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2025 DAILYLAW 3656 (GAU)

Babul Sarma v. Mridul Bhagawati

2025-07-15

Robin Phukan

body2025
JUDGMENT : ROBIN PHUKAN, J. Heard Mr. U.B. Sarma, learned counsel for the appellants and also heard Mr. P.S. Deka, learned Senior Counsel assisted by Ms. A. Bujarbaruah, learned counsel for the respondents. 2. In this second appeal, under Section 100 of the Code of Civil Procedure, 1908, the appellants have challenged the judgment and decree, dated 22.01.2015, passed by the learned District Judge, Nalbari, in Title Appeal No.5/2013 arising out of the judgment and decree dated 14.08.2013, passed by the learned Civil Judge, Nalbari, in Title Suit No.02/2011. It is to be noted here that vide impugned judgment and decree dated 22.01.2015, the learned District Judge, Nalbari ('First Appellate Court' for short), had upheld the judgment and decree dated 14.08.2013,passed by the learned Civil Judge, Nalbari (trial court hereinafter) in T.S. No. 02 of 2011 whereby the learned Civil Judge had dismissed the suit of the appellants/plaintiffs and upheld the decree passed in the counter claim of the present respondents/defendants Nos.6 and 7. 3. For the sake of convenience and also to avoid confusion, the parties herein are referred to in the same status, as appeared in the title suit, being Title Suit No.2/2011. 4. The background facts leading to filing of the present appeal is briefly stated as under:- “The case of the appellants/plaintiffs is that a plot of land, measuring 2 kathas, under Dag No.961 of K.P. Patta No.322 and another plot of land measuring 1 katha, covered by Dag No.962 of K.P. Patta No.305 of village Kaljar, under Mouza- Paschim Baksa, described in the Schedule-A of the plaint, originally belonged to Late Sarat Bhagawati, the father of respondent/defendant Nos.1—4 and husband of respondent/defendant No.5, respectively. Late Sarat Bhagawati was in possession of the Schedule-A land till 1994. Late Sarat Bhagawati was in possession of the Schedule-A land till 1994. During the lifetime of Late Sarat Bhagawati, the plaintiffs, who are the brothers, on 11.11.1994, entered into a plot of land measuring 15 lechas (suit land) to occupy and possession, which is the western portion of the Schedule-'A' land, and the suit land is specifically described in Schedule-'B' of the plaint and having entered into possession of the suit land i.e. Schedule-'B' land, the plaintiffs developed the land by earth filling and constructed one 'Gumti' over there, and started one shop in the name and style of 'Baba Bhandar' in the said 'Gumti' and the plaintiffs also erected boundary fencing around the suit land, and since then the suit land has been under their possession till date with the knowledge of Sarat Bhagawati and his family members. The remaining portion of the Schedule-'A' land except the suit land is under possession of the defendant Nos.1—5. The plaintiffs have been continuing their business in the suit land since 11.11.1994, and thereafter, in the year 2006, after retirement of plaintiff No.1 from defence service, he renovated the shop named as 'Baba Bhandar' to a Assam type wooden house and started a grocery and stationary shop, keeping the name of the shop as 'Baba Bhandar' and until retirement of the plaintiff No.1, in the year 2006, plaintiff No.2 used to look after the business mostly over the suit land. The plaintiff No.1 also used to look after the same whenever possible and the plaintiffs also told Sarat Bhagawati that the suit land will not be given to them anymore and neither Sarat Bhagawati nor the defendant Nos. 1—5, who used to visit the suit land, raised any objection regarding the possession of the plaintiffs and construction over the suit land. Then in the year 2007, the defendant No.1, with a view to start construction, raised concrete post by the side of the suit land excluding the suit land. But the said construction could not proceed further, as on 27.09.2007, Sarat Bhagawati suffered demise leaving behind the defendant Nos.1—5 as his legal heirs. The defendant Nos.1—5 were aware of about the possession of the suit land by the plaintiffs, as the house of Sarat Bhagawati stands near the suit land. But the said construction could not proceed further, as on 27.09.2007, Sarat Bhagawati suffered demise leaving behind the defendant Nos.1—5 as his legal heirs. The defendant Nos.1—5 were aware of about the possession of the suit land by the plaintiffs, as the house of Sarat Bhagawati stands near the suit land. Thereafter, on 10.02.2011, in the morning, the defendant No.1 came to the suit land and asked the plaintiffs to vacate the suit land as he sold the entire 'A' schedule land. The plaintiffs then raised objection and told the defendant No.1 that he has no right to sale the suit land and refused to vacate the suit land. Thereafter, the plaintiffs inquired about sale deed and came to know about the execution of the sale deed and obtained certified copy of the sale deed bearing No.8/2011, dated 10.02.2011, executed by the defendant No.1 in favour of the defendant Nos.6 and 7 and in the said sale deed it is mentioned that possession of 'A' schedule land has been handed over to the purchaser, but