R.K. Rabidas and Others vs Shrinath Goala and Others

N.S. Singh, J.—The judgment and order dated 23.7.86 and 1.8.86 passed by the learned Asstt. District Judge No. 2, Cachar at Silchar in Title Appeal No. 150 of 1981 reversing the judgment and decree dated 6.8.81 and 14.8.81 passed by the Sadar Munsiff No. 2, Silchar in Title Suit No. 168 of 1979 is the subject matter under challenge in this Second Appeal. This appeal is preferred by the Plaintiffs as against the Defendants of the suit.

The facts of the case in a very short compass are as follows:

Originally, a suit was instituted by Smti. Lakpati Rabidas, now deceased, under Title Suit No. 168 of 1979 before the Court of Sadar Munsiff No. 2, Silchar, for declaration of her right, title, interest as well as confirmation of possession over the suit land by contending inter-alia, that the suit land having an area of 2 (two) bighas appertaining to Dag No. 404 of 2nd R.S. Patta No. 87 1/3 was purchased by the Plaintiffs predecessor Gurbin Rabidas and since then, she had been in possession of the same and, after the death of Gurbin Rabidas the original Plaintiff (wife of Gurbin Rabidas) became the original owner of the suit land by right of inheritance and after the death of the original Plaintiff, the present Plaintiffs who are the nephews of Gurbin Rabidas inherited the suit land and since then, they have been possessing the same. According to the present Plaintiffs, late Gurbin Rabidas, during his lifetime established a "Thola" of Sri Sri Kalimata on the suit land and the dead bodies of late Gurbin Rabidas and his wife, the original Plaintiff, were also buried in a portion of the suit land. It is also the case of the Plaintiffs that the present Defendants/Respondents herein attempted to dispossess the Plaintiffs from the suit land. Hence, the present suit for declaration of their title as well as confirmation of possession over the suit land.

The case of the Plaintiffs was contested by the Defendant Nos. 1, 2, 3 and 4 by filing written statement and contending inter alia that, the suit land appertains to R.S.Dag No. 143/999 corresponding to private garden Dag No. 262 and, the said R.S. Dag No. 143/999 have been carved out and thus covered under 2nd R.S. Dag No. 404. One Mahabir Goala purchased a big area of land from Silcoorie Garden malik by a registered Kabala and the garden authority prepared maps of different plots and delivered khas possession to Mahabir Goala alongwith the others. The land under Dag Nos. 143/999 corresponding to private Dag No. 262 is also part and parcel of the land so far purchased by the said Mahabir Goala from garden malik and that, the Defendant No. 1 purchased the said land under Dag Nos. 143/999 corresponding to private Dag No. 262 from Mahabir Goala for valuable consideration under a registered Kabala dated 29.1.51 and the Defendant No. 1 got delivery of khas possession of the suit land alongwith other land from his vendor and that, the Defendant No. 1 alongwith his three sons namely Defendant No. 2 to 4 constructed permanent home on one part of the purchased land and they planted bamboos, other trees and grew sungrass on the suit land and have been enjoying the usufruct thereof.

According to the Defendants, the late husband Gurbin Rabidas purchased some land under Dag No. 408/409/419 but he sold some of the purchased land to Ram Krishna Rabidas and he also sold some of the land to Jitendra Kumar and Rajendra Kumar Pandey during his lifetime and, that the late Lakpati Rabidas, the original Plaintiff was also residing at the premises under 2nd R.S. Dag No. 408 and, as such, the Plaintiffs have no right, title or interest over the suit land.

On the basis of the pleadings of the parties, the learned trial Court framed as many as 9 issues for just determination of the real points in controversy between the parties. Those issues are quoted below:

Is there any cause of action?

Is the suit maintainable?

Is the suit barred by waiver, estoppel and acquiescence?

Is the story of partition true or correct?

Has the Plaintiff alleged right, title and interest over the suit land?

Is the description of suit land true and correct?

Is the Plaintiff entitled to injunction?

Is the Plaintiff entitled to confirmation of possession?

To what relief, if any, the Plaintiff entitled?

