Assam Schedule VII. Form No. 132. HIGH COURT FORM …golaghatjudiciary.gov.in/jmnt/2017/april/mn...

T.S No. 02 OF 2014(NEW) Page 1 of 16 T.S No. 21 OF 2012 (OLD)

Written and corrected by me

Saptarshi Garg, Munsiff, Bokakhat

Assam Schedule VII. Form No. 132.

HIGH COURT FORM NO. (J) 2

HEADING OF JUDGEMENT IN ORIGINAL SUIT/CASE

DISTRICT: Golaghat

IN THE COURT OF MUNSIFF:::::::BOKAKHAT, GOLAGHAT

PRESENT : Sri Saptarshi Garg, AJS,

Munsiff, Bokakhat. Monday the 03rd day of April, 2017.

Title Suit No. 21 of 2012 (Old)

Title Suit No. 02 of 2014 (New)

Sri Phoni Bora .................... Plaintiff

Versus

Sri Khogeswar Saikia and Ors.

..................Defendants This suit coming on for final hearing on 28.02.2017 in the presence of Mr.T. Ali, Mr. A. Iqbal…..................Advocates/pleaders for plaintiff. Mr.S. Baruah..... Advocates/pleaders for the defendant. Smti N.Dey……. Advocates/pleaders for the Proforma defendant. And having stood for consideration on this day, the Court delivered the following judgment:-




J U D G M E N T

(Suit for declaration of Right, title and in the interest of the plaintiff in respect of

the suit land, ejectment of the defendants, recovery of Khas Possession and for

permanent injunction)

I. Plaintiff’s case:-

1. That the plot of land measuring 2 kathas covered by Dag No. 175 and P.P no. 38 and

land measuring more or less 3 lechas out of 1 bighas covered by periodic patta

number 167 and Dag no. 177 is the matter of subject matter of the suit. That the

original owner of the entire land measuring 1 bighas 2 kathas was the performa

defendant Sri Nagen Pasoni which he acquired by purchase and was the peaceful

and uninterrupted possessor of the said land. Then on 18.06.1990 the proforma

defendant due to his urgent need sold the land measuring 1 bighas 2 kathas to the

plaintiff for a monetary consideration of Rs. 20,000/- by executing a registered sale

deed vide number 1753/1291 dated 18.06.1990 and delivered the possession of the

suit land to the plaintiff. That immediately thereafter the plaintiff installed bamboo

fencing on its entire boundary also as the land was a high land there are various fruit

bearing trees such as betel nut, coconut, etc thereon. The plaintiff himself also

planted various other fruit bearing trees such as banana etc in the land. The pla intiff

regularly visits and looks after his land and enjoyed the fruits of the trees therein. In

this way the plaintiff has been enjoying his own land and exercised his right, title and

interest thereon. That accordingly the name of the plaintiff was mutated in the

revenue record of rights in respect of the entire land measuring 1 bigha 2 kathas, by

right of purchase and possession as follows;

i. In respect of land measuring 2 kathas of periodic patta no. 38, dag. 175 vide

order dated 03.08.1990 passed by the circle officer, Bokakhat.

ii. In respect of land measuring 1 bigha of periodic patta no. 167, dag no, 177

vide order dated 28.07.1993 passed by the circle officer Bokakhat.

The plaintiff has been paying land revenue to the Government of Assam in respect of

the entire 1 bigha 2 kathas land. That the residential premises of the defendants

nos. 1 and 2 adjoins the western boundary of the plaintiff’s entire 1 bigha 2 katha

land. On the other hand, the plaintiff’s residence is about 1 km away from the land.

That on 30.03.12 by taking undue advantage their adjoining residential premises the




defendant nos. 1 and 2 trespassed into the suit land and illegally installed fencing on

the plaintiff’s entire 2 kathas land of periodic patta no. 38 dag no, 175 and a strip of

land measuring more of less 3 lachas alongside the western boundary of the land

measuring 1 bigha of periodic patta no. 167 dag no. 177 in this way the defendant

nos. 1 and 2 trespassed into the suit land and dispossessed the plaintiff therefrom.

