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

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

 The appellant/plaintiff herein filed the  Title  Suit  no.11  of  1987

against the respondent/defendant no.1 herein in the  Court  of  Civil  Judge

(Junior Division) no.2, Mangaldoi for declaration of title in respect  of  1

katha 16 lechas of land described in schedule-1 to  the  plaint  covered  by

Dag no.52/575 of P.P. no.960 situated in village  Mangaldoi  gaon  and  also

for recovery of khas possession of the suit land  described  in  schedule-2,

which is a part of the land in schedule-1 by demolishing the  structure  put

by respondent no.1 herein/defendant no.1 and also for  permanent  injunction

restraining   the   respondents   herein/defendants   from    raising    new

constructions on the suit land.=

The Trial  Court  on  consideration  of  the

oral and documentary evidence dismissed the suit  as  well  as  the  counter

claim. 

The appellant/plaintiff preferred Second Appeal in  R.S.A.  no.116

of 2000 and the Guwahati High Court held that  the  appellant/plaintiff  had

title to the suit property in schedule-1  and  partly  allowed  the  appeal.

The appellant/plaintiff herein filed Review Petition no.1  of  2008  stating

that since the main relief had been granted, the  consequential  relief  for

khas possession of schedule-2 property ought to have been  granted  to  him.

The High Court dismissed the Review Petition.  

Challenging the rejection  of the relief of recovery of khas possession of  schedule-2  property  and  the relief of permanent injunction in  the  Judgment  as  well  as  Review,  the

appellant/plaintiff has preferred the present appeals to this Court.=

 

 Respondent no.1/defendant no.1 filed written  statement  stating  that

she purchased 1 bigha of land from Bati Ram on 4.8.1955  and  constructed  a

thatched house and she has not encroached on the suit  land  as  alleged  by

the appellant/plaintiff.

 

4.    Respondent no.2 herein/defendant no.2 impleaded himself  in  the  suit

and in his written statement he  took  the  identical  plea  raised  by  the

respondent  no.1/defendant  no.1  in  her  written  statement.   He  further

asserted that he never sold the suit  property  to  the  appellant/plaintiff

and the sale deed dated 12.7.1977 is a  forged  one  and  he  also  filed  a

counter claim  seeking  declaration  of  title  to  the  suit  property  and

recovery of possession of the same from the appellant/plaintiff.=

 

 “(i)  Whether the learned courts below were justified in holding

           that  Ext.4  sale  deed  was  not  proved,  merely  because  the

           executant of the deed was not examined?

 

 

 

           (ii)  Whether the learned courts below failed  to  consider  some

           relevant  materials  such  as  Ext.2,  Ext.5  and  whether   non-

           consideration of such material has vitiated the judgments?

 

 

 

           (iii) Whether the learned trial  court  was  justified  to  brush

           aside the amin commissioner’s report by  observing  that  it  was

           incomplete and biased?”

 

By an elaborate judgment the High  Court  held  that  the  findings  of  the

courts  below  that  the  appellant/plaintiff  had  failed  to   prove   his

registered sale deed dated 12.7.1977 are perverse and upheld  the  title  of

the appellant/plaintiff to the suit property in schedule-1  and  accordingly

partly allowed the appeal by setting aside the portion of the  judgment  and

decree of the courts below in that regard.  

 

In other words, the  High  Court

answered the substantial question of law no.1 only  and  omitted  to  answer

the  other  two   substantial   questions   of   law   cited   supra.    

The

appellant/plaintiff pointed out  the  said  omission  by  filing  Review  in

Review Petition no.1 of 2008.  However,  the  High  Court  dismissed  it  by

holding that no ground is made out for Review.

 

9.    The learned counsel for  the  appellant/plaintiff  contended  that  on

appellant/plaintiff’s petition Amin Commissioner was  appointed  to  measure

the land in possession of the  appellant/plaintiff  as  well  as  respondent

no.1/defendant no.1 and the said Amin Commissioner  was  examined  as  Court

witness no.1 and the Courts below were not  justified  to  brush  aside  the

Amin Commissioner’s report and  decree  ought  to  have  been  granted  with

regard to the other reliefs prayed  for  by  the  appellant/plaintiff.   

Per

contra the learned counsel for  the  respondents/defendants  contended  that

the Amin Commissioner has not measured the whole of surrounded dags of  suit

land and his report is incomplete, as rightly held by both the Courts  below

dealing on factual matrix.

 

10.   We carefully considered the rival contentions and  the  records.   The

title of  the  appellant/plaintiff  to  the  suit  schedule-1  property  has

already been declared by the High Court and that finding has  become  final.

The Trial Court as well as the Lower Appellate  Court  held  that  the  Amin

Commissioner has not measured the dags falling north east-east west  of  the

appellant/plaintiff’s land and the respondent  no.1/defendant  no.1’s  land.

Whether schedule-2 is encroached property of the  respondent  no.1/defendant

no.1 as  alleged  by  the  appellant/plaintiff  has  to  be  determined  for

adjudicating the other reliefs claimed in the plaint.

 

11.   In the interest of justice, we deem it fit to remit the matter to  the

Trial Court for fresh adjudication with regard to the  reliefs  of  recovery

of possession and permanent injunction only.

 

12.   The appeals are allowed and the impugned judgment and  decree  of  the

High Court,  declining  the  reliefs  of  recovery  of  khas  possession  of

schedule-2 property and permanent injunction, are set aside and  the  matter

is remitted to the Trial Court for fresh adjudication  with  regard  to  the

said reliefs only and the parties are permitted to adduce evidence  and  the

Trial Court after adjudication shall pass a comprehensive decree in  respect

of all the reliefs claimed in the suit.  No costs.  Since the title suit  is

of the year 1987 the Trial Court shall endeavour to dispose of the  same  as

expeditiously as possible preferably within a period of six months from  the

date of receipt of records.

 

2014 (March. Part ) judis.nic.in/supremecourt/filename=41320

T.S. THAKUR, C. NAGAPPAN

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.2924 – 2925 OF 2014
Phanidhar Kalita .. Appellant(s)
-vs-

Saraswati Devi & Anr. .. Respondent(s)

J U D G M E N T

C. NAGAPPAN, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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