assam schedule vii, form no.133. heading of ...kamrupjudiciary.gov.in/judgments...

Title Appeal No. 1/2004

Assam Schedule VII, Form No.133.Form No.(J) 3HEADING OF JUDGMENT IN APPEALDistrict: Kamrup (Metro), Guwahati.

In the Court of Additional District Judge No. 2, Kamrup (Metro), Guwahati.Present: Sri S. K. Poddar, A.J.S.Additional District Judge No. 2Kamrup (Metro), Guwahati

Tuesday, the 11 th day of March, 2014


Smti. Batali Khetri @ Dharmeswari Devi …………Appellant(s)/defendant--vs-----1. Sri Yogesh Shah,2. Sri Vijay Shah, 3. Smti. Kalpana Yadav, ………… Respondent(s)/PlaintiffsThis appeal coming on for final hearing on 10.02.2014 in the presence of-

Mr. R. Das ........... Advocates/pleaders for Appellant(s)Mr. R. C. Sancheti, Mr. Amit Kabra......... Advocates/pleaders for respondent(s)

And having stood for consideration to this day, the Court delivered the following judgement:JUDGMENT1. This appeal has been preferred by the defendant No. 2/appellant against the judgment and decree dated 24.12.2003 passed by learned Civil Judge (the then Civil Judge, Senor Division) No. 2, Kamrup, Guwahati in Title Suit No. 91/97.

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2. On receipt of the appeal memo, notices were issued to the plaintiffs/respondents and case record of Title Suit No. 91/97 was called for. Respondents appeared through their engaged Advocates and contested the appeal.3. The facts leading to Title Suit No. 91/1997 in brief are that the proforma defendant No. 3 K P Gupta (since deceased) being the absolute owner and possessor of the schedule “A” property as mentioned in the plaint (here-in-referred as “suit property”) on 20.05.85 sold the same to the plaintiffs by a registered sale deed No. 3538/85 dated 20.05.85 at a consideration of Rs. 30,000/- and delivered possession of the suit property to the plaintiffs. After purchasing the suit property the plaintiffs mutated their names in the revenue records. Thereafter, by order dated 30.01.1986 the GMC allowed the mutation in the name of the plaintiffs in respect of holding of the suit property correcting the demand register on 06.02.1986. The plaintiff started to pay the land revenue and municipal taxes to the authority. 3.1 It is also pleaded prior to sale of the suit land, to provide help, the proforma defendant No. 3 brought defendant No. 2 and her mother to the suit land and allowed them to reside in the house standing in the suit land to look after the suit property on payment of monthly expenses. After sometime, the mother of the defendant 2 died leaving the defendant No. 2. On the death of the mother, defendant No. 2, married a young man who after sometime died and thereafter she kept another young man who also left her. Thereafter the defendant No. 2 kept defendant No. 1 as her husband. The defendant No. 1 and 2 have been residing in the suit property as caretaker and as permissive occupier. 3.2 At the time of sale of the suit property by the proforma defendant No. 3, the defendants No. 1 and 2 requested the plaintiffs to give sometime to vacate the suit property and accordingly the plaintiffs allowed them to stay in the suit property as permissive occupier for some time. But later on, the defendant 1 and 2 changed their mind and of 25


started foul play with the plaintiffs. On knowing that the defendant Nos. 1 and 2 in collusion with the GMC staff managed to create holding No. 272 showing with effect from 1983-84. Similarly the defendant No. 1 and 2 managed to create holding No. 460 in the name of defendant No. 2 in respect of Assam Type house and it was shown as constructed in 1986, plaintiffs filed a complaint before the Commissioner of GMC on 17.06.88 and after due notice and hearing to the defendant No. 2 the holding Nos. 272 and 460 were cancelled. 3.3 The defendant Nos. 1 and 2 have also made some unauthorised construction over the vacant portion of the suit land without the knowledge and consent of the plaintiffs. When the plaintiffs came to know regarding such illegal construction, they protested the same and asked the defendants to vacate the suit property by the end of December, 1996, but the defendants have not yet vacated the suit property. Therefore, the plaintiff has filed this suit for declaration of their right, title and interest and for recovery of khas possession of the suit property.4. The defendant No. 2 has contested the suit by filing her written statement. Apart from the usual legal pleas of no cause of action, non-joinder of other legal heirs of Late Krishna Prasad Gupta (proforma defendant No. 3/vendor), the defendant No. 2 in her w/s pleaded that proforma defendant No. 3, Krishna Prasad Gupta (here-in-after termed as K P Gupta) died before institution of this suit and his legal heirs were not substituted. While denying the statements made in the plaint, the defendant No. 2 further pleaded that the mother of the defendant No. 2 she and K P Gupta then living at Jakhalabandha with family, whose wife was also expired, decided to live together as husband and wife and therefore after solemnisation of their marriage, said K P Gupta brought her mother Smti. Tanka Devi and her step brother Sreeman Chetry to Guwahati and started to live in a rented house at Guwahati. On 13.03.1954, the defendant No. 2 was born at Chatribari Hospital, Chatribari, Guwahati. of 25


