Bimal Sarma And Anr @APPELLANT@Hash Daibak Kumari Devi

Heard Mr.D. Mazumdar, learned Senior Counsel assisted by Mr. R. Sarma, learned counsel for the defendant appellant No.1 and Mr.S. Ali,

learned counsel appearing for the sole respondent-plaintiff.

The present appellants and the proforma respondents are defendants in Title Suit No. 39/2006 in the Court of learned Munsiff No. I at Morigaon

which is preferred by the present plaintiff respondent for declaration of right, title and interest over ‘ka’ schedule land measuring 1 katha out of

1katha 10 lechas of land covered by dag No. 480 of K. P. Patta No. 136 of village Jagiroad under Mouza Gova in the district of Morigaon, for

recovery of khas possession after demolition of the standing structures over the ‘kha’ schedule land within the ‘Ka’schedule and for

permanent injunction restraining the defendants appellants from entering into the said ‘kha’ schedule land more specifically described in

‘Ga’(1) and ‘Ga’ (2) schedule land within ‘Kha’ schedule land.

The pleadings of plaintiff respondent is that a plot of land measuring 1 katha 10 lechas consisting of ‘Ka’ schedule land of 1 katha was

purchased by the plaintiff respondent at a consideration of Rs.90/- from one Bhuban Mauzadar who transferred the same with his consent putting his

signature in the Chitha. Chandi Charan Sarma, the original defendant Appellant No.2 substituted by his legal heirs vide order dated 04.10.2013 in this

Second Appeal was possessing a portion measuring 10 lechas of land out of said total land measuring 1 katha 10 lechas which was allowed to remain

with him by the plaintiff respondent. The defendant appellant No. 1 is the son of the plaintiff respondent who was allowed to possess more or less 8

lessas of land as there was constraint in living space in the house of the plaintiff appellant. The defendant appellant No. 1 constructed the ground floor

of RCC building thereon over 8 lessas of land and on 18.04.2004 the defendant appellant No.1 encroached another 4(four) lechas of land in order to

carry out illegal construction thereon. The plaintiff respondent objected to it following which the defendant appellant No.1 threatened and abused her.

An FIR was lodged by the plaintiff respondent. However, considering the family dispute, a village ‘Mel’’ took place and a settlement deed

dated 20.04.2014 was also shown to be executed in presence of the elderly persons of the locality. The signature of the plaintiff respondent was taken

while she was almost in an unconscious state owing to the threat and assault carried out by the defendant appellant No.1. The elder son of the plaintiff

respondent in order to bring peace amongst the family members relinquished his purported four lessas of land to be devolved on him contingent on the

death of plaintiff respondent and the same purportedly included in the said settlement deed in favour of defendant appellant No.1. Terming the said

settlement deed having no force under the law, the plaintiff respondent filed the suit with the reliefs hereinabove stated.

The defendants appellants filed their joint written statement and the defendant appellant No.2 filed a separate counter claim. In the written

statement there was total denial of the pleadings of the present plaintiff respondent. It is pleaded in the written statement that the total land measuring

1 katha 10 lessas was purchased both by the defendant appellant No.2 and his elder brother, Umacharan Sarma, the deceased husband of the plaintiff

respondent at a consideration of Rs. 300/- paid out of the joint income fund from the cycle repairing shop at Jagiroad. But the name of the plaintiff

respondent was mutated by her husband Umacharan Sarma behind the back of the defendant appellant No. 2. Accordingly, the defendant appellant

No.2 in his counter claim claims 15 lessas of land to be his share and not 10 lechas as pleaded by the plaintiff respondent. It would not be out of place

to mention herein that separate patta was issued in the name of plaintiff respondent to the extent of 1 katha of land leaving aside 10 lechas of land out

of total 1 katha 10 lechas of land to be mutated in the name of defendant appellant No.2 and the defendant appellant No.2 during the settlement

operation was issued a separate patta for the said 10 lechas of land.