After hearing the parties, the learned trial Court decreed the suit of the Plaintiffs and declared their right, title and interest over the suit land by the judgment and decree passed in Title Suit No. 168 of 1979. Being dissatisfied with the judgment and decree of the learned trial Court, the Defendants preferred an appeal under Title Appeal No. 150 of 1981 in the Court of the Asstt. District Judge No. 2, Cachar, Silchar. The appeal was decided on 23.7.86 by the first Appellate Court thus, allowing the appeal of the Defendants and setting aside the judgment and decree of the learned trial Court. Being aggrieved by the judgment and decree of the learned first Appellate Court, the present Plaintiffs preferred this Second Appeal.

At the time of the admission of this Second Appeal on 19.8.86, this Court had formulated the following substantial questions of law:

Whether the learned Appellate Court is not justified to hold that the Plaintiffs could not prove their title in respect of suit land on the basis of Ext. 2 (Sale Deed) and Ext. 1 (Jamabandi) and if so, whether the judgment of the Appellate Court is liable to be set aside.

At the hearing, Shri J.P. Bhattacharjee, the learned senior counsel for the Plaintiffs/Appellants, contended that there are enough materials on record establishing the factum of purchase of the suit land by the Plaintiffs, predecessor and these facts had been proved by the Plaintiffs with the supporting documentary evidence, namely Ext. 1 (Jamabandi) and Ext. 2 (conveyance Deed). The suit land originally belonged to the Plaintiffs predecessor and thus, the Plaintiffs duly inherited the same and became the owners of the suit land and as such, the first Appellate Court erred in law in holding that the Plaintiffs do not prove their case and the Ext. 1 does not prove that the Plaintiffs predecessor purchased the suit land measuring 2 bighas in the said Dag No. 404. Supporting the case of the Plaintiffs/Appellants, the learned senior counsel argued that the learned trial Court rightly appreciated the evidence on record and found that the Plaintiffs have full right, title and interest over the suit land and, accordingly, the suit was decreed and as such, there is no infirmity or illegality in the judgment and decree of the learned trial Court.

According to Shri J.P. Bhattacharjee, the learned senior counsel, the learned first Appellate Court was not justified in discarding the evidence of PW No. 3 on the ground that he was ignorant of the factum of purchase and delivery of possession when the said witness specifically deposed that the Plaintiffs are in possession of the suit land and, as such, the lower Appellate Court misappropriated the evidence on record. It is also further contended by Shri Bhattacharjee, that the first Appellate Court ought to have affirmed the judgment and decree of the learned trial Court.

On the other hand, Shri N.M. Lahiri, learned senior counsel assisted by Shri G.N. Sahewaila, the learned Counsel appearing for the Respondents contended, that the Plaintiffs had utterly failed to prove their case inasmuch as there is no documentary evidence to establish and prove the factum of their ownership over the suit land. The document, Ext. 1 and Ext. 2 so far produced and exhibited by the Plaintiffs do not support their case. Rather, it supports the case of the Defendants/Respondents. According to the learned Counsel for the Respondents, the learned trial Court had misappropriated the evidence on record and the decree was passed illegally as there is no supporting evidence for proving the case of the Plaintiffs. Considering these circumstances and evidence on record, the first appellate Court rightly set aside the judgment and decree of the learned trial Court, the learned Counsel for the Respondents contended.

Now, this Court is to examine and see as to whether the learned Appellate Court is not justified to hold that the Plaintiffs could not prove their title in respect of the suit land on the basis of Ext. 2 (Sale Deed) and Ext. 1 (Jamabandi) and if so, whether the judgment and decree of the first Appellate Court is liable to be set aside.

It is an admitted position, that the suit land measures 2 bighas and according to the Plaintiffs, the suit land appertains to Dag No. 404 of 2nd R.S. Patta No. 87 1/3. It is also an admitted fact that the land under 2nd R.S. Patta No. 87 1/3 covered by Dag No. 404 measures 42 bighas. There is also no evidence on record for establishing the fact that, on which portion or part of the entire land under Dag No. 404, the suit land having an area of 2 bighas and some odd land falls even though the names of both the parties have been mutated and entered in the said patta. On perusal of the document marked Exts. 1 and 2, there is no material on record to establish the fact that Plaintiffs'' predecessor purchased the suit land measuring 2 bighas under Dag No. 404. Similarly, Ext. 2 also does not show that Plaintiffs'' predecessor purchashed 2 Bighas of land under Dag No. 143/999 and there is no material to establish the fact that Dag No. 143/999 corresponds to dag No. 404.

