Pawan Kr. Agarwal vs Ishwar Prasad Jalan

Heard Mr.S.Banik, learned counsel appearing for the appellant and Mr.S.P.Choudhury, learned counsel appearing for the respondent.

The present respondent as the plaintiff filed Title Suit No. 14/1996 in the Court oflearned Munsiff No.1, Tinsukia for recovery of the possession of the suit land by evicting the defendant appellant and permanent injunction from carrying out further construction over the suit land. It is the case of the plaintiff respondent that he is the absolute owner of the land described in the schedule of the plaint on the strength of a registered sale deed No. 508/1986 and the same was possessed by him till he was dispossessed from a part thereof by the defendant appellant. His name has been mutated in the land record and the land revenue is also paid. On 5.2.1994 while the plaintiff respondent visited the suit land he found that the defendant appellant through his labourers constructed a pucca wall on a part of the aforesaid suit land without any consent from the plaintiff respondent. In the said process of construction of the wall the defendant appellant occupied the western portion of the plaintiff’s land and dispossessed him. Thereafter, on 6.2.1994 some building materials were stocked over the suit land with an intention to carryout construction over the suit land. Hence he filed a suit for recovery of khas possession by evicting the defendant and for permanent injunction.

The defendant appellant in his written statement after denying the pleadings of theplaintiff respondent pleaded that the suit land originally belonged to one Prabhudayal Agarwal who died in the year 1979 leaving behind his wife Smti Gita Devi Agarwala and seven sons, three daughters as his only legal heirs who inherited the land he purchased. Later on one of the sons Murulidhar Agarwal also died leaving behind his wife Smti Geeta Devi Agarwala, two sons and four daughters as his legal heirs. The legal heirs of late Prabhudayal Agarwal and Murulidhar Agarwal were the joint owners and at the time of sale transaction vide registered sale deed No. 508/1986, wife of late Murulidhar Agarwal had no right to transfer the suit land to the plaintiff respondent in any manner. As such the said sale deed is void, inoperative and does not confer any title over the suit land and as such sought for dismissal of the suit.

Learned trial court on the basis of the pleadings framed the following issues :

“1. Whether the suit is maintainable in law and in fact in its present form?

Whether there is any cause of action for the suit?

Whether the suit is barred by limitation?

Whether the plaintiff is the absolute lawful owner of the suit land described in theSchedule of the plaint ?

Whether the plaintiff is entitled for any permanent injunction restraining thedefendant etc. from constructing any pucca construction over the suit land ?

To what relief, the parties are entitled to?

Learned trial Court took the issue No.5 and considered the evidence of the plaintiffrespondent as PW 1. The learned trial Court recorded that the plaintiff respondent in his deposition deposed that he does not know the boundary of the encroached land nor on which side of total suit land the said encroachment took place. During the pendency of the suit the plaintiff respondent filed two petitions for amendment of the boundary of the suit land which were rejected. The said two amendment petitions were exhibited as Ext. Kha and Ext. Gha. The learned trial court considered the said Ext.Kha and Gha and held and arrived at a conclusion that in the schedule of the suit land the southern and Eastern boundary were wrongly given in the plaint.

Considering Order 7 Rule 3 of the CPC the learned trial court held that the plaint shall contain description of the property sufficient to identify it to draw a proper decree as required under Order 20 of the CPC.PW 1 deposed that he does not know which part of the land the defendant appellant encroached nor given the boundaries of the disputed land and the names of persons residing near the alleged suit land. The plaintiff respondent did not approach the Tinsukia Development Authority in order to demolish the illegal construction of the defendant appellant. Finally the learned trial Court held that the plaintiff respondent failed to prove the encroachment by the defendant appellant and decided the issue No. 5 against the plaintiff respondent.

Taking up the issue No. 4 the learned trial court considered the Ext.1, the sale deedNo. 508/1986 and Ext. 2, the certificate issued by the SDC, Tinsukia Circle certifying that the name of the plaintiff respondent is mutated in dag No. 70,Ejmali periodic patta No. 25 and the land revenue paying receipt Exts. 3 and 4. On the other hand, taking up Ext.Ka the learned trial Court came to the finding that the father of the defendant appellant purchased the land measuring 2 kathas 12½ lechas from the father of Murulidhar Agarwal. From the evidence of court witness who is an official from the office of the Circle Officer, the learned trial Court held that over the total land measuring 2 bighas 4 kathas under dag No 70 there are names of 17 persons recorded in the Jamabandi i.e. Ext.Kha and as such the exact portion of land held by the 17 persons cannot be ascertained.

