Ramendra Mohan Choudhury and Others vs Kshitish Chandra Choudhury and Others

J.N. Sarma, J.—Both the appeals are taken up for hearing together as prayed for by the learned Counsel for the parties.

I have heard Shri B.K. Goswami, learned Counsel for the Appellants in the appeals and Shri N.M. Lahiri. the learned Counsel for the Respondents.

The substantial questions of law in second Appeal No. 59/94 are as follows:

(1) Whether the learned District Judge was justified to take into consideration the question of acquisition of the land under Assam Acquisition of Zemindaris Act, although no such plea was taken in the pleading, nor by issue was framed on this question.

(2) Whether the learned District Judge having held that the Defendant had no title or possession over the land was justified in dismissing the Plaintiff''s suit.

In second Appeal No. 79/94 they are as follows:

(1) As to whether the District Judge was justified in holding that the Plaintiff No. 1 acquired to title by transfer made by Aklakur Rahman and Ors. in the absence of pleading to that effect.

(2) As to whether the District Judge was correct in law in coming to the conclusion that the Plaintiff did not acquire title by transfer made by Aklakur Rahman and Ors. ? Both the appeals have been filed by the Plaintiffs, as the suits were dismissed by the appellate Court, District Judge, Karimganj.

Facts of Second Appeal No. 59/94 The Plaintiffs'' case in brief is that the land described in schedule of the plaint originally belonged to one Aklakur Rahman Choudhury of village Nulua District Karimganj who was the owner of possession of the said land along vith other lands in exercise of his right as land holder and accordingly during the last settlement operation held some times in 1960-61, the land of the schedule has been recorded in the name of Aklakur Rahman and final khatian was issued in his name by the settlement (P. No. 2) authority free from objection.

That the Plaintiff Nos. 1 to 4 and their late mother Priyatoma Choudhury was the owner of the properties and houses in Zinda Bazar situated in Sylhet town in Bangladesh.

The Plaintiffs and their late mother exchanged their Basha Bari of Sylhet town with ome properties of Aklakur Rahman including the schedule sanctioned land in the plaint and accordingly a deed of exchange was executed by both the parties which was registered in Karimganj Sub-Register''s office on 15/9/67 being deed No. 7447, by virtue of this deed the Plaintiff Nos. 1 to 4 and their late mother got in exchange an area of 2 hals 2 kedars 1 poa 9 pons 10 gondas of land including the schedule mentioned land with delivery of actual possession and accordingly they became the owner of the lands and have been possessing the land by growing paddy etc.

That the Defendants have no rights, title and possession over the land, inspite of this the Defendant No. 1 and 3 to 7 conjointly are attempting to dispossess the Plaintiffs from the suit land on the false claim of title on this land. They have further claimed that they have purchased the land from the Defendant No. 2. The Defendant No. 2 had no right title and possession in the suit land and as such the deeds of transfer are collusive, false etc. That the above stated illegal activities of the Defendants have constituted the cause of action of this suit within the jurisdiction of this Court which has arisen from Aug, 1986 and other subsequent dated Therefore, the Plaintiff prays for passing a decree for declaration of Plaintiffs title in the land holder''s right in the suit land and confirmation of possession (P. No. 3) and for temporary and permanent injunction restraining the Defendants from entering into the suit land and also from disturbing the Plaintiffs in their peaceful possession and for declaration that the alleged deeds of transfer are collusive, illegal and void etc.

