Lakshmi Rani Dey & Ors vs Rita Das & Ors

Sahidullah Munshi, J

This Second Appeal is against the judgement and decree respectively dated 30th September, 2004 and 11th October, 2004 passed by the Learned Additional District Judge, 2nd First Track Court at Chandernagore in Title Appeal No. 48 of 1995 reversing the judgment and decree respectively dated 27th January, 1995 and 3rd February, 1989. According to the plaint case both the plaintiffs, proforma defendant no.2 and the predecessor-in-interest of defendant nos. 2 to 8 and 10 jointly purchased "Ka" schedule property by a registered deed of sale on 30th December, 1958 for valuable consideration and jointly possessing the same. The description of the boundary of the suit plot in the deed appeared to be wrong and taking advantage of this wrong description the defendant no.1 in collusion with others forcibly ousted the plaintiff's and defendant nos. 2 to 8 and 10 from the suit plot and put fencing around the same on 11th May, 1986. The plaintiffs and proforma defendant jointly made out a case that defendant no. 1 had no right, title and interest and even possession in the suit plot. They have also prayed for declaration and recovery of possession upon declaration that the defendant no.1 is not the owner of the suit plot together with permanent and mandatory injunction against him.

Proforma defendant nos. 3 to 8 and 10 filed joint written statement and supported the plaint case. The defendant no.1 has filed another written statement denying all material allegations made in the plaint and claimed that he was in possession of the entire 22.00 sataks (decimals) land of suit Khatian no. 120. 'Ka' schedule property is a danga plot being plot no. 238 comprising 10.60 sataks of land in khatian no. 120. Plaintiffs claimed declaration over this 10.60 sataks land on the basis of purchase deed dated 13.12.1958. There is another plot no. 239 which is a pond under same khatian no. 120. This pond comprises 11.4 stataks of land. Both these plots no. 238 and 239 previously belonged to one Narayan Chandra Dey who sold plot no. 328 to the plaintiff and proforma defendants and plot no. 239 was sold to the predecessor-in-interest of the defendant no.1 on the same day, that is, on 13.12.1958 by two different sale deeds. The boundary of the suit plot no. 238, according to the plaintiff had been shown in the purchase deed was wrong.

It is the defendants' claim that though his predecessor-in-interest purchased 11.4 sataks of pond from dag no. 239, he took possession of the entire land of 22.00 sataks and delivered its possession to the defendant no.1 on rent in 1968. It is the further case of the defendant no.1 that he, ultimately, purchased the entire area in both the plots that is 22.00 decimals from his predecessor-in-interest and have been possessing the same, peacefully without interruption, adversely to the knowledge of the plaintiffs and proforma defendants. The defendant no.1 further claims that R.S. Record-of-Rights is wrong and the plaintiffs have no right, title, interest and possession of the of the said 'Ka' schedule property. The defendant no.1 has prayed for dismissal of the suit with costs.

The following issues were settled by the learned trial Court:

Is the suit maintainable in its present form?

Is the suit barred by limitation?

Is the suit bad for non-joinder of parties?

Is the suit hit by Section 34 of S.R. Act?

Is the suit barred by principles of estoppels, waiver and acquiesance?

Have the plaintiffs any right, title and interest of the 'Ka' schedule property?

Are the plaintiffs entitled to get the decree as prayed for?

To what other relief or reliefs, if any, are the plaintiffs entitled?

At the time of admission of this appeal the following substantial questions of law were framed:

Whether the learned Court of Appeal below was justified in reversing the findings arrived at by the learned trial Judge that the plaintiffs purchased plot no. 238 which is the suit property by totally misreading Exhibit 1 which shows that the plot that was purchased by the plaintiffs' predecessor was plot no. 328.

In view of the specific finding recorded by the learned trial Judge that defendant purchased plot no. 239 by virtue of his deed, whether the learned Court of Appeal below was justified in reversing the judgment and decree passed by the learned trial Judge holding that the plaintiffs have title over plot no. 238 and are entitled to recover part of plot no. 238.

