High Court
Case Details
RSA 141/2011 BEFORE HON’BLE MR.JUSTICE A.C. UPADHYAY JUDGMENT AND ORDER(ORAL) This second appeal is directed against the judgment and decree dated 27.1.2011 p assed by the learned District Judge, Hailakandi in T.A. No.8/06 affirming the ju dgment and decree dated 3.1.2006 and 10.1.2006 passed by the learned Civil Judge , Hailakandi in Title Suit No.36 of 2003.
Legal Reasoning
2. nd Mr. N. Chowdhury, learned counsel appearing for the respondent. I have heard Ms. B. Devi, learned counsel appearing for the petitioner a 3. lows: The facts leading to filing of this appeal may be stated in brief as fol The respondent herein as plaintiff filed a suit for declaration of right title a nd interest and confirmation of possession of the suit scheduled land. The plain tiff’s case in brief is that one Joygobinda Bornasharma was the original patta h older of C.S. Patta No.48 Mouza-Borbond Part-III consisting an area about 39B 13 K 12chs of land. He transferred 11B 19K 5chs of land to Boloram Patnee grand fat her of the plaintiff during C.S. period. The land measuring 5B 17K 4 lechas was originally recorded in C.S. Dag No.552. During resettlement operation the said l and was recorded in R.S. dag Nos.376/378, patta No.86. Bolaram Patnee grandfathe r of the plaintiff since purchase maintained exclusive possession over the said land including other land. 4. Thereafter, during resettlement period the entire patta land was sold in auction and one Protap Chandra Roy was the auction purchaser. But, Boloram Patn ee the grand father of the plaintiff remained in possession of the said land as tenant under aforesaid Protap Chandra Roy Estate. On the death of Boloram Patnee his son Prohlad Chanda Das father of the plaintiff continued his possession ove r the said land. During R.S. period the said Prohlad Chanda Das father of the pl aintiff purchased ownership right of the entire land of dag Nos.376/378 measurin g 5 B 17 K 4 chs from the legal heirs of aforesaid Protap Chanda Roy by two regi stered sale deeds dated 5.5.51 and also purchased land of dag No.509 patta No.86 /97 vide a sale deed dated 10.3.53. The land of R.S. Dag No.376/378 resurveyed i n 2nd R.S. patta No.111 dag No.443 which is the subject matter of the present su it. 5. Following a quarrel among the plaintiff and his brother and defendant No s.1 to 4, a marpit took place when brother of the plaintiff Probir Chanda Das we nt to plough over the Bichra land within the suit land and there were criminal c ases and counter cases in between the parties. Unfortunately, plaintiff and his brothers were convicted in G.R. Case No.553/2000 by the trial Court but on appea l they got acquittal vide Criminal Appeal No.12/03. Defendant Nos.1 to 4 became over enthusiastic on the conviction of the plaintiff and his brothers and made r epeated attempts to dispossess the plaintiff from the entire suit land on differ ent dates lastly on 25.6.03. The wrongful activities of the defendants clouded t he right, title, interest of the plaintiff over the suit schedule land. Hence th e case. 6. Defendant No.1 contested the suit by filing written statement and also p referred counter claim by filing a separate petition denying the claim of the pl aintiff. In addition to the legal pleas, the case of the defendant/counter claim ant is that his grand father Paramananda Patnee and after his death his father P oresh Ch Das and paternal uncle Promode Das enjoyed the suit land along with oth er land as tenants under Protap Roy estate. After the death of his father defend ant No.1 has been in use and enjoyment of the suit land as tenant under Protap R oy Estate. The defendant/counter claimant denied the right, title and possession of the plaintiff over the suit schedule land. According to the defendant/counte r claimant he had no knowledge about the purchase of the plaintiff’s father and contended that he has been in continuous possession of the suit land. Defendant/ counter claimant further contended that the description of the suit schedule lan d is incorrect and mis-leading and contrary to the boundaries given in the so ca lled purchased deed of the plaintiff and his father and prays for dismissal of t he suit and a decree on the counter claim declaring his right, title, interest a nd possession over the suit land as per schedule given in the counter claim. Plaintiff by filing written statement denied the claim of the answering 7. defendants and contended that the father of defendant Nos.1 and 2 Paresh Ch. Das , one Doyal Das and defendant No.5 Pobitra Mohan Das had purchased 16B 10K 14chs 10gn of land from the legal heirs of Pratap Ch. Roy in different pattas includi ng only 8K 4chs of land in suit R.S. Patta Nos.86 Dag No.377. The land of Dag No .377 is not included within the suit land. Plaintiff further contended that the plea of tenancy of the defendant/counter claimant over the suit land is quite fa lse and has no basis and prays for decreeing the suit on dismissing the counter claim. 8. Upon pleadings the following issues are framed - ISSUES Is there any cause of action for the suit ? Is the suit maintainable ? Whether plaintiff acquired right, title, interest over the suit land? Whether defendant is a non evictable tenant in respect of the suit land? Whether defendant No.1 acquired right, title, interest by virtue of purc 1) 2) 3) 4) 5) hase vide deed No.4174 dt.5.5.51? 