High Court · 2012

In assailment is the judgment and order dated 26.09.2001 passed by the learned C ivil Judge(Sr.Divn.), Hailakandi in Title Appeal No.3/2001 reversing the judgmen t and decree dated 22.12.2000 passed by the learned Civil Judge (Jr. Divn.) No.1 , Hailakandi in T.S. No.56/97, thereby, dismissing the suit of the appellants-pl aintiffs. I have heard Mr. Choudhury, learned Senior counsel for the appellants-plaintiffs and Mr. A. Choudhury learned counsel for the respondents-defendants. The pleaded case of the appellants-plaintiffs, in short is that they had purchas ed by a registered sale deed dated 18.02.1975, a plot of land measuring 1 Bigha 4 Katha 4 Chataks from the legal heirs of one Hasan Raja who was the original o wner thereof following a family partition. They claim to have obtained possessi on of the said land as well. According to them, subsequent thereto, they also p urchased another plot measuring 6 Katha 1 Chatak from the same vendors by anothe r registered deed of sale. They alleged that while they were in occupation of t hese two plots described in Schedule - 1 to the plaint, the respondent-defendant s sought to trespass upon the land measuring 1 Bigha 4 Katha 4 Chataks describ ed in Schedule - 2 of the plaint, whereupon, a proceeding under section 145 Cr. P.C. was initiated at the instance of the appellants-plaintiffs. The learned Ex ecutive Magistrate, Hailakandi however by his order dated 15.07.1995 declared th e respondents-defendants to be in possession of the suit land, whereafter, on th e next date i.e. 16.07.1995 they being emboldened by this decision entered into the suit land (Schedule - 2) and thus dispossessed the appellants-plaintiffs the refrom. The suit was thus filed praying for a decree inter alia for declaration of the right, title interest of the appellants-plaintiffs over the Schedule - 2 land and for recovery of khas possession thereof by evicting respondents-defend ants therefrom. The respondents-defendants No.1,2,3 & 4 contested the suit contending inter alia that it ought to be dismissed for want of cause of action. They construed the s ale deed to be one for mortgage in favour of the appellants-plaintiffs and asser ted that thereby no right, title and interest in the suit land was conveyed to t hem (appellants-plaintiffs). According to them, the possession of the suit lan d had never been delivered to the appellants-plaintiffs and thus the question of being dispossessed therefrom did not arise. On the basis of the pleadings of the parties, the following issues were framed:- 1. 2. 3. 4. 5. 6. ? 7. Is their any cause of action ? Is the suit maintainable in its present form ? Is the suit barred by limitation ? Is the suit barred by waiver, estoppel and acquiescence ? Whether the title of the plaintiff has been properly traced out ? Whether the plaintiff has right, title and possession over the suit land To what relief, if any, the plaintiffs is entitled ? Whether the plaintiff is entitled to get recovery of khas possession of ADDITIONAL ISSUE 1. the suit land ? 2. ee witnesses each and also have exhibited document ? In the court of the trial of the suit both the parties have examined thr The parties adduced evidences, oral and documentary, the most significant wher eof are Ext-1, whereby the plaintiffs-appellants claimed to have purchased the s uit land measuring 1 Bigha 4 Katha 4 Chataks from the legal heirs of Hasan Raja and Ext-2 the judgment and order dated 15.07.1995 rendered by the learned Execut ive Magistrate, Hilakandi in the aforementioned proceedings under section 145 Cr .P.C. The learned trial Court on a consideration of the pleaded facts of the pa rties and the evidence on record decreed the suit of the plaintiffs-appellants. This decision having been overturned by the learned lower appellate court, they are in appeal for redress. Noticeably, the learned lower appellate court while accepting the deed dated 18. 02.1975 introduced as Ext-1 to be one of sale conveying the title in the land no tified therein in favour of the appellants-plaintiffs, dismissed the suit on the sole ground that they had failed to prove their dispossession therefrom on 15.0 7.1995. The learned lower appellate court to arrive at this conclusion referred to the evidence of the appellant-plaintiff No.1 as PW-1 in the proceedings unde r section 145 Cr.P.C. to the effect that the said proceeding registered as Misc. Case No.46(M)/1994 was registered on his complaint he having been by then dispo sed from the suit land. This, the learned lower appellate court found to be who lly opposed to the pleaded averment in the plaint that the actual dispossession had taken place on 16.07.1995 after the decision in the proceedings under sectio n 145 Cr.P.C declaring the possession thereto in favour of the respondents-defen dants. At the time of admission of the instant appeal, the following substantial questi on of law was framed: Whether the suit could have been dismissed for alleged lack of cause of action i n view of the provision of law contained U/O VII Rule - 1 (e) of the CPC ? Mr. Choudhury has emphatically argued that the appellants-plaintiffs having prov ed their right, title, interest in the suit land vide the sale deed dated 18.02. 1975, Ext-1, the learned lower appellate court erred in law and on facts in dism issing the suit as a whole. According to her, it being apparent on the face of the evidence adduced by the plaintiffs-appellants that they had been actually di spossessed from the suit land on 16.07.1995, the learned lower appellate court f ell in error in dismissing the suit for want of cause of action relying on a str ay statement made by the appellant No.1/plaintiff No.1 in the 145 Cr.P.C. procee ding. Mr. A. Choudhury, in reply, has urged that in face of the categorical finding of the lower appellate court about the anomaly in the date(s) of alleged disposses sion of the plaintiffs-appellants from the suit totally belying their pleaded ca se, no interference with this finding is called for and thus the instant appeal ought to be dismissed. I have duly considered the pleadings of the parties and the evidence on record, both oral and documentary. It is more than apparent, on an analysis thereof tha t the appellants-plaintiffs could prove unequivocally that they had purchased th e suit land described in Schedule - II to the plaint vide the sale deed dated 18 .02.1975, Ext-1. That the endeavour on the part of the respondents-defendants to brand the same as a deed of mortgage has been negated in clear terms by the lea rned lower appellate court is apparent from the judgment and order impugned. Having regard to the fact that the suit was filed praying for a decree for decla ration of right, title interest and recovery of possession i.e. as the suit is for possession based on title, in the opinion of this Court the learned lower ap pellate court was not justified in laying too much emphasis on the statement mad e by the appellant-plaintiff No.1 in the proceeding under section 145 Cr.P.C. wh erefrom it was sought to be inferred that the appellants-plaintiffs had been dis possessed long before 16.07.1995. Even assuming that the plaintiffs-appellants w ere not in possession of the land on 16.07.1995, a date cited to be one on which the cause of action for the suit had arisen, in my view having regard to the pr oved factum of purchase of the suit land by a registered deed of sale, the learn ed lower appellate court could not have dismissed the suit for want of cause of action. This is more so, in face of absence of any plea of adverse possession t aken by the respondents-defendants stretching for a period over 12 years from th e date of the purchase. In the above view of the matter, the ground on which th e learned lower appellate court had dismissed the suit cannot be sustained. As the appellants-plaintiffs’ right, title, interest in the suit land has to be dec lared in the face of the valid purchase made by them as evidenced by Ext-1, I am of the unhesitant opinion that the suit ought to be decreed in full. Ordered a ccordingly. The impugned judgment and decree is set aside. The instant appeal i s allowed. The suit of the appellants-plaintiffs is decreed. Let a decree be p repared in terms of the judgment. The Registry would dispatch the records thereafter to the learned trial court to enable it to do the needful, in accordance with law. No costs.