Title Suit No. 35 of 2005 Page-1 - Welcome To …tinsukiajudiciary.gov.in/source/judgement/2014/1january...Title Suit No. 35 of 2005 Page-2 THE CASE OF THE PLAINTIFF 2. The plaintiff

Title Suit No. 35 of 2005Page-1

HIGH COURT FORM NO. J(2)HEADING OF JUDGMENT IN ORIGINAL SUIT

PRESENT: Md. N. A. Laskar, AJS. Munsiff No.1, Tinsukia, District. Tinsukia, Assam.

On this 20th day of January, 2014

Title Suit No. 35/2005.

SMTI. TIRUMATI BAI GARHW/O. Late Rup Narayan garh,Resident of Makum Town,P.O. Makum Junction.Dist. Tinsukia, Assam…………………………..PLAINTIFF.

Versus

SRI. SURAJ PRADHANS/O. Lt. Lekh Ram Pradhan,Resident of Makum Town,P.O. Makum Junction.Dist. Tinsukia, Assam…………………………….DEFENDANT.

This suit coming on final hearing on 07/01/2014 in

the presence of Md. N. A. Laskar, Munsiff No.1, Tinsukia, and

1. Sri. B. B. Yadav, and2. Sri. N. Prasad, Ld. Advocates for the Plaintiff.

3. Sri. B. Deb, Ld. Advocate for the defendant.

And having stood for consideration on this day the

court delivered the following Judgment:-

JUDGMENT

1. This is a suit for declaration of right, title and

interest of the plaintiff over the suit land, recovery of

possession, cancellation of mutation and for permanent

injunction along with other relieves.


THE CASE OF THE PLAINTIFF

2. The plaintiff stated in the plaint that she is the

absolute owner of the land mentioned in the schedule–A of the

plaint, which she inherited from her husband (Lt. Rup Narayan

Garh), who died in the year 1980 and her name, has been duly

mutated in the record of rights. The plaintiff further stated that

she is in possession of the Schedule-A land by way of

construction of house and paying the land revenue regularly. It

is also stated in the plaint that the defendant being the

neighbour of the plaintiff trying to grab the land of the plaintiff

and in the year 1997 the defendant filed a petition before the

Makum Town Committee stating thereon that the plaintiff has

expired and thereby got transferred the holding number in his

name. The plaintiff further stated that she filed petition before

the Deputy Commissioner, Tinsukia and accordingly the Makum

Town Committee corrected the record. The plaintiff further

stated that in the month of August-September/2009 the

defendant at the time of construction of a commercial complex

over his own land also trespassed and forcefully take

possession of the Schedule-B land in spite of protest and

objection of her. The plaintiff further stated that she filed

complaint before the Makum Town Committee, Deputy

Commissioner, Tinsukia and also lodged FIR against the

defendant for such illegal act of trespass and forceful

occupation of Schedule-B land. The plaintiff further stated that

on some apprehension of foul play in the revenue record she

obtained the certified copy Jamabandi and found that the

defendant illegally got recorded his name as heir of Lt. Rup

Narayan Garh. The plaintiff further stated that on 18/11/2005

at 8 A.M., the defendant armed with deadly weapon alongwith

labourers started the digging of earth over the suit land for

construction of shop house measuring 8’ x 16’ and 10’ x 16’ by

closing the approach road of her house. The plaintiff further

stated that during the pendency of this suit the defendant

illegally also got mutated his name in the revenue record in


respect of the schedule-C land and by virtue of such illegal

mutation the defendant encroached over the land of the

plaintiff, renovated the structures and rented out the shop to

the different tenants. The plaintiff further stated that she

challenged the order of mutation but she was advised by the

revenue authority to seek relief in the civil Court. The plaintiff

further stated that the defendant has no right over the suit

lands and property and his occupation of the land and property

mentioned in the Schedule-B and Schedule-C of the plaint is

illegal. Hence the plaintiff turned up with this suit for

declaration of her right, title, interest etc.

THE CASE OF THE DEFENDANT

3. The defendant contested this suit by submitting

written statement. In the written statement the defendant

stated inter-alia that the suit is not maintainable; the plaintiff

has no right to sue; the suit is barred by the principles of

waiver, estoppel and acquiescence; the suit is false, fabricated

and vexatious one; the plaint is bad for want of proper

verification and there is no cause of action for the suit. The

defendant in the written statement admitted that Lt. Rup

Narayan Garh was the original owner of the Schedule-A land

with a small variation of quantum of land measuring 0.60

Lessas land and Lt. Rup Narayan Garh died on 1980. The

defendant disputed the legality, validity of the Jamabandi of

Patta No.150 and also denied the fact of inheritance of plaintiff,

the mutation of her name in the revenue record and the

construction of house by the plaintiff as it was made in twisted

manner. The defendant denied the alleged effort of grabbing

the land of the plaintiff and filing of the petition before the

Makum Town Committee in the year 1997 in respect of the

expiry of the plaintiff and the alleged illegal transfer of holding

in his name including the objection file by the plaintiff as well

as correction of the record by the Makum Town Committee. The

defendant also denied the allegation of trespass and forcible


occupation of the Schedule-B land on 08/09/2005 including the

allegation of damage of the boundary wall, latrine of the

plaintiff. The defendant also denied the visit of the plaintiff in

the office of the Makum Town Committee, filing of petition

dated 12/09/2005 by the plaintiff before the Deputy

Commissioner, Tinsukia and the institution of the FIR on

14/09/2005. The defendant also denied the apprehension of

the plaintiff in respect of foul play in the revenue record,

collection of copy of the Jamabandi on 12/09/2005 and the

discovery of the fact that he illegally got mutated name in the

revenue record. The defendant stated that after the demise of

the Lt. Rup Narayan Garh and his first wife Dimobai Garh, his

name has been entered in the revenue record as adopted son.

