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IN THE HIGH COURT OF GAUHATI
Rumi Kumari Phukan, J.
Monoj Dihingia and Ors. - Appellants
Vs.
Nabin Kr. Gupta and Ors. - Respondents
RFA No. 99 of 2005
Decided On : 27-02-2015
For the Appellants : P.K. Goswami, A. Barman
For the Respondents: S.C. Keyal, S.K. Ghosh, S.P. Choudhury, P.P. Baruah, A. Gohain, B. Banerjee, J. Laskar
Headnote:
Limitation Act – Articles 113, 64 and 65 - Transfer of Property Act - Sections 8,54 and 3(2)(b) - Delivery of possession - suit land - Praying for a decree - Sale Deed - Interest over the suit property - Whether there is cause of action for the suit - Whether the plaintiff has right, title, and interest over the suit property - Whether the defendants No. 2 and 3 have right, title, and interest over the suit property - Relief/reliefs the parties are entitled - Court of learned District Judge, against respondents defendants originally praying for a decree of ejectment of defendant No. 1 who was a tenant in respect of house - Plaintiff/appellant to said defendants/respondents and also to declare right, title, interest over suit land, with a further prayer for declaration of Sale Deed as void, illegal and for its cancellation - Allegedly made in favour of Respondents No. 2 and 3 - Father of appellants, was owner of a plot of total land measuring under periodic - Dag No. and under periodic No. dag No. of Block No. 2 of Town - Out of that, land is suit land as described in schedule of plaint - Father died and gave suit land in favour of appellants, names of appellants were recorded on Revenue Record as of said Suit Land - Appellant No. 1 had constructed his permanent dwelling houses over suit land during lifetime of his father - He subsequently let out some of his houses constructed over a period of time over said suit land, on monthly rental basis, including Respondent No. 1/defendant No. - Respondent No. 1 has failed to pay his due rents and denied ownership of appellants over suit land and claimed to be a tenant under the Respondents No. 2 and 3 - Suit was filed by plaintiffs/appellants - - Respondent No. 1, submitted his written statements denying right of plaintiffs as his landlords -– Held, Registered Sale Deed so executed in favour of grandfather of defendants, seller cease to have any interest - Right, over property equally depriving plaintiffs/appellants to claim any right over disputed property by way of inheritance - Appellants cannot resist result/ consequence of legally valid documents - It can be safely held that appellants have no right title, and interest over the disputed land and subsequent entry in revenue record in 1978 without any ground cannot confer any title upon appellants - In view of status of appellants who were no more rightful owner of disputed land, cannot insist defendants to be tenant under them nor can claim any arrear rent - Evidence of appellant/plaintiff No. 1 also reveals that their father allowed to occupy suit land and present defendants are legal heirs - There is no any whisper that he was allowed to stay as a tenant Equally, all witnesses of plaintiffs admitted possession over suit land and it is also admitted by all witnesses of appellants that suit land was in name of the defendants as per Municipal Records - Mutation of land in name of appellants at subsequent stage which is again not satisfactorily explained as has been discussed above cannot confer any legal right upon appellants as has been claimed by them – Court find no any irregularity and illegality in impugned order so passed by learned District & Sessions Judge, and there is nothing to set aside order - Impugned order passed in Title Suit No. by learned District Judge is hereby uphold - Noted that no order has been passed by learned Court below regarding court Fee the counter claim - So, it is hereby directed that respondents will pay necessary Court Fee as regard counter claim, it not already paid - Return LCRs forthwith – Ordered Accordingly
Rumi Kumari Phukan, J.
1. Heard Mr. B. Banerjee, learned counsel for the appellants. Also heard Mr. P.P. Baruah, learned counsel for the Respondents. This is an appeal under Order 41 Rule 1 of the Code of Civil Procedure, 1908, against the judgment & decree dated 31.03.2005 passed by the learned District Judge, Dhemaji, in Title Suit No. 13/98.
2. The brief facts of the case, is that the appellants as plaintiff instituted a Title Suit, mentioned above, before the Court of learned District Judge, against the respondents defendants originally praying for a decree of ejectment of the defendant No. 1 who was a tenant in respect of the house, let out by the plaintiff/appellant to the said defendants/respondents and also to declare right, title, interest over the suit land, with a further prayer for declaration of Sale Deed dated 24.04.1967, as void, illegal and for its cancellation, which was allegedly made in favour of the Respondents No. 2 and 3. The father of the appellants, late Mahendra Nath Dihingia, was the owner of a plot of total land measuring 3 Bighas 4 Kathas 2 lechas under periodic Patta No. 42 Dag No. 180 and under periodic patta No. 43, dag No. 182 of Block No. 2 of Dhemaji Town. Out of that, land 2 kathas 10 lechas is the suit land as described in the schedule of the plaint. The father died in 1981 and gave the suit land in favour of the appellants in 1978 and on 30.12.1978, the names of the appellants were recorded on Revenue Record as Pattadars of the said Suit Land. The appellant No. 1 had constructed his permanent dwelling houses over the suit land during the lifetime of his father. He subsequently let out some of his houses constructed over a period of time over the said suit land, on monthly rental basis, including Respondent No. 1/defendant No. 1. However, the Respondent No. 1 has failed to pay his due rents and denied the ownership of the appellants over the suit land and claimed to be a tenant under the Respondents No. 2 and 3. Hence, the said suit was filed by the plaintiffs/appellants. The appellants has been paying revenue and other municipal taxes and other dues to the authorities concerned and relevant receipts have already been submitted before the Court below.
3. The Respondent No. 1, submitted his written statements denying the right of the plaintiffs as his landlords. The defendants No. 2 and 3 had also submitted written statements denying the right of the plaintiff as men landlords and a counter claim praying for a decree of declaration of right, title, interest over the suit land and also for delivery of possession by demolishing the houses constructed by the plaintiffs over the said suit land.
4. In response to that, the plaintiffs/appellants had filed their written statements. As many as 7 witnesses were on behalf of the appellants/plaintiffs and 5 witnesses were examined on behalf of the respondents/defendants.
5. On perusal of the records and after hearing the learned counsel appearing for the parties, the learned Court below came to an illegal finding on wrong appreciation of the record, by rejecting the claim of the plaintiffs/appellants and by decreeing the counter claim of the defendants/respondents by its judgment dated 23.03.2005 and decree dated 31.03.2005 passed in Title Suit No. 13/98 by the learned District Judge, Dhemaji.
6. Being highly aggrieved with the said judgment/decree, abovementioned, the appellants/plaintiffs have preferred the instant appeal, on the grounds that (i) the learned Court below has committed gross error of law as well as fact in declaring the T.S. No. 13/98; (ii) the learned Court below has failed to determine the validity of the alleged Sale Deed, in question; (iii) the learned Court below has also failed to determine the right, title of the plaintiffs/appellants over the disputed land; (iv) the learned Court below has failed to appreciate the evidence in respect of the fact that admittedly the names of the defendants/respondents Nos. 2 & 3 were stuck of