However name of the plaintiff respondent is recorded in the Ext.kha. But in view of the finding in issue No. 5, the learned trial court held that it cannot be ascertained if/whether the plaintiff is the absolute owner of the disputed land. Finally the trial court held that the plaintiff respondent failed to prove through evidence that he is the absolute owner of the suit land and the suit was dismissed.

It would not be out of place to mention here that the Ext.Ka is a sale deed by way ofwhich Prabhudayal Agarwala, father of Murulidhar Agarwala sold the land to one Sri Ramkaran Gupta, the father of defendant appellant. Moreover, the Ext.Kha consists of four dag numbers consisting Dag No. 49 for an area of land measuring 5 bighas 1 katha 18 lechas, Dag No 70 for an area of land measuring 2 bighas 0 katha 4 lechas , Dag No. 77 for an area of land measuring 3 bighas 1 katha 18 lechas and dag No. 85 for an area of land measuring 1 bigha 3 kathas 4 lechas. So the learned trial Court misread the documents so exhibited by the defendant appellant. The said Ext.Ka shows the land purchased by the father of the defendant appellant with specific boundaries which was executed in the year 1970.

Being aggrieved by the said judgment passed by the learned trial court the plaintiffrespondent preferred Title Appeal No. 7 of 2006 in the Court of learned Civil Judge, at Tinsukia which was allowed vide judgment and decree dated 27.9.2006. Thereafter the defendant respondent preferred the present second appeal which was admitted vide order dated 21.2.2007 on the following substantial questions of law:

“1. Whether the suit of the plaintiff can be decreed when the suit land is not identifiable?

Whether the suit of the plaintiff can be decreed by observing that the defect of the boundary can be occurred at the time of execution by invoking the provisions of Section 152 or 47 CPC, without giving further opportunity to the defendant to file the written statement ?

Whether the decree passed by the learned Court below is in accordance with theprovision of Order 41 Rule 31 CPC ?

Vide order dated 9.2.2017 another substantial questions of law was formulated as follows:

“4. Whether in the absence of any pleadings or prayer for declaration of title over the immovable property, a decree for recovery of khas possession can be passed ?

Mr.Banik submits that the plaintiff respondent sought for recovery of possession of apart of the total land he purchased and described in the schedule to the plaint by introducing wrong boundaries, without asking for the relief of declaration of right, title and interest over the suit land. For the said reason the suit itself is not maintainable. The fact of filing application for amendment of the boundaries of the suit land twice during the pendency of the suit itself goes to show that the suit land is not identifiable and the same cannot form a part of a lawful decree inasmuch as the same would be inexecutable. In addition to that he also submits that the finding of the First Appellate Court that at the time of execution of the decree the suit land could be identified invoking the provisions of Section 152 or 47 of the CPC would cause inconvenience to the defendant appellant inasmuch as he would have no chance to dispute the same. It is also argued that the judgment passed by the First Appellate Court is not as per the provisions under Order 41 Rule 31 of the CPC. In support of his submission, Mr.Banik relies the following decisions:

(2001) 4 SCC 181 ( Jayalakshmi Coelho Vs Oswald Joseph Coelho).

(2003) 2 SCC 330( Pratibha Singh and another Vs. Shanti Devi Prasad and another)

(2006) 13 SCC 570( Lankeshwar Malakar and ohers Vs R.Deka and others)

Mr.Choudhury, on the other hand, submits that the reasons and the findings of thelearned trial Court is totally perverse. There is clear admission on the part of the defendant as DW 1 that the land he encroached falls within the land which was purchased by the plaintiff respondent which he has specifically deposed in the cross-examination by stating the boundaries on its four sides. There is a clear admission that they do not object to the execution of the sale deed Ext.1 by its vendor Geeta Devi Agarwala. Under such circumstances the learned trial court without appreciating such evidence passed the judgment which was reversed rightly by the First Appellate Court. In fact as per his submission no substantial questions of law deserved to be formulated on the clear finding of the First Appellate Court.

