Md Abdul Latif vs Tridip Roy And Anr

This is an appeal against the judgment and decree dated 16.09.2017 passed by the learned Court of Civil Judge, Sonitpur in Title Appeal No. 35/2012. By the impugned Judgment, the learned Civil Judge had confirmed the judgment and decree dated 19.11.2012 passed in Title Suit No. 103/2006 by the learned Munsiff No. 1, Tezpur. The appellant is the defendant No. 1 in the suit.

The facts of the case in brief is that the respondent as plaintiff had instituted the suit for declaration of right, title and interest and recovery of khas possession. The case projected by the plaintiff is that the plaintiff had purchased a plot of land measuring 1 katha 5 lessas from one Karimun Nessa vide registered Sale Deed dated 03.03.1997. Pursuant to such purchase, the plot was mutated in the name of the plaintiff and he has been regularly paying the Land Revenue. The plaintiff also claims to have constructed boundary pillars on the suit land and use to visit the same often.

The plaintiff alleges that on 26.01.2006 the defendant trespassed into the land and constructed a pakka wall. The plaintiff had tried to obstruct such illegal construction. However, the defendant did not pay any heed and rather threatened the plaintiff. As a result thereof, the plaintiff had lodged an FIR in the concerned police station. Proceedings under Sections 145 and 146 of the Cr.P.C were also initiated by the plaintiff. It has been averred in the plaint that the defendant had no right, title and interest and he being an encroacher, a decree be passed in favour of the plaintiff by declaring right, title and interest and permanent injunction. In the schedule to the plaintiff, the suit land has been described.

The suit was contested by the sole defendant by filing written statement. The principal stand taken in the written statement is that the land which the defendant was possessing was a different plot of land and not the plot purchased by the plaintiff. It may be mentioned the vendor of the plaintiff and the original owner of the plot purchased by the defendant is the same. It may be clarified at this stage that one Shri. Ambu Ram Narzary had purchased the land of the defendant from the original vendor Karimun Nessa and thereafter the said Ambu Ram Narzary had sold the aforesaid land to the defendant. The allegation of encroachment and trespassed were denied and it was accordingly prayed that there was no cause of action so far as the defendant was concerned.

Both the sides had adduced evidence through 4 (four) numbers of witnesses each. Certain documents were also exhibited.

The learned Trial Court had framed 7 (seven) numbers of issues and for the purpose of adjudication of this appeal, the Issue Nos. 3 and 4 and the findings may be taken into consideration.

Regarding the Issue No. 3 on the point as to whether the plaintiffs had right, title and interest over the suit land, the learned Court after discussion of the pleadings and examining the evidence and the materials on records came to the conclusion that the plaintiff indeed had right, title and interest over the suit land.

As regards, the Issue No. 4 as to whether the defendant dispossessed the plaintiff from the suit land, the learned Trial Court took into consideration the Schedule of the suit land, the Schedule of the land purchased by the plaintiff, the Schedule land purchased by the vendor of the defendant namely Ambu Ram Narzary and Schedule of the land purchased by the defendant Abdul Latif. The learned Trial Court, after discussion of the evidence on record came to a finding that the allegation of dispossession was correct and the plaintiff was successful in establishing the same. Accordingly, the suit was decreed in favour of the plaintiff.

Being aggrieved, the defendant had preferred an appeal before by the learned Civil Judge, Tezpur, Sonitpur being Title Appeal No. 35/2012.

The learned First Appellate Court vide judgment dated 16.09.2017 had concurred with the findings of the learned Trial Court and had dismissed the appeal. Aggrieved by the same, the present appeal has been preferred.

This Court while admitting the appeal had formulated mentioned substantial question of law.

Whether the findings of the Courts below are perverse of the case of the evidence on record.

I have heard Shri A. Ikbal, learned counsel for the appellant. I have also heard Shri D. Majumdar, learned Senior Advocate assisted by Shri S. Biswas.

