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Assam Schedule VII, Form No.132.

High court Form No.(J)2.

HEADING OF JUDGMENT IN APPEAL.

District- Jorhat.

IN THE COURT OF THE CIVIL JUDGE AT :::::JORHAT.

Present – Sri K.Dohotia,

Civil Judge,Jorhat.

Judgment in Title Appeal No.50/2013.

Sri Ranjit Baruah,

S/o.Late Bogai Baruah,

R/o. Charingia gaon, Porbotia Mouza,

P.S- Pulibor,

Dist- Jorhat ….. Appellant.

- Versus -

1. Sri Kamal Baruah,

2. Sri Krishna Baruah,

Both S/o.Late Dharam Baruah,

R/o. Charingia gaon, Porbotia Mouza,

P.S- Pulibor, Dist- Jorhat

,

3. Smti.Sabitri Baruah,

D/o.Late.Bogai Barua,

R/o. Charingia gaon, Porbotia Mouza,

P.S- Pulibor,

Dist- Jorhat

….. Respondents

Date of Hearing :- 09.04.14.

Date of Judgment :- 09.05.14.

APPEARANCES :-

1. For the Appellant - Mr.B.Goswami, Advocate.

2. For the Respondent - Mr.P.Hazarika, Advocate.

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JUDGMENT.

1. This appeal U/O.41, R.1 of C.P.C directed

against the Judgment and decree dtd.12th

September,2013 passed by the Ld.Munsiff

No.1, Jorhat, in T.S.11/12.

2. By this impugned Judgment and decree,

the Ld.Court below dismissed the suit of the

appellant-plaintiff.

3. Being aggrieved and dissatisfied with the

impugned Judgment and decree, one of the

appellants-plaintiffs has filed this appeal on the

following amongst other grounds-

G R O U N D S.

For that the impugned Judgment and decree

passed by the Ld.Court below is not tenable in law as well

as on facts.

For that the Ld.court below wrongly decided the

Issues and erroneously held that the plaintiff-appellant

has failed to prove their case and as such, not entitled to

get the decree as prayed for without going through the

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relevant land records and as such, finding of the Ld.court

below is liable to be set aside.

For that the suit was not contested by the

defendants/respondents in spite of receiving summons

and no evidence either in oral or in document have been

adduced by the defendant/respondent and in spite of that

the Ld.court wrongly dismissed the suit in favour of the

defendants/respondents.

For that the Ld.court below failed to appreciate the

evidence adduced by the plaintiff/appellant in its proper

perspective and court below erroneously held that the

plaintiff is not entitled to get the decree.

For that the Ld.court below failed to consider that

the land of the suit patta No.17 of Dag No.366 measuring

12 Bigha 01 katha 15 Lechas was self acquired property

of Late Bogai Baruah who was the father of the present

appellant. Said Bogai Baruah never transferred his right,

title and interest of the said self acquired property by way

of sale or gift and as such, respondents have no right, title

or interest over the suit land, but the Ld.court below

illegally dismissed the suit against the plaintiff-appellant.

For that the Ld.court below failed to consider the

fact that originally entire land under Dag No.366 was

covered by A.P.land and the Bogai Barua being the

absolute owner and occupier of the said land measuring

12 Bigha 01 katha 15 Lechas and taken necessary steps

to conver the said Annual patta to periodic patta in his

name. As per order dtd.20.5.1967, passed by the

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Asstt.Settlement officer, P.P.No.17 was issued in the

name of the father of the appellant Bogai Baruah and the

name of Respondents were not included in the patta.

For that the Ld.court below failed to consider that

respondents have secretly mutated their names in the suit

patta in spite of having no right or title on the suit land.

For that the Ld.court below also failed to consider

that mere mutation of the name in the patta does not

confer any title in favour of the respondent without having

any valid transfer deed.

For that the Ld.court below failed to consider that

the respondents were not in possession of the suit land

as co-pattadar at any point of time but they illegally

mutated their names without serving any notice to the

appellant in the record of rights which was unknown to the

appellant till 26.12.11.

