High Court · 2012

972. By an order-dated 06.08.1974, the learned Magistrate declared possession of the plaintiff over the suit land and possession was accordingly handed over to him. Since then, the plaintiff was in uninterrupted possession of the suit land. The defendant No. 4 and 5 previously filed a title suit regarding the same suit land against the plaintiff respondent, being Title Suit No. 26 of 1974 and defendant No. 4 did not get the decree as the title suit was dismissed. Even an appeal wa s filed against the judgment and decree of dismissal as passed in Title Suit No. 26 of 1974 but they were not successful in their venture. There have been some criminal proceedings over the possession of the land but ultimately the plaintif f respondent was acquitted from the said criminal proceeding. On death of defendant No. 5, his legal heirs were added in the suit. All the def endants filed a written statement questioning the maintainability of the suit, j urisdiction of the Court and also questioning the fact of possession as claimed by the plaintiff-respondent. On the rival pleadings, issues were framed inter alia whether there is cause of action for the suit or not, whether the suit is legally maintainable, whether th e Court has jurisdiction to try the suit, whether the plaintiff ever possessed t he suit land, whether the plaintiff did take any possession of the suit land as alleged by him in Misc. Case No.183 of 1972 under Section 145 Cr. P.C, whether t he plaintiff was dispossessed as alleged by him in para 4 of the plaint. There w ere some additional issues viz. whether the Court had got jurisdiction to hear a nd adjudicate the suit in view of Misc. Case No. 14 of 1982-83, whether the coll ectorate was justified in making the land in suit periodic and whether the reven ue Court had jurisdiction to convert the periodic patta No. 251 into annual patt a if not whether the periodic patta can be deemed to be continuing in the name o f the plaintiff. Learned Munsiff No. 2 after appreciation of the evidence decided issue Nos.1, 2, 3, 4, 5, 6, 7 and 8 in the affirmative in favour of the plaintiff. Issue Nos. 1 1, 12, 13 and 14 also were answered in the affirmative. Similarly issue Nos.9 an d 10 were decided in favour of the plaintiff. On aggregate appreciation, the suit was partly decreed on contest in the followi ng terms: It is declared that plaintiff has right, title and interest over the suit land a nd the plaintiff was in possession over the suit land and the plaintiff was disp ossessed by the defendants from the suit land and as such the plaintiff is entit led to get khas possession over that suit land vide judgment and decree dated 10 .09.1993 by the Munsiff No.2, Sibsagar. Being aggrieved, the appeal was filed in the Court of the learned Civil Judge, S r. Divn., Sibsagar. By the judgment and order dated 20.01.2001, learned first ap pellate Court has dismissed the Title Appeal No.16 of 1993 on appreciation of th e evidence on record and holding that it has become crystal clear from the discu ssion of issues that the plaintiff respondent has got right, title and interest over the suit land as the plaintiff respondent is the only patta holder (vide Ex bt.1) and the periodic patta holder (vide Exbt.2 of the suit land) and as such t he plaintiffs are entitled to get recovery of khas possession of the suit land. In view of that the appeal was dismissed and the decree was drawn confirming the judgment and decree of the learned trial Court. Whether the finding of the appellate Court below regarding posse Being aggrieved, this appeal has been filed challenging the legality of the judg ment and decree of the first appellate Court on the following substantial questi ons of law. (cid:28)i) ssion of suit land is perverse to the evidence on record? ii) Whether the suit being only for possession and not being for dec laration of right, title, interest, granting of decree on perverse appreciation of evidence is maintainable? (cid:29) If the substantial question of law warrants re-appreciation or re-su rvey of the evidence for finding of the fact, such substantial question even for mulated would not provide an occasion for reassessment of the entire evidence in an appeal under Section 100, CPC. The concurrent findings as returned by the le arned trial Court and learned first appellate Court, cannot be termed as tainted by any illegality. Even no grounds are available in regard to misreading of the evidence, or returning finding without evidence or on surmise. On an apparent survey of the impugned judgment and decree and in absence of any substantial question of law requiring examination by this Court, the appeal bein g devoid of merit deserves to be dismissed. Accordingly the same is dismissed. Return the LCRs.