High Court
Case Details
RSA 140/2001 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL) This appeal, by the defendants in Title suit No. 20/1994, is directed against th e judgment and decree dated 29.8.2001 passed by the learned District Judge, Lakh impur at North Lakhimpur in Title Appeal No. 1/2001, affirming the judgment and decree dated 29.11.2000 passed by the learned Civil Judge, (Sr. Division), Lakhi mpur at North Lakhimpur in the suit, whereby and whereunder the suit of the plai ntiffs/respondents has been decreed.
Legal Reasoning
2. The respondents, as plaintiffs, instituted the aforesaid suit fo r declaration of right, title and interest, for recovery of possession and mesne profit against the present appellants, as defendants, contending inter alia tha t the suit land is the self acquired property of the husband of plaintiff No. 1, namely Budheswar, who is the son of Dharmeswar, and after the death of Budheswa r, the plaintiff Nos. 1 and 2, being the widow and daughter of Budheswar and pla intiff No. 3 being the son of plaintiff No. 2, have acquired the right, title an d interest over the suit land. It has also been contended that Budheswar during his lifetime, however, allowed his step mother Podumi, the predecessor-in-intere st of the defendants, who is the second wife of Dharmeswar, to occupy and cultiv ate four bighas of land out of the suit land for her maintenance on the conditio n that she can enjoy the said property during her lifetime. According to the pla intiffs the katcha patta (Ext. 1), katcha Patta for payment of revenue (Ext. 2) were issued in the name of Budheswar, their predecessor-in-interest. It is also the pleaded case of the plaintiffs that Podumi taking advantage of the sympathy shown by Budheswar by allowing her to occupy the land got her name mutated in th e revenue record on 27.7.1983 (Ext. Ka) which has clouded the plaintiffs’ right, title and interest for which the suit has been instituted. 3. The appellants/defendants on receipt of the summons entered appe arance and filed their joint written statement contending inter alia that the en tire suit land originally belonged to Dharmeswar, father of Budheswar and the pr edecessor-in-interest of the defendants and Podumi being the second wife she had one third share over the land, which share of land has been inherited by the de fendant Nos. 1, 2 and 3 after the death of Podumi and on the basis of the Will e xecuted, which has been probated. According to the defendants they are possessin g their share of land i.e. four bighas and during the lifetime of Podumi, she go t her name mutated on 27.7.1983 (Ext. Ka), pursuant to which Jamabandi (Ext. Ga) was issued. The trial court on the basis of the pleadings of the parties fra 4. med the following issues for determination: - (cid:28)1. Is there any cause of action for the suit? 2. Whether the suit is barred by limitation? 3. Whether the suit suffers from non payment of requisite court fee? 4. Whether the plaintiffs have right, title, interest over the suit land? 5. Whether the suit suffers from non-joinder of parties? 6. Whether the plaintiffs are entitled to get khas possession of the suit land? 7. Whether the plaintiffs are entitled to get compensation from the defendants f or wrongful use and occupation of the suit land as claimed in the plaint? 8. What relief, the parties are entitled? (cid:29) 5. The trial court upon appreciation of the evidence on record, bot h oral and documentary, decreed the suit of the plaintiffs, believing the plaint iffs’ story that the suit land is the self acquired property of Budheswar, their predecessor-in-interest and hence Podumi the predecessor-in-interest of the def endants cannot have any right over the property. The trial court has rejected th e story of the defendants that the suit land originally belonged to Dharmeswar b y refusing to place reliance on Ext. Ka, the order of mutation dated 27.7.1983, on the ground that such order was passed without any notice to the plaintiffs an d is collusive. 6. Being aggrieved, the defendants preferred Title Appeal No. 1/200 1 in the court of the learned District Judge, Lakhimpur at North Lakhimpur, whic h has also been dismissed. Hence the present appeal. The appeal was admitted for hearing on 7.12.2001 on the followin 7. g substantial questions of law: - (cid:28)(i) Whether the learned courts below are justified in decreeing the suit in res pect 4 bighas of land where the widow was conferred the limited right in lieu of maintenance in recognition of her pre-existing right and she becomes an absolut e owner as provided under section 14(1) of the Hindu Succession Act, 1956? (ii) Whether the learned courts below are justified in decreeing the suit when ( the widow the predecessor in interest of appellants) being absolute owner of lan d executed a registered will in favour of the appellants who had obtained a prob ate being Misc. Case No. 43/91 Ext. GHA? 8. one appeared for the respondents.
