Gauhati High Court
Monoranjan Paul And 2 Ors. vs Narendra Kumar Paul And Ors. on 26 May, 1993
Equivalent citations: AIR 1994 GAUHATI 64, (1994) 2 CURCC 426
JUDGMENT N.G. Das, J.
1. This second appeal by the defendant-appellants is directed against the judgment and decree dated 30th May, 1978 allowing the appea filed by the plaintiff-respondents from the original decree dated 30-3-71 passed by the learned Munsiff, Kailashahar in T. S. 7 of 1966 dismissing the suit for declaration of title and khas possession.
2. To appreciate the contentions canvassed at the Bar by learned counsel of both the sides it is necessary to state the facts briefly. The subject matter of the suit related to a plot of land measuring 1 kani appertaining to Dag No. 118/1 of Khatian No. 17 of Mouja Manu Valley.
3. Put very shortly, the case of the plaintiff was that Padmalochan Paul and Bilashmani Paul were the original owners of the land measuring 7 drones 2 kanis appertaining to Touji No. 81/1 of Mouja Samrurpar and out of this 7 drones 2 kanis Padmalochan Paul was the owner and possessor of 6 drones 2 kanis of land and Bilashmani Paul was the owner and possessor of 1 drone of land. After the death of Padmalochan Paul his sons namely Pitambar Paul and Prasanna Paul inherited the aforesaid land of their father. Thereafter the plaintiff who is the son of Pitambar Paul and Mahendra Paul (the other son) who is the father of defendants 1, 2 and 3 purchased the entire share of Prasanna Paul by dint of a Kabala dated 5-9-1335 T.E. Thus the plaintiff and Mahendra Paul became owners and possessors of 6 drones 2 kanis of land of Touji No. 81/1 and the aforesaid 1 drone of land remained in possession of Bilashmani Paul. Both the plaintiff and Mahendra Paul got their names mutated over, 6 drones 2 kanis of land and subsequently the plaintiff and Mahendra Paul amicably partitioned their lands and according to the partition plaintiff got 3 drones 1 kani of land in his share and Mahendra Paul got 3 drones 1 kani of land in his share. After partition Mahendra Paul sold 1 drone of land to Amrit Tahiri out of his share by a registered deed of sale dated 12th of Bhadra, 1338 T.E. He also sold 10 kanis of land to one Sarat Malakar and this 10 kanis of land was again purchased by plaintiff, by a registered deed dated 12-2-1347 T. E. Thereafter the wife of the plaintiff purchased 9 kanis 5 gandas of land from the aforesaid Bilashmani Paul. Thus by inheritance and purchase the plaintiff became owner of 4 drones 4 kanis and 5 gandas of land of the said Touji No. 81/1, and after sale Mahendra Paul owned only 1 drone 7 kanis of land which was inherited by the sons of Mahendra Paul namely defendants 1, 2 and 3.
4. The plaintiff pleaded that out of the aforesaid land he settled 3 kanis and odd land with one Nabin Mura who subsequently relinquished possession of this land in favour of him. But during survey settlement operation this 3 kanis and odd land of his share was wrongly recorded in the name of defendants 1, 2 & 3under plot No. 118 of KhatianNo. 17 of Mouja Manu Valley.
5. The plaintiff, therefore filed objection against this wrong recording but without any success. It was further alleged that taking advantage of this wrong recording the defendants dispossessed the plaintiff from 1 kani (described in schedule 2 of the plaint) of the aforesaid 3 kanis and odd land (described in schedule 3 of the plaint) on 3-6-65 A. D. Hence this suit for declaration of title and khas possession of 1 kani of land and also for ratification of the record of rights in respect of the 3 kanis and odd land of schedule 3 of the plaint.
6. The defendants 1, 2 and 3 resisted the suit by filing a written statement wherein they denied all the material averments of the plaint. It was averred that no mutual partition ever took place between Mahendra Paul and the plaintiff. It was contended that they were all through in possession of the suit land and the plaintiff was never in possession of it and that the other defendants were in permissive possession of the suit land.
