RSA Nos. 37 and 38 of 2011. Case: Bipendra Behari Jamatia and Ors. Vs Jagatmuni and Ors.. High Court of Bombay (India)
| Case Number | RSA Nos. 37 and 38 of 2011 |
| Counsel | For Appellant: D.K. Daschoudhury, Advocate and For Respondents: S. Dutta, Advocate |
| Judges | S. C. Das, J. |
| Issue | Indian Evidence Act, 1872 - Section 35 |
| Judgement Date | February 18, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
S. C. Das, J.
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Pleadings of the parties in both the suits are almost similar. The points of law in both the second appeals are identical. Judgments passed by the trial Court as well as the first appellate Court are also almost identical in both the cases and hence both the appeals were heard together and this common judgment is passed in respect of both the second appeals.
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Both the second appeals have been admitted on the following identical substantial questions of law:--
(i) Whether the judgment and decree passed by the trial Court and the appellate Court suffers from perversity?
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FACTS OF RSA No. 37 OF 2011:
3.1 Appellant as plaintiff (hereinafter mentioned as plaintiff) instituted Title Suit No. 23 of 2006 against the defendant-respondents (hereinafter mentioned as defendants) in the Court of Civil Judge, Junior Division, Udaipur, South Tripura seeking declaration of his right, title and interest and for recovery of possession of the suit land described in the schedule of the plaint from defendant Nos. 1 and 2.
3.2. The plaintiff, inter alia contended that the suit land was a khas land of the Government of Tripura(respondent No. 3) which was lying with full of jungles. About 40 years ago he reclaimed the suit land and planted various trees and thereby possessing the suit land. Since the plaintiff was found in possession of the suit land about 30 years ago, respondent No. 3 allotted the suit land in his name and he continued his possession. C.S. Khatian No. 558 was prepared in his name and subsequently Revisional Survey Khatian No. 226 which was finally published on 21.02.1984 was prepared in his name as an allottee of the suit land. The plaintiff could not properly maintain the records of allotment and those were lost. He approached the office of SDM, Udaipur for having a copy of the allotment order but he was told that it was a very old case and in the absence of specific number and date it was not possible to issue a duplicate copy of the allotment order. While he was in possession of the suit land, on 14.04.2000 AD which corresponds to 1st day of Baishakh 1407 BS, he was forcefully dispossessed by the defendant Nos. 1 and 2 from the suit land. He approached the Chairman of the Village Committee(Panchayat) of Raiya Bari and a committee meeting was held on 25.08.2006 wherein the defendant Nos. 1 and 2 were directed to hand over possession of the suit land to the plaintiff but the defendants did not comply the decision of the village committee in spite of assurance and therefore he instituted the suit for declaration of his title and recovery of possession.
3.3. The defendant Nos. 1 and 2 contested the suit by filing joint written statement inter alia contending that the father of defendant No. 1 occupied the suit land about 45/50 years ago and had been residing on the suit land. The defendants are in continuous possession of the suit land for 45/50 years and the plaintiff never possessed the suit land. The khatian in the name of the plaintiff was created in collusion with the settlement staff which was false and no right of the plaintiff accrued in the suit land because of that khatian. Since the plaintiff was never in possession of the suit land he cannot get a decree as prayed for.
3.4. Defendant No. 3 also contested the suit by filing written statement, inter alia contending that there was an inquiry made by the defendant and it was found that defendant No. 1 was possessing 5.40 acres of land and defendant No. 2 was possessing 0.20 acres of land out of the suit land and 0.40 acres of land was in possession of Anganwadi Centre. The plaintiff was not found in possession of the suit land. The plaintiff claimed allotment of the suit land in his favour but it was not possible to trace out the allotment case number and year, since the record was very old and therefore the defendant was not in a position either to admit or deny the allotment. It is further stated that on the face of the ROR it appears to the defendant that the allotment was made in favour of the plaintiff, Bipendra Behari Jamatia for 6.00 acres of land.
3.5. The trial Court considering the pleadings of the parties formulated five issues, namely--
1. Whether the suit is maintainable or not?
2. Whether plaintiff has right, title and interest over the suit land?
3. Whether the suit land as described in the schedule appertaining to R.S. Plot No. 2124, Khatian No. 226 of Mouja Kachigang Reserve Forest or is covered by any other deeds or Khatian of the defendants?
4. Whether the story of possession of the suit land by the plaintiff and his subsequent dispossession by the defendants is true?
