High Court
Case Details
RSA 144/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL) This appeal by the plaintiff is directed against the judgment and decree dated 7 .6.2002 passed by the learned Civil Judge, (Sr. Division), Nagaon in Title Appea l No. 33/2000, allowing the appeal preferred by the predecessor-in-interest of t he present respondent Nos. 1(a) and 1(b), by setting aside the judgment and decr ee dated 30.6.2000 passed by the learned Civil Judge, (Jr. Division) No. 2, Naga on in Title Suit No. 54/1996, whereby and whereunder the suit of the plaintiff/p resent appellant was initially decreed by the trial court. 2. The appellant herein, as plaintiff, instituted the aforesaid sui t against the predecessor-in-interest of the present respondent Nos. 1(a) and 1( b), respondent No. 2, and the predecessor-in-interest of the respondent No. 2(a) to 2(c) as main defendants and also the proforma respondent No. 3 as proforma d efendant No. 3, praying for a decree for declaration of right, title and interes t and confirmation of possession in respect of the land measuring 1 bigha 3 lech as covered by Dag No. 822 of periodic patta No. 241 of mauza Jagial in the distr ict of Nagaon, more fully described in the schedule to the plaint, and in the al ternative for recovery of khas possession of the suit land or in part thereof by evicting the defendants, if in course of the trial the defendant No. 1 is found to be in possession of the suit land, contending inter alia that the land orig inally belonged to Bhogsing, defendant No. 2, who by registered deed of sale dat ed 3.12.1973 (Ext. 3) sold it to proforma defendant No. 3 Gerela, who in turn vi de sale deed dated 15.7.1993 (Ext. 2) sold the same to plaintiff, by virtue of w hich the plaintiff has acquired right, title and interest. It has further been p leaded that on such purchase the plaintiff was put into possession. The further pleaded case is that there was an attempt for dispossession by the defendants on 22.1.1996 and also on 23.1.1996. It has also been pleaded that the defendants h ave filed an application for mutation of their names in the revenue record. The plaintiff has, therefore, filed the suit praying for the aforesaid relief.
Legal Reasoning
3. The defendant No. 1, the predecessor-in-interest of the present respondent 1(a) and 1(b) namely; Rongai, contested the suit by filing written st atement. The other defendants namely; Bhogsing (defendant No. 2), the predecesso r-in-interest of the present respondent Nos. 2(a) to 2(c), as well as the profor ma defendant No. 3 Gerela did not contest the suit by filing any written stateme nt. In the written statement filed by the defendant No. 1 it has been contended that the suit land apart from other land original belonged to Bahmura @ Gela and after his death the suit land was inherited by his four sons namely; Akara, Gat hiram, Dhuliram and Nila, amongst whom there was amicable partition, by virtue o f which the land inherited by them jointly in Bawalguri gaon fell in the share o f Akara, Dhuliram and Nila and the suit land fell in the share of Gathiram, fath er of the defendant No. 1 Rongai. According to the defendant No. 1 though the ot her three brothers namely Akara, Dhuliram and Nila after such amicable partition did not have any right, title and interest in respect of the suit land, Akara’a name continued to be mutated in the revenue record he being the eldest son of B ahmura and taking advantage of the same Gerela (Proforma defendant No. 3) with a view to make illegal gain got the name of Bhogsing (defendant No. 2) entered in to the revenue records, in respect of the suit land and thereafter vide sale dee d dated 3.12.1973 (Ext. 3) executed by Bhogsing sold the suit land to Gerela who in turn sold it to the plaintiff by another registered deed of sale dated 15.7. 1993 (Ext. 2). The defendant No. 1, therefore, pleaded that Bhogsing had no righ t, title and interest over the suit land and hence he could not have transferred the same in favour of Gerela. Consequently the plaintiff also cannot acquire an y right, title and interest by virtue of the sale by Gerela in his favour. 4. Based on the pleadings of the parties the trial court framed the following issues for determination : - (cid:28)1. Whether there is any cause of action for filing the suit? 2. Whether the suit is bad for non joinder of necessary parties? 3. Whether the suit is barred by limitation and adverse possession? 4. Whether the plaintiff has any right, title interest over the suit lan d? 5. Whether the defendants are evictable from any disputed portion of the suit land? 6. Whether the parties are entitled to get any relief? If so, what? (cid:29) The plaintiff in order to prove his case has examined three witn 5. esses, namely the plaintiff himself as PW 1; Gerala, proforma defendant No. 3 as PW 2 and Bhogsing (Defendant No. 2) as PW 3. The plaintiff has also proved thr ee documents namely, jamabandi (Ext. 1), sale deeds dated 15.7.1993 (Ext. 2) and dated 3.12.1973 (Ext. 3) respectively. The witnesses examined by the plaintiff were cross examined by the defendant No. 1. Four witnesses were also examined by the defendant No. 1 in support of his case including the defendant No. 1 himsel f as DW 1, who were also duly cross examined by the plaintiff. The defendant has also proved two documents namely; Ext. ka and kha being the certified copy of t he jamabandi as well as the certified copy of the chitta, respectively. 