4.1 After few years of her birth, Smti. Tanka Devi and K P Gupta purchased the suit land in the name of Krishna Prasad Gupta vide sale deed No. 6341 dated 31.10.1957. Tanka Devi and K P Gupta constructed a house on the aforesaid land and started to live there with Sreeman Chetry and were paying the land revenue since 1960 to 1964. Thereafter the defendant No. 2 also constructed some house over the said plot of land and the said houses were assessed by the GMC. When the defendant No. 2 along with Tanka Devi and K P Gupta were residing at Guwahati, another family of Krishna Prasad Gupta was residing at Jakhalabandha. 4.2 In the year 1966, K P Gupta amicably made an oral family partition for his properties situated at Jakhalabandha and Guwahati and the properties at Guwahati was given to Tanka Devi and accordingly the original sale deed numbering 6341/57 was handed over to Tanka Devi. The properties of Jakhalabandha were given to the sons and daughters of the first wife of K P Gupta and both the set of children of K P Gupta possess their respective property on their own right. 4.3 Krishna Prasad Gupta died on 20.12.1996 and the instant suit has been filed by the plaintiffs on 17.05.1997 i.e. long after the death of Krishna Prasad Gupta. The alleged sale deed numbering 5738/85 is a false and fake document. The alleged sale deed was created by the plaintiffs taking advantage of the relationship of counsel and client. The husband of the plaintiff No. 3 Shri Ramlal Yadav, Advocate was conducting two cases of Krishna Prasad Gupta being Civil Rule No. 313/79 before the Hon'ble High Court and Case No. 152 RA/76 before the Revenue Board. In the sale deed No. 5738/85 Krishna Prasad Gupta signed in English, but in Vakalatnama executed in Civil Rule No. 313/79 and in the affidavit in opposition filed before the Hon'ble High Court in Civil Rule No. 313/79 and in the Vakalatnama filed in Case No. 152RA/76 before the Revenue Board, Krishna Prasad Gupta singed in Assamese. Therefore, the alleged sale deed is false, forged and made with a mala-fide intention. of 25


4.4. Besides, the suit property consisting of Assam Type house and RCC structures including the land measuring 1 Katha 10 Lechas was purchased by the plaintiff at a cost of Rs. 30,000/- only which is totally unbelievable as the value of the land itself would have been more than Rs. 80,000/- in the year 1985. Furthermore, there was no delivery of khas possession of the suit property. Therefore, there cannot be interruption of the enjoyment of the suit property by the defendant No. 2. Therefore, the defendant No. 2 has prayed to dismiss the suit of the plaintiff. 5. The suit against the defendant No. 1 proceeded exparte. On knowing the fact of death of proforma defendant No. 3, his name was struck off from the plaint.6. Upon the above pleadings, both the sides went on trial with the following issues:-1. Whether there is cause of action in the plaintiff suit?

2. Whether the suit is maintainable in its present form?

3. Whether the suit is bad for non-joinder of necessary parties?

4. Whether the plaintiff has right, title and interest over the suit

property?

5. Whether the plaintiff is entitled to get the decree as prayed

for?

6. To what relief/relief(s) the parties are entitled?7. During trial of the suit, both the sides examined four witnesses each and proved several documents. Upon considering the materials on record and hearing arguments of both counsels for both the sides, on 24.12.2003, Ld. Trial Court has been pleased to decree the suit by declaring right, title and interest of the plaintiffs and also for recovery of Khas possession by evicting the defendant No. 1 and 2 and their men and agent by demolishing the unauthorized constructions, if any. of 25


8. Being highly aggrieved by and dissatisfied with the Judgement and decree dated 24.12.2003, passed in Title Suit No. 91/97, the defendant/appellant preferred this appeal on the following grounds and additional grounds amongst several others:-1. For that the court below committed gross illegalities in ignoring the facts that the suit was filed against proforma defendant No. 3 also who had expired long before filing of the instant suit.

2. For that the trial court ought to have found that the suit of the plaintiff was bad for non-joinder of essential parties, even after knowledge of the death of Shri Krishna Prasad Gupta the proforma defendant No. 3, the other heirs and successors were not made parties in the suit to enable them to contest the claim of the plaintiffs. The trial court ought to have dismissed the suit on this count alone.

3. For that the trial court ought to have found that the suit was greatly under valued and stamped.

4. For that the trial court ought to have found that the proper court fees on the market value of suit property as on the date of filing of the suit was not paid.

5. For that the trial court ought to have found that the from the suit as well as the verification of the plaint was not done by the plaintiffs as per the provisions of law and the suit ought to have dismissed for the same.

6. For that the trial court ought to have found that admittedly the plaintiff not having been put in physical possession of the suit property after their alleged purchase vide Exhibit -I, the sale of the properties by Krishna Pd. Gupta as claimed by them was itself void and nullity as the same is hit by section 54, of the transfer of Property Act, 1882.

7. For that the trial court ought to have found that the plaintiffs failed to prove their alleged claim of permissive possession of the contesting defendant over the suit property.

8. For that the trial court ought to have considered that the plaintiffs failed to prove their mutation in revenue and Municipal records with due service of notices to Shri Krishna Pd. Gupta during his life time and upon his legal heirs after his death.

9. For that the trial court ought to have considered the suit property being a purchased property of the Krishna Pd. Gupta by exhibits (H), the said original documents would have handed over to the plaintiffs at this time of alleged sale of the suit land to then vide

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exhibit – I but the same did not happen and the contesting defendant No. 2 being the lawful owner of a suit land, the said document remained with her. From this fact, the trial court ought to have taken adverse presumption, against the plaintiffs.

10. For that the in view of the specific pleading of the contesting defendant No. 2 to the effect that the sale deed Exhibit I and other documents showing the title of the plaintiff being forged false and fabricated, the trial court committed gross illegalities to by not framing any issue to decide the same.

11. For that even going to decide the question of title of plaintiff on the basis of exhibit -1, 4, 5,6,7,8,9,10,11,13 the court below ought to have found that exhibit – 4 and 13 were obtained collusively without serving any notice to the original owner, Krishna Pd. Gupta and the present contesting defendant while exhibits- 5, 6, 7, 8, 10 are forged, false, back dated and fabricated documents.