The defendant further stated that the plaintiff also preferred an

appeal before the Revenue Authority against the order of

mutation of the name of defendant but the prayer was rejected

on 23/08/2002 in Misc. Appeal No. 11/98. The defendant further

denied the allegation of construction of two shop house by way

of blocking the approach road of the plaintiff.

4. In the additional written statement the defendant

also denied the alleged illegality in respect of mutation of his

name regarding Schedule-C land. The defendant added that

after the due service of notice and on the basis of the report of

the Lath Mandal, the then Circle Officer, Doom Dooma vide

order dated 09/12/2005, in Mutation Case No. 71/2005-06

allowed the said mutation. The defendant further stated that as

his occupation over the suit land has been ascertained and

confirmed by the report of the Lath Mandal, the question of

illegality in mutation or forceful occupation does not arise. The

defendant further stated as per the land revenue regulation,

the civil court is not the proper forum to challenge the order of

mutation and barred under the provision of Section 154 of the

Assam Land Revenue Regulation Act, 1886. The defendant also

stated that he constructed house over the suit land prior to the


institution of this suit and the plaintiff is not entitled to any

relief over and part of the suit land.

5. The defendant further stated that the plaintiff is the

second wife of the Rup Narayan Garh and after the demise of

Rup Narayan Garh in the year 1980, the name of both wives of

Lt. Rup Narayan Garh (Dimobai Garh and the plaintiff) mutated

into the revenue record in respect of land measuring 02 Bigha

01 Katha 05 Lessas. The defendant further stated that Dimobai

Garh also expired on 26/08/1995 and the defendant being the

adopted son of Lt. Rup Narayan Garh and Lt. Dimobai Garh

acquired the share of property left by them by way of

succession and inheritance. The defendant stated that he has

been in exclusive possession of the suit land and his name duly

mutated in the record of rights. The defendant further stated

for the purpose of construction of the commercial premises

over the land measuring 10.50 Lessas he applied for mutation

of his name and the same was granted vide order dated

13/02/1997 passed by Circle Officer, Doom Dooma Revenue

Circle in mutation case No. 39/96-97. The defendant further

stated that the plaintiff preferred revenue appeal against the

said order but on 23/08/2002 the appeal was dismissed. The

defendant further stated that being the owner and as an

adopted son he constructed the commercial building over the

said land and let out to the different tenants. The defendant

denied the existence of any right of the plaintiff over the suit

land and prayed for dismissal of the suit with compensatory

cost.

ISSUES

6. In this suit, initially issues are framed on 28/03/2006

and after the amendment of plaint, the then Ld. Munsiff No.1

vide order dated 21/12/2009, framed as many as 9 (nine)

issues for determination of the suit. The issues framed on

21/12/2009 for determination of this suit are reproduced

hereunder:


1) Whether the suit is maintainable in law as in fact?

2) Whether the plaintiff has right to sue?

3) Whether there is any cause of action to the suit?

4) Whether the suit is properly valued?

5) Whether the

plaintiff is the absolute owner having right, title and interest

over the schedule-A land, of which the schedule-B and

schedule-C land is a part?

6) Whether the defendant has forcefully

dispossessed the plaintiff from the schedule-B and schedule-C

land?

7) Whether the defendant has the right, title, and

interest over the schedule A land or any part thereof?

8) Whether plaintiff is entitled for a decree as

prayed for?

9) To what relief/reliefs the parties are entitled to?

7. Both the sides in support of their pleadings adduced

evidence in this suit. Plaintiff side has examined 5 (five)

witnesses including the plaintiff. The PW-2 (Kalipada Gayan)

was not appeared to face the cross examination and my Ld.

Predecessor in office vide order dated 01/02/2011, take off the

evidence in chief of the PW-2 from the record. The defendant

side examined 4 (four) witnesses including the defendant in

support of their plea but the DW-2 failed to turn up for cross

examination and this court vide order dated 13/12/2013

dispensed with the cross examination of the DW-2 and his

evidence in chief has been expunged from the record.

ARGUMENT

8. The plaintiff side argued their part on 17/12/2013.

The defendant side sought adjournment on 16/12/2013,

17/12/2013, and 20/12/2013 on the various grounds. Finally,

the Ld. Advocate for defendant side argued their part on

21/12/2013 and 07/01/2014. On 07/01/2014, Ld. Advocate for

the plaintiff side also replied on some points raised by the


defendant side. From the pleadings of the parties and after due

consideration of the both documentary and oral evidence

available on the record, this court arrived at the issue wise

findings as follows:

DETERMINATION OF THE ISSUES,

DISCUSSION, DECISIONS AND REASONS THEREOF

9. Issue No. 5. Whether the plaintiff is the

absolute owner having right, title and interest over the

schedule-A land, of which the schedule-B and

schedule-C land is a part?

AND

Issue No. 6. Whether the defendant has

forcefully dispossessed the plaintiff from the schedule-B

and schedule-C land?

AND

Issue No. 7. Whether the defendant has the

right, title, and interest over the schedule A land or any

part thereof?

10. The total result or merit of the suit rests upon the

decision of the aforesaid three issues and hence all the three

issues are taken jointly. The plaintiff claimed her right and title

over the Schedule-A land in this suit. Ld. Counsel for the

defendant side during the course of argument submitted that

the plaintiff being the second wife of the Lt. Rup Narayan Garh

not entitled to any property and the defendant being the

adopted son of the said Rup Narayan Garh is entitled to inherit

the property left by Lt. Rup Narayan Garh and his wife Lt.

Dimobai Garh. On the Contrary, Ld. Counsel for the plaintiff

submitted that the defendant is no body to challenge the

status of the plaintiff and the plea of adoption raised by the

defendant is not substantiated according to the law and facts.

