Page No.# 1/6 vs Dharmeswar Das And 2 Ors
2021 Latest Caselaw 3260 Gua

                                                                      Page No.# 1/6

GAHC010060462017




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : CRP/313/2017

            JOGESH KALITA and 2 ORS.
            S/O- LT DUKHURAM KALITA

            2: SRI JAYANTA KALITA
             S/O- JOGESH KALITA

            3: SMTI. PRAMILA KALITA
             W/O- SRI JOGESH KALITA ALL ARE RESIDENTS OF VILL- KAIYAPATTI P.O.
            and P.S. JOGIGHOPA DIST- BONGAIGAON
            ASSAM PIN- 78338

            VERSUS

            DHARMESWAR DAS and 2 ORS.
            S/O- LT DHARANIDHAR DAS R/O-VILL- KUMARKATA PART-II P.O.
            CHALANTA PARA, P.S. JOGIGHOPA DIST- BONGAIGAON, ASSAM PIN-
            783382

            2:SRI ANANDA SARKAR
             S/O- BROJEN SARKAR

            3:SRI BHARAT SARKAR
             S/O- BHOBESH SARKAR BOTH ARE RESIDENTS OF VILL-KUMARKATA
            PART-II P.O. CHALANTA PARA
             P.S. JOGIGHOPA DIST- BONGAIGAON
            ASSAM PIN-78338

Advocate for the Petitioner   : MS.R BARMAN

Advocate for the Respondent : MR H R A CHOUDHURY
                                                                                     Page No.# 2/6


                                     BEFORE
                      HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                             ORDER

Date : 02-12-2021

Heard Mr. KM Haloi, learned counsel for the petitioner. Also heard Mrs. R Choudhury, learned counsel for the respondent No.1 and Mr. B Baishya, learned counsel for the proforma respondent Nos.2 and 3.

2. This revision application under Section 115 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 20.09.2017 passed in Title Suit No.51/2014, whereby the said court below decreed the suit on contest thereby declaring that the plaintiff was evicted by the defendants from the Schedule B land of the plaint on 17.06.2014 without following the due process of law and as such, the plaintiff was entitled to recover the khas possession of the Schedule B land from the defendant and also restrained the defendant from evicting the plaintiff from the Schedule B land without following the due process of law.

3. The brief facts of the instant case are that the plaintiff claims to be the owner of a plot of land more specifically described in Schedule A to the plaint. The plaintiff further alleges that on 17.06.2014 at 3.00 PM he was dispossessed by the defendant from a part of the Schedule A land which has been most specifically described in Schedule B to the plaint. In that view of the matter as the dispossession of the plaintiff was done without following the due process of law and illegally, the suit was filed under Section 6 of the Specific Relief Act, 1963 which was registered and numbered as Title Suit No.51/2014. It is relevant to mention that the said suit was filed on 04.08.2014. The defendant Nos.1, 2 and 3 filed a joint written statement. In the said written statement the defendants denied the case of the plaintiff. At paragraph 22 of the said written statement, the case of the Defendant was mentioned. The said paragraph being relevant is quoted herein below:

22. That the actual fact is that, the defendant No.1 Sri Jogesh Ch. Kalita Page No.# 3/6

@ Jogesh Ch. Das S/O late Dukuram Kalita @ Das was purchased the land measuring 5 bigha 7 lessa at village Kumarkata Part II, under the revenue circle Boitamari about 40 years ago and he along with his son possessed the entire plot land by enjoying full right title and interest by planting various trees on its well demarcated surrounding boundaries. From last 5 years the land was preparing ready for rubber plantations/cultivation and for that reason the surrounding demarcated boundary was fencing with bamboo. When the land was ready for rubber plantations in month October/November 2013, the defendant No.1 planted rubber stem on some parts of his land in the month of December 2013, by covering the land with iron fencing. The defendant no.1 and his family neither trespassed over the land of plaintiff nor erect iron kata fencing over the land of plaintiff. The defendants possess their own land since 40 years back. The land revenue authority issued kacha patta for the land of the defendants at that time and after conclusion of recent final settlement operation the revenue also issued final patta to the defendant No.1 for his land measuring 5 bigha 7 lessa. The suit land as alleged in the plaint is not related with the land of defendants. The plaintiff therefore has no right title and interest in respect of the B schedule land and the defendants has never encroached any land of the A schedule land as alleged and as such the suit of the plaintiff is liable to be dismissed. The suit of the plaintiff is also bad for non joinder as the legal heirs of Late Dharanidhar Das was not impleaded and as such the suit is liable to be dismissed.

