HIGH COURT FORM NO J ( 2) HEADING OF...

Title Suit no- 43/2009

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

PRESENT : - Angshuman Bhattacharjee Munsiff No-1 , Tinsukia On this 22nd day of November /2016 Title Suit No- 43 of 2009 Smti. Krishna Maya Sharma W/o- Sri Durga Prasad Sharma Resident of Tengapani Gaon P.S- Bordubi, OP- Langkashi Dist- Tinsukia.....................................Plaintiff

Versus Smti Anju Darjee

D/o- Late Bhaba Darjee

Resident of Tengapani Gaon

PS- Bordubi

Dist- Tinsukia......................................Defendant

This suit coming on for final hearing on-14-09-2016 , 20-09-2016, 30-09-2016, 07-10-2016, 08-11-2016 and 22-11-2016 in the presence of Angshuman Bhattacharjee , Munsiff no-1 , Tinsukia .

1. Sri P. Bhowal , Learned Advocate for the plaintiff.

2. Sri P.K Boarh , Learned Advocate for the defendant.

And having stood for consideration this day the court delivered the following judgement.


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JUDGEMENT

1. This suit is for Declaration and Khas possession by evicting Defendants.

THE CASE OF THE PLAINTIFF

2. The case of the plaintiff in brief is that one Sri Tito Pillai was the lawful owner and possessor of a plot of land measuring 7 ( Seven) Bigha -1 (one ) Katha- 13 (Thirteen ) Lessas covered by Dag no-149 (old)/ 145 ( New) of Periodic Patta no-50 (old)/79 (old)/ 57 (New) situated at Tengapani gaon of Tipling Mouza , District- Tinsukia. The plaintiff and her brother – Sri Chakrapani Sharmah purchased the aforesaid land of Sri Tito Pillai on the same day i.e on 04-11-1974 . The plot of land that fell into the share of the plaintiff measures 3 (Three ) Bigha-1 (one ) Katha- 13 (Thirteen ) Lessas and the plaintiff purchased the same vide registered sale deed no-1865 of 1974 at a valuable consideration of Rs 4000/- and since then the plaintiff has been in possession of the same . The said land is referred to as Schedule- A land. The balance land of Sri Tito Pillai was purchased by the Plaintiff`s brother- Sri Chakrapani Sharmah. The plaintiff allowed one Lt- Devilal Darjee who was the maternal grand father of the defendant to open a tailoring shop in a house situated on a part of the aforesaid schedule- A land measuring 0 Bigha -2 Katha – 10 Lessas which is the schedule- B shop premises and the same is also the subject matter of the instant suit . Lt Devilal Darjee had promised the plaintiff that he would hand over the suit premises to her as and when demanded without claiming any right, title and interest over the same. Lt Devilal Darjee was allowed to occupy the suit premises as a permissive occupant. After death of Lt Devilal Darjee, the defendant came in occupation of the suit premises under the same terms and conditions which had governed the occupation of Lt Devilal Darjee.

3. On 16-10-2003 , the aunt of the defendant namely- Smti Kumari Darjee and her mother Smti Parboti Darjee and uncle Sri Bhakta Bahadur Darjee filed a false case u/s 145 /146 CRPC which was registered as Case no- 129/2003 against the husband of the plaintiff- Sri Durga Sharma and her two sons , claiming themselves to be in possession of land measuring 3 Bigha-2 Katha- 10 Lessas out of 4 Bighas of land covered by Dag no-156 (old) under P.P no- 54 (old) situated at Tengapani Gaon , Tipling Mouza, District- Tinsukia. The aforesaid case was filed before SDM, Tinsukia and in the said case a report was submitted by Circle officer , Tinsukia vide his letter no- TRC-6/93-03/ Pt-3/767 dated 17-06-2004 stating that there is no land under Dag no-156 (old) of P.P no-54 (old) and the disputed land is covered under Dag no-145 (N) of P.P no- 57 (N) and the same stands in the name of the plaintiff and her brother – Sri Chakrapani Sharmah. The aforesaid case was ultimately dropped . Subsequently the defendant and other legal heirs of Lt- Devilal Darjee apologised to the plaintiff for their misdeed and the plaintiff allowed the defendant to occupy the schedule-B premises as a permissive occupant . The defendant also assured the plaintiff that she would vacate the suit premises as and when demanded. The plaintiff intending to settle her younger son in the suit premises , approached the


