IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Transcription

1 RSA NO. 156/2005 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) RSA 156/2005 Sri Pramendra Bijoy Roy, S/o Late Ramesh Chandra Roy, Silchar Road (Hailakandi Bus Stand), Karimganj Town, ward No. 27, Holding No. 129, P.S. & Dist.- Karimganj, Assam. - Appellant/plaintiff. Versus- 1. On the death of respondent No.1 his legal heirs are- (i) Mrs. Nisha Roy (wife) (ii) Raj Sekhar Roy (Son) (iii) Dip Sekhar Roy (Son) 2. Sri Ramendra Bijoy Roy, 3. Sri Ritendra Bijoy Roy, 4. Sri Soumendra Bijoy Roy, 5. Sri Rahulendra Bijoy Roy, All are sons of Late Ramesh Chandra Roy, Silchar Road, Karimganj, (Hailakandi Bus Stand), Ward No. 27, P.O. & P.S. & Dist. Karimganj, Assam. 6. Smti. Aroti Das, D/O. Late Ramesh Chandra Roy, W/o Biroja Kanta Das, Nilmoni Road, Karimganj, P.O, P.S. & Dist. Karimganj, Assam. 7. Smti. Pronoti Roy, D/O Late Ramesh Chandra Roy, W/O. Sri Dijendra Lal Roy, Vill. & P.O. Marjatkandi, P.S. Badarpur, Dist. Karimganj, Assam. 1 - Respondent/defendants

2 BEFORE HON BLE MR. JUSTICE Prasanta Kumar Deka Advocate for the appellant/petitioner: Mr. B Banerjee, Sr. Counsel. Advocate for the Respondent/Defendant: Mr. N. Dhar Date of hearing & Judgment: JUDGMENT AND ORDER (ORAL) Heard Mr. B Banerjee, learned Sr. Counsel for the appellant and Sri. N. Dhar the learned counsel for the respondent. 2. This second appeal has arisen from the judgment and the decree dated 16/12/2004 passed by the Civil Judge (Senior Division), Karimganj, in Title Appeal No. 40/1997 arising out of the judgment and decree dated 29/07/1997 passed by the Civil Judge (Junior Division), Karimganj, in Title Suit No. 243/1993. The present appellant was the plaintiff who filed the Title Suit No. 243/1993 against the respondent /defendant, who are the brothers and sister of the appellant. The fact of the case of the plaintiff/appellant is that the land described in Dag No. 1 of Schedule 1 of the plaint was purchased by the predecessor of the plaintiff and defendants Late. Ramesh Ch. Roy. Similarly, said Ramesh Chandra Roy purchased land area mentioned in Dag No. 2 of Schedule 1 of the plaint. Said Ramesh Chandra Roy predecessor in interest died living behind the plaintiff appellant and the principal defendant /respondents as his legal heirs. The plaintiff/appellant and the principal defendant/respondent inherited the property left by their predecessor to the extent of 1/9 th share described in the Dag No. 1 & 2 of Schedule 1 of the plaint. In the year , there was a family arrangement and accordingly to that family arrangement the home stead land in Dag No. 2 of the second Schedule, fell in the share of the plaintiff/appellant. The plaintiff/appellant and the respondent/defendants got separated in the year The appellant having obtained his share constructed an Assam Type House for his

