High Court
Case Details
RSA 158/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral)
Legal Reasoning
This appeal by the defendant No.1 in Title Suit No.28/1985 is directed against t he judgment and decree dated 21st December, 2001 passed by the learned Civil Jud ge (Sr. Division), Barpeta in Title Appeal No.16/2000, partly allowing the appea l preferred by the present appellant, thereby modifying the judgment and decree dated 20th September, 2000 passed by the learned Civil Judge (Junior Division), Barpeta in the said suit, whereby and whereunder the suit of the plaintiff was i nitially decreed declaring his right, title and interest and for recovery of kha s possession in respect of 1 Katha 5 Lechas of land covered by Dag No.775 of Per iodic Patta No.86. [2] The respondent No.1 herein as plaintiff instituted the aforesaid suit, against the present respondent as main defendant and present respondent N os.2(1) to 2(5) as well as No.3 as proforma defendants, praying for a decree dec laring his right, title and interest in respect of 1 Katha 5 Lechas of land cove red by Dag No.775 of Periodic Patta No.86, morefully described in Schedule-Kha t o the plaint, contending inter alia that the predecessor-in-interest of the pla intiff and the defendant No.1, namely, Madhab Ch. Das and Kamala Kanta Das, resp ectively, who were brothers, have acquired right, title and interest by inherita nce in respect of 2 Kathas 10 Lechas of land covered by Dag Nos.751 and 775 of P eriodic Patta No.86, after the death of their father, Khansa. It has also been pleaded that during the lifetime of Madhab Ch. Das, the land was amicably partit ioned in presence of the co-villagers and at their instance, between Madhab Ch. Das and the successors-in-interest of Kamala Kanta Das, and accordingly land mea suring 1 Katha 5 Lechas in Dag No.775, out of 2 Kathas 10 Lechas in the aforesai d two Dags, fell in the share of the plaintiff and the remaining land measuring 1 Katha 10 Lechas in Dag No.751 fell in the share of the defendant No.1 and othe r step brothers and sisters of the defendant No.2, namely, the defendant Nos.2(K a) to 2(Cha). It is also the pleaded case of the plaintiff that the defendant N o.1, thereafter, dispossessed the plaintiff for which he has to institute the su it, as aforesaid. [3] The defendant No.1 contested the suit by filing written statemen t, though admitted the amicable partition of the land in Patta No.86 covered by Dag Nos.751 and 775 between Madhab Ch. Das and the successors-in-interest of Kam ala Kanta Das has, however, contended that the suit land measuring 1 Katha 5 Lec has covered by Dag No.775, after such amicable partition, fell in the share of t he defendant No.1 and the land in Dag No.751 of the said patta fell in the share of the plaintiff. [4] e following issues for determination:- Based on the pleadings of the parties, the trial Court framed th (cid:28)1. Whether there is cause of action for the suit? 2. Whether the suit is not property, valued and properly stamped as alleged? 3. Whether the suit is beyond the jurisdiction by this Court as alleged? 4. Whether the suit is learned by time? 5. Whether the plaintiff has his right, title and interest over the suit land? 6. Whether the suit land and the house standing thereon fell in the share of the defendant No.1 after the partition and whether the defendant No.1 is possessing the suit land and the house since the days of partition as alleged by the defen dant No.1? 7. To what relief if any is the plaintiff entitled? (cid:29) [5] The trial Court, upon appreciation of the evidences on record, b oth oral and documentary, decreed the suit of the plaintiff, declaring his right , title and interest and also for recovery of khas possession in respect of 1 Ka tha 5 Lechas of land covered by Dag No.775 by holding that the said land, after amicable partition, fell in the share of the plaintiff. Being aggrieved, the defendant No.1 preferred the aforesaid appe [6] al, which was decided by the first appellate Court vide judgment and decree date d 21st December, 2001, partly allowing the appeal and thereby modifying the decr ee passed by the trial Court to the extent that the plaintiff would be entitled to 12‰ Lechas of land in Dag No.775 and 12‰ Lechas of land in Dag No.751, so als o the defendant No.1, as, according to the first appellate Court, though it is a n admitted position that there was amicable partition, none of the parties, howe ver, could prove which land covered by Patta No.86 fell in whose share. The fir st appellate Court based on the oral evidence of the plaintiff and the defendant recorded the finding that in Dag No.775, both the plaintiff and the defendant N o.1 are possessing equal specific shares. Hence, the present appeal by the defe ndant No.1. [7] r, 2002 on the following substantial question of law:- The appeal was admitted for hearing vide order dated 3rd Decembe (cid:28)Whether the Judgment and decree passed by the learned lower appellate Court par tly decreeing the plaintiff’s suit is in accordance with the case pleaded and th e reliefs sought for by the plaintiff. (cid:29) [8] I have heard Mr. J.I. Borbhuiya, learned counsel for the appella nt/defendant No.1 and Mr. K. Das, learned counsel appearing for