Judgment · High Court · 2012

I have heard Mr N Choudhury, learned counsel for the appellant. 2. None has appeared on behalf of the respondents though the names of their learned counsel have been shown in the cause list.

#3. The appeal being of the year 1999 and as no prayer for adjournme nt has been made on behalf of the respondents, this appeal has been taken up for hearing. Noticeably, by order dated 14.5.2004, the names of respondent Nos. 2 t o 12 had been struck off. The pleaded case of the appellant/ plaintiff in short is that on 4. e Chandra Das was the absolute owner in respect of a plot of land measuring 6 Bi ghas 15 Chattaks included in the suit patta land. He died leaving behind his wif e Kokila Das, three sons viz. Narendra, Dhana and Lokendra together with two dau ghters Sushanti and Basanti. Narendra having predeceased Chandra Das, his (Chand ra Das) property devolved on equal shares (i.e. 1/5) on the five heirs and legal representatives and land measuring 1 Bigha 4 Kathas 3 Chattaks 15 Gondas fell i n the share of each. On 23.8.84, the defendant No.4, Khudiram Das sold his entir e interest in his share in the land in the suit patta to his maternal uncle Loke ndra Das, defendant No.3 by a registered deed of sale. Consequentially, Lokendra Das became the owner of land measuring 2 Bighas 14 Kathas 7 Chattaks 10 Gondas. According to the plaintiff/ appellant, after the aforementioned sale Khudiram w as left with no right, title and interest in the land in the suit patta.

#5. The appellant/plaintiff’s further plea is that the defendant No. 3 by a registered sale deed, Exhibit-Kha dated 23.8.84 sold an area of land meas uring 6 Kathas 1 Chattak to one Dhan Babu Sinha who transferred the same to the appellant by a registered instrument dated 23.3.85, Exhibit-1. According to the appellant/ plaintiff, the land so conveyed also included an additional area of 1 Katha 12 Chattaks which subsequently the defendant No.3 transferred to him (pla intiff) by a registered sale deed dated 17.6.87. The appellant/ plaintiff claime d that following the aforementioned purchases he entered into exclusive possessi on of the land involved and occupied the same by raising constructions thereon. He alleged that the respondent No.1/ defendant No.1 trespassed into the suit lan d on 25.1.87 for which a police case was registered on a FIR lodged by him (appe llant/ plaintiff). A cross case was also filed by the respondent No.1/ defendan t No.1. According to the appellant/ plaintiff, the respondent No.1/ defendant No .1 in collusion with the defendant No.4, Khudiram Das manufactured a deed of sal e dated 7.7.87 qua the suit land. In this factual backdrop, the suit was filed p raying for a preliminary decree of partition after declaring the appellant/ plai ntiff’s right, title and interest in and possession of the land described in Sch edule-II to the plaint as well as for a final decree for recovery of khas posses sion by evicting the defendant No.1/ respondent No.1. Cancellation of the deed d ated 7.7.87 was also prayed for. 6. The defendant No.1/ respondent No.1 in his written statement cla imed right, title and interest in and possession of the suit land on the strengt h of his purchase thereof from the defendant No.4 vide sale deed dated 7.7.87. H e asserted that Lokendra and Dhana, the heirs of the original owner Chandra Das recklessly sold the land in their shares so much so that their purchasers were u nable to obtain the possession thereof. He asserted that the defendant No.4 in t he year 1987 sold his inherited property measuring 1 Bigha 10 Kathas 3 Chattaks 18 Gondas to him by registered deed of sale and also delivered possession thereo f to him. He alleged an attempt of dispossession made by the appellant/ plaintif f and his cohorts. 6A. On the basis of the pleadings several issues were framed of whic h the issue Nos. 6,7 and 8 being of decisive significance are quoted hereinbelow : (cid:28)6. Whether the title of the plaintiff has been properly traced out ? 7. Whether predecessors of the plaintiff had any saleable interest at the time o f his purchase ? 8. Whether the story of possession and dispossession is true ? (cid:29)

#7. The parties examined themselves and several other witnesses to p rove their respective cases. Documentary evidence was also adduced. The learned Trial Court on a consideration of the pleadings of the parties and the evidence on record, decided the aforementioned issues in favour of the appellant/plaintif f and, thus, decreed the suit. The defendant No.1/ respondent No.1 being aggriev ed preferred Title Appeal No. 4/98. By the impugned judgment and order the decre e of the learned Trial Court was modified and the suit was partly allowed. At the time of admission of the appeal, the following substantia

