Judgment · High Court · 2012

I have heard Mr NC Das, Senior Advocate for the applicant and Mr S Ali, Advocate for the opposite party. The names of the opposite party Nos. 5 and 6 have since been struck off.

#3. The pleaded version of the applicant in short is that Ratan Kali ta and Jurai Kalita (both deceased) were brothers owning and possessing separate ly in equal shares land measuring 1 Bigha 1 Katha 8 Lechas covered by Dag No. 71 1 (new)/463 (old) of K.P. Patta No. 178 (new)/103(old) in Village Sualkuchi unde r Pub Bongsor Mouza in the district of Kamrup described in Schedule-B to the pla int. In or about the year 1956 half portion of the said land owned and possessed by Ratan Kalita was acquired by the Electricity Department for which compensati on was also granted. Following this, Jurai Kalita, father of the respondent/defe ndant Nos. 1 and 2 and husband of the respondent/ defendant No.3 became the abso lute owner of the remaining half portion of the land in Schedule-B measuring 3 K athas 4 Lechas. In the year 1956, he sold 1 Katha thereof described in Schedule A-1 and A-2 to the plaint in favour of Ratan Kalita who then resided there with his wife Champa Kalita. On the death of Ratan Kalita, his widow Champa Kalita su rvived as his only heir. On 26.4.1965 Champa Kalita sold 1 Katha of land describ ed in Schedule A-1 and A-2 to Golapi Kalita by executing a registered deed of sa le. Thereafter, on 1.11.1985, Golapi Kalita sold the said land with a thatched house thereon to the applicant by a registered deed of sale and also delivered p ossession thereof to him. At or about the same time, the respondent/defendant N o.1 instituted a proceeding under Section 145/146 CrPC registered as Misc. Case No. 191m of 1985 in which the learned Executive Magistrate declared the possessi on of the aforementioned land in his favour. The applicant having unsuccessfully challenged the said order before the revisional Court instituted the aforementi oned suit praying for a decree inter alia for declaration of his right, title an d interest over the suit land and confirmation of possession. He, in the alterna tive also prayed that in case his possession was determined to be uncertain, a d ecree for delivery of khas possession be also granted.

#4. The suit was contested by the respondent/ defendant Nos. 1,2 and 3. While categorically denying each and every averment made in the plaint, they claimed that the thatched house on the suit land had been constructed by them a nd that they were in absolute possession of the suit property. They specifically denied that Jurai Kalita during his life time had sold 1 Katha of land from his share to his brother Ratan Kalita by executing a registered sale deed. They ass erted that the suit land had never been in possession of Ratan Kalita in his lif etime. On the basis of the pleadings of the parties, the learned Trial Court framed several issues of which issue Nos. 5 and 6 being of vital relevance are set out hereinbelow: Issue No.5 : Whether the title and possession of the suit l and ever passed to the hands of the predecessor-in-interest of the plaintiff and subsequently to t he plaintiff ? Issue No.6 : Whether the defendants have been in undisputed and continuous posse ssion of the suit land ?

#5. Both sides adduced evidence, both oral and documentary. Whereas the applicant examined himself and, amongst others, Smt Golapi Kalita, the respo ndents/ defendants examined the respondent/defendant No. 1 and one Sri Nivarsa K alita. The learned Trial Court on a consideration of the pleadings of the partie s and the evidence on record, dismissed the suit. Being aggrieved, the applicant approached the learned Assistant District Judge No.2, Guwahati with Title Appea l No. 24 of 1991 which also met with the same fate on 4.8.1993. Second Appeal No . 121 of 1993 was thereafter preferred before this Court by the applicant which was disposed of on 30.11.99 remanding the case to the learned Lower Appellate Co urt for fresh disposal. By the judgment and order impugned in the accompanying R SA No. 18/2001, the dismissal of the suit recorded by the learned Trial Court ha s been sustained. At the time of admission of the accompanying appeal, the followi

#6. ng substantial questions of law had been framed: i) Whether the learned Appellate Court committed error in not applying Sedtion 9 0 of the Evidence Act regarding the execution of Ext. 7? ii) Whether the learned Appellate Court committed error in substantial questions of law by making a finding contrary to the findings made by this Court in S.A. No. 121 of 1993? (cid:29)