On the basis of the pleadings, the learned trial court framed the following issue:

“1. Whether the suit land is self acquired of the plaintiff in 1953 from her own income/stridhan or it was joint property or Umakanta Sarmah(since

deceased) and his brother Chandicharan Sarmah ?

Whether there is any Mutual Partition deed dtd.20.4.2004 or it is obtained by force and coercion?

Whether the plaintiff is entitled to decree of Khas possession of the suit land?

To what reliefs the parties are entitled to?

Whether there is any cause of action for this counter claim?

Whether the counter claim is maintainable?

Whether the suit patta land is the joint land of plaintiff vis-Ã -vis her husband Umakanta Sarmah(since dead) and the Proforma defendant ?

Whether the residential house standing over the suit land is the joint property of plaintiff vis-Ã -vis her husband Umakanta Sarmah (since dead) and

the Proforma defendant ?

Whether the Proforma defendant No.1 has been possessing 10 lechas of land of the suit patta on permission from the plaintiff or as his own right?

Whether counter claimant/proforma defendant No.1 has any right, title and interest over 15 lechas of land out of the suit patta and is entitled to

recovery of khas possession of rest 5 lechas of land?

Whether the counter claimant is entitled to a decree as prayed for in the counter claim?

To what relief or reliefs if any the counter claimant is entitled to?

Whether the defendant No.1 got 8 lechas of land by way of family agreementâ€​

The plaintiff respondent examined three witnesses including herself as PW 1 and exhibited certain documents like the copy of the Jamabandi of

periodic Patta No. 136, Revenue paying receipt, Voter List and Transfer certificate. On the other hand, the defendants appellants examined 6

witnesses including DW 1 and DW 6 respectively the defendant appellant Nos. 2 and 1. The learned trial court decreed the suit vide judgment and

decree dated 27.11.2009.

Being aggrieved by the said judgment and decree passed in Title Suit No. 39/2006 the defendants appellants preferred Title Appeal No. 26/2009 in

the Court of learned Civil Judge, Morigaon which was dismissed vide judgment and decree dated 2.6.2012. Thereafter, the present second appeal is

filed challenging the said judgment and decree passed in Title Appeal No. 26/2009 by the Civil Judge, Morigaon which was admitted on 25.7.2014 on

the following substantial questions of law:

Whether plaintiff has succeeded to prove exclusively right, title and interest over 1 katha of the suit land?

Whether on the basis of the materials placed on record, plaintiff could establish acquisition of title by purchase over the suit land ?

Subsequent to the formulation of the aforesaid substantial questions of law, the learned counsel for the appellant with the consent of his counterpart

for the respondent sought the leave for formulating another substantial questions of law. On hearing the learned counsel, disbanding the earlier

substantial questions of law a new substantial question of law was formulated as follows which includes the former substantial questions of law but in

the other way around:

(3) Whether the findings in issue No. 3 by the courts below are perverse for non-consideration of pleadings and the evidence on record more

specifically of the plaintiff respondent as PW 1?

Before adverting and consideration of the arguments placed by the learned counsel, it would be appropriate to consider the findings of the courts

below with respect to the issue No.3 which forms the substantial questions of law after reformulation of the same. Mention must be made here that

the defendant appellant No.2 did not file any second appeal against the judgment and decree of the First Appellate Court affirming the findings of the

trial court in the counter claim declaring his share as 10 lechas of land out of total 1 katha 10 lechas of land. In the appeal, though he is impleaded as

appellant No.2 but none is representing him or his legal heirs. The plaintiff respondent also confined her relief for declaration of her right, title and

interest with respect to the ‘Ka’ schedule land measuring 1 katha out of 1 katha 10 lechas of land hereinabove stated without any cross

objection and the decree in the counter claim extends to only 10 lechas of land as the share of the defendant appellant No.2 which is beyond the

purview of the land described in schedule ‘Ka’.

