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Judgment
This appeal by the plaintiff is directed against the judgment and decree dated 24th February, 2000 passed by the learned District Judge, Cachar at Silchar in Title Appeal No.16/1996, whereby and whereunder the appeal preferred by the predecessorininterest of the present appellants has been dismissed by upholding the judgment and decree dated 31st July, 1996 passed by the learned Assistant District Judge, No.2, Cachar at Silchar in Title Suit No.110/1988.
[2] The plaintiff instituted the aforesaid suit for declaration of right, title and interest and confirmation of possession in respect of Schedule2 land measuring 2 Bighas 14 Kathas 6 Chataks, morefully described in the said schedule, and also for permanent injunction with an alternative prayer for partition. The case of the plaintiff as projected in the plaint is that after the death of the original owner Promotha Krishna Sarma, the land measuring 5 Bighas 8 Kathas 6 Chataks was devolved on the proforma defendant Nos.2 and 3, namely Smti. Nirmala Devi and Sri Manik Sarma, out of which land 1 Bigha 10 Kathas was acquired by the Government leaving 3 Bighas 18 Kathas 6 Chataks of land which was inherited by the proforma defendant Nos.2 and 3. According to the plaintiff, the land measuring 2 Bighas 14 Kathas 6 Chataks (described in Schedule2 to the plaint) was transferred by the proforma defendant Nos.2 and 3 vide 4(four) sale deeds executed in the months of June and July, 1984 (Exhibits1 to 4) and by right of purchase they have acquired the right, title and interest over the said land. It is also the case of the plaintiff in the plaint that the defendant No.1 also purchased a plot of land measuring 1 Bigha 4 Kathas from the proforma defendant Nos.2 and 3 vide sale deed dated 10th May, 1984 (ExhibitA). The further case of the plaintiff is that there was a move to dispossess the plaintiff from the land described in Schedule2 to the plaint, possession of which was handed over to him by the proforma defendant Nos.2 and 3 after the sale, which resulted in filing of a perfect partition case, which prayer, however, was rejected, as the land revenue assessed to the said case was less then Rs.5/. According to the plaintiff, thereafter, a deed of settlement was executed between the plaintiff and the defendant No.1 on 9th February, 1987 (Exhibit7, which was marked as exhibit under objection by the defendant No.1). The plaintiff pleaded in the plaint that since the defendant No.1 was disturbing his possession, he has filed the suit with the prayer, as noticed above.
[3] While the defendant No.1 has contested the suit by filling written statement, the proforma defendant Nos.2 and 3 did not contest the said suit despite service of summons. The defendant No.1 in the written statement, while denying purchase of the land by the plaintiff as contended in the plaint, has pleaded that the plot of land measuring 1 Bigha 4 Kathas was purchased by him by registered deed of sale dated 10th May, 1984 (ExhibitA) from the proforma defendant Nos.2 and 3 and the land which stated to be purchased by the plaintiff is not the land which was purchased by the defendant No.1. The defendant No.1 during pendency of the suit also filed an application seeking partition apart from an application for framing of an additional issue as to whether the defendant No.1 is entitled to the partition as prayed for. Accordingly, the issue No.9 was framed by the learned trial Court, which relates to the claim of the defendant No.1 for partition.
[4] The learned trial Court on the basis of the pleadings and also the aforesaid application framed the following issues for consideration and decision: (1) Is there any cause of action for the suit? (2) Whether the suit is maintainable in its present form? (3) Is the suit barred by limitation? (4) Is the suit bad for misjoinders and nonjoinders of necessary parties? (5) Is the suit bad of estoppel, waiver and acquiescence? (6) Is the suit bad for description of suit land? (7) Whether the plaintiff is entitled to a decree for declaration that the plaintiff has got right title and interest in the 2nd schedule land? (8) To what relief, reliefs, if any, the plaintiff is entitled? (9) Whether the defendant No.1 is entitled to partition and allotment of his share as prayed for?
[5] The plaintiff has examined himself as PW1 and another witness as PW2, who is the writer of Exhibit7, deed of settlement dated 9th February, 1987. The defendant No.1 though did not examine any witness, he, however, has crossexamined both the witnesses examined by the plaintiff.
