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Friday, March 14, 2014

Declaration and for recovery of encroached portion - Amin commissioner report held incomplete as it failed to fix the encroached portion and failed to measure some points noted - Lower court dismissed the suit as excutant of sale deed not examined and also counter claim of defendants - Appeal too resulted in dismissal along with cross objection - in second appeal , high court partly allowed the appeal and declared the title but failed to grant recovery of encroached portion and also dismissed the review petition - Apex court set aside the review petition and remitted the case to trial court for fresh adjudication with regard to the reliefs of recovery of khas possession of schedule-2 property and permanent injunction, only and the parties are permitted to adduce evidence and the Trial Court after adjudication shall pass a comprehensive decree in respect of all the reliefs claimed in the suit. = Phanidhar Kalita .. Appellant(s) -vs- Saraswati Devi & Anr. .. Respondent(s) = 2014 (March. Part ) judis.nic.in/supremecourt/filename=41320

  Declaration and for recovery of encroached portion -  Amin commissioner report held incomplete as it failed to fix the encroached portion and failed to measure some points noted - Lower court dismissed the suit as excutant of sale deed not examined and also counter claim of defendants - Appeal too resulted in dismissal along with cross objection - in second appeal , high court partly allowed the appeal and declared the title but failed to grant recovery of encroached portion and also dismissed the review petition - Apex court set aside the review petition and remitted the case to trial court for fresh adjudication  with  regard  to  the  reliefs  of  recovery  of  khas  possession  of schedule-2 property and permanent injunction, only and the parties are permitted to adduce evidence  and  the Trial Court after adjudication shall pass a comprehensive decree in  respect of all the reliefs claimed in the suit. =

  The appellant/plaintiff herein filed the  Title  Suit  no.11  of  1987
against the respondent/defendant no.1 herein in the  Court  of  Civil  Judge
(Junior Division) no.2, Mangaldoi for declaration of title in respect  of  1
katha 16 lechas of land described in schedule-1 to  the  plaint  covered  by
Dag no.52/575 of P.P. no.960 situated in village  Mangaldoi  gaon  and  also
for recovery of khas possession of the suit land  described  in  schedule-2,
which is a part of the land in schedule-1 by demolishing the  structure  put
by respondent no.1 herein/defendant no.1 and also for  permanent  injunction
restraining   the   respondents   herein/defendants   from    raising    new
constructions on the suit land.=
The Trial  Court  on  consideration  of  the
oral and documentary evidence dismissed the suit  as  well  as  the  counter
claim. 
The appellant/plaintiff preferred Second Appeal in  R.S.A.  no.116
of 2000 and the Guwahati High Court held that  the  appellant/plaintiff  had
title to the suit property in schedule-1  and  partly  allowed  the  appeal.
The appellant/plaintiff herein filed Review Petition no.1  of  2008  stating
that since the main relief had been granted, the  consequential  relief  for
khas possession of schedule-2 property ought to have been  granted  to  him.
The High Court dismissed the Review Petition.  
Challenging the rejection  of the relief of recovery of khas possession of  schedule-2  property  and  the relief of permanent injunction in  the  Judgment  as  well  as  Review,  the
appellant/plaintiff has preferred the present appeals to this Court.=

 Respondent no.1/defendant no.1 filed written  statement  stating  that
she purchased 1 bigha of land from Bati Ram on 4.8.1955  and  constructed  a
thatched house and she has not encroached on the suit  land  as  alleged  by
the appellant/plaintiff.

4.    Respondent no.2 herein/defendant no.2 impleaded himself  in  the  suit
and in his written statement he  took  the  identical  plea  raised  by  the
respondent  no.1/defendant  no.1  in  her  written  statement.   He  further
asserted that he never sold the suit  property  to  the  appellant/plaintiff
and the sale deed dated 12.7.1977 is a  forged  one  and  he  also  filed  a
counter claim  seeking  declaration  of  title  to  the  suit  property  and
recovery of possession of the same from the appellant/plaintiff.=


  “(i)  Whether the learned courts below were justified in holding
           that  Ext.4  sale  deed  was  not  proved,  merely  because  the
           executant of the deed was not examined?



           (ii)  Whether the learned courts below failed  to  consider  some
           relevant  materials  such  as  Ext.2,  Ext.5  and  whether   non-
           consideration of such material has vitiated the judgments?



