TITLE APPEAL No. 16 of 1996 · Gauhati High Court

While the defendant No.1 has contested the suit by filling writt [3] en statement, the proforma defendant Nos.2 and 3 did not contest the said suit d espite service of summons. The defendant No.1 in the written statement, while d enying purchase of the land by the plaintiff as contended in the plaint, has ple aded that the plot of land measuring 1 Bigha 4 Kathas was purchased by him by re gistered deed of sale dated 10th May, 1984 (Exhibit-A) from the proforma defenda nt Nos.2 and 3 and the land which stated to be purchased by the plaintiff is not the land which was purchased by the defendant No.1. The defendant No.1 during pendency of the suit also filed an application seeking partition apart from an a pplication for framing of an additional issue as to whether the defendant No.1 i s entitled to the partition as prayed for. Accordingly, the issue No.9 was fram ed by the learned trial Court, which relates to the claim of the defendant No.1 for partition. [4] The learned trial Court on the basis of the pleadings and also t he aforesaid application framed the following issues for consideration and decis ion:- (1) Is there any cause of action for the suit?

(2) Whether the suit is maintainable in its present form? (3) (4) (5) (6) Is the suit barred by limitation? Is the suit bad for misjoinders and non-joinders of necessary parties? Is the suit bad of estoppel, waiver and acquiescence? Is the suit bad for description of suit land? (7) laintiff has got right title and interest in the 2nd schedule land? Whether the plaintiff is entitled to a decree for declaration that the p (8) (9) To what relief, reliefs, if any, the plaintiff is entitled? Whether the defendant No.1 is entitled to partition and allotment of his share as prayed for? The plaintiff has examined himself as PW-1 and another witness a [5] s PW-2, who is the writer of Exhibit-7, deed of settlement dated 9th February, 1 987. The defendant No.1 though did not examine any witness, he, however, has cr oss-examined both the witnesses examined by the plaintiff. [6] The learned trial Court upon appreciation of the evidences on re cord, both oral and documentary, dismissed the suit of the plaintiff by holding that the Exhibits-1 to 4 sale deeds are defective and infirm documents.

Being a ggrieved, the plaintiff preferred Title Appeal No.16/1996, which has also been d ismissed by the aforesaid judgment and decree dated 24th February, 2000 by affir ming the judgment and decree passed by the learned trial Court. The learned Fir st Appellate Court has concurred with the finding of the learned trial Court tha t the sale deeds (Exhibits-1 to 4) by which the plaintiff has claimed acquisitio n of right, title and interest are defective and highly infirm documents and hen ce no title can be passed on to the plaintiff on the basis of such documents. T he said finding has been recorded basically on the ground that the description o f 2(two) plots of land, one in Exhibits-1 and 2 and the other in Exhibits-3 and 4 are same. The learned First Appellate Court though has noticed the submission made by the learned counsel appearing for the defendant No.1 that he is protecte d under Section 5 of the Non Agricultural Urban Areas Tenancy Act, 1955, no find ing, however, has been recorded in that regard. [7] 2000 on the following substantial questions of law:- This appeal was admitted for hearing vide order dated 24th May, Whether in the absence of any evidence adduced by the defendant that the (cid:28)(1) y had constructed houses of permanent nature on the suit land they were entitled to protection under section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act on the mere pleading in the written statement?

(2) Whether the learned courts below were right in holding that the sale dee ds Ext. 1, 2, 3 and 4 are defective and infirm where the said sale deeds had bee n shown defective on behalf of the defendant? (cid:29) [8] During pendency of the appeal, the original appellant/ plaintiff expired and in his place the present appellants, who are the legal heirs, were substituted. [9] I have heard Mr. P.K. Roy Choudhury, learned counsel for the app ellants and Mr. N. Chowdhury, learned counsel appearing for the respondent/defen dant No.1. [10] Mr. Roy Choudhury, learned counsel for the appellant submits tha t in view of non recording of any finding relating to the submission made by the learned counsel for the defendant No.1 before the First Appellate Court about t he claim of protection under Section 5 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955, the substantial question of law as formulated vide order dat ed 24th May, 2000 does not exist in the present appeal.

Referring to the second substantial question of law, Mr. Roy Choudhury, learned counsel, however, has s ubmitted that even if the description of 2(two) plots of land in Exhibits-1 and 2 and in Exhibits-3 and 4 are same, meaning thereby only two plots of land were transferred by those sale deeds, the plaintiff having proved due execution of th e registered deeds of sale have acquired right, title and interest in respect of 11 Kathas 11 Chataks 13 Gandas 1 Kora and 1 Kranti of land vide Exhibit-1 and 1 5 Kathas 7 Chataks 6 Ganda 2 Kora and 2 Kranti vide Exhibit-3 sale deeds. It ha s been submitted that since the Exhibits-2 and 4 sale deeds are in relation to t he same lands sold by Exhibit-1 and Exhibit-3 sale deeds respectively, the plain tiff may not acquire any right, title and interest in respect of Exhibits-2 and 4 sale deeds but their rights cannot be denied in respect of the aforesaid 2(two ) plots of land transferred by Exhibits-1 and 3 sale deeds.