in fact, the defendant No.1, Shri Mridul Bhagawati still not able to handover the possession of the land to the defendant Nos.6 and 7 and therefore, the defendant No.1 with a view to handover the vacant possession of the 'A' schedule land, asked the plaintiffs to vacate the suit land and in spite of refusal of the plaintiffs to vacate the suit land, the defendant No.1 again asked the plaintiffs on 14.02.2011 to vacate the suit land immediately. But, the plaintiffs refused to vacate the same and ultimately, on 14.03.2011, the defendant No.1 had threatened the plaintiffs to vacate the land. But, the plaintiffs refused to vacate the same and ultimately, on 14.03.2011, the defendant No.1 had threatened the plaintiffs to vacate the land. It is the pleaded case of the plaintiffs that after the death of Sarat Bhagawati, they told the defendant Nos.1—5, that the suit land will not be given to them at any cost and not to think it as their own land and since 1994 the plaintiffs are in possession of the suit land and continuing their business over there with the knowledge of Sarat Bhagawati and the present defendants and they have exclusive, continuous and undisturbed possession over the suit land since 11.11.1994, with the knowledge of Sarat Bhagawati and his legal heirs and the plaintiffs possession over the suit land is adverse to the real owner of the suit land and in spite of knowing all this, the defendant No.1 sold the suit land to the defendant Nos.6 and 7 and that the defendant Nos.6 and 7 knowing all these facts, purchased the suit land without taking delivery of the possession of the suit land. It is the further pleaded case of the plaintiffs that they have been continuously possessing the suit land since 11.11.1994 and they are also members of “Barama Byabasayee Santha” and in this respect a certificate was issued by the “Santha” in the year 1995 and the plaintiffs also obtained electricity connection in the name of their father in the shop, situated over the suit land, in the year 2006, and that the grocery shop is the only source of earning of the plaintiffs and since 1994, the defendants remained silent and suddenly, on 10.02.2011, they asked the plaintiffs to vacate the suit land and their possession is hostile as they with the knowledge of the real owner entered into possession of the suit land and the defendant No.1 had illegally sold the suit land. Then the plaintiffs had instituted Title Suit No. 02/2011 before the learned trial court praying for a decree declaring the right, title and interest of the plaintiffs over the suit land described in Schedule -'B' land, by way of adverse possession, permanent injunction and also for cancellation of the Sale Deed No. 8/11 dated 10.02.2011, and cost of the suit etc. The defendants, on receipt of notice entered appearance and filed written statement jointly denying the case of the plaintiffs and also by stating that there is no cause of action and the suit is bad for non-joinder of necessary party and it is not maintainable. The defendants had also stated that in the year 2006, when the plaintiff No.1 after retirement from his service, came to his native village, being distant relative of Sarat Bhagawati, both the plaintiffs sought permission from Sarat Bhagawati to possess the Schedule-'B' land, because they shifted their shop 'Baba Bhandar' to this place which is situated at main market of Barama. The plaintiffs promised before Sarat Bhagawati that they would vacate the land after their resettlement in the market or when Sarat Bhagawati or his legal heirs would ask them to vacate the same. At the relevant point of time, Sarat Bhagawati was bed ridden for his old age ailment. However, he gave permission to possess the land for about 2 or 3 years and also asked them that they must be prepared to vacate the same whenever he or his legal heirs asked for and therefore, the question of acquiring right, title and interest over the suit land by the plaintiffs by way of adverse possession does not arise at all. It is the further case of the defendants that 'Baba Bhandar' was originally situated at a distance of about 100 metres from the suit land, and after taking permission for possessing the suit land, they have shifted the shop to the suit land and accordingly, electricity connection was taken in the shop in the year 2006, in the name of their father. They have also stated that the legal heirs of Late Sarat Bhagawati are the owners of 3 kathas of land of both the suit pattas and defendant No.1, Shri Mridul Bhagawati sold 3 kathas of land to defendant Nos.6 and 7, by executing a registered sale deed and also delivered possession of the entire 3 kathas of land including Schedule-'B' land of the plaint in presence of the villagers and also both the plaintiffs on 12.02.2011, and both the plaintiffs stated before the villagers that as soon as possible they would vacate the Schedule-'B' land and accordingly, after being satisfied with the report of the Lat Mandal of village Kaljar, the Circle Officer, Barama mutated the names of the defendant Nos.6 and 7 in the Chitha by virtue of purchase in place of defendant No.1, in both the suit patta on the day of 23.02.2011, and 24.02.2011, which was