High Court · 2012

02. I have heard Mr. GN Sahewalla, learned Senior Counsel for the ap pellant(s) and Mr. N Choudhury, learned counsel for the respondent(s)/plaintiff( s).

03. Title Suit No. 108/1985 from which Title Appeal No. 54/1997 has arisen was instituted by Sri Deoraj Goala, S/o. Lt. Bechai Goala against Sri Ram Charan Goala (since deceased) and three others as principal defendants and one Ramraj Goala his brother as proforma defendant, his pleaded case being that he h ad purchased land measuring 2 bighas 2 chataks covered by dag No. 39/823 and inc luded in patta No. 340 in Mouza Dudpatil Part-IV described in the Schedule-1 to the plaint from one Chatura Dusad on 14.08.1979 by registered deed of sale and h ad obtained physical possession thereof on the very same date. He referred to la nd measuring 5 bighas 12 kathas 2 chataks described in Schedule-2 to the plaint of which the plot in Schedule-1 was a part. He averred that his vendor Chatura D usad had earlier instituted TS No. 171/1969 in the Court of the learned Sadar Mu nsiff No. 2, Silchar against the defendant Nos. 2, 3 & 4 and the defendant No. 1 (in TS No.108/85) as proforma defendant in respect of Schedule 2 land and the s aid suit was disposed of on compromise on 27.01.1978, declaring Chatura Dusad’s right, title interest in and confirmation of possession of the said land. The pl aintiff further averred that, this compromise was based on petition to that effe ct filed by Chatura Dusad and defendant Nos. 2, 3 & 4 herein and the suit was de creed in terms thereof against the defendant Nos. 2, 3 & 4 and ex-parte against Ram Charan Goala, defendant No. 1 herein (proforma defendant in Title Suit No. 1 71/1969), whereafter, Chatura Dusad got his name mutated in respect of the said land in the concerned patta. The plaintiff alleged that Ramcharan Goala, thereaf ter fraudulently and collusively got a deed of surrender executed in his favour by the defendant No. 2, 3 & 4 on 01.02.1978 and also in furtherance of their evi l design, they (defendant Nos. 2, 3 & 4) got the order of mutation in favour of Chatura Dusad set aside by order dated 15.07.1982 rendered by the learned Assam Board of Revenue, Gauhati in Case No. 93 R.A/81. As the defendant Nos. 2, 3 & 4, thereafter took steps to get their names mutated in respect of the said land th e suit was filed against them along with Ramcharan Goala as defendant No. 1. Thi s defendant having expired meanwhile has been substituted by his heirs and legal representatives.

04. The defendant No. 1 in his written statement contested the suit, amongst others on the ground of non-impleadment of Assam Board of Revenue and S tate of Assam as defendants. While admitting that he had not preferred any appea l against the decree passed in TS No. 171/1969, he asserted that the decision of the learned Assam Board of Revenue, Gauhati, cancelling the mutation of the pla intiff was valid. He claimed to be in possession of the suit land and, thus cont ended that the suit be dismissed as no valid title had passed to the plaintiff b y the purchase of the suit land as claimed to have been made by him from Sri Cha tura Dusad.

05. The pleadings in TS No. 32/1985 are identical with the only diff erence being that the plaintiff is Ramraj Goala and the land claimed to have bee n purchased by him from Sri Chatura Dusad is slightly bigger in area than the pl ot purchased by his brother Deoraj Goala, plaintiff in TS. No. 108/1985. Noticea bly, the land described in Schedule-2 to the plaint of which, according to the p laintiff, Chatura Dusad was the absolute owner in possession is the same as in T S No. 108/1985. On the basis of the pleadings of the parties, the following issu

06. es were framed in the suits: - (cid:28)1) Has the plaintiff got cause of action for the suit? 2) In the suit maintainable? 3) In the suit barred by limitation? 4) Is the suit barred under the provision of Assam Land Revenue and Regulation a nd Specific Relief Act? 5) Is the suit bad for defect of parties? 6) Whether the plaintiff has got right, title, interest and possession over the suit land? 7) to what relief, if any, plaintiff is entitled? (cid:29) The parties adduced oral evidence thereafter and also examined witnesses in supp ort of their respective cases. The learned trial Court dismissed the suit. On ap peal preferred by the plaintiff, the decision was reversed and the suit was decr eed.

07. Being aggrieved, the heirs of the defendant No. 1 Sri Behari Goa la, S/o. Lt. Ram Charan Goala original defendant No. 1 is in appeal against both the verdicts.