That on visiting the suit land the same day, when the plaintiff saw the illegal

encroachment of the defendants, he and his other family members protested and

demanded the defendants to remove the fancying and vacate the suit land

immediately. But the defendants did not pay any heed to such protests and demands

of the plaintiff. The plaintiff also informed the Bokakhat Police Station about the

illegal activities of the defendants. But the police failed to take any effective action

against the defendants till now. That finding no other alternative, the plaintiff decide

to file a civil suit against the defendants for their ejectment and recovery of Khas

possession for this purpose he applied for the latest certif ied copy of the Jamabandi

of the suit land from the Revenue Department. That on receiving the said copies of

documents from the Revenue Department, the plaintiff discovered that there is a

minor bonafide mistake in the original registered Deed of sale No. 1753/1291 dated

18.06.1990 in respect of periodic patta number of the land measuring 2 kathas. The

number of the periodic patta in respect of 2 kathas land was wrongly written as 389

instead of correct number 38. The remaining description of the purchased land

including its four boundaries were correct. That upon detection of the said mistake,

the plaintiff immediately contacted the proforma defendant and requested him to

rectify the said mistake by execution a rectification deed. Accordingly the proforma

defendant and the plaintiff executed a registered Deed of Rectification dated

06.08.12 wherein the number periodic patta in respect of the 2 katha land was

rectified from 389 to its correct number 38. That even though in the origina l sale

deed there was a bonafide mistake regarding the periodic patta number of the land

measuring 2 kathas which was detected only recently and upon detection it was

immediately rectified, as such after execution of the Deed of Rectification, the right,

title and interest of the plaintiff over the land concerned has remained unaffected

and unchanged. That the defendant nos. 1 and 2 are continuing their illegal

occupation of the suit land till now. The defendant nos. 1 and 2, being illegal

encroachers of the suit land, are merely trespassers of the suit land. Their high-




handed unlawful act of occupation of the suit land without the consent of the

plaintiff, is prejudicial and is deprivation of the plaintiff of his legal right to enjoy his

own land. Therefore, the plaintiff prayed for a decree of right, title and interest and

ejectment, recovery of Khas possession of the suit land by evicting the defendant

nos. 1 and 2 their men, agents of any other person claiming under them and

permanent injunction restraining the defandants, their man, agents or any other

person claiming under them from interfering in the peaceful possession of the suit

land by the plaintiff in the future. That the proforma defendant is the previous owner

of the suit land from whom the plaintiff purchased the entire land measuring 1 bigha

2 kathas including the suit land. Therefore, he was impleaded in this suit for proper

adjudication of the matter.

2. On appearance the defendant contested the suit of the plaintiff by filing their joint

written statement (in Short W.S)

II. Defandant’s Case:-

3. The defendant resisted the suit of the plaintiff on the ground that there is no cause

of action for the suit, the suit is not maintainable, the suit is barred by limitation, and

the suit is bad by virtue of misjoinder and non joinder of necessary parties. The

defendants stated that the proforma defendant Sri Nagen Pasoni neither purchased

the entire land measuring 1 bigha 2 kathas from its previous land holders long time

ago nor he had been peacefully enjoying the said land by exercising his own right,

title and interest therein as alleged. And that the proforma defendant never sold and

delivered possession of the suit land to the plaintiff on 18.06.1990 as claimed. That

the plaintiff never possessed and installed bamboo fencing on the suit land nor he

had planted any tree upon the said land. The suit land has been under the peaceful

possession of the defendants for a long period. That, so far as the certified

jamabandi copy of P.P. no. 38 collected from the Circle Officer Bokakhat on 15.10.12

in concerned, it becomes crystal clear that on 03.08.1990 the name of the proforma

defendant was mutated under dag no. 175 in respect of the land of 2 kathas as per

order passed by the Circle Officer. But, surprisingly, on the very day the name of the

plaintiff was also mutated on the said plot of land. That, it is stated that on

18.06.1990 the proforma defendant sold the land to the plaintiff. Thus, without

having right, title and interest upon the said 2 kathas land, the proforma defendant




could not sell the land to the plaintiff on 18.06.1990. That the defendants never

