High Court
Case Details
RSA 43/2012 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
This appeal by the defendant is directed against the judgment and decree dated 23.12.2010 passed by the learned Civil Judge, Barpeta, in Title Appeal No .29/2010, dismissing the appeal preferred by the present appellant by upholding the judgment and decree dated 05.06.2010 passed by the learned Munsiff No.1, Bar peta, in Title Suit No.258/2008, whereby and whereunder the suit filed by the pr esent respondent as plaintiff has been decreed. The respondent as plaintiff instituted the said suit for declaration of right, title and interest over the land measuring 4 kathas more fully described in Schedule-A to the plaint and also for recovery of khas possession by evicting the defendant from 1 katha land (B schedule land), which forms part of A schedu le land, contending inter alia that the land measuring 4 kathas (Schedule-A) was purchased by him by a registered deed of sale dated 09.12.1994 (Ext.-1) from on e Rajendra Deuri, pursuant to which the plaintiff was put into possession. It ha s further been pleaded that the defendant, who is on the eastern boundary of the said land, started creating trouble in peaceful possession of the plaintiff’s l and, for which the demarcation proceeding was initiated at the instance of the p laintiff and demarcation was done on 12.06.2003 and thereafter the defendant ini tially on 05.02.2008 tried to encroach the plaintiff’s land and was successful i n encroaching 1 katha of land, described in Schedule-B to the plaint, which nece ssitated filing of the suit. The defendant on receipt of the summons entered appearance and filed wri tten statement contending inter alia that the suit is not maintainable for non-j oinder of necessary party, namely, brother of the defendant, Amarendra Das, in w hose favour the settlement was granted by the Govt. of Assam in respect of 1 big ha 5 lechas of land in Dag No.709 and that though the plaintiff purchased 4 kath as of land in Dag No.708, he was, in fact, in possession of land measuring 3 kat has, as 1 katha of land on the western boundary of the plaintiff’s land has been used for construction of a road. According to the defendant, he along with his brother are in possession of the land in Dag No.709 and never encroached upon th e land in Dag No.708. Based on the pleadings of the parties, the Trial Court framed the follow Whether the suit is bad for non-joinder of necessary parties? Whether the plaintiff has right, title and interest over the schedule A Whether the defendant has right, title and interest over the schedule B ing issues for determination:- (i) (ii) land of the plaintiff? (iii) land by way of adverse possession? (iv) (v) (vi) Whether the defendant is liable to be evicted from the schedule B land? Whether the plaintiff is entitled for the decree as prayed for? To what other relief or reliefs the parties are entitled for? Both the plaintiff and the defendant examined their respective witnesses in support of their respective claims and proved a number of documents. The wit nesses examined by the parties were cross-examined by the respective parties. During pendency of the suit, the Trial Court appointed an Amin Commissio n to find out whether the defendant has encroached any land belonging to the pla intiff in Dag No.708. The Amin Commissioner has submitted his report on 22.03.20 10 on the basis of the inspection and measurement of land done on 02.02.2010 by the revenue staff in presence of the plaintiff, defendant and their respective l earned counsel. Based on the evidence adduced by the parties, both oral and documentary, the Trial Court decreed the suit of the plaintiff, which though has been put to challenge by the defendant in the aforesaid appeal, the same has been dismissed by affirming the judgment and decree passed by the Trial Court. Hence the prese nt appeal.
