Gauhati High Court
On The Death Of Narayan Ch. Dey His Legal ... vs Swarnalata Sonowal & Ors on 24 April, 2015
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
RSA No. 127 of 2006
APPELLANTS:
On the death of Narayan Chandra Dey,
His legal heirs, viz.,
1. Smti. Pratima Rani Dey (wife)
2. Shri Ratan Dey (son)
3. Sri Nani Dey (son)
4. Smti. Anjali Rani Dey (daughter)
5. Sri Ranjit Dey (son)
6. Smti. Arati Rani Dey (daughter)
7. Shri Ajit Dey (son)
8. Smti. Ujjala Rani Daughter
9. Shri Chandan Dey (son)
10. Shri Parimal Dey (son)
11. Smti. Gauri Rani Dey (daughter)
12. Smti. Shankari Rani Dey (daughter.
Resident of Ward No.7, Golaghat Town,
Golaghat, PIN - 785621.
-Versus-
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RESPONDENTS :
1. Smti. Swarnalata Sonowal alias Smti. Swarna Sonowal W/o Sri Dandeswar Sonowal, presently residing At Ward No.11, Golaghat Town, P.O. Golaghat Town, District - Golaghat, Assam.
2. Sri Dandeswar Sonowal, S/o Late Mineswar Sonowal, Village - Mokrong Ghiladhani Mouza Presently residing at Ward No.11, Golaghat Town, P.O. Golaghat Town, District - Golaghat, Assam.
3. Sri Brojendra Lal Dutta, S/o Late Gagan Ch. Dutta, Ward No.4, Golaghat Town, P.O. Golaghat, Dist. Golaghat.
4. Sri Leonard Smart, Son of Late M.F.W. Smart, Ward No.7, Golaghat Town, P.O. Golaghat, Dist. Golaghat.
5. Smt. Porimai Smart W/o Late Ivan Smart, Ward No.7, Golaghat Town, P.O. Golaghat, Dist. Golaghat.
6. Sri Lal Smart, S/o Late Ivan Smart, Ward No.7, Golaghat Town, P.O. Golaghat, Dist. Golaghat.
7. Sri Jefari Smart, S/o Late Ivan Smart, Ward No.7, Golaghat Town, P.O. Golaghat, Dist. Golaghat.
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8. Sri Jack Smart, S/o Late Ivan Smart, Ward No.7, Golaghat Town, P.O. Golaghat, Dist. Golaghat.
9. Sri Devid Smart, S/o Late Ivan Smart, Ward No.7, Golaghat Town, P.O. Golaghat, Dist. Golaghat.
10. Sri Gojen Phukan, S/o Not known Warden, District Jail, Golaghat, P.O. Golaghat, District - Golaghat.
11. Smti. Makan Nissa (Begum) W/o Not known, Ward No.7, Golaghat Town, P.O. Golaghat, Dist. Golaghat.
12. Shri Gandhi Smart, S/o Late Ivan Smart, Ward No.7, Golaghat Town, P.O. Golaghat, Dist. Golaghat.
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the appellant : Mr. B. Banerjee, Sr. Advocate.
Mr. R. Goswami, Advocate.
For the respondents : Ms. B. Dutta, Sr. Advocate.
Mr. A. Dutta, Advocate.
Dates of hearing : 23.04.2015 & 24.04.2015.
Date of Judgment : 24.04.2015.
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JUDGMENT AND ORDER (Oral)
1. This Second Appeal has been preferred against the judgment dated 27.04.2006 and decree dated 29.04.2006 passed by the learned Civil Judge (Senior Division), Golaghat in Title Appeal No.4/2005 dismissing the appeal and affirming the judgment and decree dated 21.02.2004 passed by the learned Civil Judge (Junior Division) No.1, Golaghat in Title Suit No.37/1993.
