High Court
Case Details
RSA 11/2003 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal by the plaintiffs is directed against the judgment and decree dated 31.8.2002 passed by the learned Civil Judge, (Sr. Division), No. 2, Kamrup at Gu wahati in Title Appeal No. 10/1983 dismissing the appeal preferred by the presen t appellant by affirming the judgment and decree dated 30.3.1983 (decree drawn o n 20.4.1983) passed by the learned Sadar Munsiff, Guwahati in Title Suit No. 170 /1980, whereby and whereunder the suit of the plaintiff’s has been dismissed. 2. The appellant as plaintiff filed the said suit for declaration o f the right, title and interest over the land measuring 1 bigha 4 kathas 19 lech as, more fully described in the schedule to the plaint, contending inter alia th at Badal Ali (Sk) was the tenant under Sri Sri Hajo Madhab Develaya temple, whos e successors in interest vide registered deed dated 2.12.1968 (Ext. 1) transferr ed the suit land in favour of the plaintiff and hence he has acquired right, tit le and interest over the suit land. It has also been pleaded that pursuant to su ch transfer the plaintiff was put into possession and his name was recorded in t he revenue record on 7.5.1970 which, however was subsequently cancelled by the s uccessor Circle Officer. The further pleaded case of the plaintiff is that the s aid order was put to challenge before the appellate authority i.e. the Addl. Dep uty Commissioner, who vide order dated 25.7.1977 set aside the order of cancella tion and restored the order of mutation passed in favour of the plaintiff. It ha s also been pleaded that the said order was unsuccessfully challenged by the def endants before the Revenue Board. The plaintiff in the plaint has further conten ded that having lost the said proceeding the defendants instituted proceeding un der Section 145 Cr.P.C. whereby their possession was declared on 12.6.1979, whic h necessitated filing of the aforesaid suit for declaration of right, title and interest and recovery of khas possession.
Legal Reasoning
The defendant No. 1 contested the suit by filing 3. the written statement. The defendant No. 2, however, did not contest the suit. I n the written statement filed by the defendant No. 1 it has been pleaded that th e land originally belonged to Jaiban Chandra Sarma Doloi, which was purchased by Jiban Chandra Sarma vide registered sale deed dated 21.3.1960 (Ext. Gha) who al lowed the defendant and the father of the defendant No. 2 to possess the suit la nd for 30 years before 1960 and hence they are possessing the suit land and the plaintiff cannot claim the right, title and interest. 4. med the following issues for determination: - The trial court on the basis of the pleadings of the parties fra (cid:28)1. Whether the suit is maintainable in law? 2. Whether the suit is barred by limitation? 3. Whether the suit is bad for non joinder of necessary parties? 4. Whether the sale deed executed by the heirs of late Badal Ali in favour of the plaintiff has legal force and whether the plaintiff acquired r ight by virtue of the said sale deed? 5. Whether the plaintiff is entitled to a decree as prayed for? 6. To what any other relief or reliefs the parties are entitled to? (cid:29) 5. The parties have adduced their respective evidence both oral and documentary. Defendant No. 2 though did not contest the suit he was examined by the defendant No. 1 as his witness. 6. The trial court upon appreciation of the evidence, both oral and documentary dismissed the suit by holding that the suit is bad for non joinder of necessary party, namely, Khatna Bibi, who is the co purchaser of the land alo ng with the plaintiff vide Ext, 1 and also answered the issue No. 4 against the plaintiff by holding that the land purchased by plaintiff along with Khatna Bibi vide Ext. 1 is not the suit land. Being aggrieved the plaintiff preferred Title Appeal No. 10/1983, which was also dismissed by the first appellate court vide judgment and decree dated 31.8.2002. The first appellate court has decided the issue relating to non 7. joinder of necessary party in favour of the plaintiff. Issue No. 4 has been answ ered against the plaintiff by holding that since vide Ext. 1 dated 2.12.1968 the legal heirs of Badal Ali (Sk) the riyat under Sri Sri Madhab Develaya transferr ed only possessory right over the suit land, the plaintiff cannot claim right, t itle interest over the suit land. Hence the present appeal. 8. s place the present respondents, who are the legal heirs, were substituted. During pendency of the appeal the defendant No. 1 died and in hi 9. n the following substantial question of law: - The appeal was admitted for hearing vide order dated 24.4.2003 o 1. Whether the learned courts below erred on the fundamental pri nciple of law that in case of a conflict in the dag and patta nos. of the land a nd the boundaries thereof, the latter would prevail for the purpose of identific ation thereof? 10. has appeared for the respondents today.