The Defendant Nos. 1 to 7 submitted W/S and stated that there is no cause of action for the suit, that the suit is not maintainable, that the suit is not properly valued etc. That the averments made in paras 1 to 7 are denied by the Plaintiffs. The real facts of the case is that Md. Aklakur Rahman of village Kamalpur, Nalua gave settlement of some of his landed property to so many jotedats and answering Defendant No. 2 Arab Ali was one of them said Arab Ali took settlement of the suit land along with some other lands from Aklakur Rahman Choudhury and Aklakur Rahman Choudhury along with his family left India in the year 1967 immediately after exchanging of his property of his wife vide exchange deed being No. 7461/67 with the father of the answering Defendant No. 1 Shri Khitish Chandra Choudhury, the Plaintiff No. 1 to 4 and other members of their joint family and subsequently he, the answering Defendant No. 2 sold out the suit land to the answering Defendant No. 1 vide registered deed of sale aeing No. 6396/83 duly execute by the answering Defendant No. 2 in favour of the answering Defendant No. 1 on 8/6/83 and the answering Defendant No. 2 delivered the khas possession of the suit land to the answering Defendant No. 1 Shri Khemankar Choudhury on execution of the said deed of sale. The Defendant No. 1 since the purchase while possessing the suit land sold out 3 Bighas of land to the answering Defendant No. 4 Tesai Ali vide registered deed No. 1516/85 and 3 Bighas of land to the answering Defendant No. 2 Shri Kalyan (P. No. 4) brata Dev vide registered deed No. 191/86 and 2 bighas of and to the answering Defendant No. 5 Harendra Chandra Dutta vide registered deed No. 638/86 out of the suit land under their respective aforesaid deeds of sale. Further the said answering Defendants too executed ekrarnama in favour of the answering Defendant No. 1 with the condition that the reconvey the land to the answering Defendant No. 1 on getting back the consideration money from the answering Defendant No. 1 and answering Defendant No. 1 also sold out 1 poa of land out of the suit land to one Patal Chandra Deb and Ors. vide deed of sale on 13.2.85. The remaining portion is still in possession of the answering Defendant No. 1. Further it is to be mentioned that Akalkur Rahman issued necessary farags to the Defendant No. 2 and the said Defendant No. 2 could not preserve all the farags in respect of the suit land and save and except one of the said farags which was returned to the Defendant No. 1 at the time of transfer of the suit land being No. 6396/83, due to great flood devastation in the year 1997 by which he was severly affected and Arab Ali lost some other properties on that occassion.

That Md. Ajkakur Rahman was not in possession of the suit land at the time of execution of the deed of exchange No. 7447/ 67 executed in favour of the Plaintiff No. 1 to 4 and their late mother and he has got no right to transfer the suit land in the above manner. The final Khatian No. 437 in respect of the suit land is a false and collusive document which was obtained by said Aklakur Rahman in collusion with the settlement staff and illegally inserted the suit dags therein. That the deed of exchange No. 7447/67 is a false, collusive and (P. No. 5) illegal document. The Plaintiff Nos. 1 to 4 and their late mother have got no sight to transfer the property which was at Sylhet town at Bangladesh. In the exchange deed the property which was illegally exchanged vide the deed of exchanged belonged to the father of the answering Defendant No. 1 Khitish Ch. Choudhury and the Plaintiff Nos. 1 to 4 and some other members of their family. The Plaintiff Nos. 1 to 4 and their late mother were not the exclusive owner of the same. The right title of the said property was disputed in T.S. No. 115/67 in the Court of 2nd Sub-Judge, Sylhet which was filed by late Kali Kumar Choudhury and Ors. on being aggrieved by the requisition of the said property by land acquisition case No. 8/ 66-67 Lately the suit was dismissed on 10/2/69 in view of the fact that the Plaintiffs and their mother have got no legal right to exchange of the said property vide the said illegal deed of exchange No. 7447/67 and the same has got no legal force at all. Only to harass the Defendant No. 1 out of enmity and family disturbances the father of the Defendant No. 1 with Plaintiffs and Ors. the Plaintiffs have instituted the suit and impleaded other answering Defendants. Hence the suit is liable ") be dismissed with compensation.

