Liakat Ali vs Binoy Saha Roy

1.Heard Mr. N.Dhar, learned counsel for the appellant. Also heard Mr. S.P.Roy, learned counsel for respondent.

The present appellant is the plaintiff who filed Title Suit No. 26/1993 in the Court of Civil Judge, Senior Division, Darrang at Mangaldoi for

declaration and confirmation of the plaintiff appellant’s right, title over the suit land and also for ejectment of the defendant respondent. Sadhan Ch

Paul and Dinesh Ch. Paul were impleaded as proforma defendant Nos. 2 and 3 respectively in the suit. However they are not impleaded in this

appeal. As per the plaint, the suit land measuring 1 bigha 2 kathas 10 lechas covered by dag No. 334 of periodic patta No. 213 of village Khaterchar

under Pachim Sialmari Mauza and described in the schedule of the plaint originally belonged to Dos Mahmud and Nurruddin Ahmed. The proforma

defendant Nos 2 and 3 alongwith their brother Fakir Chand Paul purchased the suit land from the said Dos Mahmud and Nuruddin Ahmed by way of

a registered sale deed bearing No. 283 dated 28.1.1954(Ext.1). After the sale transaction possession was delivered to the said proforma defendants

and their brother. Fakir Chand Paul died issueless. The said proforma defendants possessed the suit land by growing seasonal crops and planted

different kind of trees and their names were also mutated. The said suit land was sold to plaintiff appellant by way of registered sale deed No. 1350

dated 12.6.1987(Ext.2) and delivered possession by the proforma defendant Nos. 2 and 3. A proceeding under Section 145 Cr.P.C. was initiated by

the defendant respondent which was registered as Misc. Case No. 182/1987 and vide order dated 11.5.1993 possession was declared over the suit

land in favour of the defendant respondent who constructed two C.I.sheet roof ‘Chali’ (shed) on the Southern part of the suit land measuring 25

feet X 10 feet and also raised iron post on the South Eastern corner and collected building materials to construct pucca house. A small ‘Ghoomti‘

house measuring 8 feet x 6 feet on the Southern part of the land was also raised. The claim of the plaintiff is that the defendant respondent has no

right, title and interest over the suit land and accordingly filed the suit with the reliefs hereinabove mentioned.

The defendant respondent entered appearance, filed written statement and raised the plea that the suit is not maintainable for non-joinder of

necessary party and also raised the plea that the suit is barred by law of limitation. Denying the pleadings made in the plaint, the defendant respondent

pleaded that the suit land belonged to Dos Mahmud son of Haji Osman. On 16.5.1951 Amena Khatun wife of Dos Mahmud sold 2 bighas 10 kathas 2

lechas of land covered by Dag No. 94 of periodic patta No. 61 of village Kheterchar to Malchand Malpani son of Kishan Malpani of Kharupetia by

way of registered sale deed bearing No. 67 dated 16.5.1951(Ext. Cha).In1964 late Hitesh Saha the father of the defendant respondent orally

purchased the said land measuring 2 bighas 2 kathas 10 lechas from Malchand Malpani and Ram Kr. Malpani and possessed the same which was

later on purchased by the defendant respondent on 28.2.1987 by way of registered sale deed No. 679 dated 28.2.1987 (Ext.Gha). The father of the

defendant respondent died in the year 1980 and thereafter the possession was continued by the defendant respondent cultivating muster seeds and

other agricultural produce. Admitting the sale of land measuring 1 bigha 2 kathas 10 lechas covered by periodic patta No. 61 dag No. 94 to the

proforma defendant Nos. 2 and 3 and their deceased brother by the registered sale deed dated 27.1.1954, it is the plea raised by the defendant

respondent that out of the said land, the said three brothers sold 4 kathas 14 lechas of land to various persons leaving aside 2 kathas 16 lechas under

their possession. The defendant respondent purchased in total 2 bighas 3 kathas 10 lechas of land including suit land measuring 1 bigha 2 kathas 10

lechas and possessing the land continuously. The suit land has all along been under his possession till the date of filing the suit for about 29 years by

constructing ‘Ghoomti ghar’ and the same was under occupation of Shyamlal Saha as monthly tenant. Another ‘Ghoomti ghar’ situated in

the eastern side was constructed and occupied by Pasu Gopal Saha as monthly tenant under defendant respondent. The defendant respondent further

pleaded that on 10.4.1987 certificate was issued by the plaintiff appellant who is the Mauzadar admitting that the entire 2 bighas 3 kathas 10 lechas

including 1 bigha 2 kaths 10 lechas of land was owned and possessed by the defendant respondent. The defendant respondent has all along occupied

the land since long time without interruption and denied the right, title and interest of the plaintiff appellant and sought for dismissal of the suit.