[6] The learned trial Court upon appreciation of the evidences on record, both oral and documentary, dismissed the suit of the plaintiff by holding that the Exhibits1 to 4 sale deeds are defective and infirm documents. Being aggrieved, the plaintiff preferred Title Appeal No.16/1996, which has also been dismissed by the aforesaid judgment and decree dated 24th February, 2000 by affirming the judgment and decree passed by the learned trial Court. The learned First Appellate Court has concurred with the finding of the learned trial Court that the sale deeds (Exhibits1 to 4) by which the plaintiff has claimed acquisition of right, title and interest are defective and highly infirm documents and hence no title can be passed on to the plaintiff on the basis of such documents. The said finding has been recorded basically on the ground that the description of 2(two) plots of land, one in Exhibits1 and 2 and the other in Exhibits3 and 4 are same. The learned First Appellate Court though has noticed the submission made by the learned counsel appearing for the defendant No.1 that he is protected under Section 5 of the Non Agricultural Urban Areas Tenancy Act, 1955, no finding, however, has been recorded in that regard.
[7] This appeal was admitted for hearing vide order dated 24th May, 2000 on the following substantial questions of law: �(1) Whether in the absence of any evidence adduced by the defendant that they had constructed houses of permanent nature on the suit land they were entitled to protection under section 5 of the Assam Non Agricultural Urban Areas Tenancy Act on the mere pleading in the written statement? (2) Whether the learned courts below were right in holding that the sale deeds Ext. 1, 2, 3 and 4 are defective and infirm where the said sale deeds had been shown defective on behalf of the defendant?�
[8] During pendency of the appeal, the original appellant/ plaintiff expired and in his place the present appellants, who are the legal heirs, were substituted.
[9] I have heard Mr. P.K. Roy Choudhury, learned counsel for the appellants and Mr. N. Chowdhury, learned counsel appearing for the respondent/defendant No.1.
[10] Mr. Roy Choudhury, learned counsel for the appellant submits that in view of non recording of any finding relating to the submission made by the learned counsel for the defendant No.1 before the First Appellate Court about the claim of protection under Section 5 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955, the substantial question of law as formulated vide order dated 24th May, 2000 does not exist in the present appeal. Referring to the second substantial question of law, Mr. Roy Choudhury, learned counsel, however, has submitted that even if the description of 2(two) plots of land in Exhibits1 and 2 and in Exhibits3 and 4 are same, meaning thereby only two plots of land were transferred by those sale deeds, the plaintiff having proved due execution of the registered deeds of sale have acquired right, title and interest in respect of 11 Kathas 11 Chataks 13 Gandas 1 Kora and 1 Kranti of land vide Exhibit1 and 15 Kathas 7 Chataks 6 Ganda 2 Kora and 2 Kranti vide Exhibit3 sale deeds. It has been submitted that since the Exhibits2 and 4 sale deeds are in relation to the same lands sold by Exhibit1 and Exhibit3 sale deeds respectively, the plaintiff may not acquire any right, title and interest in respect of Exhibits2 and 4 sale deeds but their rights cannot be denied in respect of the aforesaid 2(two) plots of land transferred by Exhibits1 and 3 sale deeds. The learned counsel submits that hence there cannot be any ground for refusing to declare the right, title and interest of the plaintiff in respect of the said 2(two) plots of land and in holding that the sale deeds are defective and highly infirm documents. Mr. Roy Choudhury further submits that the defendant No.1 having claimed that the land purchased by the plaintiff and the defendant No.1 are different plots of land, the learned Court below ought to have gone into the issue as to whether both the lands are same or different, which has not been gone into by any of the Courts below.
[11] Mr. Choudhury, learned counsel for the defendant No.1, on the other hand, has submitted that it is an admitted position of fact and in fact the plaintiff in the plaint has pleaded that the defendant No.1 purchased 1 Bigha 4 Kathas of land by ExhibitA sale deed dated 10th May, 1984, i.e. even before purchase by the plaintiff vide Exhibits1 to 4 sale deeds and, therefore, the defendant has acquired right, title and interest in respect of 1 Bigha 4 Kathas by means of such purchase, the purchase by the defendant being earlier point of time than the plaintiff. Mr. Choudhury further submits that the land measuring 1 Bigha 4 Kathas purchased by the defendant No.1 vide ExhibitA sale deed dated 10th May, 1984 has been included by the plaintiff in Schedule2 land measuring 2 Bighas 14 Kathas 6 Chataks and as such, the plaintiff cannot get a declaration declaring his right, title and interest over the Schedule2 land, which includes the land purchased by the defendant No.1.
[12] It appears from the pleadings of the parties and also the evidences adduced by the plaintiff including the documentary evidences that the following facts are not in dispute: The land measuring 5 Bighas 8 Kathas 6 Chataks originally belonged to Promotha Krishna Sarma and after his death, the land devolved on the proforma defendant Nos.2 and 3, namely Smti. Nirmala Devi and Sri Manik Sarma. Out of the aforesaid land measuring 5 Bighas 8 Kathas 6 Chataks, land measuring 1 Bigha 10 Kathas was acquired by the Government leaving 3 Bighas 18 Kathas 6 Chataks of land of which the proforma defendant Nos.2 and 3 were the owners.
