IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.2924 - 2925 OF 2014
Phanidhar Kalita
.. Appellant(s)
-vs-
Saraswati Devi & Anr. .. Respondent(s)
J
U D G M E N T: C. NAGAPPAN, J.
1. These appeals are
preferred against the judgment and decree dated 23.3.2007 in R.S.A. No.116 of
2000 and the order dated 1.4.2008 in Review Petition no.1 of 2008 passed by the
learned single Judge of the Guwahati High Court, whereby the High Court has partly
allowed the Regular Second Appeal and dismissed the Review Petition, both filed
by the appellant herein.
2. The appellant/plaintiff herein filed the Title
Suit no.11 of 1987 against the respondent/defendant no.1 herein in the Court of
Civil Judge (Junior Division) no.2, Mangaldoi for declaration of title in
respect of 1 katha 16 lechas of land described in schedule-1 to the plaint
covered by Dag no.52/575 of P.P. no.960 situated in village Mangaldoi gaon and
also for recovery of khas possession of the suit land described in schedule-2,
which is a part of the land in schedule-1 by demolishing the structure put by
respondent no.1 herein/defendant no.1 and also for permanent injunction
restraining the respondents herein/defendants from raising new constructions on
the suit land. The case of the appellant/plaintiff is that he purchased 1 bigha
of land, mentioned in schedule-1, from one Mukta Ram Saikia by Exh.4 registered
sale deed dated 12.7.1977 and took possession of the same and got mutation of
his name in the revenue record and obtained patta Exh.5 also. It is his further
case that the respondent no.1/defendant no.1 also purchased 1 bigha of land from
the original common owner Bati Ram, which is the adjacent northern portion of
the appellant/plaintiff’s land in schedule-1 and in November, 1978 respondent
no.1/defendant no.1 constructed a thatched house by encroaching some portion of
the appellant/plaintiff’s land in schedule-1 and on measurement, it is found
that respondent no.1/defendant no.1 had encroached an extent of 1 katha 16
lechas which is described as schedule-2 in the plaint.
3. Respondent no.1/defendant no.1 filed written
statement stating that she purchased 1 bigha of land from Bati Ram on 4.8.1955
and constructed a thatched house and she has not encroached on the suit land as
alleged by the appellant/plaintiff.
4. Respondent no.2 herein/defendant no.2
impleaded himself in the suit and in his written statement he took the
identical plea raised by the respondent no.1/defendant no.1 in her written statement.
He further asserted that he never sold the suit property to the
appellant/plaintiff and the sale deed dated 12.7.1977 is a forged one and he
also filed a counter claim seeking declaration of title to the suit property
and recovery of possession of the same from the appellant/plaintiff.
5. The said counter claim was resisted by the appellant/plaintiff
by filing a written statement.
6. The trial Court framed 17 issues and the
appellant/plaintiff examined himself and examined 5 other witnesses and marked
22 documents on his side. The respondents/defendant no.1 and 2 examined
themselves and examined 4 other witnesses on their side. The Trial Court on
consideration of the oral and documentary evidence dismissed the suit as well
as the counter claim. The appellant/plaintiff preferred an appeal against the
dismissal of the suit in Title Appeal no.8 of 1998 before the Civil Judge (Senior
Division), Darrang at Mangaldoi and the respondent no.2/defendant no.2
preferred a cross objection and the Lower Appellate Court dismissed both on
contest. The appellant/plaintiff preferred Second Appeal in R.S.A. no.116 of 2000
and the Guwahati High Court held that the appellant/plaintiff had title to the
suit property in schedule-1 and partly allowed the appeal. The
appellant/plaintiff herein filed Review Petition no.1 of 2008 stating that
since the main relief had been granted, the consequential relief for khas possession
of schedule-2 property ought to have been granted to him. The High Court
dismissed the Review Petition. Challenging the rejection of the relief of
recovery of khas possession of schedule-2 property and the relief of permanent
injunction in the Judgment as well as Review, the appellant/plaintiff has preferred
the present appeals to this Court.