Considered the submission of the learned counsel. The plaintiff respondent purchased9.51 lechas of land by way of Ext. 1, sale deed executed by one of the legal heirs of Murulidhar Agarwalla. Vendor of the plaintiff respondent is one of the co-sharers of the land purchased by the predecessor-in-interest of the vendor Murulidhar Agarwala. Ext.1 is the said registered sale deed on the strength of which the plaintiff respondent has sought for the recovery of possession of the suit land which as per his pleadings forms a parcel out of total land he purchased vide Ext.1. The issue No. 4 is with respect to the right,title and interest of the plaintiff respondent over the suit land. The learned trial Court perused the Ext.1 i.e. the sale deed and came to the conclusion that as per Ext.Kha and the deposition of the official witness from the Circle Office the total land measuring 2 bighas 4 kathas under Dag No. 70 is mutated in the name of about 17 persons. The name of the plaintiff respondent also appears in the Jamabandi i.e. Ext. Kha. On perusal of Ext. 1, the sale deed it is found that it also consists of the sketch map of the land purchased by the plaintiff respondent and the same forms a part of registered sale deed, Ext. 1, therein the dimension of the land so purchased alongwith the dag Number is specifically mentioned and as per the dimensions North and South side measuring 27 feet , East and West measuring 51 feet and the total area of the land so purchased by the plaintiff respondent is 1377 square feet. The learned trial court took into consideration of the evidence of the plaintiff respondent as PW 1 and came to the finding that he is unaware as to on what side of the total land he purchased, the defendant appellant had encroached. But it is the specific pleading of the plaintiff respondent that on the Western side of the land he purchased, the defendant appellant encroached. The fact of amendment of the plaint so far the suit land is concerned though shows that the suit land described in the schedule of the plaint and its boundaries are erroneous, the learned trial Court ought to have considered the sketch map which is exhibited and forms part of the sale deed, Ex. 1 wherein it has specifically shown that the land is covered by dag No. 70 . Order 7 Rule 3 of the CPC is specific that where the subject matter of the suit is immovable property the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. From the schedule of the plaint of the suit land, it is apparent that the same is described as the land covered by dag No. 70 and the boundaries are also mentioned, though the Ext.1 sale deed describes the boundaries of North, East and West but not the Southern boundary. In Pratibha Singh and another (supra) the Hon’ble Apex held if the plaintiffs committed an error, the defendant should have objected to it and the default or carelessness of the parties does not absolve the trial court of its obligation which should have while scrutinizing the plaint pointed out the omission on the part of the plaintiff and should have insisted on a map of the immovable property forming the subject matter of the suit being filed .

Now in the present case, the sale deed Ext. 1 is annexed with the sketch map showingthe plot of land purchased by the plaintiff respondent and as per the pleadings in the plaint the defendant appellant encroached on the western side of the total land thus, it is sufficient to identify the total plot of land of plaintiff/respondent wherein the schedule suit land forms a parcel thereof. In the cross-examination, the plaintiff respondent as PW 1 deposed that he cannot state the boundaries of the suit land but he has stated that on the Eastern side of the defendant’s land suit land is situated. It is also stated that the land which has not been encroached by the defendant appellant is situated on the eastern side of the suit land. From the said deposition merely because there are two amendment petitions filed by the plaintiff respondent, the same cannot be considered that the plaintiff respondent is not conversant of the boundaries of the suit land. If the said deposition of PW 1 is taken into consideration on the face of the cross examination of defendant appellant as DW-I it is clear and specific that he has admitted that on the Eastern side of his land the suit land is situated. Not only that, he has described the suit land measuring 7 feet x 51 feet specifically by mentioning the boundaries. The issue of identification of the suit land is raised by the defendant appellant and under such circumstances, if the suit land is identifiable by boundaries and the said boundaries are not mentioned in the plaint and the same are mentioned as per dag numbers on the four sides of the suit land, in my opinion that cannot be a ground in holding that the plaintiff respondent is not entitled for the relief of permanent injunction. This is because once the evidence of both the parties to the suit are before the court it is only the appreciation of the said evidence what is required in order to adjudicate the issues between the parties. The question of onus upon the parties vanishes leaving aside the principal burden on the plaintiff u/s 101 of the Evidence Act which remains in order to show his entitlement to the relief which he sought for.

The learned first appellate Court took into all such deficiencies of the learned trial courtin appreciating the evidence on record. The learned first Appellate Court considered the cross examination wherein the PW 1 i.e. plaintiff respondent deposed that he does not know the boundaries of suit

land. The learned First Appellate Court considered the evidence of DW 1 wherein he deposed that over the land purchased through Ext. 1 by the plaintiff respondent they have no possession nor any right, title and interest. Under such circumstances the validity of the sale deed Ext. 1 raised by the defendant appellant in the written statement is totally demolished including the identity of the suit land. Once the sale deed and the land so purchased by the said sale deed Ext. 1 is admitted the question of declaration of the right, title and interest becomes redundant. However, it is mandatory on the part of the court to examine the issue of title of the person who claims relief of recovery of possession and to that effect the issue

No. 4 was framed and the learned trial court came to the finding that as the suit land could not be identified by the plaintiff respondent or proved so far the exact location of the same is concerned as such it cannot be ascertained whether the plaintiff respondent is the absolute owner of the disputed land cannot be accepted. Moreover, the consideration of the learned trial court that as the land covered by dag No.70 consist of 17 Nos. of persons as such, the exact location of the suit land cannot be identified, is also not acceptable. In the plaint there is specific pleadings that the plaintiff respondent is the owner on the strength of registered sale deed Ext. 1 and as such, he sought for recovery of khas possession of the suit land.