corrected in the Sadar Jamabandi also on 28.02.2011 and accordingly, right, title and interest of Schedule-'A' land was acquired by the defendant Nos.6 and 7 and the plaintiffs with a view to grab the Schedule-'B' land, which falls within Schedule-'A' land, instituted the suit only to harass the defendants. The plaintiffs entered into the possession of the suit land only in the year 2006, and therefore, the question of acquiring right, title and interest by way of adverse possession, does not arise and that the defendant Nos.6 and 7 are bona-fide purchasers of Schedule-A land and therefore, the defendant Nos.6 and 7 are entitled to get relief through decree of eviction of the plaintiffs from the Schedule-'B' land and for recovery of possession. The defendant Nos.6 and 7 had filed counter claim in the suit along with their written statement. It is stated that they are bona-fide purchasers of the Schedule-'A' land and they purchased it from defendant No.1 at a consideration of Rs.3,00,000/- only and the defendant No.1 being the owner of Schedule-'A' land executed registered sale deed No.8/2011, on 10.02.2011, in favour of the defendant Nos.6 and 7 and after execution of the sale deed, the defendant No.1 delivered physical possession of the land to the defendant Nos.6 and 7 on 12.02.2011, in presence of the villagers and the plaintiffs and both the plaintiffs on that day promised to vacate the Schedule-'B' land by shifting their shop named 'Baba Bhandar' to another place as soon as possible. But, instead of vacating the same, they had instituted the title suit, by suppressing the material facts and that the plaintiffs have no right to occupy the Schedule-'B' land and they are liable to be evicted and therefore, it is contended to pass a decree on the counter claim by evicting the plaintiffs from the land described in the schedule of the counter claim. The plaintiffs have filed their written statement, against the counter claim of defendant No.6-7, and it is contended that there is no cause of action to file counter claim and the same is not maintainable and that they have acquired right, title and interest over the suit land by way of adverse possession and that the defendant Nos.6 and 7 are not owners of the suit land and therefore, they have no right to file any suit for eviction of the plaintiffs. Upon the aforementioned pleadings, the learned Trial Court has framed following issues:- (i) Whether there is any cause of action for the suit? (ii) Whether the suit is bad for non-joinder of necessary parties? (iii) Whether the plaintiffs have been possessing the suit land for more than 12 years against the interest of the defendants? (iv) Whether the defendants have right, title and interest over the suit land as averred in the counter claim? (v) Whether the sale deed No.8/2011 is liable to be cancelled? (vi) Whether the suit is properly valued? (vii) To what relief or reliefs the parties are entitled to? Thereafter, considering the evidence of three witnesses, so examined by the plaintiffs, and five witnesses, so examined by the defendant Nos.1 and 6 and also considering the documents exhibited by both the parties, the learned Trial Court has dismissed the suit of the plaintiffs and decreed the counter claim of the defendant Nos.6 and 7. Being aggrieved, the plaintiffs filed the Title Appeal No.5/2013 before the learned first appellate court. The learned first appellate court has not formulated any point for determination while deciding the appeal, instead it has directed the discussion upon the issues so framed and dealt with by the learned Trial Court and thereafter, vide impugned judgment and decree dated 22.01.2015, the learned first appellate court has dismissed the appeal and thereby upheld the judgment and decree passed by the learned Trial Court in the counter claim, filed by the defendant Nos.6 and 7. 5. 5. Being aggrieved, the appellants/plaintiffs, approached this Court by filing the present appeal, which was admitted by this Court on 22.05.2015 on the following substantial questions of law:- 1) Whether the learned Courts below committed error in declaring title of the defendant Nos.6 and 7 over the whole plot of land? 2) Whether in absence of any issue in regard to recovery of possession the learned Courts below committed error in decreeing the counter claim for eviction of the plaintiffs from the suit land? 6. Mr. Sarma, learned counsel for the appellants/plaintiffs, submits that in the plaint and also in their evidence, the plaintiffs and their witnesses deposed about possession of the suit land by the plaintiffs since 11.11.1994, and the same is adverse to the interest of the defendants, and though the respondents/defendants have stated that the plaintiffs have been occupying the suit land since 2006, the same is incorrect, because since 11.11.1994, the plaintiffs have been possessing the same adverse to the interest of the defendants and by right of adverse possession they are the owners of the aforesaid plot of land and that the suit land is not identifiable as mandated by Order 7 Rule 7 of the CPC and in the counter claim the defendant Nos.6 and 7 have not made any averment, and the learned Trial Court has committed error in declaring right, title and interest over the suit land and this is a fit case for remand under Order 41 Rule 25 of the CPC after framing an issue, as the learned First Appellate Court has failed to frame any issue. In support of his submission, Mr. Sarma has referred to a decision of Hon'ble Supreme Court in the case of V. Prabhakara v. Basavaraj K. (Dead) By LRs. & Anr. , reported in (2022) 1 SCC 115 , to contend that the defendant Nos.6 and 7 have not specifically pleaded their case in their counter claim and despite that the learned Trial Court has granted relief in their favour. Mr. Sarma has also referred another decision of Hon'ble Supreme Court in the case of Shivaji Balaram Haibatti v. Avinash Maruthi Pawar , reported in (2018) 11 SCC 652 . 