Gauhati High Court
Joy Mohan Das vs On The Death Of Niharendu Bagchi His ... on 28 September, 2015
Author: A. K. Goswami
Bench: A. K. Goswami
1
[FOR REPORTING]
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
RSA 102/2006
Sri Joy Mohan Das
Son of Late Nilmoni Das
Resident of Village Bagargool,
P.O. Rakeshnagar,
Police Station and District: Karimganj, Assam
- Appellant/Defendant
- Versus -
1. Shri Niharendu Bagchi
Son of Late Mohesh Chandra Bagchi
** On the death of Niharendra Bagchi, his legal heir -
Smti. Gouri Bagchi as per Hon'ble Court's order dated 27.07.12 in
Misc. Case NO. 2158/2011.
2. Shri Sushil Ranjan Bhattacharjee
Son of Late Ram Ranjan Bhattacharjee
Village Bagargool, Post Office: Rakeshnagar,
Police Station and District: Karimganj (Assam)
- Respondents/Plaintiffs
3. Shri Monoranjan Nath
Son of Late Shambhu Nath
4. Shri Purna Narayan Das
Son of not known
5. Shri Ramani Kanta Das
Father's name not known
6. Shri Prafulla Kumar Das
Father's name not known
7. Shri Nabarang Das
Father's name not known
8. Shri Paresh Chandra Das
Father's name not known
*9. Abdul Wahid, Deed writer
Father's name not known
Residing at Vill-Daggram, Ph. Rofinagar
P.S. and District: Karimganj
- Respondents/Principal Defendants
*10. Smti. Sefali Rani Paul
W/o Lt. Sudhir Ch. Paul,
At present resident at Village-Bagbari,
P.O. Kaliganj Bazar, P.S. and District: Karimganj,
C/o Sukumar Paul
11. Shri Satya Ranjan Nath
12. Shri Chitta Ranjan Nath
Both are the sons of Late Shambhu Nath
Residents of village Bagargool
P.O. Rakeshnagar, P.S. and District: Karimganj, Assam
*13. The State of Assam
2
14. The Deputy Commissioner,
Karimganj, P.O., P.S. and District: Karimganj, Assam
15. Settlement Officer, Karimganj
P.O., P.S. and District: Karimganj, Assam
- Respondents/Pro forma Defendants
* The names of respondent Nos. 9, 10 and 13 are struck off as per
Hon'ble Court's order dated 10.05.2010.
Advocates:
For the appellant : Mr. S. K. Ghosh, Advocate
For the Respondents : Mr. S. Dey, Advocate
RSA 103/2006
Sri Joy Mohan Das
Son of Late Nilmoni Das
Resident of Village Maiz Bagargool,
P.O. Rakeshnagar,
P.S. and District: Karimganj, Assam
- Appellant/Plaintiff
- Versus -
1. Shri Monoranjan Nath
Son of Late Shambhu Nath
Resident of village Bagargool
Post Office: Rakeshnagar
Police Station and District: Karimganj (Assam).
2. Shri Amrit Bagchi alias Shri Niharendu Bagchi,
Son of Late Mahesh Chandra Bagchi,
Resident of village Maiz Bagargool,
Post Office: Rakeshnagar,
Police Station and District: Karimganj, Assam
** On the death of Respondent No. 2, his legal heir -
Smti. Gouri Bagchi as per Hon'ble Court's order dated 15.11.12 in
Misc. Case NO. 2159/2011.
3. Shri Sushil Ranjan Bhattacharjee
Son of Late Ram Ranjan Bhattacharjee
Village Bdagargool, Post Office: Rakeshnagar,
Police Station and District: Karimganj (Assam)
- Respondents/Defendants
Advocates:
For the appellant : Mr. S. K. Ghosh,
Advocate
For the Respondent Nos. 2 and 3 : Mr. S. Dey, Advocate
Dates of hearing : 21.09.2015 and
28.09.2015
Date of judgment and order : 28.09.2015
3
BEFORE
HON'BLE MR. JUSTICE A. K. GOSWAMI
JUDGMENT AND ORDER
(ORAL)
Heard Mr. S. K. Ghosh, learned counsel for the appellant in both the appeals. Also heard Mr. S. Dey, learned counsel for the respondents/plaintiffs in RSA 102/2006; and for respondent Nos. 2 and 3 in RSA 103/2006. Defendant No. 1 has not entered appearance in RSA 103/2006. He had not entered appearance in the Courts below also.
2. RSA 102/2006 is preferred against the judgment and decree dated 02.01.2006, passed by the learned District Judge, Karimganj, in Title Appeal No. 16/2005, dismissing the appeal and affirming the judgment and decree dated 27.09.2002, passed by the learned Civil Judge, Junior Division No. 1, in Title Suit No. 269/1999 dismissing the suit of the plaintiffs.