12. For that from the documents marked as exhibits 1(1), to 1(12) the trial court ought to have fond that Shri Krishna Pd. Gupta always used to put his signature in Assamese and he never put his signature in Assamese and he never put his signature in English as appears from exhibits- 1, 5,8 and 10 which prove that this documents are false, forged and anti dated and the same could not confer any right, title and interest to the plaintiffs.

13. For that the contesting defendant being in continuous and un interrupted possession of the suit property paying land revenue, Municipal taxes, Electricity Bills having their Assam Type Building and R.C. Building where they were residing and having their rented houses therein have sufficiently proved their title and possession over the land and as such the court below ought to have dismissed the suit with cost to the answering defendant.

14. For that the suit is barred by Law as 20.05.1985 i.e. the date of the alleged execution and registration of purchase/sale deed No. 5738/1985 and 17.05.1997 i.e. the date of filing of the instant Title Suit No. 91/1997, there occurred 3 (three) leap-years i.e. in the year 1986, 1990 and 1994 which resulted 366 days a year in those three leap years other than 365 days in a year i.e. in 9(nine) other years between 1985 to 1997. As the instant suit having been filed on 17.05.1997 (which ought to have been filed within 12 (twelve) years period i.e. on 19.05.1997 at the latest is clearly and manifestly shows that the instant Title Suit No. 91 of 1997 is barred by 12 years limitation period which exceeded the period of 12 years of limitation by 1(one) single day.

15. For that respondents/plaintiffs have hurriedly got the appellant/sole contesting defendant No. 2 evicted from the suit land

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during the pendency of the petition for re-admission pending disposal, which has vitiated the entire proceeding.

16. For that the alleged fraudulent sale deed No. 5738/85 was never shown for inspection (in original). For that the findings the learned trial court failed to consider that in law, family settlement can be made orally instead of by documents;

17. For that it is well established in law that the plaintiffs/ respondents has to prove their case independently and they cannot take advantage of the weakness of the appellant/defendant No. 2's case.

18. For that plaintiffs/respondents has withholds material witnesses from the list of witnesses.9. During argument hearing, Ld. Advocate for the appellant has concentrated his arguments on the grounds/additional grounds taken in the memo of appeal and also drawn my attention on the evidence on record. Learned Ld. Advocate for the appellant has also submitted that as proper issues were not framed mainly on the plea of defendant that the sale deed of the plaintiff was forged, the case should be remanded for fresh trial after framing of proper issues at least on the point of genuineness of the sale deed executed by proforma defendant No. 3. To buttress the points raised during appeal hearing, Mr. R Das, learned Advocate for the appellant has also relied upon the following cases:- AIR 1966 SC 292 (Teg Bahadur vs Debi Singh), AIR 1964 SC 215 (UOI vs Ram Charan), AIR 1989 SC (Mithilesh Kumari vs Prem Bihari Khare), (2009) 12 SCC 231 (Harynana SEB vs Gulshan Lal), (1996) 1 GLR 212 (Dhiren Chakravarty vs State of Assam), (1992) 1 GLR (NOC) 13 (C K Medhi vs State of Assam), (2000) 2 GLR 438 [Bithika Basu vs State of Tripura], (2004) 8 SCC 724 [Chandi Prasad vs Jagadish Prasad], 2012(120) AIC 803 (Cal HC), 2012 (120) AIC 446 (Chatt. HC).10. On the other hand Mr. R C Sancheti, Ld. Advocate for the respondents, while vehemently objecting to the prayer of remand of the suit and framing of issues, has submitted that as the suit is for declaration of title is based on sale deed and an issue was framed for deciding the fact of acquiring title by plaintiffs, there is no need of

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separate issue. It is submitted that the points raised during trial, was duly considered by the trial court and same were reflected in the judgment. Ld. Advocate for the respondents by referring various documents and evidence on record has supported the judgment and submitted that forgery is not at all an issue in this suit and even if taken as relevant, than the burden of proof regarding forgery was upon the defendant No. 2 who has taken the plea, and during trial she has failed to prove the same. It is also submitted that as the defendant No. 2 has failed to prove her right to possess the suit land after transfer of title to the respondents, and no plea of adverse possession was taken, Ld. Trial Court has rightly held that the defendants are permissive occupiers and passed the decree for declaration of right, title and interest and recovery of khas possession. Respondent side has relied upon the following case laws:- AIR 1958 SC 789, AIR 1998 PATNA 128, (1991) 1 GLR 244, (2012) 8 SCC 148, (2000) 2 SCC 223, AIR 1972 SC 608, 2006 (Supp) GLT 718, 2001(1) GLT 99, (2012) 6 SCC 430.11. In view of the submissions of both the sides, the following points are formulated to decide the appeal. (i) Whether learned trial court has failed to frame proper issues

particularly on the point of genuineness of the sale deed executed by

proforma defendant No. 3.