On the basis of the pleadings the learned Trial Court framed the following issue:

(1)Is there any cause of action for the suit?

(2)Whether the suit is barred by limitation?

(3)Whether the suit is bad for non-joinder of necessary parties?

(4)Whether proper court fee has been paid by the plaintiff?

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

(6)Whether the suit land was being possessed by the plaintiff since the date of purchase i.e on 12.6.1987 as alleged ?

(7)Whether the defendant No 1 dispossessed the plaintiff from the suit land on 12.5.1993 as alleged in para 15 of the plaint and as such, he is entitled

to a decree for ejectment of defendant No.1 after demolishing all structures constructed by the defendant No.1.?

(8)Whether the plaintiff is entitled to a declaratory decree to the effect that the order passed by the Executive Magistrate, Udalguri in Misc. Case No.

159/93 u/s 145/146(1) Cr.P.C. is liable to be set aside and declared null and void ?

(9)To what other relief or reliefs the parties are entitled to ?

Parties to the suit adduced their respective evidence both orally and documentary and vide judgment and decree dated 5.10.2002, the learned trial

court dismissed the suit. The learned trial court while deciding the issue No. 2 held that the suit was not barred by law of limitation. However taking up

issue Nos. 5,6 and 7 jointly the same were decided against the plaintiff appellant.

The plaintiff appellant preferred Title Appeal No.1/2003 against the judgment and decree passed by the learned trial Court in the court of Additional

District Judge, Darrang, Mangaldoi which was also dismissed vide judgment and decree dated 30.3.2005. Thereafter the present second appeal is

preferred challenging the judgment and decree of the first appellate court. The second appeal was admitted on 15.6.2007 by framing the following

substantial questions of law:

“1.Whether the learned court below erred in law holding respondent No. 1 has acquired right title and interest over the suit land ?

Whether the first appellant court erred in law holding the suit of the plaintiff/appellant is barred by limitation?â€​

The plaintiff appellant exhibited the following documents:-

(i) Ext. 1 is the registered sale deed No. 283 dated 28.1.1954 by way of which Dos Mahmud and Nuruddin Ahmed sold land measuring 1 bigha 2

kathas 10 lechas, dag No.94 of K.P.Patta No. 61 of village Kheterchar under Mauza Sialmari to the said proforma defendant Nos. 2, 3 and their

deceased brother Fakir Chand Paul. The land so sold is specifically defined wherein on the Western boundary the name of Malchand Malpani is

shown, East: Thakur Das Paul, North: Rohima Begum, land of Dag No. 95, South: PWD road.

(ii) Ext. 2 is the registered sale deed No. 1350 dated 12.6.1987 by way of which the vendors proforma defendant Nos. 2 and 3 sold the land measuring

1 bigha 2 kathas 10 lechas out of 2 bighas 10 kathas 13 lechas of dag No 334 of KP Patta No. 213 of village Kheter Char under Sialmari Mauza to

the plaintiff appellant with specific boundaries East: Biswamber Paul, West: Malchand Malpani, North: Binay Saha(defendant respondent) South:

PWD road.In the plaint the plaintiff appellant explained specifically that in Ext.2 on the Western boundary it ought to have been the land of dag

No.334 under illegal possession of defendant respondent instead of Malchand Malpani. Similarly it is further explained that though in the Ext. 1 on the

Eastern boundary the name of Thakur Das Paul is shown but due to subsequent transfer on the Eastern side the land is under possession of

Biswambar Paul.

(iii) Ext.3 is the Jamabandi of K.P.Patta No. 213 dag No. 334 showing the total area of the said dag as 2 bighas 1 katha 13 lechas. The said Ext. 3

records the names of Dos Mahmud, legal heirs of Iajuddin, Rahimunessa wife of Dos Mahmud and Sadhu Charan Paul and his brothers.

(iv) Ext. 4 is the ex-parte final order dated 11.5.1993 passed by the Executive Magistrate, Udalguri in Misc. Case No.159/1990 u/s 145/146 of Cr.P.C.