trespassed on the suit land. The land measuring 2 kathas under dag no. 175 covered

by P.P no. 38 belong to the forefathers of the defendant and since the time

immemorial the defendants and their forefathers has been under the peaceful and

continuous possession over the said plot of land till date. In respect of the land

measuring more or less 3 lechas under dag no. 177, covered by P.P no. 167 the

defendants stated that Sri Khogeswar Saikia, Defendant No. 1 purchased 1 katha

land under dag no. 177, covered by P.P. No. 167 from the performa defendant by

executing a registered sale deed on 13.05.1985, the defendant no. 1 has been

possessing the said plot f land. The land more or less 3 lachas under dag no. 177.

P.P No. 167. Also the rectification deed as stated in the plaint has no legal validity. It

is purely a new deed effective from 06.08.12. Therefore, the suit is liable to be

dismissed with cost.

III. Proforma Defendant’s Case:-

4. The proforma defendant in his written statement admitted the averments made in

the plaint and also the fact that he sold the land measuring 1 bigha 2 kathas

mentioned in the plaint to the plaintiff on 18.06.1990 and gave the possession to the

plaintiff and the defendants dispossessed the plaintiff from the suit land mentioned

in the plaint.

5. In this case my learned predecessor framed the following issues after going through

the pleadings of both the sides:-

i. Whether there is any cause of action for institut ing the suit by plaint iff?

ii. Whether the suit is bad for non-joinder or mis-joinder of necessary

parties?

iii. Whether the suit is barred by law of limitat ion?

iv. Whether the plaintiff has got right, tit le and interest in respect of the suit

land?

v. Whether the defendants in the month of March, 2012 dispossessed the

plaint iff of the suit land?

vi. To what relief or relie fs the plaint iff is ent itled to?

6. The plaintiff in support of his case examined 5 witnesses, submitted documentary

evidence. Likewise the defendant in support of their contention adduced 2 defence

witnesses and also furnished some documentary evidence.




7. Heard the arguments put forth by both the plaintiff and the defendant sides in

length. During arguments the plaintiff side cited the following citations/case laws to

support their case.

i. Jagannath Mahanta vs Sadek Ali, MANU/GH/0379/2014

ii. Amiya Bala Dutta and ors vs Mukut Adhikari and ors (1999) 1 GLR 229,

iii. Kalyan Singh Chouhan vs C.P. Joshi AIR 2011 SC 1127.

I have gone through all the citations mentioned above before discussing the issues

of the case.

DISCUSSION, DECISIONS AND REASONS THEREOF:

8. Upon perusal of the case record and the materials available on record, I am of the

humble opinion to hold the following issues as follows:-

9. ISSUE NO. I:- This issue relates to cause of action of suit. Plaintiff filed the suit for

declaration of right, title and recovery of khas possession and permanent injunction

against the defendants. The plaintiff in his case mentioned that on 30.03.12 by

taking undue advantage their adjoining residential premises the defendant nos. 1

and 2 trespassed into the suit land and illegally installed fencing on the plaintiff’s

entire 2 kathas land of periodic patta no. 38 dag no, 175 and a strip of land

measuring more of less 3 lachas alongside the western boundary of the land

measuring 1 bigha of periodic patta no. 167 dag no. 177 in this way the defendant

nos. 1 and 2 trespassed into the suit land and dispossessed the plaintiff there from.

On the other hand, the defendants controverts to the facts pleaded in the plaint and

denied the allegations. The fact of dispossession and title over the suit land requires

to be decided in the suit. Both sides adduced evidence in support of their respective

case. All these facts are sufficient to hold that the plaintiff has a cause of action for

the suit. Therefore, this issue is answered in affirmative.

10. ISSUE NO. III:- This issue relates to bar of limitation law. The plaintiff filed the suit

for declaration of title and recovery of khas possession on the allegation of

dispossession on 30.03.2012. Moreover, the defendants denied that the plaintiff’s

title and possession over the suit land at any point of time and both s ides adduced

evidence in this regard. Those points will be decided in the appropriate issues framed




for the same. Further, this suit has been filed on 18.09.2012, therefore, the suit is

found to be filed within the period of limitation. This issue is answered in negative.