On perusal of the judgment passed by the First Appellate court it is seen that the issue No.2 is discussed elaborately with respect to the issue

whether any mutual partition was affected on the strength of the settlement deed dated 20.4.2004. The defendant appellant No. 2 through his counter

claim sought for declaration of his right, title and interest with respect to 15 lechas of land out of total land measuring 1 katha 10 lechas allegedly

purchased by him alongwith the late husband of plaintiff respondent out of a common fund at a total sale consideration of Rs. 300/-. However, on

perusal of case records, it is seen that the defendant appellant No.2 failed to produce any registered sale deed showing the said sale transaction. On

the other hand, it is the claim of the plaintiff respondent that she, out of her own earnings, purchased the total land measuring 1 katha 10 lechas at a

total sale consideration of Rs.90/- and the vendor, one Bhupen Mauzadar transferred the same through chitha transfer but as the defendant appellant

No.2 was possessing 10 lechas out of the total land measuring 1 katha 10 lechas so purchased, she left out the said 10 lechas of land in favour of the

defendant appellant No.2. The defendant appellant No.2 is allotted a patta in respect of the said land measuring 10 lechas. Issue No. 3 is with respect

to the relief sought for khas possession of the suit land measuring 1 katha by the plaintiff respondent within ‘Ga(1)’ and ‘Ga(2)’ land

included in ‘Ka’ schedule after declaration of her right, title and interest over ‘Ka’ schedule land. The said issue No. 3 is framed as

consequential to the finding in issue No. 2 which as hereinabove stated covers the issue of the legality/illegality of the mutual partition deed dated

20.4.2004 which the plaintiff respondent claimed to have executed on the application of force and coercion on her.

The defendant appellant No. 1 who is the son of the plaintiff respondent claimed that the said mutual partition arrived on 20.4.2004 is out of the

own volition of the plaintiff respondent inasmuch as, she permitted the defendant appellant No.1 to carry out the construction of his residential house

over 8 lechas of land keeping in view the constraint in living space amongst the family members of late Umacharan Sarma, his father. If the said

mutual partition is accepted to be lawful wherein 8 lechas of land alongwith another 4 lechas of land relinquished by the elder son of the plaintiff

respondent settled in the name of the defendant appellant No.1, then the plaintiff respondent is not entitled to get the relief of khas possession over the

‘Kha’ schedule land which includes the demolition of standing structure over the said land.

The First Appellate Court decided the said issue No.2 in the negative thereby upholding the finding of the learned trial Court. The First Appellate

Court on perusal of the said Ext. Ka-Ka, the settlement deed dated 20.04.2014 observed that the elder son of the plaintiff respondent relinquished his

share of 4 lechas of land in favour of the defendant appellant No.1. In addition to that it is further observed that the plaintiff respondent in her

evidence admitted that she has no objection if the defendant appellant No.1 is satisfied with the land measuring 8 lechas. The defendant appellant

No.1 as such, wanted to prove his right over the 8 lechas of land through Ext. Ka-Ka. The said Ext. Ka-Ka is a photocopy which is a secondary piece

of evidence. So, it is the plea of the defendant appellant No.1 that as the plaintiff respondent admitted in her cross-examination that she has no

objection if the appellant defendant No. 1 is satisfied with 8 lechas of land, accordingly, no further proof by way of any documentary piece of evidence

is required. It is also observed that Kamala Kanta Sarma, eldest son of plaintiff respondent cannot relinquish his share of 4 lechas inasmuch as, no

vested right accrued on him by way of inheritance from his mother, the plaintiff respondent. The learned First appellate Court also took note of one of

the witnesses to the said deed, Munin Borthakur who was examined as DW 3 and he deposed that the said Ext. Ka-Ka was executed at the instance

of plaintiff respondent. The said deposition was disbelieved by the learned First Appellate Court on the ground that the said DW 3 failed to depose as

to why the plaintiff respondent called him to be a witness. While considering the deposition of the DW 6, the defendant appellant No.1, the learned

First Appellate Court took note of the fact that the said witness failed to plead or state as to why the plaintiff respondent executed the Ext.Ka-Ka.