Legal Reasoning
I have heard Mr. Ullah, learned counsel for the appellant. None 11. Mr. Ullah, learned counsel for the appellant has submitted that having regard to the reasons given by the first appellate court, while deciding the issue No. 4 against the plaintiff, i.e., that the plaintiff cannot claim rig ht, title and interest over the suit land as vide Ext 1 sale deed dated 2.12.196 8 only the possessory right has been transferred, submits that since the first a ppellate court has recorded the finding that Badal Sk was the riyat under Sri Sr i Madhab Develaya, which also could be proved by proving the riyati khatians, th e first appellate court ought to have decreed the suit of the plaintiff, as the occupancy tenant has heritable and transferable right. The learned counsel furth er submits that while recording the finding that only possessory right was trans ferred vide Ext. 1 dated 2.12.1968 the first appellate court did not take into c onsideration the other evidence, both oral and documentary, adduced by the plain tiff. It has also been submitted that since the first appellate court did not ac cept the case of the defendants that the suit land was purchased by Jiban Chandr a Sarma Doloi in auction in the year 1965 and the father of the defendant No. 2 and defendant No. 1 were in possession of the suit land for more than 30 days, t he first appellate court ought to have decreed the suit declaring his possessory right. It has also been submitted by Mr. Ullah, learned counsel for the appella nt that the first appellant court was right in holding that the suit is not bad for non joinder of necessary party as the suit by a co purchaser for eviction of the defendant is maintainable. 12. It appears from the judgment passed by the first appellate court that the appeal preferred by the present appellant has not been dismissed on th e ground that the land is not identifiable but on the ground that the plaintiff’ s right, title and interest cannot be decreed on the basis of the sale deed date d 2.12.1968. Hence the substantial question of law as formulated vide order date d 24.4.2003 does not arise at all. 13. It, however, appears from the aforesaid judgment passed by the f irst appellate court that it has recorded the finding that the plaintiff is not entitled to declaration of right, title and interest by virtue of the sale deed dated 2.12.1968, by which possessory right has been transferred, the substantial questions which arise for determination are :- 1. Whether the first appellate court has misinterpreted the Ext. 1 sale dee d, dated 2.12.1968, if not, whether the first appellate court at least ought to have decreed the suit of the plaintiff declaring his possessory right? 2. Whether the suit of the plaintiff is maintainable for non joinder of nec essary party namely Khatna Bibi, as the plaintiff has prayed for right, title an d interest in respect of the entire land by virtue of the Ext. 1 dated 2.12.1968 ? 14. al questions of law. The appeal, therefore, has been heard on the aforesaid substanti 15. The first appellate court in the impugned judgment has recorded a clear finding that Badal Ali was a riyat under Sri Sri Hajo Madhab Develaya te mple in respect of the suit land, whose successors in interest have executed the deed dated 2.12.1968 (Ext. 1) in favour of the plaintiff and Khatna Bibi. 16. The plaintiff has filed the suit for declaration for right, titl e and interest and recovery of khas possession in respect of the land measuring 1 bigha 4 kathas 19 lechas, more fully described in schedule to the plaint, clai ming that he has acquired right, title and interest by virtue of the purchase fr om the successor of Badal Ali vide Ext. 1 sale deed dated 2.12.1968. The plainti ff for the reasons best known to him, however, in the plaint did not plead that there was another person, namely, Khatna Bibi who also allegedly purchased the l and vide sale deed 2.12.1968 (Ext. 1). 17. I have also perused the Ext. 1 sale deed dated 2.12.1968, which reveals that the possessory right was transferred to the plaintiff and Khatan Bi bi jointly. Hence the plaintiff alone cannot bring the suit for declaration of r ight, title and interest in respect of the entire land, possessory right being t ransferred in favour of both the plaintiff and Khatna Bibi. Khatna Bibi having n ot been made party to the suit who, is a necessary party, the suit, therefore, m ust fail for non joinder of necessary party. The judgment passed by the first ap pellate court that one of the co owner can maintain the suit against the defenda nt is nothing but misconception of law. The suit for declaration of right, title and interest by one of the co-owner to the exclusion of the other co-owner with out making him a party is not maintainable 18. In view of the above, the question as to whether the first appellate court ought to have passed the decree for possessory right b y virtue of Ext. 1 dated 2.12.1968 need not be gone into. 19. For the reasons recorded above, I am of the view that the ultima te decree passed by the courts below do no require any interference. The appeal is devoid of any merit. 20. 21. The appeal is, therefore, dismissed. No cost. The Registry is directed to send down the records forthwith.