High Court · 2012

Heard Mr. Mahanta, learned counsel for the appellants. The defendants in Title Suit No. 26/2006 (T.S. 16/2004 old) have filed this appe al against the judgment and decree dated 29.8.2011 passed by the learned Civil J udge, Golaghat in Title Appeal No. 8/2010, partly allowing the appeal preferred by the plaintiffs/respondents, by decreeing their suit for declaration of right, title and interest and for recovery of khas possession in respect of the suit l and except the land measuring 2 bighas 3 lechas in Dag No. 73 of Patta No. 103. The respondents, as plaintiffs instituted the suit for declaration of right, tit le and interest and recovery of khas possession in respect of the land measuring 7 bighas 2 kathas 1 lecha covered by Dag No. 73, 75 and 49 under Patta No. 103 of village Buraliksan Gaon under mouza Rangamati in the district of Golaghat, co ntending that the suit land originally belonged to Lokram Gogoi devolved on his three sons, namely Mahendra, Prafulla and Padma, after his death. It has also be en pleaded that after the death of Mahendra his son Pratap sold 3 bighas 3 katha s 14 lechas of land to the plaintiffs by Ext. 2 sale deed. Similarly Padma Gogoi on 14.12.1993 sold 3 bighas 3 kathas 7 lechas of land by Ext. 1 sale deed and a ccordingly the plaintiffs acquired right, title and interest in respect of the s aid land. The further contention of the plaintiffs is that the defendants in the month of March, 1994 encroached upon the land and in July 1999 they have constr ucted house over the suit land dispossessing the plaintiffs from the land. The defendants on receipt of summons entered appearance and contested the suit b y filing the written statement contending that neither Pratap nor Padma has any right, title and interest to transfer the land in favour of the plaintiffs. It h as also been pleaded that since the defendants are in possession of the land for a long period and the successor-in-interest of Lokram Gogoi did not have any po ssession over the suit land plaintiffs’ right have ripen by way of adverse posse ssion over the suit land. The trial court on the basis of the pleadings of the parties framed the followin g issues for consideration and decision :- (cid:28)1. Whether there is cause of action for the suit? 2. Whether the suit is barred by law of limitation? 3. Whether the suit is bad for non joinder of necessary parties? 4. Whether the plaintiffs have got right, title and interest over the suit land? 5. Whether the defendants are trespassers of the suit land? 6. To what relief/reliefs the plaintiffs are entitled? (cid:29) Both the parties have adduced both oral and documentary evidences. The witnesses were duly cross examined by the respective parties. The trial court upon appreciation of the evidences on record partly decreed the suit of the plaintiffs/respondents vide judgment and decree dated 30.10.2010 rej ecting the contention of the appellants/defendants that the successor-in-interes t of Lokram Gogoi had no saleable right over the suit land and also rejecting th e plea of adverse possession. The learned trial court decreed the suit of the pl aintiff in respect of 2 bighas 3 kathas 9 lechas of land on the strength of Ext. 1 sale deed dated 14.12.1993 executed by Padma in favour of the plaintiffs and 1 bigha 1 katha 14.5 lechas of land on the strength of Ext. 2 dated 26.12.1993 e xecuted by Pratap son of Mahendra. The learned trial court further passed the de cree to the effect that the plaintiffs are, however, not entitled to recover pos session over the land measuring 2 bighas 3 lechas in Dag No. 73 of Patta No. 103 as the defendants have acquired the occupancy right which is proved by Ext. ’Ka ’, kacha khatian. Being aggrieved the respondents/ plaintiffs preferred Title Appeal No. 8/2010 wh ich has been partly allowed, as aforesaid. It has been contended by Mr. Mahanta, learned counsel for the appellants/defenda nts that since there was no partition amongst the heirs of Lokram Gogoi namely; Mahendra, Prafulla and Padma, Padma and the successor-in-interest of Mahendra na mely Pratap cannot sell any portion of the unpartitioned land by Ext. 1 and Ext. 2 sale deeds and at least there cannot be any decree for recovery of possession of the suit land there being no partition. It has also been submitted that as t he defendants are in possession since 1930 they have acquired the right over the land by adverse possession and in the absence of any issue framed, though such plea was taken in the written statement, the defendants could not lead any evide nce. It appears from the judgment and decree passed by the learned courts below that the defendants in the written statement set up the plea of adverse possession. N o specific issue, however, was framed. The parties even in the absence of the issue relating to adverse possession, kno wing fully well their respective cases, have led evidence and hence non framing of the issue cannot be a ground for setting aside the judgment and decree passed by the learned courts below. The learned courts below have also found, upon app reciation of the evidences on record, that the possession of the defendants was permissive possession. Such finding of fact cannot be disturbed in the second ap peal. Though the defendants have claimed that there was no partition amongst the sons of Lokram Gogoi, the plaintiffs have led evidence relating to partition amongst the heirs of Lokram Gogoi. The other heirs of Lokram Gogoi though are parties ha ve not contested such claim of the plaintiffs relating to partition. The learned first appellate court, therefore, has not committed any illegality in decreeing the suit of the plaintiffs in so far as the suit land measuring 7 bighas 2 kath as 1 lecha except, however, the land measuring 2 bighas 3 lechas in respect of w hich Ext. ’ka’, kacha khatian was issued in favour of the defendants they having acquired the right of occupancy tenants. That being the position, I do not find involvement of any substantial question o f law to admit the appeal and hence the appeal stands dismissed. No cost.