Back
IN THE HIGH COURT OF GAUHATI
N. Chaudhury, J.
Bijoy Kumar Baruah – Appellant
Versus
Smt. Konmai Baruah & Others – Respondents
RSA No. 98 of 2006
Decided On : 27-07-2016
Civil Procedure Code,1908 - Section 30 - Title Suit - Recovery of khas possession - Title and interest - Appellant as plaintiff instituted Title Suit No. in Court of learned Civil Judge No. 1 stating that suit land measuring 1B 3K 15Ls described in Schedule-A to plaint is owned by plaintiff and proforma defendants no. 2 and 3 by inheritance - Plaintiff land was originally owned and possessed by his father, and defendant no. happens to be step brother - Purchased suit land in year he obtained mutation to suit land vide order - Passed by learned Sub-Deputy Collector of - He died in the year and accordingly plaintiff and proforma defendants no. 2 and 3 got their names duly mutated in records of rights by right of inheritance - He and his brothers, proforma defendants no. 2 and 3 had permitted defendant no. 1 way back in 1996 to make a temporary structure on suit land for his dwelling purpose but after death of defendant no. 1 occupied entire suit land and refused to vacate on being asked - Plaintiff defendant no. 1 does not have any semblance of right, title and interest thereto as suit land is purchased property - With these averments prayer was made for passing a decree declaring right, title and interest of plaintiff and proforma defendants no. 2 and 3 over suit land and also for recovery of khas possession by evicting defendant no. 1 and demolishing and removing structures built by him over the suit land - On being summoned defendant no. 1 appeared and submitted written statement wherein he claimed that suit land was originally owned father – He had married twice - While was born to the first wife, were born after death of first wife from second wife - Being eldest brother reared and nurtured them - Property having been acquired by it devolved on his legal heirs – Held, - Whether suit land covered by Dag No. and PP No. is same as that of Dag for surveyed village and chita are necessary documents for adjudicating dispute - Documents not having been produced earlier it is necessary to take same on record under provision of Clause (b) of Rule 27 Order 41 - Application has been filed before Second Appellate Court but in absence of learned counsel for respondents it is not possible to accept this document at this stage and thus it would be proper to remand matter to learned First Appellate Court for allowing parties to lead further evidence under Order 41, Rule 27 in support as well as against this contention - Learned Courts below on earlier occasion did not feel necessity for calling these documents - It would have been appropriate on part of learned trial Court to exercise jurisdiction under Section 30 of CPC to call for these documents at trial stage which would have enabled learned Court to arrive at a correct finding - This not having been done judgment passed by learned First Appellate Court which upheld finding of learned trial Court is hereby set aside and matter is remanded to learned First Appellate Court to allow parties to lead further evidence so as to bring on record documents to show as to whether suit land covered by Dag No. of PP No. pertaining in district is same and was resurveyed from Dag No. of old Patta No. of same - Sole substantial question of law is accordingly decided in favour of appellant - This is because entry made in Ext-1 may be on basis of Exts-3 and 4 and in that event endorsement made in Ext-1 cannot be brushed aside - Appeal stands allowed
N. Chaudhury, J.
1. Challenging the concurrent findings arrived at by the learned trial Court and the First Appellate Court, the plaintiff has preferred this Second Appeal.
2. The present appellant as plaintiff instituted Title Suit No. 37/2000 in the Court of learned Civil Judge (Junior Division) No. 1, Jorhat, on 10.07.2000 stating that the suit land measuring 1B 3K 15Ls described in Schedule-A to the plaint is owned by the plaintiff and the proforma defendants no. 2 and 3 by inheritance. According to the plaintiff, the land was originally owned and possessed by Ramkumar Baruah, his father, and defendant no. 1, Basanta Kumar Baruah, happens to be the step brother of said Ramkumar Baruah. Ramkumar Baruah purchased the suit land in the year 1966 from one Sidananda Bhuyan, Someswar Bhuyan and Rameswar Bhuyan and he obtained mutation to the suit land vide order dated 15.03.1966 passed by the learned Sub-Deputy Collector of Jorhat. Ramkumar Baruah died in the year 1997 and accordingly the plaintiff and the proforma defendants no. 2 and 3 got their names duly mutated in the records of rights by right of inheritance on 24.02.2000. Ramkumar Baruah and his brothers, the proforma defendants no. 2 and 3 had permitted the defendant no. 1 way back in 1996 to make a temporary structure on the suit land for his dwelling purpose but after death of Ramkumar Baruah defendant no. 1 occupied the entire suit land and refused to vacate on being asked to do so. According to the plaintiff, defendant no. 1 does not have any semblance of right, title and interest thereto as the suit land is the purchased property of Ramkumar Baruah. With these averments prayer was made for passing a decree declaring right, title and interest of the plaintiff and the proforma defendants no. 2 and 3 over the suit land and also for recovery of khas possession by evicting the defendant no. 1 and demolishing and removing the structures built by him over the suit land.
3. On being summoned the defendant no. 1 appeared and submitted written statement wherein he claimed that the suit land was originally owned by Manik Baruah, father of Ramkumar Baruah, Basanta Kumar Baruah and Prafulla Kumar Baruah. Manik Baruah had married twice. While Ramkumar was born to the first wife, Basanta Kumar and Prafulla Kumar were born after death of the first wife from the second wife of Manik Baruah. Basanta Kumar and Prafulla Kumar were young when Manik Baruah died and so Ramkumar Baruah being the eldest brother reared and nurtured them. The property having been acquired by Manik Baruah it devolved on his legal heirs including Basanta Kumar and Prafulla Kumar. Basanta Kumar Baruah being defendant no. 1 was permitted by Ramkumar Baruah during his lifetime to exclusively and absolutely own and possess the suit land whereas the other properties were retained by him. This was done because there was no enough accommodation in the paternal residential house. The defendant no. 1, therefore, claimed that he being the legal heir of Manik Baruah has valid right, title and interest to the suit land and it is rather the plaintiff and the proforma defendants no. 2 and 3 who having other properties do not have any right, title and interest with respect to the suit land described in Schedule-A to the plaint. He, therefore, prayed that the suit of the plaintiff be dismissed with cost. It may be mentioned herein that Basanta Kumar being defendant no. 1 filed his written statement and after his death when his legal heirs were impleaded the impleaded defendants also filed a separate written statement, however, maintaining the same stand and thus there are two sets of written statement on behalf of the defendant no. 1.
4. The learned trial Court after consideration of the averments made by the parties in their respective pleadings framed following nine issues and thereafter in course of trial three more issues were framed. All these issues are quoted below for ready reference:-
"1. Whether there i
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
