High Court
Case Details
RSA 85/2002 BEFORE HON’BLE MR JUSTICE B. P. KATAKEY This appeal is directed against the judgment and decree dated 18.09.2001, passed by the learned Civil Judge (Senior Division), Dhubri in Title Appeal No. 49/199 9, dismissing the appeal preferred by the present appellants and affirming the j udgment and decree dated 07.08.1999, passed by the learned civil Judge (Junior D ivision) No.1, Dhubri in T.S. No. 184/1987, dismissing the suit of the plaintiff s. 2. The plaintiffs had instituted the said suit for declaration of right, ti tle and interest in respect of 1K 4L of land covered by Dag No.368 of Khatian No .79 of Dhubri town, described in Schedule-A to the plaint and also for recovery of Khas possession of land measuring 2L, which is a part of the Schedule-A land, by evicting the defendants therefrom, contending inter alia, that the plaintiff No.1 had purchased the said land from the legal heirs of the original owner of Late Kasiran Nessa and got delivery of possession. It has further been pleaded t hat the plaintiff No.2 being the husband of plaintiff No.1 maintains the propert y and possesses the same also. The further pleaded case of the plaintiff is that the defendants are the permissive possessor in respect of 2Ls of land, which is part of Schedule-A land and though they undertook to vacate the land on making alternative arrangement, since they did not do so, the suit has been filed for d eclaration of right, title and interest and recovery of khas possession. The defendants on receipt of the summons, entered appearance and filed t 3. heir joint written statement contending inter alia that Sri Sarat Chandra Ghosh, mirazder in respect of tozi No.2 comprising 97B 8K’s of land in Gouripur, trans ferred the said land by registered instrument in favour of Sri Ram Rahit Ojha on 31.01.1953, who in term inducted the defendants as tenant in the year 1954 and since then they are possessing the suit land by constructing houses and by payi ng revenue to Sri Ram Rahit Ojha. The right, title and interest of the plaintiff
Legal Reasoning
over the suit land has also been denied by the defendants. 4. following issues for determination. The trial Court on the basis of the pleadings of the parties framed the (cid:28)1. Whether the suit is maintainable? 2. Is there any cause of action? 3. Whether this suit is barred by limitation? 4. Whether the plaintiff has right, title and interest in the suit land? 5. Whether the plaintiff is entitled to get the decree as claimed for? 6. To what relief if any the parties are entitled? (cid:29) The plaintiffs, in support of their claim, have examined four witnesses 5. and exhibited a number of documents including a deed of relinquishment executed by Mustt. Idan Nessa and Mustt. Hakiman Nessa in favour of plaintiff No.1 on 27. 11.1978, which has been marked as Ext-1. The defendant also examined one witness . The learned Civil Judge (Junior Division), upon consideration of evidence on r ecord, both oral and documentary, dismissed the suit of the plaintiff by answeri ng issue No.4 against the plaintiff, holding that they could not prove the title in respect of the suit land. Being aggrieved the plaintiff preferred Title Appe al No. 49/99, which has also been dismissed by the first appellate Court. Hence, the present appeal. 6. ollowing substantial question of law: The appeal was admitted for hearing vide order dated 13.12.2006 on the f (cid:28)Whether the learned Court below erred in law is deciding the right, tit le and interest of the plaintiff as per Issue No 6 on the ground of failure to m ake necessary pleadings of the relevant facts. (cid:29) 7. During pendency of the present appeal, the appellant No.2/plaintiff No.2 died on 09.03.10. Vide order dated 14.08.2012, the appeal as against the appell ant No.2 has been dismissed as abated for not bringing the legal heirs on record , keeping the question of maintainability of the appeal by the appellant No.1 to be decided at the time of hearing.
Legal Reasoning
I have heard Mr. G. P. Bhowmick, learned counsel for the appellant and M 8. r. A. Maleque, learned counsel for the respondent. 9. Relating to the maintainability of the appeal, in the absence of the app ellant No.2 or his legal heirs on record, it has been submitted by Mr. Bhowmick that since the appellant No.2/ plaintiff No.2 did not claim right, title and int erest and he has not been impleaded as plaintiff being in possession on behalf o f the plaintiff No.1, who is his wife, dismissal of the appeal as against the ap pellant No.2 on abatement would not render the appeal by the appellant No.1/plai ntiff No.1 non maintainable. 10. Referring to the substantial question of law formulated, it has been sub mitted by the learned counsel that since Order 6 Rule 2 CPC requires pleading of only material facts and not the evidence, since the plaintiffs have pleaded how they have acquired the right, title and interest over the suit land, it is not necessary to plead the execution of deed of relinquishment by Mustt. Idan Nessa and Mustt. Hakiman Nessa in favour of the plaintiff No.1 vide Ext-1 deed. The le arned counsel, therefore, submits that the learned Courts below were not justifi ed in refusing to place reliance on Ext-1, deed of relinquishment, on the groun d that the same has not been pleaded in the plaint. 