HIGH COURT FORM NO.(J)2 HEADING OF …kamrupjudiciary.gov.in/Dec 16 Jdgments/9.12.16-M1-TS...

1 T.S. No.295/2010

HIGH COURT FORM NO.(J)2

HEADING OF JUDGMENT IN ORIGINAL SUIT

DISTRICT: KAMRUP (M)

IN THE CIVIL COURT OF THE MUNSIFF NO.1 KAMRUP (M), GUWAHATI

Present: Sri Lakhinandan Pegu

Munsiff no.1, Kamrup (M), Guwahati

Friday, the 9th day of December, 2016

T.S. No.295/2010

1. Smti Ranjana Gupta

Wife of-Sri Suresh Gupta,

Resident of-Ada Godown,

Lalganesh, Guwahati

District-kamrup, Assam

…………….Plaintiff

Versus

1. Dr. Lalit Deori

Son of-Sri Nabin Chandra Deori

Resident of-Rehabari, P.S.-Paltanbazar,

Guwahati-781008, District-Kamrup, Assam

………………Defendant

2. Sri Nikhil Chandra Shil Sarma,

Son of-Late Harendra Kumar Shil Sarma

3. Smti Bishnupriya Shil Sarma

Typed by me

Sri Lakhinandan Pegu

Munsiff No.1

Kamrup (M), Guwahati

2 T.S. No.295/2010

Wife of-Sri Nikhil Chandra Shil Sarma

Both are residents of Bimala Nagar, Kalapahar, Guwahati-16

P.S.-Fatasil, Ambari, District-Kamrup, Assam

………………..Proforma Defendants

This suit/case coming on for final hearing on 22/11/2016 in the

presence of—

Mr. M. Sarma-----------Learned Advocate for the Plaintiffs.

Mr. B. Sarma-----Learned Advocate for the defendants.

And having stood for consideration to this day, the court delivered the

following judgment:-

JUDGMENT

A. THE NATURE OF THE SUIT:-

1. The suit is for declaration of right, title, interest and for eviction and

recovery of khas possession and for permanent injunction.

B. THE CASE OF THE PLAINTIFF IN A NUT-SHELL:-

2. The proforma defendant no.2 and 3 are the absolute owners of a plot of

land measuring 1 Katha 15 Lechas (4.68 Are) covered by Dag No.33,34/74

(O), 2655 (N) of K.P. Patta No.19 (O), 600 (N), Village-Udalbakra under

Mouza-Belotla, Guwahati, in the district of Kamrup, Assam together with

numbers of Residential houses standing, thereon on the Northern portion

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3 T.S. No.295/2010

which is morefully described in Schedule-“A” of the plaint. The said proforma

defendant no.2 and 3 have acquired right, title and interest over the

Schedule-“A” land by virtue of purchase from one Sri Dinesh Kr. Agarwalla vide

Regd. Sale Deed No.2553 dated 17/04/2000 and registered on 18/04/2000

before the Sub-Registrar, kamrup at Guwahati. The proforma defendant no.2

and 3 have been in possession over the schedule-“A” land since the day of

purchase of the said land. The proforma defendant no.2 and 3 after taking

over the possession of the Schedule-‘A’ land constructed the boundary wall

over the said Schedule-A land. The proforma defendant no.2 and 3 sold a part

of Schedule-A land measuring 8 (Eight) Lechas covered by Dag No.33,34/74

(O),2655 (N) of K.P. Patta No.19 (O), 600 (N) of Village-Udalbakra under

Mouza-Beltola, Guwahati, in the district of Kamrup, Assam to the plaintiff on

25/03/2009 vide Regd. Sale Deed No.3447/09 dated 25/03/2009, which is

morefully described in the Schedule- B of the plaint. The Schedule-A land

covered under Dag No.33,34,74 of K.P. Patta No.19 have been converted to

Dag No.2655 of K.P. Patta No.600 and presently it has again been converted

to Dag No.61 and Patta No.886 by issuing separate patta in favour of

proforma defendants. The plaintiff by virtue of the aforesaid Regd. Sale Deed

No.3447/09 dated 25/03/2009 became the absolute owner of the Schedule-B

land and the proforma defendant no.2 and 3 delivered the khas possession of

the Schedule-B land to the plaintiff on the day of execution of the aforesaid

Deed dated 25/03/2009. The plaintiff immediately after taking possession of

the Schedule-B land has erected the pucca boundary wall in the Western and

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4 T.S. No.295/2010

Northern side of the Schedule-B land. The Schedule-B land over which the

plaintiff has right, title and interest is the “SUIT LAND”. The plaintiff after

purchase of the said plot of land and after taking over the possession from the

proforma defendant no.2 and 3 has constructed the pucca boundary wall as

aforesaid over the suit land and subsequently in the month of March, 2009

itself the plaintiff by developing the suit land constructed a “Tin Chali” over the

