High Court
Case Details
RSA 34/2004 BEFORE THE HON’BLE MR. JUSTICE BP KATAKEY Heard Mr. GP Bhowmik, learned counsel for the appellant. This appeal is directed against the judgment and decree dated 24.03.2003, passed by the learned Addl. District Judge No. 1, Sivsagar, in Title Appeal No. 5/2000 , dismissing the appeal preferred by the present appellant by affirming the judg ment and decree dated 21.08.2000, passed by the learned Civil Judge (Sr. Divn), Sivsagar in TS No. 35/1991, whereby and whereunder, the suit filed by the respon dent-plaintiff for declaration of right, title and interest and recovery of khas possession has been decreed.
Legal Reasoning
The respondent as plaintiff instituted the said suit for declaration of right, t itle and interest and recovery of khas possession contending, inter alia that he is the owner of the suit land, who, however, has been dispossessed therefrom by the defendant/appellant in the month of March, 1978. It is also the pleaded cas e of the plaintiff that in the year 1982 when he went to the office of the SDC, Sonari to get copy of the latest Jamabandi, he came to know about surreptitious mutation of the defendant’s name in the revenue records. Further, the pleaded ca se in the plaint is that as the defendant despite the request made did not vacat e the land and instead started cutting the bamboos standing on the suit land, th e suit has been filed praying for a decree as noticed above. The appellant-defendant contested the suit by filing written statement contendin g, inter alia that the possession of the suit land was purchased by him on 01.04 .1970 from one Pachuwa Tanti and the plaintiff has no title over it. At the same time, the defendant has also pleaded that on 22.05.1973, the plaintiff along wi th his brother Lt. Mahatom Yadav relinquished their right over the suit land by executing a deed of settlement in lieu of Rs.200/-. The further claim of the defendant is that he has been possessing the suit land for more than 15 years and his right over the suit land is ripened from adverse possession. On the basis of the pleadings, the following issues were framed: - (cid:28)I S S U E S 1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is bad for non-joinder of necessary partition? 4. Whether the plaintiff has right, title over the suit land? 5. Whether the defendant is in possession of the suit land from 01.04.70 and res ides there since 01.04.70? 6. Whether the plaintiff and his brother Mahatom Yadav relinquished their right over the suit land? 7. Whether the defendant is protected U/S 53(A) of the TP Act. 8. To what relief/reliefs the parties are entitled? (cid:29) While the plaintiff examined two witnesses, including himself and proved 23 docu ment, which are marked as Ext. 1 to 23, the defendant did not examine himself. T he defendant, however, examined his brother and two other witnesses and proved 3 documents marked as Ext. A, B & C. The trial court upon appreciation of the evidence on record, decreed the suit of the plaintiff vide judgment dated 28.08.2000. Being aggrieved, the appellant-de fendant preferred Title Appeal No. 5/2000, which has also been dismissed. Hence, the present appeal.
Legal Reasoning
It has been contended by the learned counsel for the appellant that since a spec ific plea relating to the adverse possession had been taken, the court below oug ht to have framed the issue relating to the adverse possession, which having not been framed, it is a fit case where the appeal is required to be admitted on th e following substantial question of law i.e. - (cid:28)Whether the learned courts below were justified in decreeing the suit of the pl aintiff without framing the issue relating to the claim of adverse possession. (cid:29) It has further been contended that, even if the defendant fails to establish the right over the property by adverse possession, the plaintiff having filed the s uit for declaration of right, title and interest, he has to prove his own right and in the instant case, since the plaintiff has failed to prove his right over the property, the learned courts below ought not to have passed the decree in hi s favour. It appears from the judgments passed by the courts below that the plaintiff coul d prove his title over the suit property by proving the patta issued by the Gove rnment in his favour, which has been marked as Ext. 1. The plaintiff has also pr oved the revenue receipts, which demonstrate the payment of land revenue in resp ect of the said land. The defendant, though, has claimed the right over the land by adverse possession, he, however, could not prove the same by adducing any co gent evidence. In fact, the defendant did not depose in the case and instead his brother apart from two others were examined. In the written statement filed, th e specific plea has been taken that the land which the defendant is possessing w as purchased by him from one Pachuwa Tanti on 01.04.1970 and by such purchase of the possession, he has been in possession for more than 15 years. Both the lear ned courts below upon appreciation of the evidence on records, have found that t he land, possession of which was purchased by the defendant from one Pachuwa Tan ti, is not the suit land as the description of the land given in Ext. C, by whic h document the defendant purchased the possessory right from Pachuwa Tanti is di fferent from the description of the suit land. Such concurrent finding of the fa ct has been recorded by both the learned courts below cannot be disturbed in sec ond appeal in the absence of any perversity in recording such finding. The contention of the appellant that the plea of adverse possession having been taken, the specific issue ought to have been framed, cannot also be accepted, th e parties have laid evidence on the plea of adverse possession and both the cour ts below have recorded the finding on such plea even in the absence of any speci fic issue framed. Non-framing of issue, therefore would not render the judgments and decrees passed by the learned courts below illegal.
Decision
In view of the above, I do not find any substantial question of law so as to adm it the appeal. Hence, the appeal stands dismissed. No costs.