This appeal by the plaintiffs is directed against the judgment and decree dated 3.6.2000 passed by learned Civil Judge(Sr Divn) at Nagaon in Title Appeal No.8/1999, dismissing the appeal and affirming the judgment and decree passed by the learned Civil Judge(Jr Division)(now, Munsiff) at Sankardev Nagar in Title Suit No.30/93 dismissing the suit of the plaintiffs for declaration of right, title and interest over the suit land and for recovery of khas possession by evicting the defendants there from.
2.Plaintiffs instituted TS No.38 of 1992 initially in the Court of learned Assistant District Judge(now, Civil Judge), Nagaon which was subsequently transferred to the Court of learned Civil Judge (Jr Division)(now, Munsiff) and renumbered as TS No.30 of 1993, for declaration of right, title and interest over a plot of land measuring 4L, out of total land measuring 13L in Dag No.490 of Periodic Patta No.267 in No.2 Kisamati, Hojai Town, Mouza Hojai, and for recovery of khas possession by evicting the defendants there from contending inter alia that their predecessor in interest Late Sudhir Ch Dey was the absolute owner and possessor of the entire 13L of land comprised in the said Dag, out of which over a plot of land measuring 4L there was a house which was let out to defendant No.1 at monthly rent of Rs.200/- as per English calendar month, during the continuance of such tenancy, Sudhir Ch Dey died leaving behind the plaintiffs as their legal heirs and though the defendant No.1 paid rent up to January, 1999, he stopped payment of such rent thereafter and handed over the possession of the suit house to defendant Nos.3 and 4 in violation of the terms of the tenancy. It has further been contended in the plaint that the plaintiffs thereafter served quit notice on defendant Nos.1,3 and 4, on receipt of which the defendant Nos.3 and 4 denied the title and claimed that they are tenants under the defendant No.2 and further claimed that proforma defendant No.5 purchased the suit land and houses from Sudhir Ch Dey, the predecessor in interest of the plaintiffs, and defendant No.2 thereafter purchased from proforma defendant No.5 and got their names mutated. Plaintiffs therefore prayed for declaration of right, title and interest and for delivery of khas possession.
3.Defendant Nos.1 to 5 filed their joint written statement denying the claim of the plaintiffs and contending inter alia that on 16.12.74 the proforma defendant No.5 purchased the land and the house standing thereon by a registered deed of sale from Sudhir Ch Dey, predecessor in interest of the plaintiffs, who in turn sold the said land to defendant No.2 by a registered deed of sale dated 3.12.75 for valuable consideration and delivered khas possession, on the basis of which the name of defendant No.2 has been mutated. The further case of the defendants in the written statement is that the defendant No.2 thereafter let out the suit house to defendant Nos.3 and 4.
4.The learned trial Court upon appreciation of the pleadings of the parties, initially framed 7(seven) issues and thereafter, an additional issue, which are quoted below:
"1.Whether there is any cause of action?
2.Whether the claim of the plaintiff is barred by estoppel, waiver and acquiescence?
3.Whether the plaintiffs have any right, title and interest over the suit property?
4.Whether the defendants acquired any right, title and interest?
5.Whether the defendants are tenants?
6.Whether the defendants acquired title by adverse possession?
7.Whether the parties are entitled to any relief or reliefs, if so, to what extent?
Additional issues:
1.Is the suit bad for non joinder of parties?"
5.The learned trial Court after appreciation of the evidences on record by the judgment and decree dated 18.2.99 dismissed the suit filed by the plaintiffs. Being aggrieved, the plaintiffs preferred Title Appeal No.8/99, which has also been dismissed vide judgment and decree dated 3.6.2000 by the learned lower appellate Court by affirming the judgment and decree passed by the learned trial Court. Hence the appeal.
6.While admitting the appeal for hearing vide order dated 8.11.2000, the following substantial question of law has been framed:
"1. Whether the learned courts below wrongly interpreted the documents of title namely Ext.5 and Kha and whether such wrong interpretation resulted in wrong dismissal of the suit?"
7.I have heard Mr BK Goswami, learned senior counsel for the appellants as well as Mr N. Choudhury, learned counsel for the respondents.
8.Mr BK Goswami, learned senior counsel for the appellants, referring to the judgments and decrees passed by the learned courts below, as well as the Ext.5 sale deed dated 16.12.74 and Ext. Kha sale deed dated 3.12.75, which is the basis for claiming title over the disputed land by the defendants i.e. the sale deed executed by Sudhir Ch Dey, predecessor in interest of the plaintiffs, in favour of proforma defendant No.5 Mohan Sarma; and the sale deed executed by Mohan Sarma, defendant No.5 in favour of Sri Benulal Dutta, defendant No.1, has submitted that going by the boundary of the suit land given in the plaint as well as the boundary of the land described in Schedule to Ext.5, it is evident that the suit land is not the land involved in Ext.5 sale deed and therefore the learned courts below ought not to have held that the title of plaintiffs has extinguished because of the Ext.5 sale deed. Mr Goswami has further submitted that the schedule in Ext.5 sale deed and Ext.Kha sale deed are completely different and though the schedule in Ext.Kha sale deed tallies with the schedule of the suit land given in the plaint, the case of defendant No.1 being that he purchased the land from proforma defendant No.5, who in turn acquired right, title and interest over the suit land in view of Ext.5, the learned courts below have erred in law in holding that the plaintiffs have extinguished their rights over the suit land and the defendant No.2 acquired the right by means of Ext.Kha, in view of the fact that the lands covered by Ext.Kha and Ext.5 are completely different. Mr Goswami, therefore submits that the documents Ext.5 and Ext.Kha have been misinterpreted, resulting in dismissal of the suit of the plaintiffs, though the defendants have admitted that the total land comprised in Dag No.490 measuring 13L belonged to their predecessor in interest, Sudhir Ch Dey.