Ld. Counsel for the plaintiff side further submitted that there

must be reliable evidence to the fact that the marriage was

consummated after the commencement of the Hindu Marriage


Act, 1955 and the either party of such marriage may seek such

a relief before the court of Ld. District Judge and not in a civil

court of ordinary jurisdiction. Ld. Counsel for the plaintiff also

read out the Sec-11 of the Hindu Marriage Act, 1955 during the

course of argument.

11. Ld. Counsel for the plaintiff side referred the

following decisions in support his submissions:

(i) Hon’ble Supreme Court, in Kishori Lal Vs.

Mt. Chaltibai, reported in AIR 1959 SC 504.

(ii) Hon’ble Supreme Court, in Jai Singh Vs.

Shakuntala, reported in (2002) 3 SCC 634.

(iii) Hon’ble Orissa High Court, in Smti. Urmila

Dei and another Vs. Hemanta kumar Mohanta alias

Hemanta Mhanta and others, AIR 1993 Ori 213.

(iv) Hon’ble Orissa High Court, in Arjun

Banchhor Vs. Buchi Banchhor (dead) after him Jogi

Banchhor and others, AIR 1995 Ori 33.

12. Ld. Counsel for the defendant side also referred the

following decisions in support of his submissions:

(i) Hon’ble Supreme Court, in Smti. Yamunabai

Anantrao Adhav Vs. Anantrao Shivram Adhav and

another, reported in AIR 1988 SC 644,

(ii) Hon’ble Supreme Court, IN Rameshwari

Devi Vs. State of Bihar and others, reported in (2000) 2

SCC 431,

(iii) Hon’ble Supreme Court, in Jenia Keotin

and others Vs. Kumar Sitaram Manjhi and others,

reported in 2003 (2) SBR 424,

(iv) Hon’ble Supreme Court, in Bhogadi

Kannababu and others Vs. Vuggina Pydamma and

others, reported in 2006 (5 &6) SBR 260.


(v) Hon’ble Gauhati High Court, in Suraiya

Sultana Vs. State of Assam, reported in 2006 (Suppl.)

GLT 353,

(vi) Hon’ble Gauhati High Court, in Juginder

Paul Bagga Vs. Premi Devi, reported in 2007 (2) GLT

188.

13. Let us see, the evidence adduced by the parties in

support of their pleadings. PW-1, the plaintiff in her evidence in

chief testified the averments of the plaint. In cross examination

PW-1 admitted that prior to 10 years of her marriage Lt. Rup

Narayan Garh contracted the first marriage. PW-1 also

admitted that on 13/02/1997, the defendant mutated his name

in the revenue record. PW-1 also admitted that the original of

Ext-1 is with her and after institution of this suit she submitted

it before the Makum Town Committee. It appears that in Ext-1,

there is an endorsement of the Ld. Additional Deputy

Commissioner, Tinsukia, who forwarded the same to the

Executive Officer, Makum Town Committee and there is no

scope to be the original in the hand of the PW-1. PW-1 in her

cross examination admitted that the fact mentioned in Para

No.3 of her evidence in chief dated 09/08/2006 is not true but

in other occasion of her cross examination PW-1 stated that the

defendant dispossessed her on 08/09/2005. PW-1 in her cross

examination admitted that prior to her marriage if the

defendant was adopted by Rup Narayan Garh and Dimobai

Garh, it was not known to her, which does not mean that the

defendant was adopted prior to the marriage of PW-1. PW-1 in

her cross examination also admitted that she entered into

agreement to sell the land during the pendency of this suit but

the settled law is that an agreement to sell does not transfer

any right to proposed purchaser. PW-1 in her cross examination

dated 16/11/2010 admitted that she did not mentioned in her

plaint that she is the second wife of the Rup Narayan and she

was aware of the fact that Rup Narayan had another wife viz,

Dimobai Garh at the time of her marriage. PW-1 in her cross


examination admitted that she was dispossessed from 10.5

Lessas land in the year 2003, but the same is no stand or

support in the revenue record. PW-1 also admitted that she

preferred revenue appeal against the name of mutation of the

defendant and the same was rejected. PW-1 in cross

examination also admitted that animosity of the defendant

with her witness Kalipada Gayan and Gana Kanta Dutta.

14. PW-3, Sri. Joy Prasad Pradhan, deposed that plaintiff

is the married wife of Rup Narayan Garh and who is the only

heir and successor of Rup Narayan Garh. PW-3 further deposed

that the defendant is not the heir of Rup Narayan Garh. In cross

examination PW-3 admitted that after the death of Rup

Narayan he never visited the house and similarly he also did

not visit the house of defendant after the death of the father of

defendant. PW-3 in cross examination admitted that though the

defendant attended the rituals after the death of Rup Narayan

and Dimobai but he is not the son of them. Admittedly the

defendant is within the sapindha relationship of Rup Narayan

and Dimobai Garh and his attendance in funeral function is no

bar and such activity also does not change his status. The

demeanor of the said witness recorded in the evidence shows

that the PW-3 due to his old age and loss of memory failed to

respond properly to the answers in cross examination. PW-4,

Gana Kanta Dutta, in his evidence extended supported to the

case of the plaintiff but in cross examination he stated that

there are many landed property of the plaintiff and he knows

nothing except the property where he is residing. PW-5, Smt.

Radha Garh in her evidence also extended support to the case

of plaintiff but in cross examination admitted that there are

enmity in between her husband and defendant and the same

already reached up to the institution of criminal case and

conviction thereto.