(ii) Whether the judgment and decree passed by Ld. Trial Court is

just and proper or needs any interference in this appeal.12. In respect of point (i) i.e. non framing of proper issues, it is apparent that though a plea of execution of sale deed fraudulently was taken in the written statement on the ground of valuation of the suit property, putting signature by vendor in English rather in Assamese, non delivery of physical possession and having no right to execute the sale deed with K P Gupta in view of family partition of the property and giving he same to contesting defendant, and non delivery of original sale deed, admittedly learned trial court did not frame any issue on this of 25


count. However, learned trial court has framed issued on acquiring title by plaintiff on the basis of said sale deed. It may be noted here that suit was filed in the year 1997 and issued were framed after hearing both the sides. The trial continued for several years and both the sides led evidence knowing fully well the case of their own as well as case of other side. The defendant though submitted draft issued but never moved the trial court framing additional issues on this count. The other aspect is that even after getting specific details of the execution of the sale seed and copies of documents, no counterclaim was preferred by the defendant No. 2 for cancellation of the sale deed/declaration of the sale deed as void allegedly executed by K P Gupta. As pleaded in the plaint, declaration of title was required due to denial to vacate the suit land and the main relief in the suit is for recovery of possession based on title. There is evidence on record that after purchase of the suit property, the plaintiffs has successfully got the GMC holding cancelled for the suit property granted to defendant No. 2. Even knowing the fact of execution of sale deed during the process of cancellation of holding, the defendant No. 2 remained mum and did not challenged the validity of sale deed apparently executed by her father K P Gupta. Once issue on acquiring title is framed, the burden is in on the plaintiff to get an affirmative finding on the issue. Plaintiff can only succeed to get favourable finding on the issue not only by proving due execution of the sale deed but also the fact of salable title of his vendor on the date of execution by tendering legally admissible evidence both oral and documentary can only be able to get the decree for recovery of possession. On cursory look at the judgment, it appears that the grounds raised by defendant in challenging the validity of the sale deed were dealt with by the trial court while deciding the issue No. 4. Non framing of separate issue as pressed by appellant has not caused any prejudice to either side. Considering above, I am of the opinion that learned trial court has not committed any wrong on this count. of 25


13. Apart from this, I am also of the opinion that only for framing one more issue, remand of the suit after about 17 years of filling the suit is not all necessary. By using powers U/O 41 R 31 and 33, this court being the first appellate court, has ample powers to decide the matter on the basis of available materials on record. In the appeal hearing learned advocate for both sides has demonstrated that on the point of genuineness of the sale deed in question, sufficient material was brought on record. Hence, with the help of said materials, the plea taken by the defendant can be decided in this appeal. In view of above, I find no substance on the submission for remand of the suit for framing of additional and fresh trial. The point is answered accordingly in negative.14. To decide the point (ii), let me re-appreciate the material on record issue-wise which will cover the grounds/additional grounds taken in appeal. 15. Issue No. 1:- This issue related to cause of action for the suit. In appeal no challenge was made on the finding of this issue. On looking at the pleadings, it appears that the plaintiffs have filed this suit for declaration of right, title and interest and for recovery of possession of the suit property as the defendants No. 1 and 2 though allowed to possess the suit land as permissive possessor, failed to vacate the suit land. The defendant No. 2 while denying the title of plaintiffs claimed that she is the owner of the suit property on the basis of the family partition and she was never a permissive occupier. On the above pleadings, learned trial court has rightly held that “to settle the disputes between the parties, a judicial decision is required” and hence plaintiffs have cause of action to file the suit. I concur with the findings of trial court.16. Issue No. 2 and 3: Issue No. 2 relates to maintainability of the suit and Issue No. 3 relates non joinder of the necessary parties. As both the issues were raised in appeal with common grounds, they are taken up together for discussion though learned trial court has discussed them of 25


separately and decided against the defendant. During appeal hearing, learned advocate for the appellant has raised question on the findings of on both the issues mainly on the ground that K P Gupta, (proforma defendant Nos. 3) was expired on 20.12.1996 before filling of the suit in the year 1997. it is also argued that even after filing WS with specific plea informing the death of date the plaintiffs has never bothered to bring the legal heirs of the said K P Gupta on record by way impleadment/ substitution. Appellant has also challenged the maintainability of the suit on the count of under-valuation, limitation and improper verification. Let me deal with the points raised on by one. 17. During hearing learned advocate for the respondent has submitted that as they have no knowledge of death of K P Gupta, they have impleaded him as Proforma defendant no. 3 and on getting the knowledge they have prayed for striking out of the name of the said K P Gupta. It is also admitted that as no relief was sought against said K P Gupta, his legal heirs were not brought on record by way of impleadment substitution as they are not necessary party to decide the dispute in question. It is also submitted that the present suit is related recovery of possession from the defendant No. 1 and 2 who are according to the plaintiff are permissive occupiers and as none of the legal heirs has come forward to challenge the title of the plaintiff after the death of K P Gupta, hence the question of brining the other legal heirs on record is not necessary. I found force on the submission of respondent side. 18. Law is well settled that a necessary party is one without whom no effective decree/order can be made in a suit whereas a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. Order 1 rule 9 and 13 CPC, together indicates that, except in the case of necessary party, non-joinder or mis-joinder is not fatal to the suit. Looking at factual aspect, upon perusal of the plaint the relief was against the def No. 1 and 2 only. Written statement of defendant No. 2, shows that the defendant has taken specific plea that of 25