3 residence and in order to earn his livelihood started a hotel on the low lying area within the second Schedule and presently in the Western portion of the hotel. The plaintiff/appellant started motor spare part shop. The defendant/respondents out of jealous and disregarding the family arrangement denying the right of the plaintiff/appellant over his allotted share and making attempts to dispossess him from the same. So the suit was filed by to the plaintiff for the relief(s) as stated herein below: a. For declaration of title over the land particularly described in dag no. 1 and 2 of Schedule 1 is allotted to the plaintiff by amicable family settlement among the plaintiff and the defendants keeping the pond and the common path is ejmali along with 1/9 th (one-ninth) share of defendant no. 6,7, 8 each is kept in enjoyment of the plaintiff and the defendant No. 1 to 5 and for declaration that the land particularly described in dag no. 1 and 2 of schedule 2 is allotted to the plaintiff by amicable family settlement amongst the co-sharers and for declaration and confirmation of possession of the plaintiff over the houses constructed by him by maliki right particularly described in Schedule 3. b. For permanent injunction restraining the defendants from creating disturbance in possession of the plaintiff. c. Alternatively in the event of refusal of the amicable family partition by the defendants, if this family partition is not proved in this Hon ble Court, the plaintiffs claims for imperfect partition beyond the revenue department regarding his share in respect of the land described in schedule 1 and 2, and for a preliminary decree accordingly thereafter final decree with permanent injunction and confirmation of possession over the houses and latrine constructed by him over the land particularly described in dag no. 1 and 2 of Schedule 2 with cost of this suit. d. For any other relief(s) which the plaintiff is entitled. RSA 156 OF 2005 Page 3

4 3. The Principal defendant/respondents 1 to 5 submitted the written statement jointly and the defendants 6 to 8 failed to contest the claim of the plaintiff and as such the suit proceeded ex-party against them. The present respondent in their written statement pleaded that there was a family arrangement in the year 1986 with respect to the property mentioned in Schedule 1 of the plaint. The plaintiff/appellant according to that arrangement had been allowed the share mentioned in Dag No. 1 of Schedule 2 of the plaint. In addition, it was further pleaded that the respondents in order to engage the plaintiff/appellant who was un-employed, started a hotel in the year 1985 on Dag no. 2 of Schedule 2 and the capital so required was invested and contributed by defendants/respondents 1 to 4. It was also pleaded that the land mentioned in Dag No. 2 of Schedule 2 had been left as ejmali property of the plaintiff/appellant and the respondents in order to enjoy a common path over the land mentioned in first schedule from their respective shares of land within Schedule 1. The respondent/defendants pleaded that the plaintiff/appellant has no right over the land mentioned in Dag no. 2 of second Schedule and that his claim over the land of Dag no. 2 of second Schedule is illegal for the said reason. The respondents pleaded that the suit of the plaintiff/appellant be dismissed. The trial Court upon the pleadings framed the following issues. ISSUES 1. Is there any cause of action for the suit? 2. Whether the plaintiff has right, title and possession over the land described in dag no. 2 of the schedule 2 of the plaint? 3. Whether plaintiff has 1/9 th share of the land described in dag 1 and 2 of the schedule 1 of the plaint in ejmali with the principal defendants? 4. Whether the plaintiff is entitled to a decree as prayed for? 5. To what relief or reliefs if any the plaintiffs are entitled to? 4. The plaintiff/appellant examined 3(three) witnesses and exhibited some documents who were cross-examined by the respondents/defendants. However, none of the respondents/defendants adduced any evidence nor came to the witness box in support

5 of the defence taken in the written statement. The trial Court after hearing the parties of the respective learned Counsel dismissed the suit of the plaintiff/appellant. 5. Being aggrieved, the plaintiff/appellant preferred Title Appeal No. 40/97 thereby impugned the judgment and decree dated 29/07/1997 passed by the Civil Judge (Junior Division), Karimganj, in Title Suit 243/1993 and which was registered as Title Appeal No. 40/97 in the Court of Civil Judge (Senior-Division), Karimganj. The learned Civil Judge (Senior Division), Karimganj, after hearing the parties vide his judgment and decree dated 16/12/2004 dismissed Title appeal No. 40/ Being aggrieved, the plaintiff/appellant has preferred this second appeal thereby challenging the judgment and the decree passed by the ld. Civil Judge (Senior Division), Karimganj, in Title Appeal No. 40/1997. The second appeal was admitted on the following substantial question of law. Whether the findings of the learned Courts below that the plaintiff was never allotted plot of land in term of alleged family arrangement in perverse? 7. The ld. 1 st appellate Court while disposing of the first appeal categorized the points for determination as follows:- 1. Whether the plaintiff has 1/9 th share of land described in Dag no. 1 and 2 of Schedule 1 in ejmali along with principal defendants. 2. Whether the plaintiff right, title and interest and possession over the land described in Dag No. 2 of Schedule 2 of the plaint. 8. While deciding the point no. 1, the ld. 1 st appellate Court below has come to the conclusion that the suit land was jointly inherited by both plaintiff and defendants as legal heirs of Late. Ramesh Chandra Roy to the extent of 1/9 th share over Dag no. 1 to 2 of Schedule 1 of the plaint. 9. While deciding the point for determination no. 2 the ld. 1 st appellate Court below has considered the evidence on record of all the plaintiff witnesses including that of plaintiff appellant and finally came to the conclusion that there was no well comprehensive, congruent and clinching evidence to show that Dag no. 2 of Schedule 2 was allotted to the plaintiff (appellant) by the way of family settlement. The ld. 1 st appellate Court RSA 156 OF 2005 Page 5

