High Court
Case Details
RSA 166/2012 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
This appeal by the plaintiffs is directed against the judgment and decree dated 16.8.2011 passed by the learned Additional District Judge, Kamrup, Guwahati in T itle Appeal No. 9/2006 whereby and whereunder the judgment and decree dated 1.12 .2005 passed by the learned Civil Judge, (Sr. Division) No. 3, Kamrup Guwahati i n Title Suit No. 20/2002 has been set aside by allowing the appeal. The appellants, as plaintiffs, instituted the aforesaid suit for declaration of right, title and interest and recovery of khas possession in respect of the land described in the schedule, inter alia contending that the plaintiffs and the de fendants and the grandson of Manjur Phat, who had two sons namely Tarun Baishya and Patiram Baishya, certain property belonging to him, during the lifetime of M anjur Phat, was amicably partitioned between the two sons and certain property remained unpartitioned which they possessed jointly. According to the plaintiffs the suit land measuring 10.5. lechas, is the partiti oned property which fell in the share of plaintiffs, father Tarun Baishya. It ha s further been pleaded that on 22.1.2002 the defendants with the help of some ot her persons trespassed into the suit land and erected the boundary fencing and t hereafter constructed the boundary wall for which the plaintiffs have filed the suit for declaration of their right, title and interest and recovery of khas pos session in respect of the said land. The defendant Nos. 1, 2 and 3 contested the suit by filing joint written stateme nt denying the claim of the plaintiff that they are grandsons of Manjur Phat. Ac cording to them the suit land is self acquired property of Manjur Phat. It has b een pleaded that the father of the defendant Patiram son of Manjur Phat had purc hased the land from the owner namely Tarun Baishya, sons of Gobindo and by virtu e of which Patiram Biashya became the owner of the suit property. It was further contended that the plaintiff made an attempt to forcibly occupy the suit land b y ousting the chowkidar from the house constructed by the defendants. On the basis of the pleadings of the parties the trial court framed the followin g issues for determination: - (cid:28)1. Whether the suit is barred by limitation? 2. Whether the amicably settled suit properties became the share of Tarun Baishy a? 3. Whether the suit property was the self acquired property of Manjur Phat? 4. Whether the defendants possess the suit property by the right of purchase? 5. Whether the defendants illegally made permanent structure over the suit land? 6. Whether the plaintiff is entitled to get the decree as prayed for? 7. What other relief/reliefs the parties are entitled? (cid:29) The trial court based on the evidence adduced by the parties decreed the suit of the plaintiffs. Being aggrieved the defendants filed the aforesaid appeal, which has been allowe d by the aforesaid judgment and decree by setting aside the judgment and decreed passed by the trial court. Hence the present appeal. Referring to Ext. Ka sale deed executed by Tarun Baishya, son of Govindo in favour of Patiram Baishya, son of Manjur Phat, it has been submitted by the learned senior counsel for the appellants that it appears from the sched ule to the said sale deed that what was transferred was the land measuring 10.5 lechas in Dag No. 666 of Patta No. 134 and not the land covered by Dag No. 1743 in Patta 134 and as such the first appellate court ought not have allowed the ap peal preferred by the defendants by holding that that Tarun Baishya son of Govin do has lost title in respect of the land measuring 10.5 lechas, when the plainti ffs’ claim is not in respect of the land covered by Dag 666. The learned senior counsel further submits that the first appellate court was not justified in reco rding the finding that Tarun Baishya, son of Govindo and Tarun Baishya son of Ma njur Phat is not one and the same person. Per contra, Dr. Lal, learned counsel appearing for the responden ts has submitted that it is evident that the plaintiffs have claimed the right, title and interest and recovery of khas possession in respect of the land measur ing 10.5 lechas contending that their grandfather is Manjur Phat, which however, the plaintiffs could not proved. Referring to Ext. 1, revenue record, proved by the plaintiffs it has also been submitted that the name of Tarun Baishya, son o f Govindo appears in the revenue record and not the name of Tarun Baishya, son o f Manjur Phat and hence the trial court has rightly held that Tarun Baishya son of Manjur Phat cannot claim right in respect of the suit land. I have considered the submission advanced by the learned counsel for the parties . The claim of the plaintiffs that their father Tarun Baishya and the defendants’ father Patiram Baishya are brothers, being sons of Manjur Phat, has been denied by the defendants. According to the defendants, plaintiffs’ father Tarun Baishya is not the brother of Patiram Baishya. The plaintiffs, therefore, have to prove that Tarun Baishya and Patiram Baishya are both the sons of Manjur Phat. The re venue record (Ext. 1) proved by the plaintiffs does not reveal the name of Tarun Baishya son of Manjur Phat but it contains the name of Tarun Baishya son of Gov indo. At the same time Ext. 1 reveals the name of Patiram Baishya son of Manjur Phat. No evidence has been laid by the plaintiffs to prove that Manjur and Govin do is one and the same person. That being the position, the first appellate court has rightly held that the pla intiffs claim for right, title and interest in respect of the suit land, claimin g to be grandsons of Manjur Phat, cannot be accepted. The plaintiffs have instituted the suit and there being no counter claim filed b y the defendants, based on Ext. ka sale deed, the plaintiffs right, title over t he suit land in view of the above cannot be decreed even if the land covered by Dag No. 666 of Patta No. 134 is not the suit land. In view of the above, I do not find involvement of any substantial question of l aw to admit the appeal. The appeal stands dismissed. No cost.