Rangalal Sutradhar vs Rina Sukla Das

Heard Mr. Bibek Banerjee, learned counsel appearing for the appellant, who was the original plaintiff. None appears for the respondent.

Fact of the case, in brief, is that the plaintiff instituted a suit for declaration of right, title and interest and also prayed for recovery of the khas possession of a portion of the suit land described in schedule 'B' of the plaint.

At the time of admission of the present second appeal, this Court has recorded some observations of the learned first appellate Court in the manner as follows:

"Moreover, there is no evidence of any survey knowing commissioner to support the story of encroachment of the suit land by the defendant. Had it been so, the matter would have found more clarity and conviction. But the same not being there, the story of forcible occupation of the suit land by the defendant fails to satisfy the conscience of the court so as to reach a positive finding in favour of the plaintiff- respondent."

Based on the aforesaid finding, while admitting the appeal, the following substantial question of law has been formulated by this Court:

"Whether the finding based on which the reversal has been caused is sustainable, inasmuch as, the dispossession has been proved by the evidence, not of the nature as indicated by the first appellate court?"

In course of hearing, Mr. Banerjee appearing for the appellant submits that the finding recorded by the learned first appellate Court that in absence of Survey Commissioner's report it was not possible to identify the exact occupation of the parties over the suit land is totally perverse.

Mr. Banerjee, learned counsel further submits that the evidence is galore in respect of the fact that the defendant, the respondent herein has been occupying some portion of the 'B' schedule land by constructing kachha latrine. PWs 2 and 3 have corroborated the evidence of PW1, i.e. the plaintiff in support of his claim that the defendant has been occupying the 'B' schedule land. The defendant also erected bamboo fencing occupying the entire 'B' schedule land as a mark of possession over the 'B' schedule land. So, it is the clear case of the plaintiff that the defendant has illegally encroached the 'B' schedule land, the title of which lies upon the plaintiff.

The cause of action of the suit arose on 20.07.2017 when the defendant had encroached the 'B' schedule land, dispossessing the plaintiff from the said suit property.

The learned trial Court after considering the pleadings & evidence and materials on record decreed the suit in favour of the plaintiff.

Being aggrieved, the defendant, respondent herein has preferred the first appeal before the Court of learned District Judge. The learned District Judge set aside the judgment and decree passed by the trial court holding that there is no evidence of any Survey Commissioner to support the story of encroachment of the suit land by the defendant. Further, it was observed that "Had it been so, the matter would have found more clarity and conviction. But the same not being there, the story of forcible occupation of the suit land by the defendant fails to satisfy the conscience of the court so as to reach a positive finding in favour of the plaintiff-respondent."

This is settled proposition of law that a civil suit can be decided on the basis of the pleadings exchanged by the parties and the material documents as well as the oral testimony in support of the respective pleadings and further, by applying the principle of preponderance of probability.

After perusal of the record, it transpires that the defendant had never submitted any petition for appointment of Survey Commissioner nor there is any plea taken by the defendant for any defects in the decree for non-appointment of Survey Commissioner.

The learned trial Court came to a definite finding that on the basis of the title deed and the oral testimony of the witnesses it becomes apparent that the plaintiff is the owner of the entire land of schedule 'A'; and schedule 'B' land attracts 'A' schedule land. The reasons as assigned by the learned trial Judge is not at all sustainable because non-appointment of Survey Commissioner in absence of any such plea raised by any party of the suit, cannot nullify a decree declaring right, title and interest and recovery of possession of the suit land, which is based on the evidence and materials brought on record. Further, if such evidence is enough to identify the suit land that appointment of survey commissioner is not called for.

Having held so, in my opinion, the reversal finding on the basis of the fact that the land could not be identified due to absence of Survey Commissioner's report is not sustainable, and thus, the judgment and decree dated 17.07.2019 passed by the learned District Judge in Title Appeal No.09 of 2018 stand set aside. Consequently, the judgment and decree dated 31.07.2018 and 10.08.2018 respectively, passed by the learned Chief Judicial Magistrate-cum-Civil Judge(Sr. Division), Court No.2, Gomati, Udaipur in case No. T.S. 29 of 2017, stands restored.

The appeal stands allowed and disposed off in the above terms.

Draw the decree accordingly.

Send down the LCRs after drawing the decree.