7. Upon the pleadings, learned trial court framed 5 (five) issues. The suit was, at first, dismissed by the learned Munsiff by his judgment dated 19-2-68. But on appeal the suit was remanded with a direction to appoint a Survey Commissioner to locate the suit land and also to find out the actual possession of the contesting parties in the land of Touji No. 81/1. Accordingly a Survey Commissioner was appointed who submitted his report on 10-9-70. But thereafter learned Munsiff passed a decree dismissing the suit again. The plaintiff then preferred an appeal before the learned Subordinate Judge, North Tripura District, Kailashahar who by his judgment dated 30-5-78 decreed the suit of the plaintiff against the contesting defendants and ex parte against the rest. Learned Subordinate Judge declared the plaintiffs right, title and interest in the suit land and also declared him to be entitled to recover possession of the suit land from the defendants. The prayer for correction of record of right was, however, rejected. Hence this second appeal.
8. In this appeal mainly 2 (two) questions arise and they are (a) whether the suit should be dismissed on the ground that proper issues were not framed and (b) whether the learned first appellate court committed error of law in placing reliance upon Ext. A-5 and Ext. A-7 in holding that there was amicable partition.
9. Mr. M.K. Dutta, the learned counsel appearing for the appellants has, at the very out set, submitted that in this case an issue namely 'whether the property which the plaintiff and defendants 1, 2 and 3 inherited from their predecessors was properly partitioned.' ought to have been framed. It is submitted by Mr. Dutta that since such an issue was not framed in this suit, the learned Subordinate Judge ought to have remanded the suit to the trial court with a direction to frame such an issue and then to proceed with the trial of the suit. But Mr. Banerjee, learned counsel appearing for the respondents has repelled the contention of Mr. Dutta by drawing my attention to the evidence on record to show that the parties were fully aware of this issue and that they also led evidence in support of their contentions. Mr. Dutta has, however, argued that since the first appellate court has reversed the findings of the trial court, this court can very well go through the evidence to ascertain whether formulation of such an issue was actually necessary.
10. But on perusal of the evidence adduced by the parties I find that plaintiff Shri Narendra Kumar Paul who was examined as P. W. 1 deposed that as per amicable partition the suit land fell in his share and according to that amicable partition they were possessing their respective shares. The witness was also cross-examined on this point. During cross-examination P.W, 1 also stated that this amicable partition took place about 40 years ago. Similarly D. W. 1 also stated in his evidence that there was no amicable partition. So, in view of their evidence it is quite clear that both the plaintiff and the contesting defendants were quite aware of this issue and they also led evidence in support of their contentions. Apart from that under ground No. 11 in the memo of appeal it was stated that the learned first appellate court framed an additional issue namely "Did plaintiff get the suit plot by amicable partition with his brother Mahendra Paul?". So from this fact also it is apparent that parties were fully aware of this issue. I am, therefore, unable to accept the contention of Mr. Dutta that defendants were prejudiced for non-framing of an issue regarding question of amicable partition. If any authority is required on this point it can be found in the case of Nedunuri Kameswqramma, v. Sampati Subha Rao, reported in AIR 1963 SC 884 wherein their Lordships held under para 6 of the judgment that:
"since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion."
In the instant case Mr. Dutta did not claim that the appellants had any further evidence to offer. I am, therefore, of opinion that the contention canvassed at the Bar by Mr. Dutta, the learned counsel appearing for the appellants in respect of point No. 1 is not acceptable.