There is no mention of the date on which land dispute took place resulting the settlement of the said dispute, so the learned First Appellate Court

disbelieved the deposition of the DW 6. Further, it is also recorded that the said DW 6 claimed the property as if that is his share being one of the heirs

of his late father. The plea of the plaintiff respondent is that while she was lying in an unconscious state, her signature was obtained by the defendant

appellant No.1, so, onus on the said defendant appellant No.1 was not discharged by disproving the pleading of the plaintiff respondent.

The plaintiff respondent deposed separately in the counterclaim. In the cross examination therein the counter claim the plaintiff respondent

deposed that she is not interested to evict the defendant appellant No.1 from the ‘Kha’ schedule land and the defendant appellant 1 would get 8

lechas of land. Against the argument advanced before the First Appellate Court, whether the said extract of deposition can confer the right, title and

interest on the defendant appellant No.1, the learned First Appellate Court negated to it as the same was in reference to the counter claim made by

defendant appellant No.2. By observing so, the learned First Appellate Court affirmed the findings of the learned trial Court and as a consequence, the

issue No. 3 is also decided in favour of the plaintiff respondent.

Mr. Mazumdar, at first submits that in the plaint, plaintiff respondent pleaded that as the defendant appellant No.1 expressed his desire to live

separately owing to the constraint in living space of the family members, the plaintiff respondent allowed the defendant appellant No.1 to construct a

small house on the ‘kha’ schedule land. On the basis of the said permission, the said defendant appellant No.1 constructed his residential house

and residing with his family members over the said land described in the ’Kha’ schedule land. Referring further to the cross examination of

the plaintiff respondent in the counter-claim which was recorded separately from the one recorded in the suit, Mr. Mazumdar submits that the said

plaintiff respondent deposed that she has no objection in the event the defendant appellant No.1 possess 8 lechas of land and that itself is an admission

that initially she permitted defendant appellant 1 to carry out the construction over the said land covered by ‘Kha’ schedule land. In terms of the

said representation the defendant appellant No.1 altered his position thereby carrying out construction over the said land so allowed to be kept under

his possession.

The plaintiff subsequent thereto, cannot under any circumstances sought for the ejectment of the defendant appellant No.1 and for recovery of khas

possession of the said land which is under the possession of the defendant appellant No.1. The relief sought in the plaint with respect to the said

recovery of khas possession forming the issue No.3 is diluted when she deposed in the cross examination of the counter claim as referred

hereinabove. The Courts below failed to take into consideration the said deposition with the intent of the plaintiff respondent and admission in the true

perspective and the courts below out of sympathy decided the issue No. 3 in favour of the plaintiff. The defendant appellant No. 1 is neither claiming

his right, title and interest nor filed any counter, claiming his right, title and interest as an absolute owner with respect to the ‘Kha’ schedule

land. But he is raising his objection against the claim of the plaintiff respondent on the ground of estoppel and acquiescence of the right of the plaintiff

respondent. The dispute is instigated by the elder son of plaintiff respondent and the said facts ought to have been considered inasmuch as, the said

son is not a witness in the said suit. In support of the submission Mr. Mazumdar relies on Dr. Karan Singh vs State Of Jammu & Kashmir & Anr

reported in (2004) 5 SCC 698. Mr. Mazumdar further submits that the plaintiff is not entitled to the relief as held by the courts below while deciding

the issue No. 3 and as such, the finding of the courts below are perverse.

Mr. Ali on the other hand, opposing the submission of Mr. Mazumdar, submits that it is well knitted proposition of law that immovable property

cannot be transferred except by the modes prescribed by the law. It is the pleading of the plaintiff respondent that the defendant appellant No.1 is the

permissive occupier and the plaintiff respondent has every right to revoke the said permission once she is harassed by the defendant appellant No.1.

Title cannot be transferred by applying the principles of waiver, acquiescence, estoppel nor the issue involved in this case is with regard to any

relinquishment /abandonment of any part of the land in favour of the defendant appellant No.1 by the plaintiff respondent but it is a simple case

wherein a permissive occupier is sought to be ejected by the plaintiff respondent who is the absolute owner of the ‘Kha’ schedule land which is

not disputed nor proved against the claim of the plaintiff respondent by the defendant appellant No.1.Under such circumstances, the finding of the

courts below requires no interference nor there is any perversity while coming to the findings by the learned courts below.