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defendant on 22-02-2009 and requested her to vacate the suit premises. The defendant sought six months time to vacate the same . However the defendant in collusion with other legal heirs of Lt- Devilal Darjee , namely- Sri Bhakta Bahadur Darjee and Sri Pritam Darjee on 25-07-2009 stealthily collected construction materials on schedule-B shop premises for construction of a pucca structure over the existing Schedule-B shop premises. On being resisted by the plaintiff , her husband and her brother – Sri Chakrapani Sharmah , the defendant became furious and refused to vacate the suit premises and she along with Sri Bhakta Bahadur Darjee and Pritam Darjee rushed towards the plaintiff with a dao . The plaintiff reported the matter to the O/c , Bordubi P.S. The plaintiff has therefore filed the instant suit praying for:-

i) Declaration of right, title and interest of the plaintiff over the schedule B shop Premises.

ii) A judgement and decree for recovery of khas possession of Schedule B shop Premises after removing/ evicting the defendant and her heirs , assigns , legal representatives , servant , relatives etc with all their belongings and house hold articles therefrom.

iii) A permanent injunction restraining the defendant and her legal heirs , assigns , legal representatives , servants , relatives from demolishing the schedule- B shop premises and constructing any new pucca house or any type of structure or structures over the schedule- B shop premises.

iv) An ad- interim temporary injunction restraining the defendant and her heirs , assigns , legal representatives , servants , relatives from demolishing the existing tailoring shop and constructing any new pucca house or any type of structure or structures over schedule-B shop premises.

v) Cost of the suit.

THE CASE OF THE DEFENDANT

4. The defendant contested the suit by filing written statement cum counter claim. The defendant has challenged the maintainability of this suit on the ground that necessary and proper court fee has not been paid, necessary parties have not been joined and that the same is barred by limitation. The case of the defendant is based on denial . The defendant has denied the contentions of the plaintiff and has claimed interalia that the maternal grand father of the defendant – Lt Devilal Darjee had been in peaceful and physical possession of a plot of land measuring about 4 B-0K- 0Ls covered by Dag no- 156 (old) and P.P no- 54 (old) of Tengapani gaon under Tipling Mouza along with a kutcha house and one cow shed standing thereon which he had taken on lease from the lawful owner Sri- Hariprasad Haritwal at an yearly rent of Rs 60/- on 01-11-1978. Subesequently since many years the landlord –


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Hariprasad Haritwal or his legal heirs did not receive any rent from Lt- Devilal Darjee or his legal heirs and relatives . As such the defendant has become the absolute owner and possessor of the suit land by right of transfer/ lease and possession. The defendant in her counter claim has prayed for:-

i) Declaration of her right, title , interest etc over the schedule suit land together with standing structures owned , possessed and enjoyed by the defendant for about three decades without any interference from an corner.

ii) Judgement and decree against the plaintiff for cancellation of mutation of the name of the plaintiff from the revenue records of rights in respect of the suit land and insertion of the name of the defendant therein.

iii) Declaration that the sale deeds bearing no- 1864 of 1974 and 1865 of 1974 are void , fraudulent and unenforceable in law.

iv) All costs of the suit.

v) Any other relief or reliefs to which the defendant may be entitled in law and equity.

ISSUES

5. Upon pleadings of both the parties the following issues were framed:-

( 1 ) Whether the suit filed by the plaintiff is maintainable ?

(2) Whether the counter claim filed by the defendant is maintainable ?