2. The brief facts of the case emerging from the records is that land measuring 16 Lechas covered by dag No.2511 of PP No.102 of Golaghat Town originally belonged to Aida Clerk who was also the owner of other plots of land covered by different dags. According to the Plaintiffs, the proforma defendant No.2 viz. Brojendra Lal Dutta had purchased land measuring 12 Lechas covered by dag No.2511 of PP No.102 of Golaghat Town from Ivana Smart i.e. legal heir of Aida Clerk, pursuant whereto he was put in possession in respect of the said plot of land. Thereafter, by a registered deed of sale dated 17.01.1981 Page 4 of 32 the plaintiff No.2 purchased the suit land in the name of his wife i.e. the plaintiff No.1 from the proforma defendant No.2 for a sale consideration of Rs.9500/- whereafter, the proforma defendant No.2 had delivered possession of the said land in favour of the plaintiffs. The plaintiff No.1 had also got her name duly mutated in respect of the said plot of land and she has been possessing the same by paying land revenue.
3. The case of the Plaintiffs is that when the plaintiff No.1 had filed a petition praying for mutation of her name in the revenue records, the defendant No.1, Narayan Chandra Dey i.e. the predecessor-in-interest of the appellants had raised objection to such mutation on the ground that the plaintiff No.1 did not have right, title and interest over the said plot of land measuring 12 Lechas. However, the learned SDC had rejected the plea of the defendant No.1 Narayan Chandra Dey and granted mutation in favour of the plaintiff No.1 by the order dated 27.05.1982. Subsequently, the learned S.D.O., Golaghat Page 5 of 32 had upheld the said order of mutation dated 27.05.1982 as a result of which the defendant No.1 had preferred an appeal being RA No.94(S)/84 before the Assam Board of Revenue which had also ended in dismissal on 06.01.1984.
4. It is the pleaded case of the plaintiffs that after having purchased the plot of land from Ivana Smart, the proforma defendant No.2 had constructed a small house over the land and the same was given on rent to one Gajen Phukan (proforma defendant No.9). Gajen Phukan was an employee of the Golaghat Jail and was occupying the said house on paying a monthly rent of Rs.20/- to the proforma defendant No.2. After the plaintiff No.1 had purchased the aforesaid plot of land together with the house standing thereupon from the proforma defendant No.2 by means of registered deed of sale dated 17.01.1981, Gajen Phukan continued to occupy the house by attorning the tenancy in favour of the plaintiff No 1. After some time said Gajen Phukan was transferred from Golaghat but he continued to occupy the said Page 6 of 32 house standing over the suit land. Having noticed the aforesaid position the defendant No.1 exerted influence over the family members of Gajen Phukan and took control of the rented premises after getting the same vacated. The plaintiffs have alleged that in this manner the defendant no 1 had trespassed into the house standing over the suit land belonging to the plaintiff no 1. Being aggrieved by such conduct of the defendant No.1, the plaintiff had to institute a proceeding under Section 145 of the Cr.P.C. However, it has been pleaded by the plaintiffs, around that time the plaintiff No.2 had met with an accident as a result of which he had a fractured leg and therefore had to camp at Dibrugarh for receiving medical treatment. Taking advantage of the absence of the plaintiffs from Golaghat, the defendant No.1 had installed a statue of Lord Shiva upon the suit land. Thereafter, the defendant No.1 had also attempted to raise a pandal over the suit land for the purpose of celebrating Durga Puja in the year 1986. However, the defendant No.1 did not succeed in his attempt on the Page 7 of 32 face of objection raised by the proforma defendant No.10, Makan Nessa, a resident in a plot adjacent to the suit land, who had approached the District administration and successfully stalled the bid on the part of the defendant No.1 to erect a pandal over the suit land.
