Gauhati High Court
Dayal Hari Paul & Anr vs Pradip Kumar Lahkar & 5 Ors on 20 March, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
PRINCIPAL SEAT
RSA No. 37/ 2016
1. Sri Hari Dayal Paul,
Son of Late Radheshyam Paul,
2. Sri Mantu Chandra Paul,
Son of late Radheshyam Paul,
Both are residents of Rangia Town, Ward No. 1
Panduri, P.S. Rangia, District Kamrup (Rural)
Assam.
...................Appellants/ Plaintiffs
-Versus-
1. Sri Pradip Kumar Lahkar,
Son of late Keshab Chandra Lahkar,
Resident of Rangia Town, Ward No. 1
Mouza Panduri, P.S. Rangia, District Kamrup (Rural)
Assam.
At present residing at Rehabari, Guwahati-8
District- Kamrup (Metro), Assam.
2. (a) Smti Renushri Lahkar,
Wife of late Munindra Singh Lahkar,
(b) Sri Dipankar Lahkar,
Son of late Munindra Singh Lahkar,
(c) Smti Kaberi Lahkar,
Daughter of late Munindra Singh Lahkar,
All are residents of Rangia Town, Ward No. 1
Mouza- Panduri, P.S. Rangia, District Kamrup (Rural)
2
Assam.
(d) Smti Pallabi Bora,
Wife of Sri Prasanta Bora,
Resident of Bharalumukh, Guwahati -9,
P.S. Bharalumukh, District- Kamrup (Metro),
Assam.
3. Sri Mohit Chandra Lahkar,
Son of late Keshab Chandra Lahkar,
Resident of Rangia Town, Ward No. 1
Mouza- Panduri, P.S. Rangia, District Kamrup (Rural)
Assam.
................Respondents/ Defendants
Advocate for the appellants: Mr. PM Deka,
Mr. PP Das,
Mr. B.C. Das,
Advocates.
Advocate for the respondents: Mr. L.K. Taloukdar,
Advocate.
-BEFOR E-
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
Date of hearing : 20.03.2017
Date of judgment & order : 20.03.2017
JUDGMENT & ORDER (ORAL)
3
Heard Mr. PM Deka, learned Senior counsel, assisted by Mr. PP Das, learned counsel, appearing on behalf of the appellant/ plaintiffs. Also heard Mr. L.K. Talukdar, learned counsel, appearing for the respondent/ defendants. 2] The present appellants, as the plaintiffs, filed the Title Suit No. 24/ 2007 before the court of the learned Civil Judge (Junior Division) Rangia against the present defendant/ respondents praying for decree of declaration of their right, title and interest and possession over the suit land and for permanent injunction. On the dismissal of the said suit vide judgment and decree dated 03.11.2012, the present appellants preferred Title Appeal No. 60/2014 in the court of the learned Civil Judge, Kamrup at Amingaon, which was dismissed vide judgment and decree dated 27.04.2015. Thereafter, the present second appeal has been filed by the plaintiff/ appellants challenging the impugned judgment and decree dated 27.04.2015, passed in T.A. No. 60/2014 by the court of the learned Civil Judge, Kamrup at Amingaon.
43] The plaintiff/ appellants claimed that schedule B property was purchased by way of registered Sale Deed No. 565/72 dated 3.2.1972 and registered Dale Deed No. 3225/76 dated 12.07-1976 from its lawful owner and possessor, Sambhu Mahato. Subsequent to that the aforesaid sale deed had to be rectified by way of Deed of Rectification No. 2296/77 dated 27.04.1977 thereby correcting the Dag and Patta numbers of the land so purchased by way of two registered sale deeds. 4] The defendant/ respondents also preferred Title Suit No. 22/1988 which was re-numbered from its old Title Suit No. 130/1976, preferred by the predecessor-in-interest of defendant/ respondents Nos. 1, 2 and 3. The said suit was filed against the predecessor-in-interest of the present appellant/ plaintiffs wherein the plaintiffs were substituted on the death of their predecessor- in-interest. The said T.S. No. 22/1988 was for ejectment of the present plaintiff/ appellants from the premises covering more or less one Katha of land which the plaintiff/ appellants claimed to have purchased from the said Sambhu Mahato by way of the sale deed referred hereinabove.