6. The trial court upon appreciation of the evidence on record, bot h oral and documentary, answered all the issues in favour of the plaintiff and d eclared his right, title and interest in respect of the suit land, based on the two sale deeds dated 3.12.1973 and 15.7.1993, Ext. 3 and 2, respectively. The tr ial court has also passed the decree for recovery of khas possession by evicting the defendant No. 1 therefrom, who was found to be in possession of the suit la nd. 7. Being aggrieved the defendant No. 1 preferred the aforesaid appe al, before the first appellate court, which has been allowed by setting aside th e judgment and decree passed by the trial court. The first appellate court has s et aside the judgment and decree passed by the trial court, on the ground that B hogsing, who executed the sale deed dated 3.12.1973 (Ext. 3), did not have any r ight, title and interest over the suit land to transfer the same in favour of th e plaintiff and by virtue of such sale the plaintiff cannot acquire right, title and interest over the suit land. Such finding has been recorded based on the ev idence of the PW 2 and 3. Hence the present appeal. 8. n the following three substantial questions of law: - The appeal was admitted for hearing vide order dated 4.10.2002 o (cid:28)(i) Whether the first appellate court had misinterpreted the do cumentary evidence i.e. the documents marked as Ext. 1, 2 and 3 while passing th e impugned judgment and decree or not? (ii) Whether the first appellate court has rightly reversed the judgment and decree passed by the trial court in Title Suit No. 55/1996? (iii) Whether the first appellate court mis-appreciated the prov isions of law laid down under Section 92 of the Indian Evidence Act while giving more emphasis and the reliance on oral evidence than that of the documentary ev idence marked Ext, 1, 2 and 3 while passing the impugned judgment and decree? 9. nd in his place the present respondent Nos. 1(a) and 1(b) are substituted. During pendency of the appeal the respondent No. 1 has expired a 10.
Legal Reasoning
I have heard Mr. Ghosh, learned counsel for the appellant and Ms Goswami, learned counsel appearing for the respondent Nos. 1(a) and (b). None a ppears for the respondent Nos. 2(a) to 2(c) as well as the respondent No. 3 desp ite service. 11. Mr. Ghosh, learned counsel appearing for the appellant referring to the sale deeds dated 3.12.1973 (Ext. 3) and dated 15.7.1993 (Ext. 2) execute d by Bhogsing and Gerela has submitted that since the execution of those sale de eds are not in dispute, the first appellate court ought not to have allowed the appeal by setting aside judgment and decree passed by the trial court as the pla intiff has acquired the right, title and interest over the suit land by virtue o f the sale deed dated 15.7.1993 (Ext. 2). The learned counsel further submits th at it is evident from the Ext. 1, copy of the jamabandi, that Bhogsing’s name ap peared in the revenue record and hence the appellate court ought not to have hel d that Bhogsing had not right, title and interest to transfer land in favour of Gerela vide sale deed dated 3.12.1973 (Ext. 3) and consequently the plaintiff wo uld not acquire right, title and interest by virtue of the sale deed dated 15.7. 1993 (Ext. 2) executed by Gerela in his favour. In the alternative the learned c ounsel submits that even if defendant’s version that the suit land along with ot her land original belonged to Bahmura, the grandfather of Gerela, is accepted, G erela being the son of Akara, who is the eldest son of Bahmura, would have right , title and interest in respect of the share of Akara i.e. … of the suit land, i n the absence of any proof that there was amicable partition of the land amongst the four sons of Bahmura namely; Akara, Gathiram, Dhuliram and Nila. The learne d counsel, therefore, submits that while the plaintiff is entitled to a decree d eclaring the right, title and interest and recovery of khas possession by virtue of the aforesaid sale deed, the alternative argument, as noticed above, is that the plaintiff is at least entitled to the … of the suit land as Gerela has inhe rited the share of Akara in the absence of any proof relating to the family part ition amongst the four brothers, who are the sons of Bahmura. 12. Per contra, Ms Goswami, learned counsel appearing for the respon dent Nos. 1(a) and 1(b), supporting the judgment and decree passed by the first appellate court has submitted that Gerela (Proforma defendant No. 3), who has be en examined as PW 2, in his evidence has admitted that the suit land was not the self acquired property of Bhogsing but was the ancestral property of Bahmaru @ Gela the father of Akara and three other brothers namely, Gathiram, Dhuliram and Nila, who have inherited the suit property after the death of Bahmura, along wi th other property. It has also been submitted that Gerela (PW 2) in his evidence has admitted that after the death of the original owner Bahmura there was famil y partition amongst the four brothers namely; Akara, Gathiram, Dhuliram and Nila and while the suit land fell in the share of Gathiram, the other three brothers occupied the other land in Bowalguri village. The learned counsel further submi ts that though Gerela in his evidence has claimed that his father and three uncl es transferred a plot of land measuring 4bighas, which includes the suit land, i n favour of Bhogsing for a valuable consideration of Rs.3200/-, the plaintiff co uld not prove the