11. ISSUE NO. II:- This issue relates to non-joinder of necessary parties. Though the

defendants raised the plea in their W.S. but failed to disclose in detail the names of

the necessary parties to be joined in the suit in the written statement. On going

through the evidence and pleadings, it appears that the DW 1 Khogeswar Saikia who

is the defendant no. 1 and DW 2 Dimbeswar Bora both mentioned in their evidence

on affidavit that the plaintiff side did not make Dharmeswar Tamuli and Deben

Tamuli the legal heirs of Numali Chutia (since deceased) parties to the suit as Numali

Chutia was the sister of Late Kamalakanta Chutia and daughter of Late Dhuliram

Chutia as the suit land is an ancestral property of the defendants. In this regard let

me go through the provision of Section 6 (1) of the Hindu Succession Amendment

Act, 2005.

Section 6 (1) of Hindu Succession Amendment Act, 2005 :-

3. Substitution of new section for section 6.-For section 6 of the principal Act, the following section shall

be substituted, namely:-

'6. Devolution of interest in coparcenary property.-

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu

family governed by the Mitakshara law, the daughter of a coparcener shall,-

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a

son;

(c) be subject to the same liabilit ies in respect of the said coparcenary property as that of a

son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to

a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any

disposition or alienation including any partition or testamentary disposition of property which

had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by

her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything

contained in this Act, or any other law for the time being in force, as property capable of being disposed

of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his

interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by

testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and

the coparcenary property shall be deemed to have been divided as if a partition had taken place and, -

(a) the daughter is allotted the same share as is allotted to a son;




(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got

had they been alive at the time of partition, shall be allotted to the surviving child of such

predeceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter,

as such child would have got had he or she been alive at the time of the partition, shall be

allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased

daughter, as the case may be.

Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara

coparcener shall be deemed to be the share in the property that would have been allotted to

him if a partition of the property had taken place immediately before his death, irrespective of

whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize

any right to proceed against a son, grandson or great -grandson for the recovery of any debt due from

his father, grandfather or great -grandfather solely on the ground of the pious obligation under the

Hindu law, of such son, grandson or great -grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu

Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the

case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or

alienation shall be enforceable under the rule of pious obligation in the same manner and to

the same extent as it would have been enforceable as if the Hindu Succession (Amendment)

Act, 2005 had not been enacted.

Explanation.-For the purposes of clause (a), the expression "son", "grandson" or "great -

grandson" shall be deemed to refer to the son, grandson or great -grandson, as the case may

be, who was born or adopted prior to the commencement of the Hindu Succession

(Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th

day of December, 2004. Explanation.- For the purposes of this section "partition" means any partition

made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908)

or partition effected by a decree of a court.'.

Furthermore, in the recent Judgment of the Hon’ble Supreme Court in the case of

Prakash & Ors. Vs. Phulavati & Ors. (2016) 2 SCC 36, a division bench of the

Hon’ble Supreme Court laid down that:-

“17. The text of the amendment itself clearly provides that the right conferred on a 'daughter

of a coparcener' is 'on and from the commencement of Hindu Succession (Amendment) Act,

2005'. Section 6(3) talks of death after the amendment for its applicability. In view of plain

language of the statute, there is no scope for a different interpretation than the one

suggested by the text of the amendment.




An amendment of a substantive provision is always prospective unless either expressly or by

necessary intendment it is retrospective [3]. In the present case, there is neither any express

provision for giving retrospective effect to the amended provision nor necessary intendment

to that effect. Requirement of partition being registered can have no application to statutory

notional partition on opening of succession as per unamended provision, having regard to

nature of such partition which is by operation of law. The intent and effect of the Amendment

will be considered a little later. On this finding, the view of the High Court cannot be

sustained.

18. Contention of the respondents that the Amendment should be read as retrospective being

a piece of social legislation cannot be accepted. Even a social legislation cannot be given

retrospective effect unless so provided for or so intended by the legislature. In the present

case, the legislature has expressly made the Amendment applicable on and from its

commencement and only if death of the coparcener in question is after the Amendment.

Thus, no other interpretation is possible in view of express language of the statute.

