Gauhati High Court
Jitendra Mohan Nath vs Md. Akhil Ali on 1 June, 2015
Author: A K Goswami
Bench: A K Goswami
1
RSA 78/2004
BEFORE
HON'BLE MR JUSTICE A K GOSWAMI
01.06.2015
Heard Ms. R. Devi, learned counsel for the appellant. Also heard Mr. S.
K. Ghosh, learned counsel for the respondents/plaintiffs.
2. This Second Appeal is directed against the judgment and decree dated 11.09.2003 passed by the learned District Judge, Hailakandi, in Title Appeal No. 2/2002, upholding the judgment and decree dated 24.12.2001 passed by the learned Civil Judge (Senior Division), Hailakandi, in Title Suit No. 33/1992.
3. By an order dated 18.05.2004, the Second Appeal was admitted to be heard on the following substantial questions of law:
"1. Whether in a suit under Section 34 of the Specific Relief Act, it is not incumbent on the plaintiffs to prove his or his vendor's title for the entitlement of the relief of declaration claimed?
2. Whether in absence of the title of the vendor over the suit land, the plaintiffs' claim of declaration of right, title and interest and for restoration of possession of the suit land, entertainable?
3. Whether the courts below were justified in dismissing the counter claim of the appellant/defendant without giving any cogent and sustainable reason?"
4. The suit of the plaintiffs is that the plaintiff No. 1 purchased from the pro forma defendant No. 3 land measuring 3 Bigha 10 Chattak in various Dags and Pattas of Mouza Harishnagar Part-II, Paragana Dinarpur, by separate sale deeds. Some of the deeds were registered on 30.01.92 and some on 31.01.92. The possession being delivered, the plaintiff No. 2, who is father of plaintiff No. 1, was cultivating his own land as well as the land of plaintiff No. 1 on his behalf. It was pleaded that the aforesaid land was in exclusive possession of the pro forma defendant No. 3, which fell in his share upon an amicable partition and he was exercising his right exclusively on the aforesaid plot of land 2 for about 6 years. The principal defendant No. 1, who happens to be the brother of the pro forma defendant No. 3, had also got his share of land, which is contiguous to the suit land. Failing to purchase the land at a nominal price, which, eventually was purchased by the plaintiff No. 1, the defendant No. 1 had been attempting to take forcible possession of the aforesaid 3 Bigha 10 Chattak of Land, which is the suit land.
5. Defendant No. 1 filed written statement as well as a counter-claim primarily contending that no partition had taken place as contended by the plaintiffs and also that the pro forma defendant No. 3 did not have any saleable right. By way of the counter-claim, the defendant No. 1 claimed preferential right to purchase the land of the pro forma defendant No. 3, under Section 22 of the Hindu Succession Act, 1956. It was pleaded that Krishna Mohan Nath, predecessor of defendant Nos. 1 and 3, had purchased total land measuring 14 Bigha 17 Katha 1 Chattak on 31.01.162 and 30.05.62 and the purchased land was divided into two parts by Telgatta Road. Krishna Mohan died in the year 1967 leaving behind his wife, Abola Nath, three sons, namely, Khirod Mohan Nath, Jitendra Nath @ Jitendra Mohan Nath (defendant No. 1) and Nripendra Mohan Nath (pro forma defendant No. 3), as well as two daughters, namely, Basanti Nath and Nandarani Nath. Statements were also made with regard to the sale of some land by the heirs of Late Krishna Mohan Nath. In the counter- claim, amongst others, the defendant No. 1 prayed for a decree directing the plaintiff No. 1 to sell the suit land in favour of the defendant No. 1 for an amount of Rs. 22,700/- or at a price to be fixed by the Court. Defendant No. 1 also filed an additional written statement praying for dismissal of the suit of the plaintiff. The plaintiffs had also filed written statement against the counter- claim filed by the defendant.
6. On the basis of the pleadings, the following issues were framed:
"(1) Is there any cause of action for the suit?
(2) Whether the plaintiff has right, title, interest and possession over
the suit land and whether the plaintiff was dispossessed by the defendants from the suit land?
3(3) Whether the counter claim raised by the defendants is legal? (4) Whether the defendant/counter claimant is entitled to get decree in respect of the counter claim raised by the defendant/counter claimant?
(5) To what relief/reliefs the parties are entitled?"
