High Court
Case Details
RSA 54/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
Heard Mr. B.D. Goswami, learned counsel for the appellant/defendant and Mr. S. Ali, learned counsel appearing for the respondents/plaintiffs. This appeal by the defendant is directed against the judgment and decree dated 16.02.2012 passed by the learned Addl. District Judge(FTC No.1), Kamrup a t Guwahati, in Title Appeal No.9/2007, dismissing the appeal by affirming the ju dgment and decree dated 11.06.2007 passed by the learned Civil Judge, Senior Div ision No.2, Kamrup at Guwahati, in Title Suit No.202/2003, whereby and whereunde r the suit filed by the present respondents has been decreed. The present respondents as plaintiffs instituted the aforesaid suit for declaration of right, title and interest and recovery of khas possession in resp ect of the land measuring 3 bighas covered by Dag No.422 of Patta No.124, more f ully described in the schedule to the plaint, contending inter alia that Shri Ga ngadhar Kalita, who was the owner of the suit land, sold said 3 bighas of land b y three separate registered deeds of sale dated 25.09.1992 (Ext.-4), 25.09.1992 (Ext.-5) and 24.01.1994 (Ext.-6) in favour of the plaintiff Nos.1, 2 and 3, tran sferring his right, title and interest in their favour in respect of 1 bigha 3 k athas, 2 kathas and 1 bigha of land, respectively, totaling 3 bighas of land, an d though they were put into possession by the owner, they, however, had to insti tute the suit for declaration of right, title and interest and recovery of khas possession because of the order dated 14.09.2000 passed by the learned Executive Magistrate in a proceeding being Misc. Case No.418M/1998 (Ext.-7) instituted un der Section 145 Cr.P.C. It has also been pleaded that though the defendant filed two suits being Title Suit Nos.169/1999 and 170/2001 claiming his right, title and interest over the suit land, both the suits were dismissed. The defendant on receipt of the summon entered appearance and filed the written statement contending inter alia that the suit is bad for non-joinder of necessary parties, that it is bad for waiver, estoppel and acquiescence and that the plaintiffs were never in possession of the suit land at any point of time. It has further been pleaded that the defendant’s uncle Nagendra Boro has purchas ed the suit land from the original owner Nemai Garo by executing a registered de ed of sale dated 08.07.1985 (Ext.-Ka) and after the death of Nagendra Boro, he h as inherited the right, title and interest over the suit land. Based on the pleadings of the parties, the Trial Court framed the follow ing issues for determination:- (i) (ii) Whether the suit is maintainable in its present form? Whether the plaintiffs are the owners of the total land described in the schedule of the plaint? If so, whether the plaintiffs are entitled to a declara Whether the defendant illegally occupied the land and the ekchali house tion of their right, title and interest over the schedule land? (iii) of the plaintiffs and inducted other persons? (iv) (v) Whether the plaintiffs are entitled to get decree, as prayed for? To what other relief/reliefs the parties are entitled? The Trial Court upon appreciation of the evidence adduced by the parties , both oral and documentary, decreed the suit of the plaintiffs declaring their right, title and interest over the suit measuring 3 bighas and also passed a dec ree for recovery of khas possession, rejecting the claim of the defendant. The C ourt below has found that the plaintiffs could prove the sale deeds Exts.-4, 5 a nd 6 and the defendant could not prove that the land originally belonged to Nema i Garo, which was sold to Nagendra Boro by executing any sale deed, as the said sale deed has not been produced and proved and instead a photocopy has been prod uced, which is not admissible in evidence. Being aggrieved, the defendant preferred the aforesaid appeal, which has been dismissed by upholding the judgment and decree passed by the Trial Court. Hence the present appeal. Mr. Goswami, the learned counsel appearing for the appellant submits tha t as the appellant could prove that the land was originally belonged to Nemai Ga ro, who has vide Ext.-Ka sale deed dated 08.07.1985 transferred the suit land in favour of Nagendra Boro, from whom the defendant has derived title being the su ccessor-in-interest, the Court below ought not to have decreed the suit of the p laintiffs based on the three sale deeds being Exts.-4, 5 and 6, which were execu ted much after the sale deed executed by Nemai Garo in favour of Nagendra Boro o n 08.07.1985. It has also been submitted that since the judgment dated 30.04.200 1 passed in Title Suit No.169/1999 (Ext.-8) was not a judgment on contest but th e suit was dismissed by the said order on default, the Court below ought not to have dismissed Title Suit No.170/2001 filed by the defendant, vide judgment date d 13.02.2002 (Ext.-10) as hit by the principles of res judicata. Mr. Ali, the learned counsel appearing for the respondents/plaintiffs, o n the other hand, has submitted that though the defendant has claimed that the l and originally belonged to Nemai Garo, he, however, could not prove the same. It has also been submitted that the defendant also though claimed that the said la nd was sold by Nemai Garo in favour of Nagendra Boro by Ext.-Ka sale deed dated 08.07.1985, the said sale deed having not been produced and proved and only the photocopy having been produced, the Court below has rightly held that the defend ant could not prove the said sale deed, as the photocopy of the said sale deed i s not admissible in evidence. Mr. Ali further submits that the claim of the defe ndant, in fact, has already been rejected by the Trial Court in Title Suit Nos.1 69/1999 and 170/2001, against which the defendant has not preferred any appeal a nd hence the judgments and decrees passed in the said suits has attained finalit y. Further submission is that the plaintiffs having proved the sale deeds (Exts. -4, 5 and 6) the Courts below have rightly decreed the suit of the plaintiffs I have considered the submissions advanced by the learned counsel for th e appearing parties and also perused the judgments and decrees passed by the Cou rts below. The plaintiffs, in order to prove their title, have proved the aforesaid three sale deeds being Exts.-4, 5 and 6, which are registered instruments. The plaintiffs also could prove that the land originally belonged to Fakir Kala Garo , from whom the right, title and interest devolved on Gangadhar Kalita, who has transferred the suit land in favour of the plaintiff Nos.1, 2 and 3 by the afore said three sale deeds. The execution of the said sale deeds could duly be proved by the plaintiffs. The defendant, though has claimed that the land originally b elonged to Nemai Garo, he could not prove the same. The defendant also could not prove the transfer of land by Nemai Garo in favour of Nagendra Boro, as the def endant did not produce and prove the sale deed executed by Nemai Garo. Photocopy of the said sale deed has been marked as Ext.-Ka, which being not admissible in evidence, the Courts below have rightly refused to take into consideration of t he same. That apart, the defendant initially instituted Title Suit No.169/1999 a gainst the present respondents as defendants, in respect of the suit land, which suit was dismissed for default on 30.04.2001 (Ext.-8). The defendant, thereafte r, filed another suit being Title Suit No.170/2001, against the present plaintif fs for the suit land, which has also been dismissed vide judgment dated 13.02.20 02 (Ext.-10). The said judgment and decree passed in the said suit has not been challenged by the defendant before the higher forum and hence the said judgment attains its finality.
Decision
In view of the above, I am of the view that the Courts below have rightl y passed by the judgments and decrees. There being no substantial questions of l aw involved, the appeal has not been admitted and consequently dismissed. No cos ts.