Legal Reasoning
I have heard Mr. Mazumdar, learned counsel for the appellants. N Mr. Mazumdar, learned counsel for the appellants at the outset h 9. as submitted that the substantial questions of law as formulated vide order date d 7.12.2001 do not exist in the present appeal. It has, however, been submitted that since the learned courts below have failed to consider the relevant admissi ble evidence on record, while recording the finding that the suit land does not belong to Dharmeswar, father of Budheswar, and decreeing the suit of the plainti ffs by rejecting the case of the defendants, the substantial question of law inv olved in the present case is : - Whether the finding recorded by the Court below that the suit land does not originally belong to Dharmeswar is perverse, being not based on the evidence on record and without consideration of the relevant admissible evidence? 10. As noticed above, though the respondents have entered appearance through the learned counsel, whose names are recorded in the cause list, none o f the learned counsel engaged appeared to argue the case on behalf of the respon dents. Having regard to the aforesaid submission advanced by the learne 11. d counsel for the appellants and upon perusal of the judgments and decrees under challenge, I am of the view that the following substantial question of law aris es in the present appeal and accordingly the same is formulated: - Whether the finding recorded by the Court below that the suit land origi 1. nally does not belong to Dharmeswar is perverse, being not based on the evidence on record and without consideration of the relevant admissible evidence? 12. I have heard Mr. Mazumdar, learned counsel for the appellants on the aforesaid substantial question of law formulated today. 13. Referring to the judgments passed by the courts below it has bee n contended by Mr. Mazumdar, learned counsel that Ext. Ka mutation order dated 2 7.7.1983 was held to be collusive only on the ground that the defendants could n ot produce any other evidence to demonstrate that the suit property originally b elonged to Dharmeswar, father of Budheswar, though according to the learned coun sel PW 1, namely plaintiff No. , during cross examination has stated that she he ard Dharmeswar cultivated the suit land. The learned counsel submits that none o f the learned courts below have considered the contents of the order dated 27.7. 1983 granting mutation as well as the endorsement made in the jamabandi (Ext. Ga ) that the property originally belonged to Dharmeswar. It has also been submitte d that the order of mutation dated 27.7.1983 (Ext. Ka) was found to be collusive without discussing the evidence on record. 14. The plaintiffs’ case, as noticed above, is that the suit propert y is the self acquired property of Budheswar, their predecessor-in-interest. On the other hand the case of the defendants is that suit property originally belon ged to Dharmeswar, father of Budheswar and after the death of Dharmeswar the pre decessor-in-interest of the defendants namely Podumi inherited one-third share w hich according to the defendants is four bighas which Podumi during her lifetime and thereafter the defendants are possessing. The plaintiffs, however, could not produce any documents of titl 15. e except the katcha pattas being Ext. 1 and 2, apart from the revenue payment re ceipt. The defendants have also produced and proved the mutation order dated 27. 7.1983 (Ext. Ka) and the jamabandi dated 27.6.1984 apart from the proof of payme nt of revenue which according to the plaintiffs were allowed to be paid after oc cupation of the land by Podumi. 16. Both the courts below have held the order of mutation dated 27.7 .1983 (Ext. Ka) as not genuine and believable, firstly, on the ground that the s ame was passed without notice to the plaintiffs and secondly, the defendants cou ld not produce any other document to demonstrate that the suit land originally b elonged to Dharmeswar, father of Budheswar. Both the courts, at the same time, i n the judgments passed have noticed that against the order of mutation dated 27. 7.1983 the plaintiffs preferred the appeal unsuccessfully. It also appears from the deposition of PW 1 (plaintiff No. 1) that during cross examination she has s tated that she heard Dharmeswar was cultivating the land at Gawalagaon. 17. The courts below did not consider the entire deposition of PW 1, apart from the endorsement made in the jamabandi that the land originally belon ged to Dharmeswar, when both the parties, except the aforesaid document, could p roduce any other document of title. The courts below, therefore, have decided th e suit as well as the appeal without discussing the entire evidence on record an d without taking into consideration relevant evidence. 18. In view of the above the judgment and decree dated 29.8.2001 pas sed by the learned District Judge in Title Appeal is set aside. The appeal is re mitted to the court of the learned District Judge for deciding the appeal afresh , which shall be done within 45 days from the date of appearance of the parties and on the basis of the evidence already on record. 19. The appellants are directed to appear before the first appellate court on 1.3.2013. The first appellate court on receipt of the records shall is sue notice to the respondents/plaintiffs as the learned counsel appearing for th em did not appear today. 20. The Registry is directed to send down the records so as to reach the first appellate court on 22.2.2013. 21. The appeal is accordingly allowed. No cost.