In support of his submission Shri Ikbal has relied upon the evidence of the plaintiff witnesses to establish that the findings arrived at by the learned Court below are not only inconsistent but are also perverse. Though this Court in exercise of the power as the Second Appellate Court will only restrict its exercise to the substantial question of law framed, to do substantial justice, the evidence which have been referred by the parties are perused. Shri Ikbal by referring to the cross examination of PW-3 who is the father of the plaintiff submits that there is a clear statement that there was no house of the defendant over the suit land. Referring to the cross-examination of the vendor Karimun Nessa who was examined as PW-4, it has been submitted that the said witness had clearly stated that though a number of persons had purchased different plots of land from her, each of the purchaser were peacefully possessing their respective land and there was no extra land which were under possession of any of the purchaser.

The learned counsel submits that in absence of any trace-map being exhibited or even Amin Commissioner being appointed to come to the aid of the Court in deciding and arriving at a finding of fact, the plaintiff had failed in its duty to establish his own case. According to the learned counsel, both the Trial Court and the First Appellate Court could not have reached the conclusion of illegal dispossession in view of the aforesaid statements made by the materials witnesses in their cross-objection. In fact the learned counsel goes further to refer to that part of the cross-examination of the vendor of PW-4 who admits that the chief examination filed by her was not even drafted as per her instructions and was drafted by her advocate. It is in this context, the submission has been made on perversity in the judgment which is the substantial question of law, required to be answered by this Court.

In support of his submission, the learned counsel has referred the case of Birendra Nath Hazarika -vs- Mukitur Rahman reported in (2014) 6 GLR 795, wherein this Court, in paragraph 10 had laid down the burden to prove the factum of the dispossession is entirely of the plaintiff. It is further submitted that the plaintiff cannot rely upon the evidence or any part of the defendant witness to prove his case as it is his burden to prove such dispossession.

Reference is also made to the case of Union of India & Others -vs- Vasavi Cooperative Housing Society Limited and Others reported in (2014) 2 SCC 269, the Hon'ble Supreme Court in the said case had laid down that in a suit for declaration of title, the plaintiff is under an obligation to make out and establish a clear case for granting of such declaration and not depend on the weakness of the defendants.

Per contra, Shri. Mozumdar, learned Senior Counsel submits that in answering the substantial question framed by this Court, this Court has to keep in mind that there is an concurrent finding of two Courts after appreciation of materials and this Second Appellate Court would not reverse the findings only because another view is possible to deduce based on the evidence. The learned Senior Counsel submits that the conclusion reached is a possible view based on the facts. With that backdrop Shri. Mozumdar submits that the pleaded case itself of the plaintiff on the dispute has not been rebutted. Referring to paragraph 2 of the plaint regarding purchase of the land by the plaintiff from Karimun Nessa on 03.03.1997, it is submitted that the said statements had not been denied. The learned Senior Counsel further submitted that his title over the suit land is not at all in dispute and only the matter of illegal dispossession which constituted the issue for determination before the learned Trial Court. Referring to the pleadings of the defendant made in paragraph No. 10 of the written statement, it is submitted that the defendant had admitted of purchasing his plot of land on 25.01.2006 from one Ambu Ram Narzary. It may be mentioned that the defendants land was also initially owned by the original vendor namely Karimun Nessa who had sold to the vendor of the defendant Ambu Ram Narzary. It is also stated that the plaintiff land which is the suit land is a different from the land of the defendant. It is a matter of coincidence that the date which is claimed to be dispossessed which is on 26.01.2006 is just one day after purchase of the land by the defendant from Ambu Ram Narzary which is dated on 25.01.2006. The learned Senior Counsel in referring to the impugned judgments more particularly the discussion of issue No. 3 relating to the right, title and interest over the suit land and the issue No. 4 regarding to dispossession which have been indicated above has submitted that the schedule of the suit land, schedule of the land purchased by the plaintiff, schedule of the land purchased by the vendor of the defendant and schedule of the land purchased by the defendant has been categorically mentioned. For ready reference, the schedule of the land which has been referred in the judgment of the Trial Court is extracted herein below:-

" The boundary of the lands being in dispute, let's look into the Schedule of the suit land, land purchased by the plaintiff, Tridib Roy, vendor of the defendant, Amburam Narzary and the defendant, Abdul Latif.