Legal Reasoning
I have heard Mr. H.K. Deka, learned Sr. counsel for the appellant/defend ant and Mr. A. Barkataki, the learned counsel appearing for the respondent/plain tiff. It has been contended by Mr. Deka, the learned Sr. counsel for the appel lant that since the dispute between the parties is relating to the eastern bound ary of the plaintiff’s land, which is the western boundary of the defendant’s la nd, the Amin Commission’s report assumes importance, on the basis of which the s uit has been decided. It has been contended that the Amin Commission’s report (E xt.-5), however, cannot be the basis for decreeing the suit of the plaintiff as the Amin Commissioner did not himself measure the land and also did not measure the land in Dag No.709 to ascertain as to whether the defendant has the land mea suring 1 bigha 5 lechas in the said Dag. It has also been submitted that the Cou rts below did not take into consideration the fact that 19 pillars were raised b y the defendant after the settlement of the aforesaid land in Dag No.709, while decreeing the suit of the plaintiff. Further submission of the learned Sr. couns el is that the suit of the plaintiff is bad for non-joinder of necessary party, namely, brother of the defendant, Amarendra Das, who is the joint settlement hol der in respect of the land measuring 1 bigha 5 lechas covered by Dag No.709. Mr. Barkataki, the learned counsel appearing for the respondent, on the other hand, has submitted that it is apparent from the Amin Commission’s report (Ext.-5) that the measurement was done in presence of the Amin Commission by the Revenue staff and also in presence of the plaintiff and the defendant, apart fr om the respective learned counsel representing the parties. It has also been sub mitted that the said report further reveals that the measurement not only of Dag No.708 but also of Dag No.709 was done and it has been found that the land meas uring 1 katha in Dag No.708 has been encroached by the defendant and the land me asuring 1 lecha in Dag No.709 is in possession of the plaintiff. The learned cou nsel further submits that 19 pillars, in fact, were raised by the plaintiff afte r the order was passed by the Revenue authority in the demarcation proceeding an d since the measurement was done on the field by the Amin Commission appointed b y the Court, who has not been cross-examined by the defendant, the Court below d id not commit any illegality in decreeing the suit of the plaintiff. Relating to the submission with regards to the non-joinder of necessary party, it has been submitted that Amarendra Das is not the recorded pattadar and that as it is the case of the plaintiff that the defendant only encroached the land of the plainti ff, the suit as against the defendant for his eviction from the land in Dag No.7 08, which belongs to the plaintiff, is maintainable. I have considered the submissions advanced by the learned counsel for th e parties and also perused the judgments and decrees passed by the Courts below. Both the Courts below have recorded the finding of fact that the defenda nt has encroached 1 katha of land in Dag No.708 belonging to the plaintiff. Such finding has been recorded based on the Amin Commission’s report dated 22.03.201 0 (Ext.-5). Perusal of the said report reveals that the inspection and measureme nt was done by the Revenue staff, in presence of the Amin Commission, the plaint iff and the defendant as well as the learned counsel representing them, on 02.02 .2010. The said report further reveals that not only the land covered by Dag No. 708 but also the land covered by Dag No.709 has been measured and it was found t hat the defendant is in possession of 1 katha of land covered by Dag No.708 belo nging to the plaintiff and the plaintiff is occupying the land measuring 1 lecha covered by Dag No.709 belonging to the defendant. The said report has been mark ed as exhibit and though the Amin Commissioner was examined, he has not been cro ss-examined by the defendant. The Courts below having accepted the said report, which has not been obj ected to by the defendant, has, therefore, rightly held that the defendant is en croaching the land measuring 1 katha in Dag No.708 belonging to the plaintiff. T he dispute relating to raising of pillars, therefore, has no relevance. The contention of the defendant that the suit is bad for non-joinder of necessary party, namely, brother of the defendant, Amarendra Das, also cannot be accepted, as the plaintiff’s case is that it is the defendant alone who has enc roached the plaintiff’s land in Dag No.708, which was found to be correct by the Courts below. The plaintiff never claims any land in Dag No.709.
Decision
In view of the aforesaid discussion, I do not find involvement of any su bstantial question of law to admit the appeal and hence the appeal is dismissed. No costs. Since the plaintiff has also placed reliance on the Ext.-5 Amin Commissi on’s report, which has been accepted by both the Courts below, which reveals tha t the plaintiff is in possession of 1 lecha of land covered by Dag No.709 belong ing to the defendant, the plaintiff shall give up the possession in respect of t he said 1 lecha of land in favour of the defendant.