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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
N. CHAUDHURY, J.
Jagannath Mahanta – Appellant
Versus
Md. Sadek Ali – Respondent
RSA No. 94 of 2003
Decided On : 28.10.2014
Land Dispute - Title Suit - Assam Land and Revenue Regulation - [FACT OF THE CASE] The plaintiff filed a suit for declaration of his right, title, and interest and recovery of possession of a plot of land. The defendant claimed adverse possession and oral gift from the original owner. The Trial Court decreed the suit in favor of the plaintiff, but the First Appellate Court reversed the decision. [FINDING OF THE COURT] The First Appellate Court held that there was an oral gift in favor of the defendant and that adverse possession extinguished the plaintiff's title. [ISSUES] Whether the defendant's claim of oral gift and adverse possession was valid. [RATIO DECIDENDI] The Court found that the defendant's claim of oral gift was beyond pleading and that adverse possession was not proved. The Court also emphasized the importance of documentary evidence and the duty of the Court to seek the truth. [FINAL DECISION] The Second Appeal was allowed, and the judgment and decree of the First Appellate Court were set aside, restoring the judgment of the Trial Court.
1. The plaintiff of Title Suit No. 56 of 1991 of the Court of learned Civil Judge (Junior Division) No.3 at Guwahati has preferred this Second Appeal challenging the appellate judgment of reversal passed on 21.09.2002 by learned Civil Judge (Senior Division) No.1 at Guwahati in Title Appeal No. 26 of 1998, thereby dismissing the suit of the plaintiff.
2. The plaintiff Mr. Jagannath Mahanta instituted Title Suit No. 56 of 1991 praying for a decree for declaration of his right, title and interest and recovery of possession of a plot of land measuring 2 Kathas 11 Lechas by Dag No. 207 of KP Patta No. 177 in village Hengerabari of Beltola Mouza in the District of Kamrup. The Plaintiff stated that original owner of the land was one Md. Babur Ali Sheikh (Proforma Defendant No.6) who transferred the land to Sakina Bibi (proforma defendant No.7) vide registered sale deed No. 1503/1379 dated 05.03.1962 on receipt of consideration of Rs. 1000/- and handed over possession thereof. Sakina Bibi on turn sold the same land to the plaintiff by a registered sale deed no. 1653/1548 dated 17.02.1971 on a consideration of Rs. 4999/- and handed over possession to the plaintiff. The plaintiff thereafter obtained demarcation through land records staff and erected boundary walls made of bricks on Western and Eastern boundaries in February, 1971. The boundaries at Northern and Southern side, however, were tied up with trees and bamboos. There was a public road on the Northern boundary. The plaintiff claims to have made payment of land revenue regularly. He obtained mutation in the records of rights on 18.07.1981 vide mutation No. 725 of 1979-80. According to the plaintiff, in the early March 1985 he started construction of a residential house over the suit land but in the night of 14.03.1985 at about 9 P.M. the defendant attacked the plaintiff and demolished the construction made by him. Out of fear the plaintiff took shelter in the house of the neighbour, Udhav Kakoti and Monmohan Kalita. He lodged ejahar with Dispur Police Station on 15.03.1985 which ultimately led to registration of Case No. 155 M/85 under Section 145 Cr. P.C and the land was also attached under Section 146 Cr. P.C. The Magistrate, Guwahati, however, declared possession of the defendant on 28.11.1988 which was brought under challenge in Criminal Revision No. 65 of 1989 before this Court and the Revision Petition was dismissed on 18.12.1989 by this Court. Under such compelling circumstances, the plaintiff claimed to have instituted the suit for declaration of his right, title and interest on the basis of purchase and for recovery of possession by evicting the defendants and removing his men and materials from the suit land.
3. On being summoned the defendant No.1 Md. Sadek Ali appeared and filed his written statement. The proforma defendants stayed away from the Court and so, the learned Court passed order deciding to proceed ex parte against them. The defendant No.1 stated in Paragraph-8 of the written statement that the land originally belonged to Md. Babur Ali Sheikh who was none other than his maternal grandfather. Suit land was originally annual patta land which was converted into periodic patta land on 21.11.1962 and so Md. Babur Ali Sheikh did not have any transferable title over the land on 02.03.1962 when he had executed sale deed in favour of Sakina Bibi. The sale deed, therefore, was illegal and void as vendor did not have any transferable right, title and interest over the land. The defendants also denied handing over of possession in favour of Sakina Bibi. In Paragraph-19 of the written statement the defendant No.1 has stated his own fact. He claimed that initially he and his father Meher Ali had taken possession of suit land in the year 1960 for cultivation from the original owner. But in the year 1962 when Md. Babur Ali Sheikh wanted back his land, they not only refuse to vacate but asserted their right over the land openly and hostile to Md. Babur Ali Sheikh. U
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