High Court
Case Details
RSA 115/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal, by the plaintiffs, is directed against the judgment and dec ree dated 16.02.2002 passed by the learned Civil Judge (Sr. Division), Hailakand i, in Title Appeal No.22/1999, dismissing the appeal preferred by the present ap pellants by affirming the judgment and decree dated 18.08.1999 passed by the lea rned Civil Judge (Junior Division) No.2, Hailakandi, in Title Suit No.14/1992, w hereby and whereunder the suit filed by the present appellants has been dismisse d.
Legal Reasoning
The appellants as plaintiffs instituted the said suit for passing a decr 2. ee directing the defendant Nos.2, 3 and 4 to allot the suit land measuring 1 big ha 1/4th katha, more fully described in schedule to the plaint, apart from a dec ree that the defendants have no right, title and possession over the suit land. The plaintiffs have also prayed for a decree confirming their possession, in the alternative, if the plaintiffs are found to be dispossessed, to pass the decree for recovery of khas possession by evicting the defendants therefrom. The plead ed case of the plaintiffs is that the father of plaintiff Nos.2 and 3 Balaram Bi n was possessing the suit land for about 20 years as jotedar, which land, along with other land, however, was subsequently taken over by the Government as ceili ng surplus land and thereafter, the Government of Assam has allotted the said la nd in favour of the plaintiff No.3, namely, Shri Raj Kumar Bin alias Ram Kumar B in. It has also been pleaded that while the plaintiffs were possessing the said land, the mother of proforma defendant No.5, who is the widow of Khoka Karmakar, on 08.05.1984, filed an affidavit before the learned Executive Magistrate decla ring that she has no objection in issuing of the joint allotment certificate in the name of plaintiff No.3 as she has no demand over the suit land. The further pleaded case is that neither the proforma defendant No.5 nor 6 at any point of t ime possessed the suit land. It has further been contended that the defendant No .1 with the help of fake documents instituted a suit being Title Suit No.5/1984, on 19.06.1984, under Section 6 of the Specific Relief Act, claiming possession, which has been decreed against the plaintiffs on 21.06.1985 and though the Civi l Revision Petition No.224/1985 was filed before this Court against the said jud gment and decree passed, the same was dismissed giving liberty to the plaintiffs to file the suit for declaration of right, title and interest and hence the pre sent suit has been filed with the relief claimed. 3. The defendant No.1 on receipt of summon, entered appearance and filed wr itten statement. The other defendants have not filed the written statement. The defendant No.1 in the written statement, while denying the possession of Balaram Bin over the suit land and also issuance of the allotment certificate by the Go vt. of Assam in favour of the plaintiff No.3, has contended that the jotedar Kho ka Karmakar, in whose favour the allotment certificate was issued by the Govt. o f Assam, on 29.04.1979, executed a deed handing over the possession of the suit land in favour of the defendant No.1 as security for Rs.600/- taken on loan from the defendant No.1 and consequently the defendant No.1 came to possess the suit land. It has further been pleaded that proforma defendant Nos.5 and 6, thereaft er, on 30.03.1983 transferred the suit land in the name of the defendant No.1 by executing a deed of sale. The title of the plaintiffs over the suit land has al so been denied by the defendant No.1. The Trial Court on the basis of the pleadings of the parties framed the 4. following issues for determination:- (i) (ii) (iii) (iv) t land? (v) Is there any cause of action for the suit? Is the suit barred by limitation? Is the suit bad for non-joinder of parties? Whether plaintiff has right, title, interest and possession over the sui What effect the judgment of Hon’ble Gauhati High Court has in relation t o suit land and in respect of present suit? (vi) (vii) Whether the plaintiff is entitled to get decree as prayed for? To what relief or reliefs, if any, parties are entitled? 