suit land along with erecting an iron gate in the southern boundary wall of the

suit land as main entrance. After constructing the “Tin Chali” the plaintiff

engaged Mohd. Nizam as the caretaker of the Suit land and said Mohd. Nizam

has been residing in the said “Tin Chali” since April, 2009. The plaintiff is

residing at Adagodown, Lalganesh, Guwahati and therefore, after taking over

the possession of the suit land she has to engage the above named caretaker

to look after the suit land so long she herself will permanently start to reside

in the suit land. The suit land has been peacefully possessing by the plaintiff

without any break and without any interruption from any quarter till

07/12/2009. But, the principal defendant with his agents broke the lock of the

iron gate of the entrance of the suit land on 07/12/2009 at around 6 P.M. and

entered the suit land. Thereafter, the main defendant through his agents

broke the lock of the “Tin Chali” and entered the house. Thereafter, the

plaintiff approached the main defendant along with her husband in the first

week of April, 2010 at his residence/chamber and the plaintiff, thereafter, has

asked the main defendant as to why he by occupying the suit land has

dispossessed the plaintiff. In reply, the main defendant informed her that the

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5 T.S. No.295/2010

suit land belongs to him which he purchased in the year 2002 from the

original owner. In this regard, the plaintiff informed him that she purchased

the suit land from the proforma defendant no.2 and 3 on 25/03/2009 by

executing a sale-deed. Thereafter, the plaintiff and her husband requested the

main defendant to show the sale-deed by virtue of which he is claiming the

ownership over the suit land but the plaintiff refused to show the sale-deed

executed in his favour. The plaintiff, there after, on 10/04/2010 has met the

proforma defendant no.2 and 3 and informed them that the main defendant

has claimed to be the title holder of the suit land and therefore he is

occupying the suit land. The plaintiff in this regard has asked the proforma

defendant no.2 and 3 whether the main defendant has purchased the suit land

from them. The proforma defendants in this regard have replied that the main

defendant has never purchased the suit land from the original and lawful

owner Sri Dinesh kr. Agarwalla nor the main defendant has purchased the suit

land from them i.e. from proforma defendants. Moreover, the main defendant

had never been in possession over the suit land by any manner. The main

defendant has tried to grab the property of the plaintiff by such illegal manner

pretending himself to be the owner of the suit land on the strength of his men

and muscle power which in fact is not permissible under the law.

C. THE PLAINTIFF’S PRAYER:-

(i) For a declaratory decree that the plaintiff has right, title and interest over

the Schedule”B” land which is a part of Schedule-“A” land.

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6 T.S. No.295/2010

(ii) for a decree of ejectment and recovery of khas possession by ejecting the

defendant, his agents and his person/persons acting on his behalf if any from

the suit land described in the Schedule-“B” of the plaint by demolishing the

structure if any made illegally by the defendant thereon.

(iii) For a decree of permanent injunction restraining the defendant and his

agents, employees or any other person(s) acting on his behalf from entering

into the suit land described in the Schedule-“B” of the plaint.

(iv) For any other relief or reliefs consequential thereof to which the plaintiff is

entitled to either in law or in equity.

(v) Cost of the suit.

3. Summonses have been issued against the defendants for their appearance

before the court. The defendants have appeared before the court after the

receipt of summons and contested the suit by filing written-statement.

D. THE CASE OF THE DEFENDANT NO.1 IN A NUT-SHELL:-

4. The defendant no.1 amongst other grounds in his written-statement has

pleaded that the suit is not maintainable in the present form, the suit is barred

by the law of limitation, there is no cause of action for the suit, the suit is not

properly valued and requisite court fee has not been paid thereon and the suit

is hit by the principles of estoppels, acquiescence. It is further averred that

except schedule-B land rest is in the possession, although the plaintiff may

purchase 1 katha 15 Lechas in paper, as because, the defendant had been in Typed by me


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7 T.S. No.295/2010

continuous possession since 2003 and prior to, the vendor of the defendant

had been in possession since 1993 along with remaining 18 Lechas at Village-

Odalbakra under Mouza-Beltola covered by Dag No.33 and 34 of K.P. Patta

No.19. The defendant specifically denies about real purchase of 8 Lechas as

there was no delivery of possession of the said alleged land since the said 8

Lechas has been in continuous possession of the Vendor of the defendant

since 1993 and thereafter from 2003, the defendant has been possessing. The

defendant purchased the land from Smti Sila Saha who in turn purchased from

the real owner Dinesh Kumar Agarwalla but due to continuous attempt made

to oust the defendant from his possession, he filed a Title Suit seeking

declaration and consequential reliefs in respect of land he purchased from

Shila Saha but not the suit land 8 Lechas which is not the part of purchased

land, as the vendor during delivery of 1 Katha 5 lechas under sale Deed

No.8263/03 delivered possession which eventually measured about 1 Katha 13

Lechas and at no point of time any body resisted about the possession of

excess land, moreover, in the entire patta there are large number of area of

land, out of which the plaintiff may purchase but not the suit land 8 Lechas

which is under physical possession since 1993 initially by vendor and

thereafter the present defendant and he has carried out some acts of

possession having derivative right over the same although no consideration

nor any agreement to that effect has been made, therefore, it is open,

uninterrupted, continuous and peaceful against the purported vendors of pro-

defendants and the said land has been in continuous possession with

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8 T.S. No.295/2010

knowledge and acquiescence with the real owner Dinesh Kumar Agarwalla,

thereby acquired prescriptive right and the said possession is adverse against

the true owner, therefore after statutory period, the defendant has acquired

and perfected title over the same.