From the said order it is noticed that the father of the defendant respondent in the year 1964 purchased in total 8 bighas of land from Malchand

Malpani, Sri Ram Kumar Malpani, Ram Kumar Tasniwal. The said proceeding was initiated by the defendant respondent and out of 2 bighas 3 kathas

10 lechas forming part of total 8 bighas of land, the disputed land was 1 bigha 2 kathas 15 lechas bounded on East: Mahabharat Haldar, West: Ist

party, Binay Saha Roy(defendant respondent),North: Ist Parity’s residential house, South: PWD road. The breakup of the disputed land is:

(a) 1 bigha 2 kathas out of 3 bighas 10 lechas covered by K.P.Patta No:- ( Old)-61+15 Dag No. ( old) 94+90

(N) 84+21 (N) 334+318

(b) 3 kathas covered by K.P.Patta No: -(old) 101 Dag No.(old) 99+226+97 and (N) 213 Dag No. (N) 364

 (c) 3 kathas 10 lechas covered by K.P.Patta No. (old) 14 Dag No. (old) 92

(N) 213 (N) 334

The said a + b + c comes to 2 bighas 3 kathas 10 lechas and out of the said land the disputed land which is referred hereinabove is 1 bigha 2 kathas 15

lechas with the aforesaid boundaries. So the said disputed land consists of land covered by various dag numbers but not half of the land of 2 bighas 1

katha 10 lechas covered by the Jamabandi of K.P.Patta No. 213 dag No. 334(Ext.3).

The land described in the schedule of the plaint is reproduced hereinbelow:

“Land measuring 1 B 2 K 10 Ls out of a total of 2 bighas 1 katha 13 lechas covered by Dag No. 334 of P.P. No. 213 situated in village

Kheterchar, Mouza Pachim Sialmari bounded as under-

North:- Plaintiff’s Basti land

South:-P.W.D Road

East :-Biswambar Paul

West :-Defendant No.1(Part of dag No. 334)â€​

The defendant respondent exhibited the following documents:

(i) Ext. A certificate issued by the plaintiff appellant as Mauzadar certifying that land measuring 2 bighas 3 kathas 13 lechas stands in the name of

defendant respondent under K.P. Patta No. 84/213 dag No. 334/318 with residential house.

(ii) Ext. B land revenue paying receipt for the period 1381 â€" 1393(Assamese Calendar) i.e. 1975--1987 on 24.3.1987 which is shown to be paid by

defendant respondent No. 1 for and on behalf of one Sabar Seikh and others for patta No. 84 which is not the suit patta.

(iii) Ext. C similar land revenue paying receipt for the same period as aforesaid but for patta No. 157 which is also not the suit patta

(iv) Ext.Gha, the registered sale deed No. 679 dated 28.2.1987 executed by Malchand Malpani, Ramkumar Malpani and Nandalal Tasniwal in favour

of the defendant respondent selling land measuring 2 bighas 3 kathas 10 lechas which covers the schedule shown in Ext.

In the said sale deed it is specifically mentioned that possession of the said land measuring 2 bighas 3 kathas 10 lechas was delivered on 28.2.1987.

The specific area of land covered by dag No. 94(old)/334(new) of K.P.Patta No. 61 (old)/84 (New) is not mentioned and the boundary of the said

land is shown as East- Mahabharat Haldar and Biswamber Paul, West: purchaser North: Mahabharat Haldar, South PWD road. It has reference of

2(two) other sale deeds but not exhibited

(v) Ext. Cha certified copy of registered sale deed No.67 of 16.5.1951 executed by Amina Khatun wife of Dos Mahmud in favour of Malchand

Malpani, son of Kiran Malpani measuring land 2 bighas 1 katha 10 lechas of dag No. 94 of K.P.Patta No. 61,4 kathas 10 lechas of dag No. 90

K.P.Patta No. 16 which comes to total 3 bighas 1 katha bounded by East: Iajuddin Mandal, West: Amina Khatun, North: Iajuddin Mandal, Nasijan etc,

South: PWD road.

(vi) Ext.Kha registered sale deed executed by Sadhucharan Paul in favour of Madan Paul land measuring 2 kathas 19 lechas of KP Patta No. 71 dag

No.93 and KP Patta No. 61 dag No. 94.

(vii) Ext. Ka sale deed by which Saraswati (mother of DW 3, Gurudas Paul) purchased land from the son of Biswambar Paul who purchased land

from one Bharat Paul and the land covered by Dag Nos. 93, 94 of Patta No. 71 and 61 respectively.