5. The plaintiffs/appellants, in order to prove their pleaded case, have ex amined 6(six) witnesses and also proved 2(two) documents, namely, the allotment certificate issued by the Govt. of Assam on 11.06.1976 and the affidavit dated 0 8.05.1984 sworn by Smt. Keshabati Karmakar, daughter of late Khoka Karmakar, whi ch were marked as Exts.-1 and 2, respectively. The contesting defendants have al so examined 5(five) witnesses and proved 4(four) documents being order dated 17. 08.1999 (Ext.-A), Kararnama executed by Khoka Karmakar in favour of defendant No .1 dated 15.01.1986 (Ext.-B), Swarnalipi dated 31.03.1983 (Ext.-C) executed by t he legal heirs of Khoka Karmakar in favour of the defendant No.1 and photocopy o f the order passed by this Court in Civil Revision No.224/1985 (Ext.-D). 6. The Trial Court upon appreciation of the evidence, adduced by the partie s, dismissed the suit of the plaintiffs. The plaintiffs being aggrieved preferre d Title Appeal No.22/1999, which has also been dismissed by the First Appellate Court, resulting in filing of the present appeal. Both the Courts below have dis believed the plaintiffs’ story of issuance of the allotment certificate in favou r of the plaintiff No.3. The Courts below have recorded the finding that the sai d allotment certificate was never issued in favour of the plaintiff No.3, but wa s issued in favour of Khoka Karmakar, the father of Keshabati Karmakar, who alle gedly executed the affidavit (Ext.-2), as it is evident from the said allotment certificate (Ext.-1) that the name of the plaintiff No.3 has been inserted later on under different handwriting and by different ink. The suit of the plaintiffs accordingly has been dismissed. Vide order dated 27.08.2002 the appeal has been admitted for hearing on 7. the following substantial questions of law:- (i) Whether the learned courts below were justified in deciding the matter i n favour of the respondents/ defendants whereas the present appellants/plaintiff s adduce documentary evidences including the allotment certificate (ext-1) issue d in the name of petitioner No.3 Ram Kumar Bin and Khoka Karmakar by the office of the Deputy Commissioner, Hailakandi on 11.6.1976? (ii) Whether the learned courts below were justified in discarding the eviden ces adduced by the prosecution witnesses who uniformly deposed that the present appellants have been in possession of the suit land for long time and also that the respondent never possessed the same at any point of time?
Legal Reasoning
8. I have heard Mr. P.K. Deka, learned counsel for the appellants. None app ears for the respondent despite reflection of the names of the learned counsel a ppearing for the respondent No.1 in the cause list. 9. Mr. Deka, learned counsel for the appellants referring to Ext.-1 documen t i.e. the allotment certificate issued by the Govt. of Assam allotting the suit land, has submitted that it is apparent therefrom that plaintiff No.3/appellant No.3 was one of the allotment holder apart from Khoka Karmakar, whose successor -in-interest by executing the affidavit (Ext.-2) has relinquished her right over the suit land and hence the Courts below have committed illegality in dismissin g the suit of the plaintiffs, without appreciating the Ext.-1 i.e. the allotment certificate in its proper perspective. The plaintiffs’ suit is based on the allotment certificate (Ext.-1) and 10. the affidavit (Ext.-2) executed by Keshabati Karmakar, daughter of Khoka Karmaka r. Perusal of Ext.-1, allotment certificate, reveals that the said certificate w as issued by the Govt. of Assam in favour of Khoka Karmakar. The name of the pla intiff No.3/appellant No.3 has, however, subsequently been added under different handwriting and by different ink without any endorsement therein by any compete nt authority of Govt. of Assam. Such insertion of the name of the plaintiff No.3 /appellant No.3, therefore, would not create any right, title and interest in hi s favour over the suit land. That apart, even if, Keshabati Karmakar has execute d the affidavit (Ext.-2), she cannot relinquish her right over the suit land by executing an affidavit. 11. ccordingly is dismissed. No cost. That being the position, there is no merit in the second appeal, which a 12. The Registry is directed to send down the records.