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IN THE HIGH COURT OF GAUHATI
N. Chaudhury, J.
Chandipur Tea Estate – Appellant
Versus
Devilal Basfor – Respondent
RSA No. 92 of 2007
Decided On : 29-03-2016
For the Appellant : Mr. P.K. Deka
For the Respondent: Mr. M.H. Rajbarbhuiya
Headnote:
Criminal Procedure Code,1973 - Section 107 - Possession - Title Suit - Sale of tea at Tea Estate - Prayer for temporary and permanent injunction - Peaceful possession of suit - Noticed - Court of learned Civil Judge No.1, stating that it is a company having head office and is engaged in business of production, manufacture and sale of tea at Tea Estate within jurisdiction of Court - Suit land belonged to it and occurs at center of garden - When plaintiff company wanted to raise suit land, which is a low lying land - Defendant and their family members raised objection and threatened the employees of Tea Estate with dire consequences - Situated thus, plaintiff instituted a proceeding Section 107 Cr.P.C. learned Executive Magistrate and thereafter instituted suit praying for a decree declaring its right, title and interest over suit land and for confirmation/recovery of khas possession by evicting defendant or any person occupying land through them - Prayer for temporary and permanent injunction was also prayed for - Suit land was described to be a land measuring 1 bigha 11 katha 3 chattaks covered in district - Specific boundaries were also mentioned in schedule to plaint - Sole defendant appeared and submitted written statement - Written statement it was claimed defendant has been in peaceful possession of suit land and that plaintiff does not have any possession in respect thereto - Plaintiff examined one witness and adduced some documents defendant examined four witnesses and exhibited some documents – Held, Averments made in paragraph 11 of written statement obviously do not contain required ingredients to make out a case of adverse possession - Defendant even plainly have not mentioned year of adverse possession pleading to effect no amount of evidence could have been led to prove that defendant acquired or perfected title by way of adverse possession - Learned First Appellate Court committed error in not noticing these aspects of matter - Case of defendant that he had acquired possession of suit land - He claimed state of possession of land and denied title thereto - Classic case of adverse possession is defendant would admit title of real owner and then claim that he has possessed suit land over period of limitation publicly and to detriment of true owner and thus his possession was hostile to real owner - None of these ingredients arise from pleadings of defendant - Substantial question of law is accordingly decided in favour of plaintiff and against the defendant - First Appellate Court framed three additional issues and additional Issue No.3 having found to be not valid and additional issue No.1 having already decided in favour of plaintiff it is necessary to remand case to learned trial court to decide additional Issue No.2. matter stands remanded to learned trial Court - Court shall afford adequate opportunities to parties to amend their respective pleadings and to lead evidence, if so advised - Such extraordinary recourse is taken in view of peculiarity of facts and circumstances of case noticed in case - Defendant having claimed that he was an ex tea garden labourer and was enjoying suit land, may be in enjoyment of one of his conditions of service, he is entitled to adequate opportunity to make out and establish case as well - Plaintiff is also entitled to remove apparent material defects occurring in plaint - Learned trial Court shall make an endeavour to dispose of suit preferably within a period of six months from today - Parties shall appear before learned trial court - Records shall be sent to learned trial court in meantime - Appeal has been remanded
N. Chaudhury, J.
Plaintiff of Title Suit No.30/2005 of the Court of learned Civil Judge (Junior Division) No.1, Hailakandi has preferred this Second Appeal challenging the first appellate judgment and decree dated 16.05.2007. The learned First Appellate Court allowed the appeal and dismissed the suit of the plaintiff by reversing the judgment and decree passed by the learned trial Court.
2. The facts involved in the Second Appeal are required to be stated before entering into the merit of the Second Appeal. The present appellant as plaintiff instituted Title Suit No.30/2005 in the Court of learned Civil Judge (Junior Division) No.1, Hailakandi stating that it is a company having head office at Calcutta and is engaged in the business of production, manufacture and sale of tea at Chandipur Tea Estate within the jurisdiction of the Court. The suit land belonged to it and occurs at the center of the garden. In the month of March, 2005, when the plaintiff company wanted to raise the suit land, which is a low lying land, the defendant and their family members raised objection and threatened the employees of the Tea Estate with dire consequences. Situated thus, the plaintiff instituted a proceeding under Section 107 Cr.P.C. before the learned Executive Magistrate and thereafter instituted the suit praying for a decree declaring its right, title and interest over the suit land and for confirmation/recovery of khas possession by evicting the defendant or any person occupying the land through them. A prayer for temporary and permanent injunction was also prayed for. The suit land was described to be a land measuring 1 bigha 11 katha 3 chattaks covered by 2nd R.S. Patta No.1, Dag No.41 of Mouza-Bashbari, Phargana - Saraspur in the district of Hailakandi. Specific boundaries were also mentioned in the schedule to the plaint.
3. On being summoned, the sole defendant appeared and submitted written statement. In paragraph 11 of the written statement it was claimed that the defendant has been in peaceful possession of the suit land and that the plaintiff does not have any possession in respect thereto. In paragraph 14 it is further stated that on 09.03.2005 plaintiff by engaging its employees and labourers tried to dispossess the defendant from the suit land and also caused damage to the pig farm of the defendant and further sold away the fish from the pond. With these prayers the defendant prayed for dismissal of the suit with cost.
4. On the basis of the aforesaid pleadings of the parties, the learned trial court framed five issues which are quoted below :-
“(1) Whether the plaintiff has the right, title and interest over the suit land?
(2) Whether suit is barred by law of limitation?
(3) Whether suit is barred for non-joinder of necessary parties?
(4) Whether the defendant is evicting from their possession over the suit land?
(5) To what relief, parties are entitled to?”
5. In the course of trial, plaintiff examined one witness and adduced some documents whereas the defendant examined four witnesses and exhibited some documents. Upon consideration of the materials available on record the learned trial Court decided issue No.1 in favour of the plaintiff holding that the plaintiff has right, title and interest over the suit land. The defendant though claimed title over the suit land but did not produce any document of title. Relying on Ext-1, the copy of jamabondi and Ext-2, the Form -A1 which is return of land for special cultivation submitted in course of ceiling operation, the learned trial Court was of the view that the land not only belonged to the plaintiff company but it is also free from ceiling and was retained for the purpose of special cultivation. Ext-A, a possession certificate issued by the Circle Officer, Algapur Circle and Ext-B, certified copy of judgment dated 01.12.2005 passed by the learned Civil Judge (Senior Division), Hailaklandi and Ext-C series, the land revenue receipts produced by the defendant was also t