(3) Whether the plaintiff has right, title and interest over the suit land?

(4) Whether the plaintiff is entitled to get a decree for recovery of khas possession over the suit land ?

(5) Whether the defendant has right, title and interest over the suit land ?

(6) Whether the registered Sale Deed bearing no- 1865 of 1974 is void , fraudulent illegal and liable to be cancelled ?

(7) Whether the mutation of the name of the plaintiff in respect of the suit land is illegal ?

(8) Whether the plaintiff is entitled to get the judgement and decree prayed for ?

( 9) Whether the defendant is entitled to get the judgement and decree prayed for in the counter claim ?

(10) To what other relief (s) the parties are entitled to ?


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6. To substantiate the pleading , the plaintiff side examined five witnesses . The defendant side examined one witness.

DETERMINATION OF THE ISSUES , DISCUSSIONS , DECISION AND REASONS THEREOF

Issue no-1: Whether the suit filed by the plaintiff is maintainable ?

7. The defendant in her written statement has challenged the maintainability of this suit on the ground that it is bad for want of necessary and proper court fee as well for non joinder of necessary parties . The defendant has also assailed the maintainability of the suit on the ground that it is barred by limitation . However the defendant could not specify the proper court fee payable in respect of the instant suit , the necessary parties who have not been joined in the instant suit as well as how the same is barred by limitation. In view of the above this issue is decided in the affirmative.

Decision :- The suit filed by the plaintiff is maintainable

Issue no-2 :- Whether the counter claim filed by the defendant is maintainable?

8. The plaintiff has challenged the maintainability of the counter claim filed by the defendant on the ground that the defendant has prayed for cancellation of the sale deed in her W/S and as such as per provision of Stamp Act , the defendant is liable to pay Ad Valorem court fee over the value of the land and as no ad- valorem court fee has been paid , so the counter claim of the defendant is liable to be dismissed. I have heard the learned counsel for the plaintiff and I have also perused the written statement cum counter claim filed by the defendant. It is seen that in her written statement the defendant has sought for a declaration that the Sale deeds bearing no- 1864 of 1974 and 1865 of 1974 are void , fraudulent and unenforceable in law. The defendant is not a party to the Sale Deeds bearing no-1864 of 1974 and 1865 of 1974 and as such she could not have sought for cancellation of the same. As the defendant has prayed for a declaration that the aforesaid Sale Deeds are void , fraudulent and unenforceable in law , payment of ad- valorem court fee by her is not warranted. In view of the above this issue is decided in the affirmative.

Decision:- The counter claim filed by the defendant is maintainable.


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Issue no-3:- Whether the plaintiff has right, title and interest over the suit land ?

Issue no-4:- Whether the plaintiff is entitled to get a decree for recovery of khas possession over the suit land ?

Issue no-5:- Whether the defendant has right, title and interest over the suit land?

Issue no-6:- Whether the registered sale deed bearing no- 1865 of 1974 is void , fraudulent , illegal and liable to be cancelled ?

Issue no-7:- Whether the mutation of the name of the plaintiff in respect of the suit land is illegal ?

9. For the sake of brevity , issues no-3,4,5,6 and 7 are taken up for consideration together. The plaintiff`s claim is that she is the owner of the suit land by virtue of purchase vide registered sale deed no-1865 of 1974 ( i.e Exbt-1) registered on 04-11-1974 at Tinsukia Sub Registry office. Learned counsel for the plaintiff contends that in support of her claim the plaintiff has produced the certified copy of the aforesaid sale deed as well as the copy of Jamabandi in respect of the suit land wherein her name has been mutated in respect of the suit land. Learned counsel argued interalia that the certified copy of the sale deed produced by the plaintiff is more than thirty years old and as such its genuiness is to be presumed. It has also been contended by the learned counsel for the plaintiff that the jamabandi submitted by the plaintiff reveals that her name is mutated in respect of the suit land and such mutation also lends credence to her claim that she is the owner of the suit land . On the contrary the learned counsel for the defendant argued interalia that the plaintiff in her plaint as well as in affidavit evidence did not disclose the reason as to why she had failed to produce the original copy of the purported sale deed bearing no- 1865 of 1974 and thus there is no foundation for adduction of secondary evidence by the plaintiff to prove her ownership over the suit land.