15. DW-1 in his evidence in chief testified the

averments of the written statements. DW-1 in his cross


examination dated 02/04/2008 admitted that they are four

brothers and about 10-12 years ago they started living in

separate. DW-1 in cross examination admitted that after the

death of Rup Narayan Garh, the name of Dimobai Garh has

been mutated in his place in the revenue record. DW-1 also

admitted that in the year 1997 his name was mutated in the

revenue record in respect of 10.5 Lessas land as an adopted

son. DW-1 further stated that at the time of adoption the

person Saliram, Vijay Pradhan, Lt. Junial Pradhan and his parent

were present. DW-1 also admitted that in the voter list of 1985

and 1997 his father`s name is mentioned as Lekh Ram Garh.

DW-1 in his cross examination dated 19/11/2013 admitted that

his father bequeathed a plot of land by will in favour of him and

he also submitted petition for probate of the will vide Ext-8.

DW-1 further admitted in his cross examination that in the will,

in the petition of probate and in all his educational testimonials

the name of his natural father is mentioned and he started to

write the name of his adopted father just before of 5/6 years.

The said admission of the DW-1 speaks that he started to write

the name of his adopted father on or after the institution of this

suit. DW-1 further admitted that the schedule-B and

Schedule-C land mutated in his name by virtue of right of

adoption. DW-3, Brij Pradhan also extended support to the plea

of defendant in his evidence in chief. DW-3 in cross

examination admitted that the plaintiff has been residing in the

house of Rup Narayan Garh. DW-3 further admitted that he

cannot say the name of the priest who offered puja at the time

of adoption of the defendant and also cannot say whether any

document was prepared or not for the said purpose. DW-3

further stated that he cannot say the name of the person who

is/are in occupation of the landed property left by Lt. Rup

Narayan Garh. DW-4, Sri Ashok Pradhan, in his evidence in

chief also extended support to the case of the defendant in

respect of the plea of adoption but in cross examination the

said witness gave a fatal blow to the plea of defendant. DW-4

in his cross examination admitted that the defendant being the


eldest son of Lekh Ram Garh performed the funeral rituals on

the death of Lekh Ram Garh. DW-4 further admitted that the

defendant is residing in the house and land of his natural

father. It appears that DW-4 is the maternal uncle of the

defendant and brother in law of Lekh Ram Garh. The evidence

of the DW-4 and the admission of him in cross examination

speaks the fact that the at the time of death of his natural

father and till the date of his cross examination, the defendant

is within the family of his natural father and the plea taken by

the defendant that he all along living in the family of the Rup

Narayan Garh is appeared as doubtful.

16. In the case in hand, there is no relief claimed by the

parties in respect of marital status of the plaintiff and in the

written statement the defendant admitted the fact that in Para

No. 14 (a) of the written statement submitted on 22/02/2006.

The said Para of the written statement is marked as Ext-60(8)

in the cross examination of DW-1 (defendant). In the last line of

the Para No. 14 (a), the defendant admitted that after the

demise of Rup Narayan Garh (the original owner and

pattadhar) in the year 1980, the name of his both wives

(Dimobai Garh and the plaintiff) duly mutated in the record of

rights. Hence as per admission of the defendant and the

contents of Ext-60(8), the defendant was not in picture in the

year 1980 and the landed property left by Rup Narayan Garh

already inherited by the plaintiff along with first wife of Rup

Narayan Garh (i. e. Dimobai Garh). The facts incorporated

above, clearly reflected that in the year 1980, the existence of

the defendant as heir of Lt. Rup Narayan Garh was absent and

for which the revenue authority failed to incorporate his name

in the revenue record in place of Lt. Rup Narayan Garh as an

heir. DW-1 in his evidence deposed that after the demise of

both Rup Narayan Garh and Dimobai Garh, he became the

successor and acquired right over the entire land left by them

as adopted son. DW-1 also exhibited the mutation order dated

13/02/1997 as Ext-A (remarked). The contents of the Ext-A


speaks that in absence of any issue of Rup Narayan Garh and

Dimobai Garh and being the defendant as nephew and sole

heir, his name was mutated in respect of Schedule-B land. The

said document i. e. Ext-A is found contradictory to the own

pleading and plea of adoption is found absent in the said

document. Moreover, the document Ext-A was issued on

13/02/1997 and after the period of 17 years of the death of the

said Rup Narayan Garh, then how the property re-inherited

again by the defendant which already inherited by the plaintiff

and Dimobai Garh. The materials on record further reveals that

the defendant was not the only nephew of the Rup Narayan

Garh and Dimobai Garh and there are other brothers of the

defendant but the Ext-A is silent to the fact. The contents of

the Ext-A is also silent about the existence of the plaintiff,

which the defendant himself admitted in his written statement.

The PW-1 in her evidence also exhibited the series of revenue

receipt and the tax payment receipt of the Makum Town

Committee from Ext-11 to 47. PW-1 in her evidence also

exhibited the documents in support of her holding number etc.

over the suit land as Ext-48/49/50, which remained unrebutted

to the fact. It appears that, at the time of passing the order i. e.

the concerned authority was blind to the point of blind that the

property left by Rup Narayan Garh had been already inherited

by others and nothing left in the hand of the Rup Narayan

Garh, who is enjoying the heavenly peace at that time. Had

there been a necessity to mutate the name of defendant in the

revenue record as successor of Rup Narayan Garh, the entire

property left by him as already inherited by the plaintiff and

Dimobai Garh ought to have been restored first. Hence, the

mutation of name in the revenue record by virtue of Ext-A

cannot be held valid rather it is incompetency and illegality of

the concerned circle officer and his subordinate official to shift

from their own document available in their office.