For that the Ld.Munsiff No.1, failed to consider that

the reason of not preferring any appeal against the illegal

mutation order due to his old and ailing health and also

due to lack of knowledge about the mutation.

For that the Ld.Court below also failed to consider

that the plaintiff/appellant institute the suit for declaration

of their right, title , interest and for confirmation of

possession of the entire land of the suit patta. The suit

land is properly identified by giving the boundary of entire

land of suit patta measuring 12 Bigha 1 katha 15 Lechas

which was exclusively possessed by the father of the

appellant, namely, Bogai Baruah.

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For that the Ld.Trial court failed to appreciate that

the mutation order was obtained by the respondent

illegally without serving any notice to the recorded

pattadar or without the knowledge of the appellant’s father

and also without having any valid documents. Moreover,

defendant never come forward to prove that the Mutation

order was legal and as such, the findings of the Ld.court

below is illegal and liable to be set aside.

4. I have heard the submission advanced

by the Ld.counsel for the appellant-plaintiff as

well as the Ld.counsel for the

respondents/defendants.

5. Before going to the merit of the case, I

want to reproduce the facts of the case leading

to this appeal.

6. Appellant as Plaintiff instituted a suit for

declaration of right, title, interest and for

confirmation of possession. His case is that both

the parties are brother and sister and they have

common interest over the land measuring 12

bigha 01 katha covered by Dag No.366 of

P.P.No.17 located at Tingtingia gaon under

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Parbatia Mouza, Jorhat which is more specifically

described in the schedule of the plaint as “suit

land”. The defendants-respondents are their

paternal uncle. The suit land was inherited by the

plaintiff-appellant from his deceased father Late

Bogai Baruah. The entire land was originally

annual patta land and the same was under

possession of his father and thereafter converted

to Periodic patta land vide order of the

Asstt.Settlement Officer of the then (old)

Sivasagar District at Sadar Jorhat on payment of

necessary premium by his father Late Bogai

Baruah and since then, Late Bogai Baruah

became recorded pattadar. The appellant-plaintiff

stated that the respondents-defendants had

never been in possession of the suit land as co-

pattadar at any point of time, but for their unlawful

gain , somehow managed the Lat Mandal and

surreptitiously mutated their names in the records

of right without the consent of his father. In the

meantime, the respondent-defendant Kamal

Baruah on the basis of the mutation, filed a

partition case which was numbered as 134/2009-

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10. The plaintiff-appellant has stated that the

said partition case was filed against dead person,

i.e., his father that too without service of notice.

The said fact came to know when the plaintiff-

appellant obtained the certified copy of

Jamabandi. On 26.12.2011 and in several

subsequent dates, the defendant-respondents

warned the plaintiff-appellant not to harvest the

suit land and claimed that he (defendant-

respondent) is the owner of half share of the suit

land. Hence, the plaintiff-appellant instituted the

suit against the respondent-defendants.

7. The defendants-respondents received

summons, but they failed to submit their written

statement on time. As such, the suit was proceeded

ex parte. Later on, respondents-defendants filed a

petition U/S.151 of C.P.C before the Ld.Trial court to

vacate the ex parte order and to accept the written

statement. In their petition, they stated that due to

illness, they could not file their written statement on

time. But, in support of their contention, they failed

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to produce any documents. So, bearing the provision

of Order 8, R.1 of C.P.C, Ld.Trial Court rejected the

petition filed by the defendants-respondents and the

written statement filed by them was not accepted.

However, defendants-respondents were allowed to

cross-examine the witnesses of the plaintiff. As such, I

am not agree with the findings of the Ld.Trial Court

that in spite of availing dates for filing written

statement, defendants-respondents failed to submit

written statement and as such, the suit was

proceeded ex parte against them.

8. As there was no written statement, Ld.Trial

Court did not frame any Issue. But, for proper

adjudication of the matter, following Points are taken

up for determination.