I have considered the submission of the learned counsel appearing for the parties to the appeal. The contention of Mr. Mazumdar is specific to the

point that the plaintiff respondent once permitted the defendant appellant No. 1 to reside within ‘Kha’ schedule land and on the basis of the said

permission the defendant appellant No. 1 having altered his position, the plaintiff respondent is not entitled for the relief sought for as decided by the

courts below deciding the Issue No. 3 in favour of the plaintiff respondent. In other words, the plaintiff respondent is estopped seeking the said relief

of recovery of possession. In order to examine the said submission of Mr. Mazumdar it would be proper and appropriate to look into the pleadings of

both the plaintiff respondent and the defendant appellant No. 1.

On perusal of the pleadings it is seen that the plaintiff respondent pleaded that she is the absolute owner of the ‘Ka’ schedule land covering

1 katha of land out of total 1 katha 10 lechas of land which she purchased and leaving aside 10 lechas of land in favour of the defendant appellant

No.2 she is possessing 1 katha of land. The defendant appellant No.1 considering the constraint in the living space sought for permission to construct

the house for his accommodation. The plaintiff respondent allowed the defendant appellant No.1 to possess the land measuring 8 lechas on the

condition that during her lifetime the defendant appellant No.1 cannot claim right, title and interest over the said 8 lechas of land. After the

construction, the defendant appellant No.1 tried to encroach more land which was resisted by her. The defendant appellant No. 1 reacted to such

objection by threatening and abusing her. On the other hand, the defendant appellant Nos. 1 and 2 by filing joint written statement pleaded that the

deceased husband of the plaintiff respondent and the defendant appellant No. 2 purchased land measuring 1 katha 10 lechas of land at a consideration

of Rs.300/-which was paid from the joint income fund of the said deceased husband and the defendant appellant No.2. The name of the plaintiff

respondent was mutated by her deceased husband behind the back of defendant appellant No.2 though the defendant appellant No.2 has been shown

as one of the co-sharer in respect of the suit dag land.

But the same was not amicably partitioned. The defendant appellant No.1 was allowed to construct and reside over the 8 lechas of land out of

‘Ka’ schedule land both by his late father and plaintiff respondent. The dispute with respect to share amongst the sons and daughters of plaintiff

respondent arose which was amicably resolved on 20.4.2004 thereby allotting 8 lechas of land to the defendant appellant No.1. The claim of the

defendant appellant No.1 is that on the death of his father, he inherited 8 lechas of land as the legal heir of his father and the land originally belonged

to his father. He specifically denied the acceptance of the terms and condition imposed on him while granting the permission to possess and construct

over 8 lechas of land by his mother plaintiff respondent. Thus from the pleadings it is clear that the defendant appellant No.1 totally denied the

pleadings of the plaintiff respondent so far the ownership of the ‘Ka’ schedule land and the fact of permission to reside over the 8 lechas of

land flowing from his mother and the acceptance of the terms and condition as hereinabove stated . Keeping in view of the submission of

Mr.Mazumdar it would be proper to enter into the principles of estoppel and the burden to be discharged by whom in a suit of like nature.

Section 115 of the Evidence Act, 1872 stipulates the effect of estoppel. It stipulates that when one person has, by his declaration, act or omission

intentionally permitted another person to believe a thing to be true and to act upon such believe, he nor his representative shall be allowed in any suit or

proceeding between himself and as such person or his representative to deny the truth of that thing.