17. Let us see, how far the mutation of the land

mentioned in the schedule-C in favour of the defendant is


correct to the proposition of law. DW-1 in his evidence exhibited

the mutation order dated 09/12/2005 as Ext-10 (Remarked as

Ext-J). Ld. Counsel for the plaintiff side submitted that the

plaintiff instituted this suit on 23/11/2005, the defendant

received the summons on 24/11/2005 and submitted the

written statement in this suit on 22/02/2006. It appears that,

the defendant after receipt of summons and before submitting

the written statement in this suit got mutated the Schedule-C

land in his name. On careful reading of the contents of the

Ext-J, it appears that on the basis of the petition submitted by

the defendant and by virtue of order dated 13/02/1997 passed

in Mutation Case No. 39/96-97 and order passed in Mutation

Appeal No. 11/1998 dated 23/08/2002, the Circle Officer, Doom

Dooma Revenue Circle allowed the mutation of Schedule-C

land in favour of the defendant. The defendant in the written

statement dated 22/02/2006 concealed the fact and when the

said fact brought by way of amendment then the defendant

submitted additional written statement on 21/10/2009, stating

that the said mutation was done legally and due compliance of

law. PW-1 in her evidence exhibited the certified copy of the

order dated 07/02/2003, wherein the Circle Officer, Doom

Dooma Revenue Circle passed an order in Mutation case No.

38/2002-2003 and granted mutation in favour of the plaintiff in

respect of the Schedule-A land as sole heir and successor and

the said and same circle officer again hold the defendant as

sole heirs and successor of Lt. Rup Narayan Garh and Dimobai

Garh. As discussed earlier, the order dated 13/02/1997, passed

in Mutation Case No. 39/1996-97 has no legal stand, the follow

up action either by way of revenue appeal or by way of

mutation on the basis of which cannot also hold good and valid

in the eye of law. PW-1 in her evidence also exhibited the order

dated 31/03/2007 passed by Ld. Addl. Deputy Commissioner as

Ext-59, wherein Ld. Addl. Deputy Commissioner observed that

the mutation in respect of the Schedule-C land was done

behind the back of the plaintiff and without any opportunity of

heard to the plaintiff. On that score alone, the mutation of


name of the defendant in respect of the schedule-C land could

not sustain. In Ext-59, it was also observed by the Ld. Addl.

Deputy Commissioner that all the three mutations in the

revenue record in respect of Schedule-A in favour of the

plaintiff, including the mutation of Schedule-B and Schedule-C

land in favour of the defendant are contradictory in respect of

the legal heir and the parties are directed to place their

grievance in proper forum.

18. The defendant admitted the status of the plaintiff as

second wife of the Lt. Rup Narayan Garh. The defendant

claimed the property of Rup Narayan Garh and Dimobai Garh

as adopted son. There are several pleas raised by the plaintiff

in respect of the validity of the adoption, rules in respect of the

adoption, severity of relation with the family of birth, ceremony

etc. Ld. Counsel for the defendant submitted rightly that there

is no issue in respect of determination of adoption but the

claim of property set out by the defendant is based on the

adoption and hence this court finds it necessary to discuss few

lines about it. DW-1 in his cross examination admitted that his

natural father bequeathed the will in favour of him and he also

made petition to get the will probated. The plaintiff side

exhibited the certified copy of the will as Ext-56 and the

certified copy of the petition of probate as Ext-8. DW-1 in cross

examination also admitted that the both Ext-8 and Ext-56

bears the name of his natural father viz, Lekh Ram Garh. Ld.

Counsel for the defendant side argued that as the defendant

was given in adoption some property also bequeathed in favour

of the defendant only amongst the all four sons. Ld. Counsel for

the defendant further argued that no property bequeathed in

favour of other sons except the defendant, which itself can be

taken into consideration that the defendant severed from the

family of his natural father and not inherited any property from

natural father except the property mentioned in the will. Ld.

Counsel for the defendant further added that as the will bear

the name of his natural father and as a follow up action the


defendant mentioned the name of his natural father in the

petition of probate. For clarity of the fact as submitted by the

Ld. Counsel for the defendant side, this court finds it necessary

to gone through the contents of the Ext-56. It appears that in

page No.3 of the Ext-56, the testator (the natural father of the

defendant) stated that the defendant and his daughter Sushila

Pradhan was living with him and looking after his welfare. The

testator also mentioned in the Ext-56 that the defendant

performed the last rites of his mother and maintaining the

testator and also desirous to bear the expense of the marriage

of his own sister viz, Sushila Pradhan. In the last Para of Page

No.2 of Ext-56, the testator also stated that except the

defendant the other son of him already living in separate from

him in other lands provided to them. The statement in respect

of the living of the defendant in his natural father’s family is

found supported by DW-4. Hence, the plea of the defendant

side that the will was made being the defendant was given in

adoption cannot hold any water. The Ext-56 was executed and

registered on 16/10/2001 and the Ext-8 was preferred before

the Ld. District Judge, Tinsukia on 13/03/2003. It is apparently

clear that since 13/03/2003, the defendant is the member of

his natural family and the son of the Lekhram Garh. The plea

that the will was executed in his name as son does not anyway

prevented the defendant to mention the fact that he was

adopted already by Rup Narayan Garh. Similarly, had the

defendant given in adoption, his natural father certainly

mentioned the said fact in Ext-56. The defendant side

challenged the right of the plaintiff over the property as a

second wife but the law also given some power to the second

wife in case of adoption. PW-1 in her cross examination

admitted that she was 16 years old at the time of her marriage.