5. It has also been mentioned in the plaint that earlier the defendant No.1 had instituted Title Suit No.31/1971 in the Court of Munsiff, Golaghat against the proforma defendant No.2 Brojendra Lal Dutta as the main defendant and some other persons seeking declaration of his right, title and interest and also for recovery of possession in respect of 4 Lechas of land covered by dag No.2511/3547 of PP No.1337. The said Title Suit was dismissed by the learned Munsiff, Golaghat with cost by the judgment and decree dated 09.03.1979. Subsequently, when the defendant No.1 was prevented from erecting the pandal for holding Durga Puja he had approached the court of learned Munsiff, Golaghat by filing Title Suit No.30/1986 under Section 6 of the Specific Page 8 of 32 Relief Act alleging that he has been illegally dispossessed from an area of land measuring 4 Lechas covered by dag No.2511 of PP No.102 of Golaghat Town. By the judgment and decree dated 05.05.1995 the learned Munsiff, Golaghat had decreed the suit of the defendant No.1 (plaintiff therein). It is the case of the plaintiffs that the judgment and decree passed is T.S 30/ 1986 was erroneous in the eye of law and that the aforementioned conduct of the defendant No.1 had clouded the right, title and interest of the plaintiffs over their purchased land measuring 12 Lechas as a result of which the plaintiffs have been compelled to institute Title Suit No.13/1989 (re- numbered as T.S. 37/1993 ), inter alia, praying for declaration of right, title and interest over the suit land measuring 12 Lechas covered by dag No.2511 of PP No.102 of Golaghat Town in Mankhowa mouza and also for a decree of recovery of khas and vacant possession of the suit premises. The plaintiffs have also prayed for a decree for recovery of mesne profit and also for compensation from the defendant No.1.
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6. The Plaintiff's suit had been contested by the defendant No.1 by submitting his written statement, inter alia, contending that the suit is not maintainable due to want of cause of action and that the same was barred by limitation as well as law of res judicata. The defendant No 1 had admitted of having purchased land measuring 2 kathas from Aida Clerk in the year 1964 which is under his possession. The defendant No.1 had further claimed that besides the aforesaid land measuring 2 kathas purchased by him, he had also been in continuous possession of the suit land since the year 1964 and has therefore, set up a plea of acquiring title by adverse possession in respect of the suit land and house standing thereupon. The defendant No.1 had also taken a stand in his written statement that Brojendra Lal Dutta was never in possession of the suit land as the same had been under his possession all along. In order to recover possession of the suit land by a short cut method the plaintiffs had filed a false case under Section 145 Cr.P.C. against him. The defendant Page 10 of 32 No.1 had also alleged that the statue of Lord Shiva was there even before the time he had taken over possession of the suit land from Aida Clerk and the said statue is standing by the side of Kali Mandir constructed long ago without any objection being raised from any quarter. When the defendant No.1 wanted to raise a pandal on a portion of the suit land for performing Durga Puja, obstruction was created by the proforma defendant No.10 out of personal vengeance and on communal grounds. Taking note of such objection raised by the proforma defendant No.10 he was prevented by the local administration from raising the pandal over the suit land for performing Durga Puja.
7. By filing their separate written statements proforma defendant No.2 as well as proforma defendant No.10 admitted and supported the case of the plaintiffs. The proforma defendant No.2 had categorically pleaded that he had sold the suit land measuring 12 Lechas and the house standing there upon to the plaintiff No.1 by means Page 11 of 32 of registered deed of sale dated 17.01.1981 pursuant whereto possession of the land was also delivered and accordingly the plaintiff No.1 got her name mutated in the records of right. The proforma defendant No.2 had also confirmed that he had earlier purchased the suit premises from Ivana Smart by a registered deed of sale dated 2.7.79. He had also pleaded that Title Suit No.31/1971 filed by the defendant No.1 against the proforma defendant No.2 and others for recovery of khas possession of 4 Lechas of land covered by dag No.2511/2547 of PP No.1337 had been dismissed due to lack of evidence supporting the case of the plaintiff therein. The proforma defendant No.2 had also confirmed the fact that he had constructed a house over the suit premises which was let out to the proforma defendant No.9 at a monthly rent of Rs.20/- and that the proforma defendant No.9 had eventually attorned the tenancy in favour of the plaintiffs pursuant whereto he had continued to live in the suit premises as a tenant under the plaintiff Page 12 of 32 No.1 with a stipulation to vacate the same as and when required.
8. The proforma defendant No.10 while supporting the case of the plaintiffs had stated that she had made a complaint to the authorities when the defendant No.1 had made an attempt to raise a pandal on a vacant portion of the suit land for celebration of Durga Puja in the year 1986. She had further alleged that earlier in the year 1984 the defendant No.1 had gathered CI sheets and other materials to raise a pandal for performing Shivaratri in front of her house thereby blocking her passage to the Municipal road for which the police and the concerned authority had to intervene.
9. On the basis of the pleadings of the parties the learned trial Court had framed as many as 7 issues which are as follows :-
"1) Is there any cause of action for the suit?