P O I N T S.

1] Whether there is any cause of action for

the suit ?

2] Whether the plaintiff is entitled to a decree ?

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9. During trial, plaintiff-appellant filed

evidence of three witnesses on affidavit and

exhibited three numbers of documents to prove

his stand. Defendants/respondents only cross-

examined the witnesses of the plaintiff-appellant.

10. After going through the pleadings and

evidence on record both oral and documentary

and hearing the Ld.counsels for both sides,

Ld.Trial Court passed the impugned Judgment

and decree of dismissal of the suit.

DECISION & REASONS THEREOF.

11. POINT NO.1- Plaintiff-appellant in his

pleadings stated that the suit land measuring 12

Bighas 01 katha covered by Dag No.366 of

P.P.No.17 of Tingtingia gaon under Parbatia

Mouza, Jorhat is the subject matter of the suit

which is more specifically described as the “suit

land” in the schedule of the plaint and the entire

land was inherited by the plaintiff-appellant from

their deceased father Late Bogai Baruah. The

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said plot of land was under annual patta land

and the father of the plaintiff-appellant was in

possession of the said land. Subsequently, on

being payment of the necessary premium, the

said annual patta land was converted to periodic

patta land vide order dtd.20.5.1967, passed by

the Asstt.Settlement officer and P.P.No.17 was

issued in the name of the father of the appellant

Bogai Baruah and since then, name of Bogai

Baruah was recorded as pattadar in respect of

the said periodic patta land. Defendants-

respondents are not in possession of the suit

land as co-pattadar, but for their unlawful gain

with a view to grab the suit land, somehow

managed the Lat Mandal and secretly mutated

their names in the records of right without

consent of the plaintiff-appellant or his father. On

the basis of the mutation case filed by the

defendants/respondents, a partition case was

filed in the District Revenue Authority for partition

of the land which was registered as Partition case

No.134/2009-10. The said partition case was filed

against the deceased father of the plaintiff-

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appellant that too without serving any notice. The

plaintiff-appellant was not known about the

partition case, but he came to know about filing

the partition case when he obtained the certified

copy of Jamabandi in respect of the suit land.

The plaintiff-appellant came to know that with the

help of Lat Mandal, the respondents-defendants

secretly became as a co-share holder of the suit

land from the plaintiff-appellant. On 26.12.11 and

on several subsequent dates, the defendants-

respondents warned the plaintiff-appellants not to

harvest over the suit land and claimed that they

are the owners of half share of the suit land.

Cause of action means every facts which it would

be necessary for the plaintiff to prove, if transfers

only to support the Judgment of the Court. Every

facts which is necessary to be proved , as

defined from every piece of evidence which is

necessary to prove its fact, comprise in cause of

action.

12. In the present suit, a bundle of facts

have arisen between the two parties which are in

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dispute and are required to be adjudicated and to

be proved by the plaintiff by adducing evidence.

Therefore, I find that there is a cause of action for

the suit.

13. POINT NO.2- P.W.1 Sabitri Baruah, the

daughter of Bogai Baruah, in her evidence on

affidavit has stated that the suit land measuring

12 Bighas 01 katha 15 Lechas had been

originally included in the annual patta land and by

order of the Assistant Settlement officer,

dtd.10.5.1961, the said land was converted into

periodic patta land in the name of their father

Bogai Baruah as per right of possession on

payment of premium. Her father deposited the

required premium as fixed by the Officer concern

vide challan No.94. Ext.2 is the said Challan and

since then, their father had been in possession of

the suit land without any interruption till his death

on 1.1.2009. She has exhibited Chita of the suit

patta as Ext.1 and copy of Jamabandi as Ext.3.

