IN THE GAUHATI HIGH COURT. Case No: RSA 21/2007

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1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Case No: Babulal Choudhury and others Appellants -Versus- Ganesh Chandra Bharali and another... Respondents :: BEFORE :: HON BLE MR. JUSTICE PRASANTA KUMAR DEKA For the Appellants : Ms. P Barman Advocate For the Respondents : Mr. GN Sahewalla Sr. Advocate Ms. B Sarma Advocate Date of Hearing : Date of delivery of Judgment and Order : JUDGMENT AND ORDER (CAV) Heard Ms. P Barman, learned counsel for the appellants and Mr. GN Sahewalla, learned senior counsel assisted by Ms. B Sarma, learned counsel appearing on behalf of the respondents. 2. The appellants herein are the defendants in title suit No. 155/2005 in the Court of learned Civil Judge (Jr. Divn.) No. 1, Barpeta filed by the respondentsplaintiffs for declaration, confirmation of possession and permanent injunction. Page 1 of 13

2 The case of the plaintiff-respondents is that 2 Bigha of land covered by Dag No under Periodic Patta No. 646 of village Barpeta Road Town described in Schedule A of the plaint was jointly owned and possessed by one Rajani Kanta Barman (Proforma defendant No. 1) and Srikanta Roy Mandal (Proforma defendant No. 2). Out of the said total land measuring 2 Bigha, the proforma defendant No. 1 was the owner with respect to 2K 10L of land forming the northern part of the A Schedule land and the rest 1B 2K 10L of land was owned and possessed by the proforma defendant No. 2 and to that effect a joint patta was issued in the names of proforma defendants No. 1 and 2. The proforma defendant No. 1 sold his share measuring 2K 10L in favour of Smti. Lalita Barman (proforma defendant No. 3) whose name was mutated in the revenue records. On the other hand, the proforma defendant No. 2 sold his share of land measuring 1B 2K 10L in favour of the plaintiff respondent No. 1 vide registered sale deed No dated and possession was accordingly delivered to him by the said proforma defendant No. 2 whereafter the name of plaintiff respondent No. 1 was mutated in the land records. Since the last 3/4 years the land purchased by the proforma defendant No. 3 remained under the physical possession of the appellant defendants who was running a nursery over it. The plaintiff respondents are not aware about the transfer deed in favour of the defendant appellants over 2K 10L of land. The plaintiff respondent No. 1 offered to sell the suit land measuring 1B 2K 10L to the plaintiff respondent No. 2 at a total sale consideration of Rs. 2,00,000/- out of which the plaintiff respondent No. 1 received a sum of Rs. 50,000/- from the plaintiff respondent No. 2 as earnest money and handed over the possession of the land to him on the Page 2 of 13

3 strength of a registered agreement for sale No. 218/1999. Since the execution and registration of the said agreement for sale dated the defendant appellants had been intending to purchase the suit land. But as the plaintiff respondent No. 1 had entered into the agreement for sale with the plaintiff respondent No. 2, he refused the proposal of the defendant appellants whereafter the said defendant appellants threatened the plaintiff respondent No. 1 that they would compel the plaintiff respondent No. 1 to sell the suit land in their favour. On the defendant appellants trespassed into the suit land and threatened the workers of the plaintiff respondent No. 2 who were working over the suit land, to vacate the suit land forthwith and there was a quarrel between the plaintiff respondent No. 2 and the defendant appellants. However, at the intervention of the villagers the defendant appellants had to retreat. The conduct of the defendant appellants had endangered the title and possession of the plaintiff respondents over the suit land and as such filed the said suit seeking the following reliefs:- (a) that a decree be passed declaring that plaintiffs have right, title and interest over the suit land and their possession over the suit land be confirmed; (b) that permanent injunction be issued against the defendants to restrain them from trespassing into the suit land from dispossessing the from the suit land from constructing and placing any manner of building or other structures upon the suit land as well as from causing disturbance and inconvenience in any manner what so ever in the peaceful possession and enjoyment of the suit land by the plaintiffs; (c) that the cost of the suit be decreed in favour of the plaintiff and against the defendants; and Page 3 of 13