11. Mr. Bhowmick further submits that there being no dispute to the claim of the plaintiffs that they have purchased the suit land from the lawful owner, th ey need not prove either the title deed by which the legal heirs of Late Kasiran Nessa, transferred the land to plaintiff or the deed by which the successor-in- interest of Late Kasiran Nessa transferred the right over the suit land in favou r of Mustt. Idan Nessa and Mustt. Hakiman Nessa, who in turns, relinquished the ir right over the suit land in favour of the plaintiff No.1 by executing the reg istered deed of relinquishment (Ext-1), Mr. Bhowmick further submits that the L at Mondal (PW-4) has also proved the revenue record reflecting the mutation of t he name of the plaintiff No.1 in respect of the suit land. The learned counsel, therefore, submits that both the learned courts below are not justified in holdi ng that the plaintiffs could not prove their right, title and interest over the suit land. 12. Mr. A. Maleque, learned counsel for the respondent, on the other hand, r eferring to the judgment and decree passed by the learned Courts below, has subm itted that though the plaintiffs have claimed right, title and interest on the b asis of the purchase from the legal heirs of the original owner, Late Kasiran Ne ssa, they could not prove any sale deed executed in their favour, transferring t he right, title and interest over the suit land. It has also been submitted that the learned Courts below have rightly observed that there is no pleading relati ng to the plaintiffs acquiring right, title and interest over the suit land by virtue of the deed of relinquishment executed by Mustt. Idan Nessa and Mustt. Ha kiman Nessa, relinquishing their right over the suit land in favour of the plain tiff No.1. In any case, according to the learned counsel, the plaintiff could no t prove the sale deed allegedly executed by the legal heirs of Late Kasiran Ness a in favour of Mustt. Idan Nessa and Mustt. Hakiman Nessa, who, according to the plaintiffs relinquished their right in their favour by executing the Ext-1, dee d of relinquishment of right over the suit land. The learned counsel, therefore, submits that the appeal deserves to be dismissed. 13. I have considered the submissions advance by the learned counsel for the parties and also perused the judgment and decree passed by the learned Court be low apart from the records. It appears from the pleadings in the plaint that according to the plaint 14. iffs the plaintiff No.1 had purchased the suit land from the successor-in- inter est of the original owner, Late Kasiran Nessa and got delivery of possession. It is also the pleaded case of the plaintiff that the plaintiff No.2 being the hus band of the plaintiff No.1, manages the property and possess the same along with the plaintiff No1 and, hence, he has also been made as plaintiff in the suit. 15. The plaintiffs, therefore, having not claimed the declaration of right, title and interest in favour of the plaintiff No.2, the abatement of the appeal as against the plaintiff No.2/appellant No.2 would not render the appeal by the appellant No.1/plaintiff No1 non maintainable. 16. As noticed above, the plaintiff’s pleaded case is that the plaintiff No. 1 has acquired right, title and interest in respect of the land measuring 1K 4L by right of purchase from the legal heirs of Late Kasiran Nessa. In the evidence laid, the plaintiff, however, has changed the position and has introduced a dee d of relinquishment (Ext-1), executed by Mustt. Idan Nessa and Mustt. Hakiman Ne ssa relinquishing their right in favour of the plaintiff No.1. The plaintiff in the plaint have never pleaded that they have acquired the right, title and inter est over the suit land on execution of deed of relinquishment (Ext-1). It has al so not been pleaded that the legal heirs of Late Kasiran Nessa have transfired t heir right in favour of Mustt. Idan Nessa and Mustt. Hakiman Nessa, who have exe cuted the Ext-1 relinquishment deed. Order 6 Rule 2(1) CPC provides that every pleading shall contain, and co 17. ntain only, a statement in a concise form of the material facts of which the pa rty pleading relies for his claim or defence, as the case may be, but not the ev idence in which they are to be proved. The plaintiff or the defendant, in order to succeed in their respective claims must, therefore, plead the materials facts and not the evidence. The evidence is to be led based on the materials facts pl eaded in the pleadings. 18. In the instant case, as noticed above, the plaintiff in the plaint has p leaded that the plaintiff No.1 has got right, title and interest over the suit l and measuring 1K 4L, by right of purchase from the legal heirs of Late Kasiran N essa and never pleaded that they acquired right because of the deed of relinquis hment (Ext-1) The plaintiff, therefore, have to plead in the plaint that they ha ve got the right, title and interest over the suit land by the deed of relinquis hment, executed by Mustt. Idan Nessa and Mustt. Hakiman Nessa, which has not be en pleaded in the plaint. The plaintiff have, therefore, not pleaded the materia l facts to substantiate their claim of right, title and interest over the suit l and measuring 1K 4L. Even otherwise also the plaintiff has failed to prove as to how Mustt. I 19. dan Nessa and Mustt. Hakiman Nessa have acquired the right, title and interest f rom the original owner, as the title deed allegedly executed by the legal heirs of Late Kasiran Nessa in favour of Mustt. Idan Nessa and Mustt. Hakiman Nessa ha s not been proved by the plaintiff to show the link to the original owner. Thoug h in Ext-1, deed of relinquishment, there is mention about the execution of such sale deed by the legal heirs of Late Kasiran Nessa, the same, cannot take the p lace of the title deed by which said Mustt. Idan Nessa and Mustt. Hakiman Nessa claim to acquire their right over the suit land. 20. The submission advanced by the learned counsel for the appellant that th e fact of acquisition of the right, title and interest by Mustt. Idan Nessa and Mustt. Hakiman Nessa by right of purchase from the legal heirs of Late Kasiran N essa, is evident from the revenue records as proved by the PW-4 and hence it can not be said that the plaintiff could not prove their title, cannot be accepted a s mere recording of the names of either Mustt. Idan Nessa and Mustt. Hakiman Nes sa or of the plaintiffs in the revenue record would not confer right, title and interest, when the plaintiffs claim declaration of right, title and interest on the basis of purchase. To prove the case the plaintiffs have to prove the title deed, which the plaintiff did not do. In view of the aforesaid discussion, I am of the view that there is no m 21. erit in the appeal. 22. 23. 24. Appeal is, therefore, dismissed. No cost. Registry is directed to send down the LCR.