Schedule of the suit land:-

All the part and parcel of land measuring 1(One) katha 5 (five) Lessas of land under Dag No. 145 covered by periodic patta No. 125 situated at village-Gotlong, Mauza-Bhairabpad, Dist-Sonitpur which is bounded by:-

North-Road,

South-Land of Karimannessa,

East-Land of Karimannessa, presently Rajesh Nandi and Rakesh Nandi,

West- Bipur Bora presently Abdul Hussain.

Schedule of the land purchased by the plaintiff, Tridib Roy:-

All the part and parcel of land measuring 1(One) katha No. 145 covered by periodic patta No. 125 situated at Village-Gotlong, Mauza-Bhairabpad, Dist-Sonitpur which is 5(Five) Lessas of land out of 14 Bighas 10 Lessas under Dag bounded by:-

North:- Road,

South:- Land of Karimannessa,

East- land of Karimannessa,

West- Bipul Bora.

Schedule of the land purchased by the vendor of the defendant, Amburam Narzary:-

All that part and parcel of land measuring 1(One) Katha 5(Five) Lessas of land out 14 Bighas 10 Lessas under Dag No. 145 covered by periodic patta No. 125 situated at Village-Gotlong, Mauza-Bhariabpad, Dist-Sonitpur which is bounded by:-

North-Road,

South- Land of Karimannessa,

East- Golap Basumatary,

West- Bandana Bora.

Schedule of the land purchased by the defendant, Abdul Latif:-

All that part and parcel of land measuring 1(One) Katha 5(five) Lessas of land under Dag No. 145 covered by periodic patta No. 125 situated at Village-Gotlong, Mauza-Bhairabpad, Dist-Sonitpur which is bounded by:-

North:- Road,

South:- Chandrashekhar Murmu,

East:- Rajesh Nandi,

West- Hussain Ali.

It is seen from the aforesaid schedule that there are material difference and there is no manner of doubt that the land which the defendant claims to purchase from the Ambu Ram Nurzary is a different plot of land. However, while describing of various plots of land it appears that there are inconsistencies. This inconsistencies have to be examined from the point of view of the statement made by the defendant witnesses in the cross examination.

Shri. Mojumdar, by referring to the cross examination of the defendant who was examined as DW-1 has submitted that the said defendant had categorically stated that he has not purchased the schedule land. Referring to the cross-objection of DW-2 Ambu Ram Nurzary who is the vendor of the defendant, it is submitted that as per the version of the said DW-2, the suit land is different which has pillars and the land sold to the defendant is different.

Shri. Mozumdar has also referred to the decisions of the Hon'ble Supreme Court reported in (2016) 3 SCC 78 (Damodar Lal -vs- Sohan Devi and Others) in paragraph 12 of the aforesaid judgment it has been laid down that the question of law which is required to be answered by the High Court as the substantial question of law and even if the findings is wrong, that by itself will not constitute a substantial question of law.

The learned Senior Counsel also relies upon certain other judgments to support his contention that the concurrent findings of the fact is usually not interfered with.

The materials on record and more particularly the evidence which show that the findings arrived at by the learned Trial Court which has been affirmed by the First Appellate Court are findings of fact after appreciation of the evidence on record. Though the learned counsel for the appellant has contended that such findings are perverse, in the opinion of this Court, the conclusion reached by the Trial Court are based on record and the evidence and cannot be held to be perverse findings. As discussed above, the findings arrived at for reaching a conclusion on the various issues mainly on the issue No. 3 and 4 are based on cogent materials including the the cross examination. It is clear that the land purchased by the plaintiff/respondent is different from the land purchased by the defendant from Ambu Ram Nurzary who was examined as defendant No. 1.The title of the plaintiff has not even been challenged or disputed in the written statement. Under such factual backdrop the substantial question of law framed by this Court is answered in the negative and in favour of the respondent plaintiff. Accordingly, this Second Appeal is dismissed.

LCR to be sent back to the Court below forthwith.