7. The plaintiffs examined 5 witnesses and the defendant examined 3 witnesses in support of their respective claims.
8. Both the courts below had concurrently held that the pro forma defendant No. 3 sold the suit land to the plaintiff No. 1 after the same had fallen in the share of pro forma defendant No. 3 on the basis of an amicable settlement. The courts below also noted the sale transactions in respect of the property left behind by Krishna Mohan Nath after his demise. The learned trial Court noted that the plaintiff No. 1 (PW3) had enquired of the defendant No. 1 (DW1) as to whether he was interested and willing to purchase the suit land, which was sought to be sold by his brother, pro forma defendant No. 3, and, only after disinterest was shown by the defendant No. 1, plaintiff No. 1 had purchased the suit land. The learned trial Court also recorded that DW1 failed to depose that he was ready to purchase the suit land on payment of due consideration. The fact that the defendant No. 1 valued the counter-claim at Rs. 22,700/-, was taken to be an attempt by the defendant No. 1 to purchase the suit land at a significantly lower price though plaintiff No. 1 had purchased the same at Rs. 50,000/-. Accordingly, the suit was decreed and the counter- claim was dismissed.
9. The learned lower appellate court, while affirming the said judgment and decree, also opined that the defendant No. 1 had raised contradictory pleas in the sense that while, on the one hand, he was denying that there was any partition of the ancestral property of Krishna Mohan, on the other hand, he is raising a counter-claim for purchase of the suit property.
10. It will be relevant to note herein that the eldest brother of defendant No. 1 and 3, Khirod, and their mother, Abola, had expired and presently there are only 4 siblings including the defendant No. 1 and pro forma defendant No. 3.
4Though the defendant No. 1/counter-claimant in his evidence asserted that there was no amicable settlement or partition of the properties left behind by Krishna Mohan Nath, such claim is belied by other contemporaneous materials available on record. If there was no partition of the properties with proper demarcation of boundaries, there could not have been sale transactions of the property of Krishna Mohan Nath with specified boundaries. Defendant No. 1 himself claimed to have purchased, through Ext.-A, 3 Bigha 14 Katha 4 Chattak 5 Gonda of land in various Dags and Patta from his sister, Nandarani. Ext.-A demonstrates that his purchased land is clearly identified with boundaries. It is not a sale deed transferring share of Nandarani. This document belies the claim of the defendant No. 1 that there was no partition. Another aspect, which clearly emerges from the sale deed, Ext.-A, which is exhibited by defendant No. 1, is that Nandarani could dispose of 3 Bigha 14 Katha 4 Chattak 5 Gonda of land, which is much more than 3 Bigha 10 Chattak, which is the suit land, transferred by pro forma defendant No. 3 to plaintiff No. 1. The evidence on record does not disclose that pro forma defendant No. 3 had sold any land prior to the sale made to the plaintiff No. 1. Share of the sons will not be less than the share of the daughters. DW3 in categorical terms had stated that there was a family partition after the death of Krishna Mohan Nath and that land was separately demarcated and, thereafter, Nripendra (pro forma defendant No. 3) had been in possession of his separate identified land for quite a few years before he sold the suit land.
11. Own witness of defendant No. 1/counter-claimant has demolished his case that there was no partition. Leaving aside other purported sales made, Ext.-A itself pre-supposes that there was partition of the property and the sister had got her share of land, which is more than the suit land and, therefore, it cannot be said that the pro forma defendant No. 3 did not have any saleable interest. It is also clear that the pro forma defendant No. 3 was in exclusive possession of the land sold by him to the plaintiff No. 1. Both the courts below have also held that the defendant No. 1 did not want to buy the plot of land when offered before the same was sold to plaintiff No. 1.
512. So far as substantial questions of law No. 1 and 2 are concerned, the same being established propositions of law, needs no reiteration. As discussed above, in the instant case, title of the vendor of the plaintiff is found to be well established. The courts below had dismissed the counter-claim of the defendant No. 1 on due and proper appreciation of evidence on record backed up by cogent reasoning.
13. In view of the above, I find no merit in this appeal and, accordingly, the same is dismissed. The substantial questions of law are answered accordingly in the above terms. No costs.
14. Registry will send back the LCR.
JUDGE RK 6 Misc. Case 1468/2004 In RSA 78/2004 BEFORE HON'BLE MR JUSTICE A K GOSWAMI 01.06.2015 The appeal was admitted by framing substantial questions of law subject to condonation of the delay in preferring the appeal.
There is delay of 6 days in preferring the appeal.
No objection is filed against the prayer for condonation of the delay. Accordingly, the delay is condoned.
Misc. Case is disposed of accordingly.
JUDGE RK 7 RSA 182/003 CAVEAT No. 1379/2003 BEFORE HON'BLE MR JUSTICE A K GOSWAMI 01.06.2015 On the request of Mr. B. Pathak, learned counsel appearing for the respondents, call on 04.06.2015.
JUDGE RK