PHANIDHAR KALITA Vs SARASWATI DEVI
Bench: T.S. THAKUR,C. NAGAPPAN
Case number: C.A. No.-002924-002925 / 2014
Diary number: 20571 / 2008
Advocates: ABHIJIT SENGUPTA Vs
KAILASH CHAND
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NON-REPORTABLE
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.
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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
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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.
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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
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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
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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
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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.
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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.