Sri D. K. Kalita, A.J.S. Munsiff, Tihu

Transcription

1 Form No. (J) 2 HEADING OF JUDGMENT IN ORIGINAL SUIT/CASE DISTRICT : NALBARI IN THE COURT OF MUNSIFF, TIHU Present : Sri D. K. Kalita, A.J.S. Munsiff, Tihu Title Suit No. 02/14 Friday, the 8 th day of May, Sri Mukunda Das 2. Sri Hemanta Das 3. Sri Nagen Das 4. Smt. Saraswati Das. Plaintiffs. - Vs 1. Sri Dhiren Das 2. Sri Bhaben Das 3. Sri Ganesh Das 4. Sri Bharat Das 5. Sri Dipen Das 6. Sri Dibakar Das 7. Smt. Tarapriya Das Defendants. This suit coming on for final hearing on in presence of Mr. I. G. Rahman Mr. T. Ahmed Mr. D. Talukdar Advocate for the Plaintiff. Advocates for the Defendants. And having stood for consideration to this day, the Court delivered the following judgment:-

2 Page 2 of 11 TS 02/2014 J U D G M E N T This is a suit for declaration of right, title, interest, recovery of khas possession, cancellation of order of mutation, correction of revenue record and for permanent injunction. 1. Plaintiff's case, in brief, is that all the four plaintiffs belong to one family and they are mother and sons in relation. Land measuring 1 Bigha 1 Lecha covered by Dag No. 229 under K.P. Patta No. 114 with specific boundaries, more particularly described in the schedule Ka of the plaint is homestead land of the plaintiffs and land measuring 1 Katha 11 Lechas, more specifically described in schedule Kha of plaint, belongs to the Ka schedule land. The land described in the Kha schedule is the disputed land in the suit. The father of the plaintiffs no. 1, 2 & 3 Late Guneswar Das is the original owner of the Ka scheduled land who enjoyed the said land during his life time. Late Guneswar Das died when the plaintiff no.1 was 11 years old. Plaintiff nos. 2 & 3 are the younger brothers of the plaintiff no.1. They have another brother who died in the previous month of Chot of the institution of the suit. The defendants do not have any right, title and interest over the Kha scheduled land. It is further pleaded that on last 05/12/11, the defendants trespassing into the suit land armed with dao, axe etc., cut 4/5 bushes of plantain and some bushes of maj trees and started to build house with 6 pucca posts. Though the plaintiffs tried to prohibit them, the defendants intimidated them to take their life and told that the suit land was purchased by their father. The plaintiffs also instituted a case before the Executive Magistrate, Nalbari u/s 144 Cr.P.C.The plaintiffs visited the office of D.C., Nalbari and obtained the certified copy of Jamabandi of the Patta of the suit land. From the certified copy of Jamabandi of the Patta of suit land, they came to know that name of Late Gaurikanta Das has been mutated in place of

3 Page 3 of 11 TS 02/2014 no.2 pattadar over the land measuring 1 Katha 11 Lechas covered by Dag No.229 vide order dated passed by Circle Officer, but, no Sale Deed number has been mentioned thereat. The father of plaintiff nos. 1,2 & 3 never transferred the suit land in his life time to Gaurikanta Das. The aforesaid action of the defendants have clouded right, title and interest of the plaintiffs and hence the plaintiffs have come up with the suit with the prayers of declaration of right, title, interest, recovery of possession, cancellation of mutation, correction of revenue record and permanent injunction. 2. Defendants have contested the suit by filing their written statement. In their WS apart from taking the regular pleas that suit is not maintainable, there is no cause of action for the suit, the suit is bad for non-joinder of necessary parties, the suit is barred by law of limitation, the suit is false, vague, vexatious, frivolous, they have denied that the plaintiffs are in possession of the entire Ka scheduled land. It is pleaded by the defendants that the Kha scheduled land was purchased by the father of the defendants Late Gaurikanta Das from plaintiff no.2 Hemanta Das on 16/01/1978 by registered deed no. 54 and enjoyed the land peacefully after taking over the possession. The suit land is the share of the plaintiff no.2 out of Ka scheduled land and he sold the land at his own will. The defendants have denied that the plaintiff no.2 was a minor at the time of execution of the sale deed. The defendants have admitted that the plaintiff nos. 1, 2 & 3 are brothers and their another brother died as claimed by the plaintiff. Disputing the allegation of trespassing into the suit land armed with dao, axe etc., cutting plantains and moj trees, intimidating the plaintiffs, the defendants have pleaded that during the life of the father of the defendants and after his death, the defendants planted some trees over the suit land and constructing house thereon, they are residing peacefully. The suit land has been in their possession since the purchase of the land by their father. With the above pleadings, the defendants have prayed for dismissal of the suit with cost.

