Gauhati High Court
Sri Rupam Choudhury vs Smt Niru Boruah And 6 Ors on 15 March, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/5
GAHC010231712018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 21/2019
1:SRI RUPAM CHOUDHURY
S/O LATE DRIJEN CHOUDHURY
RESIDENT OF BOARDING ROAD, SIVASAGAR TOWN, PO SIVASAGAR, PS
SIVASAGAR, MOUZA NAGAR MAHAL, DIST SIVASAGAR, ASSAM 785640
VERSUS
1:SMT NIRU BORUAH AND 6 ORS
W/O LATE MIHIR KANTA BORUAH, R/O. L.K BORUAH ROAD
AMULYAPATTY, WARD NO 7,
SIVASAGAR TOWN, PO SIVASAGAR, PS SIVASAGAR, MOUZA NAGAR
MAHAL, DIST SIVASAGAR, ASSAM 785640
2:SMTI. MINAKSHI ARUMUGAM
D/O LATE MIHIR KANTA BORUAH
R/O. L.K BORUAH ROAD AMULYAPATTY
WARD NO 7
SIVASAGAR TOWN
PO SIVASAGAR
PS SIVASAGAR
MOUZA NAGAR MAHAL
DIST SIVASAGAR
ASSAM 785640
3:LATE ADITYA KANTA BORUAH THROUGH HIS LEGAL HEIRS MRS.
NIRMALI BORUAH
W/O LATE ADITYA KANTA BORUAH
R/O. L.K BORUAH ROAD AMULYAPATTY
SIVASAGAR TOWN
PO SIVASAGAR
Page No.# 2/5
PS SIVASAGAR
MOUZA NAGAR MAHAL
DIST SIVASAGAR
ASSAM 785640
4:SHRI BAIJOYANTA BORUAH
S/O LATE ADITYA KANTA BORUAH
R/O. L.K BORUAH ROAD AMULYAPATTY
SIVASAGAR TOWN
PO SIVASAGAR
PS SIVASAGAR
MOUZA NAGAR MAHAL
DIST SIVASAGAR
ASSAM 785640
5:MRS. SHARODI BANERJEE
C/O MR. SAMARENDRA BANERJEE
AT ROAD
PANIGAON
PO NAGAON
DIST NAGAON
ASSAM
6:SHRI BISWADIP BORUAH
S/O LATE SUSHILA KANTA BORUAH
R/O. L.K BORUAH ROAD AMULYAPATTY
WARD NO 7
SIVASAGAR TOWN
PO SIVASAGAR
PS SIVASAGAR
MOUZA NAGAR MAHAL
DIST SIVASAGAR
ASSAM 785640
7:SHRI LAKHI PRASAD CHALIHA
S/O LATE BALURAM CHALIHA
R/O CHARING CHALIHA PARA GAON
MOUZA MURABAZAR
Page No.# 3/5
PO AMGURI
PS AMGURI
DIST SIVASAGAR
ASSA
Advocate for the Petitioner : MR. A R SHOME
Advocate for the Respondent :
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
-O R D E R-
15.03.2019 Heard Mr. AR Shome, learned counsel appearing for the appellant.
In this second appeal, the judgment and decree dated 07.07.2018 passed in Title Appeal No. 18/2015 by the court of learned Civil Judge, Sivasagar is under challenge. The present appellant is the plaintiff in Title Suit No. 46/2008 in the court of learned Munsiff No. 1 at Sivasagar. It is the case of the plaintiff/appellant that he purchased the suit property from one Sri Lakhi Prasad Chaliha, the proforma defendant no. 4 by way of registered sale deed No. 466 executed on 05.05.2001 along with rectification deed No. 840 dated 13.08.2001. The said proforma defendant no. 4 purchased the land from one Sushila Kanta Baruah, the predecessor-in-interest of the principal defendants in the suit. After the execution of the registered sale deed by Sushila Kanta Baruah, the possession of the suit land was not handed over to Lakhi Prasad Chaliha as he failed to pay the total consideration amount. However, taking the plea that the said proforma defendant no. 4 possessed the suit land adverse to the interest of the predecessor of the defendants, the said proforma defendant no. 4 executed the said sale deed in favour of the plaintiff/appellant. As such, he sought for the declaration of his right, title and interest and possession over the suit land.