4. A perusal of the said paragraph would go to show that the defendants claimed that they have right title and interest in respect to a plot of land which they had purchased about 40 years ago measuring 5 bigha, 7 lechas at village Kumarikata Part-II under the Revenue Circle, Boitmari. It was also mentioned that in the land they planted and carried out cultivation by demarcating the said boundaries with a bamboo fencing. It was also mentioned in the month of Page No.# 4/6

October/November 2013 there was rubber plantation being carried out in their own land and in the month of December, 2013 their land was further properly demarcated by putting an iron fencing. In the said paragraph it has been categorically mentioned that the suit land as alleged in the plaint is not related to the land of the defendants.

5. Subsequent to the pleadings of the parties, issues were framed and evidence was led by the parties. On behalf of the respondent who was the plaintiff in the suit there were as many as three witnesses and on behalf of the petitioners who were the defendants in the said suit they adduced two witnesses. The Court below vide the judgment and decree came to a finding that the plaintiff was dispossessed on 17.06.2014 without following the due process of law and the suit having been filed on 04.08.2014 was within time and accordingly, decreed the suit in favour of the plaintiffs/respondents herein. It is against the said judgment and decree, the petitioner has approached this Court under Section 115 of the CPC.

6. The scope of the proceedings under section 6 of the Specific Relief Act, 1963 is limited and the same can be seen from a perusal of the said section itself. The said section for the sake of convenience is quoted herein below:

6. Suit by person dispossessed of immovable property.--

(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought--

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish Page No.# 5/6

his title to such property and to recover possession thereof.

7. A perusal of the said section would go to show that if any person is dispossessed without his consent from an immovable property otherwise then in due course of law he or any person claiming through him may by a suit recover possession thereof. The right to file a suit under section 6 of the said Act is limited by sub-section (2) whereby the said suit cannot be filed beyond the period of 6 months from the date of dispossession or against the government. Taking into consideration that the purpose of filing the suit is only for a limited purpose to see to it that the person who has been dispossessed wrongly without following the due process of law, should be restituted to the possession, if filed within the period of 6 months, the legislature in its wisdom have limited the interference with such Decree and orders passed by the Court under section 6 of the Act by incorporating sub-section (3) of Section 6 whereby no appeal is being permitted against any order or decree passed in any suit instituted under the section. Even review of such order is also not allowed. Further to that taking into consideration that the suit is only for the purpose of recovery of possession by a person who has been dispossessed without following the due process of law, any decree or order which has been passed in the suit shall not preclude any person from suing to establish his title to such property and to recover possession thereof.

8. In that view of the scope of Section 6 of the Act, the scope under section 115 CPC of the revisional jurisdiction also has to be limited and it is only on the question of perversity that the revisional court can exercise its jurisdiction.

9. I have perused the evidence on record as well as the judgments and decree passed by the trial Court and also looked into the pleadings in the case and more particularly paragraph No.22 of the written statement.

10. The evidence of the plaintiff witness No.1 is to the effect that he was dispossessed without following the due process of law on 17.06.2014 could not be dislodged by way of cross-examination. The evidence of Pw-2 who is the sister of the plaint, upon which the reliance have been placed by the learned counsel for the petitioner also could not dislodge the fact that the plaintiff was dispossessed Page No.# 6/6

on 17.06.2014 without following the due process of law. The admission of the defendant in their pleadings that the suit land is not the land of the defendants and it is outside the land which have been demarcated and fenced by iron fencing as well as the evidence led by the DW-1 wherein it has been categorically mentioned that eight days prior to 17.06.2014 he had erected the fencing.

11. I am of the opinion that no interference is required to the impugned judgment and decree passed by the trial court on the ground that there is no perversity committed by the Trial Court. Accordingly, the instant petition stands dismissed.

12. Send down the LCR.

JUDGE

Comparing Assistant