced by the defendant No.1 in s upport of the claim that his father died on 12.08.1962, though the learned Judge himself has noticed the evidence adduced by the three witnesses of the defendan t. The learned Judge in the judgment has not recorded any finding that the evide nce so led by the defendant No.1 are not reliable or believable or it is not tru stworthy. Since admittedly and as is apparent from the judgment passed by the Firs t Appellate Court that certain evidence was led by the defendant No.1 relating t o the date of death of the defendant No.1’s father, the Appellate Court ought no t to have dismissed the appeal on the ground that no evidence was adduced to tha t effect. In view of the above, the judgment and decree passed by the First Appell ate Court is set aside. The matter is remitted to the First Appellate Court for deciding the issue Nos.5 and 6 afresh on the basis of the evidence already adduc ed by the parties. The finding as regards to issue Nos.1 to 4 need not be gone i nto as the findings recorded against the said issues have not been challenged in the present appeal. The appeal shall be decided within a period of 2(two) month s from the date of appearance of the parties. The parties are directed to appear before the First Appellate Court on 07.10.2013.