7. Per contra, Mr. Mr. Sarma has also referred another decision of Hon'ble Supreme Court in the case of Shivaji Balaram Haibatti v. Avinash Maruthi Pawar , reported in (2018) 11 SCC 652 . 7. Per contra, Mr. Deka, learned Senior counsel for the respondents/defendants submits that the plaintiffs are permissive occupier of the defendants and they are possessing the same since the year 2006 and they were granted permission to occupy the suit land and to construct a house to run their business by father of the defendant Nos.1—4 and there is nothing in the plaint as well as in the evidence to show that the plaintiffs have occupied the same in adverse to the interest of the real owner. Mr. Deka further submits that 'Baba Bhandar' name of the 'Gumti', being run by the plaintiffs was earlier situated at a different place i.e. in the land of Bhatna Rabha and thereafter, in the year 2006, they have shifted the same to the suit land, after obtaining permission from the father of the defendants and that whether the appellants/plaintiffs had occupied the suit land hostile to the interest of the defendants or they are in permissive occupation is a finding of fact and both the Courts below have arrived at a concurrent finding in this regard and no substantial question of law is involved herein and under such circumstances, Mr. Deka has contended to dismiss this appeal with cost. In support of his submission, Mr. Deka has referred to a decision of Hon'ble Supreme Court in the case of M. Radheshyamlal V. Sandhya & Anr. , reported in 2024 (3) Supreme 244 , to contend that in order to prove the plea of adverse possession, the plaintiffs have to prove- (a) The plaintiffs must plead and prove that they were claiming possession adverse to the true owner. (b) The plaintiffs must plead and establish that the factum of their long and continuous possession was known to the true owner. (c) The plaintiffs must also plead and establish when they came into possession. (d) The plaintiffs must establish that their possession was open and undisturbed. However, Mr. Deka submits that the appellants/plaintiffs have failed to establish the aforementioned requirement during the trial. 8. Mr. Deka has also referred to another decision of Hon'ble Supreme Court in the case of Karnataka Board of Wakf v. Government of India & Ors. (d) The plaintiffs must establish that their possession was open and undisturbed. However, Mr. Deka submits that the appellants/plaintiffs have failed to establish the aforementioned requirement during the trial. 8. Mr. Deka has also referred to another decision of Hon'ble Supreme Court in the case of Karnataka Board of Wakf v. Government of India & Ors. , reported in (2004) 10 SCC 779 , in support of his submission. 9. Having heard the submission of learned counsel for both the parties, I have carefully gone through the memo of appeal and the grounds mentioned therein and also perused the impugned judgment and decree passed by the learned First Appellate Court in Title Appeal No.5/2013, dated 22.11.2015 and also the judgment and decree passed by the learned trial court, in Title Suit No.2/2011. 10. It is not in dispute that the suit land is described in Schedule- 'B' of the plaint and Schedule-B of the plaint is part of the Schedule- 'A' land and Late Sarat Bhagawati, the predecessor-in-interest of the defendant No.1-5 was the owner of the same. After demise of Sarat Bhagawati, the defendants? No. 1-5 becomes the owner of the same by way of inheritance. It is evident that the defendant Nos.1—5 have sold the entire Schedule-'A' land in favour of the defendant Nos.6 and 7, vide registered sale deed No.8/2011 on 10.02.2011, on payment of a sum of Rs.3,00,000/- and thereafter, the defendant No.1 has handed over the possession of the suit land in presence of the villagers to the defendant Nos.6 and 7 and it is also evident that the plaintiffs were present at the time of handing over the possession of the suit land and they stated that they would vacate the suit land as soon as practicable. Since the Schedule-'B' land is part of the Schedule-'A' land and since the defendant Nos.1—5 are the legal heirs of Sarat Bhagawati, who is the predecessor-in- interest of the defendant Nos.1—5, and inherited the same after his demise, they have every right to sale the Schedule-'A' plot of land and they sold it to the defendant Nos. 6 and 7, the factum of which is not disputed by the plaintiffs also. 6 and 7, the factum of which is not disputed by the plaintiffs also. And as such, this Court is of the view that first substantial question of law formulated while admitting the appeal does not flows out of the impugned judgment and decree passed by the learned First Appellate Court. 