The proviso keeping dispositions or alienations or partitions prior to 20th December, 2004

unaffected can also not lead to the inference that the daughter could be a coparcener prior to

the commencement of the Act. The proviso only means that the transactions not covered

thereby will not affect the extent of coparcenary property which may be available when the

main provision is applicable. Similarly, Explanation has to be read harmoniously with the

substantive provision of Section 6(5) by being limited to a transaction of partition effected

after 20th December, 2004. Notional partition, by its very nature, is not covered either under

proviso or under sub-section 5 or under the Explanation.

19. Interpretation of a provision depends on the text and the context[4]. Normal rule is to

read the words of a statute in ordinary sense. In case of ambiguity, rational meaning has to

be given[5]. In case of apparent conflict, harmonious meaning to advance the object and

intention of legislature has to be given[6].

22. In this background, we find that the proviso to Section 6(1) and sub- section (5) of

Section 6 clearly intend to exclude the transactions referred to therein which may have taken

place prior to 20th December, 2004 on which date the Bill was introduced. Explanation

cannot permit reopening of partitions which were valid when effected. Object of giving finality

to transactions prior to 20th December, 2004 is not to make the main provision retrospective

in any manner. The object is that by fake transactions available property at the introduction

of the Bill is not taken away and remains available as and when right conferred by the statute

becomes available and is to be enforced. Main provision of the Amendment in Section 6(1)

and (3) is not in any manner intended to be affected but strengthened in this way. Settled

principles governing such transactions relied upon by the appellants are not intended to be

done away with for period prior to 20th December, 2004. In no case statutory notional

partition even after 20th December, 2004 could be covered by the Explanation or the proviso

in question.

23. Accordingly, we hold that the rights under the amendment are applicable to living

daughters of living coparceners as on 9th September, 2005 irrespective of when such

daughters are born. Disposition or alienation including partitions which may have taken place




before 20th December, 2004 as per law applicable prior to the said date will remain

unaffected. Any transaction of partition effected thereafter will be governed by the

Explanation.”

So from the above, discussion of the relevant provision and the judgment

cited above, even though for the sake of argument it is taken up that the suit land is

the ancestral property of the defendants and Numali Chutia (since deceased) was

the sister of Late Kamalakanta Chutia and daughter of Late Dhuliram Chutia, but

Numali Chutia do not have the right over the suit land as right under section 6 of the

Hindu Succession (Amendment) Act, 2005 are applicable to liv ing daughters of liv ing

coparceners as on 9th September, 2005 and in this case Dhuliram Chutia was not

alive as on 09.09.2005 also the date of the death of Numali Chutia was not

mentioned by the defendants in their W.S or in the evidence on affidavit. Therefore,

the question of the legal heirs of Numali Chutia namely Dharmeswar Tamuly and

Deben Tamuly making party to the suit does not arise in this case. Further, the

defendant No. 1 in his evidence on affidavit also mention that the other sons,

daughter and wife of Late Kamalakanta Chutia were also not made party to the suit,

but the names of the sons of Kamalakanta Chutia were not mention in particular the

evidence on affidavit of DW’s or in the written statement. Moreover, the date of

death of Kamalakanta Chutia was also being not mentioned in the W.S or in the

evidence on affidavit of the DW’s. Therefore, considering all, the question of non-

joinder and mis-joinder of necessary parties does not holds ground in this case.

Hence, this issue is answered in negative.

12. ISSUE NO. IV:- Whether the plaintiff have the right, title and interest over the suit

land. Let us first see the pleadings and the evidence of the plaintiff side.

It is an admitted fact that the suit land are the two separated plot of lands,

viz, one plot of land measuring 2 katha covered under P.P No. 38 and Dag No. 175

(Herein mentioned as B1) and the other plot of land measuring 3 lechas covered

under P.P No. 167 and Dag No. 177 (herein mentioned as B2) are part of the land

measuring 1 Bigha 2 Kathas.

