Rup Mohan Roy vs Raimohan Roy And Ors

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[1] This appeal has been admitted for consideration of following substantial questions of law:

"(1) Whether the first appellate court has appreciated the Sale Deed dated 04.09.2009 (Exbt.4), viz-a-viz the suit land which was claimed to have been purchased by one Jadu Nandan Roy, father of the principal defendants correctly?

Whether the evidence as led by the plaintiff is sufficient to return a finding of possession over the suit land?"

[2] This appeal is filed by the original plaintiff. He had joined the respondents No.1 to 5 his own brothers and sisters as principal defendants. The respondents No. 6 to 12 who were the owners of the suit land which according to the plaintiff they had sold to him were shown as proforma respondents and that is how these respective groups of defendants would be referred as.

[3] According to the plaintiff the predecessors in title of the proforma defendants Sri Kashi Ch. Biswas was owner of land situated in village Gandacherra, District-Dhalai bearing Khatian Nos.91/2 & 91/3, CS Plot No.1533 and 1532. Sri Kashi Chandra Biswas expired on 10.10.1997. During his lifetime according to the plaintiff, he was put in possession of the land. Later on, an oral agreement to sell the land was entered into between the plaintiff and deceased Kashi Chandra Biswas. However, final sale deed could not be executed during his lifetime. After his death, his legal heirs executed a registered sale deed in favour of the plaintiff on 04.09.2009 for sale consideration of Rs.2,60,000/-. The plaintiff is in exclusive possession of the suit land since several years. He has planted several trees thereon. The principal defendants tried to dispossess the plaintiff in the year 2009 sometime in the month of September and attempted the same few months later. The plaintiff, therefore, filed Case No.TS 7/2011 praying for a decree of declaration that he is an absolute owner and in possession of the suit land and for a further decree of perpetual injunction against the defendants entering the suit land or disturbing the possession of the plaintiff.

[4] The principal defendants filed a written statement opposing the suit on various grounds. According to them, the sale deed dated 04.09.2009 itself was a fraudulent document. One of the sellers was minor at the time of the sale. They contended that their father Jadu Nandan Roy during his lifetime had purchased the suit land from kasha Chandra Biswas in the year 1387BS (which I am informed corresponds to the year 1980-81) by paying full sale consideration. They further stated that during the last settlement carried out in the year 2002 in the land records the names of some of the principal defendants were shown to be in possession. It was contended that such entries were manipulated in the year 2009 by the Revenue Authorities in favour of the plaintiff. Upon receiving such information, the said defendants had complained to the SDM.

[5] The proforma defendants also filed a written statement supporting the case of the plaintiff to the full.

[6] The plaintiff examined himself and few other witnesses. He produced the sale deed dated 04.09.2009. He also produced the Khatian of various years concerning the suit land.

[7] Some of the defendants were examined. The defendants also examined independent witnesses and produced documents in the nature of Khatian of the land concerned.

[8] The proforma defendants were also examined who supported the case of the plaintiff.

[9] The trial Court had framed following issues:

"1. Whether the suit is maintainable in law?

2.Whether there is any cause of action for the suit?

Whether the plaintiff has got any right, title and interest over the suit land specifically described in the schedule of the plaint?"

Issues No.1 and 2 were answered in favour of the plaintiff. In relation to issue No. 3 the trial Court held that the plaintiff had produced no reliable evidence. It was held the plaintiff failed to prove any right, title or interest over the suit land or his exclusive possession also.

[10] The appellate Court however, held that the plaintiff was not in exclusive possession of the suit land. The concluding portion of the appellate judgment reads as under:

"24. In view of the discussion of the facts on record I am of the view that the plaintiff-appellant may have the title over the suit land but was not in exclusive possession of the suit land on the date of filling of the suit. On the contrary, defendant-respondents were in possession of the suit land. No consequential relief of recovering the possession has been prayed for before the trial court except a decree that the plaintiff-appellant is the absolute owner and possessor of the suit land and a decree of perpetual injunction restraining the defendant-respondents from entering into the suit land disturbing the possession of the plaintiff-appellant over the suit land and the cost of the suit. Therefore, such a nature of suit is not maintainable under sec. 34 of the Specific Relief Act.

ORDER

In the result the appeal is dismissed with cost. Prepare decree accordingly. Send a copy of this judgment and decree to the learned Court below along with the lower Court record.

The appeal is disposed of on contest.

Sheristadar is to prepare the decree accordingly and to place it before me within fortnight for necessary signing.

Send back the L.C. Record with copy of this judgment and decree."

[11] Having heard learned counsel for the parties and having perused the materials on records, what emerges is that the first appellate Court has already reversed the finding of the trial Court that the plaintiff had failed to establish his title over the suit land. In my opinion, this was correctly done since the plaintiff had produced and proved the registered sale deed dated 4.9.2009 in his favour executed by the original land owners-proforma defendants who had never questioned the sale deed. The trial Court could not have ignored such documentary evidence. The principal defendants had produced nothing to show that deceased Jadu Nandan Roy during his lifetime had purchased the suit land from the owners. In absence of any documentary evidence mere oral statement which runs counter to a registered sale deed cannot be accepted. This discussion was perhaps not strictly necessary since the principal defendants have not challenged the judgment of the first appellate Court to the extent appeal was allowed in favour of the plaintiff. The same has attained finality.

[12] The question that arises however is, did the first appellate Court err in not granting a decree of perpetual injunction in favour of the plaintiff. The answer to this question would depend on the correctness of the findings of the first appellate Court that the plaintiff was not in exclusive possession of the suit land and that the principal defendants jointly possess the land. If the plaintiff is found to be in exclusive possession on the date of filing of the suit, by all means he would be entitled to a protection of such possession since under the sale deed he has become owner of the land. However, as held by the appellate Court and also indirectly so held by the trial Court, if the plaintiff was not in exclusive possession but the principal defendants co-possessed the land, no such injunction could be granted.

[13] In this context both sides have led evidence oral as well as documentary. The plaintiff has examined himself and other witnesses residing the nearby locality as well as some of the proforma defendants. The defendants have examined themselves as well as some other residents of the locality. Thus in terms of oral evidence, it is a pure case of word against word. On the front of documentary evidence, what emerges is that at least in the Khatian of 2002 the names of some of the principal defendants were shown. This was sought to be corrected only in the year 2009 on the strength of the sale deed which the principal defendants claimed was a fraudulent attempt. On their complaint such entries were deleted in the year 2012. The plaintiff of course argues that such deletion was without any notice to him. Whatever be the subsequent events, one cannot get away from the fact that the names of the principal defendants appeared in the records in the year 2002 and continued for a reasonable period of time. When two Courts below have on the basis of assessment of evidence, came to the conclusion that the plaintiff was not in exclusive possession of the land in question, in face of the evidence on record in second appeal such findings call for no interference since I do not find that such findings can be stated to be perverse.

[14] Before closing, however, it must be recorded that any possession of the principal defendants must be of permissive in nature and cannot take shape of any legal title unless of course, they are protected by the principle of adverse possession.

[15] With these observations, appeal is dismissed. Pending application(s), if any, also stands disposed of.