2) Whether the suit is barred by law of limitation?
3) Whether the defendant acquired the right of adverse possession against its true owner?Page 13 of 32
4) Whether the suit is barred by law of Res- Judicata ?
5) Whether the plaintiff has right, title and interest over the suit land?
6) Whether the deed of sale executed in favour of the plaintiff is inoperative, null and void?
7) To what relief, if any, is the plaintiff entitled?"
10. The plaintiffs' side adduced evidence in the form of four witnesses whereas the defendant side had examined three witnesses. On the basis of the materials available on record and having regard to the submissions made by and on behalf of the parties the learned trial court had decided the Issue No.3 against the appellant/defendant and the Issue No.5 in favour of the plaintiffs/respondents. Consequently, the suit filed by the plaintiffs/respondents was partly decreed by the learned trial court by the judgment and decree dated 21.12.2004 passed in Title Suit No.37/93 by granting the reliefs of declaration and recovery possession of the suit premises. However, the relief of recovery of possession as well as mesne profit was declined by the learned trial court.
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11. Being highly aggrieved and dissatisfied with the judgment and decree dated 21.12.2004 the defendant No.1 as appellant had preferred Title Appeal No.4/2005 in the Court of learned Civil Judge (Senior Division), Golaghat. Upon hearing the learned counsels for the parties the Title Appeal No.4/2005 filed by the present appellant was dismissed by the learned First Appellate Court by the judgment dated 24.07.2006 and decree dated 29.04.2006 respectively.
12. Being aggrieved by the judgment and decree passed in Title Appeal No.4/2005 the defendant No.1 as appellant has preferred the present Second Appeal which has been admitted by this Court to be heard on the following substantial questions of law :-
"Whether the findings of the Court below suffer from perversity in rejecting the ground of adverse possession despite the findings in earlier suits i.e. Title Suit No.31/1971 and Title Suit No.30/1986 read with the admission made in Page 15 of 32 paragraph 6 of the plaint under Order 12 CPC?"
13. I have heard Mr. B. Banerjee, learned senior counsel appearing on behalf of the appellant and also heard Ms. B. Dutta, learned senior counsel representing the respondents/plaintiffs.
14. Mr. Banerjee, learned senior counsel appearing for the appellant, submits that a perusal of the judgment and decree dated 9.3.79 passed in Title Suit No.31/1971 (Ext-6) would go to show that even though the learned Munsiff had dismissed the suit, yet it has been clearly observed that the defendant No.1 i.e. the plaintiff therein was in possession of the suit land measuring 4 Lechas. That apart, even while deciding the Title Suit No.30/1986 the learned Munsiff, Golaghat had clearly recorded in the judgment and decree dated 5.5.95 that it was the defendant No.1 herein who had been in possession of the suit land till 7.10.86 before he was illegally dispossessed by the defendants in the said suit. The aforementioned factual Page 16 of 32 position has also been admitted by the PW 2 in her testimony. Therefore, submits Mr. Banerjee, there was enough material findings on record to show that the defendant No.1 had all along been in possession of the suit land ever since the year 1964. He further submits that the possession of the defendant No.1 besides being continuous is also hostile to the title of the true owner and therefore he has perfected title over the suit land by way of adverse possession.
15. Mr. Banerjee further submits that even though the proforma defendant No.2 claims to have purchased the suit land from Ivana Smart by the registered deed of sale dated 7.7.79 yet on the date of purchase it was the defendant No.1 who was in actual physical possession of the said plot of land and therefore the sale deed dated 7.7.79 was merely a paper transaction without there being any delivery of possession. Since the proforma defendant No.2 was never put in possession of the suit land, hence he could not deliver possession to the plaintiff Nos.1 and 2 Page 17 of 32 and the sale deed dated 17.1.81 is also merely a transaction only in papers without there being any delivery of possession in favour of the purchasers. Referring to Section 54 of the Transfer of Property Act, Mr. Banerjee submits that the aforesaid sales are not valid in the eye of law and therefore did not confer any title upon the plaintiff No.1. Such being the position the judgment and decree passed by the Court below are not sustainable in the eye of law and hence liable to be interfered with by this Court.