6) 7) Whether plaintiff is entitled to get a decree as prayed for/ Whether defendant is entitled to get a decree on counter claim? 9. Ms. B. Devi, learned counsel appearing for the appellant vehemently subm itted that the learned Court below committed serious error of law as well as fac ts by declaring the plaintiff’s right title, interest and confirmation of posses sion over the suit land since the defendants-appellants have been able to establ ished the possession over the suit land along with other dags and pattas as tena nt under Protap Ch. Roy. 10. Learned counsel for the appellant further pointed out that it will be ab solutely incorrect to say on the part of the trial Court to hold that the father of the plaintiff purchased the entire land on the Dag No.376 and 378, with the knowledge of all co-sharer and the predecessor of the defendant No.1. Learned co unsel pointed out that the defendant had no knowledge about the purchase of the land under Dag No.376/378 by the father of the plaintiff. 11. On the other hand Mr. N. Choudhury, learned counsel for the respondent b y referring to the discussion on the appellate order submitted that the defendan t appellant conceded that the defendant appellant is not at all concerned about who is owner of the property in question except being concerned about his tenanc y right. The relevant extract of the observation made by the appellate Court rea ds as follows - (cid:28)During hearing of this appeal, the appellant defendant also adduced additional evidence and during the said evidences, 2 witnesses namely Sri Pritish Chandra D as and Poritush Das were examined as the witnesses. They also exhibited one docu ments under Ext. (ka). Further during hearing of this appeal the appellants side laid written argument wherein para No.16 of the same appellant side clearly sub mitted (cid:28)that the impugned judgment is highly irregular and discussion made in th e judgment is superfluous in nature. The defendant appellant is concerned with h is tenancy right only whoever may be the owner and he is not concerned with titl e. The learned trial Court ought to have decreed the counterclaim of the defenda nts and suit of the plaintiff ought to be dismissed. (cid:29) 12. Apparently in view of the above, the appellant is not concerned with the title of the suit land. They only claimed their right over the suit land as ten ant. Therefore, learned counsel for the respondent pointed out that it can be v ery well be inferred that the appellant virtually admitted the title over the su it land. 13. During the appellate stage, documents exhibit-ka Kabulia, which was intr oduced as additional evidence purportedly executed by Protap Chanda Roy in favou r of his grand father late Paramananda Das on 31.3.1916. 14. Mr. N. Chowdhury, learned counsel appearing for the respondent by referr ing to the contents of the documents pointed out that there is mention about nay a paisa in exhibit-ka, but the naya paisa was introduced in India only from the year 1957. Therefore, the documents Exhibit-Ka, which is the essence of all righ ts of the appellants apparently, appeared to be a forged document for the purpos e of mis-leading the Court. On perusal of the materials on record, it appears that both the Courts b 15. elow have rightly reflected the discussion on the issues and decided the case in favour of the plaintiff. Learned counsel appearing for the appellant emphasized on formulating a 16. substantial question of law on the fact of the appellant being tenant in respect of the property in question. Mr. Chowdhury, learned counsel for the respondent by referring to a deci 17. sion reported in Durga Singh v. Tholu, AIR 1963 SC 361 submitted that issues of tenancy being the question of fact cannot be treated to be as subject matter in the second appeal for the purpose of formulating a substantial question of law. The observation made by the Apex Court in Durga Singh v. Tholu, (Supra) reads as follows: In Deity Pattabhiramaswamy v.S. Hanymayya AIR 1959SC57 this Court held that a f inding of fact arrived at by the District Judge on the consideration of all evid ence, oral and documentary, adduced by the parties, cannot be set aside in secon d appeal. The question here is whether the respondents are the tenants of the ap pellant. Though for determining the question documentary evidence fell to be con sidered, the finding on the question is no less a finding of fact than may have been the case if the evidence to be considered was merely oral. As was pointed o ut by this Court in that case as well as recently in Chunilal V. Mehta & Sons Lt d., Bombay v. Century Spinning & Manufacturing Co. Ltd., Bombay CA 417 of 1957, an issue of law does not arise merely because documents which are not instrumen ts of title or otherwise the direct foundation of rights but are merely historic al documents, have to be construed. Of course here, as we have already pointed o ut, the High Court has ignored the presumption arising from certain documentary evidence and, therefore, there is an additional reason vitiating its finding. 18. ubstantial question of law in this appeal. On careful evaluation of the matter in its entirety, I do not find any s 19. Accordingly, the appeal stands dismissed.