Referring to issue no.2 the learned Trial Court held that the defendant no.1 could not show any documentary evidence in support of his claim that he has any right, title and interest in the suit plot meaning thereby plot no.238. According to the trial Court defendant no.1 purchased 11.40 decimals of pond in dag no. 239 and there is no mention of dag no. 238 being the suit dag. Accordingly, the trial Court held that the defendant no.1 has no right, title and interest in suit plot no.238. The trial Court however, observed that admittedly, defendant is in possession of the suit property as has already been admitted by the plaintiff no.1 as PW1. In conclusion the learned trial Court held that the defendant no.1 has no right, title and interest in the suit plot but he is in possession over the same. On the question whether suit is hit by Section 34 of the Specific Relief Act, the learned trial Court holds that there is no ambiguity in the deed being Exhibit-1 and in the R.S. Record of Rights Exhibit-2 the name of the predecessor-in-interest of the plaintiffs was written clearly. The trial Court while holding that the suit for declaration was filed by the plaintiff admitting the same who have been in possession of defendant no.1, however, has not answered the issue no.4 whether such a suit filed under Section 34 of the Specific Relief Act, which mentions about the discretionary relief, can be granted without the plaintiff having complied with the proviso to Section 34. Section 34 of the Specific Relief Act is set out below:

S.34. Discretion of Court as to declaration of status or rights. -

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not inexistence, and for whom, if in existence, he would be a trustee."

Learned trial Court, however, held otherwise that the defendant has neither title in the suit plot nor the recording of their predecessor-in-interest in the R.S. Record of Rights, nor the defendant no.1 brought any evidence to prove otherwise than what has been submitted by the plaintiff. The question framed in issue no. 5 whether defendant no.1 forcefully ousted the plaintiffs and proforma defendants from the suit property on 11.05.1986 has also not clarified in the discussion on issue no.5 by the learned trial Court. The stand of the defendant no.1 has been clearly mentioned in the written statement that he is in possession of the suit plot since 22.11.1982 when he purchased the adjacent pukur (pond) in dag no.239. The learned Trial Court took it for granted that since the defendant no.1 purchased plot no.239 he has no interest over plot no. 238 and he has also got no right to have any portion of plot no. 238. But for a moment the learned Trial Court did not consider as to the extent of possession of the defendant no.1 in respect of the portion of plot no. 238 or in its entirety. It was never considered by the trial Court whether the defendant has encroached upon the plaintiffs land or not and if so, what is the area of such encroachment and if any such encroachment has been alleged by the plaintiff he has to prove it that defendant has unauthorizedly holding possession in portion of plot no.238 and he is required under the law of Section 34 of the Specific Relief Act to apply for consequential relief which is found to be hopelessly absent in the suit. The prayer has been couched in such a manner which neither shows that the plaintiff is not in possession of plot no. 238 nor does it reveal that any part of plot no. 238 has been encroached upon by the defendant no.1. It has sought to make a prayer for eviction of defendant no.1 in the event it is proved that he is an encroacher by holding that the said defendant no.1 has no right, title and interest in plot no. 238. When it is undisputed that the boundary of plot no. 238 and 239 has never been determined by the Court nor any steps taken by the plaintiff through commission to cause relayment of Mouja Map for determining the boundary line in between two plots adjacent to each other, it is not an easy task for the Court to simply pass a declaratory relief in favour of the plaintiff that he is the owner of plot no. 238 and since there is an allegation of encroachment over such plot no. 238 being the suit plot by the adjacent owner of plot no. 239 which is none else than the defendant no.1, in such an event the Court ought to have determined the boundary first. The practical difficulty is to be faced by the plaintiff after getting the decree when he will seek for execution of the same since the trial Court has passed a decree holding that the plaintiffs are entitled to get recovery of possession of the suit land without fixing the boundary line. It will be an infructuous decree which cannot be executed at all. In my view, the trial Court ought to have been more cautious about compliance of Section 34 of the Specific Relief Act. Court without determining the boundary of the defendant no.1 of his plot no. 239 cannot pass an order for recovery against defendant no.1. Virtually by virtue of this order the defendant no.1 may also be dispossessed from his lawful possession and this will give rise to another litigation. Therefore, the judgment and decree passed by the learned Court below cannot be supported. On the other hand the Appellate Court below has rightly held upon scanning of the evidence that the plaintiff is in possession of the suit plot in as much as PW1 Mohendra Nath Dey one of the plaintiffs witnesses during his cross-examination deposed that plot no. 198 was in his possession whereas it is his evidence that they used to possess both plot no. 198 and 238 as both the said plots belonged to the plaintiffs. It was further admitted that plot no. 198 belonged to Narayan Chandra Dey his predecessor-in-interest. Which evidence has been affirmed in cross-examination by PW2 deposing that boundary given in the title deed of the plaintiffs referred to plot no. 198. This fact is further corroborated when the PW2 deposed that he entered into an agreement for sale with the plaintiffs for purchase of plot no. 198 along with 238 and 200. The Appeal Court below rightly, therefore, held that the oral evidence given by the plaintiff and his witnesses clearly indicates that plaintiffs are in possession of plot no. 198 which initially belongs to Narayan Chandra Dey. The Appeal Court rightly held that it is the settled law that to get a relief in a suit the plaintiff has to prove his case without shifting the burden upon the defendant which the trial Court has held otherwise. The Appellate Court below has rightly held that there was no material before the Court to ascertain the respective possession of plot no. 238 and 239 when the plaintiffs admit in his evidence that he possessed plot no. 198 as owner by virtue of Exhibit-1 and particularly, when there is no evidence to ascertain from the schedule of the Exhibit 1 the actual area and boundary of the land the plaintiff possessed, the plaintiffs ought to have led evidence as to the actual area of plot no.198 because no one knows whether area of plot no. 198 was also 0.10 acre or more. In view of the provision of Section 97 of the Indian Evidence Act, the plaintiffs ought to have clarified before the Court by leading independent evidence regarding the conflict in the description mentioned in the deed of purchase.

