High Court
Case Details
RSA 76/2002 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the plaintiff is directed against the judgment and decree dated 2 1st December, 2001 passed in Title Appeal No.21/2001 by the learned Civil Judge (Sr. Division) No.3, Kamrup at Guwahati, partly allowing the appeal preferred by the present appellant by setting aside the judgment and decree dated 22nd Decem ber, 2000 passed in Title Suit No.21/1997 by the learned Civil Judge (Jr. Divisi on) No.2, Guwahati. The plaintiff/appellant is aggrieved in not fully decreeing the suit filed by her. [2]
Legal Reasoning
The appellant as plaintiff instituted the aforesaid suit praying for declaration of right, title and interest and recovery of khas possession in respect of 6Bighas 4Kathas 8Lechas of land covered by Dag No.81 of K.P. Patta N o.136 of village Pamohi in Ramcharani Mouza in the district of Kamrup, Assam, mo refully described in Schedule to the plaint, contending inter alia that the orig inal defendant, namely, Alok Sangma, who was the owner and the possessor of the said land, sold it to Mrinal Kanti Kalita and Tusar Kanti Kalita by 2(two) instr uments, i.e. by registered deed of sale dated 24th April, 1973 transferring 2 Bi ghas 2 Kathas 10 Lechas of land and by an unregistered instrument transferring 4 Bighas 1 Kathas 18 Lechas of land. It has further been contended that in token of the sale of the said land by an unregistered instrument, the defendant put t he signatures in the Chitha and accordingly the names of Mrinal Kanti Kalita and Tusar Kanti Kalitta were mutated in the revenue records. The further case of t he plaintiff is that the said Mrinal Kanti Kalita and Tusar Kanti Kalita by a re gistered instrument dated 8th August, 1977 transferred the entire land measuring 6 Bighas 4 Kathas 8 Lechas in favour of the plaintiff for consideration and the possession was, thereafter, handed over to the plaintiff, by virtue of which, t hey have acquired right, title and interest over the suit land. It is also the pleaded case of the plaintiff that as the Chitha mutation granted in respect of the land was subsequently cancelled, which was also upheld by the Board of Reven ue, she has to institute the suit for declaration of right, title and interest a nd for recovery of khas possession, as in the meantime, the plaintiff has been d ispossessed by the defendants. The defendant, Smti. Alok Sangma, filed the written statement di [3] sputing the claim of the plaintiff, contending inter alia that the possession of 2 Bighas 2 Kathas 10 Lechas of land transferred by her has never been handed ov er to Mrinal Kanti Kalita and Tusar Kanti Kalita, as they have failed to pay the consideration amount, and such possession continued to be with the defendant. It has further been contended that she never sold 4 Bighas 1 Katha 18 Lechas of land by any instrument and hence there is no question of handing over possession of the said land to Mrinal Kanti Kalita and Tusar Kanti Kalita. According to t he defendant, the plaintiff, therefore, also cannot acquire any right, title and interest by virtue of the purchase vide sale deed dated 8th August, 1977 (Exhib it-5) executed by Mrinal Kanti Kalita and Tusar Kanti Kalita in favour of the pl aintiff. [4] During pendency of the suit, the defendant, Alok Sangma died and in her place, her legal heirs Ranjit Fangsu (Sangma); Smti Santana Sangma Pang Tarang and Smti Usha Fangsu @ Tekshi Sangma were substituted vide order dated 24 th February, 1999. The defendant No.1(a) Shri Ranjit Fangsu @ Sangma filed the written statement taking the same stand, as has been taken by his predecessor-in -interest in the written statement already filed. [5] amed the following issues for determination:- The Trial Court on the basis of the pleadings of the parties, fr (1) Whether the suit is maintainable in its present form and circumstances? (2) Whether there is any cause of action? (3) as pecuniary jurisdiction to try the suit? Whether the plaintiff has paid proper court fee and whether this court h (4) Whether the suit is barred by laws of limitation? (5) such the same is void and illegal? Whether the Registered Sale Deed No.4818 is a benami transaction and as (6) (7) Whether the plaintiff has right, title and interest over the suit land? Whether the cancellation of Citha mutation of the suit land in favour of the plaintiff is legal and justified? (8) ity? What other relief/reliefs the parties are entitled under the law and equ [6] The Trial Court upon appreciation of the evidences on record, as adduced by the parties, dismissed the suit of the