55] The respondent/defendants' case was that the plaintiff/ appellants were the tenants with respect to the house standing on the suit land and they defaulted in payment of the monthly rent and as such the suit was filed for ejectment from the suit premises and for recovery of the arrear rent. In the Title Suit No. 22/1988, the plaintiff/ appellants raised their plea that they were not the tenants under the defendant/ respondents and they claimed their right, title and interest over the suit land wherein the tenanted premises were situated. The Title Suit No. 22/1988 was dismissed by the trial court whereafter the Title Appeal No. 5/1996 was preferred by the present defendant/ respondents and the appellate court reversed the findings of the trial court and decreed the suit for recovery of khas possession by ejecting the plaintiff/ respondents from the suit premises and for realization of the arrear rent. The said judgment and decree was affirmed by this court in Civil Revision Petition No. 33/2002 which was disposed of vide judgment and decree dated 24.4.2006. 6 6] In the present T.S. 24/2007 preferred by the present plaintiffs/ appellants challenging the said judgment and decree affirmed by this court by alleging that the same was obtained by practising fraud and collusion and as such the said judgment and decree passed in T.A. No. 5/1996 is void and inoperative and liable to be set aside. With respect to the claim of fraud the plaintiff/ appellants pleaded that the respondent/ defendants during the pendency of Title Suit No. 22/88 transferred land measuring 4 Kathas 17 Lechas of the suit Patta against the ownership of the plaintiff/ respondents to the extent of only 1 Katha 12 Lechas. This excess selling of land amounted to fraud as some of the defendants in the said Title Suit No. 22/ 1988 deposed as witnesses in support of the claim of the respondent/ defendants though the said witnesses were impleaded as defendants in Title Suit No. 22/1988. It is also pertinent to mention herein that in the said Title Suit No. 22/ 88, an issue with regard to the right, title and interest of the present suit land was decided in favour of the present defendant/ respondents. Within the short radius, the fact of the case of the plaintiff/ appellants is that the fraud was played upon the court in adducing the evidence 7 by some of the defendants in favour of the respondent/ defendants in T.S. No. 22/88 and that amounts the decree passed therein to be a fraudulent one and the same does not bind the plaintiffs/ appellants and as such they are not liable to be ejected because the defendants who supported the present defendant/ respondents knowing fully well that their vendor (present defendant/ respondent) had no title to sell the said land to the said defendant.
7] The defendant/ respondents filed their written statements and raised the plea of res-judicata on the ground that prior to the present Title Suit No. 24/2007, another suit being T.S. No. 22/1988 between the same parties and for the same plot of land was filed wherein the same was decreed in favour of the defendant/ respondents. It was also contended that the plaintiff/ appellants purchased the land from one Sambhu Mahato in Dag No. 33 of Patta No. 43 and subsequently by way of rectification deed, the same were changed to Dag No. 52 and Patta No. 47. The said Sambhu Mahato filed Title Suit No. 27/1972 against the predecessor-in-interest of the defendant/ respondents for 8 declaration of his right, title and interest which was dismissed by the then Assistant District Judge No. 1 at Guwahati and held that Sambhu Mahato has no right, title and interest over the suit land. The said judgment and decree was affirmed by the appellate court. The plaintiff/ appellants had purchased the said disputed land from Sambhu Mahato and as such the plaintiff/ appellants had no right title and interest over the suit land. It was also denied by the defendant/ respondents that the judgment and decree passed in Title Suit No. 22/ 88 was never obtained by practising fraud on the court.
8] On the basis of the pleadings of the parties, the following issues were framed:
(i) Whether the suit is maintainable in the present form?
(ii) Whether the suit is barred by res judicata?
(iii) Whether the decree passed in T.A. No. 5/1996 and the judgment passed in Civil Revision No. 33/2002 was obtained by the defendants by practicing fraud and concealing real facts?9
(iv) Whether the plaintiffs have right, title and interest and possession over the schedule-B land?
(v) Whether the plaintiffs entitled to the relief/ reliefs as prayed for?