Mr. Dhar, submits that the finding of the courts below that the defendant respondent has acquired right, title and interest over the suit land is

without any basis. The evidence on record does not support that the defendant respondent was successful in proving his title nor there is any counter

claim seeking for his declaration of right, title and interest over the suit land as bonafide purchaser. The plaintiff appellant on the other hand is specific

with regard to his pleadings that Dos Mahmud and Nuruddin sold the land to Sadhucharan Paul, Fakir Chand Paul and Dinesh Paul jointly by way of

registered sale deed of 1954. The said land was subsequently sold to the plaintiff appellant by two of the said purchasers, one of the brothers having

died issueless. It is the contention of the plaintiff appellant in his evidence that he was delivered possession of the land so purchased by him from his

purchasers. On the other hand, the PW 2 deposed in his cross-examination that he could not deliver the possession of the suit land to the plaintiff

appellant. The fact that the father of the defendant respondent purchased orally the suit land in the year, 1964 and maintained his possession all along

since then till the year, 1980 and after his death the said possession was continued by the defendant respondent is not at all proved. The defence

witnesses on the other hand, more specifically the defendant respondent as DW 8 even failed to prove the devolution of title from Amina Khatun to

Malchand Malpani inasmuch as, there is no evidence on record that Amina Khatun was the recorded title holder of the said land purportedly sold by

Malchand Malpani and their brothers in the year, 1987 to the defendant respondent. The defendant respondent also failed to show that the land which

was purchased by Paul brothers was sold totally to various purchasers prior to execution of registered sale deed in favour of the plaintiff appellant.

There is an observation by the first Appellate Court that after selling the land measuring 4 kathas 14 lechas by the said Paul brothers, land more or

less 2 kathas and odd is under possession of the Paul brothers. If the court was satisfied to that effect, the court below ought to have given a

declaration to that effect declaring the right, title and interest of the plaintiff appellant to the extent of land under possession of Paul brothers who are

the vendors of the plaintiff appellant. With such observation the first Appellate Court upheld the findings that the defendant respondent is the bonafide

purchaser. In support of his submission, Mr Dhar relies on R. Kapilnath(Dead) Through LR Vs. Krishna reported in (2003) 1 SCC 444 wherein it was

held that when the plaintiff claimed the higher right but able to prove only a lesser right the plaintiff would not be disentitled from succeeding any suit

so long as the lesser right substantiated by him is sufficient in law to entitle him a relief against the defendant.

With regard to the finding of the first appellate court that the suit is barred by law of limitation, Mr.Dhar submits that the defendant respondent in

his written statement without there being any counter claim seeking declaration of right, title and interest as bonafide purchaser, pleaded that the suit

land has all along been in his possession since the year, 1964 at first under the possession of his father and on his death in the year, 1980 it continued

all along through him is not itself sufficient to hold that the suit is barred by limitation moreso when the plaintiff appellant has claimed his right, title and

interest on the basis of title. In support of his submission, Mr. Dhar relies on ( Deva(Dead) Through LRS. Vs Sajjan Kumar (Dead) By LRS reported

in(2003) 7 SCC 481 wherein it is held that mere long possession of the defendant for a period of more than 12 years without intention to possesses the

suit land adversely to the title of the plaintiff and to the latter’s knowledge cannot result in acquisition of title by the defendant to the encroached

suit land.

Finally Mr. Dhar, submits that the first Appellate Court totally ignored the evidence on record and exceeded its jurisdiction by declaring right, title

and interest of defendant respondent as bonafide purchaser of the suit land that too without there being any counter claim. The First Appellate Court

being the last court of facts ought to have considered the evidence on record minutely. There is failure on the part of the First Appellate Court to

decide the first appeal in the manner prescribed by the Hon’ble Supreme Court. Accordingly, Mr. Dhar submits that the substantial questions of

law are to be decided in favour of plaintiff appellant and remand the matter for a fresh judgment by the First Appellate Court.

Mr. S. P. Roy, learned counsel for the defendant respondent at first raised the plea that keeping in view the concurrent findings of the courts

below the substantial questions of law so formulated cannot be entered into inasmuch as if the same are taken into consideration it would amount to

unsettling of the settled position of the facts which are concurrent in nature. The plaintiff appellant failed to seek for the relief of cancellation of the

sale deed by way of which the defendant respondent claimed to have purchased the land of Malchand Malpani and others. The suit accordingly, is not

at all maintainable.