4 (d) that any other relief or reliefs to which the plaintiff may be deemed to be entitled under the law and equity may also be decreed in favour of the plaintiffs and against the defendants. It is pertinent to mention here that the suit land measuring 1B 2K 10L is described in Schedule B of the plaint along with the following boundaries:- North Bhagaban Sarma South Sri Rajani Barman East Legal heirs of Late Siba Das West Govt. Road. 3. The defendant appellants filed their joint written statement and denied the pleadings made in the plaint by the plaintiff respondents in toto and also filed their counter claim by pleading that the 2 Bigha of land described in Schedule A of the plaint originally belonged to the proforma defendants No. 1 and 2. The proforma defendant No. 1 sold his share to one Arjun Chandra Barman by executing a registered sale deed on and delivered possession thereof within a specific boundary. Thereafter Arjun Chandra Barman took possession of the land measuring 2K 10L described fully in the Schedule A of the written statement cum counter claim. On the death of Arjun Chandra Barman his wife i.e. proforma defendant No. 3 transferred the said 2K 10L of land to one Smti. Binabala Das by way of a registered sale deed bearing No. 972/1985 dated and delivered possession without any dispute from any corner. In the year 1995, the said Binabala Das sold the land measuring 2K 10L to the defendant appellant No. 3 by way of a registered sale deed No. 369/1995 dated After the said purchase by the defendant appellant No. 3, she along with her husband (defendant appellant No. 2) constructed a C.I. Sheet house Page 4 of 13

5 over the said land measuring 2K 10L keeping 4 feet away from the northern boundary of the land. The said appellant defendants No. 2 and 3 started a nursery over the said land. In the month of July, 1999 the plaintiff respondent No. 2 demanded to the defendant appellants No. 2 and 3 to vacate a portion of the land out of the said 2K 10L on the ground that the said defendant appellant had trespassed into the land of plaintiff respondent No. 1. Suddenly on the plaintiff respondent No. 2 along with some hired persons made an attempt to trespass and dispossess from a portion of the land measuring 2K 10L which was opposed by the defendant appellants. During such opposition, the defendant appellant No. 2 got serious injuries on his body and a criminal case was registered vide Barpeta P.S. Case No. 126/1999 under Section 447/ 325/ 326/ 34 of the IPC. Thereafter the plaintiff respondents obtained an ex parte interim temporary injunction from the court and the plaintiff respondent No. 2 accompanied by some hired persons trespassed into the land of the defendant appellants measuring about 3 feet in breadth and 400 feet in length from northern part of the land of the defendant appellants which is described in Schedule B of the written statement/ counter claim. Such trespass by the plaintiff respondents was on the strength of an interim order passed by the court and as such the defendant appellants are entitled to a mandatory injunction against the plaintiff respondents to maintain the status quo ante and to place the defendant appellants in their original possession from the southern part of the said Dag covering the land measuring 2 Bigha. Accordingly, the appellants preferred the counter claim along with the following reliefs:- i) dismiss the suit of the plaintiff with cost; Page 5 of 13

6 ii) declare right, title and interest of the defendant No. 3 in the land described in Schedule A of the written statement and decree of partition thereof directing the revenue authority to issue separate patta in the name of the defendant No. 3; iii) grant permanent mandatory injunction against the plaintiff maintaining the status quo ante of the Schedule A land in favour of the defendant; iv) deliver khas possession by evicting the plaintiff from the Schedule B land described in the written statement; v) decree cost of the counter claim and the suit against the plaintiffs; and vi) decree some other relief or reliefs as may be deem fit and proper in this case. 4. The land measuring 2K 10L of the defendant appellants is described in the Schedule A of the written statement/ counter claim showing the following boundaries:- North Srikanta Roy South Bhagaban Sarmah East Haribandhu Deb Nath & others West Municipality Road 5. The learned trial court on the basis of the pleadings of the parties framed the following issues:- 1. Whether there is any cause of action for the suit? 2. Is the suit maintainable in its present form? 3. Is the suit barred by limitation? 4. Has the plaintiff No. 1 subsisting title over the suit land and delivered possession of the same to plaintiff No. 2 on the strength of an agreement for sale dated ? 5. Has the defendant No. 3 subsisting title over the suit land and whether the plaintiffs dispossessed her from a part of the suit land by show of force in Schedule B of the counter claim? 6. To what relief/ reliefs if any parties are entitled? 6. Both the parties to the suit adduced evidence and the plaintiff respondent No. 1 had deposed as PW 1 and the defendant appellant No. 2 deposed as DW 1 Page 6 of 13