upon family arrangement the disputed property situated at Guwahati was given to defendant No. 2 and her mother (since deceased and other legal hairs of Late K.P. Gupta got their share at the properties at Jakhalabandha. As such, even from the pleading of the defendant, it is clear that on the date of filing of the suit the defendant No. 2 is claiming herself to be the absolute owner of the property on the right of the oral family partition of the suit property. It is no where pleaded by the contesting defendant that other legal of KP Gupta (now living at Jakhalabandha) has any interest in the suit property. Apart from this, one of the sons of the said K.P. Gupta has adduced evidence in this case as DW 2 and even after knowing regarding pendency of the suit on a property related to his father, never come forward to establish any claim over the property of his father. Admittedly, in the suit no relief was claimed from the proforma defendant No. 3 and the entire suit is framed with relief of declaration of title coupled with recovery of possession against defendant Nos. 1 and 2 only. In the plaint no allegation was brought against the other legal heirs of K P Gupta. Learned trial court has discussed the above matter in great detail and rightly held that there is no irregularity so far non joinder of the legal hairs of the proforma defendant No. 3.19. So far the question of filing the suit against a dead person, it is a fact that on the date of the filing of the suit the proforma defendant No. 3 K.P. Gupta was not alive. Said K.P. Gupta was the vendor of the plaintiffs and as such the plaintiff may not be in a position to know the fact of death of said K.P.Gupta on the date filling of the suit. Trial Court judgment reveals that upon knowing the fact of death, name of the said K.P. Gupta was struck out from plaint on the prayer or the plaintiffs and thus suit proceeded against defendant No. 1 and 2 only. Moreover law is settled that decree passed against the dead person is a nullity and in this case, no such decree was passed against any late K P Gupta. The decree was passed against the contesting proforma defendant Nos. 1 and 2 only. The argument of the learned Advocate of the appellant that suit was of 25


abated has no leg to stand simply because of the fact that proforma defendant No. 3 had died prior to filing of the suit and not during pendency of the suit. The ration of the case law AIR 1964 SC 215 as relied by learned Advocate for the appellant cannot be applied in this case on the present facts and circumstances. Once name of K.P. Gupta was struck out, it is presumed that plaintiffs have no claim against the said person and hence there is no question of abatement of whole suit. As the relief(s) are against defendant No. 1 and 2, suit can proceed with them without impleading the LR of K P Gupta. (AIR 1958 SC 789, Dr. K A Dhairyawan vs J R Thakur).20. So far under valuation and under stamping of the suit is concerned, though a plea was raised but no evidence was laid by defendant to show to ascertain the proper valuation of the suit. Plaintiffs have valued the suit at Rs. 30,000/- being the purchase price of the property and put another value of Rs. 3,000/- for the illegal constructions. Hence the value as shown by the appellant/defendant in written statement was nothing but presumptive. A suit cannot be thrown away on the ground of under valuation even if proved. In this case, no such proof was adduced. Hence, trial court has rightly accepted the valuation shown by the plaintiff. I find no illegality on this count. 21. So far the ground of improper verification of the plaint is concerned, it is argued that plaint filed by 3 persons as plaintiff but the verification was made by only on plaintiff. Order 6 R 15 of CPC empowers any one plaintiff to verify the plaint on behalf of others. So there was irregularity on this count too.22. Another question was raised on the point of maintainability as regarding filing of the suit beyond the period of limitation. It may be noted herewith that no plea of limitation was raised in written statement and hence no specific issues was framed on limitation. However, as the point has been raised as additional ground in appeal and submission were made both the sides, I intend to discuss on the point by keeping of 25


Section 3 of Limitation Act in mind. Admittedly, the land was purchased on 20.05.1985 and suit was filed on 17.05.1997. Even assuming the defence plea that sale was without delivery of physical possession of the suit land, than also suit appears to have been filed within 12 years. Ld. Advocate for the appellant has tried to impress upon that the suit was beyond 12 years by calculating the date on 365 days a year basis and by omitting the leap year days. In view of definition of year as given in General Clauses Act vide section 2(66). Year has to be counted according to British calendar. The counting of the period of 12 years as projected is not in accordance with law. On the other hand Ld. Advocate for the respondent ahs submitted that the cause of the action for the suit arose only on the month December 1996 when the defendants No. 1 and 2 has refused to vacate the suit premises though the defendants are permissive occupier only. By referring the reported case 1991(1) GLR 244 [Md. Abdul Hussain vs Md. Akkas Ali], learned counsel for respondent has also submitted that as the prayer of recovery of possession is based on title, as such article 65 of the Limitation Act shall apply and for filing a suit the period of limitation of 12 years and that too the said period of 12 years will start only upon taking the plea of adverse possession by the defendants. In this case, no plea was adverse possession was raised by the defendant and hence in fact there cannot be any period of limitation in filling a suit of present nature. I found force on the submission of learned counsel for defence and hold that that suit is filed within the period of limitation. Considering all above, with the added reasons for the grounds raised during appeal, I concur with the findings of the learned trial court that the suit is maintainable in its present form and suit is not bad for non joinder of the necessary parties.23. Issue No. 4:- This issue related to acquiring right title and interest by the plaintiffs. While discussing this issue learned trial court has dealt with the evidence of the both the parties at great length. The objection raised by defendant has also been dealt with properly. Let me of 25