It is further submitted that Ext.2 is the sale deed wherein there is no mention about the death of Fakir Chand Paul issueless and the plaintiff cannot

claim title over the total land measuring 1 bigha 2 kathas 10 lechas which was purchased vide Ext.1 by the Paul brothers, three in number. One of the

vendors of the Paul brothers named Nuruddin Ahmed is not shown to be recorded pattadar in the Jamabandi, Ext. 3 and as such, the land purchased

by Ext. 1 is from Dos Mahmud only. Referring further to the 145 Cr.P.C proceeding initiated by the defendant respondent and its final order Ext. 4,he

submits that the defendant respondent was possessing the suit land at least prior to two months from initiation of 145 Cr.P.C. proceeding. Referring to

the deposition of Dinesh Chandra Paul, PW 2, Mr. Roy submits that he failed to deliver the possession of the suit land to the plaintiff appellant which is

sufficient to show that the suit land was under possession of the defendant respondent since the death of his father in the year, 1980 and prior to that

his deceased father was maintaining the possession since 1964. That being the position, the suit is out and out barred by law of limitation.

There is no deed of rectification on record to support the claim of the plaintiff appellant that the boundaries of the suit land differs from the one

which is shown in the sale deed, Ext. 2. It is further stated that on 17.11.1958, 3.10.1973 and 3.12.1982 the vendors of the plaintiff appellant sold the

land to Mon Mohan Paul, Mahesh Chandra Paul and Phani Bhusan Saha , measuring 2 kathas 18 lechas, 1 katha 5 lechas and 1 katha 5 lechas each

to the said purchaser. The said land was sold out of total land measuring 1 bigha 2 kathas 10 lechas purchased by the Paul brothers by way of Ext. 1

leaving aside hardly 2 kathas 2 lechas of land and as such, the plaintiff appellant cannot claim his right, title and interest over the total land purportedly

purchased by Ext.2. In support of the contention, Mr. Roy relies on Santosh Hazari Vs. Purushottam Tiwari(Deceased) by LRS, reported in (2001) 3

SCC 179 which is relied by Mr. Dhar also but on different aspect.

Considered the submission of learned counsel. The first Appellate Court took the issue Nos. 5,6 and 7 and discussed together and came to the

finding that the said issues are against the plaintiff appellant. The case of the plaintiff appellant is that he purchased the suit land from his vendors and

was delivered possession. The first Appellate Court considered that out of total land measuring 1 bigha 2 kathas 10 lechas purchased by the vendors

of the plaintiff appellant vide Ext.1, prior to the sale to the plaintiff appellant, the said vendors sold more or less 4 kathas 14 lechas to various

purchasers thereby leaving only 2 kathas 16 lechas under the possession of the vendors. The purchasers who purchased their respective land from

Paul brothers (vendors of the plaintiff appellant) proved by way of their deposition as defence witnesses that the land so purchased by them are under

their possession. While deciding the said issue Nos. 5, 6 and 7 the first Appellate Court held that the plaintiff appellant had no possession over the suit

land and no possession was delivered on the strength of Ext. 2, the sale deed. The finding of the first Appellate Court is that the defendant respondent

has right, title and interest over the suit land as bonafide purchaser and it was proved that he possessed the suit land since the days of his father even

before purchase of the said land from Malpani brothers. It is further held that plaintiff respondent failed to prove the fact that the defendant

respondent took possession of the suit land on 12.5.1993 on the strength of final order of the Misc.Case No. 159/1990 dated 11.5.1993 (Ext. 4).

Accordingly, the defendant respondent has right, title and interest over the suit land and his possession over the suit land is lawful possession and the

plaintiff appellant has no right, title and interest.

While deciding the point of limitation the issue No. 2, the first Appellate Court found that the defendant respondent has been possessing the suit

land since last 29 years i.e. from the days of his father when he purchased the suit land from Malchand Malpani and his brothers in the year, 1964

orally and got a sale deed executed on 28.2.1987 in favour of the defendant respondent by Malchand Malpani and his brothers. So the vendors of the

plaintiff appellant ought to have filed a suit for ejectment of the said Malchand Malpani, the vendor of the defendant respondent but they failed to do

so. It is proved that Ext. 2 was executed while defendant respondent was already in possession of the suit land and as such, mere execution of the

sale deed in favour of the plaintiff appellant on 28.6.1987 by the vendors cannot give rise to cause of action with effect from 12.6.1987.Thus the cause

of action for the suit arose in the year, 1964 while the father of the defendant respondent had entered into possession,instead the plaintiff appellant

filed the suit on7.8.1993. Accordingly, Section 27 of the Limitation Act comes into play which prescribes right to property is extinguished on the

determination of the period limited for instituting a suit for possession of property and if any one fails to show that he has brought the suit based on his

title within 12 years from the date of dispossessing him from the immovable property by the defendant respondent, there would be complete

extinguishment from title.

