Arbesh Ali vs Aber Ali

Suman Shyam, J—Heard Mr. A.K. Hussain, learned counsel for the appellant.

This Second Appeal has been preferred against the judgment dated 15.12.2014 and decree dated 22.12.2004 passed by the learned Civil Judge, Nalbari in Title Appeal No. 19/2014 whereby the learned First Appellate Court had upheld the judgment and decree dated 22.04.2014 passed by the learned Munsiff No. 1, Nalbari in Title Suit No. 42/2010.

The plaintiff''s case, in brief, as apparent from the records, is that he had purchased the plot of land mentioned in the Schedule to the plaint on 09.06.2009 by means of a registered deed of sale bearing No. 466/09 from the defendant No. 1 pursuant whereto he was put in possession in respect of the purchased land. The defendant No. 1 on 28.03.2010 forcefully dispossessed the plaintiff from the suit land and thereafter remained in possession of the suit land by constructing a chali house and also dug up a pond. Being aggrieved by such illegal action on the part of the defendant No. 1, the plaintiff was compelled to institute the present suit seeking a declaration of his right, title and interest over the suit land and also for recovery of possession in respect thereof.

The defendant No. 1 contested the suit by filing written statement denying the averments made in the plaint in general. The case of the defendant, as set out in the written statement, in brief, is that he and his five brothers had purchased 2 bighas of land in the suit dag and patta from one Akbar Ali in the year 1989. Thereafter, the said plot of land had been amicably divided amongst all the brothers and since then the defendant has been enjoying possession over the suit land by constructing a house where he is living with his family. It has been alleged by the defendant No. 1 that although the plaintiff had earlier obtained mutation of his name in respect of the suit land on 20.03.2010, yet subsequently the said mutation was cancelled based on an objection filed by the defendant No. 1 before the Revenue authorities. According to the defendant No. 1, the registered deed of sale bearing No. 466/2009 is a forged document and hence, the same could not have conferred any valid title upon the plaintiff. He has, therefore, prayed for dismissal of the suit. It may be mentioned herein that save and except the defendant No. 1, the other defendants did not contest the suit and the same proceeded ex-parte against them.

On the basis of the pleadings of the parties, the learned trial court had framed the following issues:-

"i) Whether there is cause of action for filing this suit?

ii) Whether the suit is maintainable in its present form?

iii) Whether the plaintiff purchased the suit land from the defendant No. 1 on 9.6.09 vide registered sale deed No. 466/09 as claimed in the plaint?

iv) Whether the plaintiff has right, title and interest over the suit land?

v) Whether the plaintiff is entitled to the reliefs as prayed for?

vi) To what other relief/reliefs, the parties are entitled?"

During trial both the sides had adduced oral and documentary evidence. On a detail analysis of the materials available on record as well as the averments made by and on behalf of the parties, the learned trial Court had decreed the suit filed by the plaintiff by the judgment and decree dated 22.04.2014 passed in Title Suit No. 42/2010.

Being aggrieved by the judgment and decree dated 22.04.2014 the defendant No. 1 as appellant had preferred Title Appeal No. 19/2014 before the Court of learned Civil Judge, Nalbari. Upon hearing the learned counsel for the parties, the learned First Appellate Court was pleased to pass the judgment dated 15.12.2014 and decree dated 22.12.2014 dismissing the appeal filed by the appellant/defendant No. 1.

Being aggrieved by the judgment and decree passed in Title Appeal No. 19/2014 the defendant No. 1 as appellant has preferred the present Second Appeal.

Mr. Hussain, learned counsel for the appellant, submits that from a bare reading of the judgment and decision rendered by the Courts below it would evident that the plaintiff has not been able to prove the sale deed in accordance with law so as to claim title over the suit land. He submits that the plaintiff had merely relied upon certified copy of the deed which is a secondary evidence without laying the factual foundation in the plaint so as to meet the requirements of Section 65 of the Indian Evidence Act. Mr. Hussain further submits that the genuineness of the sale deed having been questioned by the defendant No. 1 the plaintiff was under an obligation to prove due execution of the sale deed in accordance with Section 67 of the Evidence Act, that too, by referring the signatures/thumb impressions to the Handwriting Expert, which has not been done so in the present case. By drawing the attention of this Court to the observations recorded by the learned trial Court while deciding the Issue No. 5, Mr. Hussain further submits that although the claim made by the plaintiff in the suit is in respect of a plot of land measuring 2 Katha 1 Lecha 3 Poa out of the total land measuring 4 Bighas 2 Kathas 15 Lechas covered by dag No. 901 of K.P. Patta No. 32 of village Sapkata under Madhyam Barkhetri Mouza, yet while deciding the Issue No. 5 the learned trial Court had recorded the finding pertaining to dag No. 101 which is not the suit land. Such being the position, an error has crept into the judgment rendered by the Courts below vitiating the same on the ground of perversity.

I have considered the submissions made by Mr. Hussain and have also meticulously examined the records. From a perusal of the judgment and order under appeal it is apparent that the plaintiff had not only produced the certified copy of the sale deed but has also produced the original registered sale deed No. 466/09 as Ext-1. The due execution of the sale deed has also been proved by the plaintiff by examining the scribe PW 2 who had duly identified the signatures and thumb impression of the executants (defendant No. 1) in the sale deed. That apart, the Volume maintained by the Sub Registrar of Mukalmua had also been called for so as to corroborate the contents of the sale deed. Having discharged his burden as aforesaid the learned Court below has held that the plaintiff having succeeded in proving and establishing his title on the basis of the sale deed Ext-1, he was entitled to the decree prayed for as the defendant side had failed to disprove the case of the plaintiff by adducing cogent evidence on record. I find that the above conclusion recorded by both the Courts below are based on material evidence on record and the same does not suffer from any infirmity in the eye of law. Such being the position, this Court does not find any justification for disturbing such concurrent finding of facts recorded by both the Courts below. Once it is held that the plaintiff has succeeded in proving and establishing his title over the suit land, the decree for recovery of possession cannot be denied to the plaintiff unless the defendant pleads and establishes a case of setting up title over the land by way of adverse possession which has not been done in the present case.

Referring to the submission made by Mr. Hussain regarding the observation made by the learned trial Court in the context of Issue No. 5, a perusal of the description of the suit land mentioned in the schedule to the plaint goes to show that the plaintiff''s claim is confined only in respect of the land described in the schedule pertaining to dag No. 901 of K.P. Patta No. 32. The decree passed by the learned trial Court also shows that the schedule of the suit land pertains to dag No. 901 of K.P. Patta No. 32. Therefore, merely because a stray observation is made by the learned trial Court referring to dag No. 101 it cannot be said that the decree passed by the trial Court would become executable in respect of dag No. 101 by overlooking the clear description of the land mentioned in the decree. In that view of the matter, the apprehension expressed by Mr. Hussain appears to be completely unfounded.

In view of what has been discussed herein before, this Court is of the opinion that there is no illegality or infirmity in the concurrent judgment and decision rendered by both the Courts below and there is no substantial question of law that arises for decision by this Court in the present Second Appeal. Consequently, the Second Appeal stands dismissed.