I am also of the view that there is also no documentary evidence to prove that the suit land originally appertains to garden Dag No. 262 which corresponds to R.S. Dag No. 143/999 and from this Dag, the suit land under Dag No. 404 has been carved out.

I have perused the judgment and decree passed by the learned trial Court as well as the judgment and decree passed by the first appellate Court. On further perusal of the available evidence and materials on record, I am of the view that, the first Appellate Court made an exhaustive finding and it dealt with the matter exhaustively and gave a reasoned finding on the related issues. The most important related finding and observation made by the first Appellate Court is reproduced as hereunder.

Except the oral testimony of both the parties there is no documentary evidence to prove that the suit land originally appertained to garden dag No. 262 which corresponds to R.S. Dag No. 143/999 and from this dag the suit dag No. 404 has been curved out. Even if it is presumed for argument''s sake on the basis of the versions both parties that the suit dag No. 404 has been curved out from Dag No. 143/999, the title of the Plaintiff over the suit land cannot be ascertained on the basis of the evidence adduced by them. Ext. 1 is the certified copy of jamabandi of 2nd R.S. Patta No. 87-1/3 which shows that dag No. 404 is having an area of 42 bighas and odd land and the names of both the parties have been mutated in this patta. Ext. 1 does not prove that the Plaintiffs'' predecessor purchased the suit land measuring 2 bighas in dag No. 404. Ext. 2 is the deed of conveyance by which the Plaintiffs'' predecessor purchased 8B. 2 K. 3 Ch. of land in dag No. 143/999 and in five other dags. Ext. 2 does not show that the Plaintiffs'' predecessor purchased 2 bighas of land in dag No. 143/999. It does not also prove that the Plaintiffs'' predecessor purchased the suit land. There is also no other document to prove that dag No. 143/999 corresponds to dag No. 404. Even if it is presumed that dag No. 143/999 corresponds to suit dag No. 404, it can be seen from Ext. 2 that vendor of Defendant No. 1 also purchased land in dag No. 143/999. Ext. 2 also clearly shows that Defendant No. 1''s vendor purchased 158 B 9 Kathas of land in many dags including the alleged suit dag. Ext. 1 proves that the Plaintiffs'' predecessor as well as Defendant No. 1''s vendor purchased land in the suit patta which has many dags including suit dag No. 404. Neither Ext. 1 nor Ext. 2 prove that the Plaintiffs'' predecessor purchased 2 bighas of land in the suit dag which is the present suit land. The tend purchased by the Plaintiffs'' predecessor in dag No. 143/999 is not described by specific boundary in Ext. 2. So on the basis of Ext. 2, it cannot be held that the land purchased by the predecessor of the Plaintiff attracts the present suit land.

It is well settled that High Court is not empowered to interfere with the finding of facts arrived by the first Appellate Court on the basis of the available materials on record, in Second Appeal, on the ground of its being erroneous unless there is substantial error or defect in the procedure prescribed by law; which may have produced error or defect in the decision of the case upon merits. In the instant case, the learned first Appellate Court gave a reasoned finding to the effect that, there is no documentary evidence to establish the fact that the Plaintiffs'' predecessor was the absolute owner and possessor of the suit land and, after the death of their predecessor, they inherited the suit land and became owner of it. Hence, there is no substantial error of defect in the procedure prescribed by law which may have caused error or defect in the decision of the present case arrived by the first Appellate Court. In other words, there is no infirmity or illegality in the impugned judgment and decree of the first Appellate Court. Rather, the first Appellate Court rightly set aside the judgment and decree of the learned trial Court.

For the reasons and observations made above, this Second Appeal is devoid of merit and accordingly, it stands dismissed, thus affirming the judgment and decree of the first Appellate Court. No cost.