E. THE CASE OF THE DEFENDANT NO.2 AND 3 IN A NUT-SHELL:-

5. The defendant no.2 and 3 have pleaded that the suit is maintainable in law

as well as facts and circumstances of the case as the plaintiff purchased the

suit land from the defendant nos.2 and 3 with valuable consideration. The

defendant no.1 has no any right, title and interest over the suit land in any

manner. The proforma defendant nos.2 and 3 are the absolute owners,

possessors and pattadars of a plot of land measuring 1 Katha 15 lechas (4.68

Are) covered by dag Nos.33/34/74 (Old) and 2655 of K.P. of 19 (Old)/600

(New) of village- Udalbakra under Mouza-Beltola in the district of kamrup

(Assam). The proforma defendant nos.2 and 3 have got the aforesaid land by

way of purchase vide sale-deed no.2553 dated 17/04/2000 and registered on

18/04/2000 before the Sub-Registrar, kamrup at Guwahati. The proforma

defendant nos.2 and 3 have been in continuous possession of the aforesaid

land from the date of execution of the sale-deed till this date. The defendant

no.1 never purchased the suit land from the original owner at any point of

time. The proforma defendant nos.2 and 3 in need of their money sold out a

portion of land measuring 8 (Eight) Lechas out of Schedule-A land to the

plaintiff by executing a Registered Sale-Deed vide sale-deed no.3447/09 dated

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9 T.S. No.295/2010

25/03/2009 and the same was handed over to the plaintiff on the day of

execution of the sale-deed. Accordingly, the plaintiff took possession of the

same. The defendant no.1 has been trying to dispossess the proforma

defendants from the Schedule-A land since the year 2003 by adopting various

tactics, but the defendant no.1 could not success for his attempts. Finding no

any alternative, ultimately the defendant no.1 as plaintiff filed a suit being

Title Suit No.217/2006 (New) before the learned Munsiff No.3, Kamrup at

Guwahati against the proforma defendants as defendants. After receipt of

summons the proforma defendants as defendants appeared and filed their

joint written statement in the said suit. After hearing the parties and

considering the relevant materials on record, the learned Munsiff No.3

dismissed the suit. The proforma defendants are the absolute owners and

pattadars of the Schedule-A land except the suit land. The proforma

defendants purchased the Schedule-A land from original owner and pattadar

Dinesh Agarwalla by a registered sale-deed being deed no.2553 dated

18/04/2000. From the date of purchase, the proforma defendants have been

in continuous possession over the schedule-A land by constructing residential

house thereon. The names of the proforma defendants have been mutated in

the Revenue records and a pacca patta has also been issued in their names

and the defendants have been paying land revenues regularly in respect of the

Schedule-A land. Defendant No.1 has illegally got his name mutated in the

Revenue record in collusion with the Revenue Staff by showing a

manufactured sale-deed. Later on, his name has been struck off/deleted from

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10 T.S. No.295/2010

the Revenue Record by the Assistant Settlement Officer, Guwahati, by her

order dated 19/05/2009 passed in Misc. Case No.61/08-09. In the year2009,

the proforma defendants in need of their money had sold out a portion of land

measuring 8 (Eight) Lechas out of their Schedule-A land to the plaintiff. The

defendants handed over the possession of said 8 (Eight) Lechas of land to the

plaintiff on the date of execution of the sale-deed. Accordingly, the plaintiff

took possession of the same. Thereafter, the proforma defendants have no

any right and authority over the aforesaid 8 Lechas of land. Defendant no.1 at

no point of time ever possessed the Schedule-A land or suit land. Later on, the

proforma defendants came to know that the defendant no.1 along with some

unknown persons forcefully occupied the suit land.

6. Upon considering the pleadings of both the sides, the following issues have

been framed:-

F. ISSUES

1. Whether the plaintiff has been in possession of Schedule-B land?

2. Whether the plaintiff has acquired title of the Schedule-B land?

3. Whether the defendant had dispossessed the plaintiff?

4. Whether the plaintiff is entitled to the reliefs as prayed for?

G. DISCUSSION, DECISION AND REASONS THEREOF:-

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11 T.S. No.295/2010

7. The plaintiff has examined as many as 5 (Five) witnesses to prove his case.

The names of the plaintiff’s witnesses are as given below:-

PW-1:-Smti Ranjana Gupta

PW-2:- Sri Suresh Gupta

PW-3:- Md. Nizamuddin

PW-4:- Sri Kishen Pandit

PW-5:- Sri Birendra Gupta.

The PW-1 has exhibited certain documents which are as given below:-

Exhibit-1:- The copy of registered sale-deed no.3447/09.

Exhibit-1 (i) to 1 (x) :- The signatures of Sri Nikhil Chandra Shil Sarma i.e. the

proforma defendant no.1.

Exhibit-2 (i) to 2 (x):- The signatures of Smti Bishnupriya Shil Sarma i.e. the

proforma defendant-2.

Exhibit-3:- The signature of PW-1.

Exhibit-4:- NOC No. GMDA/LSP/292/20022009/14 dated 19/03/2009.

Exhibit-5:- The certified copy of Plaint of T.S. No.217/06 (New).

Exhibit-6:- The certified copy of Judgment and Decree dated 04/01/2008

passed in T.S. No.217/06 (New).

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12 T.S. No.295/2010

Exhibit-7:- The certified copy of the complaint petition of C.R. Case

No.4486/09.

Exhibit-7(i):- The signature of the PW-1’s husband i.e. signature of Suresh

Gupta.