The learned Asstt. District Judge decreed the suit, T.S. No. 33/86. On appeal, Title Appeal No. 2/91 ,the learned District Judge took up for consideration the question as follows:

(Page 33 of Memo) Did the Plaintiff No. 1 to 4 and their mother vide exchange deed No. 7447(Ext. 1) derived any title to the properties of Schedule No. 1 thereto which is the suit land? The learned District Judge found as admitted by parties that before exchange this land was acquired by the State of Assam in 1964 by the Assam State Acquisition of Zamindaries Act and the land vested in the State of Assam in 1964 i.e. from 14th April, 1964 and the exchange was in 1967 vide Ext. 1 and as such by such exchange Plaintiffs did not acquire any right to the land. Regarding possession of Plaintiffs it was found that Aklasur or the Plaintiffs were not in possession. The acquisition was known to the parties and as such the deed of exchange gives the right to receive the compensation money to the Plaintiffs. No possession was delivered to the Plaintiffs on execution of the deed of exchange. I have,therefore, no hesitation in holding that the Plaintiffs-Respondents could Tvot prove their possession of the suit land and the learned Trial Court seriously erred in granting decree confirming possession of the Plaintiffs over the suit land. Coming to the question as to whether the Plaintiffs were entitled to seek declaration that the deeds of transfer, (page 38) if any, standing in the names of the Defendants are collusive, illegal, void and create no title to the suit land, "suffice if to say there that the Plaintiffs having failed to prove their title, to as well as possession of the suit land, the Plaintiffs were not at all entitled to any such declaration as were sought by them." Accordingly the appeal was allowed. Hence, this Second Appeal.

Facts of Second Appeal No. 79/1994 Plaintiffs'' case in brief is that the land described in the schedule of the plaint originally belonged to Md. Aklahur Rahman Choudhury of village Nahea of former Cachar District, now in Karimganj District and the said Aklahur Rahman Choudhury was in actual possession of this land along with some other lands in assertion of his maliki right which was subsequently converted into the land holder''s right. That the Plaintiff Nos. 1 to 4 and their late mother Priyatama Choudhury had some landed properties and houses in Zindabazar of Sylhet Town in the district of Sylhet, the then East Pakistan now Bangladesh and both Aklakur Rahman on the one part and the Plaintiffs and their deceased mother on the other part mutually exchanged their properties and accordingly a deed of exchange being No. 7447 was registered by the parties on 15.9.67 in Sub-Registrars office, Karimganj. By virtue of the aforesaid deed of exchange , the Plaintiffs and their late mother got the properties of Aklahur Rahman described in the schedule of the plaint alongwith other lands with actual possession therein and Ailakur Rahman got the properties of the Plaintiffs left in the East Pakistan as mentioned in Schedule Nos. 223 of the deed of exchange.

On the death of Priyatoma Choudhury her share in the properties got by exchange devolved on her sons, daughters and other heirs and all the heirs had been jointly possessing this land by growing paddy and other products etc.

The Defendant No. 1 is the nephew while the Defendant No. 2 is the cousin brother of the Plaintiff Nos. 1 to 4 and relative to Ors. . The Plaintiff as well as Defendant Nos. 1 and 2 had some joint properties other than the suit properties. Regarding their joint properties some disputes have arisen since few years back owing to the illegal transfer of the shares of Ors. co-sharers and mis-representation of the money and use fructs of the joint properties by the Defendant No. 1. It has come to the notice of the Plaintiffs that the Defendants No. 1 and 2 being in collusion with all other Defendants who are their party men jointly, are attempting to disposses the Plaintiffs from the suit land. The Defendant No. 3 and the rest are preferring illegal claims on the suit properties on the plea of some purchase deeds allegedly executed by the Defendant Nos. 1 and 2. The Defendant Nos. 1 and 2 had no right, title and interest in the properties. Thus, so-called transfer, if any,made by the Defendant Nos. 1 and 2 in favour of other Defendants are void illegal etc and cannot confer any title to the vendees, thus all the Defendants should be restrained by an order of injunction both temporary and permanent not to disturb the possession of the Plaintiff in the suit properties.

