MD. SHABER ALI vs MD. AKKAS ALI

1.This second appeal by the plaintiffs is filed against the judgment and decree dated 10.03.2008 passed by learned Civil Judge, Dhubri in T.A. No.

55/2006, whereby, learned Civil Judge dismissing the appeal filed by the plaintiffs/appellants, confirmed the judgment and decree dated 11.08.2006

passed by the learned Munsiff No. 1, Dhubri in T.S. No. 40/1995.

The brief facts leading to the present second appeal are that the plaintiffs filed a suit for declaration of right, title and interest, recovery of

possession and other consequential reliefs. The pleaded case of the plaintiffs was that the suit land measuring 3 B 3 K 18 L covered by old Khatian

No. 79 being part of old Dag No. 448 was purchased by the plaintiffs from Sabatun Nessa by registered sale deed and accordingly, the plaintiffs have

been possessing the suit land by right of purchase. It was also stated in the plaint that the defendant No. 4, Sabiron Bewa filed a suit being T.S. No.

82/78 in the court of Munsiff No. 2 against the plaintiffs for partition, declaration of title and separate possession in respect of the suit land, which was

dismissed. Having failed to succeed in T.S. No. 82/78, the respondent No. 4 along with the other defendants tried to dispossess the plaintiffs and

occupied a portion of the suit land as described in schedule B of the plaint forcing the plaintiffs to file the suit for declaration of right, title and interest

and recovery of possession. Though the defendants filed written statement raising various formal/legal pleas, like maintainability, non-joinder of

necessary party, limitation etc., the defendants did not deny the title of the plaintiffs over the suit land. Only averment on the factual aspects in the

written statement was that the sale deed on the basis of which, the plaintiffs claimed title, were not filed in court alongwith the plaint. On the basis of

the above pleadings, learned Munsiff framed the following issues :-

1.Whether the suit is maintainable in its present form ?

Whether the suit is barred by limitation ?

Whether the suit is bad for non-joinder of parties ?

Is there any cause of action for the suit ?

Whether the suit is liable to be dismissed under section 34 of the Specific Relief Act ?

6.Whether the plaintiff has got right, title and interest over the suit land ?

7.Whether the plaintiff was dispossessed by the defendants from the suit land ?

8.Whether the plaintiff is entitled to get decree as prayed for ?

9.To what other reliefs the parties are entitled ?

Both the parties adduced evidence, oral as well as documentary and after hearing the parties, learned Munsiff decreed the suit of the plaintiffs.

Aggrieved by the judgment and decree passed by the learned Munsiff, defendants/appellants preferred an appeal before the learned Civil Judge.

The learned Civil Judge by the impugned judgment and decree dismissing the appeal and concurring with the findings of the learned trial court, upheld

the judgment and decree in favour of the plaintiffs.

Feeling aggrieved, the defendants/appellants preferred the instant second appeal, which was admitted to be heard on the following substantial

questions of law :-

1) Whether the judgment of the learned courts below is in conformity with Order XLI Rule 31 CPC

2) Whether the findings recorded by the learned courts below with regard to the right, title and interest of the plaintiffs/respondents was perverse

inasmuch as, the vendor of the plaintiffs have no title over the entire suit land in view of the gift deeds, being exhibits ‘C’ & ‘E’.

Learned Senior Counsel, Mr. D.P. Chaliha, assisted by learned counsels Mr. M. Rana and Ms. J. Rajkumari for the appellants and Mr. M.

Banerjee for the respondents were heard.

Learned Senior Counsel, Mr. D.P. Chaliha has not pressed the substantial question No. 1 and in fact, he also very reluctantly pressed the

substantial question No. 2 with regard to right, title and interest of the plaintiffs over the suit land. The written statement filed by the defendants in the

suit clarified the stand taken by Mr. Chaliha, inasmuch as there was absolutely no pleadings from the side of the defendants denying the title of the

plaintiffs.

Specific plea of the plaintiffs in the plaint was that the plaintiffs purchased the suit land by registered sale deed No. 1363/74 dated 6/3/74, which

was proved as exhibit 5. Plaintiffs also proved the certified copy of the decree passed in Title Suit No. 82/78 as exhibit 1. As indicated above, the

defendants in their written statement did not even made a whisper denying title of the plaintiffs over the suit land. Though the defendants sought to

argue before the courts below on the basis of Ext. C and Ext. E, that the vendor of the plaintiffs did not have title over the entire suit land, no such

plea was ever raised in the W/S. In fact, by not denying the title of the plaintiffs in the W/S, the defendants have admitted the title of the plaintiffs.

When the plaintiffs specifically pleaded that the suit land was purchased by the plaintiffs by sale deed (Ex. 5) which was duly proved, and in the

earlier suit filed by the defendants claiming title over the suit land was dismissed, and the defendants even failed to deny the title of the plaintiffs, and

on the basis of the above pleadings and evidence, both the learned courts below concurrently held that the plaintiffs have right, title and interest over

the suit land, such concurrent findings of the learned courts below cannot be faulted.

The defendants proved two deeds being exhibits C, whereby one Gendu Fakir gifted 4 Bs of land, out of his land from Tauzi No. 39 and 76 in

favour of Sabatun Nessa, the vendor of the plaintiffs. Another deed proved by the defendants as exhibit E, by which one Monsur Ali sold certain land

in favour of Sabiron Bewa, the defendant No. 4. These two deeds  (exhibits ‘C’ & ‘E’) do not show that the vendor of the plaintiffs did

not have title over the entire 3B 3K 18 L of land sold in favour of the plaintiffs. Be that as it may, when there was no pleadings that the vendor of the

plaintiffs did not have title over the entire land sold in favour of the plaintiffs, such evidence was also inadmissible being beyond pleadings. It is the

settled principle that no amount of evidence can be looked into, for which there was no pleadings.

In any view of the matter, since the plaintiffs have successfully proved their title over the suit land, which was not denied by the plaintiffs in their

written statement, the judgments and decrees passed by both the courts below have not suffered from any infirmity or perversity. Accordingly, the

substantial question of law No. 2 is answered in negative and in favour of the plaintiffs.

As already indicated above, the substantial question of law No. 1 has not been pressed and in fact, the learned Senior Counsel, Mr. Chaliha, very

reluctantly pressed the substantial question No. 2, reason being that there was no pleadings at all from the side of the defendants denying the title of

the plaintiffs over the suit land.

In view of the foregoing discussions, the second appeal filed by the plaintiffs against the concurrent findings of the courts below is found to be

devoid of merit and accordingly dismissed.

Send back the LCR.