re-appreciate the evidence on the basis of the ground taken on the appeal memo. 24. Plaintiffs' have pleaded that they purchased the suit property from K P Gupta (the proforma defendant No. 3) on 20.05.1985 vide registered sale deed No. 5738/85 at a consideration of Rs. 30,000/- and on the same day proforma defendant No. 3 delivered the possession of the suit property to the plaintiffs. After purchasing the suit property, plaintiffs got mutation of the suit land on 28.07.1986 and also obtained holding vide order dated 30.1.1986 passed by the Collector, GMC and accordingly the demand register was corrected on 06.02.1986. The plaintiffs are paying the land revenue and the GMC taxes regularly. Defendant in her WS denied any such sale by K P Gupta and pleaded that sale deed was forged by the plaintiffs and no possession was delivered. It is also pleaded that as the suit property has already been given to the defendant No. 2 on family partition, K P Gupta has no right to sale the said land.25. To prove the fact of purchase, plaintiffs have examined the plaintiff No. 2, Vijoy Kumar Shah as PW 1, Md. Sahabuddin Ahmed as PW 2 plaintiff No. 3 Smti. Kalpana Yadav as PW 3 and Plaintiff No. 1 Yogesh Shah as PW 4. PW 1 has deposed that they purchased the suit property from proforma defendant No. 3 by registered sale deed No. 5738/85 on 20.05.1985 and the sale deed was executed by proforma defendant No. 3 in presence of Shri Ramlal Yadav, Advocate, Shri Nabin Chandra Das, Advocate and Md. Sahabuddin, an Advocate's clerk. Proforma defendant No. 3 put his signature in the sale deed in his presence and in presence of other two plaintiffs and also in presence of the aforesaid witnesses. PW 1 has exhibited the sale deed as Exbt. 1 and the signature of the proforma defendant No. 3 K.P. PW 1 further stated that they paid the consideration amount to Rs. 30,000/- to the proforma defendant No. 3 who received the said amount after registering the sale deed in favour of the plaintiffs. He further stated that thereafter they mutated their names in respect of the suit property and changed the holding number from the name of the of 25


proforma defendant No. 3 to their names and started to pay the land revenue and GMC taxes regularly. He has exhibited the copy of the Jamabandi containing the names of the plaintiffs as Exbt. 2 and the copy of the Jamabandi containing the name of proforma defendant No. 3, K.P.Gupta as Exbt. 2(1). He has exhibited the certified copy of the assessment register of GMC as Exbt. 3 and the mutation order dated 30.01.1986 as Exbt. 4. He has exhibited the municipal tax paying receipts as Exbt. 5 to 11 and the land revenue paying receipt as Exbt. 12.26. PW 2 has deposed that he knew the proforma defendant No. 3 late Krishna Prasad Gupta who was the owner of the suit land. He identified Krishna Prasad Gupta before the Sub-registrar, Guwahati at the time of execution of the sale deed by Krishna Prasad Gupta in favour of the plaintiffs. He further stated that proforma defendant No. 3 Krishna Prasad Gupta put his signature and thumb impression in his presence and in presence of the plaintiffs and other witnesses. He exhibited the signature of proforma defendant No. 2 as Exbt. 1(1) to 1(9) and the signatures of attesting witnesses. PW 3 and PW 4 who are the plaintiffs No. 3 and 1 respectively have also deposed in the suit corroborating the statements made by the PW 1 in his deposition. Evidence of PW 1 to 4 remained unshaken on material point od execution of sale deed by K P Gupta.27. The defendant No. 2’s case is that the suit property was purchased in the year 1957 by the joint venture of Krishna Prasad Gupta and Smti. Tanka Devi and the same was purchased in the name of Krishna Prasad Gupta. Thereafter, in the year 1966, a family settlement was made and the proforma defendant No. 3 gave the suit property to the mother of the defendant No. 2 Smti. Tanka Devi and the properties situated at Jakhalabandha were given to the sons and daughters of the first wife of the proforma defendant No. 3. Since then, Smti. Tanka Devi and after her death the defendant No. 2 possess the suit land. According to the defendant No. 2 her father proforma defendant No. 3 Krishna Prasad Gupta never signed in English. He always signed in Assamese. But of 25


in the alleged sale deed which was executed in favour of the plaintiffs, the signature of proforma defendant No. 3 is shown in English. Therefore, according to her, this sale deed is a forged one.28. In support of her case, the defendant No. 2 has examined 4 witnesses. The defendant No. 2 has examined herself as DW. 1 one son of Proforma defendant No. 3 Shri Chaturbhuj Gupta as DW 2, one Babulal Sharma as DW 3 and one Md. Islam Ali as DW 4. Corroborating her case made in the WS the defendant No. 2 as DW 1 has deposed that in the oral family settlement which was made in the year 1966, proforma defendant No. 3 gave the suit property to her mother Tanka Devi and therefore after the death of Tanka Devi, she became the owner of the suit property. Her father (proforma defendant No. 3) never sold the suit land to the plaintiffs. In her cross examination, she has admitted that the family settlement was verbal. She had heard about the family settlement from her mother Tanka Devi. However DW 2 (son of K P Gupta) has contradicted her and in his cross examination stated that the suit property was never partitioned. He further confirmed that he stated about the partition of the property of his granted mother. DW 3 and 4 have not stated anything about the family settlement of the property of the proforma defendant No. 3. DW 3 in his cross examination stated that he saw that about 15 to 16 years ago, the defendant No. 2 constructed the house over the suit land.29. The learned counsel of the plaintiffs has submitted that the plaintiffs by examining both oral and documentary evidences have clearly proved that the proforma defendant No. 3 sold the suit property to the plaintiffs on 20.05.1985 by registered sale deed and delivered them the possession of the same. The defendant No. 2 was allowed to stay over the suit land as permissive possessor till alternative arrangement was made by her, but the defendant No. 2 without the knowledge of the plaintiffs managed to create another holding in her name over the suit property. As the plaintiffs have proved the execution of the sale deed in their favour by the proforma defendant No. 3, the of 25