The First Appellate Court while declaring the right, title and interest and possession of the defendant respondent failed to consider the evidence on

record. The defendant respondent deposed as DW 8 and in his cross- examination stated that the land purchased by him was the absolute property of

Amina Khatoon but not of Dos Mahmud, son of Haji Osman. The said land includes the land covered by Ext. Cha, the sale deed No. 67 of 16.5.1951.

The said Ext.Cha consists land of other dag and patta numbers. He admitted that the plaintiff appellant claimed land within the boundary, North: his

residence(DW 8), South: PWD road and East: Biswambar Paul, the land presently under possession of Dhireswari Paul. The plaintiff appellant though

claimed to purchase the suit land but he did not purchase the same from Dinesh Paul. He(DW 8) is not in possession of registered sale deed Nos. 886

and 895 which are recorded in registered sale deed, Ext. Cha nor is he aware if any copies were given to him. He is not aware who are the vendors

of said sale deeds. He is not aware if Malchand Malpani and others have their names mutated in any chitha and jamabandi but knew about the fact of

the deeds.

DW 1 Monoranjan Paul deposed that he does not know how much land Dinesh Paul and Fakir Chand Paul had. Sadhucharan Paul sold the land to

his father about ½ bigha. Defendant’s land is situated on the western side and eastern side from his land. He does not know the boundary of the

land of defendant respondent nor the area also. D.W 2 Ratan Paul deposed that land purchased by his father and the suit land are different. Dw 2

Gurudas Paul stated in his cross-examination that the purchased land is 1 katha 5 lechas under Dag No. 93 K.P.Patta No. 61. DW 4 Suren Saikia

deposed that Ext.Kha is the sale deed executed by Sadhucharan Paul in favour of Madan Paul. The land so sold measures 2 katha 19 lechas covered

by K.P.Patta No. 71, Dag No.93, K.P.Patta No. 61, Dag No. 94.

From the said evidence it is clear that the defendant respondent had failed to prove the flow of title originating from Amina Khatun to Malchand

Malpani and two others. There are no land records where Amina Khatun is shown to be the owner of the land which was sold to Malchand Malpani.

DW 9 deposed that the land belonged to Dos Mahmud and Haji Osman and it is deposed in his cross-examination that Amina Khatun wife of Dos

Mahmud sold it showing thereby that Amina was not the owner. The defendant respondent as DW 8 also failed to prove the flow of title from Amina

Khatun to Malchand Malpani except the sale deed of 1951 executed by Amina to Malchand Malpani. The oral evidence of DW 9 if considered, then

also the flow of title to defendant respondent cannot be accepted at least to declare the right, title and interest of the defendant respondent. The

appellate court is of the view that as the plaintiff appellant failed to prove his possession so title is declared in favour of the defendant respondent

when there is no plea of bonafide purchaser taken by defendant respondent seeking declaration of his right, title and interest over the suit land by way

of counter claim.

The first Appellate Court considered the Ext. A, the certificate issued by the plaintiff appellant in favour of the defendant respondent. I have

perused Ext. A which shows that land covered by K.P.Patta No. 84/213 Dag Nos. 334/318 stands in the name of defendant respondent with

residential house. The suit land is covered by Dag No. 334 of Patta No. 213 measuring 1 bigha 2 kathas 10 lechas and on the other hand, the Ext. A

pertains to land measuring 2 bighas 3 kathas 13 lechas covered by both dag Nos. 334/318 K.P.Patta Nos. 84/213. The claim of the plaintiff appellant

is rightly considered by the appellate Court that out of total land measuring 2 bighas 1 katha 13 lechas covered by Dag No. 94(old)/334(N) periodic

patta No. 61(o)/213 (N) which belonged to Dos Mahmud and Nuruddin Ahmed, 1 bigha 2 kathas 10 lechas was sold to Fakir Chand, Sadhu Charan

and Dinesh in the year, 1954 who leaving aside, Fakir in turn sold to the plaintiff appellant by way of registered sale deed dated 12.6.1987. On the

basis of said purported right derived on the strength of said purchase, the plaintiff appellant sought for the relief of declaration of right, title and interest

and recovery of possession of the suit land.