[13] While the plaintiff claims that he purchased 2 Bighas 14 kathas 6 Chataks of land by registered deeds of sale being Exhibits1 to 4, executed in the months of June and July, 1984, the defendant No.1 claims that he purchased the land measuring 1 Bigha 4 Kathas vide ExhibitA from the same vendor, i.e. proforma defendant Nos.2 and 3. The purchase of the land on 10th May, 1984 (ExhibitA) by the defendant No.1 is also admitted by the plaintiff in the plaint.
[14] It also appears from Exhibits1 and 2 sale deeds, which though executed on 18th July, 1984 but were, however, registered on a subsequent date, that the same area of land with the same boundary has been transferred by the proforma defendant Nos.2 and 3 in favour of the plaintiff twice. It also appears from the Exhibits3 and 4 sale deeds that the same area of land with the same boundary was transferred by the proforma defendant Nos.2 and 3 in favour of the plaintiff twice on 22nd June, 1985. The sale deeds Exhibits1 and 2 being in respect of the same plot of land and the sale deeds being Exhibits3 and 4 also being in respect of another plot of land, the plaintiff would acquire right, title and interest in respect of 2(two) plots of land only, 1(one) plot measuring 11 Kathas 11 Chataks 13 Gandas 1 Kora and 1 Kranti and the other 15 Kathas 7 Chataks 6 Gandas 2 Kora and 2 Kranti by virtue of Exhibit1 and Exhibit3 sale deeds, respectively, and not in respect of 2 Bighas 14 Kathas 6 Chataks of land as claim by the plaintiff. The transfer of the land in favour of the defendant No.1 by ExhibitA sale deed dated 10th May, 1984 having not been disputed the defendant No.1 will acquire right, title and interest in respect of the land measuring 1 Bigha 4 Kathas by virtue of such purchase. The plaintiff, however, cannot acquire right, title and interest in respect of the said land measuring 1 Bigha 4 Kathas by virtue of the sale deeds dated 18th July, 1984 and 22nd June, 1985, even if by those sale deeds the proforma defendant Nos.2 and 3 sold the land which includes the land measuring 1 Bigha 4 Kathas, as proforma defendant Nos.2 and 3 had no subsisting right to sale 1 Bigha 4 Kathas land after execution of sale deed dated 10th May, 1984 in favour of the defendant No.1.
[15] The pertinent question as to whether the aforesaid land measuring 1 Bigha 7 Kathas 2 Chataks 19 Gandas 3 Kora 3 Kranti (11 Kathas 11 Chataks 13 Gandas 1 Kora 1 Kranti + 15 Kathas 7 Chataks 6 Gandas 2 Kora 2 Kranti) is inclusive of the land measuring 1 Bigha 4 Kathas, which was admittedly transferred by the proforma defendant Nos.2 and 3 in favour of the defendant No.1, however, has not been gone into by any of the Courts below, though the same is the vital issue which ought to have been framed and decided, more so, when admittedly the ExhibitA sale deed is prior in time than either Exhibits1 and 2 or Exhibits3 and 4 sale deeds.
[16] The findings recorded by the learned Court below that the Exhibits1 to 4 sale deeds are defective and highly infirm documents and hence the plaintiff by virtue of the said deeds cannot acquire any right, title and interest, in view of the aforesaid discussion, cannot be sustained in law and hence the said finding is set aside. However, as the most vital issue, as discussed above, has not been framed and decided and no evidence, therefore, has been laid in that respect, I remand this case to the First Appellate Court to decide the following issue after giving opportunity to both the parties to lead evidence. �Whether the land purchased by the plaintiff vide Exhibits1 or 2 and 3 or 4 sale deeds, totaling 1 Bigha 7 Kathas 2 Chataks 19 Gandas 3 Koras 3 Kranti includes the land measuring 1 Bigha 4 Kathas purchased by the defendant No.1 vide ExhibitA sale deed dated 10th May, 1984, if not, whether the plaintiff is entitled to partition?�
[17] Having regard to the year of institution of the suit, which is 1988, the First Appellate Court shall make an endeavour to decide the said issue as well as the appeal within a period of 6(six) months from the date of appearance of the parties. The plaintiff and the defendant shall appear before the learned District Judge on 25th June, 2012.
[18] The impugned judgment and decree is accordingly set aside. The appeal is allowed as indicated above. No costs.
[19] The Registry shall send down the records forthwith to the First Appellate Court so as to reach the said Court before 25th June, 2012.