           (iii) Whether the learned trial  court  was  justified  to  brush
           aside the amin commissioner’s report by  observing  that  it  was
           incomplete and biased?”

By an elaborate judgment the High  Court  held  that  the  findings  of  the
courts  below  that  the  appellant/plaintiff  had  failed  to   prove   his
registered sale deed dated 12.7.1977 are perverse and upheld  the  title  of
the appellant/plaintiff to the suit property in schedule-1  and  accordingly
partly allowed the appeal by setting aside the portion of the  judgment  and
decree of the courts below in that regard.  

In other words, the  High  Court
answered the substantial question of law no.1 only  and  omitted  to  answer
the  other  two   substantial   questions   of   law   cited   supra.    
The
appellant/plaintiff pointed out  the  said  omission  by  filing  Review  in
Review Petition no.1 of 2008.  However,  the  High  Court  dismissed  it  by
holding that no ground is made out for Review.

9.    The learned counsel for  the  appellant/plaintiff  contended  that  on
appellant/plaintiff’s petition Amin Commissioner was  appointed  to  measure
the land in possession of the  appellant/plaintiff  as  well  as  respondent
no.1/defendant no.1 and the said Amin Commissioner  was  examined  as  Court
witness no.1 and the Courts below were not  justified  to  brush  aside  the
Amin Commissioner’s report and  decree  ought  to  have  been  granted  with
regard to the other reliefs prayed  for  by  the  appellant/plaintiff.   
Per
contra the learned counsel for  the  respondents/defendants  contended  that
the Amin Commissioner has not measured the whole of surrounded dags of  suit
land and his report is incomplete, as rightly held by both the Courts  below
dealing on factual matrix.

10.   We carefully considered the rival contentions and  the  records.   The
title of  the  appellant/plaintiff  to  the  suit  schedule-1  property  has
already been declared by the High Court and that finding has  become  final.
The Trial Court as well as the Lower Appellate  Court  held  that  the  Amin
Commissioner has not measured the dags falling north east-east west  of  the
appellant/plaintiff’s land and the respondent  no.1/defendant  no.1’s  land.
Whether schedule-2 is encroached property of the  respondent  no.1/defendant
no.1 as  alleged  by  the  appellant/plaintiff  has  to  be  determined  for
adjudicating the other reliefs claimed in the plaint.

11.   In the interest of justice, we deem it fit to remit the matter to  the
Trial Court for fresh adjudication with regard to the  reliefs  of  recovery
of possession and permanent injunction only.

12.   The appeals are allowed and the impugned judgment and  decree  of  the
High Court,  declining  the  reliefs  of  recovery  of  khas  possession  of
schedule-2 property and permanent injunction, are set aside and  the  matter
is remitted to the Trial Court for fresh adjudication  with  regard  to  the
said reliefs only and the parties are permitted to adduce evidence  and  the
Trial Court after adjudication shall pass a comprehensive decree in  respect
of all the reliefs claimed in the suit.  No costs.  Since the title suit  is
of the year 1987 the Trial Court shall endeavour to dispose of the  same  as
expeditiously as possible preferably within a period of six months from  the
date of receipt of records.

2014 (March. Part ) judis.nic.in/supremecourt/filename=41320
T.S. THAKUR, C. NAGAPPAN
                                                         NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS.2924 - 2925 OF 2014


Phanidhar Kalita                           ..       Appellant(s)


      -vs-



Saraswati Devi & Anr.                      ..    Respondent(s)



                               J U D G M E N T

C. NAGAPPAN, J.



1.    These appeals are preferred against  the  judgment  and  decree  dated
23.3.2007 in R.S.A. No.116 of 2000 and the order dated  1.4.2008  in  Review
Petition no.1 of 2008 passed by the learned single  Judge  of  the  Guwahati
High Court, whereby the High Court has partly  allowed  the  Regular  Second
Appeal and dismissed the  Review  Petition,  both  filed  by  the  appellant
herein.