4 Page 4 of 11 TS 02/ On the above pleadings, my Ld. Predecessor-in-office has framed the following issues:- 1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the Schedule A land is the ancestral property of the plaintiffs? 4. Whether Lt. Gaurikanta Das purchased 1 B 11 L land i.e., the Schedule B land on 16/1/1978 from plaintiff no.2 Hemanta Das by registered sale deed no.54? 5. Whether the defendants have been in possession of the Schedule B land? 6. Whether the mutation of the defendants in respect of the Schedule B land is liable to be cancelled? 7. Whether the defendants have dispossessed the plaintiffs? 8. Whether the plaintiffs are entitled to get permanent injunction? 9. Whether the plaintiffs are entitled to get the judgment and decree as prayed? 10. To what other relief(s) the parties are entitled? 4. During trial, plaintiff side filed evidence-on-affidavit of three witnesses. Out of them PW 1 & 3 were duly cross-examined by the defendant side. P.W.2 has not been cross-examined by the defendant as his evidence was closed. Defendant side also filed evidence-on-affidavit of three witnesses and all of them have been duly cross-examined by the plaintiff side. Both the sides have adduced documentary evidence as well and exhibited those documents. 5. I have heard oral arguments of Ld. Advocates for both the sides. DECISION AND REASONS THEREOF :- 6. Issue No. 1 :- This issue relates to cause of action for the suit. From the pleadings it appeared that Late Guneswar Das, who

5 Page 5 of 11 TS 02/2014 was the father of the plaintiffs no. 1, 2 & 3, is the original owner of the Ka Scheduled land and he enjoyed the said land during his life time. Kha scheduled land belongs to Ka scheduled land which is the disputed land in the suit. Late Guneswar Das died when the plaintiff no.1 was 11 years old and plaintiff nos. 2 & 3 are the younger brothers of plaintiff no. 1. It is alleged in the plaint that on 05/12/11 the defendants forcibly dispossessed the plaintiffs from the suit land and started to construct house on the suit land. The plaintiffs visited the office of D.C., Nalbari and obtained the certified copy of Jamabandi of Patta of suit land. From the certified copy of Jamabandi of the Patta of the suit land, they came to know that name of Late Gaurikanta Das has been mutated in place of no.2 pattadar over the land measuring 1 Katha 11 Lechas covered by Dag No.229 vide order dated passed by Circle Officer, but, no Sale Deed number has been mentioned thereat. The father of plaintiff nos. 1, 2 & 3 never transferred the suit land in his life time to Gaurikanta Das. As such plaintiffs have filed the suit for declaration of right, title, interest, recovery of possession, cancellation of mutation, correction of revenue record and permanent injunction. The defendants in their WS have taken the plea that the Kha scheduled land was purchased by the father of the defendants Late Gaurikanta Das from plaintiff no.2 Hemanta Das on 16/01/1978 by registered deed no. 54 and enjoyed the land peacefully after taking over the possession. The suit land is the share of the plaintiff no.2 out of Ka scheduled land and he sold the land at his own will. The defendants have denied the allegation of trespassing into the suit land and they have pleaded that their father enjoyed the suit land during his life time and after his death the defendants have enjoyed the suit land by peacefully residing thereon. Thus, assertion of claim and denial thereof constitutes cause of action for the suit. Hence, the instant issue is answered in affirmative. 7. Issue No. 2:- This issue relates to maintainability of the suit. The defendants though took the plea of maintainability, but they