#7. This Court while disposing of the accompanying RSA No. 18/2001 r ecalled the findings recorded in Second Appeal No. 121/93 inter alia to the effe ct that the absence of Smti Champa Kalita’s possession of the suit land and her migration with Ratan Kalita to another village did not have any adverse impact o n their right, title and interest in the suit land. The weightage accorded by th e learned Lower Appellate Court on the finding of possession in the proceedings under Section 145 CrPC was also held to be flawed. This Court held further that once the sale of the suit land by Jurai Kalita in favour of Ratan Kalita was est ablished, the rest of the appellant/ plaintiff’s (applicant herein) version was bound to be accepted because the respondents/ defendants (opposite party herein) could succeed in the suit only by establishing that Jurai Kalita had not sold 1 Katha of land from his land of 3 Katha 4 Lechas to Ratan and that the latter di d not get possession thereof. The finding of the learned Lower Appellate Court d ismissing the Sale Deeds, Exhibits-1 and 2 whereby Golapi Kalita had sold the su it land to the appellant/ plaintiff (applicant) was held to be unsustainable. Th ese registered Sale Deeds were also held to have been proved in accordance with law. The validity of the Sale Deed, Exhibit-7 whereby Jurai Kalita had sold the suit land in favour of Ratan Kalita was sustained as well.

#8. In allowing the accompanying RSA No. 18/2001 by interfering with the decisions of the learned Courts below, this Court inter alia noticed that t he respondents/defendants (opposite party herein) had not taken a plea that Jura i Kalita was illiterate and, therefore, was unable to write and read and/or they were in adverse possession of the suit land extinguishing the right, title and interest of the appellant/ plaintiff therein. This Court also took note, amongst others, of the testimony of the appellant/ plaintiff Sri Bipin Chandra Kalita ( P.W.2) who proved the registered Sale Deed, Exhibit-4, whereby Champa Kalita had conveyed the suit land in favour of Golapi Kalita. He also proved the registere d Sale Deeds, Exhibits-1 and 2, whereby Golapi Kalita had transferred the same ( suit land) in his favour. That this transaction was endorsed by Golapi Kalita by testifying as a witness was also brought on record. This Court was of the view that even if the respondents/ defendants (opposite party herein) could be assume d to be in possession of the suit land, the mere length thereof without any open assertion of their right, title and interest therein challenging the superior t itle of the appellant/ plaintiff per se did not divest him of his title therein if otherwise legally acquired. The declaration of possession in favour of the re spondents/ defendants in the 145 Cr.P.C proceedings was, therefore, held to be i nconsequential. The findings of the learned Courts below on Issue Nos. 5 and 6 a s extracted hereinabove were interfered with. The observation made by this Court in Second Appeal No. 121/93 that mutation by itself though not an absolute proo f of title is a corroborative evidence thereof if preceded by and based on a dee d of title was recorded. The operative portion of the judgment and order dated 19.12.2006 rendered in RSA No. 18/2001 in the above backdrop read as hereunder: (cid:28)25. In view of the findings recorded as above, the conclusions of the learned L ower Appellate Court are thus held to be legally unsustainable being against the weight of the evidence on record and vitiated by perversity and fatal illegalit ies. In the result, the appeal succeeds and is thus allowed. The substantial qu estions of law are answered accordingly. The judgment and order dated 23.11.2000 is hereby set aside. The suit is decreed in full.

#26. ts. (cid:29) Let a decree be prepared on the basis of this judgment and order. No cos

#9. The applicant thereafter instituted Title Execution Case No. 13/ 2007 for execution of the decree. The opposite party therein filed two petition s under Section 47 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as ’the CPC’) before the learned Curt below challenging issuance of a precept to the Bailiff of the Court for delivery of possession. These petition s registered as Misc. (J) Case No. 37/08 and Misc. (J) Case No. 38/08 were, howe ver, rejected by the learned Executing Court by its order dated 22.6.2009. Being aggrieved, the opposite party approached this Court under Article 227 of the Co nstitution of India by filing two separate petitions registered as CRP Nos. 279/ 2009 and 290/2009. By order dated 30.10.2009 these petitions were allowed observ ing that the decree drawn up by the Registry of this Court as required in terms of the judgment and order dated 19.12.2006 did not reveal as to whether the decr ee was for conformation of possession or for recovery of khas possession except saying that the suit of the plaintiff was decreed in full. It was observed furth er that the decree pursuant to the said judgment did not have the details of the relief granted and unless the same was clarified by the Second Appellate Court in the exercise of its jurisdiction under Section 152 CPC as observed by the Ape x Court in Lakshmi Ram Bhuyan -vs- Hari Prasad Bhuyan & Ors., (2003) 1 SCC 197, the Executing Court could not direct issuance of the writ of delivery of khas po ssession to the appellant/ plaintiff by evicting the defendants/ judgment-debtor s. The plaintiff/ decree holder was left at liberty to approach the Second Appel late Court for necessary clarification with the observation that in case it (Sec ond Appellate Court) clarified that a decree for khas possession had been issued , the Executing Court would proceed to deal with the execution proceedings in ac cordance with law. Hence, this application.