PW-1 deposed in her evidence in chief on 19/04/2010 and

mentioned her age as 60 years. Apparently, the plaintiff was 18

years old at the time of adoption of the defendant in the year

1968 and if the said adoption was made without her consent,

the adoption was not valid. The explanation laid down in


section-7 of the Hindu Adoption and Maintenance Act, 1956, is

found very harsh to apply to the plea of defendant. The proviso

of the Sec-7 also speaks that there only three grounds, where

the consent of such wife is not necessary but it is not the case

of the defendant. The only reason placed on record that the

Rup Narayan Garh and Dimubai Garh has no issue and the

adoption was made in the year 1968 is not enough to

substantiate the fact that the defendant is an adopted son and

have acquired claim over the right of property. There is no

other evidence led by the parties in respect of other conditions

and requisites of a valid adoption and acquiring of the right

over the Schedule-A land. The mutation order exhibited by the

defendant is itself under challenge. The defendant side in his

pleading and evidence claimed that he constructed the house,

obtained permission from the Makum Town Committee but the

document Ext-50 submitted by the plaintiff reveals that the

holding number transferred in the name of the defendant

already cancelled on 03/10/1997. Hence, it is also apparently

incorrect that the defendant has any lawful existence over the

Schedule-B and Schedule-C land as per record. More so, the

defendant failed to submit any proof that he had a valid

authority over the land and construction thereto.

19. The aforesaid discussion postulates that the

defendant admitted the position that the plaintiff got mutated

her name in the revenue record along with Dimobai Garh as

heir and successor of the Lt. Rup Narayan Garh in the year

1980. The defendant for the first time came in picture in the

year 1997, i. e. after a period of 17 years. It is apparent from

the admission of the defendant that the plaintiff along with the

Dimobai Garh has been in possession of the Schedule-A land

along with other land since from 1980 to 13/02/1997. During

their occupation and possession the both Plaintiff and Dimobai

Garh sold land to Amulya Kumar Das and Kanilal Saha and the

Ext-4 is speaking to the fact. Now the defendant challenged the

ownership of the plaintiff over the Schedule-A land. Ext-1


(Remarked as Ext-A) and Ext-10 (Remarked as Ext-J) by which

the defendant set up his title is itself under challenge as per

the Ext-59, an order passed by the appellate authority of

revenue. It is an admitted fact that the plaintiff have no title

document and as she just got mutation in her name in the

revenue record upon the death of Rup Narayan Garh. The

principle Nemo dat quid non havet (no one can gives what he

has not got) is found applicable here. Sec-110 of the Evidence

Act, 1872 provides that when the question is whether any

person is owner of anything of which he is shown to be in

possession, the burden of proving that he is not the owner is on

the person who affirms that he is not the owner. In view of the

language of Sec-110 of the Evidence Act, 1972, the defendant

is under burden of double duty to discharge the fact that the

plaintiff was an encroacher or trespasses and he (defendant) is

the adopted son. But the defendant miserably failed to

discharge the burden lies upon him. The failure of the

defendant to cast any doubt about the mutation of the name of

plaintiff in the revenue record on and about 1980, the

challenge of the Ext-A and Ext-J by an appellate authority of

which both was granted itself placed the defendant as a

trespasser and having no stand. For more clarity of the position

of law, we must read the recent judgment of Hon’ble

Supreme Court, in The State of U. P. and others Vs. Star

Bone Mill and Fertiliser Co., reported in (2013) 9 SCC 319.

In the said decision the Hon’ble Supreme Court also discussed

the earlier decisions of own, (a) Gurunath Manohar

Pavaskar and Others. Vs. Nagesh Siddappa Navalgund

and Others, reported in AIR 2008 SC 901; (b) Nair Service

Society Ltd. Vs. K.C. Alexander and Others, reported in

AIR 1968 SC 1165 and (c) Chief Conservator of Forests,

Govt. of A.P. Vs. Collector and Others, reported in AIR

2003 SC 1805. The Para No. 13 of the said decision is

reproduced hereunder:

13. The principle enshrined in Section 110 of the Evidence

Act, is based on public policy with the object of preventing


persons from committing breach of peace by taking law into

their own hands, however good their title over the land in

question may be. It is for this purpose, that the provisions of

Section 6 of the Specific Relief Act, 1963, Section 145 of Code of

Criminal Procedure, 1973, and Sections 154 and 158 of Indian

Penal Code, 1860, were enacted. All the aforesaid provisions

have the same object. The said presumption is read under

Section 114 of the Evidence Act, and applies only in a case

where there is either no proof, or very little proof of ownership

on either side. The maxim "possession follows title" is

applicable in cases where proof of actual possession cannot

reasonably be expected, for instance, in the case of waste

lands, or where nothing is known about possession one-way or

another. Presumption of title as a result of possession can arise

only where facts disclose that no title vests in any party.

Possession of the Plaintiff is not prima facie wrongful, and title

of the Plaintiff is not proved. It certainly does not mean that

because a man has title over some land, he is necessarily in

possession of it. It in fact means, that if at any time a man with

title was in possession of the said property, the law allows the

presumption that such possession was in continuation of the

title vested in him. A person must establish that he has

continued possession of the suit property, while the other side

claiming title, must make out a case of trespass/encroachment

etc. Where the apparent title is with the Plaintiffs, it is incumbent

upon the Defendant, that in order to displace this claim of

apparent title and to establish beneficial title in himself, he must

establish by way of satisfactory evidence, circumstances that

favour his version. Even, a revenue record is not a document of

title. It merely raises a presumption in regard to possession.

Presumption of possession and/or continuity thereof, both

forward and backward, can also be raised under Section 110 of

the Evidence Act.

20. The aforesaid discussion and the material on record

in respect of the both documentary and oral evidence, inclined

this court to conclude that the plaintiff is the absolute owner

and having right, title and interest over the property mentioned

in the schedule-A of the plaint, the defendant forcefully


dispossessed the plaintiff from the schedule-B and C land and

the defendant has no right over the schedule-A land. The issue

No. 5 and 6 are decided in favour of the plaintiff and issue No.7

decided against the defendant.

21. Before going to the discussion and decision on other

issues, this court finds it necessary to send a message to the

revenue authority of the Tinsukia District and to the superior

authority of the department of revenue for their information. At

the time of scrutiny of the documentary evidence of this suit, it

is found that there are three mutation cases and orders passed

by the Circle Officer, Doom Dooma, which compelled the court

to comment over it. The mutation cases are i. e. (i) No.