The plaintiff in his plaint mentioned that one of the suit land i.e., measuring 2

katha covered under P.P No. 38 and Dag No. 175 (Herein mentioned as B1) and the

other suit land measuring 3 lechas covered under P.P No. 167 and Dag No. 177




(herein mentioned as B2) are part of the land measuring 1 Bigha 2 Kathas which was

being purchased by him from the Proforrma defendant Nogen Pasoni vide registered

Sale deed no. 1753/1291 dated 18.06.1990 with an consideration amount of Rs.

20,000/- and thereafter, the proforma defendant delivered the possession of the said

land to the plaintiff. The registered sale deed vide number 1752/1291 dated

18.06.1990 has been exhibited by the plaintiff vide Plaintiff’s exhibit “assamese

numerical number” 1. The said claim of the plaintiff was also being corroborated by

the other PW’s namely PW 2 and PW 4. The PW 5 who is the lat mandal and an

independent as well as official witness also mentioned in his evidence that as per the

land records i.e., the jamabandi the 2 kathas of land covered under Dag no. 175 and

Periodic Patta (P.P) no. 38 is in the name of plaintiff Phoni Bora which he acquired

by way of purchase on 03.08.1990 from Nogen Pasoni.

Further, the Proforma defendant who was being examined by the plaintiff as

PW 3, in his evidence and in his written statement also substantiate the said claim of

the plaintiff. The Proforma defendant admitted in his evidence that he became the

owner of 1 bigha 2 katha land by purchase. Out of the 1 bigha 2 katha land, he

purchased 1 bigha land from Tetera Chutia in the year 1981 and in the year 1985 he

purchased the 2 katha land from Kamalakanta Chutia. This is seen from the Plaintiff’s

exhibit “assamese numerical number” 5 submitted by the plaintiff side.

On the other hand, the defendant side in their written statement and DW 1 in

his evidence deposed that the land measuring 2 kathas covered under P.P. No. 38

and Dag no. 175 belong to the forefathers of the defendants and the land measuring

3 lechas covered under P.P. No. 167 and Dag no. 177 is the part of a plot of land

measuring 1 katha under the same dag and patta number which the Defendant No.

1 Khogeswar Saikia purchased from Proforma Defandant by executing a registered

Sale deed vide dated 13.05.1985 and vide order dated 05.05.1990 by the circle

officer his name was mutated over the said plot of land and he was enjoying the

possession over the said plot of land. To substantiate this claim the defendant No. 1

submitted the registered sale deed vide no. 2103/1832 dated 13.05.1985, the copy

of the Jamabandi of P.P No. 167 and the original revenue clearance certif icate of T.B

patta no. 167 and 38 for the year 2010-11.

But in this regard, the Proforma defendant in his evidence on affidavit as PW

3, vehemently declined the said claim of the defendant side and he mentioned that




he never sold any plot of land to the defendant Khogeswar Saikia. It is seen from the

cross examination of the PW 3 i.e., the proforma defendant that only a suggestion

was given by the defendant side regarding the fact that PW 3 falsely deposed in his

evidence that he never sold any land to the defendant No.1. Mere denial of a fact by

giv ing suggestion to a plaintiff’s witness does not shift the onus of proving the fact

that proforma defendant sold the plot of land which include the land mentioned in

schedule “B2” to the plaintiff side. Further DW 2 Dimbeswar Bora also did not

substantiate the said claim of the defendant in his evidence and he remained silent

on it, although it is seen from Defendant’s exhibit 2 that DW 2 was a witness in the

said registered sale deed.

Furthermore, it is pertinent to mention that DW 1 who is the defendant no. 1

in his cross examination clearly admitted that the land measuring 1 bigha 2 kathas

which includes the two plot of suit lands was originally owned by Proforma defendant

by way of purchase and later on, the whole plot of land measuring 1 bigha 2 kathas

was sold to the plaintiff Phoni Bora by the proforma defendant. Moreover, the

defendant No. 1 as DW 1 also admitted that he did not came forward to challenge

the validity of the registered sale deed of the land mentioned in the schedule “B1”

and no any counter claim or case has been filed.

So from the above discussions and after appreciating the evidence on record

and documents on record, I do not find the defendant’s story to be believable.