The learned counsel submits that hence there cannot be any ground for refusing to declare the right , title and interest of the plaintiff in respect of the said 2(two) plots of lan d and in holding that the sale deeds are defective and highly infirm documents. Mr. Roy Choudhury further submits that the defendant No.1 having claimed that t he land purchased by the plaintiff and the defendant No.1 are different plots of land, the learned Court below ought to have gone into the issue- as to whether both the lands are same or different, which has not been gone into by any of the Courts below. Mr. Choudhury, learned counsel for the defendant No.1, on the ot [11] her hand, has submitted that it is an admitted position of fact and in fact the plaintiff in the plaint has pleaded that the defendant No.1 purchased 1 Bigha 4 Kathas of land by Exhibit-A sale deed dated 10th May, 1984, i.e. even before pur chase by the plaintiff vide Exhibits-1 to 4 sale deeds and, therefore, the defen dant has acquired right, title and interest in respect of 1 Bigha 4 Kathas by me ans of such purchase, the purchase by the defendant being earlier point of time than the plaintiff.

Mr. Choudhury further submits that the land measuring 1 Big ha 4 Kathas purchased by the defendant No.1 vide Exhibit-A sale deed dated 10th May, 1984 has been included by the plaintiff in Schedule-2 land measuring 2 Bigh as 14 Kathas 6 Chataks and as such, the plaintiff cannot get a declaration decla ring his right, title and interest over the Schedule-2 land, which includes the land purchased by the defendant No.1. [12] It appears from the pleadings of the parties and also the eviden ces adduced by the plaintiff including the documentary evidences that the follow ing facts are not in dispute:- The land measuring 5 Bighas 8 Kathas 6 Chataks originally belong ed to Promotha Krishna Sarma and after his death, the land devolved on the profo rma defendant Nos.2 and 3, namely Smti. Nirmala Devi and Sri Manik Sarma. Out o f the aforesaid land measuring 5 Bighas 8 Kathas 6 Chataks, land measuring 1 Big ha 10 Kathas was acquired by the Government leaving 3 Bighas 18 Kathas 6 Chataks of land of which the proforma defendant Nos.2 and 3 were the owners. [13] While the plaintiff claims that he purchased 2 Bighas 14 kathas 6 Chataks of land by registered deeds of sale being Exhibits-1 to 4, executed in the months of June and July, 1984, the defendant No.1 claims that he purchased the land measuring 1 Bigha 4 Kathas vide Exhibit-A from the same vendor, i.e. pr oforma defendant Nos.2 and 3.

The purchase of the land on 10th May, 1984 (Exhib it-A) by the defendant No.1 is also admitted by the plaintiff in the plaint. [14] It also appears from Exhibits-1 and 2 sale deeds, which though e xecuted on 18th July, 1984 but were, however, registered on a subsequent date, t hat the same area of land with the same boundary has been transferred by the pro forma defendant Nos.2 and 3 in favour of the plaintiff twice. It also appears f rom the Exhibits-3 and 4 sale deeds that the same area of land with the same bou ndary was transferred by the proforma defendant Nos.2 and 3 in favour of the pla intiff twice on 22nd June, 1985. The sale deeds Exhibits-1 and 2 being in respe ct of the same plot of land and the sale deeds being Exhibits-3 and 4 also being in respect of another plot of land, the plaintiff would acquire right, title an d interest in respect of 2(two) plots of land only, 1(one) plot measuring 11 Kat has 11 Chataks 13 Gandas 1 Kora and 1 Kranti and the other 15 Kathas 7 Chataks 6 Gandas 2 Kora and 2 Kranti by virtue of Exhibit-1 and Exhibit-3 sale deeds, res pectively, and not in respect of 2 Bighas 14 Kathas 6 Chataks of land as claim b y the plaintiff.

The transfer of the land in favour of the defendant No.1 by Ex hibit-A sale deed dated 10th May, 1984 having not been disputed the defendant No .1 will acquire right, title and interest in respect of the land measuring 1 Big ha 4 Kathas by virtue of such purchase. The plaintiff, however, cannot acquire right, title and interest in respect of the said land measuring 1 Bigha 4 Kathas by virtue of the sale deeds dated 18th July, 1984 and 22nd June, 1985, even if by those sale deeds the proforma defendant Nos.2 and 3 sold the land which inclu des the land measuring 1 Bigha 4 Kathas, as proforma defendant Nos.2 and 3 had n o subsisting right to sale 1 Bigha 4 Kathas land after execution of sale deed da ted 10th May, 1984 in favour of the defendant No.1. [15] The pertinent question as to whether the aforesaid land measurin g 1 Bigha 7 Kathas 2 Chataks 19 Gandas 3 Kora 3 Kranti (11 Kathas 11 Chataks 13 Gandas 1 Kora 1 Kranti + 15 Kathas 7 Chataks 6 Gandas 2 Kora 2 Kranti) is inclus ive of the land measuring 1 Bigha 4 Kathas, which was admittedly transferred by the proforma defendant Nos.2 and 3 in favour of the defendant No.1, however, has not been gone into by any of the Courts below, though the same is the vital iss ue which ought to have been framed and decided, more so, when admittedly the Exh ibit-A sale deed is prior in time than either Exhibits-1 and 2 or Exhibits-3 and 4 sale deeds. [16] The findings recorded by the learned Court below that the Exhibi ts-1 to 4 sale deeds are defective and highly infirm documents and hence the pla intiff by virtue of the said deeds cannot acquire any right, title and interest, in view of the aforesaid discussion, cannot be sustained in law and hence the s aid finding is set aside.