sale of the said land by the aforesaid four brothers in favour of Bhogsing and on the other hand Gerela has admitted that no such sale deed ha s been executed and the transfer was made by signing in the chitta only. The lea rned counsel, therefore, submits that Bhogsing could not acquire any right, titl e and interest in respect of the suit land so as to transfer the same in favour of Gerela on 3.12.1973 and consequently the plaintiff cannot acquire right, titl e and interest by virtue of the sale by Gerela vide sale deed dated 15.7.1993 (E xt. 2). The learned counsel also submits that it is being an admitted position o f fact (admitted by Gerela during cross examination) that there was amicable par tition of the land left by Bahmura amongst his four sons, and Gathiram used to o ccupy the suit land, Gerela, son of Akara, could not have right, title and inter est over any portion of the suit land and as such the alternative submission mad e by the learned counsel for the appellant for declaration of the right, title a nd interest in respect of … share of the suit land also is not sustainable. 13. I have considered the submissions advanced by the learned counse l for the parties and also perused the judgments and decrees passed by both the courts below, apart from the deposition of the witnesses examined by both the pa rties, including the documentary evidence, since the first appellate court has s et aside the judgment and decree passed by the trial court in favour of the plai ntiff, though the evidence of the witnesses is not required to be perused by the second appellate court unless of course perversity in recording any finding is alleged. 14. As noticed above, the plaintiff’s case is that the suit land ori ginally belonged to Bhogsing (PW 3) who vide registered deed of sale dated 3.12. 1973 (Ext. 3) sold it to Gerela (PW 2) who in turn vide sale deed 15.7.1973 (Ext . 2) sold it to plaintiff and that is how the plaintiff has acquired right, titl e and interest over the suit land. The plaintiff (PW 1) in his deposition though has supported his 15. case that Bhogsing (PW 3) was the original owner who transferred it to Gerela (P W 2), who in turn transferred it to the plaintiff, Gerela and Bhogsing, who were examined as PW 2 and 3, respectively, did not support the case of the plaintiff . Gerela (PW 2) during cross examination has in fact supported the case of the d efendant No. 1. He has stated that the suit land apart from other land originall y belonged to Bahmura and the same was inherited by his four sons namely; Akara, Gathiram, Dhuliram and Nila. He has also admitted that Akara being the eldest b rother, all lands were mutated in the name of Akara and the entire land inherite d by four brothers was possessed jointly. Gerela has also admitted that there wa s amicable partition of the land amongst the aforesaid four brothers, who were t he sons of Bahmura and land in Bowalguri village fell in the share of Akara, Dhu liram and Nila, who used to stay in the said village and land in village Gormur fell in the share of Gathiram, in which village the suit land is situated. Admit tedly defendant No. 1, Rongai is the son of Gathiram and Gerela is the son of Ak ara. 16. The defendant No. 1, Gerela, in his evidence has also stated the transfer claimed to be made by four brothers, who are sons of Bahmura, by signi ng in the chitta, was signed by him only. According to Gerela land measuring 4 b ighas was transferred in favour of Bhogsing, for consideration of Rs. 3200/-. Ad mittedly no sale deed was executed transferring the land in favour of Bhogsing, though the consideration amount was more than Rs. 100/-. Such sale, therefore, w ould not be valid, in view of the provision of Section 54 of the Transfer of Pro perty Act, which requires transfer of immovable property, value of which is more than Rs. 100/-, by registered instrument only. Gerela also alone cannot transfe r any land he being the son of one of the brothers namely Akara. By such sale, t herefore, Bhogsing would not acquire any right, title and interest. Bhogsing (PW 3) in his examination in chief as well as in cross examination has stated that his name was wrongly mutated in the revenue record in respect of the suit land t hough he had no right, title and interest over it. 17. That being the position and the amicable family partition also h aving been proved by the defendants by adducing evidence, Akara, Dhuliram and Ni la would not have any right, title and interest over the suit land which fell in the share of Gathiram, father of Rongai. Hence the plaintiff could not have acq uired right, title and interest by virtue of the sale deed dated 15.7.1993 (Ext. 2) executed by Gerela in his favour, since Bhogsing had no right over the land, there being evidence on record, which has also been supported by plaintiff’s ow n witnesses namely; Gerela (PW 2), that there was amicable partition amongst the four sons of Bahmura and the suit land fell in the share of Gathiram. Gerela, t herefore, also cannot have any right, title and interest over any portion of the suit land he being son of Akara, eldest son of Bahmura, who did not have any ri ght, title and interest over the suit land after amicable partition amongst the four brothers. 18. hence it is dismissed.
Decision
In view of the above, I do not find any merit in the appeal and 19. 20. The parties are directed to bear their own cost through out. The Registry is directed to send down the records forthwith.