10. I have heard the learned counsels of both sides. I have also perused the materials on record. It is seen that the plaintiff in order to substantiate her claim of ownership over the suit land has submitted the certified copy of the Sale Deed bearing no-1865 of 1974 . At the very outset it would be appropriate if an analysis is made with respect to the question as to whether the plaintiff has been able to make out a case for adduction of secondary evidence in the form of certified copy of the sale deed. The case record of the instant suit reveals that on 06-02-2010, the plaintiff had filed a petition bearing no- 121/10 praying to call for the volume and Registration Book from the office of the Sr . Sub Registrar , Tinsukia in respect of Sale Deed no-1865 dated 04-11-1974 on the ground that the original of the said sale deed had been lost and could not be traced out. The aforesaid petition was allowed by this court vide order dated 06-02-2010 and the plaintiff was directed to take step to call for record. The facts narrated above clearly show that the court was satisfied with the


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plea ( regarding loss of original Sale Deed no-1865 dated 04-11-1974) as raised by the plaintiff in her petition no- 121/10 and allowed her to take step for calling for records from the office of Sr. Sub Registrar , Tinsukia . Moreover the order dated 06-02-2010, passed by the court in the instant suit was not challenged by the defendant side . The C.R of the instant suit reveals that on 16-02-2012 an affidavit was filed by the I/C , Sr Sub Registrar , Tinsukia to the effect that the Registration Book containing thumb impression and signature of parties in respect of Sale Deed no- 1865 dtd 04-11-1974 had been completely damaged and could not be produced before the court. The C.R also reveals that the plaintiff had filed the aforesaid petition prior to commencement of trial . In view of the above it can be concluded that the plaintiff had made out a case for adduction of secondary evidence.

11. Let me now address the question as to whether the certified copy of the Sale Deed bearing no-1865 of 1974 as produced by the plaintiff requires further proof or mere production of the same is sufficient to prove plaintiff`s title over the suit land. One of the contentions raised by the learned counsel for the plaintiff is that as the aforesaid copy of the Sale Deed is more than thirty years old , hence it is to be presumed to be genuine as per the mandate of section 90 of the Indian Evidence Act. However in this regard judicial pronouncements have settled that the provisions of section 90 of the Indian Evidence Act are applicable only to original documents and not to certified copies. This being the position, the genuineness of the certified copy of the aforesaid sale deed cannot be presumed by invoking the provisions of section 90 of the Indian Evidence Act. At the same time this court is of the opinion that the issue of proof of the certified copy of the Sale Deed bearing no-1865 of 1974 is to be viewed from another perspective. The said sale deed is a registered one and in a decision of Hon`ble Gauhati High Court in the case of Sri Sheo Prasad Chouhan Vs Smti Joyradha Das in RSA-202/2004 , it has been held that when a document is registered , its due execution and registration has to be presumed . This is however a rebuttable presumption. In view of the above a presumption clearly emanates that the registered sale deed bearing no-1865 of 1974 was duly executed by the executant i.e Sri Tito Pillai in favour of the plaintiff. Hence the onus of proof has clearly shifted to the defendant side to dislodge the said presumption.