plaintiffs have right, title and interest over the suit property. But the defendant has taken the plea that in the family settlement the suit property fell in the share of the mother of the defendant No. 2 and after the death of the mother, the defendant No. 2 became the owner of the suit property, but the defendant failed to prove this family settlement. Therefore, the defendant cannot claim the suit property by any right.30. On the above factual aspect let me look at the validity of the sale deed executed by K P Gupta in favour of the plaintiffs. It is well settled law that “Plaintiff must succeed or fail on his own case and cannot take advantage of weakness of the defendant case to get a decree.” [(1998) 4 SCC 539]. From a cursory reading of the evidence it is apparent that so far execution of the Exbt. 1 sale deed is concerned, plaintiff has successfully proved the fact of execution of the sale deed in favour of the plaintiff. Learned trial court has dealt with the evidence on this count at length and I found no illegality in the said finding so far execution of the deed by K P Gupta is concerned. Now the question which vehemently argued in appeal regarding the authority of K P Gupta in execution of said deed and whether any title in fact was transferred to plaintiffs on the basis of said sale deed. 31. It is also alleged that K.P. Gupta never signed in Assamese as shown who have done in the sale deed. Against the above ground and submission learned advocate for the respondent has argued that the execution of sale deed was duly proved by the plaintiffs and the DW 2 one of the son of the proforma defendant No. 3 has admittedly identified the signature of his father.32. One of several ground in this connection as taken by appellant in the Memo Appeal is that the sale is invalid as the same was not complete due to non delivery of possession. The plaintiff case is that upon execution of the sale deed possession was delivered by the vendor and at the request of the defendant No. 2 and her mother, they were allowed to reside on the suit property as permissive occupier till of 25


alternative arrangement were made by them. To establish their possession plaintiffs have proved the fact that they have obtained mutation over the suit land on 28.07.1986 and holding on 30.01.1986 and thereafter paid the land revenue and GMC Tax regularly. To counter the submission of appellant that non-delivery of possession makes a sale invalid, Learned Advocate for the respondent by referring to the reported case of 2006 (supp) GLT 718 ( M.R. Trivedi – Vs- G.K.Tea Com. Pvt. Ltd.) has rightly submitted that for a valid sale, delivery of physical possession is not pre-condition. Hon’ble Gauhati High Court in this case has held that “for a valid sale delivery of possession is not essential.” As such, the above ground as taken by appellant has no force. 33. The next ground in this chain is capability of Sri K.P. Gupta transfer the suit property. It is pleaded that suit property was purchased jointly by Tanka Devi and K P Gupta and in the year 1966, upon family arrangement between the two sets of legal hairs, the suit property was handed over to the defendant No. 2 and her mother Smti. Tanka Devi. Ld. Advocate for the appellant by placing reliance on the reported case of AIR 1996 SC 292 Teg Bahadur – VS- Devi Sing oral partition is permissible under law and in this case in token of the family partition the K.P. Gupta has handed over the original sale deed of his purchas to defendant No. 2. Thus the sale by K P Gupta is void ab-initio and without any authority. Defendant/Appellant has raised the plea that during life time of K.P. Gupta he has made a family partition of his properties by giving the suit property to defendant No. 2 and her mother and the other properties at Jakhalabandha were given to other legal hairs of K.P. Gupta. It is also submitted that the original sale deed was with the defendant No.2 and non handing of the same to the purchaser, the plaintiff shows that the sale deed was fraudulently was executed without the knowledge of the said K.P. Gupta. 34. While refuting the argument of appellants, it was submitted that as per own document proved by defendant. Exbt. H, the suit land was purchased by K P Gupta alone and it was never a joint property. It is

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also argued that self acquired properties cannot be given on oral partition without executing sale deed/gift deed. Refuting the argument of non-handing over of the document of title to the plaintiffs by K P Gupta, by referring section 55(3) C of T.P. Act and reported case of AIR 1953 P & H 231, Learned Advocate for the respondent has submitted that it is not mandatory to hand over the document of titles to purchaser and only on demand by the buyer sale are bound to hand over this documents of title to the proposed buyer on execution of the sale deed. 35. In this case, Exbt. H, as proved by the defendant No. 2 shows that K.P. Gupta has purchased his land on his own name and not jointly with Tanka Devi. Hence the oral evidence of jointly purchasing the suit land by Tanka Devi and K P Gupta is hit by section 91 and 92 of evidence Act. From the Exbt H, it is clear that K.P.Gupta had purchased the property on his own name alone and there was reliable evidence that his wife Tanka Devi has contributed in purchase as pleaded by the defendant. They have failed adduced any documentary evidence on this aspect that Tanka Devi was joint purchaser. The claim of the defendant that the land was purchased in the name of the K.P. Gupta alone as benami purchaser on behalf of Tanka Devi was not tenable in law in view of the provisions Benami Transation Prohibition Act. 36. Once it is proved that the suit property belongs to K.P. Gupta as his self acquired property, the next question comes for decision on the claim of the defendant is as to where during life time of a person he can transfer the title over a property by handing over his purchase deed without execution of any sale deed/gift deed. Law has provided various mode of transfer of property and they are sale, gift, execution of will etc. In case of family partition, the person to whom the share of property was given, must have some antecedent right on the property, in absence of which he cannot get any title during life time of the true owner except right of enjoyment only. According to Hindu Law of Succession, right of succession opens only death of the owner of the property. In case of Mitakshara School of Succession, a person can claim share in the co- of 25