2.    The appellant/plaintiff herein filed the  Title  Suit  no.11  of  1987
against the respondent/defendant no.1 herein in the  Court  of  Civil  Judge
(Junior Division) no.2, Mangaldoi for declaration of title in respect  of  1
katha 16 lechas of land described in schedule-1 to  the  plaint  covered  by
Dag no.52/575 of P.P. no.960 situated in village  Mangaldoi  gaon  and  also
for recovery of khas possession of the suit land  described  in  schedule-2,
which is a part of the land in schedule-1 by demolishing the  structure  put
by respondent no.1 herein/defendant no.1 and also for  permanent  injunction
restraining   the   respondents   herein/defendants   from    raising    new
constructions on the suit land.  The  case  of  the  appellant/plaintiff  is
that he purchased 1 bigha of land, mentioned in schedule-1, from  one  Mukta
Ram  Saikia  by  Exh.4  registered  sale  deed  dated  12.7.1977  and   took
possession of the same and got mutation of his name in  the  revenue  record
and obtained patta Exh.5 also.  It is his further case that  the  respondent
no.1/defendant no.1 also purchased 1 bigha of land from the original  common
owner  Bati  Ram,  which  is  the   adjacent   northern   portion   of   the
appellant/plaintiff’s land in schedule-1 and in  November,  1978  respondent
no.1/defendant  no.1  constructed  a  thatched  house  by  encroaching  some
portion of the appellant/plaintiff’s land in schedule-1 and on  measurement,
it is found that respondent no.1/defendant no.1 had encroached an extent  of
1 katha 16 lechas which is described as schedule-2 in the plaint.



3.    Respondent no.1/defendant no.1 filed written  statement  stating  that
she purchased 1 bigha of land from Bati Ram on 4.8.1955  and  constructed  a
thatched house and she has not encroached on the suit  land  as  alleged  by
the appellant/plaintiff.

4.    Respondent no.2 herein/defendant no.2 impleaded himself  in  the  suit
and in his written statement he  took  the  identical  plea  raised  by  the
respondent  no.1/defendant  no.1  in  her  written  statement.   He  further
asserted that he never sold the suit  property  to  the  appellant/plaintiff
and the sale deed dated 12.7.1977 is a  forged  one  and  he  also  filed  a
counter claim  seeking  declaration  of  title  to  the  suit  property  and
recovery of possession of the same from the appellant/plaintiff.

5.    The said counter claim was  resisted  by  the  appellant/plaintiff  by
filing a written statement.

6.    The trial Court framed 17 issues and the appellant/plaintiff  examined
himself and examined 5 other witnesses and marked 22 documents on his  side.
 The respondents/defendant no.1 and 2 examined  themselves  and  examined  4
other witnesses on their side.  The Trial  Court  on  consideration  of  the
oral and documentary evidence dismissed the suit  as  well  as  the  counter
claim.  The appellant/plaintiff preferred an appeal  against  the  dismissal
of the suit in Title Appeal no.8 of 1998  before  the  Civil  Judge  (Senior
Division), Darrang at  Mangaldoi  and  the  respondent  no.2/defendant  no.2
preferred a cross objection and the Lower Appellate Court dismissed both  on
contest.  The appellant/plaintiff preferred Second Appeal in  R.S.A.  no.116
of 2000 and the Guwahati High Court held that  the  appellant/plaintiff  had
title to the suit property in schedule-1  and  partly  allowed  the  appeal.
The appellant/plaintiff herein filed Review Petition no.1  of  2008  stating
that since the main relief had been granted, the  consequential  relief  for
khas possession of schedule-2 property ought to have been  granted  to  him.
The High Court dismissed the Review Petition.  Challenging the rejection  of
the relief of recovery of khas possession of  schedule-2  property  and  the
relief of permanent injunction in  the  Judgment  as  well  as  Review,  the
appellant/plaintiff has preferred the present appeals to this Court.

7.    The learned counsel appearing for the  appellant  submitted  that  the
High Court held that the findings of the Courts below  with  regard  to  the
validity of sale deed of the appellant/plaintiff was  perverse  and  allowed
the Second Appeal in part but  erred  in  not  granting  the  other  reliefs
prayed for by the appellant/plaintiff in the suit namely  recovery  of  khas
possession of schedule-2 property and permanent injunction,  though  it  had
framed substantial questions of law with regard to them.  We also heard  the
learned counsel appearing for the respondents.