7. The learned counsel appearing for the
appellant submitted that the High Court held that the findings of the Courts
below with regard to the validity of sale deed of the appellant/plaintiff was
perverse and allowed the Second Appeal in part but erred in not granting the
other reliefs prayed for by the appellant/plaintiff in the suit namely recovery
of khas possession of schedule-2 property and permanent injunction, though it
had framed substantial questions of law with regard to them. We also heard the
learned counsel appearing for the respondents.
8. The appellant/plaintiff herein has prayed for
declaration of his title to the suit property in schedule-1 and also for recovery
of khas possession of the land described in schedule-2 which is part of land in
schedule-1 by demolishing the structure put by the respondent no.1/defendant
no.1 herein and also for permanent injunction restraining the
respondents/defendants herein from putting up new construction at the suit
land. By concurrent findings, the Trial Court and the Lower Appellate Court
dismissed the entire suit. The High Court admitted the Second Appeal preferred
by the appellant/plaintiff by framing the following substantial questions of
law :
“(i)
Whether the learned courts below were justified in holding that Ext.4 sale deed
was not proved, merely because the executant of the deed was not examined?
(ii)
Whether the learned courts below failed to consider some relevant materials
such as Ext.2, Ext.5 and whether non-consideration of such material has
vitiated the judgments?
(iii)Whether
the learned trial court was justified to brush aside the amin commissioner’s
report by observing that it was incomplete and biased?”
By
an elaborate judgment the High Court held that the findings of the courts below
that the appellant/plaintiff had failed to prove his registered sale deed dated
12.7.1977 are perverse and upheld the title of the appellant/plaintiff to the
suit property in schedule-1 and accordingly partly allowed the appeal by
setting aside the portion of the judgment and decree of the courts below in
that regard. In other words, the High Court answered the substantial question
of law no.1 only and omitted to answer the other two substantial questions of
law cited supra. The appellant/plaintiff pointed out the said omission by
filing Review in Review Petition no.1 of 2008. However, the High Court dismissed
it by holding that no ground is made out for Review.
9. The learned counsel for the
appellant/plaintiff contended that on appellant/plaintiff’s petition Amin
Commissioner was appointed to measure the land in possession of the appellant/plaintiff
as well as respondent no.1/defendant no.1 and the said Amin Commissioner was
examined as Court witness no.1 and the Courts below were not justified to brush
aside the Amin Commissioner’s report and decree ought to have been granted with
regard to the other reliefs prayed for by the appellant/plaintiff. Per contra
the learned counsel for the respondents/defendants contended that the Amin
Commissioner has not measured the whole of surrounded dags of suit land and his
report is incomplete, as rightly held by both the Courts below dealing on
factual matrix.
10.
We
carefully considered the rival contentions and the records. The title of the
appellant/plaintiff to the suit schedule-1 property has already been declared
by the High Court and that finding has become final. The Trial Court as well as
the Lower Appellate Court held that the Amin Commissioner has not measured the
dags falling north east-east west of the appellant/plaintiff’s land and the
respondent no.1/defendant no.1’s land. Whether schedule-2 is encroached
property of the respondent no.1/defendant no.1 as alleged by the appellant/plaintiff
has to be determined for adjudicating the other reliefs claimed in the plaint.
11.
In
the interest of justice, we deem it fit to remit the matter to the Trial Court
for fresh adjudication with regard to the reliefs of recovery of possession and
permanent injunction only.
12.
The
appeals are allowed and the impugned judgment and decree of the High Court,
declining the reliefs of recovery of khas possession of schedule-2 property and
permanent injunction, are set aside and the matter is remitted to the Trial
Court for fresh adjudication with regard to the said reliefs only and the
parties are permitted to adduce evidence and the Trial Court after adjudication
shall pass a comprehensive decree in respect of all the reliefs claimed in the
suit. No costs. Since the title suit is of the year 1987 the Trial Court shall
endeavour to dispose of the same as expeditiously as possible preferably within
a period of six months from the date of receipt of records.
………………………….J.
(T.S. Thakur)
…………………………J.
(C. Nagappan)
New
Delhi;
March 14, 2014.
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