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2017 Supreme(Gau) 1169
IN THE HIGH COURT OF GAUHATI
KALYAN RAI SURANA, J.
Lutfa Begum - Appellant
Versus
Hafizur Rahman and Ors - Respondents
RSA 128 of 2017
Decided On : 13-06-2017
For the Appellant :Ms. S. Senapati, Ms. B. Sarma, Ms. S. Kanango and Mr. D. Mazumdar, Advocates.
Headnote:
Criminal Procedure Code, 1973 – Section 107 and 144 – Relief of Restoration – Suit land – Illegality – Evidence – Respondent had instituted for declaration of right title interest cancellation of sale deed correction of records eviction and permanent injunction, inter-alia, projecting in plaint that proforma defendant No.1 was the owner of the suit land described in Schedule-A, which he sold to defendant No.2 vide registered sale deed and Defendant No.2 had been possessing same defendant No.2 then gifted the land to the proforma defendant No.2 vide registered gift deed turn sold same to plaintiff vide registered sale deed was also projected that on taking possession of the suit land on the same day plaintiff constructed a house on it and constructed a bamboo fencing around land – Held, Suit land in favour of the plaintiff having not proved their respective stand, no infirmity is found with the impugned judgment and decree passed by both the learned courts below on the acceptance of gift deed as a valid document of transfer of right, title, interest and possession in favour of the proforma defendant No.2 vide gift deed Moreover defendant No.2 by not giving her evidence, has not been able to prove that she had validly sold suit land to appellant/defendant No.1 vide registered sale deed – Consequently, the issues urged in form of substantial questions of law No. A, B and D as formulated by appellants side are all held to be a pure question of fact and same does not give rise to any substantial question of law
Kalyan Rai Surana, J.
1. Heard Ms. S. Senapati, the Learned counsel for the appellant. This appeal under section 100 of the Civil Procedure Code, is directed against the first appellate judgment and decree dated 26.09.2017 passed by the learned Civil Judge, Dhubri, in Title Appeal No. 28 of 2015, thereby dismissing the appeal and upholding the judgment and decree dated 17.03.2015 passed by the learned Munsiff No.1, Dhubri, in Title Suit No. 122/2013. The appellate judgment was passed in common with Title Appeal No. 27 of 2015.
2. The Respondent No.1 herein, Md. Hafizur Rahman had instituted TS No.122/2013 for declaration of right, title, interest, cancellation of sale deed, correction of records, eviction and permanent injunction, inter-alia, projecting in the plaint that the proforma defendant No.1 was the owner of the suit land described in Schedule-A, which he sold to defendant No.2 vide registered sale deed No. 316/1997 and the defendant No.2 had been possessing the same. The defendant No.2 then gifted the land to the proforma defendant No.2 vide registered gift deed No. 2533/09, who in turn sold the same to the plaintiff vide registered sale deed No. 2541/2009 dated 23.07.2009. It was also projected that on taking possession of the suit land on the same day, the plaintiff constructed a 'sapra' house on it and constructed a bamboo fencing around the land. The land records was corrected by inserting his name in the land records by virtue of order dated 07.08.2009 in Misc. Case No. DM(PS) 252/2009 passed by the defendant No.3. However, the defendant No.1 trespassed into the suit land and constructed a 'sapra' house with CI Sheet roof. On his complaint, Dhubri P.S. Non-FIR case No. 154/Pt.1/2011 under section 107/144 Cr.P.C. was registered. On 09.09.2011, the defendant No.1 dispossessed the plaintiff from the suit land and demolished the 'sapra house' and bamboo fencing. The plaintiff came to know about the Sale Deed No. 652/2011 dated 27.05.2011 executed by Defendant No.2 in favour of defendant No.1. The plaintiff lodged an FIR and the police after investigation charge-sheeted the defendants No.1 and 2 and others under section 420/447/427/506/34 of the Indian Penal Code. Hence, the suit.
3. Both the appellant/defendants No.1 and defendant No.2 contested the suit by filing their separate written statements. It was, inter-alia, claimed that the defendant No.2 derived title only in respect of 10 lechas land by registered sale deed No. 316/1997 executed by the proforma defendant No.1, which she sold it to the appellant/defendant No.1 vide registered sale deed No. 652/2011. It was stated that the proceedings under section 107/144 of Criminal Procedure Code was already dropped.
4. Upon the pleadings of the parties, the following issues were framed -
1. Whether the suit is maintainable?
2. Whether this would be undervalued?
3. Whether the plaintiff has got the right, title and interest over the suit land?
4. Whether the three deed number 652/2009 is null and void?
5. Whether the plaintiff is entitled to get any relief as prayed for?
6. To what relief the parties are entitled to?
5. During trial, the plaintiff examined 3 witnesses and exhibited 6 documents, viz., (1) Sale Deed No. 316/97, (2) gift deed No. 2533/09, (3) Sale deed No. 2541/09, (4) sale deed No. 652/11, (5) order-sheet of DM(PS) case No. 252/09 and (6) jamabandi. The defendant No.1 examined herself and DW-1 and exhibited 4 documents, viz., (A) Certified copy of jamabandi, (B) Certified copy of DM(PS) case No. 33/12, (C) Certified copy of FIR, and (D) Sale Deed No. 652/11.
6. The learned trial court, having heard the learned counsel for the parties and on perusal of evidence on record, decreed the suit, by declaring the right, title and interest over the suit land, further declaring that the Ext. D (Sale deed No. 652/11) to be invalid for 71/2 lechas land sold to the proforma defendant No.1 and the plaintiff was held to be entitled to correction of land records.