3. Title Suit No. 269/1999 was filed by the plaintiffs praying for declaration of right, title and interest in respect of Schedule-1 to the plaint; declaration of maliki right in respect of the house described in the Schedule-2 to the plaint; recovery of khas possession of the property as described in Schedule-2 to the plaint by evicting the principal defendant No. 1, namely, Joy Mohan Das; and permanent injunction restraining the principal defendant No. 1 and his men, etc., from changing the existing nature and feature of the property. In Title Suit No. 269/1999, defendant No. 2 is one Manoranjan Nath and the pro forma defendant Nos. 10 and 11 are Satya Ranjan Nath and Chittaranjan Nath, respectively. Defendant No. 2 and pro forma defendant Nos. 10 and 11 are sons of Late Sambhu Nath. Pro forma defendant No. 9 is Sefali Rani Pal, the vendor of the plaintiffs. Satya Ranjan Nath and Cittaranjan Nath are the vendors in respect of the property sold to Sefali Rani Paul.
4. RSA 103/2006 is preferred against the judgment and decree dated 02.01.2006, passed by the learned District Judge, Karimganj, in Title Appeal No. 10/2005, dismissing the appeal and affirming the judgment and decree dated 27.09.2002, passed by the learned 4 Civil Judge, Junior Division No. 1, Karimganj, in Title Suit No. 102/1998, whereby the suit of the plaintiff, namely, Joy Mohan Das was dismissed.
5. The aforesaid Title Suit No. 102/1998 was filed for specific performance of a contract in respect of an agreement for sale dated 03.06.1998, executed by and between the plaintiff and the defendant No. 1, Manoranjan Nath. An amount of Rs. 8,000/-, out of the total consideration amount of Rs. 10,000/-, was stated to have been paid by the plaintiff to the defendant No. 1.
6. Both the appeals were admitted to be heard by separate orders passed on 18.07.2006. RSA 102/2006 was admitted to be heard on the following substantial questions of law:
"1. Whether the findings of the learned trial court in regard to issue No. 2 is perverse?
2. Whether the suit of the plaintiffs for declaration of right, title and interest and recovery of possession of the suit land is barred under proviso to Section 34 of the Specific Relief Act inasmuch as the suit land is a part of the ejmali land without making any prayer for partition?"
7. RSA 103/2006 was admitted to be heard on the following substantial questions of law:
"1. Whether the learned courts below erred in law in not deciding issue No. 3 which is the crux of the case?
2. Whether the lower appellate judgment is in conformity with the provisions of the Order 41 Rule 31 CPC?"
8. Learned counsel for the parties submitted that if RSA 102/2006 is decided against the appellant, nothing will survive for consideration in RSA 103/2006 and, therefore, it will be appropriate to first deal with RSA 102/2006.
5
9. At the hearing, Mr. Ghosh has submitted that he will not be pressing substantial question of law No. 1 in RSA 102/2006, relating to Issue No. 2, i.e., whether the suit is barred by limitation.
10. The pleaded case in Title Suit No. 269/1999, in short, is that pro forma defendant No. 9 had purchased the Schedule-1 property from pro forma defendant Nos. 10 and 11 by a registered sale deed dated 31.03.1969 and, thereafter, was in possession of the land by improving the same. Some temporary bharatias (tenants) were residing in temporary row of houses towards the eastern and northern side of the land and, by a registered sale deed dated 24.12.1997, the pro forma defendant No. 9 sold the Schedule-1 property along with the houses described in Schedule-2, which is a part of Schedule-1 land, to the plaintiffs. There was amicable settlement with the temporary bharatias and they shifted elsewhere and the house, existing on the eastern part of the suit land, described in Schedule-2, was in exclusive possession of the plaintiffs since the time of their purchase. It is averred that pro forma defendant Nos. 10 and 11 acquired the Schedule-1 property by way of amicable partition amongst the three brothers including the defendant No. 2. The defendant No. 1, who was also a temporary bharatia, had delivered possession of the house standing on Schedule-2 on 24.12.1997. However, subsequently, in collusion with defendant No. 2, the principal defendant No. 1 created a collusive unregistered baina patra on 03.06.1998 in respect of the property of the plaintiffs as described in Schedule-2, whereby the defendant No. 2 proposed to sell the said land to the defendant No. 1. Subsequently, for specific performance of the contract, defendant No. 1, as plaintiff, filed Title Suit No. 102/98. It is averred that on 02.07.1998, at midnight, the defendant No. 1 broke open the lock of the house standing in Schedule-2 and occupied the same.
11. The defendant No. 1 filed written statement denying the allegations made in the plaint and stating that following an amicable partition, Manoranjan Nath, defendant No. 2, became the sole jote owner and possessor of the "schedule land" along with other lands. Defendant No. 1 took the land under possession of Manoranjan Nath, filled up the same 6 with earth and raised a thatched house and planted fruit-bearing trees, betel-nut, etc. and he paid monthly licence fee of Rs. 80/- to the defendant No. 2, which was subsequently enhanced to Rs. 120/-. Averments were also made with regard to the filing a Title Suit, being Title Suit No. 102/98, for failure of the defendant No. 2 to execute sale deed pursuant to the agreement entered into by and between him and defendant No. 2 on 03.06.1998. Defendant No. 2, Manoranjan Nath, also filed written statement stating that his two brothers did not have any right, title and interest in respect of 2 decimals of land in the eastern portion, out of 6 decimals of land sold to the plaintiffs and, according to the partition, each of the brothers got 2 decimals of land each. The land belonging to him was not sold to Sefali by his two brothers. It was also stated that the defendant No. 1 was licensee under him and he acknowledged execution of the unregistered agreement for sale on 03.06.1998. It is averred that Schedule-1 land of the plaint never exclusively belonged to the pro forma defendant Nos. 10 and 11.