39/1996-97 dated 13/02/1997, (ii) No. 38/2002-2003 dated

07/02/2003 and (iii) No. 71/2005-2006 dated 09/12/2005. The

mutation case No. 39/1996-97 dated 13/02/1997 was passed

after the period of 17 years of death of the Pattadhar Rup

Narayan Garh and without considering the fact that after the

death of Rup Narayan the property belongs to him already

inherited by the others and nothing was in his name. The

matter of interest is that both the Mutation case No.

38/2002-2003 and 71/2005-2006 including the order of

mutation passed by the same person viz, M. L. Sureka, who

was working as Circle Officer, Doom Dooma, at the relevant

point of time. The said circle officer vide order dated

07/02/2003 mutated the name of plaintiff as only legal heir in

respect of the land measuring 01 Bigha 3 Kathas 17.25 Lessas

and vide order dated 09/12/2005 mutated land measuring 1

katha 8 Lessas (which is the part of the land already mutated in

favour of the plaintiff as on 07/02/2003) in favour of the

defendant. The said fact also reflected in the order dated

31/03/2007, passed by Ld. Addl. Deputy Commissioner, Mrs. M.

Baruah, in TRKG No. 12/2013. The orders of mutations as

mentioned above passed by the Circle Officer, Dooma Dooma,

not only change the right and status of the parties but also

dragged or compelled the parties to fight out their right in legal


forum. Undoubtedly, the all these game was played by the

respective Circle officer and the subordinate staff of the said

office knowing fully well that that they were entrusted with the

dealing of the property right of the public and the same is legal

right. The Name of Circle Officers, who is responsible for writing

such cryptic orders of mutation are appeared as Mr. D. K.

Baruah, (Working on 13/02/1997 as Circle Officer, Dooma) and

M. L. Sureka. (working on 07/02/2003 and on 09/12/2005 as

Circle Officer, Dooma). In view of the above, this court satisfied

to extend copies of this judgment to the (1) Chairman, Board of

Revenue, Assam, and (2) The Deputy Commissioner, Tinsukia

for information. Needless to say, that the efforts to punish the

wrong doers will certainly a lesson to the others and to save

the prestige of an institution, where he/she was working.

22. Issue No.1. Whether the suit is maintainable

in law and in fact?

23. The defendant in the written statement simply

stated that the suit is not maintainable. It appears from the

pleading of the parties that both the parties are litigating on

the same plot of land claiming right over it. The plea of

peaceful occupation as a recorded pattadhar and the title of

the same as pleaded by the plaintiff and denied by the

defendant required to be determined in this suit. Hence, it can

be said that the plaintiff suit is maintainable. The issue No.1 is

answered in affirmative.

24. Issue No. 2. Whether the plaintiff has right to

sue?

25. The plaintiff claimed right and title over the suit

property by virtue of her name appeared in the revenue record.

The plaintiff also claimed the declaration of such right on the

basis of inheritance of the property from her deceased

husband. The defendant side denied the alleged right acquired

by the plaintiff. Such denial by the defendant certainly

infringed the right of the plaintiff and hence it can be said that


the plaintiff has the right to sue. The issue No. 2 also answered

accordingly in affirmative.

26. Issue No. 3. Whether the there is a cause of

action to this suit?

27. The plaintiff in the plaint stated that the cause of

action for this suit arose on 08/09/2005, when the defendant

trespassed into the suit land and dismantled the latrine and

urinal of the plaintiff, on 18/11/2005, when the defendant

started construction work, on 09/12/2005 when the defendant

mutated his name in the revenue record on 31/03/2007 when

the order was passed by the Ld. A. D. C. Tinsukia. The

defendant denied the facts and stated that there was no cause

of action for this suit. The cause of action is the bundles of

facts, which if admitted or proved entitled to the plaintiff to get

the relief as prayed in this suit. Ld. Counsel for the defendant

during the course of argument submitted that the evidence of

the PW-1 is found contradictory to the cause of action as

mentioned on 08/09/2005 and the PW-1 admitted that the

defendant was in possession of the land since 1996. Ld.

Counsel for the defendant side also submitted that the

institution of police case, report furnished by the Makum P.S.

and the cross examination of the PW-1 totally contradict the

fact that any cause of action arose on 08/09/2005. Ld. Counsel

for the defendant side placed reliance on the decision of

Hon’ble Calcutta High Court, in Sha-san Infrastructures pvt.

Ltd. Vs. Thakur Corner Byabsayee Kalyan Samity and

others, reported in [2010 (95) AIC 292 (CAL., H.C. )]. The

said judgment also found in support of the fact that for

determination of the cause of action of a suit the court should

consider the averments made in the plaint as a whole and not

on the single fact or date. The mutation order dated

09/12/2005 and the order passed by the Ld. Addl. Deputy

Commissioner (Revenue) on 31/03/2007 with a direction to

move the parties in proper forum is found enough to support


the fact there was a cause of action for this suit. Hence, there

is a cause of action of this suit.

28. Issue No.4. Whether the suit is properly

valued?

29. The valuation of the suit rest on the principle that it

is the prerogative of the plaintiff to fix the value of the suit for

adjudication of the same before the court and the jurisdiction.

Primarily, the suit of the plaintiff valued at Rs. 14,000/- and the

same enhanced to Rs. 40,000/- by way of amendment of the

plaint. The liberty to value the suit, available to the plaintiff

cannot be curtailed or disturbed, if the facts and circumstances

speak it unreasonable and unjustified. In the suit in hand,

there is nothing found to consider that the valuation the suit is

improper. The recent trend of justice delivery system warrants

that at the time of judgment also the court can grant

conditional relief on payment of requisite court fee. From that

angle, the material on record is also silent. Hence, the only

option to decide the issue as that the suit is valued properly.

