High Court
Case Details
RSA 79/2000 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal by the defendant No.2 is directed against the judgme nt and decree dated 02.02.2000 passed by the learned Civil Judge (Senior Divisio n), Sonitpur at Tezpur, in Title Appeal No.9/1993, whereby and whereunder the ap peal preferred by the defendant Nos.1, 2 and 3 has been dismissed by affirming t he judgment and decree dated 11.02.1993 passed by the learned Munsiff No.1, Tezp ur, in Title Suit No.9/1990. The plaintiff/respondent Safijan Bibi instituted Title Suit No.9/1990 fo 2. r declaration of her right, title and interest and for confirmation of possessio n over the suit land described in the plaint, contending inter alia that the def endant No.1, who was the owner and possessor of the suit land, initially transfe rred the same in favour of the defendant No.3 by a registered deed of gift dated 13.09.1968, who, thereafter, vide registered deed of sale dated 28.07.1975 tran sferred the suit land in favour of the plaintiff, thereby the plaintiff has acqu ired the right, title and interest over the suit land. It has also been contende d that though the plaintiff’s name, by virtue of such purchase, was initially mu tated in the revenue records on 05.03.1981, the said mutation was cancelled at t he instance of the defendants vide order dated 19.08.1981, which was set aside v ide order dated 22.11.1983 by the Settlement Officer on the basis of the appeal filed and remanded the matter to the Asstt. Settlement Officer for fresh decisio n. According to the plaintiff, the Asstt. Settlement Officer subsequently passed the order of mutation in favour of the defendants and though the plaintiff file d an appeal before the Settlement Officer, the same has been dismissed on 27.01. 1987. It has further been pleaded that the defendant No.2, thereafter, institute d a proceeding under Section 145 Cr.P.C. wherein the learned Executive Magistrat e on 15.03.1986 passed an order of attachment. According to the plaintiff the ca ncellation of the mutation has clouded his title over the suit land, for which t he suit has been filed for passing the decree as noticed above.
Legal Reasoning
3. The defendants have contested the suit by filing the joint written state ment, admitting the gift of the suit land by the defendant No.1 in favour of the defendant No.3 by a registered deed of gift and subsequent sale of the suit lan d by the defendant No.3 in favour of the plaintiff by a registered deed of sale, as contended by the plaintiff in the plaint. The defendants, however, have cont ended that the plaintiff, thereafter, executed a registered instrument dated 21. 11.1975 in favour of the defendant No.3 undertaking to return the possession of the suit land to the defendant No.3 provided the consideration amount mentioned in the sale deed dated 28.07.1975 is returned by the defendant No.3 to the plain tiff within 5 years from the date of execution of the said registered instrument . It has further been pleaded that the said consideration amount having been ref unded by the defendant No.3 in favour of the plaintiff on 31.12.1977, the defend ant No.3 has been put back into possession and that is how the defendants have b een possessing the suit land continuously till the attachment order was passed b y the learned Executive Magistrate on 15.03.1986. The defendants, therefore, hav e pleaded that by virtue of the subsequent registered instrument dated 21.11.197 5 executed by the plaintiff in favour of the defendant No.3, the plaintiff has l ost her right, title and interest over the suit land. On the basis of the pleadings of the parties, the following issues were Whether there is any cause of action for the suit? In the suit barred by the principles of waiver, estoppel and acquiescenc 4. framed by the Trial Court for determination:- (i) (ii) e. (iii) (iv) ff and her husband in favour of the defendant? Whether the suit is barred by limitation? Whether the document No.538 dated 21.11.75 was registered by the plainti Whether the plaintiff then right, title, interest and possession in the Whether the suit land has been mutated legally in the name of the defend Whether the suit is properly valued and proper court fee has been paid? Whether the defendant acquired right, title and interest in the suit lan (v) suit land? (vi) ant? (vii) (viii) d by adverse possession? (ix) (x) Whether the plaintiff is entitled to get relief as prayed for? To what other relief or reliefs the parties are entitled? 5. The plaintiff in support of her case has examined 3(three) witnesses and also exhibited a number of documents including the sale deed dated 28.07.1975, by which the defendant No.3 has sold the suit land in favour of the plaintiff, w hich has been marked as Ext.-1. The defendants have also examined 3(three) witne sses and exhibited certain documents including the revenue records. The learned Munsiff upon appreciation of the evidence on record, both or 6. al and documentary and upon hearing the learned counsel for the parties, has dec reed the suit of the plaintiff vide judgment dated 11.02.1993. Being aggrieved a ll the defendants, namely, the defendant Nos.1, 2 and 3 preferred Title Appeal N o.9/1993, which has also been dismissed vide judgment and decree dated 02.02.200 0 by affirming the judgment and decree passed by the Trial Court. Hence the pres ent appeal. By order dated 31.05.2000 the appeal has been admitted for hearing on th 7. e following substantial questions of law:- (i) Whether the claims of consequential reliefs of confirmation/recovery of possession and injunction in the suit are unnecessary, superfluous or premature in view of the pendency of proceedings under Section 145 of the Code of Criminal Procedure and attachment of the suit land in such proceedings? (ii) Whether mere cancellation of mutation or the name of the respondent/plai ntiff by the order of Assistant Settlement Officer as upheld on appeal by the Se ttlement Officer can or could provide any cause of action for the suit and if su ch cause of action can or could be deemed to have arised on 19.8.81 when the chi tha mutation in the name of the respondent/ plaintiff was admittedly cancelled f irst by the Assistant Settlement? 8.