She has also stated that their father was in

exclusive possession of the suit land without any

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interruption, but the defendants/respondents

illegally mutated their names in the records of

right during the life time of their father. When they

obtained the certified copy of Jamabandi, they

came to know that the defendants for their illegal

gain and to grab the suit land, somehow

managed the Lat Mandal and secretly mutated

their names without serving any notice upon

them and became as co-share holder of the suit

land.

14. P.W.2 Lat Mandal Utpal Barua has

deposed that he is the Lat Mandal of Tingtingia

gaon under Jorhat West Circle. He has deposed

from the Chitha and Jamabandi of the suit patta.

He has stated that as per record, originally, the

suit land measuring 12 bighas 01 katha 15

Lechas was in the name of Late Bogai Baruah.

But, the record is silent how the name of Bogai

Baruah was recorded. It can only be known from

the Draft chitha which is available in the office of

the Deputy Commissioner , but he has not

brought the draft chitha with him. He has stated

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that name of Kamal Barua and Krishna Barua,

the respondents-defendants were recorded in the

Jamabandi in respect of the land measuring 12

Bighas 01 katha 15 Lechas by way of share and

not by way of inheritance. He has stated that

some mutation are done through the Chitha and

some mutation can be done by filing proceeding.

Mutation, by right of inheritance and by right of

purchase are done by Chitha Mutation. He has

also stated that Chitha Mutation are done after

obtaining consent from the Opposite side. But the

records which are brought by him before the

court, it is not mentioned that Bogai Barua gave

consent for mutation of the names of Kamal

Barua and Krishna Barua.

15. In cross-examination, he has stated that

mutation of Kamal Barua and Krishna Barua took

place on 10.5.1966 during life time of Bogai

Barua. He has stated that on the consent of the

original pattadar, names of other persons are

mutated. If the original pattadar filed objection,

then, the Circle officer register a case and that

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proceeding dispose of after taking evidence. He

has further stated that there is no Entry on the

record which he brought to the fact that Bogai

Barua (since deceased) filed objection against

mutation of Kamal Barua and Krishna Barua. He

has stated that during partition between the

brothers , one share left in the name of Bogai

Barua and two shares went to Kamal Barua and

Krishna Barua. It is also seen from the evidence

of P.W.2 that the suit patta was converted into

three pattas through partition. On the basis of

order received from the Concern Officer in

regards to the partition, he submitted report and

before filing the report, he visited the suit land.

During his Field Visit, he found possession of

Kamal Barua and Krishna Barua in two parts.

16. P.W.3 Sandhya Barua, Office Assistant,

in the office of the Revenue Department, Jorhat,

deposed that from the original draft chitha of

P.P.No.17, it is seen that vide order dtd.6.8.1958

in WLA 20/58-59, land measuring 12 Bigha 01

katha 15 Lechas covered by Dag No.250, was

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converted into Eksona in the name of Bogai

Barua and as per order of the Assistant

Settlement Officer, the suit land covered by Dag

No.250/36 was converted into the Periodic patta

vide order No.CPR-9/59.

17. From the examination-in-chief of the

witness, it reveals that the annual patta was

converted into the periodic patta in the name of

the father of plaintiff-appellant and during his life

time, name of the brothers were mutated in

respect of the land. Record further reveals that

during his life time, Bogai Barua, the father of the

plaintiff-appellant had not objected against the

said order of mutation. As per evidence of P.W.1,

Bogai Barua died on 01.01.2009.

18. P.W.1, in her cross-examination stated

that they filed the suit for land measuring 08

Bighas. She has also admitted that in their

schedule of land, they have mentioned the

boundary of 12 Bigha 01 katha 15 Lechas of

land. She has stated that only 04 Bighas of land

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is under their possession and other 08 Bighas of

land are in the possession of the respondents-

defendants. She has denied that they have not

prayed in the plaint and in her evidence for

recovery of the suit land. She has admitted that in

Ext.3, i.e., the Jamabandi, the names of

defendants-respondents are appeared along with

her and her two brothers. She has also stated

that their names are mutated in the suit patta only

for 04 Bighas 11 Lechas of land and names of

the defendants-respondents are mutated for

other 08 Bighas of land. She has further stated

that they filed objection before the Circle officer

against the mutation of the name of defendants-

respondents, but their objection was rejected.