6 Page 6 of 11 TS 02/2014 have not specifically shown as to why the suit is not maintainable. In view of decision of issue No. 1, it is apparent that there is a cause of action for the suit and that otherwise also there is no legal impediment with regard to the claim of the Plaintiffs and, as such, there is nothing to hold that the suit is not maintainable. Accordingly, the instant issue is answered in affirmative. 8. Issue No.4:- This issue relates to whether Lt. Gaurikanta Das purchased 1 B 11 L land i.e., the Schedule B land on 16/1/1978 from plaintiff no.2 Hemanta Das by registered sale deed no.54. The plaintiff has pleaded in their plaint that their father did not sell the suit land during his life time to Late Gaurikanta Das. The defendants have pleaded that their father Late Gaurikanta Das purchased Scheduled B (Kha) land from the plaintiff no.2 Hemanta Das by executing Sale Deed No.54 on The learned counsel for the plaintiff has submitted that the plaintiff no. 2 and his father never sold any land to Gaurikanta Das. The father of the plaintiff no.2 died when the plaintiff no.2 was just 13 years old. He has further submitted that at the time of execution of Sale Deed, the plaintiff no.2 was minor and as such the Sale Deed relied by the defendants is void. On the other hand learned counsel for the defendants have submitted that the Late Gaurikanta Das purchased the Scheduled Kha land from the plaintiff no.2 vide registered Sale Deed No. 54 dated which has been exhibited in the suit as Ext. Ka. He has further submitted that as the Ext. Ka is a 30 (thrity) years old document and produced from the proper custody, the presumption tilts in favour of the defendants u/s 90 of the Indian Evidence Act. 10. I have gone through the pleadings and evidence both oral and documentary. The plaintiffs, in their pleadings as well as evidence, have reiterated the plea that the father of the plaintiff never sold the land to Late Gaurikanta Das and the plaintiff no.2 was 13 years old at the time of death of his father. The plaintiff side has exhibited one certified copy of Jamabandi of Dag No.229 of Patta No.114 wherein the name of the

7 Page 7 of 11 TS 02/2014 plaintiffs and Late Gaurikanta Das are appeared. As regards to the plea of minority the plaintiff has not exhibited any document. The plaintiff has also not exhibited any document regarding date of the death of their father Late Gunesar Das (Hira). On the other hand defendant side has exhibited the Sale Deed No.54 as Ext. Ka and claimed in their pleading as well as in their evidence that the said Deed was executed by the plaintiff no.2 Hemanta Kr. Das in favour of Late Gaurikanta Das, the father of the defendants. 11. It is the argument of the defendants that the Ext. Ka is a thirty years old documents and presumption u/s 90 of the Evidence Act goes in favour of the defendants. Now, let me consider whether the Ext. Ka can be presumed to be duly executed. It is found that the date of execution of the Ext. Ka is and on computation of the period from the date of execution, it is established that the Ext. Ka is a thirty years old document. The said exhibit has been produced by the defendants and the purchaser of the land was their father Late Gaurikanta Das and as such I am of the opinion that the Ext. Ka has been produced from proper custody. The Ext. Ka is found to be free from suspicion in its appearance as the plaintiff has not cross-examined the defendant s witnesses regarding forgery or genuineness of the Ext. Ka. Moreover, one attesting witness Guneswar Das has been examined by defendant as D.W.3 who has deposed that he was present at the time of execution of Ext. Ka and he put his signature as identifier. The defendants have proved his signature on Ext. Ka as Ext. cha. Thus, I hold that the Ext. Ka has been duly executed and the presumption u/s 90 of the Indian Evidence Act goes in favour of the defendants. Accordingly, in view of the above discussion, I hold that Lt. Gaurikanta Das purchased 1 B 11 L land i.e., the Schedule B land on 16/1/1978 from plaintiff no.2 Hemanta Das by registered sale deed no.54. The instant issue is answered in affirmative. 12. Issue No. 3:- This issue relates to whether the Schedule A (Ka) land is the ancestral property of the plaintiffs. In their plaint, the

8 Page 8 of 11 TS 02/2014 plaintiffs have claimed that the Ka scheduled land was their ancestral property. The defendants have not denied the claim of the plaintiffs. But, the defendants have pleaded that out of the Ka schedule land, their deceased father Late Gaurikanta Das purchased the Kha schedule land. It is also appeared from the Ext.1 i.e., the certified copy Jamabandi copy of Dag No.229 of Patta No.114 of village Nakhara of Tihu Mouza that the father of the plaintiff no. 1, 2 & 3 was the original owner of the Ka scheduled land. Plaintiff No.4 is the wife of Late Guneswar Das. But, in view of my decision on issue no. 4, I hold that though the entire Ka schedule land was the ancestral property of plaintiffs, but, now, except Kha schedule land, other parts of the Ka schedule land remains as ancestral property of the plaintiffs. Thus, this issue is answered accordingly. 13. Issue No. 5 & 7 :- For the convenience of discussion I have taken these issues to decide together. These issues relate to whether the defendants have been in possession of the Schedule B land and whether the defendants have dispossessed the plaintiffs. The plaintiffs in their pleadings as well as in their evidence clearly stated that they were in possession of the Ka and Kha scheduled land and on 05/12/11 the defendants forcibly dispossessed the plaintiffs from the suit land and started to construct house on the suit land. On the other hand, the defendants have, in their pleadings and evidence, have clearly stated that the suit land i.e., Kha schedule land has been in their possession since the time of purchase of the land by their father Late Gaurikanta Das and after his death they are in possession of the land residing thereon peacefully. During their cross-examination, P.W.1 and 3 have stated that defendant Bharat Das is residing on the suit land and they have forgotten since which date he has been residing thereon. The plaintiff side has duly cross-examined the defendant s witnesses and they are remained unshaken. Both the sides have submitted the certified copy of Jamabandi of the suit land and from the Ext.1, it is appeared that the name of Late Gaurikanta Das was muted over the