The respondents herein who are the defendants in the suit filed the written statement taking specific plea that the purported sale deed executed by Sushila Kanta Baruah in Page No.# 4/5 favour of the proforma defendant no. 4 was a forged one and as against that an FIR was lodged, GR Case No. 726/1994 under Sections 468/420/471 of the IPC was registered. Further it was a specific plea that the said purported registered sale deed in favour of the proforma defendant no. 4 is with respect to the land covered by Dag no. 7637 of periodic patta no. 2494 of Nagarmahal Mouza in the district of Sivasagar but not with respect to the suit land covered by dag no. 7674 of periodic patta no. 2266. On the basis of the said defence and specific denial of any possession by the proforma defendant no. 4, the defendants/respondents sought for dismissal of the suit.
The learned trial court on the basis of the pleadings framed the following issues:-
1. Whether the suit is maintainable in law as well as facts?
2. Whether there is any cause of action for the suit?
3. Whether the court has pecuniary jurisdiction to try the suit?
4. Whether the pro-forma defendant no. 4 had bought the suit land by a valid sale deed from Lt. Sushila Kanta Baruah?
5. Whether the pro-forma defendant no. 4 has acquired right, title and interest over the suit land by way of adverse possession?
6. Whether the plaintiff has acquired right, title and interest over the suit land?
7. Whether the plaintiff is entitled to get a decree as prayed for?
The plaintiff/appellant adduced evidence and on the other hand, the defendants/respondents did not adduce any evidence. The pro-forma defendant no. 4 Lakhi Prasad Chaliha also did not grace the witness box nor contested the claim of the plaintiff/appellant. The learned court below while deciding issue nos. 4 and 5 came to the finding that the plaintiff/appellant failed to produce the purported registered sale deed on the basis of which he claimed derivation of the title by the pro-forma defendant no. 4 from Sushila Kanta Baruah. It is further held that the sale deed of the plaintiff/appellant cannot confer any right, title and interest on him as he failed to prove the title derived by the pro- forma defendant no. 4 from Sushila Kanta Baruah. The learned court below also considered an order passed by the Hon'ble Gauhati High Court in Misc. Case No. 938/2003 as well as the FIR of GR Case No. 726/1994 which was produced. The sale deeds in the said case records pertains sale deed no. 1125 executed on 21.06.1983 and 26.09.1983. After comparing the same, the trial court came to the finding that the said sale deeds are with respect to separate plot of land as per the pleading of the defendants/respondents. It Page No.# 5/5 was also held that the suit land involves the sale deed no. 466 dated 05.05.2001. It also took into consideration the nature of the suit land and came to the conclusion that the possession of the pro-forma defendant no. 4 over the suit land cannot be held to be proved. After dismissal of the said suit Title Appeal No. 18/2015 was preferred and the same was dismissed by the learned Civil Judge, Sivasagar. While dismissing the appeal, the learned first appellate court concurred the findings of the trial court and thereafter this second appeal is preferred which is taken up for its disposal under Order XLI Rule 11 of the CPC.
Mr. Shome submits that the sale deed of the pro-forma defendant no. 4 was very much in the case records which the court below failed to consider. Such act on the part of the courts below and the findings thereof are perverse and as such, he sought for admission of the appeal.
I have considered the submission of the learned counsel for the appellant. The nature of the suit indicates that the plaintiff/appellant is bound to prove the title of his vendor over the suit land which he miserably failed. The submission of Mr. Shome cannot be considered inasmuch as on perusal of the judgment passed by the trial court it is clear and apparent that the learned court below considered the case records along with the FIR lodged in the said GR Case. It, thereafter, came to the conclusion that the defence plea taken by the defendants/ respondents probalises the truth that the said GR Case No. 726/1994 was in respect of the sale deed covering land under Dag No. 7637 of periodic patta no. 2266 which is the suit land. Regarding the plea of the plaintiff/appellant that the pro-forma defendant no. 4 ripened the title thereof by way of adverse possession and on the basis of the said possession the pro-forma defendant no. 4 sold the land to the plaintiff/appellant cannot be considered until and unless the derivation of the title from Sushila Kanta Baruah to the pro-forma defendant no. 4 is proved. Considering the same, I find no substantial question of law to be formulated in this second appeal. Accordingly, the second appeal stands dismissed.
JUDGE Comparing Assistant