The issue No.4 also decided in affirmative.

30. Issue No. 8. Whether the plaintiff is entitled to

get the relief as prayed for?

AND

Issue No. 9. To what other relief (s) the parties

are entitled to?

31. Both the issues are relating to relieves and taken

jointly. From the discussion and decisions of forgoing issues, it

appears that the plaintiff is entitled to get a decree in this suit

in respect of the reliefs prayed in the plaint. Accordingly, both

the issues No. 8 and 9 is answered in favour of the plaintiff and

against the defendant.

CONCLUSION AND ORDER


32. In the result, it is concluded that the suit of the

plaintiff against the defendant is hereby decreed alongwith the

following relieves:

(a) The plaintiff is the absolute owner of the suit

lands (Schedule-A land including the Schedule-B and

Schedule-C land) having right, title and interest over the same

and the defendant has no right over the same,

(b) The plaintiff is entitled to get recovery of

possession of the Schedule-B and Schedule-C land by way of

eviction of the defendant along with his belongings and the

unauthorized construction over the same is required to be

dismantled.

(c) The defendant or any other person claiming

under him is hereby restrained permanently from entering into

the Schedule-A land or any part thereof on and after his

eviction from the Schedule-B and Schedule-C land.

(d) Precept may be issued for cancellation of the

name of defendant from the revenue record in respect of

Schedule-B and Schedule-C land and correction of the revenue

record.

(e) Cost of this suit.

33. Prepare a decree accordingly.

34. The Judgment is written, corrected, signed, sealed,

tagged with case record, pronounced and delivered in the open

court on this 20th day of January, 2014.

Munsiff No.1 Tinsukia.


APPENDIX

THE NAME OF WITNESSES OF PLAINTIFFS SIDE :-

PW-1. Smti. Tirumati Bai Garh.

PW-2. Sri. Kalipada Gayan,

PW-3. Sri. Jay Prasad Pradhan.

PW-4. Sri. Gana Kanta Dutta.

PW-5. Smti. Radha Garh.

THE DOCUMENTS EXHIBITED BY THE PLAINTIFFS SIDE :-

Exhibit-1. The copy of petition dated 21/02/97 to the Deputy

Commissioner, Tinsukia.

Exhibit-2. The copy of my petition dated 12/09/2005 to the

Deputy Commissioner, Tinsukia.

Exhibit-3. The copy of FIR dated 14/09/2005 to the Makum P.S.

Exhibit-4. The certified copy Jamabandi dated 07/02/2003.

Exhibit-5. The order dated 07/02/2003 passed in Mutatuion

case No. 38/02-03.

Exhibit-6. The Land revenue receipt dated 28/08/2005 of

P.P.No.150.


Exhibit-7. The Legal heir certificate dated 17/08/1998.

Exhibit-8. The copy of Probate petition No. 126/03 dated

15/03/2003 in Misc. (Probate) Case No.30/03.

Exhibit-9. The copy of the deposition of the defendant in Misc.

(Probate) Case No.30/03;

Exhibit-10. The Holding Tax payment receipt No.001456 dated

05/11/2001.

Exhibit-11-18. The revenue payment receipt from the years

1990/91 to 2008/2009;

Exhibit-19-47. The Holding Tax payment receipts for the suit

land from the years 1992-93 to 2009-2010

Exhibit-48. The land holding certificate dated 21/09/2005

issued by the Circle Officer, Doom-Dooma Revenue Circle,

Doom-Dooma.

Exhibit-49. The holding Tax clearance certificate No.MTC

1-22/G.C/2009-10/661 dt.12-11-09 issued by the chairman,

Makum Town Committee.

Exhibit-50. The copy of the mutation order dated 03/10/1997

passed in my name by the chairman, Makum Town Committee.

Exhibit-51. The copy of letter dated 25/11/2005 to the

chairman, Makum Town Committee.









Exhibit-56. The copy of the Will No. 26 registered on

16-10-2001. Exhibit-57. The certified copy of Jamabandi P.P.No.

150.

Exhibit-58. The certified copy of Jamabandi dated 05/01/2008

showing Mutation in the name of the defendant as legal heir

under P.P. No.150.


Exhibit-59. The certified copy of the order dated 31/03/2007

passed by Smt. Malabika Baruah, A.D.C.( Revenue), Tinsukia.

Exhibit-60. The written statement of the defendant dated

22/02/2006.

THE NAME OF WITNESS OF DEFENDANTS SIDE :-

DW-1. Sri. Suraj Pradhan Garh.

DW-2. Sri. Saligram Pradhan Garh.

DW-3. Sri. Brij Pradhan.

DW-4. Sri. Ashok Pradhan.

THE DOCUMENTS EXHIBITED BY THE DEFENDANTS

SIDE :-

Exhibit-1. (Remarked as Ext-A). The Mutation order.

Exhibit-2. (Remarked as Ext-B). The Order of Revenue Appeal.

Exhibit-3/4. (Remarked as Ext-C and D). The agreements to

sell.

Exhibit-5 (Remarked as Ext-E). The Jamabandi.

Exhibit-6/7. (Remarked as Ext-F and G). The revenue payment

receipt.

Exhibit-8. (Remarked as Ext-H). The copy of petition of case No.

109/05.

Exhibit-9. (Remarked as Ext-I) The copy of police report of case

No. 104/05.

Exhibit-10. (Remarked as Ext-J). The Mutation order.

Exhibit-11. (Remarked as Ext-K). The revenue payment receipt.

Munsiff No.1 Tinsukia.

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Documents

Title Suit No. 35 of 2005 Page-1 - Welcome To …tinsukiajudiciary.gov.in/source/judgement/2014/1january...Title Suit No. 35 of 2005 Page-2 THE CASE OF THE PLAINTIFF 2. The plaintiff