16. Per contra, Ms. B. Dutta, learned senior counsel appearing for the respondents, submits that it is the admitted position of fact that the defendant No 1 had purchased 2 kathas of land from Aida Clerk, the mother of Ivana Smart and got his name mutated. Record would reveal that out of the 2 kathas of land purchased by the defendant No.1, 1 Katha 6 Lechas of land pertains to dag No.2353, 4 Lechas out of 10 Lechas of land in dag No.2354, 4 Lechas out of 16 Lechas in dag No.2511 and 6 Page 18 of 32 Lechas out of dag No.2369. Record would further reveal that the said land measuring 4 Lechas out of 16 Lechas in dag No.2511 was carved out and included into dag No.2547 of PP No.1337. She submits that from a bare perusal of the judgment and decree dated 9.3.79 passed in Title Suit No.31/1971 (Ext-6) it would be evident that the observation of the Court was pertaining to 4 Lechas of land covered by dag No.2547 and not land belonging to dag No.2511. The said observation has been made on the basis of the report of the learned Munsiff (Ext-5) which says that the defendant No.1 i.e. the plaintiff in Title Suit No.31/1971 was in possession of 4 Lechas of land pertaining to dag No.2547 which land was originally a part of dag No.2511. The said 4 lechas of land was the suit land in T.S. 31/1971 and formed part of the 2 kathas of land purchased by the defendant no 1 from Aida Clerk. On the basis of such observation the learned court had dismissed the suit filed by the defendant No.1 as plaintiff by holding that he had not been dispossessed from the suit land and Page 19 of 32 on the contrary the said land was in possession of the plaintiff i.e. the present defendant No.1.
17. Ms. B. Dutta, learned senior counsel, had also invited the attention of this Court to the observations recorded in the judgment passed in Title Suit No.31/1971 which reflects that the defendant No.1 therein was aware of the fact that the present proforma defendant No.2, Brojendra Dutta had purchased the suit land from the heirs of Aida Clerk by means of registered deed of sale and the said plot of land was situated contiguous to the land purchased by the plaintiff in Title Suit No.31/1971 i.e. present defendant No.1. However, despite being aware of the same the defendant No.1 had never raised any question regarding the validity of the purchase deed of the proforma defendant No.2 nor has he challenged the Title of the proforma defendant no. 2 over his purchased land. In that view of the matter the defendant no 1 cannot now question the validity of the purchase deed of the proforma defendant no 2 in the present proceeding. Page 20 of 32
18. Ms. Dutta further submits that from a perusal of the materials on record it would be apparent that there is nothing to establish that the land claimed by the plaintiff in Title Suit No.31/1971 is the same plot of land which is the suit land in the present case. On the contrary, the materials on record would suggest that out of the 16 Lechas of land originally comprised in dag No.2511 4 Lechas had been purchased by the defendant No.1 from Aida Clerk. It is the balance 12 Lechas of land falling under dag No.2511 which had been purchased by the proforma defendant No.2 from Ivana Smart and subsequently transferred by way of sale in favour of the plaintiff No.1. Since defendant No.1 has not challenged the purchase deed of the plaintiff No.1 or the proforma defendant No.2 nor has he made any counter claim in respect of the suit land hence the stand taken by the defendant No.1 is completely untenable in the eye of law.
19. Ms. Dutta has further submitted that the only basis of claim made by the defendant No.1 in respect of the suit Page 21 of 32 land appears to be that of adverse possession. Even in that case, the defendant No.1 has completely failed to plead or establish his case insofar as the claim of adverse possession is concerned and as such the learned Courts below had rightly decided the said issue against the defendant No.1.
20. I have considered the rival submissions made by and on behalf of the parties. From the materials available on record it is apparent that the plaintiff No.1 is claiming title on the basis of the purchase deed dated 17.01.81 ( Exhibit-1) by means of which she had purchased the suit land from the proforma defendant No.2. From a perusal of the schedule of the Exhibit-1 it is apparent that land measuring 12 lechas covered by Dag No 2511 of PP No 102 had been purchased by the Plaintiff No 1 from the proforma defendant No 2. The boundary of the land has also been clearly indicated in the sale deed.