8.    The appellant/plaintiff herein  has  prayed  for  declaration  of  his
title to the suit property in schedule-1  and  also  for  recovery  of  khas
possession of the land described in schedule-2 which  is  part  of  land  in
schedule-1  by   demolishing   the   structure   put   by   the   respondent
no.1/defendant no.1 herein and also  for  permanent  injunction  restraining
the respondents/defendants herein from putting up new  construction  at  the
suit land.  By concurrent findings, the Trial Court and the Lower  Appellate
Court dismissed the entire suit.  The High Court admitted the Second  Appeal
preferred by the appellant/plaintiff by framing  the  following  substantial
questions of law :

           “(i)  Whether the learned courts below were justified in holding
           that  Ext.4  sale  deed  was  not  proved,  merely  because  the
           executant of the deed was not examined?



           (ii)  Whether the learned courts below failed  to  consider  some
           relevant  materials  such  as  Ext.2,  Ext.5  and  whether   non-
           consideration of such material has vitiated the judgments?



           (iii) Whether the learned trial  court  was  justified  to  brush
           aside the amin commissioner’s report by  observing  that  it  was
           incomplete and biased?”

By an elaborate judgment the High  Court  held  that  the  findings  of  the
courts  below  that  the  appellant/plaintiff  had  failed  to   prove   his
registered sale deed dated 12.7.1977 are perverse and upheld  the  title  of
the appellant/plaintiff to the suit property in schedule-1  and  accordingly
partly allowed the appeal by setting aside the portion of the  judgment  and
decree of the courts below in that regard.  In other words, the  High  Court
answered the substantial question of law no.1 only  and  omitted  to  answer
the  other  two   substantial   questions   of   law   cited   supra.    The
appellant/plaintiff pointed out  the  said  omission  by  filing  Review  in
Review Petition no.1 of 2008.  However,  the  High  Court  dismissed  it  by
holding that no ground is made out for Review.

9.    The learned counsel for  the  appellant/plaintiff  contended  that  on
appellant/plaintiff’s petition Amin Commissioner was  appointed  to  measure
the land in possession of the  appellant/plaintiff  as  well  as  respondent
no.1/defendant no.1 and the said Amin Commissioner  was  examined  as  Court
witness no.1 and the Courts below were not  justified  to  brush  aside  the
Amin Commissioner’s report and  decree  ought  to  have  been  granted  with
regard to the other reliefs prayed  for  by  the  appellant/plaintiff.   Per
contra the learned counsel for  the  respondents/defendants  contended  that
the Amin Commissioner has not measured the whole of surrounded dags of  suit
land and his report is incomplete, as rightly held by both the Courts  below
dealing on factual matrix.

10.   We carefully considered the rival contentions and  the  records.   The
title of  the  appellant/plaintiff  to  the  suit  schedule-1  property  has
already been declared by the High Court and that finding has  become  final.
The Trial Court as well as the Lower Appellate  Court  held  that  the  Amin
Commissioner has not measured the dags falling north east-east west  of  the
appellant/plaintiff’s land and the respondent  no.1/defendant  no.1’s  land.
Whether schedule-2 is encroached property of the  respondent  no.1/defendant
no.1 as  alleged  by  the  appellant/plaintiff  has  to  be  determined  for
adjudicating the other reliefs claimed in the plaint.

11.   In the interest of justice, we deem it fit to remit the matter to  the
Trial Court for fresh adjudication with regard to the  reliefs  of  recovery
of possession and permanent injunction only.

12.   The appeals are allowed and the impugned judgment and  decree  of  the
High Court,  declining  the  reliefs  of  recovery  of  khas  possession  of
schedule-2 property and permanent injunction, are set aside and  the  matter
is remitted to the Trial Court for fresh adjudication  with  regard  to  the
said reliefs only and the parties are permitted to adduce evidence  and  the
Trial Court after adjudication shall pass a comprehensive decree in  respect
of all the reliefs claimed in the suit.  No costs.  Since the title suit  is
of the year 1987 the Trial Court shall endeavour to dispose of the  same  as
expeditiously as possible preferably within a period of six months from  the
date of receipt of records.





                                                               ………………………….J.
                                                               (T.S. Thakur)






                                                                …………………………J.
                                                               (C. Nagappan)
New Delhi;
March  14, 2014.


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