#8. l question of law was framed: (cid:28)Whether non-consideration of Ext. 4, the sale deed executed by the answering de fendant in the given circumstances of the case prejudiced the right, title and i nterest of the appellant over the disputed land ? (cid:29) Mr Choudhury has urged that the learned Lower Appellate Court to 9. tally misread the pleadings of the parties and the oral evidence adduced by them and, thus, arrived at findings not supported thereby. With particular reference to the sale deeds, Exhibit-2, Exhibit-4, Exhibit-Kha and Exhibit-1, the learned counsel has urged that as would be apparent therefrom, on 7.7.87 the defendant No.4, Khudiram Das had no subsisting right, title and interest in the land in th e suit patta to be conveyed to the defendant No.1/ respondent No.1 vide Exhibit- Ka and, thus, interference with the decision of the learned Trial Court by the l earned Lower Appellate Court is apparently unsustainable in law and on facts. Ac cording to Mr Choudhury, by the sale deeds, Exhibit-4 and Exhibit-2, Khudiram Da s (defendant No.4) had totally divested himself of his right, title and interest in his share inherited from his mother Sushanti and that the sale deed dated 7. 7.87, Exhibit-Ka did not vest any title in the defendant No.1/ respondent No.1 i n the land as contained therein.

#10. Upon hearing the learned counsel for the appellant and on a cons ideration of the pleadings and the other materials on record, I am constrained t o sustain the assertions made on behalf of the appellant. That Chandra Das was t he original owner of the land measuring 6 Bighas 15 Chattaks in the suit patta a nd that on his demise through his daughter Susanti, her son Khudiram Das (defend ant No.4) had acquired right, title and interest in 1/5th share measuring 1 Bigh a 4 Kathas 3 Chattaks 15 Gondas is a matter of record. The sale deeds, Exhibit-2 and Exhibit-4 dated 23.8.84 and 2.4.79 on a conjoint reading demonstrate that t he defendant No.4 had thereby demised his right, title and interest in his share entirely to the purchasers. It is apparent from the sale deed, Exhibit-2 that t hereby the defendant No.4 had sold land measuring 1 Bigha 4 Kathas 10 Gondas to Lokendra Das, defendant No.3, who in turn by sale deed, Exhibit-Kha had conveyed a plot measuring 6 Kathas 1 Chattak therefrom to Dhan Babu Sinha. Exhibit-1 da ted 23.3.85 is a registered sale deed whereby he (Dhan Babu Singh) had sold thi s 6 Kathas 1 Chattak of land to the appellant/ plaintiff. His (appellant/ plaint iff) claim that this area in fact included an additional plot of 1 Katha 12 Chat taks which was later on conveyed to him by the defendant No.3 on 17.6.87 and tha t on the completion of all the purchases made by him he had became owner of lan d measuring 13 Kathas 14 Chattaks in the suit patta as described in Schedule-II to the plaint stand proved by the evidence on record-both oral and documentary.

#11. The learned Trial Court has noticed that by the sales made by Kh udiram Das (defendant No.4) vide Exhibit-2 and Exhibit-4 he had divested himself of his interest in his share in the land in the suit patta and concluded that the sale deed, Exhibit-Kha was a collusive document. The oral evidence of the wi tnesses of the appellant/ plaintiff amply proves the possession of the suit land following such purchases. As rightly observed by the learned Trial Court, on 25 .1.87 the defendant No.1/ respondent No.1 had no valid document of title in resp ect of the suit land, the date of his claimed purchase from defendant No.4 being 7.7.87. Noticeably, none of the necessary parties impleaded in the suit did con test the same. The assessment made by the learned Trial Court that the witnesse s examined by the respondent No.1/ defendant No.1 was partisan and, thus, unreli able cannot, on an analysis of their versions, be lightly brushed aside.

#12. The learned Lower Appellate Court, as a plain perusal of the imp ugned judgment and order would reveal, proceeded on a wrong factual premise and, thus, the plea of misreading of the pleadings and the evidence on record has su bstance. The sale deeds witnessing the transactions embodied therein have been d uly proved. A combined reading of the documentary evidence in conjunction with t he testimony of the witnesses, in my view amply proves the case of the appellant / plaintiff as pleaded in the plaint.

#13. In the above view of the matter, the impugned judgment and order dated 3.4.99 rendered in Title Appeal No. 4/98 is interfered with and the judgm ent and order dated 20.4.98 passed by the learned Trial Court in Title Suit No. 36/90 is restored. Let a decree be prepared accordingly.

#15. The appeal is allowed. No costs. The office would send down the records immediately.