Therefore, I hold that the Proforma defendant was the original owner of the land

measuring 1 bigha 2 kathas which includes the suit lands mentioned in schedule “B1”

and “B2” and further I hold that, the plaintiff got the possession over both the suit

lands by way of purchase from the proforma defendant vide registered sale deed.

Now, the question is to be decided regarding the fact of validity of the

rectification of registered deed. The fact is that, the patta number 38 in respect of

the land measuring 2 kathas was wrongly written as 389 in the registered sale deed

vide plaintiff exhibit 1 and the said was rectified vide executing a deed of rectification

i.e., plaintiff’s exhibit No. 2 between the proforma defendant and the plaintiff. The

defendant side questioned the validity of the said deed of rectif ication and mentioned

that it is not according to the law.

In this regard, as discussed earlier in the above paragraphs under the

paragraph 11, that the proforma defendant is the original owner from whom the




plaintiff purchased the suit lands. Therefore, I holds that the said error is a clerical

mistake as appears from the said deed vide plaintiff’s exhibit No. 2, it is further seen

that the boundaries of the suit land is the same as mentioned in the plaintiff ’s exhibit

no. 1 i.e., the registered sale deed vide no. 1753/1291 dated 18.06.1990, and also

as the proforma defendant and the plaintiff both by their consent executed the

registered deed of rectification and further the PW’s i.e., PW 1, PW 2, PW 3 and PW

4 also admitted the same, moreover, the concerned authority who executed the said

deed of rectification did not raise any objection on the validity, and as also the

defendants did not came forward to question the validity of the said deed of

rectification before the authorities who registered the said deed. And further, the

deed was marked as exhibit without any objection and also the defendant side failed

to prove the fact that the said deed of rectification is illegal in the eyes of law by

giv ing cogent evidence or showing relevant provisions of law. Hence, mere denial of

validity of execution of the registered deed of rectification by the defendants shall

not be sufficient to shift the burden of proving the validity of the execution of the

deed of rectification upon the plaintiff. Accordingly, I am of opinion that the deed of

rectification vide plaintiff exhibit 2 is legal in the eyes of law.

Therefore, from the above discussions the preponderance of probability

inclined in the favor of the plaintiff and accordingly, I hold that the plaintiff has the

right, title and interest over the part of the suit land as described as B1 (and as

plaintiff himself has admitted the fact that he has disposed off a part of suit land as

described as B2 in the schedule of the plaint to somebody else and the same person

has not been made party in this case, so I have refrained myself to articulate any

judgment in regards to the said part of land). Hence the issue is decided in

affirmative in parts.

13. ISSUE NO. V:- In this regard as discussed in the last paragraph of the paragraph

11, I have refrained myself to articulate any opinion/judgment in regards to the plot

of land mentioned as “B2” in the schedule of the plaint. Now let me decide the issue

that, whether the defendants in the month of 2012 dispossessed the plaintiff from

the suit land mentioned in the schedule of the plaint as “B1”.

The plaintiff in his Plaint and in his evidence on affidavit clearly and categorically

deposed that the defendants on 30.03.12 taking undue advantage trespassed into




the suit land mentioned in the schedule of the plaint as B1 and dispossessed the

plaintiff. The said averment of the plaintiff remained unshaken in the cross

examination. Also the proforma defendant in his written statement and in his

evidence as PW 3 corroborated the fact about the trespass of the defendants over

the suit land B1. Further, the other PW’s i.e., PW 2 and PW 4 also corroborated the

claim of the plaintiff about the trespass by the defendants and the dispossession of

the plaintiff. The evidence of PW 2, PW 3 and PW 4 also remained unshaken in their

cross examination. The defendant side in their cross examination only put suggestion

to the fact that the said PW’s are deposing falsely about the said fact but the PW’s

vehemently declined the said suggestion. Merely giving suggestion to a witness and

not giv ing cogent evidence by the defendants to prove their case, the onus of

proving the fact does not shift to the plaintiff side. Therefore, from the evidence of

the plaintiff side, and as discussed in the ISSUE No. IV, it is proved that the plaintiff

got the right, title and interest over the suit land mentioned in the schedule of the

plaint as “B1”, and therefore, it is also proved that the defendants possess the B1

schedule land without any right, title and interest since 30.03.12. The defendants

failed to justify their possession over the B1 schedule land. Accordingly, I held that

the defendants are mere trespassers and hence liable to be evicted from the suit

land mentioned in the schedule of the plaint as B1. As such the issue is answered in

affirmative and against the defendants.