Exhibit-8:- The photocopy of Final Patta.

The aforesaid PWs have reiterated the same facts as stated in the plaintiff.

The PWs have been cross-examined by the defendant side at length.

8. The defendant side has examined as many as 3 (Three) witnesses to

defend the suit. Their names are as given below:-

DW-1:- Dr. Lalit Deori

DW-2:- Smti Shila Rani Saha

DW-3:- Sri Madan Mandal.

DW-1 has exhibited certain documents which are as given below:-

Exhibit-1:- Copy of Sale-Deed bearing Deed No.4263/03 dated 26/09/2003.

Exhibit No.2:- Copy of the Pucca Patta No.428 of village-Odalbakra under

Beltola Mouza.

Proforma defendant No.1 as witness has exhibited the following documents:-

Exhibit-A:- Final Patta of the aforesaid land.

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13 T.S. No.295/2010

Exhibit-B:- The Jamabandi Copy

Exhibit-C:- The copy of Mutation order dated 19/06/2001.

Exhibit-D:- The copy of revenue paying receipt dated 05/11/2014.

Exhibit-E:- The copy of Misc. Case No.61/08-09.

Exhibit-F:- The copy of judgment dated 04/01/2008 in T.S. No.207/2006.

Exhibit-G:- The copy of judgment and decree dated 18/07/2014 passed by the

learned Civil Judge No.1, Kamrup at Guwahati in T.A. No.48/2009.

The defendant’s witnesses have reiterated the same facts as stated in the

plaint. The defendant’s witnesses have been cross-examined by the plaintiff

side at length.

Decision on issue no.1:-whether the plaintiff had been in possession

of the Schedule-B land?

Decision on issue no.2:- whether the plaintiff has acquired title of

the Schedule-B land?

9. For the purpose of convenience and proper adjudication of the suit, both

the issues are to be discussed and decided together as both the issues are

interrelated to each other.

10. The plaintiff in her plaint as well as evidence-on-affidavit has stated that

the proforma defendants by virtue of registered Sale-Deed No.2553 dated

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14 T.S. No.295/2010

17/04/2000 acquired right, title and interest over the land measuring 1 (One)

Katha 15 (Fifteen) Lechas covered by Dag No.33, 34/74 of K.P. Patta No.19 of

village-Udalbakra under Mouza-Beltola, District-Kamrup, Assam, which is

morefully described in schedule-A of the plaint and after taking over the

possession of the Schedule-A land, the proforma defendants constructed the

boundary wall over the said Schedule-A land and have been in possession over

the schedule-A land since the day of purchase of the said land except the land

which is later on sold to the plaintiff. On 25/03/2009, the plaintiff by virtue of

Regd. Sale-Deed No.3447/09 became the absolute owner of the Schedule-B

land and after purchase the proforma defendants delivered the khas

possession of the Schedule-B land to the plaintiff on the day of execution of

the aforesaid Deed dated 25/03/2009. The PW-1 during her cross-examination

has deposed that the suit land was originally owned by the proforma

defendants and they got the same from Dinesh Agarwalla. DW-1 in his

examination-in-chief has deposed that his vendor Sila Rani Saha was in

possession of about 1 Katha 13 Lechas land in the suit land of Dag Nos.33 and

34 out of which she had a sale-deed with respect to 1 katha 5 lechas land

executed by the pattadar Dinesh Kumar Agarwalla in the year 1993. Hence,

the admitted position is that Dinesh Kumar Agarwalla was the original owner

and pattadar of the suit land.

11. DW-1 has deposed that Dinesh Kumar Agarwalla had a large area of land

in the suit land covered by Dag No.33 and 34 of the patta No.19 of village-

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15 T.S. No.295/2010

Odalbakra under Beltola Mouza and as such Sila Rani Saha along with 1 Katha

5 Lechas land also possessed another 8 lechas of land since 1993 till she sold

away the land to him in the year 2003 by the sale-deed no.4263/2003 dated

25/09/2003. She also delivered possession of her additional 8 lechas land

along with her purchased land of 1 Katha 5 Lechas by taking full

consideration. As such he used to possess 1 Katha 13 Lechas land as

possessed by his vendor Sila Rani Saha. His name was mutated in the last re-

settlement operation of Guwahati city and in the patta no.428 and Dag No.103

issued in the last re-settlement operation of Guwahati city, his name was also

recorded as a pattadar along with other pattadars. Although the T.S.

No.217/2006 was dismissed with respect to the land measuring 1 katha 5

Lechas but the land measuring 8 Lechas remain in his possession as before

and he has been possessing the same by constructing chali houses which is

now in the occupation of his men. The DW-1 has denied that the plaintiff

purchased the suit land from proforma defendants. The proforma defendants

had no right and possession over the suit plot of land. The 8 (Eight) Lechas of

land was actually in the possession and occupation of his vendor and

thereafter the plaintiff has been possessing the suit land uninterruptedly,

continuously and peacefully with the knowledge and acquiescence of the real

owner Dinesh Kumar Agarwalla and thereby he had acquired prescriptive right

and his possession in the suit land has become adverse against the true owner

and he has acquired title over the suit land by dint of adverse possession.

