High Court
Case Details
RSA 50/2003 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL) This appeal by the plaintiffs is directed against the judgment and decre e dated 31.07.2002 passed by the learned Civil Judge (Sr. Division), Morigaon, i n Title Appeal No.11/2001, dismissing the appeal preferred by the present appell ants and affirming the judgment and decree dated 10.08.2001 passed by the learne d Civil Judge (Jr. Division) No.1, Morigaon, in Title Suit No.21/1993, whereby a nd whereunder the suit of the present appellants/plaintiffs has been dismissed.
Legal Reasoning
The predecessor-in-interest of the present appellants, namely, Sadhan Ch 2. . Hazarika, instituted Title Suit No.8/1990 in the Court of the learned Civil Ju dge, Nagaon, which suit was subsequently transferred to the Court of the learned Civil Judge (Jr. Division) No.1, Morigaon, on creation of Morigaon Judicial Dis trict and consequently the suit has been renumbered as Title Suit No.21/1993, pr aying for the decree declaring his right, title and interest over the land measu ring 1 bigha 16‰ lechas, being half of the Schedule-(a) land and also for evicti on of the defendant Nos.1 to 4, contending inter alia that originally land measu ring 2 bighas 1 katha 13 lechas, described in Schedule-(a) to the plaint, belong ed to Matia Nadial, along with whose name, the name of Shri Rameswar Bar Hazarik a was mutated in the revenue records on 08.01.1900 in respect of half of the Sch edule-(a) land and hence Rameswar had acquired right, title and interest in resp ect of half of the Schedule-(a) land. It has further been contended that after t he death of Rameswar the said land devolved on Madan, his son, after whose death the same devolved on his son Sadhan and thereafter on the plaintiff, she being the widow of Sadhan. It has also been pleaded that taking advantage of absence o f Sadhan, the original plaintiff, Gopal, son of Dayal, who is the son of Matia N adial, transferred 2 kathas of land in favour of Balaram, whose heirs in turn so ld the same in favour of defendant No.4. It has also been pleaded that Atul (def endant No.1), who claims to be the son of Gopal also sold 1 katha 17‰ lechas of land in favour of defendant No.2. Further pleaded case is that Hazarika Kaibarta (proforma defendant No.5), who is the grand son of Matia Nadial through Gandhak , son of Matia, sold 2 kathas 18 lechas of land in favour of defendant No.2. The plaintiff claims that since he is the successor-in-interest of Rameswar Bar Haz arika, he has the right, title and interest in respect of half of the Schedule-( a) land and hence the original plaintiff claims such right apart from eviction. The plaintiff, however, did not ask for cancellation of the sale deeds executed by Gopal, Atul (defendant No.1) and also Hazarika Kaibarta (proforma defendant N o.5). During pendency of the suit the original plaintiff Sadhan died and in his place the present appellants were substituted being his heirs and the right to s ue having survived on them. 3. The defendant Nos.1 to 4 contested the suit by filing their respective w ritten statements. While the defendant Nos.1 and 3 filed the joint written state ment, separate written statements were filed by defendant Nos.2 and 4. The defen dants have denied the claim of the plaintiff for right, title and interest over the suit land. It has also been contended that the defendant No.1 being the succ essor-in-interest of Matia Nadial, who admittedly is the owner and possessor of the Schedule-(a) land, rightly sold the land in favour of defendant No.3. Simila rly, it has also been pleaded that Gopal, the father of Atul, also rightly sold 2 kathas of land in favour of defendant No.4. Further pleaded case in the writte n statements is that Hazarika Kaibarta (proforma defendant No.5) being another s uccessor-in-interest of Matia Nadial also rightly sold 2 kathas 18 lechas of lan d in favour of the defendant No.2. Based on the pleadings of the parties, the Trial Court framed the follow 4. ing issues for determination:- (i) (ii) Whether there is cause of action for the suit? Whether the suit is maintainable in its present form? (iii) (iv) (v) the suit land? (vi) (vii) Whether the suit is barred by law of limitation? Whether the suit becomes bad for non-joinder of necessary parties? Whether the defendants have acquired any right, title and interest over Whether the plaintiffs are entitled to get the decree as prayed for? To what relief/reliefs the parties are entitled to? The Trial Court based on the evidence adduced by the parties dismissed t 5. he suit of the plaintiff by holding that the plaintiffs could not prove the titl e and that based on Exts.-1, 2 and 3, copies of the Jamabandi, no right, title a nd interest of the plaintiff could be decreed. The Trial Court has also held tha t the defendant Nos.2, 3 and 4 have acquired right, title and interest by way of purchase. Being aggrieved, the plaintiff preferred the aforesaid appeal, which has also been dismissed by the first appellate Court. Hence the present appeal. Whether the learned courts below has framed the issues on the basis of t The appeal was admitted for hearing vide order dated 18.05.2004 on the f 6. ollowing substantial questions of law:- (i) he pleadings made by the parties or not? (ii) Whether the land in possession of a co-pattadar/co-owner is adverse to o ther co-pattadar/co-owner in absence of clear pleading and evidence made in the case?