14. ISSUE NO. VI:- i.e., to what relief and reliefs the plaintiff is entitled to. In view of

the discussion and decisions of the above issues, plaintiff is entitled to get the

declaration of his right and title over part of the suit land as mentioned in the

schedule “B1” of the plaint along with the decree of recovery of the khas possession

over the schedule land mentioned as “B1” in the plaint by evicting the defendants

and removing the structures there from. On the other hand, as decided in the last

paragraph of the issue number IV, therefore, I have refrained to myself to articulate

any judgment in regards to the part of land mentioned in the schedule of the plaint

as “B2”.




O R D E R

15. In the result, plaintiffs’ suit is decreed on contest against the defendants without

costs by declaring the Plaintiff’s right, title and interest over the schedule plot of land

mentioned in SCHEDULE “B1” in the plaint. Plaintiff is also entitled to get the

decree of recovery of the khas possession over the schedule plot of land mentioned

as “B1” in the plaint by evicting the defendants and removing the structures there

from.

Draw up a decree. B/A to take steps.

Given under the hand and seal of this court on this 03rd day of April, 2017.

Saptarshi Garg Munsiff, Bokakhat.




A P P E N D I X

1. PLA INTIFF’S WITNESS:

I. PW 1….. Sri Phoni Bora,

II. PW 2….. Sri Manash Pratim Gogoi,

III. PW 3….. Sri Nogen Pasoni,

IV. PW 4….. Sri Dipankar Sarmah,

V. PW 5….. Sri Jiten Pegu,

2. PLA INTIFF’S DOCUMENTS (All Exhibits Marked In Assamese Numbericals):-

1. EXHIBIT 1………. Registered Sale deed, dated 18.06.1990

i. EXHIBIT 1 (1), (2), (3), (4), (5), (6), (7)- Signature of Nogen Pasoni

ii. EXHIBIT 1 (8), (9), (10), (11), (12), (13), (14) Signature of deed

writer Jogen Bora.

iii. EXHIBIT 1 (15) Signature of witness Dimbeswar Bora

2. EXHIBIT 2………. Copy of the rectification deed, dated 06.08.12,

i. EXHIBIT 2 (1), (2), (3) Signature of Nogen Pasoni

ii. EXHIBIT 2 (4), (5), (6) Signature of Plaintiff Phoni Bora.

iii. EXHIBIT 2 (7), (8), (9) Signature of Tarani Jogen Bora

iv. EXHIBIT 2 (10) Signature of witness Manash Prat im Gogoi

v. EXHIBIT 2 (11) Signature of witness Paban Hazarika

vi. EXHIBIT 2 (12) finger impression and photograph of person

involved in rectificat ion deed.

3. EXHIBIT 3…….... Copy of the jamabandi of periodic patta No. 38,

4. EXHIBIT 4..........Copy of the jamabandi of periodic patta No. 167,

5. EXHIBIT 5………. Registered Sale deed, dated 13.05.1985 between Nogen Pasoni and

Kamalakanta Chutia in connection with the land measuring 2 kathas covered under Dag

No. 175 and P.P No. 38.

i. EXHIBIT 5 (1), (2), (3) Signature of Kamalakanta Chutia.

3. DEFENDA NT’S WITNESS:-

I. DW 1….. Sri Khogeswar Saikia,

II. DW 2….. Sri Dimbeswar Borah,

4. DEFENDA NT’S DOCUMENTS:-

I. EXHIBIT 1………Certified copy of Jamabandi of P.P No.38

II. EXHIBIT 2……...registered sale deed vide No. 2102/1831 dated 13.05.1985,

III. EXHIBIT 3……….Cert ified copy of Jamabandi copy of P.P No.167

IV. EXHIBIT 4……… Revenue Clearance Receipt.

Saptarshi Garg,

Munsiff, Bokakhat.

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