The above stated illegal attempts of all the Defendants to disposses the Plaintiff from the suit land have constituted the cause of action of this suit which has arisen on and from the middle part of the month of August, 1986 when the Defendants jointly interferred with the exercise of possession of the Plaintiff and when the lands were being prepared by the Plaintiffs for planting the paddy and on other subsequent days. Hence the suit for a Decree declaring title of the Plaintiff in land holders right in the suit land mentioned in the plaint and for conformation of their possession and for temporary and permanent injunction and other reliefs as per prayers of the plaint.

The Defendants case in brief is that there is no cause of action for the suit, that the suit is not maintainable, that the suit is barred by limitation etc. That the description of the suit land is vague. The Plaintiff must have stated the quantum of land in Dag No. 740 a portion of which is situated in the Western boundary of the suit land and the answering Defendant is ejmali possession of the said portion of land in the Western boundary of the suit land. That the averments made in paras, 1,2,3,4,5,6 and 7 are not admitted as true and correct by the Defendants. The answering Defendant does not admit the statement made in para 8 of the plaint as true and correct.

The real fact of the case that the predecessesor of the plaint in ejmali with the answering Defendant and their other joint co- sharers were the owner of the same properties situated at Sylhet and while they were possessing the said property the land acquisition officer, Sylhet vide Re acquisition Case No. 8/67-68 requisition the said property and on being aggrieved by the said requisition late Kali Kumar Choudhury and Ors. instituted title suit No. 115/67 in the Courts of 2nd Sub-Judge, Sylhet for declaration that the order of requisition is illegal, void etc but ultimately the suit was dismissed on 10.2.89 and during the pendency of the said title suit in which the right title and possession of the Plaintiffs, predecessor, the answering Defendant and all other members at Sylhet town were disputed the Plaintiff No. 1 to 4 and their late mother behind the back of the answering Defendant in collusion with Aklakur Rahman illegally exchanged the said property vide deed of Exchange No. 7447 of 1967. As per law and equity, the Plaintiff No. 1 to 4 and their mother cannot exchange the said property at Sylhet with the suit land. Further by the alleged Deed of Exchange, the Plaintiff have not acquired any right, title and possession into the suit land. Moreover, all the land under the said exchange Deed was not in the possession of Aklakur Rahman at the time of execution of the said Deed of Exchange. The Deed of Exchange being No. 7447/67 is illegal, void etc.

That the answering Defendants and some of the Plaintiff and other members exchanged their properties of East Pakistan with the properties of Aklakur Rahman and his wife Begum Abeda Khatun Choudhury situated at Nalua made in India vide the deed ofExchange being No. 7461/67 inKarimganj Sub-Registry office and thereafter said Aklakur Rahman left India alongwith his family.

That after retirement from service the answering Defendant since 1970 has been managing the property exchanged under the said exchange deed No. 7461/67 and has been staying at Nalua and came to know about the said illegal execution of deed of exchange No. 7447/67 by the Plaintiff Nos. 1 to 4 and their late mother and claimed right over the said land but the Plaintiffs denied the right, title of the answering Defendant over the suit land. But as the Plaintiffs were never in possession, some of the local people attempted to take possession of the suit land. The answering Defendant resisting them in the year 1971 and since then the answering Defendant has been possessing the said land in assertion of all right and as the suit land was lying land the answering Defendant by filling some earth developed the land has been producing paddy. In the above manner since 1971 the answering Defendant has been possessing the land exclusively to the full knowledge of the Plaintiffs and Ors. and thereby the answering Defendant has acquired good title over the suit land. Further the Defendant Nos. 2,3,4,5 and 6 have been impleaded in this suit with some malafide intention by the Plaintiffs. The aforesaid Defendants have got no right, title or interest over the suit land. Moreover the Defendant No. 2 is the cousin brother of the Plaintiffs and Defendant Nos. 3,5 and 6 are the party men of the Plaintiffs only to harass the answering Defendant they have filed this false suit with some false plea in collusion with Defendant Nos. 2,3,5 and 6 and the Plaintiffs have also filed Anr. suit alongwith Ors. being Title suit No. 32 /86 which is pending before the Hon''ble High Court.