the respondent N o.1/plaintiff. None appears for the other respondents despite service of notice . The learned counsel for the appellant/defendant No.1 referrin [9] g to the pleadings in the plaint as well as the relief claimed has submitted tha t since the plaintiff has claimed the right in respect of the land covered by Da g No.775 of Patta No.86 only, the first appellate Court ought not to have decree d the suit of the plaintiff in respect of the land in Dag No.751 and ought to ha ve confined the decree only in respect of the land covered by Dag No.775. Accor ding to the learned counsel, since the decree passed by the first appellate Cour t is beyond the pleadings and relief claimed in the plaint, the decree in so far as it relates to the land covered by Dag No.751 needs to be set aside. [10] On the other hand, the learned counsel appearing for the respond ent No.1/plaintiff submits that the first appellate Court, based on the oral and documentary evidence adduced by the parties, have recorded the finding that bot h Madhab Ch. Das and Kamala Kanta Das, the predecessor-in-interest of the plaint iff and the defendant No.1, and the defendant Nos.2(Ka) to 2(Cha) have equal sha res, i.e. 1 Katha 5 Lechas of land in Dag Nos.751 and 775 of Patta No.86 and the re being evidence in that regard, no illegality has been committed by the first appellate Court in passing the decree in favour of the plaintiff in respect of 1 2‰ Lechas of land in each of the two Dags, namely, Dag Nos.751 and 775 of Patta No.86, more so when there is evidence on record that specific share of land in D ag No.775 is under possession of the plaintiff and defendant No.1 in equal share s. [11] I have considered the submissions advanced by the learned counse l appearing for the parties and also perused the judgments and decrees passed by the Courts below. I have also perused the oral and documentary evidence adduce d by the parties, to satisfy myself about the legality and validity of the impug ned judgment and decree passed by the first appellate Court, though in second ap peal, the same is not required to be gone into, unless perversity in recording t he finding of fact is demonstrated. It is an admitted position of fact that Patta No.86 comprises tw [12] o Dags, being Dag Nos.751 and 775. Exhibit-2 Jamabandi, which has been proved b y the plaintiff also reveals that while both the Dags have equal quantum of land , i.e. 2 Kathas 10 Lechas, each, totaling 1 Bigha, Pw-1, the plaintiff himself i n his evidence has admitted that out of 1 Bigha of land 2 Kathas 10 Lechas land belongs to Umesh Das. From Exhbit-2 Jamabandi, it also appears that the name of Pabendra Nath Das (Proforma defendant No.3) was mutated in respect of 1 Katha 5 Lechas of land in Dag No.775, out of the land measuring 2 Kathas 10 Lechas in t he said Dag after the death of his father Umesh Das. The plaintiff in his evide nce has also stated that Umesh Das has also 1 Katha 5 Lechas of land in Dag No.7 51. [13] The plaintiff’s case that there was amicable partition of the la nd covered by Dag Nos.751 and 775 in Patta No.86 has been admitted by the defend ant in the written statement as well as in his evidence, who has examined himsel f as DW-1. The claim of the plaintiff that after such amicable partition, land measuring 1 Katha 5 Lechas in Dag No.775 fell in his share has, however, been de nied by the defendant No.1 in the written statement filed as well as in the evid ence adduced. Though it is an admitted position of fact that there was amicable partition, both the parties, namely, the plaintiff and the defendant No.1, howev er, could not prove that the land measuring 1 Katha 5 Lechas in Dag No.775 fell either in the share of the plaintiff or the defendant No.1. On the other hand, the evidence adduced by the plaintiff as well as the defendant No.1 reveal that the plaintiff and the defendant No.1 are possessing their respective shares of l and in Dag No.775 in equal proportion. [14] That being the position, the first appellate Court has not commi tted any illegality in decreeing the suit of the plaintiff in so far as it relat es to declaration of his right, title and interest and recovery of khas possessi on in respect of 12‰ Lechas of land in Dag No.775 covered by Patta No.86. The f irst appellate Court, however, ought not to have passed a decree declaring the p laintiff’s right over 12‰ Lechas of land in Dag No.751 of Patta No.86, there bei ng no claim by the plaintiff in respect of the land in Dag No.751. The first ap pellate Court has travelled beyond the pleadings as well as the evidence adduced by the plaintiff in that regard. Hence, the decree passed by the first appella te Court in so far as it relates to declaration of right, title and interest in respect of land covered by Dag No.751 is set aside. However, the decree passed by the first appellate Court in respect of declaration of right, title and inter est of the plaintiff and the defendant No.1 in respect of land in Dag No.775 in equal shares, is upheld. [15] The appeal is accordingly partly allowed. Having regard to the facts and circumstances, the parties are directed to bear their own cost through out. [16] below forthwith. The Registry is directed to send down the records to the Courts