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16 T.S. No.295/2010

12. The DW-1 in his cross-examination has deposed that he has not

specifically stated either in his written-statement or in his evidence-on-affidavit

how the Exhibit-1 (Sale-Deed No.3447/09) is fabricated. DW-1 has further

deposed that he forgot the date since when he has been in possession over

the suit land. He has not submitted any document pertaining to his possession

over the suit land. He has not paid any Govt. revenue in respect of the suit

land. His name is not mutated against the suit land.

13. The plea of adverse possession contemplates a hostile possession i.e. the

possession which is expressly or impliedly in denial of the title of the true

owner to the knowledge of the true owner and claiming the title as an owner

in himself by the person claiming to be in adverse possession. In other words,

such hostile possession shall not be secret and person in adverse possession

must not acknowledge the title of the true owner but has to deny the title of

the true owner. The adverse possession must be capable of being known by

the parties interested in the property, though it is not necessary that there

should be evidence of the adverse possessor actually informing the real owner

of the former’s hostile action. This shows that the possession must be nec vi

nec clam nec pecario i.e. in continuity, in publicity and in extent. This shows

that permissive possession is not hostile possession. So also, mere long

possession even for 100 years is not adverse possession. The law of adverse

possession is contained in the Indian Limitation Act, Article 65 Schedule I of

the Limitation Act prescribed a limitation of 12 years for a suit for possession

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17 T.S. No.295/2010

of immovable property or any interest therein based on title. The starting point

of limitation of 12 years is counted from the point of time “When the

possession of the defendants becomes adverse to the plaintiff.”Article 65 is an

independent article applicable to all suits of possessory immovable property

based on title i.e. proprietary title i.e proprietary title as distinct from

possessory title. If someone derives a title from a person in adverse

possession he can take the period of adverse possession enjoyed by earlier

person so as to complete his title as an owner by adverse possession for a

total period of 12 years. Thus, a person can usefully claim for the purpose of

his adverse possession even the adverse possession of his predecessor from

whom he derives right. However, a trespasser can’t take adverse possession of

earlier trespasser, since second trespasser can’t derive possession from earlier

trespasser. On perusal the Exhibit-F, it reveals that the defendant no.1, Dr. Lalit

Chandra Deuri as plaintiff filed a title suit vide Title Suit No.293/2004

(Old)/Title Suit No.217/2006 (new) against the defendants, namely, Sri Raj

Kumar Seal @ Nikhil Seal, Sri Chottu Seal and Smti Sila Rani Saha. This suit

was dismissed by the learned Munsiff No.3, Kamrup, Guwahati vide judgment

and order dated 04/01/2008 by holding that the plaintiff has failed to prove

that his vendor-Sila Rani Saha had acquired any title over the suit land as the

execution of sale-deed (i.e. by which the suit land was sold by Dinesh

Agarwala to Sila Rani Saha which sale-deed was exhibited as Exhibit-5) had

not been proved. Therefore, the learned Munsiff No.3, Kamrup, Guwahati held

that the plaintiff i.e. the present defendant could not have acquired any valid

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18 T.S. No.295/2010

right, title and interest over the suit land in absence of his vendor’s title. The

Exhibit-E, the order dated 19/05/2009 passed by the Settlement Officer (In-

Charge), Guwahati further reveals that the names of Dr. Lalit Deori and Smti

Shila Rani Saha are ordered to be struck off from the revenue record in the

plot of land measuring 4.68 Are in K. P. No.19/58 (Old) 600 (New) village-

Odalbakra. In view of the Exhibit-E and Exhibit-F, it reveals that the vendor i.e.

Sila Rani Saha of the defendant no.1,namely, Dr. Lalit Deori was merely a

trespasser in respect of 1 Katha 5 Lechas. Therefore, in view of the aforesaid

legal principle the defendant can’t take the plea of adverse possession as his

vendor did not have any right, title and interest in respect of the aforesaid plot

