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2017 Supreme(Gau) 1404
IN THE HIGH COURT OF GAUHATI AT ITANAGAR BENCH
Ajit Borthakur, J.
Nyamo Kamduk - Appellant
Vs.
Minge Loyi - Respondent
FAO No. 3 (AP) of 2014
Decided On : 21-11-2017
Advocate Appeared:
For the Appellant : M. Pertin
For the Respondent: S. Tapin
Headnote:
Civil Procedure Code,1908 - Section 96 - Order XXVI ,41 Rule 9,2 and 10A - Execution of fresh lease deeds - Cultivation on suit land - Ancestral property - Declared right title and possession of suit land - Appellant permitted his sister condition and After death of father plaintiff/appellant also permitted her to continue cultivation on suit land and Per amicable settlement effected by in regard to distribution of ancestral property among two brothers suit land fell to share of plaintiff/appellant and plaintiff/appellant wanted an agreement to be executed with defendant/respondent to effect that she would continue cultivation on suit land till her death but respondent/defendant failed to recognize his ownership and instead claimed that she purchased land from plaintiff/appellants father and she is owner of suit land having right title and possession and upon such refusal plaintiff/appellant submitted a complaint to Deputy Commissioner - Along to convene a to decide aforesaid dispute and hand over land to him – Held, Defendant/respondent alleged that plaintiff/appellant filed translated copy of decisions and It has been further alleged that aforesaid translations are misleading interpolated and versions contained therein are inconsistent with contents/gists of original documents and that decision of seems to be completely fabricated date contents and name of suit land are completely changed from that of original documents and It is also contended that thumb impressions/signatures of Jumbo Este in documents vide are false and as such said documents are fabricated - In opinion of this Court it would be convenient if the disputed/questioned documents are subjected to scientific investigation as provided under Order XXVI Rule A of Code of Civil Procedure in aid of appreciation of oral testimony of witnesses of both parties and for reasons set forth above appeal is partly allowed setting aside - Impugned judgment and decree passed by Additional District Judge in Title Suit and suit is remanded back to trial Court with directions to issue appropriate commission under Order XXVI Rule for local investigation in respect of suit land to elucidate its exact location and boundary and further another commission under Order XXVI Rule A of Code of Civil Procedure for scientific investigation into questioned documentsdisputed documents including signatures/thump impression by Forensic Science Laboratory (FSL) after hearing counsel of both sides on procedure to be followed and terms of references for investigations and to dispose of suit afresh in accordance with law and No order as to cost and Send down LCR along with a copy of this judgment - Order accordingly
Ajit Borthakur, J.
1. This is an appeal under section 96 read with order 41 Rule 1 & 2 of the Code of Civil Procedure directed against the Judgment and Order, dated 20.01.2014, passed by the learned Additional District Judge, Basar, in Title Suit No. 1(WS) 2013, whereby the plaintiff/appellant's said suit has been dismissed imposing a cost of Rs. 20,000/- to be paid to the defendant/respondent. Heard Mr. M. Pertin, learned Sr. Counsel appearing for the appellant and Mr. S. Tapin, learned counsel appearing for the respondent.
2. The case of the appellant, in brief, is that the father of the appellant Late Kinya Kamduk permitted his sister Kinya Loyi defendant/respondent (since deceased) to cultivate on the suit land due to her poor economic condition. After the death of the father, the plaintiff/appellant also permitted her to continue cultivation on the suit land. Per amicable settlement effected by Kebang in regard to distribution of the ancestral property among the two brothers, the suit land fell to the share of the plaintiff/appellant. The plaintiff/appellant wanted an agreement to be executed with the defendant/respondent to the effect that she would continue cultivation on the suit land till her death, but the respondent/defendant failed to recognize his ownership and instead claimed that she purchased the land from the plaintiff/appellant's father Late Kinya Kamduk and therefore, she is the owner of the suit land having right, title and possession. Upon such refusal, the plaintiff/appellant submitted a complaint to the Deputy Commissioner, Along to convene a Kebang to decide the aforesaid dispute and hand over the land to him.
3. Upon receipt of the complaint submitted by the plaintiff/appellant, a Kebang was held on 30.05.1996, wherein, the Deputy Commissioner, West Siang District, Aalo clearly stated that the land in question was not purchased by the defendant/respondent Kinyir Loyi from late Kinya Kamduk nor it was gifted/offered to Kinyir Kamduk @ Kinyir Loyi as gift or dowry, but permitted for cultivation without passing off the right, title and possession and hence upheld the kebang decision and declared the right, title and possession of the suit land in favour of the plaintiff/appellant on condition that, he will allow Kinyir Loyi (his paternal aunty) to cultivate the land if she has no other source of livelihood during her lifetime and further, paid Rs. 10,000/- as development cost of the land.
4. Being aggrieved with the aforesaid order of the Deputy Commissioner, West Siang District, Aalo, the complainant/appellant felt that after payment of the aforesaid amount as development cost of the land, the defendant/respondent should not be allowed to use the land and as such, filed an appeal before this Court being MA (F) No. 135/96 and the same was disposed of on 27.05.1997, whereby the matter was remanded back to the Deputy Commissioner, Aalo for deciding the dispute afresh, if necessary by taking evidence. Thereafter, the fresh proceeding commenced before the Court of the Deputy Commissioner, Aalo and later on, the case was transferred to the Court of learned Addl. District and Sessions Court, Basar, whereupon registered as Title Suit No. 01(WS) 2013, but the same was dismissed after trial on 20.01.2014 with a cost of Rs. 20,000/- only with a direction to pay the same to the defendant/respondent within a period of 30 days. Hence, the instant appeal has been filed for setting aside the impugned judgment and order, dated 20.01.2014.
5. The further case of the plaintiff/appellant is that the suit land measuring more or less one pura, namely,' Mebbu Bibu Pokdum' situated at Pakam village, just above the confluence of the two streams, namely,' Mebbu' and 'Bibu' was given to the defendant/respondent by the father of the plaintiff/appellant late Kinya Kamduk temporarily to cultivate on it, on her approach, since the defendant/respondent was his sister and her financial condition was not sound. The permission stipul