The plaintiff has failed to discharge such obligation and presumption must be held against him. Without going into further details I hold that the Appellate Court below has rightly decided the issue and its decision holding that the plaintiff failed to prove his case. The trial Court's judgment cannot be sustained.

Mr. Ghosh, learned advocate for the appellant has relied on a decision in the case of Vimlaben Ajitbhai Patel -Vs. - Vatslaben Ashokbhai Patel and Anr. reported in (2008) 4 SCC 649. Relying on the said decision it has been argued by the counsel for the appellant that it is not for an owner of the property to establish that it is his self-acquired property but the onus would be on the one, who pleads contra. The law is settled and there is no dispute about the proposition because a negative cannot be proved. But this proposition has no semblance with the present fact situation of the case where the only question ought to have been answered by the plaintiff whether he is in possession of plot no. 238 and whether defendant no.1 encroached upon any land of plot no. 238. Without going into the real controversy in the matter the Court passed an unsustainable declaration which cannot be supported. The decision has no bearing in the present case.

Mr. Mukherjee appearing for the respondent has rightly pointed out that without first ascertaining the boundary in between the two adjacent plots Court cannot say one has encroached upon the others land. The proposition sought to be advanced by the learned trial Court, is difficult to accept. Mr. Mukherjee relied on a decision in the case of Sri. Biswajit Das & Ors. -Vs. - Smt. Ruma Barh & Ors. reported in (2012) 4 ICC 341 which categorically lays down the law that "There is no quarrel to the proposition of law that in case of dispute as to the identity of the property or for ascertainment of the boundary disputes, the Court must appoint a Commissioner for holding investigation for proper, effective and complete adjudication of the dispute." I also subscribe my view to the view taken by the Coordinate Bench of this Court and the decision is pat on the point in the present case.

The appeal, therefore, fails. Impugned judgment and decree passed by the learned Appellate Court below is upheld, there will, however, be no order as to costs. Second Appeal is dismissed.

Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.