The learned Assistant District Judge decreed the suit T.S. No. 34/86. On appeal, T.A. 1/91 the learned District Judge allowed the appeal holding that on the date of exchange, vide Ext. 2, the land was already acquired by the State of Assam (as indicated above) and Aklasur had no right to exchange in 1967. Notification of vesting was already issued. It was further found that the suit land was not properly described. "Because of what have been discussed above I have absolutely no doubt in my mind that the Plaintiffs have not come with sufficient clarity and failed to properly describe and delineated the suit land and on such vague schedule, no effective decree could have been passed, or ought not to have been passed by the learned Trial Court "Accordingly, the appeal was allowed. Hence this second appeal.

Sri B.K. Goswami, learned Senior Advocate for the Appellants vehemently urges that the question of acquisition of the land and vesting of it was not pleaded in the written statement, there was no issue on this, even it was not taken as a ground in the Memo of Appeal, and the learned District Judge took up this point at the time of hearing of the appeal, and this is an error of law and procedure. On this ground alone the appellate judgment is liable to be set aside and quashed. He relies on J. Jermons Vs. Aliammal and Others, and he relies on para 31, which is quoted below:

It may be noted here that there is a fundamental difference between a case of raising additional ground based on the pleadings and the material available on record and a case of taking a new plea not borne out by the pleadings. In the former case no amendment of pleadings is required whereas in the latter it is necessary to amend the pleadings. The Court/Rent Controller in its discretion with a view to do complete justice between the parties may allow a party either to raise additional ground or take a new plea as the case may be, if the circumstances so justify like a plea based on subsequent events. Whereas in the former situation, the case can be disposed of on the material on record but in the latter case the pleadings will have to be amended and for that reason the parties have to be given reasonable opportunity to file further pleadings and adduce necessary evidence.

Sri Lahiri joins in issue with him and submits that it is a pure question of law and this plea was even admitted by the Plaintiffs as referred to in the judgments by District Judge. No prejudice was caused to the Plaintiffs. The Court proceeded on the basis of admitted materials.

Lord Denning in ''The Family Story, 1981, page 174'' pointed out" my root relief is that the proper role of a judge is to do justice between the parties before him. It there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid that rule or even to change it so as to do justice in the instant case before him." That is what has been done by the learned judge in the instant case, instead of being bogged down by the procedure and technicalities he proceeded on the basis of admitted pleas in the case, though that plea earlier was not taken up. The simple question was whether the land earlier vested in the State of Assam by the operation of the statute. The parties (Counsel) admitted it and court decided the matter on that basis. It is not the case that admission is factually incorrect. Even that argument was not advanced before this Court. So there can be no error on the part of the Judge to take into consideration a plea which was accepted as factually correct by both the sides, what will be the legal consequence of such a plea is a pure question of law and that was rightly considered by the learned Judge. Justice is the act of rendering what is right and equitable to the parties before the Court. Justice is the virtue by which the court gives to everyman what is his due. Even no substantial question of law has been framed that the finding of fact rendered by the Judge is perverse and or a patent error. The oft quoted proverb is "Right wrongs no man". So, this contention of Sri Goswami is rejected.

The Second question in Second Appeal No. 59/94 needs no discussion. As because the Court did not find the title of the Defendant, the question of decreeing the suit of the Plaintiff does not arise. The judge found no right title and interest of the Plaintiffs and as such rightly the suit was dismissed.

The two questipfls framed in other appeal i.e. Second,Appeal No. 79/94 are virtually same questions and do not require separate discussion.

Both the appeals are dismissed. No cost.