Review Petn. No. 9 of 2014 in CRP No. 28 of 2013. Case: Venetta Kharsyntiew and Ors. Vs Tushar Nath Bhattacharjee and Ors.. Meghalaya High Court

Case NumberReview Petn. No. 9 of 2014 in CRP No. 28 of 2013
Party NameVenetta Kharsyntiew and Ors. Vs Tushar Nath Bhattacharjee and Ors.
CounselFor Appellant: H.S. Thangkhiew and S.P. Mahanta, Sr. Advs. and For Respondents: B.K. Singh, N. Bharali and O.A.I. Bang, Advocates
JudgesU.N. Singh, C.J., T. Nandakumar Singh and S.R. Sen, JJ.
IssueAssam Autonomous Districts Administration Of Justice Act, 1960 - Sections 1, 2; Code of Civil Procedure, 1908 (CPC) - Order XLVII Rule 1; Order XLVII Rule 47; Section 114, 115; Code of Criminal Procedure, 1973 (CrPC) - Section 9; Indian Contract Act, 1872 - Section 42; Registration Act, 1908 - Section 17; Transfer Of Property Act, 1882 - ...
Judgement DateSeptember 10, 2015
CourtMeghalaya High Court

Judgment:

U.N. Singh, C.J.

  1. This review petition has been filed against the judgment and order dated 23.06.2014 passed in CR(P) No. 28 of 2013 by the then Hon'ble the Chief Justice whereby the Court has declined to interfere with the order passed by the appellate court. The Court has also discussed the judgments rendered in the case of (i) Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi and others (2002) 3 SCC 676; (ii) Ramesh Chand Ardawatiya v. Anil Panjwani (2003) 7 SCC 350; (iii) Narendra Singh and others v. Jai Bhagwan and others (2005) 9 SCC 157; and (iv) Alok Bose v. Pramatma Devi and others (2009) 2 SCC 582.

  2. It appears that the land in question measuring 19,585 sq ft (Numbered as Plot No, 80 in Patta No. 58) situated at Lachumiere, Shillong, had been acquired by the father of the respondents (Late) Aghor Nath Bhattacharjee, the predecessor-in-title from the then Assam Govt. (now Govt. of Meghalaya) on 13.04.1967. He enjoyed the possession with all the legal rights and title in, with complete dominion over the property till he died on 19.03.1984. After his death, the property devolved upon his legal heirs, namely, Sabitri Bhattacharjee (Widow), Tushar Nath Bhattacharjee, plaintiff No. 1, (son/respondent No. 1 herein), Binoy Nath Bhattacharjee (Son/since died), Smti Sujata Bezbaruah, plaintiff No. 2 (daughter/respondent No. 2) and Smti Sabita Goswami, plaintiff No. 3 (daughter/respondent No. 3). Thus, Tushar Nath Bhattacharjee, plaintiff/respondent No. 1, his mother, Smti Sabitri Bhattacharjee, and brother, Shri Binoy Nath Bhattacharjee, applied for mutation. The Extra Assistant Commissioner (Revenue), Shillong in mutation case No. 15 of 1991, vide order dated 20.03.1991 recorded their names. Thereafter, Smti Sabitri Bhattacharjee, mother of the plaintiffs/respondents died in the year 1994 and Shri Binoy Nath Bhattacharjee, brother of respondents, who was a bachelor passed away in the year 1998. As per pleadings in case records, defendant/review petitioner No. 1, namely, Smti Venetta Kharsyntiew and her husband, defendant/review petitioner No. 2 Shri SP Mahanta allegedly got a forged sale deed dated 28-11-1991 claiming to have been executed by Shri Tushar Nath Bhattacharjee, plaintiff No. 1, his brother, Binoy Nath Bhattacharjee and his mother, Sabitri Bhattacharjee, in respect of vacant piece of land measuring 5300 sqft out of 19,585 sqft, mutated in their names after the death of their father (Late) Aghor Nath Bhattacharjee. It also appears from the allegations in the pleadings that the defendants/review petitioners forcibly dispossessed the plaintiffs/respondents and their mother and brother from 5300 sqft of land being the subject matter of sale deed dated 28.11.1991. Thus, the plaintiffs/respondents filed another suit, namely, TS No. 50 (T)/1992 against the review petitioners/defendants in the court of Assistant to Deputy Commissioner, East Khasi Hills, Shillong for declaration of their right, title and recovery of possession. However, that suit was dismissed. Thereafter, plaintiff/respondent No. 1 Tushar Nath Bhattacharjee went to Sydney (Australia), after he and his two sisters appointed one TS Bareh (since died) as their Attorney on 1-12-1992, to look after their property in Shillong. The defendants/review petitioners as per further allegations, having already occupied 5300 sq.ft under the garb of sale deed dated 28-11-1991 trespassed over the remaining piece of land, namely, 14,285 sqft as mentioned in Schedule-B of the plaint. Thus the plaintiffs/respondents instituted Title Suit No. 10 (T) of 2004 on 7-4-2004 against the review petitioners for declaration of right, title and interest and recovery of possession and permanent injunction in respect of land measuring 14,285 sq.ft. along with one main house and one out house standing there on. Thus, obviously, they also sought restoration of possession of property mentioned in Schedule-B, i.e. 14,285 sqft out of 19,585 sqft.

