AI Structured Summary
Not yet generated for this judgment
Judgment
This second appeal is by the plaintiff, against the judgment and decree dated 14.06.2007 passed by the learned Civil Judge, Karimganj in Title
Appeal No. 13/1998, whereby, the learned appellate court reversing the judgment of the Munsiff, passed in Title Suit No. 97/1989 dismissed the suit of
the plaintiff.
Brief facts leading to the present second appeal were that the plaintiff filed Title Suit No. 97/1989 for declaration of right, title, confirmation of
possession and permanent injunction. The case of the plaintiff was that the suit land originally belonged to Bharat Samitee Limited. The said Bharat
Samitee Limited by executing a deed of lease on 11.08.1955 leased out the land described in Schedule-1 of the plaint to one Jagat Choudhury, who
had been possessing the said land as jotdar. Subsequently, the plaintiff purchased the jot right over schedule-1 land from said Jagat Choudhury by
registered deed on 18.03.1969 and had been possessing the same without any interference. The defendants No. 1 & 2 had a plot of land adjacent to
the land of the plaintiff. During the enforcement of State acquisition of Jamindary’s Act, the lands were surveyed and during such survey
operation, the land of the plaintiff described in schedule-1 of the plaint, which was covered by Taluk No. 15796/211 and the contiguous land of the
defendants No. 1 & 2 were surveyed as Dag No. 113 & 114 of Khatian No. 4 and Dag No. 69 of Khatian No. 25 of Kalinga Nagar. However, name
of the proforma defendants No. 3, 4 & 5, who were strangers to the land wrongly recorded in respect of the said land.
The plaintiff and the principal defendants No. 1 & 2 approached the Sub-Deputy Collector for correction of the record and in the said proceeding,
there was an amicable settlement between the plaintiff and defendants No. 1 & 2. As per the said amicable settlement, .60 decimol land on western
side of Dag No. 69, entire 93 decimol of Dag No. 113 and 1.1 are land on the eastern side of Dag No. 114 fell in the share of the plaintiff. 60.70
decimol of the land of the eastern part of Dag No. 69 and 1.65 acre in the western side of Dag No. 114 fell in the share of the defendants. On the
basis of the said partition, again a mutation case was filed for correction of the record in respect of Dag No. 69, 113 & 114 and after hearing the
parties, the concerned settlement officer granted mutation of the plaintiff in respect of Dag No. 113 & 114 and rejected the claim of the plaintiff in
respect of western part of Dag No. 69. Taking advantage of the said order of the settlement officer in the mutation proceeding, the defendants No. 1
& 2 were threatening the plaintiff to disposes from the suit land covered by Dag No. 69, described in schedule-2 of the plaint and as such, the plaintiff
instituted the suit for declaration of right, title and interest and permanent injunction.
The pleaded case of the defendants were that the Bharat Samitee Limited, which was the original owner of the land, transferred the land of Dag
No. 69, 113 & 114 to one Tarani Mohan Deb, predecessor of the defendants No. 3 & 4 and proforma defendant No. 5 Abani Mohan Deb. On the
basis of such purchase, Abani Mohan Deb and Tarani Mohan Deb were possessing the suit land and they also sold 4 katha of land of Dag No. 113 &
114 to one Brojendra Malakar. Proforma defendants No. 3 & 4 being the legal heirs of Tarani Mohan Deb and proforma defendant No. 5 had been
possessing the suit land of Dag No. 69 having right, title and interest thereon. The defendants, further stated that the land of Dag No. 69 was never
possessed by the vendor of the plaintiff Jagat Choudhury. Further case of the defendants were that the proforma defendants No. 3, 4 & 5 sold the suit
land of Dag No. 69 to the main defendants by registered deed No. 692 and delivered possession to the defendants and the plaintiff never possessed
the land of Dag No. 69 nor they have title over there.
On the basis of the above pleading of the parties, learned Munsiff framed the following issues:
(i) Whether there is any cause of action for the suit?
(ii) Whether the suit is bad for defect of the parties?
(iii) whether the suit is not properly valued?
(iv) whether the plaintiffs have rights, title, interest and possession over the suit land?
(v) Any relief/reliefs?â€
Both the parties adduced evidence and the learned Munsiff after hearing the parties decreed the suit. Aggrieved, the defendants preferred an
appeal and the learned Civil Judge, by the impugned judgment and decree allowed the appeal.
Aggrieved by the judgment and decree of the first appellate court, the plaintiff preferred the instant appeal, which was admitted to be heard on the
following substantial questions of law.
“i) Whether the findings of the appellate court is perverse for not properly appreciating Ext.2, qua to Ext.3?
ii) Whether in the facts and circumstances of the case the findings of the first appellate court as regards Exbt. No. 1 and 2 is correct?
iii) Whether the first appellate court has misdirected itself in adjudicating upon the matter on the basis that the appellant/plaintiff had only sought for
landholders possessory rights and perpetual injunction and not any title over the suit land?â€
Learned Sr. Counsel Mr. N. Dhar for the appellant and learned counsel Ms. R. Choudhury, for the respondent were heard.
Both the courts below were of unanimous finding that the plaintiffs were in possession of the suit land. The claim of defendants over the suit
property by right of purchase were also rejected by both the courts below on the basis of the evidence adduced by the parties.
Learned Sr. Counsel for the appellant Mr. N. Dhar, relying on a decision of the Apex Court in Pratap Rai N Kothari Vs. John Braganza reported in
(1994) 4 SCC 403, contended that when the learned appellate court came to the finding that plaintiff was in possession of the suit land for long time
and defendant’s claim of title over the suit land was rejected, learned appellate court committed error by dismissing the suit of the plaintiff,
inasmuch as, the plaintiff was entitled to a relief of injunction, even on the basis of continuous possession of the land to protect his possession from a
third party having no title better than him.
