High Court
Case Details
RSA 46/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal by the defendant is directed against the judgment and decree dated 24.12.2001 passed by the learned Civil Judge (Senior Division), Kokrajhar , in Title Appeal No.9/1999, dismissing the same by affirming the judgment and d ecree dated 06.09.1997 passed by the learned Civil Judge (Junior Division) No.2, Kokrajhar, in Title Suit No.47/1988.
Legal Reasoning
2. The predecessor-in-interest of the present respondents instituted Title Suit No.47/1987 for declaration of right, title, interest and permanent injuncti on in respect of a plot of land measuring 3 lechas covered by Dag No.216 of Khat ian No.64, more fully described in the Schedule-A to the plaint, contending inte r alia that the said land though originally belonged to him, was subsequently tr ansferred in favour of one Rajendra Barman by a registered deed of sale dated 11 .03.1970, who on 18.03.1986 retransferred the right, title and interest in respe ct of the said land in favour of the plaintiff by a registered deed of sale date d 18.03.1986 (Ext.-1) and delivered the possession. It has also been contended t hat on the southern part of the land, i.e. 1‰ lechas, more fully described in Sc hedule-B to the plaint, which was let out to one Nirmal Biswas, a cycle maker, t he defendant started disturbing the possession of the plaintiff, which is part o f the Schedule-A land, on the guise of alleged sale by Rajendra Barman to the de fendant on 28.07.1987 (Ext.-B), compelling the plaintiff to file the suit as afo resaid. 3. The defendant on receipt of the summons entered appearance and contested the suit by filing the written statement contending inter alia that he was in p ossession of the suit land described in Schedule-B to the plaint since 1985 and thereafter vide deed of sale dated 28.07.1987 (Ext.-B), he purchased the said la nd from the owner Rajendra Barman and got his name recorded in the revenue recor d and let out the existing house to Sri Nirmal Biswas, a cycle maker, on rent. Based on the pleadings of the parties, the Trial Court framed the follow Whether there is cause of action for the suit? Whether the plaintiff is entitled to get a declaration of right, title a 4. ing issues for determination:- a) b) nd interest over the suit land? c) d) What relief or reliefs the parties are entitled to? Whether the plaintiff or defendant is in possession of the suit land? 5. The Trial Court upon appreciation of the evidence on record, has decreed the suit of the plaintiff declaring the right, title, interest and also grantin g permanent injunction, by holding that since vide registered sale deed dated 18 .03.1986 (Ext.-1), the original owner Rajendra Barman has transferred the right, title and interest in favour of the plaintiff, said Rajendra Barman did not hav e any right, title and interest over the said land, so as to execute the sale de ed dated 28.07.1987 (Ext.-B). It has also been held that by such sale vide Ext.- B sale deed, defendant would not acquire the right, title and interest, which ha s already been conferred on the plaintiff vide Ext.-1 sale deed dated 18.03.1986 . 6. Being aggrieved, the defendant preferred the aforesaid appeal, which has also been dismissed by concurring the finding recorded by the Trial Court. Henc e the present appeal. The appeal was admitted for hearing vide order dated 20.03.2002 on the f 7. ollowing substantial questions of law:- a) Whether the learned courts below are justified in decreeing the suit for right, title and interest and for injunction in absence of prayer for recovery of possession though admittedly the defendant is in possession of the suit land and thereby the suit is barred under Section 34 of the Specific Relief Act? b) Whether the learned courts below are justified in decreeing the suit wit hout declaring the sale deed (vide Ext.Ga) dated 28.7.87 made in favour of the d efendant as a fraudulent and fictitious more so when the possession of the suit land has been proved by defendant vide Exts. ’Gha’ ’Angh’ and ’Sa’ mutation reco rd copy of holding possession and receipt of Municipal tax and the relief of kha s possession being absent in the suit, the findings are perverse and as such the same are liable to be set aside and quashed? 8. pears for the respondents today.
Legal Reasoning
I have heard Mr. S.C. Biswas, learned counsel for the appellant. None ap 9. It has been contended by the learned counsel for the appellant that sinc e the plaintiff has not prayed for recovery of khas possession, the decree ought not to have been passed declaring the right, title and interest and permanent i njunction, more so, when the defendant is in possession of the Schedule-B proper ty. The learned counsel further submits that without there being any challenge m ade to the sale deed dated 28.07.1987 (Ext.-B), the right, title and interest by virtue of Ext.-1 sale deed dated 18.03.1986 ought not to have been decreed in f avour of the plaintiff. 10. It appears from the judgments and decrees passed by the Courts below tha t the plaintiff could prove the transfer of the right, title and interest over t he land described in Schedule-A to the plaint by Rajendra Barman in his favour b y executing the registered deed of sale dated 18.03.1986 (Ext.-1). Schedule-B pr operty is admittedly part of the Schedule-A property. Sri Rajendra Barman having transferred the right, title and interest in favour of the plaintiff, he ceases to have any right over the said plot of land to execute another sale deed on 28 .07.1987 (Ext.-B) in favour of the defendant, his right having already extinguis hed on execution of the registered deed of sale dated 18.03.1986 (Ext.-1). That being the position, the Court below has rightly decreed the suit of the plaintif f declaring his right, title and interest. That apart, Sri Nirmal Biswas, who ac cording to the plaintiff is tenant under him and according to the defendant is t enant under the defendant, and who has been examined as defendant’s witness, in his evidence has supported the plaintiff’s case deposing that he is the tenant u nder the plaintiff. That being the position, the plaintiff’s possession through the tenant has also been proved. 11. In view of the aforesaid discussion, I do not find any merit in the pres ent appeal so as to disturb the judgments and decrees passed by the Courts below . Hence the appeal stands dismissed. No cost. 12. Registry is directed to send down the records forthwith.