of land measuring 1 Katha 5 Lechas. The defendant no.1 as DW-1 has

deposed that his vendor was in possession of about 1 Katha 13 Lechas land in

the suit land covered by Dag Nos.33 and 34 out of which she had sale-deed

with respect to 1 katha 5 Lechas land executed by the pattadar Dinesh Kumar

Agarwalla in the year 1993. DW-1 has further deposed that Sila Rani Saha

along with 1 Katha 5 Lechas land also possessed another 8 Lechas land since

1993 till she sold away the land to him in the year 2003 by the sale-deed

no.4263/2003 dated 25/09/2003. Sila Rani Saha also delivered possession of

her additional 8 Lechas land along with her purchased land of 1 Katha 5

Lechas by taking full consideration. Hence, the plea of the defendant no.1 is

that the plot of land measuring 8 Lechas was an excess land but the

defendant no.1 has failed to prove that the plot of land measuring 8 Lechas is

an excess land. The burden is upon the defendant no.1 to prove that the land

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19 T.S. No.295/2010

measuring 8 Lechas is an excess land. In the sale-deed by means of which the

plot of land measuring 1 Katha 5 Lechas was sold to the defendant no.1 by

Sila Rani Saha, nowhere it is not mentioned that the possession of the plot of

land measuring 8 Lechas was handed over to the defendant no.1 along with

the plot of land measuring 1 katha 5 Lechas. DW-1 in his cross-examination

has deposed that he has not submitted any document pertaining to excess

land which he is in possession. DW-1 in his cross-examination has further

deposed that he used to keep care-taker in the existing Ek-Sali house in the

excess-land and he has not mentioned their names as witnesses and also not

called them for evidence. Furthermore, if the period of adverse possession of

the vendor of the defendant no.1 is taken into account, in that case also the

plea of adverse possession is not sustainable. The plea of the defendant is

that his vendor is in adverse possession of the suit land since the year 1993

and as such the period of adverse possession would be completed in the year

2005. But, the defendant no.1, Dr. Lalit Chandra Deori as plaintiff filed a suit

before the learned Munsiff No.3, Kamrup, Guwahati in the year 2004 vide Title

Suit No.293/2004 (Old)/Title Suit No.217/2006 (New) praying for declaration

of title, recovery of possession and permanent injunction. If the said reliefs

sought by the defendant no.1 in the Title Suit No.293/2004 (Old)/Title Suit

No.217/2006 (New) is presumed to be correct, then it is apparently clear that

defendant no.1 was dispossessed from the suit land prior to the year 2005. As

per the principle of adverse possession, the adverse possession must be

uninterrupted and in continuity. In view of the Title Suit filed by the defendant

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20 T.S. No.295/2010

no.1, it is proved that the adverse possession of his vendor is not in continuity

and as such the plea of adverse possession is not sustainable in law as

because the statutory time period of 12 years is not completed. Therefore, to

take the benefit of adverse possession over the plot of land measuring 8

Lechas i.e. suit land, the fresh time period is to be counted from the year

25/09/2003 when the sale-deed was executed between the defendant no.1

and Smti Sila Rani Saha. But, the instant suit has been filed in the year 2010

and as such the stipulated time period of 12 years has not been completed for

taking the benefit of adverse possession. In a recent judgment, Bangalore

Development Authority Vs. N. Jayamma, Civil Appeal

No.2238/2016(Reportable) the Hon’ble Supreme Court of India has

held that the period of the adverse possession can only be counted

from the date of purchase of the property and the period for which

the original vendor held the property, and the date of Mahazar could

not be counted.

14. Possession does not become adverse when the intention to hold

adversely is wanting. Person holding property by way of adverse possession

must publish his intention to deny right of the real owner. His intention of

adverse possession must be within notice, knowledge of the real owner. But,

in the instant case in hand, the defendant no.1 has not proved that his

adverse possession was within the knowledge of the real owner. Rather, the

defendant no.1 has not paid any land revenue, electricity bill, Municipal Taxes

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21 T.S. No.295/2010

etc. in respect of the suit land. In his cross-examination, DW-1 has deposed

that he has not paid any Govt. revenue in respect of the suit land. In his

cross-examination, DW-1 has further deposed that he has not submitted any

document pertaining to his possession of the suit land. Therefore, his

possession over the suit land is not open and as such the possession of the

defendant no.1 is not adverse against the actual owner.

15. The starting point of limitation of 12 years is counted from the point of

time “When the possession of the defendants becomes adverse to the

plaintiff.” But, the DW-1 during his cross-examination has deposed that he

forgot the date since when he has been in possession over the suit land.

Therefore, the date on which the possession of the defendant no.1 becomes

adverse to the plaintiff is material to take the benefit of adverse possession.

But, the defendant no.1 has failed to show the point of time from which the

adverse possession began.

16. On the other hand, the plaintiff has succeeded to prove that she was in

possession and title over the schedule-B land. The plaintiff as PW-1 has

deposed that the proforma defendants by virtue of registered Sale-Deed

No.2553 dated 17/04/2000 acquired right, title and interest over the land

measuring 1 (one) Katha 15 (Fifteen) lechas covered by Dag No.-33,34/74 of

K.P. Patta No.-19 of Village-Udalbakra under Mouza-Beltola, District-Kamrup,

Assam. The plaintiff has exhibited the judgment and order dated 04/01/2008

passed by the learned Munsiff No.3, kamrup (M), Guwahati as Exhibit-F. In the

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22 T.S. No.295/2010

said judgment, it is stated that-(page-6)- “The defendant no.1 as D.W.1

has stated that he along with his wife had purchased the suit land

from Dinesh Agarwalla vide Exhibit-Kaa and since then they are

possessing the same. The registration of this document has been

duly proved by the defendants though a competent official witness

(D.W.4) by calling for the original deed from the Office of Sub-

Registrar, Kamrup.” Exhibit-Kaa is the sale deed no.2553 dated

17/04/2000. The plaintiff on 25/03/2009 by virtue of Regd. Sale-Deed

No.3447/09 dated 25/03/2009 became the absolute owner of the Schedule-B

land and after purchase the proforma defendants delivered the khas

possession of the Schedule-B land to her on the day of execution of the

aforesaid Deed dated 25/03/2009. The said sale-deed dated 25/03/2009 has

been exhibited as Exhibit-1 and duly proved. Exhibit-1 is a registered

document and both the sides executed the sale-deed in presence of attesting

witnesses. The Exhibit-4,i.e. NOC No. GMDA/LSP/292/20022009/14 dated

19/03/2009, has proved that the GMDA issued No Objection Certificate to

transfer the plot of land measuring 1 katha 15 Lechas for the use of

Residential purpose by Sale/Gift/Lease/Mortgage to Smti Ranjana Gupta by

Shri Nikhil Chandra Shil Sarma, Smti Bishnupriya Shil Sarma. The Exhibit-A and

Exhibit-B exhibited by the plaintiff has proved that Sri Nikhil Chandra Shil

Sarma and Smti Bishnupriya Shil Sarma were the recorded pattadar in respect

of the suit land. Exhibit-C proves that the plot of land measuring 4.68 Are was

mutated in favour of Sri Nikhil Chandra Shil Sarma and Smti Bishnupriya Shil

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23 T.S. No.295/2010

Sarma. Therefore, it proves that the proforma defendant no.2 and 3 had right,

title and interest over the Schedule-A land. The defendant side during the

cross-examination of PW-1 has raised the question of admissibility of the

Exhibit-1 as the witness can’t read English or Assamese. In this regard, I

would like to go through the relevant provision of the Indian Evidence Act.