personary property inherited from ancestors but and not in self acquired property purchased by any individual member of joint Hindu family. Any transfer of property during life time of owner cannot be given by way of family partition either oral or written without taking resort to lawful modes of transfer of title by way of sale or gift. If a family partition is taken as gift, then also according to section 123 of T P Act, any gift by a Hindu must be made by executing registered deed. Giving of a property on family arrangement to the legal hairs during life time has not been recognised by the TP Act as valid mode transfer to create absolute ownership over the property in exclusion of the owner or the other legal hairs. [AIR 1953 SC 495 C N Arunachala Mudaliar vs C A Muruganatha Mudaliar], [1996(2) GLJ 197 (Commissioner of Income Tax, N E Region vs Bibijan Begum)] and (1996) 1 GLR 212 (Dhiren Chakravarty vs State of Assam). 37. Turning to the facts of the case in hand the defendant though claimed the suit property was given to her mother on family settlement by her father K.P. Gupta but failed to produce any document to show valid transfer of title in her favour by K.P. Gupta in his life time. In this case, admittedly no registered deed of gift or sale was executed by K P Gupta in favour of his daughter or wife and as such giving the landed property orally on family partition has no legal force and by such arrangement no title was created in favour of Tanka Devi or defendant No. 2. Thus it is clear that K P Gupta remained as the absolute owner on the date of execution of the sale deed vide Exbt. 1. The arguments of appellant side are not legally tenable to divest Mr. K.P. Gupta from transfer of his properties in year 1985. I have no hesitation to hold that on the date of the execution of the sale deed i.e. on 20.05.1985 K.P. Gupta was absolute owner of the suit property and has the right to transfer his property as per his own choice and wisdom. I have already held that the sale deed executed by K.P. Gupta was duly proved by the plaintiff. Thus on execution of sale deed, the title over the suit property stands transferred in favour of the plaintiffs. I am also of the view that non- of 25


delivery of original sale deed will not affect the title of the plaintiffs as they have acquired valid title coupled with mutation in records of rights. Remaining the original purchase deed of K P Gupta in the hands of appellant cannot be treated as acquiring absolute title by her.38. So far the plea of forgery in execution of one sale deed on the ground of valuation of the sale deed law is well settled a civil court has little jurisdiction to look into quantum of consideration to decide the validity of the sale deed.39. So far forgery of the sale deed on the ground putting signature in English, the respondent side by referring to Exbt. 5 a GMC receipt has proved that K.P. Gupta knew to sign in English and vide Exbt. 5(1) by said GMC K.P. Gupta signed in English. The said receipt was handed over by K.P. Gupta. So the plea of the appellant that on some other occasions K P Gupta signed in Assamese cannot be ground to disbelief the execution of the sale deed by K P Gupta, when PW 2 has categorically stated that K P Gupta is personally known to him and he has introduced K P Gupta before sub–registrar and his evidence remained unshaken. Even DW 2 has admitted the signature of his father in Exbt. 1. So on this count too, sale is found genuine.40. From the above discussion, it is clear that on the date of the execution of the sale deed the K.P. Gupta was the absolute owner of the suit property and by executing Exbt. 1 he has transferred the ownership/ title and interest on the property in favour of the plaintiffs. Ld. Trial Court has rightly come to the conclusion and committed no mistake in declaring plaintiffs right, title and interest over the suit property. I concur with the findings of trial court on this issue with the added reason as above.41. Issue No. 5 and 6:- Both these issues are related to relief(s). Plaintiff has filed the suit for getting the declaration of their title and also for recovery of khas possession by evicting the defendant No. 1 and 2. It is the case of the plaintiff is that on the date of purchase they have of 25


allowed the defendants to resided in the suit property as permission occupier and lastly in the year 1996, on being asked to vacate the defendants have refused to do so and the hence the prayer of recovery of possession. In the appeal memo the appellant has taken the plea the plaintiffs has failed to prove the fact that she was allowed to remain as permissive occupier and also the fact that notice to vacate was ever server upon the defendant. Without going on much detail, I am of the considered opinion that, once it is proved that the defendant No. 2 has no right over the suit property either her own or through her father K.P. Gupta; she has no right to remain in possession over the suit property belongs to the plaintiffs. The plaintiffs on execution of the sale deed, obtained mutation and holding from the concerned authorities which shows that they have exercised their right of ownership. The defendant has not taken any plea of adverse possession over the suit property against the interest of the plaintiff. Defendant No. 2 has failed to show her right to remain in possession over the suit land and on the date of refusal to vacate, she becomes trespasser. In a suit for recovery of possession from permissive occupier or trespasser, no notice is required to be served under Specific Relief Act. As such, she is liable for eviction. Ld. Trial Court rightly has granted relieves as prayed in the suit. 42. It may be noted here that during appeal hearing ld Advocate of appellant has also argued on the matter execution of the decree during pendency of appeal and legality of such execution. It is an admitted that on dismissal of the appeal for non taking stpes, the decree passed by trial court for recovery of possession was put to execution and same was dult executed and possession was delivered to the plaintiffs. However subsequently the appeal was restored to file and heard on merit. As the appeal has no merit, I find no reason to discuss on the legality of execution of the decree and the case law relied by the appellant side. 43. In the result, I hold that the appeal has no merit and as such same is dismisses on contest with costs.ORDER

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44. Appeal is dismisses on contest with costs. The impugned judgment and decree dated 24.12.2003 as passed by the then learned Civil Judge (Sr. Divn) No. 2, Kamrup, Guwahati (presently Civil Judge No. 2, Kamrup (M), Guwahati) is affirmed and upheld.45. Prepare the decree within 15 days from today accordingly.46. Send down the case record of T.S. No. 91/1997 to learned Civil Judge No. 2, Kamrup (M), Guwahati with a copy of this judgment and decree.Given under my hand and seal of this court on this 11th day of

March, 2014. Additional District Judge No. 2 Kamrup(M), Guwahati.

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assam schedule vii, form no.133. heading of ...kamrupjudiciary.gov.in/judgments...

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