08. Mr. Sahewalla has emphatically urged that the decree dated 27.01 .1978 being based on a compromise between Chatura Dusad and the contesting defen dant Nos.2, 3 & 4 in TS No. 171/1969, it is not binding on the predecessor in in terest of the appellant. Moreover, as the defendants in that suit continued to b e in possession of the suit land, a factor taken note of by the learned Board of Revenue, Gauhati in canceling the mutation of the respondents/plaintiffs, the l earned Lower Appellate Court grossly erred in law and on facts in decreeing the suit of the plaintiff by overlooking this vital aspect of the controversy. Accor ding to the learned Senior Counsel, as the defendants in the TS No. 171/1969 con tinued to be in possession of the land which at all relevant times was covered b y annual patta, no right, title and interest therein was conveyed to the respond ent/plaintiff vide the sale deed executed by Chatura Dusad. According to Mr. Sah ewalla, even assuming that this sale deed was executed between the parties, it h aving been inked before the annual patta was converted into periodic patta, the same did not confer any right, title and interest in the respondent/plaintiff qu a the suit land. The learned Senior Counsel further argued that the respondent/p laintiff having prayed for confirmation and possession only, in absence of plead ings to demonstrate his dispossession from the suit land, the decree of recovery of possession as well could not have been passed. As the learned Lower Appellat e Court did not address this decisive aspects of the lis, the impugned judgments and orders are ex-facie, illegal and are liable to be set aside, he urged. Mr. Choudhury, in reply, has insisted that the decree dated 27.0 09. 1.1978 having been passed on the basis of compromise against the defendant Nos. 2, 3 & 4 and ex-parte against the predecessor-in-interest of the appellant, it w as binding on all the defendants in that suit and any plea to the contrary is fa llacious and misconceived. Referring to the compromise petition , Ext. 2, the le arned counsel has urged that it would be apparent therefrom that admittedly on t hat date, none of the defendants was in possession of the suit land. Moreover, a s the compromise petition was a part of the decree, Ext. 3, no departure from th is stand of the defendants, at this distant point of time, is tenable. Mr. Choud hury, referred to Schedule-2 to the plaint as well as the relevant Jamabandi per taining to the suit land to demonstrate therefrom that the annual patta of the s ame (suit land) had been duly converted as per the order of the of the concerned revenue authority on 17.05.1979. He, thus elaborated that in view of this date of conversion the sale deed dated 14.08.1979, Ext. 1, unequivocally conveyed the right, title and interest of his vendor, Sri Chatura Dusad therein in favour of the plaintiff(s). According to Mr. Choudhury, the learned Board of Revenue, Ass am by his judgment and order dated 15.07.1982, in essence relegated the parties to the Civil Court to adjudicate their rival claims of title in the suit land to determine their entitlement for mutation thereto on the basis thereof as well a s physical possession.

10. ence on record. I have duly considered the pleadings of the parties and the evid At the time of the admission of the appeals, following substanti al questions of law were framed by this Court vide its order dated 15.12.2001: - RSA No. 131/2001 (cid:28)1) Whether the learned appellate Court below substantially erred in law while h olding that the plaintiff could establish his right, title and interest over the suit land on the basis of Ext. 3 order dated 27.01.1998 and Ext-4 decree in TS No.171/1969 setting aside Ext.-5 deed of surrender executed by the Defendant Nos . 2, 3 and 4 in favour of Defendant No. ? 2) Whether the decree in TS No. 171/1969 having not been executed and the defend ant therein having executed a registered deed of surrender in favour of present defendant No. 1 who is in possession and the plaintiff’s application for mutatio n and the mutation granted in favour of the plaintiff’s predecessor-in-interest having been cancelled and granted in the name of Defendant Nos. 2, 3 and 4 of th e present suit who had executed Ext. 5 Deed of Surrender, the learned Appellate Court below erred in law in deciding Issue No. 6 and 7 ? RSA No. 103/2003 (A) Whether the learned Appellate Court below committed substantial erro r of law in holding that the suit is governed by Article 65 and not by Article 5 8 of the Limitation Act when the plaintiff prayed for declaration that the sale deed in favour of the defendants possess no valid right, title and interest? (cid:29)

11. It is more than apparent from the compromise petition dated 27.0 1.1978, Ext. 2 that the defendant Nos. 2, 3 & 4 had, in categorical terms, conce ded that they were not in possession of the suit land. That the TS No.171/1969 h ad been decreed ex-parte against the defendant No. 1 herein (proforma defendant in TS No. 171/1969) is apparent on the face of the decree dated 27.01.1978, Ext. 3. As the defendant No. 1, the predecessor-in-interest of the appellants did no t prefer any appeal against the same., it is essentially binding on them as well . The Jamabandi referred to by Mr. Choudhury, Ext. 10 bears out the date of conv ersion of the annual patta relating to the suit land to periodic patta on 17.05. 1979. The sale deeds executed by Chatura Dusad in favour of the respondents/plai ntiffs being dated 14.08.1979, the plea against permissibility of such sale base d on the decisions of this Court in Sri Tanuram Keot Vs. Sri Padoram Kalita, (19 83) 1 GLR 497, Mustt. Safatun Nessa & Ors. Vs. Gitarani Kundu & Anr., (1987) 2 G LR 64 and Md. Safiruddin & Ors. Vs. Uruka Kachari & Ors., (1991) 1 GLR 163 relie d upon on behalf of the appellant/defendant is of no avail. A bare perusal of th e judgment and order dated 15.07.1982 of the learned Assam Board of Revenue, Gau hati in Case No. 93 R.A/1981 reveals that eventually, thereby, the parties were required to obtain declaration by the Civil Court as to their entitlement to mut ation on the basis of their title and physical possession.

12. On a conjoint reading of the evidence on record and the admissio n of want of possession of the suit land in the compromise petition, Ext. 2, bel ies the authenticity of the deed of surrender said to have been executed by the defendant Nos. 2, 3 & 4 in favour of the defendant No. 1.

13. I have carefully perused the judgments and orders impugned in th e present appeals and am of the opinion that the analysis of the pleadings and t he evidence on record as made therein cannot be repudiated to be absurd, irratio nal or in defiance of logic. The findings on record in the impugned judgment and orders are backed by the materials on record and in the exercise of this Court’ s jurisdiction under section 100 of the Code of Civil Procedure, no interference therewith is called for. The appeals therefore lack in merit and are, according ly, dismissed. No costs.