7 amongst other witnesses of both the parties. The learned trial court accordingly after hearing parties decreed the suit in favour of the plaintiff respondents vide judgment and decree dated However, there was no finding with regard to the reliefs so prayed by the defendant appellants in their counter claim though there was a specific issue i.e. issue No. 5. The learned trial court whiel deciding the issue No. 5 came to a finding that the defendant appellants are the owners with respect to the land measuring 2K 10L. So far the issue with regard to encroachment of land measuring 3 x 400 by the plaintiff respondents is concerned, the learned trial court came to a finding that none of the parties to the suit had examined official witnesses to specify the quantum of land encroached by the plaintiffs or the defendants who would have been the material witness for proper adjudication of the dispute between the parties. 7. Being aggrieved by the said judgment and decree passed by the learned trial court, the appellant defendants preferred title appeal No. 13/2006 in the court of learned Civil Judge, Barpeta. The learned first appellate court after hearing the parties dismissed the title appeal No. 13/2006 vide judgment and decree dated thereby holding that the trial court had passed the judgment and decree rightly which requires no interference by the said appellate court. Behind the said scenario, the appellant defendants had preferred this second appeal which was admitted on by formulating the following substantial questions of law:- 1) Whether on the basis of an agreement of sale, suit can be decreed in favour of such prospective purchaser declaring right, title and interest in his favour? Page 7 of 13

8 2) Whether the defendants plea of dispossession could have been rejected by the court below on the ground of examination of official witness, although evidence on record discloses such dispossession? 8. Perused judgments passed by both the learned courts below, the evidence on record and considered the submission of both the learned counsel and the substantial questions of law so formulated are discussed as follows:- Substantial question of law No. 1:- Whether on the basis of an agreement of sale, suit can be decreed in favour of such prospective purchaser declaring right, title and interest in his favour? 9. Ms. P Barman submits that both the courts below erred in law by declaring the right, title and interest of the plaintiff respondents jointly with respect to 1B 2K 10L of land, inasmuch as, the plaintiff respondent No. 2 is not at all entitled for the said declaration, inasmuch as, as apparent from the pleadings that it is an agreement for sale on the basis of which the said plaintiff respondent No. 2 has been holding the possession of the said land measuring 1B 2K 10L. So, Ms. Barman submits that the declaration so made by the court below is liable to be set aside. Further, it is submitted that the plaintiff respondent No. 1 while deposing as PW 1 deposed that a portion of land measuring 1B 2K 10L had been taken away/ given by him for the road situated on the western side of the total land measuring 2 Bighas. Under such circumstances, the plaintiff respondent No. 1 cannot be given the benefit of declaration of his title over the total land measuring 1B 2K 10L. So this substantial question of law is to be decided in favour of the defendant appellant. Page 8 of 13

9 10. Per contra, Mr. GN Sahewalla, learned senior counsel appearing on behalf of the plaintiff respondents, submits that the learned courts below while deciding issue No. 4 had came to the conclusion that the plaintiff respondent No. 1 is the owner of the suit land measuring 1B 2K 10L and as such this substantial question of law has no merit. Regarding the argument advanced by Ms. Barman with regard to the reduction of the area of land measuring 1B 2K 10L, Mr. Sahewalla submits that the courts below had not done any mistake by granting the said declaration on the basis of available documents before the court. Accordingly, Mr. Sahewalla submits that this question cannot at all be a substantial one in adjudicating the rights of the parties to the suit. 11. Perused the judgments of both the learned courts below. The learned trial court while deciding the issue No. 4 had correctly came to the finding that the plaintiff respondent No. 1 is the owner of the suit land measuring 1B 2K 10L and from the said finding which has been upheld by the learned first appellate court, it cannot be attributed that wrong finding has been given by the courts below by declaring the right, title and interest of the plaintiff respondent No. 1. In fact, it is the case of the plaintiff respondents that the plaintiff respondent No. 1 on the strength of an agreement for sale entered into with the plaintiff respondent No. 2, had delivered possession of the land measuring 1B 2K 10L. This fact of delivery of possession has not been disputed by the defendant appellants. Section 54 of the Transfer of Property Act specifically stipulates that a contract for sale does not create any interest or charge on such property which is the subject matter of an agreement for sale. But this is a case wherein the plaintiff respondent No. 1 along with the plaintiff respondent No. 2 has filed the Page 9 of 13