21. From examination of the records it is evident that the plaintiffs have been able to prove the sale deed and also Page 22 of 32 have led sufficient evidence to show her possession over the land by adducing evidence including the copy of the jamabondi showing mutation of her name in respect of the suit land. The plaintiffs have also been able to plead and establish the flow of title over the suit land by adducing cogent evidence. The proforma defendant No.2 by filing his written statement has confirmed the stand taken by the plaintiffs in the plaint and also confirmed the fact that upon execution of the registered deed of sale dated 17.1.81 (Ext-1) the possession of the land had been delivered in favour of the plaintiff No.1. Such delivery of possession has also been corroborated by the other witnesses. Therefore, from the aforesaid materials it is evident that the plaintiff has been able to discharge their initial burden of establishing their title over the suit land.
22. As compared to that, although the defendant No.1 had taken the plea of adverse possession, a perusal of the pleadings contained in the written statement goes to Page 23 of 32 show that he has not been able to specifically plead particulars such as from which date he has been in possession of the land and in what manner and also as to in what manner such possession had become hostile to the title of the true owner. As a matter of fact, there is not even a whisper in the written statement as regards the identity of the true owner of the land insofar as the plea of adverse possession taken by the defendant No.1 is concerned. It is settled law that mere length of possession would not, by itself, confer title by way of adverse possession. Burden of proving adverse possession is a heavy one. In order to succeed with the plea of adverse possession the claimant would not only have to specifically plead the material facts but would also be required to lead evidence so as to prove and establish the animus possidendi. Possession and animus possidendi must co-exist so as to ripen into title by way of adverse possession.
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23. In the present case, save and except mentioning that he has been in continuous possession of the suit land since the year 1964, the defendant No.1 has not been able to make out a case of perfecting title by way of adverse possession. Whether the defendant No 1 had been in open and continuous physical possession over the suit land having the animus possidendi or not is a question of fact. The learned Courts below have concurrently held that the defendant No.1 has failed to plead and establish a clear case of acquiring title by way of adverse possession thereby answering the issue no 3 against the defendant no 1.
24. As regards the question raised by the defendant No.1 pertaining to valid acquisition of title by the proforma defendant No.2 and thereafter by the plaintiff No.1, it would be apposite to point out herein that the defendant No.1 has not made any challenge to the sale deeds dated 7.7.79 or 17.1.81 nor has he made any counter claim in respect of the suit land. It is not the case of the Page 25 of 32 defendant no 1 that the suit land forms part of the land measuring 2 kathas purchased by him from Aida Clerk. The plea that the learned Munsiff has recorded that the possession over the suit land was in favour of the defendant no 1 also appears to be completely untenable in the context in which the judgment dated 9.3.79 had been rendered by the court of learned Munsiff. It appears from a reading of the judgment rendered in that in T.S. No 31/71 that the plaintiff there-in i.e. the present defendant No. 1 had claimed to have purchased 2 kathas of land from Aida clerk which was covered by different dag numbers viz. Dag Nos.2511/2547, 2354/2545, 2369/2546 of new Periodic Patta No. 1337 which plot was contiguous to the land purchased by the main defendant ( Brojendra Lal Dutta) from heirs of Aida Clerk. It was the case of the plaintiff there-in that on 6-12-70 the principal defendant no 1 had encroached upon 4 lechas of his purchased land which was the suit land. Be it mentioned herein that in the plaint filed in T.S. 31/71 no boundary of the suit land was mentioned by the plaintiff.
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25. Based on such claim made by the plaintiff in T.S.31 of 1971 a local inspection was carried out whereafter the learned Munsiff Golaghat has submitted an inspection report ( Exhibit- 5) wherein it has been clearly mentioned that " The suit land consists of 4 lechas of land covered by dag no 2547 of Golaghat Town. This plot of land was originally in Dag No 2511 ". Based on the Inspection Report ( Exhibit-5) and other materials on record the learned Munsiff, Golaghat had dismissed T.S.No. 31 / 71 by inter-alia observing that the plaintiff had not been dispossessed from the suit land and he was in possession of the same. Hence, it was held that there was no cause of action for the suit filing the suit.