Contention of Ms. R. Choudhury, learned counsel for the respondent was that the plaintiff having filed the suit for declaration of right, title and
interest, plaintiff could not get a decree of declaration without proving his title, and could not rely on the weakness of the defendant’s case. It was
also contended by Ms. Choudhury, that even if the plaintiff purchased the suit land from Jagat Choudhury, Jagat Choudhury did not have any title over
the suit land and as such the plaintiff could not have acquired title over the suit land from Jagat Choudhury. Admitted position was that Bharat Samitee
Limited was original owner of the suit land. The plaintiff proved Ext.1, the deed executed by Bharat Samitee Limited in favour of Jagat Choudhury
and plaintiff claimed to have purchased the suit land from Jagat Choudhury vide Ext.5. Though learned Munsiff having elaborately discussed the
question of title came to the finding with regard to title of the plaintiff, learned first appellant court reversed such finding and held that title of the
plaintiff over the suit land was not proved.
Learned first appellate court while coming to a concurrent finding with the Trial Court, that the plaintiffs were in possession of the suit land, held that
the land described in Ext.1 and the sale deed of the plaintiff, Ext.5 were not the same as the boundary of the land given in Ext.1 and Ext.5 were
different. Learned first appellate court held upon appreciation of the Ext.1 & Ext.5, that the suit land falls on the western side of Katlicherra whereas
the land described in schedule-1 Katlicherra was shown on the northern side. On the basis of such finding with regard to boundary or identity of the
land, learned first appellate court held that the plaintiff failed to establish that the suit land described in Schedule-I of the plaint (i.e. land purchased by
Ext.5) and the land described in Ext.1 were the same. Apparently, the claim of the plaintiffs over the suit land (schedule-II) covered by Dag No. 69 on
the basis of amicable settlement as per Ext.3 was accepted by the learned appellate court. However, dismissed the suit purportedly noticing a
discrepancy with regard to boundary of the suit land. According to the plaintiff, land described in schedule-I was the land purchased by the vendor of
the plaintiff Jagat Choudhury vide Ext.1 and the plaintiff purchased jot right of the said land from Jagat Choudhury vide Ext.5. Learned counsel Mr.
Dhar contended that finding of the learned first appellate court regarding boundary of the schedule-I land was perverse as the learned first appellate
court failed to appreciate the Ext.1 and Ext.5.
Learned first appellate court came to a finding on appreciating the Ext.1 and Ext.5 as well as the schedule-I of the plaint which pertains to the land
described in Ext.5 sale deed, that there was discrepancies in description of the land. Learned first appellate court held that river/spring Katlicherra
was shown as eastern boundary as per schedule in Ext.1, whereas, said Katlicherra was shown as northern boundary in schedule of Ext.5. The
northern boundary of the land described in Ext.5, sale deed shows that both Katlicherra and the road where on the northern side. As per the boundary
described in schedule of Ext.5, Katlicherra was on the eastern portion of the northern boundary and western portion of the northern boundary was
road. Therefore, both these deeds Ext.1 and Ext.5 being the sole basis of the title of the plaintiff clearly shows that there was no discrepancy with
regard to the northern boundary of the land. Therefore finding of the learned first appellate court with regard to boundary of the land of schedule-I or
that of the land involved in Ext.1 & Ext.5 was apparently perverse, being against the documentary evidence. In view of the above perverse finding
with regard to the boundary, the learned appellate court appears to have failed to appreciate the sale deed in favour of the plaintiff and was
misdirected in reading and appreciating the deeds Ext.1 & Ext.5. The Ext.1 & Ext.5 were duly proved and validity of these sale deeds were not
challenged by the defendants.
The plea of the defendants was that the suit land (of dag No. 69) was purchased by their predecessors, but such plea could not be substantiated and
both the courts rejected such plea. The plea of the plaintiff that a portion of the land covered by Dag No. 69 fell in the share of the plaintiff as per
compromise and evidence of the plaintiff to that effect was accepted by both the courts below. Ext.2 was a deed by which a portion of the land
covered by Dag No. 69 was gifted by the plaintiff to the Government and these facts was not disputed nor any evidence was brought on record to
challenge the execution of Ext.2. In view of the claim of the plaintiff for title, Ext.2 does not appear to have much relevance, inasmuch as, the land of
Ext.2 was not included in the suit land. In any view of the matter, both the courts below having come to the concurrent finding, that the plaintiffs were
in possession of the suit land for long time and the plea of the defendant claiming title over the suit land having been rejected by both the courts below,
there was no scope for dismissing the suit, inasmuch as, atleast plaintiff was entitled to protect his possession by injunction as the defendant failed to
prove any better title.
It is also pertinent to mention, that identity of the suit land was never disputed by the defendants and it was not the case of any of the parties.
Though in appropriate case court can mould the decree, it is not permissible for the court to make out a third case not pleaded by the parties. When
the documentary evidence Ext.1, Ext.5 & Ext.3 were accepted by both the courts, the suit of the plaintiff in the facts and circumstances could not
have been dismissed on a finding with regard to identity of the land, which was apparently perverse as indicated above. The substantial questions of
law are answered accordingly.
When both the courts came the concurrent finding that the plaintiffs were in possession of the suit land and the title of the plaintiff also was found
established by documentary evidence, the impugned judgment and decree passed by the learned Munsiff could not have been overturned. Accordingly,
the second appeal is allowed and the judgment and decree passed by learned Munsiff is restored. Decree to be prepared accordingly.
Send down the LCR.