Jahera Khatun vs Rabindra Sarkar

[1] This appeal is filed by the original plaintiff. At the time of appeal, following substantial question of law was framed :

"Whether the judgment and decree passed by the appellate court suffers from perversity for not considering the evidence and materials on record in the proper perspective?

[2] Brief facts are as under.

Case of the plaintiff is that she had purchased a plot of land situated in village Radhakishorepur under a registered deed dated 09.06.1992 from one Badsha Miah Hazi for which necessary entries were made in the revenue records. Over a period of time out of such land the plaintiff divested portions through sales and gift. She retained 0.12 acres out of such land carrying Khatian No.1304, Plot No.3379(R.S) and 1224(C.S). According to her, the defendant had illegally entered the said land (referred to as the suit land) on 02.01.2012 and taken away the paddy crop. She was the owner and in exclusive possession of the land which she was cultivating and earning regular income. She had been dispossessed by the said defendant. She, therefore, prayed for a declaration of right, title and interest of the suit land for a direction for recovery of the possession from the defendant after evicting him and for a perpetual injunction restraining the defendant from disturbing her peaceful possession of the suit land.

[3] The trial Court raised following issues :

"1. Whether the suit is maintainable in its present form and nature?

Whether the plaintiff is entitled to get a decree of declaration over the suit land regarding her right, title and interest against the defendant?

Whether plaintiff is entitled to recover the possession of the suit land by evicting the defendant therefrom?

Whether plaintiff is entitled to get a consequential relief of perpetual injunction restraining the defendant not to disturb the peaceful possession over the suit land?

Whether plaintiff is entitled to get the mense profit of the suit land from the defendant till recovery of the possession?

Whether the plaintiff is entitled to get any other relief /reliefs as prayed for?"

[4] Issues No.1 to 4 were answered in favour of the plaintiff. Issue No.5 concerning mense profit was answered against her. Resultantly, decree was passed declaring the plaintiff's right, title and interest over the suit land. She was held entitled to recover the possession after evicting the defendant who was also perpetually restrained from entering the suit land or to disturb the possession of the plaintiff.

[5] The defendant filed the written statement in which he did not dispute the plaintiff's ownership of the suit land or her right to possess and enjoy the same. His stand however was that he had not trespassed in the suit land. He was only an owner of adjoining land and he continued to enjoy the possession thereof.

[6] Defendant filed appeal before the trial Court. The appeal was allowed. By the impugned judgment dated 19.09.2016, the judgment and decree of the trial Court was set aside. Such judgment principally based on the conclusions of the trial Court that the plaintiff failed to prove that she was dispossessed by the defendant. This was on the basis of appreciation of the deposition of the plaintiff in which the learned appellate Judge noticed certain contradictions. It was observed that at one stage the plaintiff had claimed that the defendant had merely entered on a certain date and harvest to the paddy crop and retained the possession whereas in other portions she had stated that she continuous to be in possession of the suit land. He was also of the opinion that any perpetual injunction for future possible trespass could not have been granted.

[7] In my opinion, the appellate Court committed an error in reversing the judgment and decree of the trial Court. The issues before the Courts were very simple. The plaintiff claimed title and possession of the suit land which claim the defendant never disputed. His only stand was that he had never encroached from the plaintiff's land. On the basis of the evidence on record of preponderance of probability the trial Court believed that the defendant had illegally possessed the suit land. The appellate Court reversed such finding without sufficient reasons. More importantly, when the appellate Court did not discard the plaintiff's assertion that on a particular date the defendant had illegally entered her land and taken away paddy crop, ground for perpetual injunction was in any case made out.

[8] If the appellate Court had any doubt, perhaps the better course would have been to ascertain the ground realities through appointment of the Court Commissioner. In any case, the decree that the plaintiff claims, in facts of the present case is quite innocuous, as long as the same is executed bona fide. The plaintiff has made three claims. Firstly, for a declaration that she is the owner and entitled to possession of the suit land, that the defendant who is an illegal possession thereof be evicted and the plaintiff if put in possession thereof and lastly that the defendant be perpetually injuncted from disturbing the possession of the plaintiff. The defendant does not claim any right, title or interest over the suit land and, therefore, none of the declarations or granting of prayers should hurt the defendant. While executing the decree of a trial Court which I propose to reinstate, the Court Executor would ensure that proper measurements and boundaries of the suit land and the adjoining land of the defendant are taken. Only if it is found that the defendant has transgressed in any portion of the plaintiff's land, the question of his eviction pursuing to such decree would arise.

[9] In the result, appeal is allowed. Question is answered in favour of the appellant. Judgment of the appellate Court is set aside and that of the trial Court is restored.

[10] Appeal is disposed of accordingly. Pending application(s), if any, also stands disposed of.