12. The defendant side has claimed in her written statement that the sale deed referred to above is false and fraudulent. The defendant side could not however produce any cogent material to show as to how the sale deed bearing no- 1865 of 1974 is false and fraudulent. In addition to the above the Exbt-4 i.e the jamabandi in respect of the suit land reveals that the name of the plaintiff has been mutated in respect of the same. The contention of the defendant side is that the mutation of the name of the plaintiff in respect of the suit land is illegal . Now, jamabandi is a public document prepared by a public officer in course of his official duty . It is a well accepted principle that official acts ought to be presumed to have been done correctly unless contrary is proved. The defendant side could not produce any evidence to substantiate their allegation that the mutation of name of the plaintiff in respect of the suit land is illegal . In absence of the same the mutation granted in favour of the plaintiff in respect of the suit land cannot be brushed aside on mere allegation of illegality . Moreover the sale deed bearing no-1865 of 1974 i.e Exbt-1


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clearly shows that the executant i.e Sri Tito Pillai had sold the suit land to the plaintiff .

13. The defendant has also claimed ownership over the suit land by filing a counterclaim. The contention of the defendant side is that the maternal grand father of the defendant – Lt Devilal Darjee had been in continuous and peaceful physical possession of a plot of land measuring about 4 B-0 K – 0 Ls covered by old Dag no-156 and old P.P no-54 of Tengapani gaon , Mouza – Tipling , P.S – Bordubi and a kutcha house and one cow shed which he had taken on lease from lawful owner of the land – Sri Hariprasad Haritwal ( Sharma) of Thana Road , Tinsukia on 01-11-1978 by paying Rs 60/-( Rupees Sixty) only to the landlord as yearly rent. Subsequently since many years the landlord Sri Hari Prasad Haritwal or any other person did not receive any lease rent from Devilal Darjee or his legal heirs and relatives and as such the defendant has become absolute owner of the suit land and houses standing thereon by right of transfer/ lease and possession. Learned counsel for the defendant argued that the defendant has acquired ownership of the suit land by virtue of adverse possession . I have perused the written statement filed by the defendant. In para 14 of her written statement the defendant has herself admitted that the legal heirs and the relatives of Devilal Darjee have not been in peaceful physical possession over the alleged schedule land since 01-11-1978. This admission of the defendant is contrary to the claim of adverse possession raised by her. Moreover in her written statement the defendant has not any manner shown as to how and since when her possession over the suit land became adverse to the actual owner. The mere fact that the actual owner of the suit land stopped receiving rent from her does not ipso facto entitle her to step into the shoes of the actual owner. In addition to the above it has been held by Hon`ble Gauhati High Court in the case of Bindoe Das & Others Vs Sarumai Patangia and others reported in (2013) 6 GLR -277 that adverse possession is only a shield not a sword . It was futher held in the said judgement that a person may forfeit his title by dint of section 27 of the Limitation Act but there cannot be corresponding acquisition of title by anyone. This simply means that on the basis of adverse possession the claimant can only defend his possession over a plot of land . However the same cannot beget right , title and interest in favour of the claimant in respect of the land of which he is in possession. Thus the counter claim (which is in the nature of a cross suit) filed by the defendant seeking declaration of ownership over the suit land on sole ground of adverse possession cannot succeed. In view of the aforesaid discussions the issues no- 3, 4,5,6 and 7 are decided as follows:-

Decisions :- a) Issue no-3 is decided in the affirmative i.e the plaintiff has right, title and interest over the suit land.

b) Issue no-4 is decided in the affirmative i.e the plaintiff is entitled to get a decree for recovery of khas possession of the suit land.

c) Issue no-5 is decided in the negative i.e the defendant does not have right , title and interest over the suit land.


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d) Issue no-6 is decided in the negative i.e the registered sale deed bearing no-1865 of 1974 is not void, fraudulent , illegal and liable to be cancelled.

e) Issue no-7 is decided in the negative i.e the mutation of the name of the plaintiff in respect of the suit land is not illegal.

Issue no-8 :- Whether the plaintiff is entitled to get the judgement and decree prayed for ?

Issue no-9 :- Whether the defendant is entitled to get judgement and decree prayed for in the counter claim ?

14. Decision :- In view of my decisions as regards issues no-3,4,5,6 and 7, the issue no-8 is decided in the affirmative i.e the plaintiff is entitled to get the judgement and decree prayed for and issue no-9 is decided in the negative i.e the defendant is not entitled to get the judgement and decree prayed for in the counter claim.