Legal Reasoning
7. I have heard Mr. P. Mahanta, learned counsel for the appellants and Mr. P.J. Saikia as well as Mr. B.M. Choudhury, the learned counsel appearing for the respondents. 8. Mr. Mahanta, the learned counsel referring to the judgments and decrees passed by the Courts below has submitted that since the plaintiff could prove th e title in respect of half of the Schedule-(a) land i.e. in respect of the land measuring 1 bigha 16‰ lechas, by proving the Jamabandi marked as Exts.-1, 2 and 3, the Courts below ought not to have refused to pass the decree declaring right , title and interest of the plaintiff and also for recovery of khas possession a s the successor-in-interest of Matia Nadial did not have any right to transfer t he land in favour of anyone, which belonged to Rameswar Bar Hazarika. It has als o been submitted that in the absence of any counter claim by the defendants, the Courts below, in any case, ought not to have declared right, title and interest of the defendants as has been declared while answering the issue No.5. 9. On the other hand, the learned counsel appearing for the respondents, su pporting the judgments and decrees passed by the Courts below, have submitted th at though the plaintiff claimed right, title and interest over 1 bigha 16‰ lecha s of land, he could not prove the same. It has also been submitted that mere rec ording of the name of Rameswar Bar Hazarika in the revenue record, which are mar ked as Exts.-1, 2 and 3, would not confer title on Rameswar, in the absence of p roof of acquisition of title and hence the plaintiff’s suit, who claimed to be t he successor-in-interest of Rameswar, has rightly been dismissed. It has also be en submitted that though while answering issue No.5, it has been held that the d efendants have right, title and interest in respect of the suit land, no decree declaring their right, however, has been passed as is evident from the judgments and decrees passed by the Courts below. 10. I have considered the submissions advanced by the learned counsel for th e parties and also perused the judgments and decrees passed by both the Courts b elow. 11. Though the plaintiff has claimed that his predecessor-in-interest Ramesw ar Bar Hazarika was the owner of 1 bigha 16‰ lechas of land, which is half of th e Schedule-(a) land, the plaintiff could not prove the title deed. The plaintiff in support of the claim of right, title and interest has proved only the Jamaba ndi i.e. the revenue records, where the name of Rameswar Bar Hazarika was mutate d in respect of half of the Schedule-(a) land. The entry of the name of a person in the revenue record cannot be the basis for declaration of the right, title a nd interest, unless how he acquired the title is proved. The plaintiff has not p leaded that how Rameswar Bar Hazarika has acquired title in respect of half of t he Schedule-(a) land, which admittedly belonged to Matia Nadial. That being the position, the Courts below have rightly held that the plaintiff could not prove right, title and interest in respect of the suit land. It, however, appears from the finding recorded by the Trial Court against issue No.5 that the learned Mun siff while discussing the said evidence in respect of the said issue, has held t hat the defendants have the right, title and interest. Be that as it may, no dec ree declaring the right, title and interest of defendants has been passed, which in any case cannot be passed in the absence of any counter claim. 12. al. Hence the appeal stands dismissed. In view of the aforesaid discussion, I do not find any merit in the appe 13. 14. The parties are directed to bear their own cost. Registry is directed to send down the records.