9] The trial court after hearing the parties dismissed the suit of the plaintiff/appellants whereafter the plaintiff/ appellants though preferred the first appeal which was registered as Title Appeal No. 60/2014 was dismissed on 27.4.2015 by the learned Civil Judge, Kamrup at Amingaon. Against the said judgment and decree, passed in Title Appeal No. 60/2014, the present second appeal has been preferred by the appellant/ plaintiffs. 10] Mr. Deka, learned senior counsel, appearing on behalf of the appellants submits that the suit filed by the plaintiff/ appellants is, in the true sense, a suit for partition inasmuch as the claim of the defendant/ respondents in Title Suit No. 22/1988 was confined with respect to 1 Katha of land alongwith the house therein, but the plaintiff/ appellants in the present suit in hand claimed for declaration of the right, title and interest over 1 Khata 10 10 Lechas of land purchased by way of registered sale deeds as referred hereinabove from their vendor Sambhu Mahato. It is also submitted that the plaintiff/ appellants by adducing cogent and positive evidence proved their right, title and interest over the suit land but even then the learned court below dismissed the suit by committing grave error both in law and facts.
11] Mr. Deka further submits that in the present suit, all the co-sharers of the suit patta land have been joined in the suit and under such circumstances, the court below ought to have determined the shares of the co- sharers and co-owners of the suit patta land inasmuch as in a suit for partition it is the duty of the court to determine the shares of co-pattaders which is mandatory. Further both the courts below failed to appreciate the evidence in the true perspective and the intent and purpose of the suit and finally dismissed the suit and as such there arose a substantial question of law to be formulated for admission of the second appeal.
1112] Per contra, Mr. Talukdar, learned counsel, appearing on behalf of the respondents submits that the main issue involved in the suit is that the decree which was passed in favour of the respondent/ defendants in Title Suit No. 22/1988 was obtained by playing fraud in the court and as such they are entitled to the land which they had purchased through the registered deeds as referred hereinabove. The courts below held that there was no fraud played on the court and under such circumstances if the decree passed in T.S. No. 22/1988 is not set aside, the plaintiff/ appellants cannot lay any claim over the suit land on the basis of the registered sale deeds executed by Sambhu Mahato, knowing fully well that the suit filed by the plaintiff/ appellants is hit by the principle of res-judicata. The learned counsel for the appellants has been compelled to twist the claim of the plaintiff/ appellants as claim for partition of the suit land on the bar of res-judicata. Accordingly, Mr. Talukdar submits that there is no merit in the second appeal and the same ought not to be admitted. 12 13] Considered the submissions of the learned counsels of both the parties and the findings of both the courts below. On perusal of the relief prayed for by the plaintiff/ appellants in the plaint, it is clear that the plaintiffs had sought for a declaration declaring the judgment and decree passed in Title Appeal No. 5/1996 and the consequent judgment dated 24.4.2006 passed by this court in Civil Revision Petition No. 33/2002 to be null and void and inoperative and not binding upon the plaintiff/ appellants. As a consequential relief, the plaintiff/ appellants sought for their declaration of right, title and interest over the schedule- B land and for decree for partition.
14] From the whole submission of the learned counsel appearing on behalf of both the parties, it is apparent that the prayer for a declaration of the decree passed in Title Appeal No. 56/1996 as a fraudulent one was sought for and thereafter only consequential reliefs should be granted to the plaintiffs/ appellants. The first appellate court while deciding the point for determination, examined the Issue No. 3 and discussed elaborately with regard to the said issue and took note of the fact 13 that one of the plaintiff/ appellants as the PW 1 in his cross-examination admitted that in the suit filed by them they had not claimed any relief in respect of the land sold by the respondent/ defendant No. 2 to the person who deposed in favour of respondents thereafter observed with respect to the said deposition that the plaintiff/ appellants failed to show as to how the execution of the sale deeds by defendant/ respondent No. 2 affected the right of the plaintiff/ appellants over the suit land. Finally the court held that the decree passed in Title Appeal No. 5/1996 and the judgment in Civil Revision Petition No. 33/02 cannot be held to be obtained by fraud inasmuch as the plaintiff/ appellants failed to substantiate and prove the required ingredients of fraud. 15] The first appellate court also held that the suit to be barred by res judicata. However, the learned counsel, appearing on behalf of the appellant/ plaintiffs has not argued in that aspect. Considering the same, this court finds no merit for admitting the present second appeal. Accordingly, the same is dismissed.
JUDGE Eam...