11. Now with regard to Ext. A-5 and Ext. A-7 it has been quite strenuously argued by Mr. Dutta, the learned counsel that learned first appellate court ought not to have placed any reliance upon these 2 documents as Ext. 2 Parcha, Ext, 2/(a) and Ext.3(a) Parcha will show that the lands appertaining to Kharija Taluk No. 81/1 were recorded in the names of plaintiff and contesting defendants jointly. But Ext. A-5 which is the certified copy of the sale deed shows that on I2th of Bhadra, 1338 T.E. Mahendra Kumar Paul who is the father of defendants 1, 2 and 3 sold 1 drone of land appertaining to Kharija Taluk No. 81 /1 to one Amrita Aheri for a consideration price of Rs. 1000/-. A perusal of the recitals of this sale deed very clearly shows that there was an amicable partition and Mahendra Kumar Paul sold this 1 drone of land from the share which he got by way of amicable partition, This document appears to have been admitted in evidence without any objection. Moreover this document being a true copy supplied from the office of the Sub-Registrar with the seal and signature of the Sub-Registrar this document is admissible under Section 63 of the Evidence Act for the purpose of proving the contents of the original. I, therefore, see no reason why reliance should not be placed upon the recitals of this document where in so many words the facts of amicable partition were written. It may be stated that documentary evidence is specially valuable, where there is a conflict of oral testimony, as a guide to show on which side the truth lies.
12. Ext. A-7 is a Kabuliat executed on 19th Vaishak, 1354 T. E. by one Nabin Mura in favour of the plaintiff. The case of the plaintiff is that the suit land along with other lands were settled with Nabin Mura for his living and cultivation on taking this Ext. A-7 Kabuliat. D. W. 2 Taranath Shit also deposed that this Nabin Mura was in possession of that land and after his departure plaintiff Narendra Kumar Paul used to possess the southern part and defendant Monoranjan Paul used to possess the northern part. This document was also admitted in evidence without any sort of objection. This Kabuliat Ext.A-7 clearly indicates that the suit land along with other lands were settled with Nabin Mura by plaintiff. There is no evidence on record to show that this Kabuliat was not intended to be acted upon at all.
13. So, in view of the evidence I am of opinion that learned first appellate court has rightly placed reliance upon these 2 documents for his conclusion that there was amicable partition between plaintiff and the father of defendants 1, 2 and 3 in respect of the lands they got by way of inheritance and purchase.
14. As regards identity of the suit land the learned counsel appearing for the appellants did not raise any dispute. The Survey Commissioner who was appointed to find out the location of the suit land reported that the land shown in his map under the letter 'L' is the suit land and it fell in the share of plaintiff. The plaintiffs case is that he was dispossessed from the suit land on 3-6-65 A.D. by the defendants who on taking advantage of the wrong recording in the record of right forcibly dispossessed him from the suit land. The report of the Survey Commissioner shows that plots 'K' and 'L' in his map are the lands which were settled with Nabin Mura and that the plot under 'L' which measures 1 kani is the suit. I have already mentioned above that there is no dispute as to the identity of the land. So, in view of the evidence on record particularly Ext.A-7 and the evidence of DW 2 I am of opinion that the learned trial court has rightly held that suit land fell in the share of the plaintiff and he was dispossessed by the defendants on 3-6-65. Mr. Dutta has, however, repeatedly argued that the Parcha marked as Ext.A-3 will show that both the plaintiff and the contesting defendants jointly possessed the suit land. It is true that this document indicates that plaintiff and defendants 1, 2 and 3 are in joint possession. But this document has only presumptive value rebuttable by evidence. The evidence on record shows that the plaintiff settled the suit land along with other lands shown in the Map of Survey Commissioner under letter 'K' and 'L' with Nabin Mura and after departure of Nabin Mura the plaintiff got possession of the suit land. It is also in the evidence that plaintiff was dispossessed of the suit land by the defendants.
15. From the above analysis of the documents it is quite clear that there was an amicable partition between the plaintiff and father of defendants 1, 2 and 3 in respect of the properties they acquired by way of inheritance and purchase and that the suit land fell in the share of the plaintiff and he was subsequently dispossessed of it by the defendants.
16. I am, therefore, of opinion that the decision of the court below was correct in the circumstances of the case and therefore, there is no justification in reversing it.
17. The appeal is, therefore, dismissed with cost throughout.