17. Section 91 in The Indian Evidence Act, 1872 reads as follows:-

91. Evidence of terms of contracts, grants and other dispositions of

property reduced to form of documents.—When the terms of a

contract, or of a grant, or of any other disposition of property, have

been reduced to the form of a document, and in all cases in which

any matter is required by law to be reduced to the form of a

document, no evidence shall be given in proof of the terms of such

contract, grant or other disposition of property, or of such matter,

except the document itself, or secondary evidence of its contents in

cases in which secondary evidence is admissible under the provisions

hereinbefore contained.—When the terms of a contract, or of a grant,

or of any other disposition of property, have been reduced to the

form of a document, and in all cases in which any matter is required

by law to be reduced to the form of a document, no evidence2 shall

be given in proof of the terms of such contract, grant or other

disposition of property, or of such matter, except the document

itself, or secondary evidence of its contents in cases in which

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24 T.S. No.295/2010

secondary evidence is admissible under the provisions hereinbefore

contained." Exception 1.—When a public officer is required by law to

be appointed in writing, and when it is shown that any particular

person has acted as such officer, the writing by which he is

appointed need not be proved. Exception 2.—Wills 2[admitted to

probate in 3[India]] may be proved by the probate. Explanation 1.—

This section applies equally to cases in which the contracts, grants or

dispositions of property referred to are contained in one document,

and to cases in which they are contained in more documents than

one. Explanation. 2.—Where there are more originals than one, one

original only need be proved. Explanation 3.—The statement, in any

document whatever, of a fact other than the facts referred to in this

section, shall not preclude the admission of oral evidence as to the

same fact. Illustrations

(a) If a contract be contained in several letters, all the letters in

which it is contained must be proved.

(b) If a contract is contained in a bill of exchange, the bill of

exchange must be proved.

(c) If a bill of exchange is drawn in a set of three, one only need be

proved.

(d) A contracts, in writing, with B, for the delivery of indigo upon

certain terms. The contract mentions the fact that B had paid A the

price of other indigo contracted for verbally on another occasion.

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25 T.S. No.295/2010

Oral evidence is offered that no payment was made for the other

indigo. The evidence is admissible.

(e) A gives B receipt for money paid by B. Oral evidence is offered of

the payment. The evidence is admissible.

18. When a transaction has been reduced to writing either by agreement of

the parties or by requirement of law, the writing becomes the exclusive

memorial thereof, and no evidence shall be given to prove the transaction,

except the document itself or secondary evidence of its contents where such

evidence is admissible. The rule is based on the principle that the best

evidence, of which the case in its nature is susceptible, should always be

presented….This rule does not demand the greatest amount of evidence which

can possibly be given of any fact, but its design is to prevent the introduction

of any which, from the nature of the case, supposes that better evidence is in

the possession of the party. The best evidence about the contents of a

document is the document itself and it is the production of the document that

is required by this section in proof of its contents.

19. Where the executant of a deed is an illiterate person it is incumbent that

the contents of the deed are read out and explained to such executant. The

disputed document in instant case does not contain any such endorsement

certificate that the contents were read out and explained to the executant.

However, absence of certificate or endorsement is not conclusive or decisive

and the burden can be discharged by other evidence.

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26 T.S. No.295/2010

20. From the materials available on record, it is clear that the plaintiff

understood the nature of transaction. PW-1 has deposed that the suit land

was originally owned by the proforma defendants and they got the same from

Dinesh Agarwalla. Thereafter, the plaintiff purchased the schedule-B land from

the proforma defendants vide Regd. Sale-Deed No.3447/09 dated 25/03/2009

and became the absolute owner of the Schedule-B land.

21. Hence, both the issues are decided in affirmative and in favour of the

plaintiff.

Decision on issue no.1:-The plaintiff had been in possession of the

Schedule-B land.

Decision on issue no.2:-The plaintiff has acquired title of the Schedule-B

land.

Decision on issue no.3:-Whether the defendant had dispossessed the

plaintiff?

