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.
Title Suit No. 35 of 2005Page-2
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
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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
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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
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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:
Title Suit No. 35 of 2005Page-6
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
Title Suit No. 35 of 2005Page-7
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
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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.
Title Suit No. 35 of 2005Page-9
(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
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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
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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
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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
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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
Title Suit No. 35 of 2005Page-14
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
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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
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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
Title Suit No. 35 of 2005Page-17
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
Title Suit No. 35 of 2005Page-18
(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
Title Suit No. 35 of 2005Page-19
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
Title Suit No. 35 of 2005Page-20
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
Title Suit No. 35 of 2005Page-21
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
Title Suit No. 35 of 2005Page-22
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
Title Suit No. 35 of 2005Page-23
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
Title Suit No. 35 of 2005Page-24
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.
Title Suit No. 35 of 2005Page-25
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.
Title Suit No. 35 of 2005Page-26
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-52. The copy of letter dated 16/10/2006 to the
chairman, Makum Town Committee.
Exhibit-53. The copy of letter dated 01/09/2006 to the
chairman, Makum Town Committee.
Exhibit-54. The copy of letter dated 22/12/2006 to the
chairman, Makum Town Committee.
Exhibit-55. The copy of letter dated 31/08/2007 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.
Title Suit No. 35 of 2005Page-27
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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