6 below while discussing the point no. 2 for determination took into consideration, the averments made in the written statement by the respondents/defendants on its fullface value though none of the defendants/respondents came to the witness-box to depose in support of the defence taken in the written statement. So an adverse inference U/s 114 of the Evidence Act, 1872 can be inferred against the defendant/respondents that the defence taken in the written statement are far from truth. In Vidyashar-Vs-Manikrao and another as reported in AIR 1999 SC 1441, The Hon ble Apex Court held that where a party to the suit does not appear into the witness box and states his own case on path and does not offer himself to be examined by the other side, a presumption would arise that the case set up by him is not correct. 10. I have gone through the record and the evidence led by the plaintiff/appellant side and the cross-examination thereof. From the evidence the plaintiff/appellant as PW-1 failed to show that there was a family arrangement on the basis of which the dag no. 2 of Schedule 2 was allotted to him as his share. Rather, it is apparent that the said land covered by Dag no. 2 Schedule 2 is a land classified as Patit. As per the said classification the said land has no agricultural value and as apparent from the schedule of the plaint, the said land has been used as a common path. The rest of the witnesses on behalf of the plaintiff/appellant also failed to support, the contention of the plaintiff/appellant that the land of Dag no. 2 of Schedule 2 was allotted to the plaintiff/appellant for his exclusive use and his exclusive share. Thus, the answer to the substantial question of law, having gone through the whole record including the evidence on record is that, there is no perversity in the findings recorded with regard to the non allotment of Dag no. 2 of Schedule 2 of the plaintiff appellant. 11. The learned First appellate Court while passing the impugned judgment considered the various pleadings/defence of the respondent/defendants made in their written statement. The said reliance of the pleadings/defence by the first appellate Court is wrong in as much as the defendant/respondent never came to the witness-box in

7 support of their defence nor the plaintiff/appellant had the opportunity to crossexamine the respondent/defendants. However, the finding that the appellant is entitled to 1/9 th share of Dag No. land 2 of schedule 1 land is a finding which is correct in law. However, the finding with respect to the point no. 2 for determination as herein above stated is vitiated in as much as the first Appellate Court by considering the averments made in the written statement had given certain findings which is wrong for the reasons herein above stated in as much as the plaintiff/appellant had no opportunity to cross examine the respondent defendants to test the veracity of the pleadings/defence in the written statements. 12. Under the aforesaid circumstances and considering the dispute to be a family dispute with regard to the share of the legal heirs of Late. Ramesh Chandra Roy and the alternative prayer of this appellant/plaintiff in its plaint and considering the time period that had already exhausted in resolving the dispute between the parties to the suits, I hereby deem it fit and set aside the judgment dated 16/12/2004 passed by the ld. Civil Judge (Senior Division), Karimganj, and remand the matter to the said Court for fresh disposal of the same. Further in the event if either of the parties to the suit decided to adduce evidence and amend their pleadings the said liberty may also be given considering the nature of the dispute. 13. It is hereby ordered that the Title Appeal 40/1997 be remanded to the Court of Civil Judge (Senior Division), Karimganj, and the parties be issued notice intimating the receipt of the record and further proceed even by framing fresh issues to decide the disputes. With this order, this second appeal is disposed of. No cost. Send down the case record at the earliest. JUDGE B.DEY RSA 156 OF 2005 Page 7

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