26. Placing heavy reliance on the judgement passed in T.S. 31/ 71 ( Exhibit-6) Mr. Banerjee submits that having regard to the observations recorded in exhibit-6 holding that the plaintiff there-in was in possession of the suit land measuring 4 lechas no further evidence is required to prove that the present appellant/ defendant no. 1 had all Page 27 of 32 along been in possession of the suit land which finding had further been confirmed by the judgment and decree dated 5-5-1995 passed in T.S. 30/86 . I do not find any force in the argument made by Mr. Banerjee firstly because of the fact that there is nothing to show that the 4 lechas of land claimed by the present defendant no 1 as the plaintiff in T.S. 31 /71 is the same as the suit land herein. Secondly, as per the pleaded stand of the plaintiff in T.S. 31/71 he had been disposed from the 4 lechas of land forming part of his purchased land measuring 2 kathas from Aida Clerk. However, in the instant case the defendant no 1 admits that the suit land is different from his purchased land measuring 2 kathas in respect of which he is in possession. What is apparent from exhibit -6 is that the defendant no 1 had been found to be in possession of the 4 lechas of land which admittedly formed part of the 2 katha of land purchased by him. As a matter of fact, there is nothing on record to indicate that the plaintiff had possession over the 12 Lechas of land covered by dag No.2511 on the date of purchase of the same by the Page 28 of 32 plaintiffs. On the contrary evidence on record establishes that the plaintiffs were in possession of the suit land and house till the time the defendant no 1 had taken over possession of the same from the tenant of the plaintiffs.
27. Coming to the observations recorded by the learned Munsiff, Golaghat by the judgment and order dated 5.5.95 rendered in Title Suit No.30/1986 it must be pointed out herein that the said suit was filed under Section 6 of the Specific Relief Act whereby the plaintiff had alleged illegal dispossession over 4 Lechas land and claimed recovery of possession in respect thereof. The scope and ambit of a suit under Section 6 of the Specific Relief Act is limited and has to remain confined only to the question as to whether the plaintiff had been illegally dispossessed from the suit land within six months prior to filing of the suit. Any question pertaining to title or interest over the land cannot be gone into by the Court in deciding the suit under Section 6 of the Specific Relief Act. As a matter of fact, the Court would not have any jurisdiction to Page 29 of 32 entertain or decide any issues pertaining to title and interest over the land while deciding a suit filed under Section 6 of the Specific Relief Act. Nevertheless, a perusal of the judgment dated 5-5-95 goes to show that there is no such finding recorded there-in to the effect that the defendant No.1 has been in continuous possession of the suit land since the year 1964 as has been claimed by him. In the judgment and order dated 5.5.95 the learned Munsiff, Golaghat had merely observed that the plaintiff therein i.e. the present defendant No.1 was in possession of the suit land measuring 4 Lechas until 7.10.86 i.e. the date on which he was allegedly dispossessed.
28. On a careful analysis of the evidence of PW-2 what can be seen is that the said witness had supported the plea taken in the plaint to the effect that the defendant no 1 had trespassed into the suit premises after getting the same vacated by influencing the family member of tenant Gajen Phukan. Such testimony of the PW-2 cannot even remotely be construed as an admission of a Page 30 of 32 legitimate possession of the suit land by the defendant no 1 for the period claimed by him.
29. On a meticulous examination of the judgment and decision concurrently rendered by both the Courts below, I am of the opinion that the Courts below had rightly decided the Issue No.5 in favour of the plaintiff No.1 while deciding the issue no 3 against the defendant no 1. The plaintiffs have proved their title over the suit land and hence, would be entitled to a decree of recovery of khas possession as the defendant no 1 had failed to prove adverse possession. As such , I am of the opinion that such finding of fact concurrently recorded by the Courts below are based on cogent materials on record and there is no justification for this Court to disturb such concurrent finding of facts.
30. In such view of the matter, there is no merit in the Second Appeal and the same shall accordingly stand dismissed. The question of law framed by this Court stand answered in favour of the respondents/plaintiffs and Page 31 of 32 against the appellants. Having regard to the facts and circumstances of the case, the parties are left to bear their own cost.
Decree be prepared accordingly.
Registry to send back the LCR.
JUDGE T U Choudhury Page 32 of 32