9 Page 9 of 11 TS 02/2014 dag no. 229 and Patta no. 114 on and names of the defendants have been muted on The defendants have proved the Ext. Unga which shows that the case against the defendants u/s 145 Cr.P.C. in connection with the suit land was dropped. Thus, the above facts clearly show that the defendants are in possession of the suit land and they have not forcibly dispossessed the plaintiffs from the suit land. Accordingly, both the issues are answered in favour of the defendants. 14. Issue No. 6 :- This issue relates to whether the mutation of the defendants in respect of the Schedule B land is liable to be cancelled. In deciding issue no.4, it is held that the Scheduled B (Kha) land was purchased by Late Gaurikanta Das. The name Gaurikanta Das was muted on and after his death, the names of the defendants were muted in place of him on Thus, this issue is answered in negative. 15. Issue No. 8:- This issue relates to whether the plaintiffs are entitled to get permanent injunction. From my discussion on issue No. 4 to 7, it is clear that plaintiffs are not entitled to get the permanent injunction. This issue is answered accordingly. 16. Issue No.9:- This issue relates to whether the plaintiffs are entitled to get the judgment and decree as prayed. The plaintiffs have sought for a decree of declaration of right, title, interest over the Kha scheduled land, recovery of khas possession of the Kha scheduled land, cancellation of order of mutation, correction of revenue record and for permanent injunction. In view of the decision on issue no.4, I hold that the plaintiffs have not right, title and interest over the suit land i.e, Kha scheduled land. In view of the decision on issues no. 5 & 7, I hold that plaintiffs are not entitled to recover the khas possession. In view of the decision on issue no. 6, the order of mutation of the names of the defendants over the suit land is not liable to be cancelled and in view of the decision on issue no. 8, the plaintiffs are not entitled to get the decree of permanent injunction. Thus, I hold that the plaintiffs are not

10 Page 10 of 11 TS 02/2014 entitled to get the judgment and decree as prayed for. Accordingly, this issue is answered in negative. 17. Issue No. 10:- From the facts and circumstances of the case, as narrated above, I am of the considered opinion that it is a fit case where the defendants are entitled for cost of the suit from the plaintiffs. 18. In the result, plaintiffs' suit is liable to be dismissed with cost. Prepare the decree accordingly. O R D E R 19. Plaintiffs suit is dismissed on contest with cost. 20. Prepare the decree accordingly. 21. Judgment is pronounced and delivered in open court. 22. Given under my hand and seal of this court on this 8 th day of May, (D.K. Kalita) Munsiff, Tihu Typed by me, (D.K. Kalita) Munsiff, Tihu

11 Page 11 of 11 TS 02/2014 A P P E N D I X 1. Plaintiff s Witnesses: (i) P.W.1- Sri Hemanta Das (ii) P.W.2- Sri Narendra Nath (Not faced cross-examination) (iii) P.W.3- Sri Mukunda Das 2. Plaintiff s Exhibits: (i) Ext.1- Certified copy of Jamabandi (ii) Ext.2- Land revenue paying receipt 3. Defendant s witness: (i) D.W.1- Sri Bhabesh Das (ii) D.W.2- Sri Smt. Tarapriya das (iii) D.W.3- Sri Guneswar Das 4. Defendant s Exhibits: (i) Ext. Ka - Registered Sale Deed (ii) Ext. Kha - Certified copy of Chitha (iii) Ext. Ga - Land Revenue Paying Receipt (iv) Ext. Gha - Certified copy of Order dated (v) Ext. Unga - Certified copy of Order dated ` (vi) Ext. Cha - Signature of Sri Guneswar Das on the Sale Deed. Munsiff, Tihu