#10. Whereas Mr Das has assiduously urged that on a plain reading of the judgment and order dated 19.12.2006 it is apparent that the suit was decreed in full signifying that a decree for recovery for recovery of khas possession w as also granted, Mr Ali has contended that the present application is not mainta inable in law and is liable to be rejected. He has further submitted that as a d ecree for possession of the suit land was prayed for in the alternative in the s uit and as neither in the plaint nor in the evidence any plea of ouster therefro m (suit land) had been taken, no decree for recovery of possession can be inferr ed. According to Mr Ali, having regard to the frame and character of the suit it was inessential for the opposite party to assert their adverse possession of th e suit land.

#11. I have extended my cautious consideration to the materials on re cord to the extent necessary for the present purpose. To start with, the appella nt/ plaintiff in the suit had prayed as follows:- that the suit be decreed declaring the right, title and interest of the (i) plaintiff over the suit land; (ii) that the plaintiff’s possession be confirmed over the suit land and the standing house thereon and in case the plaintiff’s possession is found to be clo udy, then the suit be decreed for delivery of khas possession evicting the conte sting defendants from the suit land; (iii) (iv) that the cost of the suit be decreed against the contesting defendants; any other relief to which the plaintiff is entitled may also be decreed. As would be obvious from the relief No. (ii) as above, though th 12. e appellant/plaintiff principally prayed for a decree for confirmation of his po ssession of the suit land, it would be apparent from the averments made in the p laint that he apprehended that being emboldened by the order passed in the 145 C r.P.C. proceedings declaring the possession of the opposite party No.1 he would occupy the same. The appellant/ plaintiff thus also prayed for a decree for deli very of khas possession by evicting the contesting defendants in case his posses sion was found to be ’cloudy’.

#13. That the appellant/ plaintiff’s suit for the reliefs claimed the rein was based on title is writ large on the face of the records. This Court whi le dealing with the accompanying RSA 18/2001 had declared the validity of the sa le deeds culminating in the conveyance of the right, title and interest in the s uit land in favour of the appellant/ plaintiff. It was in the above background o f declaration of the legality of the sale in favour of the appellant/ plaintiff vis-à-vis the suit land that the suit was decreed in full. Noticeably, the plead ed stand of the opposite party (respondents/ defendants) was only denial of such sale of the suit land by Jurai Kalita to his brother Ratan Kalita signifying th at the conveyances subsequent thereto as claimed by the appellant/ plaintiff wer e also not admitted by them. They asserted denial of delivery of possession of t he suit land to Ratan Kalita and eventually to the appellant/ plaintiff and inst ead claimed to be in possession thereof. Admittedly, they did not assert any adv erse possession of the suit land. Admittedly, as on date the judgment and order dated 19.12.2006 has not been questioned before any forum and has, thus, attaine d finality.

#14. In the face of the unequivocal declaration of validity of the pu rchase of the suit land by the appellant/ plaintiff from his vendor Golapi Kalit a, he (appellant/ plaintiff) was logically entitled to a decree for declaration of his right, title and interest therein and all consequential reliefs flowing t herefrom. The suit was, thus, decreed in full, the factum of possession of the s uit land by the opposite party (respondents/ defendants) being of no significanc e whatsoever in the teeth of the overriding superior title of the appellant/ pla intiff in the suit land. The relief of confirmation of possession as sought for by the appellant/ plaintiff can, thus, in no view of the matter be an impediment to a decree for delivery of possession thereof to him even if the respondents/ defendants are found to be in possession. The plea raised on behalf of the opposite party against the main 15. tainability of the instant application has to be mentioned to be rejected in vie w of the liberty granted by this Court vide its judgment and order dated 30.10.2 009 disposing of CRP Nos. 279/2009 and 290/2009 and even otherwise under the la w. Not only this decision dated 30.10.2009, to reiterate, the judgment and order dated 19.12.2006 rendered in RSA No. 18/2001 has not been assailed by the respo ndents/ defendants (opposite party) before any forum as on date. The arguments o n their behalf based on pleadings and proof while resisting the instant applicat ion also, therefore, do not commend for acceptance.

#16. Be that as it may, on a cumulative consideration of all above, i t is clarified that the appellant/ plaintiff’s suit by the judgment and order da ted 19.12.2006 was in fact decreed:- (i) (ii) land; (iii) declaring his right, title and interest in the suit land; declaring his entitlement to recover vacant khas possession of the suit for vacant and khas possession of the suit land by evicting the responde nts/ defendants (opposite party herein) from the suit land; (iv) costs in accordance with law.

#17. decree accordingly in required details. No costs. The application is, thus, allowed. The office would draw up the