They have not filed any appeal against the order

passed by the Circle Officer. She has stated that

she has not filed the suit for the land measuring

12 Bighas -01 katha-15 Lechas. The suit is only

for 08 Bighas of land. She has denied that in the

plaint, she has stated that the suit is filed for land

measuring 06 Bighas 10 Lechas. She has stated

that they mentioned boundary of the land

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measuring 12 Bighas 01 katha 15 Lechas in the

schedule of the plaint. She has also admitted that

they have no possession over the land

measuring 08 Bighas out of the total land. She

has denied that during life time of their father,

land was partitioned between their father and

defendants-respondents got 2/3rd

share of the

land and also mutated their names in the records

of right. She has denied that since 1966,

defendants-respondents are in possession of the

suit land. She has denied that during life time of

their father, they have been possessing only 1/3rd

of the land. She has further denied that they have

no right, title and possession over 2/3rd

share of

land possessed by the defendants/respondents.

She has admitted that there are so many Civil

and Criminal cases are pending between them.

Though in the plaint, plaintiff-appellant stated that

the suit land is 12 bighas 01 katha 15 Lechas

covered by Dag No.366 of P.P.No.17, but as per

schedule of the plaint, the suit land is 06 Bighas

10 Lechas out of the total land measuring 12

bighas 01 katha 15 Lechas covered by Dag

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No.366 of P.P.No.17. But again in her cross-

examination, P.W.1 stated that they filed the suit

only for 08 Bighas of land. Admittedly, Annual

patta land was converted to the periodic patta

land in the name of Bogai Barua, the father of the

plaintiff-appellant. But, from the Ext.3, the

Jamabandi, it appears that vide order

dtd.11.5.1966 passed by the Ld.Circle Officer,

East Circle, the names of the defendants-

respondents were mutated along with the original

pattadar as share holder. As such, from the Ext.3

and from the evidence of P.W.2, names of

defendants-respondents were mutated during the

life time of the father of the plaintiff-appellant. But

during the life time, father of the plaintiff-appellant

did not file any objection against the said

mutation. Further, plaintiff-appellant has failed to

prove that mutation order passed in the name of

defendants-respondents pertaining to the suit

land was obtained illegally. The description of the

land given in the evidence is also contradictory to

that of the pleadings. Plaintiff-appellant has

stated that they have got the knowledge of the

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mutation on 26.12.11, but they failed to prove by

producing reliable oral and documentary

evidence that the partition case subsequent to

the Mutation case was issued illegally.

19. In the light of the foregoing discussion of

evidence both oral and documentary, I am agree

with the findings of the Ld.Trial Court. Plaintiff-

appellant has failed to prove their case. As such,

they are not entitled to decree as prayed for.

20. Burden lies on the plaintiff-appellant to

prove his case. Plaintiff-appellant is not entitled to

the decree only on the ground that defendants-

respondents have not contested the suit. As

such, I find that there is no ground to interfere

with the impugned Judgment and decree passed

by the Ld.Trial Court both legally and factually.

O R D E R.

In the result, Judgment and decree

dtd.12.09.13 passed by the Ld. Munsiff No.1,

Jorhat, in T.S.11/12, is hereby affirmed.

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The appeal is dismissed on contest.

However, considering the facts and

circumstances of the case, both the parties are

directed to bear their own costs.

Prepare an appellate decree accordingly.

Send down the L.C.R along with a copy of

Judgment to the Ld.Court below immediately.

GIVEN UNDER my hand and seal of this

Court on this 9th day of May,2014.

Dictated & corrected by me-

CIVIL JUDGE

( Sri K. Dohotia ) JORHAT.

Civil Judge,Jorhat.

Transcribed & typed by-

Nirju R. Gogoi, Stenographer.