5. To what other relief/reliefs the plaintiff is entitled to?
3.6. In course of trial the plaintiff examined himself as P.W. 1 and also examined three more witnesses, namely--
PW2 Sri Amullya Jamatia
PW3 Sri Ratna Bijoy Jamatia
PW4 Bhaktahari Jamatia.
Out of those witnesses PW3 was not produced for cross-examination and therefore his evidence was not taken to consideration.
In support of his case the plaintiff produced two documents marked as Exbt. 1 and Exbt. 2 which read thus--
Exbt.1 Certified copy of Khatian No. 226 mouja Kachigang Reserve Forest.
Exbt. 2 Certified copy of Jamabandi Schedule.
On behalf of defendant Nos. 1 and 2, defendant No. 1 examined himself as D.W. 1 and no documentary evidence adduced.
On behalf of defendant No. 3, one witness, namely Changla Kr. Jamatia, a staff of the office of SDM, Gandacherra was examined as D.W. 2 and in support of their pleadings two documents were proved, marked as Exbt. A and Exbt. B which read thus--
Exbt. A Inquiry report dated 10.01.2007.
Exbt. B Trace Map.
3.7. The trial Court considering the pleadings and evidence decided the material issues against the plaintiff and dismissed the suit mainly on the ground that the plaintiff failed to produce the order of allotment in his favour.
3.8. Aggrieved, the plaintiff preferred Title Appeal No. 3 of 2010 in the Court of District Judge, South Tripura, Udaipur and the learned District Judge by impugned judgment dated 15.02.2011 dismissed the appeal and hence this second appeal.
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FACTS OF RSA No. 38 OF 2011:
4.1. The appellants as plaintiffs(hereinafter mentioned as plaintiffs) instituted Title Suit No. 24 of 2006 against the defendant-respondents(hereinafter mentioned as defendants) in the Court of Civil Judge, Junior Division, Udaipur, South Tripura, seeking declaration of right, title and interest and for recovery of possession of the suit land described in the schedule of the plaint.
4.2. The plaintiffs, inter alia contended that their predecessor Ram Chandra Jamatia alias Ram Charan Jamatia was possessing the suit land which was a Government khas land and while the said Ram Chandra alias Ram Charan was found in possession, the respondent No. 3 allotted the suit land in his name and Khatian No. 232 was prepared in the name of Ram Chandra Jamatia. The predecessor of the plaintiffs was an illiterate person and could not retain the order of allotment properly and it was lost. The plaintiffs since could not find out the allotment order approached the office of Sub-Divisional Magistrate, Udaipur for a duplicate copy but they were informed that it was an old case and in the absence of the specific case number and date it was not possible to issue a duplicate copy of the allotment order. While the plaintiffs were in possession of the suit land, the defendant Nos. 1 and 2 on 1st day of Baishakh, 1407 BS, which corresponds to 14.04.2000 dispossessed the plaintiff from the suit land forcefully and took over possession of the suit land. The plaintiffs informed the Chairman of the Raiya Bari Village Committee and a meeting was held on 25.08.2006 wherein the defendant Nos. 1 and 2 assured handing over of possession to the plaintiffs but ultimately did not do anything and therefore the plaintiffs instituted the suit for declaration of their title and recovery of possession of the suit land.
4.3. Defendant Nos. 1 and 2 submitted a joint written statement denying the averments made in the plaint and further stated that father of defendant No. 1 had entered into possession of the suit land about 45/50 years ago and continued in possession of the suit land. No allotment order was issued in the name of Ram Chandra alias Ram Charan, the predecessor of the plaintiffs and the khatian was created falsely in collusion with the settlement staff. The plaintiffs and their predecessor never possessed the suit land and so the plaintiffs were not entitled to get any decree.
4.4. Defendant No. 3 also contested the suit by filing a written statement inter alia contending that they have made a field inquiry and it was found that defendant No. 1 was possessing 4.40 acres of land out of the suit land and the rest 0.20 acres of land were in possession of one Karna Sadhan Jamatia. The defendant further stated that it was not possible on the part of the defendant to trace out the records of the allotment since it was very old and there was no reference of case number, etc. It was further stated that on the face of RoR the allotment was made in favour of Ram Chandra Jamatia but the possession was found in favour of defendant No. 1 and another Karna Sadhan Jamatia.
4.5. The trial Court considering the pleadings of...
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