22. The plaintiff in her plaint as well as evidence-on-affidavit has stated that

she has been in peaceful and uninterrupted possession over the suit land till

07/12/2009 since the day of purchase and during this period no one has ever

questioned her title nor any person has ever claimed any right over the suit

land. However, in a very shocking and sudden manner the main defendant

with his agents broke the lock of the iron gate of the entrance of the suit land

on 07/12/2009 at around 6 PM and entered the suit land. Thereafter, the main

defendant through his agents broke the lock of the “Tin-Chali” and entered the Typed by me


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27 T.S. No.295/2010

house and at that moment, her caretaker was not present, however at the

subsequent stage, the caretaker intimated her about such illegal trespass

committed by the defendant and his agents. The plaintiff on receiving of the

information about the aforesaid fact of illegal trespass immediately rushed to

the suit land along with her husband Sri Suresh Gupta and one of her staffs

Sri Tinku on that day itself and she and her husband asked the unknown

youths who were happened to be the agents of the main defendant but

instead of replying the query they first assaulted said Sri Tinku and thereafter

they threatened her and her husband of dire consequences if they would try

to enter the suit land. Thereafter, she through her husband lodged an FIR on

07/12/2009 before the Officer-in-Charge of Fatasil Ambari, Police Station with

a prayer to take necessary action against them. But, as the police did not take

any action, she through her husband approached the Hon’ble Chief Judicial

Magistrate,Kamrup on 10/12/2009 by filing a complaint case being C.R. Case

No.4486/2009 with a prayer to direct the officer-in-charge of Fatasil Ambari

Police Station to register a case and investigate the matter. Accordingly, the

Hon’ble Chief Judicial Magistrate, kamrup on entertaining the aforesaid

complaint case forwarded the matter to the concerned police station with

appropriate direction. The plaintiff as PW-1 has exhibited the certified copy of

the said complaint petition of C.R. Case No.4486/2009 as Exhibit-7 and the

signature of her husband as Exhibit-7(i). Hence, it is proved that the

defendant was dispossessed from the schedule-B land.

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28 T.S. No.295/2010

23. Hence, the issue is decided in affirmative and in favour of the plaintiff.

Decision:- The defendant had dispossessed the plaintiff.

Decision on issue no.4:-Whether the plaintiff is entitled to the reliefs

as prayed for?

24. In view of the discussions made in the foregoing issues, it is held that the

plaintiff is entitled to the reliefs as prayed by her. The plaintiff is entitled to the

following reliefs:-

(i) It is declared that the plaintiff has right, title and interest over the

Schedule-B land which is a part of Schedule-A land.

(ii) The defendant is liable to be evicted from the schedule-B land and the

plaintiff is entitled to recovery of khas possession by ejecting the defendant,

his agents and his person/persons acting on his behalf if any from the suit

land described in the Schedule-B of the plaint by demolishing the structure if

any made illegally by the defendant thereon.

(iii) For a decree of permanent injunction restraining the defendant and his

agents, employees or any other person(s) acting on his behalf from entering

into the suit land described in the Schedule-B of the plaint.

(iv) Cost of the suit.

25. Hence, the issue is decided in affirmative and in favour of the plaintiff.

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29 T.S. No.295/2010

Decision:-The plaintiff is entitled to the reliefs as prayed for.

H.ORDER

26. The suit is decreed on contest with cost. The plaintiff is entitled to the

decree as prayed by her.

27. Prepare preliminary decree accordingly.

28. Given under my hand and seal on this day of 9th day of December, 2016 at

Guwahati.


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30 T.S. No.295/2010

Appendix

Plaintiff’s Witness:

PW-1:-Smti Ranjana Gupta

PW-2:- Sri Suresh Gupta

PW-3:- Md. Nizamuddin

PW-4:- Sri Kishen Pandit

PW-5:- Sri Birendra Gupta.

Defendant’s Witness:

DW-1:- Dr. Lalit Deori

DW-2:- Smti Shila Rani Saha

DW-3:- Sri Madan Mandal.

Plaintiffs Exhibits:

Exhibit-1:- The copy of registered sale-deed no.3447/09.

Exhibit-1 (i) to 1 (x) :- The signatures of Sri Nikhil Chandra Shil Sarma i.e.

the proforma defendant no.1.

Exhibit-2 (i) to 2 (x):- The signatures of Smti Bishnupriya Shil Sarma i.e.

the proforma defendant-2.

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31 T.S. No.295/2010

Exhibit-3:- The signature of PW-1.

Exhibit-4:- NOC No. GMDA/LSP/292/20022009/14 dated 19/03/2009.

Exhibit-5:- The certified copy of Plaint of T.S. No.217/06 (New).

Exhibit-6:-The certified copy of Judgment and Decree dated 04/01/2008

passed in T.S. No.217/06 (New).

Exhibit-7:-The certified copy of the complaint petition of C.R. Case

No.4486/09.

Exhibit-7(i):-The signature of the PW-1’s husband i.e. signature of Suresh

Gupta.

Exhibit-8:-The photocopy of Final Patta.

Defendants’ Exhibits:

Exhibit-1:- Copy of Sale-Deed bearing Deed No.4263/03 dated 26/09/2003.

Exhibit No.2:-Copy of the Pucca Patta No.428 of village-Odalbakra under

Beltola Mouza.

Exhibit-A:-Final Patta of the aforesaid land.

Exhibit-B:-The Jamabandi Copy

Exhibit-C:-The copy of Mutation order dated 19/06/2001.

Exhibit-D:-The copy of revenue paying receipt dated 05/11/2014.

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32 T.S. No.295/2010

Exhibit-E:-The copy of Misc. Case No.61/08-09.

Exhibit-F:-The copy of judgment dated 04/01/2008 in T.S. No.207/2006.

Exhibit-G:-The copy of judgment and decree dated 18/07/2014 passed by

the learned Civil Judge No.1, Kamrup at Guwahati in T.A. No.48/2009.


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