  3. On the contrary, the review petitioners/defendants have admitted the ownership of (Late) Aghor Nath Bhattacharjee over the suit land but pleaded that there was execution of a sale deed dated 28-11-1991 in their favour by Tushar Nath Bhattacharjee, plaintiff/respondent No. 1, his mother and his brother. It is mentioned by the review petitioners/defendants that plaintiffs/respondents No. 2 and 3 (both daughters of (L) Aghor Nath Bhattacharjee) had no concern whatsoever with the suit property. As per the revenue record, the property was mutated only in the name of Plaintiff/respondent No. 1 Tushar Nath Bhattacharjee, his mother and his brother upon death of (Late) Aghor Nath Bhattacharjee. It is pleaded in the written statement that after 5300 sqft land (mentioned in Schedule-A to the plaint) was purchased by the review petitioners/defendants from plaintiff/review petitioner No. 1, his mother and his brother vide the aforesaid sale deed dated 28-11-1991 for consideration amount of Rs. 2,65,000/-, the possession of said land was handed over to them. Moreover, it is also pleaded that the remaining property measuring 14285 sq ft as shown in Schedule B was also sold to the review petitioners/defendants by an unregistered agreement dated 04.03.1992 for an amount of Rs. 12,00,000/- by Tushar Nath Bhattacharjee, plaintiff No. 1, his mother (Sabitri Bhattacharjee) and his brother (Binoy Nath Bhattacharjee). Out of the said amount, Rs. 2,00,000/- was paid as part of consideration as mentioned in the agreement. It is also pleaded that on 04-04-1992, an amount of Rs. 1,00,000/- was paid and thereafter again on 13.05.1992 Rs. 30,000/- was paid. Lastly, the review petitioners also paid Rs. 1,00,000/- on 26-5-1992. In respect of such payments, endorsements were also made by Tushar Nath Bhattacharjee, plaintiff/respondent No. 1, his mother and brother, Binoy Nath Bhattacharjee (since died) vide Money Receipt dated 04.03.1992. It is further pleaded that the respondents also handed over the possession of land as mentioned in Schedule B to the defendants/review petitioners. Further there is also denial of allegation of trespassing over the land in question. It is also pleaded that the sale deed was to be executed in respect of the said land by 14.05.1992 and it is only on the request of Tushar Nath Bhattacharjee, plaintiff/respondent No. 1 that the date was extended and deferred to November, 1992. It is also a pleading in the written statement that on 18.06.1992 the plaintiffs/respondents sent a message to the review petitioners to come with remaining amount of Rs. 7,70,000/- by 13.06.1992 for execution of the sale deed. Thus, the review petitioners/defendants went to the plaintiffs at Guwahati on the said date, namely, 13.06.1992 with the amount of Rs. 7,70,000/-. However, plaintiff/respondent No. 2, the sister of Tushar Nath Bhattacharjee, intervened in the matter and started misbehaving with defendant/review petitioner No. 1. Tushar Nath Bhattacharjee and his sister plaintiff/respondent No. 2 started demanding higher amount against the terms of the agreement. Thereafter, plaintiff/respondent No. 2 Smti Sujata Bejbaruah also got issued a notice dated 22.06.1992 through her counsel Shri S.R. Sen, Advocate on which some negotiations started in the chamber of that Advocate and it was settled that the sale deed would be executed within a period of ten days. Later the plaintiffs/respondents backed out but on the basis of unregistered agreement the Officer on Special Duty (Revenue) vide letter dated 14.04.1992 addressed to Deputy Commissioner accorded the sanction for transfer of land in favour of defendant/respondent No. 1. It is also submitted that the defendants/review petitioners are making all the payments regarding municipal dues and electricity bills etc. It appears that the suit T.S. No. 10(T) of 2004 (renumbered as T.S. No. 10 (T) of 2011 upon separation of judiciary from the executive) was dismissed vide the judgment and order dated 10.02.2012 while holding that the possession of defendants/review petitioners was protected under Section 53-A of the Transfer of Property Act, 1882. Thereafter, being aggrieved by the said judgment and decree, regular First Appeal (RFA No. 1(T) 2012) was preferred by the plaintiffs/respondents before the District Judge, Shillong...

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