12. It is relevant to note that though the defendant No. 2 filed written statement, he did not examine himself and also did not file any counter-claim in respect of the Schedule-1 property or part thereof as described in the plaint.
13. It is not disputed by Mr. S. K. Ghosh, on a query raised by the Court, that the boundary shown in Ext.-1, i.e., sale deed executed by pro forma defendant Nos. 10 and 11 in favour of pro forma defendant No. 9, and the boundary shown in Ext.-3, the sale deed executed by Sefali, pro forma defendant No. 9, in favour of the plaintiff are identical. However, learned counsel for the appellant submits that there is some doubt with regard to the area of the land mentioned in both the deeds. It is contended by him that the learned courts below did not advert to the discrepancy in the area of land in both the sale deeds and, therefore, declaration of right, title and interest in favour of the plaintiffs is not sustainable.
14. On the other hand, Mr. Dey has submitted that there is no dispute with regard to the boundary of the land involved and the categorical evidence on record is that pro forma 7 defendant No. 9 had transferred the land to the plaintiffs in the year 1997, by way of registered sale deed dated 24.12.1997. It is submitted by him that there is also no dispute that the land originally belonged to Shambhu Nath. Two sons of Shambhu Nath had transferred the Schedule-1 property to pro forma defendant No. 9 in the year 1969, i.e., more than 30 years back and all along Manoranjan Nath, the other son of Shambhu Nath, never challenged such sale deed. Even in the present proceedings, Manoranjan Nath did not depose to support the plea that 2 decimals of land in the eastern portion of the Schedule-1 land belonged to him. Accordingly, he submits that no case is made out for interference and the appeal deserves to be dismissed.
15. The sum and substance of the argument of Mr. Ghosh is that Manoranjan Nath has 2 decimals of land within Schedule-1 and the defendant No. 1 set up a tea stall as a licensee of defendant No. 2. As Manoranjan Nath had right, title and interest in respect of 2 decimals of land, he had also executed an agreement for sale in favour of defendant No. 1 in respect of 2 decimals of land. In this connection, it is relevant to note that while pro forma defendant Nos. 10 and 11 had transferred Schedule-1 property by way of a registered sale deed dated 31.03.1969, Ext.-1, to pro forma defendant No. 9, a plot of land with the said specific boundary was transferred to the plaintiffs by pro forma defendant No. 9 by registered sale deed dated 24.12.1997, Ext.-3. The sale deed, Ext.-1, does not show Manoranjan Nath as having any land in any side of the land sold. If the argument of the learned counsel for the appellant is to be accepted, Manoranjan Nath ought to have been shown in the eastern boundary as, according him, Manoranjan Nath had 2 decimals of land in the eastern side. However, it is evident from the sale deed, Ext.-1, that there is a road in the eastern boundary of the land sold to Sefali, pro forma defendant No. 9, by pro forma defendant Nos. 10 and 11. This very fact belies the claim of the appellant that beyond the land sold to Sefali, there were 2 decimals of land on the eastern side belonging to Manoranjan Nath. The defendant No. 1 also did not produce any evidence of payment of licencee fee to Manoranjan Nath.
8
16. It appears that by the aforesaid sale deed, Ext.-1, entire land of Shambhu Nath, in the relevant Khatian, was sold to pro forma defendant No. 9. The defendant No. 2 never raised any dispute with regard to the sale deed, Ext.-1, though more than 30 years had elapsed. Sefali, i.e., pro forma defendant No. 9 also transferred the same very land with the same boundary to the plaintiffs. In view of the above, any difference in Ext.-1 and Ext.-3 in mentioning the quantum of land will be of no consequence as the identity of the property sold is well established by the specific boundary and any difference in the quantum of land will have to be treated as mis-description not affecting the identity of the land sold.
17. From the discussions above, it is clear that the suit land is not part of any ejmali land. The land belonged to Sefali Rani Paul, who transferred the same to the plaintiffs and, therefore, there was no occasion for the plaintiffs for making any prayer for partition of the suit land. Substantial question of law No. 2 in RSA 102/2006 is answered accordingly.
18. In view of the above, I find no merit in this appeal and, accordingly, the appeal is dismissed.
19. As the plaintiffs in Title Suit No. 269/1999 is found to have right, title and interest in respect of the Schedule-1 property, logically it follows that Manoranjan Nath did not have any right, title and interest to make any agreement for sale in respect of any part of the Schedule-1 property. Consequently, no interference is called for in RSA 103/2006 and, accordingly, the same is also dismissed. No cost.
20. Registry will send back the records.
JUDGE RK 9