9.Mr N. Choudhury, learned counsel for the respondents, supporting the judgments and decrees passed by the learned courts below, has submitted that PW1 Asim Dey(plaintiff No.2) in his examination in chief admitted that out of the total 13L of land comprised in Dag No.490, 4L of land was transferred by the predecessor in interest of the plaintiffs in favour of defendant No.1. It has further been submitted that during cross-examination, this witness has also admitted that another plot of land measuring 6L out of the total land of 13L was transferred to Gobinda and Sunil, apart from 4L of land in favour of Sabitri Rani Paul and Suprabha Rani Paul. Mr Choudhury, therefore, submits that the total land in the said Dag being 13L, there is no other land available in the said Dag, after such transfer, and therefore, the learned courts below have rightly dismissed the suit of the plaintiffs for declaration of right, title and interest.
10.Mr Goswami, learned senior counsel, in reply has submitted that since the learned courts below have refused to pass the decree in favour of the plaintiffs on the ground that their rights over the suit land have extinguished because of the sale deeds being Ext.5 and Ext.Kha, this Court may not look into the evidence of PW1 and the judgments and decrees passed by the learned courts below are to be set aside, as those documents have been misinterpreted in view of the fact that the land involved in Ext.5 is different from the suit land.
11.I have considered the submissions of the learned counsel for the parties and perused the judgments and decrees passed by the learned courts below as well as the records.
12.It appears from the judgment and decree passed by the learned first appellate court that though the learned trial Court has refused to pass the decree in favour of the plaintiffs on the ground that their predecessor in interest has sold the suit land in favour of proforma defendant No.5, who in turn sold the same to defendant No.2 vide Ext.5 and Ext. Kha, respectively, the learned first appellate court while dismissing the appeal preferred by the plaintiffs has noticed the deposition of plaintiff No.2 examined as PW1, who deposed before the Court that out of the total land of 13L comprised in Dag No.490, 6L of land has been transferred to Sunil Chandra Saha and Sri Gobindra Chandra Saha; 4L of land to Srimati Sabitri Rani Paul and Srimati Suprova Rani Paul. The learned first appellate court has also noticed the admission of PW1 that out of 13L of land comprised in the said Dag, 4L of land has been transferred in favour of proforma defendant No.5 by their predecessor in interest. The learned lower appellate court, therefore, has held that the plaintiffs after the death of their predecessor in interest did not acquire right, title and interest over the suit land, as admittedly their predecessor in interest has sold more than the land comprised in Dag No.490.
13.The plaintiffs having instituted the suit for declaration of right, title and interest and also for recovery of khas possession, are to stand on their own legs and to prove their title so as to get a decree from the learned courts below, as prayed for, though the defendants have claimed their title over the land by virtue of Ext.5 and Ext.Kha sale deeds dated 16.12.74 and 3.12.75, respectively. The PW1 Ashim Dey(plaintiff No.2) in his examination in chief has admitted that (i) the total land comprised in Dag No.490 is 13L, which originally belonged to their predecessor in interest namely Sudhir Ch Dey; (ii) Sudhir Ch Dey, their predecessor in interest sold 4L of land in favour of proforma defendant No.5 by a registered deed of sale dated 16.12.74 out of the said 13L of land; (iii) 6L of land was sold to Sri Gobindra Chandra Saha and Sri Sunil Chandra Saha; (iv) 2L of land was sold to Smti Sabitri Rani Paul, and (v) another 2L of land was sold to Smti Suprova Rani Paul. The plaintiffs have, therefore, admitted that their predecessor in interest has in fact sold more than what comprises in the said suit Dag, as he sold 14L of land, though the total land comprised in the said Dag No.490 was 13L. The deposition of PW1 that there is a dispute with Sabitri Rani Paul and Suprova Rani Paul relating to 4L of land out of the said 13L of land in the said dag in any way shall have no effect in the present suit as the plaintiffs have admittedly transferred 4L of land in favour of proforma defendant No.5, who in turn has sold the said land in favour of defendant No.2 by Ext.Kha. The plaintiffs in fact by exhibiting the Jamabandi of the land in question being Ext.2 have also admitted the same.
14.In view of the above, there being no land available in dag No.490, after the aforesaid transfer, no right, title and interest of the plaintiffs over the suit land could be declared as prayed for and hence, in my considered opinion, the learned courts below have rightly dismissed the suit of the plaintiffs.
15.The appeal accordingly stands dismissed. No costs.