As held by the Hon’ble Apex Court in Bennett Coleman and Co.Pvt. Ltd. Vs Punya Priya Das Gupta reported in AIR 1970 S C 426, the

burden of proving the ingredients of Section 115 of the Indian Evidence Act, 1872 lies on the party claiming estoppel. The representation which forms

the basis for application of the rule must be clear and unambiguous and on the basis of the said representation party relying on it in good faith and

belief acted accordingly. In the present case in hand, the defendant appellant No. 1 specifically denied the fact of acceptance of the terms and

condition imposed by the plaintiff respondent that he was allowed to possess and construct over the 8 lechas of land with a condition that the

defendant appellant No.1 shall not claim title over the said land during the life time of the plaintiff respondent. This denial is because of the fact that it

is the case of defendant appellant Nos. 1 and 2 that the suit land was not purchased by the plaintiff respondent, rather the same was purchased by the

father of the defendant appellant No.1 and the defendant appellant No. 2 out of the common income fund. Defendant appellant No. 1 also deposed as

DW 6 thereby denying the acceptance of the terms coupled with the permission pleaded by the plaintiff respondent. From the materials on record, it is

clear and apparent that the burden which ought to have been discharged by the defendant appellant No.1 in order to accept the submission of Mr.

Mazumdar is not at all discharged by the defendant appellant No.1. The denial of the permission and the acceptance of the terms and condition itself

gives an inference that the defendant appellant No.1 did not act upon the representation and/or the declaration of the plaintiff respondent while

carrying out the construction over the ‘Kha’ schedule land.

The plaintiff respondent all along maintained her stand that she is the absolute owner of the ‘Ka’ schedule land and to that effect

documentary piece of evidence is also on record showing that her name is mutated with respect to the said ‘Ka’ schedule land keeping in view

the stand of defendant appellant. The courts below had already decided that the suit property is the self acquired property of the plaintiff respondent

inasmuch as the defence of the defendant appellant that the suit land was jointly purchased by the father of the defendant appellant No. 1 and

defendant appellant No. 2 jointly was not proved. Once the plaintiff respondent is held to be the owner having right, title and interest over the suit

property, the defendant appellant No. 1 has no right to continue the possession over the ‘Kha’ schedule land which he claims the suit land to be

his share by way of inheritance on the death of his father and in such a situation on the mere permission for possession of the land by the rightful

owner, the defendant appellant No.1 cannot claim his right, title and interest nor his possession to be absolute.

In the cross-examination of the plaintiff respondent while deposing against the counter claim of defendant appellant No.2 she deposed that she has

no objection if the defendant appellant No.1 stays over the 8 lechas of land. Mr. Mazumdar referring to the said deposition submits that the suit is

initiated by the elder son of the plaintiff respondent keeping himself behind the scenario. There is no dispute at Bar that the plaintiff respondent

allowed the defendant appellant No. 1 to possess and raise his residential house over the said 8 lechas of land. But once the ownership of the schedule

‘Ka’ land is decided in favour of the plaintiff respondent on the face of denial by the defendant appellant Nos. 1 and 2, in my opinion mere

deposition by the plaintiff respondent the cause of action for the suit cannot be accepted to be vanished. The suit is decided on the facts and

circumstances pleaded giving rise to the cause of action for filing the same by the plaintiff respondent and the same crystallizes once the suit is filed.

The issues are framed keeping in view the pleadings which includes the cause of action and the court is to consider the said pleadings forming the

cause of action and to decide whether the plaintiff respondent is entitled to the relief or reliefs on the basis of the cause of action pleaded in his plaint.

The said piece of evidence could have been used against the plaintiff respondent had there been total denial of the permission granted to the defendant

appellant No. 1 but it is not the case of plaintiff respondent that she never granted the permission to the defendant appellant No.1 to construct over the

said ‘Kha’ schedule land and reside. It is the cause of action that accrued when the defendant appellant No.1 tried to encroach further land

beyond the ‘Kha’ schedule land. In my considered opinion the said piece of evidence of the plaintiff respondent is of no help to the defendant

appellant No. 1 wherein there is no counter claim for declaration of the right of the defendant appellant No. 1 to possess over the ‘Kha’

schedule land. From the discussion, I am of the considered view that the substantial question of law No.3 (which is the only question) has to be

decided in the negative by holding that there is no perversity in granting the relief as per issue No. 3 framed in the suit. As a result this second appeal

is dismissed. The findings of the Courts below are upheld.

No cost. Send back the LCR.