Issue no-10 :- To what other reliefs the parties are entitled to ?

15. Decision:- As per order.

16. ORDER

In view of the foregoing discussions the suit of the plaintiff is decreed on contest and with cost. It is hereby declared that the plaintiff is entitled to the following reliefs:-

a) It is hereby declared that the plaintiff has right, title and interest over the suit premises i.e schedule-B shop premises.

b) The defendant will hand over khas possession of the suit premises to the plaintiff within one month from the date of decree.

c) The defendant , her heirs , assigns , legal representatives , servants and relatives are permanently restrained from demolishing the schedule- B shop premises and constructing any new pucca house or any type of structure or structures over the schedule B shop premises.

d) The defendant will pay cost of the suit to the plaintiff within one month from the date of decree.

17 . The counter claim filed by the defendant is dismissed on contest and with cost Prepare decree accordingly.


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18. The judgement is written , corrected , signed , sealed , tagged with case record , and delivered in the open court on this 22nd day of November/2016.

Munsiff No-1

Tinsukia


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APPENDIX The name of the witnesses of the plaintiff :- PW 1 – Smti Krishna Maya Sharma PW2 – Sri Durga Sharmah PW 3- Sri Chakrapani Sharmah PW 4- Sri Shyam Sharmah PW 5 – Sri Gajadhar Upadhaya The name of the witnesses of the defendant- DW 1:- Smti Anju Darjee. The documents exhibited by the plaintiff :- Exhibit- 1 : Certified copy of Sale Deed no-1865 of 1974 Exhibit -2 : Order calling the volume book and the Registered book of Sale Deed no-1865 of 1974 Exhibit-3 : Sworn affidavit by the Sr. Sub Registrar Exhibit- 4 : Certified copy of jamabandi dated 05-06-2009 Exhibit- 5 : Revenue Receipts Exhibit-6 : Certificate dtd 10-5-2009 issued by Mouzadar, Tipling Mouza. Exhibit-7 : Certificate of mutation dtd 26-08-2003 issued by Circle officer Tinsukia Revenue Circle. Exhibit -8 :- Certified copy of order dtd 10-12-2004 passed in case no-129 Of 2003 Exhibit-9 :- Certified copy of initial petition of first party in case no- 129 of 2003. Exhibit-10 :- Certified copy of written statement of the opposite party. Exhibit -11 :- Certified copy of trace map dtd 01-08-2009. Exhibit-12 :- Receipt copy of ejahar dtd 25-07-2009. Exhibit-13 :- Annexure –A in two pages in the copy of report of Circle Officer, Tinsukia.


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Documents exhibited by the defendant :- Exbt- Ka : Certified copy of ejahar. Exbt- Kha :- Charge sheet. Exbt- Ga :- Judgement dated 17-11-2004 passed by the learned CJM in G.R Case no- 864/2003. Exbt- Gha :- Judgement and order dated 18-06-2005 passed by learned Sessions Judge in Criminal Appeal no- 68 (4) of 2004. Decisions referred to by the plaintiff:-

a) Decision of Hon`ble Gauhati High Court in MD. Hasim Mia Vs Md Ashraf Ali Haji & others reported in 2011 (1) Gauhati Law Journal 677.

b) Decision of Hon`ble Gauhati High Court in Khirode Singha & Another Vs On the death of Krishna Singha , His legal heirs Smti Bikhalat Devi and others reported in 2014 ( 5) Gauhati Law Journal 95.

c) Decision of Hon`ble Gauhati High Court in BIpin Chandra Kalita Vs Sarama Kalita & others reported in 2007 (2) Gauhati Law Journal 363.

d) Decision of Hon`ble Gauhati High Court in Debananda Choubey Vs Narayan Bigraha and other reported in 2007 (1) Gauhati Law Journal 456. .

Munsiff No-1 Tinsukia

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