11. Now, coming to the second substantial question of law, it is not in dispute that the Schedule-B land was purchased along with Schedule-A land by the defendant Nos.6 and 7 vide registered sale deed No.8/2011 on 10.02.2011 and possession of the same was also handed over to them. The plaintiffs? case is that they possessed the suit land since 1994 and their possession is adverse to the interest of the true owner of the said land i.e. Sarat Bhagawati and after his death his legal heirs i.e. the defendant Nos.1—5. The main contention of the plaintiffs is that they have been occupying it since 1994 till date, yet, it is evident from the evidence adduced by the defendants that they have occupied the suit land in the year 2006 and earlier the shop of the appellants/plaintiffs, namely, 'Baba Bhandar' was in the land of one Bhatna Rabha. Thus, the plaintiffs have failed to satisfy the requirements that are necessary to establish the claim of adverse possession, as held by Hon'ble Supreme Court in the case of M. Radheshyamlal (supra) , as discussed in paragraph No. 7 above. A perusal of the plaint and the evidence adduced by the plaintiffs qua the evidence adduced by the defendants and their exhibits, this Court left unimpressed by the submission of Mr. Sarma that the plaintiffs have succeeded in establishing the plea of adverse possession. 12. A perusal of the plaint and the evidence adduced by the plaintiffs qua the evidence adduced by the defendants and their exhibits, this Court left unimpressed by the submission of Mr. Sarma that the plaintiffs have succeeded in establishing the plea of adverse possession. 12. It is a fact that no issue was framed by the learned Trial Court in respect of recovery of possession by the defendant Nos.6 and 7, yet, there is categorical claim made in the counter claim that the defendant Nos.6 and 7 had purchased the suit land from the defendant No.1 by a registered deed and the possession of the entire Schedule-A land was handed over to them in presence of witnesses and also in presence of the plaintiffs and they assured to vacate the suit land as soon as practicable and that being so, this Court is unable to derive satisfaction that the second substantial question of law also flows out from the finding so recorded by the learned Courts below. 13. Though, Mr. Sarma, learned counsel for the appellants/plaintiffs submits that as the learned First Appellate Court has not formulated any point for determination as required under Order 41 Rule 31 CPC, it is a fit case to remand, this Court is unable record concurrence with the submission of Mr. Sarma, learned counsel for the appellants/plaintiffs, as a careful perusal of the impugned judgment and decree passed by the learned first appellate Court reveals that though no point for determination was formulated by it, yet, it had directed a discussion in respect of the issues framed by the learned Trial Court and arrived at a finding. And in that view of the matter, it satisfies the requirement of Order 41 Rule 31 CPC, in view of the decision of Hon'ble Supreme Court in the case of Mrugendra Indravadan Mehta v. Ahmedabad Municipal Corporation , reported in Civil Appeal No. 16956-16957 of 2017. It is to be noted here that in the said decision Hon'ble Supreme Court has dealt with this issue as under:- "……………… E ven if the first appellate Court does not separately frame the points for determination arising in the first appeal, it would not prove fatal as long as that Court deals with all the issues that actually arise for deliberation in the said appeal. Substantial compliance with the mandate of Order 41 Rule 31 CPC in that regard is sufficient. In this regard, useful reference may be made to G. Amalorpavam and others vs. R.C. Diocese of Madurai and others reported in (2017) 2 SCC 415, wherein this Court held as under: - ‘9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC." 14. It is not in dispute that there is concurrent finding of fact by both the learned courts below. Sitting in second appeal under Section 100 CPC, this court is not entitled to re-appreciate the finding of facts by the learned courts below. It is well settled that this court is entitled to interfere with the finding of facts by the learned courts below where there is substantial question of law involved or when there is perversity in the findings so recorded by the learned courts below. 15. In the case in hand, the appeal was admitted on two substantial questions of law. And after hearing learned counsel for both the parties and considering the record of the learned courts below, this court afraid, none of the substantial question of law flows out of the impugned judgment and decree of the learned first appellate court in Title Appeal No. 05 of 2013. 16. In the result, I find this appeal is devoid of merit and accordingly, the same stands dismissed. 17. Send down the record of the learned Courts below with a copy of this judgment and order.