The ownership of plaintiff appellant was not declared by the courts below, considering the admission of plaintiff appellant while issuing the

certificate i.e. Ext. A. But the appellate court failed to give a specific finding as to what extent of land covered by Dag No. 334 under patta No. 213 is

possessed by the defendant respondent out of total land measuring 2 bighas 3 kathas 13 lechas covered by Dag Nos. 334, K. P Patta No. 213 and 318

of K. P. Patta No. 84. The finding of the appellate court failed to consider the specific deposition of P. W. 2 that the land so sold to the various

purchasers by one of the brothers was covered by separate patta and dag numbers. The stand of the defendant respondent is that prior to sale of the

land to the plaintiff appellant, his vendors sold land to other purchasers who deposed as defence witnesses. The purchase by Paul brothers is not

denied by the defendant respondent. The fact of selling the land to other persons itself shows that the plot of land purchased by Paul brothers is a

separate plot of land from the one purchased by Malpani from Amina. The defendant respondent claims that the suit land is under his possession and

his father, since the year, 1964. Ext. Gha is the registered sale deed by way of which the defendant respondent claims to have purchased from

Malchand Malpani, Ram Kumar Malpani and one Nandalal Tasniwal land measuring 2 bighas 3 kathas 10 lechas covered by various Dag numbers, as

referred hereinabove and the same was executed in the year, 1987. On perusal of said Ext. Gha, it is found that on the date of execution of said

registered sale deed possession of the same was delivered to the defendant respondent. So if at all the possession starts it can be held that the same

started from the date of execution of the registered sale deed from the year, 1987. The alleged purchasers of the suit land prior to the purchase by the

plaintiff appellant deposed that they are possessing land other than that of the defendant respondent.

On the face of evidence wherein the defendant respondent failed to prove the devolution of title from Amina Khatun to Malchand Malpani and

subsequent thereto on himself goes to show that the declaration of right, title and interest of the defendant respondent by the first appellate court

cannot be accepted and as a result, the substantial question of law No.1 is decided in favour of the plaintiff appellant.

The suit is filed in the year, 1993 and the possession of the defendant respondent is clear and apparent from the sale deed that he was delivered

possession on the day of execution of the registered sale deed in the month of March, 1987. There is no iota of evidence of Malchand Malpani or any

of his legal heirs to establish the fact that the father of the defendant respondent purchased orally the said land in the year, 1964 and was delivered

possession in the year, 1964. The claim of the defendant respondent is nullified by the said recording made in the sale deed, Ext. Gha that possession

was delivered on the date of execution of the Ext.Gha. The land revenue paying receipt also does not show the name/names of any of the vendors of

the defendant respondent. There is no plea that the defendant respondent after admitting the title of Sadhu Charan Paul and his brothers possessed the

land adverse to the interest of the said vendors. If at all the defendant respondent started possessing the land, the suit is filed well within the period of

Limitation that is within 12 years from the date of possession of the defendant respondent is adverse to the interest of the plaintiff appellant inasmuch

as, the suit was filed by the plaintiff appellant in the year, 1993. Accordingly, substantial question of law No. 2 is also decided in favour of the plaintiff

appellant.

From the aforesaid findings, it is seen that the first appellate court failed to appreciate the evidence on record and came to a conclusion which is

logical. Accordingly, I am constrained to set aside the judgment and decree passed on 30.6.2005 by the learned first appellate court in T.A. No.

1/2003 and remand the same for passing the judgment afresh after proper appreciation of the evidence on record. The first appellate court may

appoint an Amin Commission in order to adjudicate the dispute between the parties properly subject to the satisfaction of the learned first appellate

court. It is further stated that leaving aside the evidence which are on records, any observation made by this court shall not influence the first appellate

court while deciding the issues before it afresh. The parties to this appeal shall appear before the learned first appellate Court on 14.12.2018 and

thereafter the appeal be disposed of within a period of 60 days from the date of appearance keeping in view that the suit is of the year 1993.

Thus the second appeal is allowed. No costs. Registry to send back the LCR immediately keeping in view the date of appearance fixed.