The title of the plaintiff respondent has not been denied but as the vendor is one ofthe co-sharers as such she alone had no right to transfer the suit

land. The said contention or the onus of the defendant appellant to rebut the claim of absolute ownership of the plaintiff respondent is not proved.

Moreover, the defendant appellant is the son of one Ramkaran Gupta as per Ext. ‘Ka’, the sale deed on the basis of which his father purchased land measuring 2 kathas 12 ½ lehas from the father of Murulidhar Agarwal and as such he cannot challenge the sale deed of plaintiff respondent on the ground that the wife of Murulidhar Agarwal had no right to sell the land to plaintiff respondent. Accordingly substantial questions of law Nos.1 and 2 so formulated are decided against the appellant, inasmuch as the suit land is identifiable and question of identity of the suit land can very well be raised u/s 47 of the CPC before the execution Court and there is no question of the same being disposed of in absence of the defendant appellant as if at all the same is to be raised, it is the defendant appellant only who can raise it.

Mr.Banik raised the question whether the decree passed by the learned court below isin accordance with the provisions of Order 41 Rule 31 CPC.

From the perusal of the judgment passed by the First Appellate Court it is seen that the evidence of the PW 1 and the DW 1 are looked into by the Court below. From the evidence of the parties learned Court below came to the conclusion that the defendant appellant as DW 1 has admitted that he has no right, title and interest over the suit land purchased by the plaintiff respondent. He also stated that the boundary of the suit land and also admitted that on the Eastern side of his land, the suit land is situated. Under such circumstances, the learned court below set aside the findings of the trial court and passed the decree in favour of the plaintiff respondent. But before arriving at the said decision the court below has taken note of the admission on the part of the defendant appellant that he had encroached the land and constructed some structure over it. Before coming to the said conclusion the court below also took note of the deposition of the court witness, CW 1 and came to the conclusion that the name of the plaintiff respondent was mutated in the year 1986. So the evidence available on record shows that the plaintiff respondent has right, title and interest over the suit land. Thereafter, considering the evidence of DW 1, regarding the admission referred herein above decided the issue No. 5 in favour of plaintiff respondent. From the issues framed by the courts below, the said two issue Nos. 4 and 5 are vital in deciding the dispute between the parties to the

suit. Order 41 Rule 31 CPC stipulates that the points for determination and the decision thereof with reasons for the said decision are to be recorded while the First Appellate Court passes its judgment. In the judgment passed by the First Appellate Court held that the appeal was mainly preferred on the basis of the findings in issue Nos. 4 and 5. Thereafter, by giving reasons allowed the appeal and decreed the suit. As the judgment has been reversed, the First Appellate Court clearly specifies the reasoning for such reversal of the findings of the trial court. In the said premises, it cannot be held that the judgment is hit under the provisions of Order 41 Rule 31 of CPC. Accordingly, substantial question of law No. 3 is also decided against the defendant appellant.

From the reading of the plaint, it is seen that the plaintiff respondent sought forrecovery of khas possession of suit land and for permanent injunction and while seeking for the said relief the plaintiff respondent has pleaded the basis of seeking the said relief which is obviously on the basis of Ext. 1, the sale deed. The same was disputed by the defendant appellant. Accordingly, the issue No. 4 was framed and the courts below considered the evidence led by the parties against the said issue No. 4 and finally come to the conclusion that the plaintiff appellant has the title over the suit land as held by the First Appellate Court reversing the findings of the trial court. In fact the trial court is also satisfied with the title but in view of finding of issue No. 5, the trial court refused to decide the said issue No. 4 in favour of the plaintiff respondent. The trial Court made an error by deciding the issue No. 5 without deciding the issue No. 4 at first. The said finding of issue No. 4 in favour of the plaintiff respondent by the First Appellate Court is sufficient to draw the satisfaction for decreeing the suit of the plaintiff respondent.

In the present case in hand, as there is no dearth of pleadings with respect to the title,the said substantial question of law No. 4 has no bearing in the factual matrix of the case.

Accordingly, the same is decided against the defendant appellant.

As a result, the second appeal stands dismissed thereby upholding the findings of theFirst Appellate Court.

Send back the LCR. No costs.