10 suit for declaration of right, title and interest though it clubbed both the plaintiffs in the prayer portion of the plaint, however, both the courts below have specifically came to a finding that it is the plaintiff respondent No. 1 who is the owner of the land measuring 1B 2K 10L. But as the cause of action occurred to both the plaintiff respondents is a common one, under such circumstances, the suit so filed cannot be said to be defective, inasmuch as, though a contract for sale does not create interest of the plaintiff respondent No. 2 over the suit land but in order to protect the possession so delivered by the plaintiff respondent No. 1 to the plaintiff respondent No. 2, instead of filing two separate suits both the plaintiffs preferred the said suit jointly. As per the allegations levelled in the plaint, the act of threatening by the defendant appellants is a direct attack on the title subsisting on the plaintiff respondent No. 1 and the possession maintained by the plaintiff respondent No. 2. Accordingly, this substantial question of law is decided against the appellant defendants. Substantial question of law No. 2:- Whether the defendants plea of dispossession could have been rejected by the court below on the ground of examination of official witness, although evidence on record discloses such dispossession? 12. Ms. Barman, learned counsel, submits that as apparent from the schedules of the suit land described in the plaint and the counter claim, it is very much apparent that there exists a road on the western side of both the schedules. Ms. Barman further takes this court to the cross examination of the PW 1 (the plaintiff respondent No. 1) and submits that the said plaintiff respondent No. 1 had deposed that a portion of his land had been given for the Page 10 of 13

11 road. She also submits that the case of the defendant appellants is for recovery of possession with respect to specific portion of land out of 2K 10L of land. On the face of the deposition of PW 1 that some portions of land of the PW 1 had been given away for the road, a duty was cast upon both the courts below to appoint an Amin Commission, inasmuch as, both the courts below came to the finding that none of the parties to the suit had examined any official witnesses to specify the quantum of land encroached by the plaintiffs or the defendants and further holding that they would have been the material witnesses for proper adjudication of the disputes between the parties. Ms. Barman further submits that there are material evidence on record to show that the defendant appellants were dispossessed from the suit land measuring 3 x 400 as pleaded in the counter claim by the defendant appellants which was denied by the plaintiff respondents. Under such circumstances, both the courts below were not correct in discarding the fact of dispossession by the plaintiff respondents. 13. Mr. Sahewalla against the submissions of the learned counsel for the appellant, submits that none of the parties, more specifically the defendant appellants ever pleaded before the learned courts below for appointing an Amin Commissioner in order to measure the respective land under the respective possession of the parties to the suit. Accordingly, both the learned courts below came to the conclusion that the burden to prove the dispossession of the defendant appellants by the plaintiff respondents had not been discharged by the defendant appellants. Under such circumstances, the present substantial question of law is not substantial enough to decide the disputes between the Page 11 of 13

12 parties and as such this substantial question of law is to be decided in the negative. 14. Perused the case records and the evidence of the defendant appellant No. 2 (DW 1). In his chief he stated the fact of dispossession on by the plaintiff respondent No. 2 and in his cross examination he deposed that on the northern side of the land he is possessing and he is entitled for another 4 feet of land. The plaintiff respondent No. 1 while deposing as PW 1 in his cross stated that on he filed the suit and the court was pleased to pass an ex parte temporary injunction and thereafter on he raised pucca wall. It is the case of the defendant appellants that after getting an ex parte temporary injunction from the court the plaintiff respondent No. 2 trespassed into the suit land and removed the boundaries completely on Under such circumstances and on the basis of the materials on record and the pleadings there was a duty cast upon the court below at least to appoint an Amin Commission under the provisions of Order XXVI Rule 9 of the Code of Civil Procedure. Order XXVI Rule 9 of the CPC is reproduced below for ready reference:- 9. Commissions to make local investigations. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. Page 12 of 13

13 15. The opening line of the said Order XXVI Rule 9 of the CPC shows that it is the court which deems fit for the purpose of elucidating any matter in dispute may issue a Commission directing it to make local investigation. In the present case in hand, both the learned courts below came to a finding that the necessity of examining of official witnesses was there but as none of the parties brought such witnesses so fact of dispossession could not be proved. This finding is a wrong finding by both the courts below and as such this substantial question of law is decided in the affirmative. 16. In the result, this second appeal succeeds. The judgment and decree passed in title appeal No. 13/2006 by the learned Civil Judge, Barpeta is hereby set aside and the matter is remanded to decide the same afresh as per observations made herein above after appointing an Amin Commission, issuing a proper writ and considering the report subject to practice and procedure in that regard. 17. Send back the lower court records immediately. 18. The learned first appellate court shall immediately on receipt of the records notify the parties to the appeal informing the date of appearance and thereafter make an endeavour to dispose of the appeal within a period of 3 months from the date of receipt of the lower court records. No order as to costs. BiswaS JUDGE Page 13 of 13

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