plaintiff. Being aggrieved, the plaintiff preferred the aforesaid appeal, which has been allowed by partly d ecreeing the suit of the plaintiff and setting aside the judgment and decree pas sed by the Trial Court. The Appellate Court has decreed the suit of the plainti ff for declaration of right, title and interest and recovery of khas possession in respect of 2 Bighas 2 Kathas 10 Lechas of land, which was sold by the defenda nt in favour of Mrinal Kanti Kalita and Tusar Kanti Kalita by a registered instr ument dated 24th April, 1973. The Appellate Court, however, did not pass any de cree in respect of the remaining 4 Bighas 1 Katha 18 Lechas of land, as accordin g to the plaintiff herself, the said land was transferred by the defendant in fa vour of Mrinal Kanti Kalita and Tusar Kanti Kalita by an unregistered instrument , though the value of the said property was more than Rs.100/-. Hence, the pres ent appeal. [7] 2002 on the following substantial question of law:- The appeal was admitted for hearing vide order dated 19th July, Whether the learned Court below mis-construed the sale deed Ext. 5 in its applic ation to the quantum of the land? [8] None appears for the parties. The learned counsel appearing for the appellant did not appear today also, though on earlier occasions, the appea l was dismissed for default and subsequently readmitted and restore to file in i ts original number. Hence, instead of dismissing the appeal for default again, I proposed to decide the appeal on merit. [9] The plaintiff in her plaint pleaded that the original defendant transferred the entire suit land in favour of Mrinal Kanti Kalita and Tusar Kant i Kalita by 2(two) instruments, one registered and other unregistered. By regis tered instrument dated 24th April, 1973, the defendant transferred 2 Bighas 2 Ka thas 10 Lechas of land in favour of Mrinal Kanti Kalita and Tusar Kanti Kalita, the execution of which has also not been disputed by the defendant. The defenda nt though took the plea that the consideration amount has not been paid, both th e Courts below have rejected such contention, as the defendant could not lead an y evidence to that effect. According to the plaintiff herself, by an unregister ed deed of sale, original defendant transferred 4 Bighas 1 Kathas 18 Lechas of l and in favour of Mrinal Kanti Kalita and Tusar Kanti Kalita, value of which was also found to be more than Rs.100/-. The plaintiff claimed that Mrinal Kanti Ka lita and Tusar Kanti Kalita acquired the right, title and interest in respect of the said 4 Bighas 1 Katha 18 Lechas of land because of the Chitha mutation. Section 54 of the Transfer of Property Act provides that the tra [10] nsfer, in the case of tangible immovable property of the value of one hundred ru pees and upwards, or in the case of a reversion or other intangible thing, can b e made only by a registered instrument. Since there is no dispute and it is bei ng the pleaded case of the plaintiff that the land measuring 4 Bighas 1 Katha 18 Lechas of land was transferred by the original defendant in favour of Mrinal Ka nti Kalita and Tusar Kanti Kalita by an unregistered document, value of which wa s found to be more than Rs.100/-, Mrinal Kanti Kalita and TusAr Kanti Kalita wou ld not acquire any right, title and interest by virtue of such transfer by an un registered instrument in respect of 4 Bighas 1 Lecha 18 Lechas of land merely be cause of the Chitha mutation. [11] The plaintiff claims that she has purchased the entire suit land measuring 6 Bighas 4 Kathas 8 Lechas from Mrinal Kanti Kalita and Tusar Kanti K alita by a registered instrument dated 8th August, 1977 (Exhibit-5). Since Mrin al Kanti Kalita and Tusar Kanti Kalita did not acquire any right, title and inte rest in respect of 4 Bighas 1 Katha 18 Lechas of land and had acquired right, ti tle and interest only in respect of 2 Bighas 2 Kathas 10 Lecahs of land, the pla intiff by virtue of Exhibit-5 sale deed would acquire right, title and interest only in respect of 2 Bighas 2 Kathas 10 Lechas of land, as she cannot acquire ri ght over that portion of land, in respect of which her vendor did not have any r ight, title and interest. [12] In view of the aforesaid discussion, the First Appellate Court h as rightly decreed the suit of the plaintiff in part, i.e. in respect of 2 Bigha s 2 Kathas 10 Lechas of land and refused to pass any decree for the remaining la nd, i.e. the land measuring 4 Bighas 1 Katha 18 Lechas. [13] e is dismissed. No costs. Hence, the appeal is devoid of any merit and, therefore, the sam [14] The Registry is directed to send down the records.