Legal Reasoning
I have heard Ms. R. Choudhury, learned counsel for the appellant and Mr. B. Pushilal, learned counsel appearing for the respondents. 9. The learned counsel for the appellant referring to the impugned judgment s and decrees passed by the Courts below have submitted that since the plaintiff by the registered instrument dated 21.11.1975 undertook to return the possessio n of the suit land in favour of the defendant No.3 on receiving the consideratio n amount mentioned in the sale deed 28.07.1975 (Ext.-1), pursuant to which the p ossession of the suit land was redelivered to the defendant No.3 on 31.12.1977 o n receiving the consideration amount, the plaintiff has lost the right, title an d interest over the suit land, which earlier she acquired by right of purchase v ide registered sale deed dated 28.07.1975 (Ext.-1). The learned counsel further submits that the proceeding under Section 145 Cr.P.C. having been instituted by the defendant No.2, wherein the order of attachment of the property has been pas sed by the learned Executive Magistrate, the claim of the consequential relief f or confirmation of possession by the plaintiff is premature. It has also been su bmitted that cancellation of the mutation of the name of the plaintiff by the As sistant Settlement Officer cannot provide a cause of action for filing the suit and the suit being based on such cause of action, the same needs to be dismissed . 10. The learned counsel for the respondent, per contra, supporting the judgm ents and decrees passed by the Courts below has submitted that since the defenda nts have failed to prove execution of any registered instrument dated 21.11.1975 , as contended, no illegality has been committed in decreeing the suit of the pl aintiff on the basis of the Ext.-1 sale deed dated 28.07.1975, execution of whic h has also been admitted by the defendants in the written statement filed. 11. I have considered the submissions advanced by the learned counsel for th e parties. I have also perused the judgments and decrees passed by the Courts be low. 12. As noticed above, the plaintiff/respondent No.1 claims right, title and interest on the basis of the sale deed dated 28.07.1975 (Ext.-1) executed by the defendant No.3 in favour of the plaintiff. The plaintiff also claims that the d efendant No.3 got the suit land from the defendant No.1, who is the owner and po ssessor, by virtue of the registered deed of gift dated 13.09.1968. The defendan ts in the written statement filed have admitted that the defendant No.1 was the original owner and possessor of the suit land and he has gifted the property in favour of the defendant No.3 by a registered deed of gift dated 13.09.1968. The sale of the property by the defendant No.3 in favour of the plaintiff by a regis tered sale deed dated 28.07.1975 has also been admitted by the defendants in the written statement filed. Despite such admission, the plaintiff has proved the s ale deed dated 28.07.1975 (Ext.-1) executed by the defendant No.3 in her favour. Hence by virtue of such purchase the plaintiff has acquired the right, title an d interest in respect of the suit land. The defendants in the written statement filed has pleaded that the plain 13. tiff lost the right, title and interest over the suit land because of the execut ion of a registered document on 21.11.1975 by the plaintiff in favour of the def endant No.3, whereby and whereunder the plaintiff undertook to return the posses sion of the suit land to the defendant No.3 on return of the consideration amoun t within 5 years. According to the defendants the defendant No.3 was put back in to possession by the plaintiff on 31.12.1977 on refund of the consideration amou nt. The defendants though pleaded so, have failed to produce and prove the regis tered instrument dated 21.11.1975. The defendants, therefore, have failed to pro ve their pleaded case in the written statement filed. The claim of possession by the defendants has also not been accepted by the Courts below. The finding of f act relating to the possession recorded by both the Courts below cannot be distu rbed in the second appeal in the absence of demonstration of any perversity in r ecording such finding. 14. The proceeding under Section 145 Cr.P.C. being a summary proceeding rela ting to the possession, a suit for declaration of right, title and interest and for confirmation of possession, despite existence of an order of attachment is m aintainable. The confirmation of possession has to be with relation to the date of attachment of the property, which has been declared by both the Courts below. 15. It appears from the plaintiff’s case that according to the plaintiff the cause of action arose due to cancellation of the mutation as, by such cancellat ion of mutation the plaintiff’s title over the suit land has been clouded. As di scussed above, the defendants have admitted the transfer of the land by the defe ndant No.3 in favour of the plaintiff by a registered instrument i.e. Ext.-1. It is also the pleaded case of both the plaintiff and the defendants that though i nitially the plaintiff’s name was recorded in the revenue record, the same, howe ver, was subsequently cancelled on 19.08.1981, which naturally has clouded the p laintiff’s right, title and interest requiring institution of the suit for the d eclaration. 16. That being the position, I do not find any merit in the appeal and hence the same is dismissed. No cost. 17. The Registry is directed to send down the records forthwith.