Gauhati High Court
Page No.# 1/17 vs Smti. Anjalee Das And 8 Ors on 18 January, 2021
Page No.# 1/17
GAHC010165712019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/271/2019
SRI SUMIT DEB AND ANR
S/O- LATE SUKHOMOY DEB, R/O- PATHARKANDI ROAD, P.O. KANISHAIL-
788711, DIST.- KARIMGANJ, ASSAM.
2: SRI SAMARJIT DEB
S/O- LATE SUKHOMOY DEB
R/O- PATHARKANDI ROAD
P.O. KANISHAIL- 788711
DIST.- KARIMGANJ
ASSAM
VERSUS
SMTI. ANJALEE DAS AND 8 ORS.
W/O- LATE AMITAVA DAS, R/O- PATHARKANDI ROAD, P.O. KANISHAIL-
788711, DIST.- KARIMGANJ, ASSAM.
2:SMTI. ANAMIKA DAS
W/O- SANTANU DAS
BIPIN ROAD
P.O. KARIMGANJ BAZAR- 788711
DIST.- KARIMGANJ
ASSAM.
3:SMTI. SAGARIKA DAS
W/O- SRI PARASAR DEB PURKAYASTHA
THANA ROAD
P.O. AND DIST.- KARIMGANJ
ASSAM
PIN- 788710.
4:SMTI. SHEFALI DEB
W/O- LATE SUKHOMOY DEB
R/O- PATHARKANDI ROAD
Page No.# 2/17
P.O. KANISHAIL- 788711
DIST.- KARIMGANJ
ASSAM.
5:SRI SURAJIT DEB
S/O- LATE SUKHOMOY DEB
R/O- PATHARKANDI ROAD
P.O. KANISHAIL- 788711
DIST.- KARIMGANJ
ASSAM.
6:SMTI. BINA DEB
W/O- LATE HARIDAS DEB
R/O- SILCHAR ROAD
KARIMGANJ TOWN
P.O. AND DIST.- KARIMGANJ
ASSAM
PIN- 788711.
7:SRI DEBOJIT DEB
S/O- LATE HARIDAS DEB
R/O- SILCHAR ROAD
KARIMGANJ TOWN
P.O. AND DIST.- KARIMGANJ
ASSAM
PIN- 788711.
8:SRI MONOJIT DEB
S/O- LATE HARIDAS DEB
R/O- SILCHAR ROAD
KARIMGANJ TOWN
P.O. AND DIST.- KARIMGANJ
ASSAM
PIN- 788711.
9:SMTI. ROMA DEB
D/O- LATE HARIDAS DEB
R/O- SILCHAR ROAD
KARIMGANJ TOWN
P.O. AND DIST.- KARIMGANJ
ASSAM
PIN- 788711
Advocate for the Petitioner : MR. N DHAR
Advocate for the Respondent : MR. D MOZUMDER
Page No.# 3/17
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
: JUDGMENT AND ORDER :
(ORAL)
Date : 18-01-2021
Heard Mr. N. Dhar, learned counsel for the appellants as well as Mr. D. Mozumdar,
learned Senior counsel assisted by Mr. S. Biswas, learned counsel for the
respondent.
2. This appeal under Section 100 CPC is directed against the first appellate
judgment and decree dated 16.05.2019, passed by the learned Civil Judge, Karimganj in Title
Appeal No. 43/2018, by which the appeal was dismissed and the judgment and decree dated
23.07.2018, passed by the learned Munsiff No.1, Karimganj in Title Suit No. 336/2006 was
affirmed.
3. The two appellants herein are the plaintiffs in T.S. No. 336/2006. In the said
suit, the respondent nos. 1, 2 and 3 were arrayed as defendant nos. 1, 2 and 3. The
respondent no.4 is the mother of the appellants, who was arrayed in the suit as defendant
no.7 and on death of defendant no.4, i.e. her husband, she was also substituted as
substituted defendant no.4(i). The respondent no.5 was arrayed as defendant no.5 in the suit
and he is one of the brothers of the appellants. The predecessor-in- interest of respondent
nos. 6 to 9 was arrayed as defendant no.6 in the plaint. It is the projected case of the
appellants in TS 336/2006 that the respondent nos. 1, 2 and 3 in collusion with respondent
no.5 and the predecessor-in- interest of respondent no.4 had obtained a fraudulent decree
dated 29.06.2002 in T.S. No. 44/1999 from the learned Civil Judge (Junior Division) No.1,
Karimganj. In TS 338/2006, one of the prayers is to set aside the said decree.
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4. The litigation history between the parties is long-drawn. For the purpose of
this order, it would be sufficient to mention that the respondent nos. 1, 2 and 3 had instituted
TS No. 44/1999 against Sukhamoy Deb, the predecessor of the appellants and respondent
nos. 4 and 5 for recovery of khas possession of the suit houses by evicting him and for
recovery of arrear rent for the suit house from the month of Magh 1402 B.S. to Magh 1405
B.S. along with pendente lite interest @ 12.5% per annum till realization. The said suit was
decreed on 29.06.2002. The decree was put to execution by filing T. Ex. Case No. 18/2003.
On 21.08.2006, the appellants had filed TS No. 338/2006 for declaration of title, confirmation
of possession and for setting aside the herein before referred judgment and decree dated
29.06.2006. On 22.08.2006, the appellants had filed a petition under section 47 read with
Order XXI Rules 99, 100 and 101 CPC in the proceedings of T. Ex. Case No. 18/2003, which
was registered as Misc. Case No. 99/2006, which was dismissed on 10.09.2007. The appeal
preferred by the aggrieved appellants against the aforesaid judgment and decree dated
10.09.2007 was registered as Misc. Appeal No. 16/2007. In the meanwhile TS No. 338/2006
was dismissed on 23.07.2018 and the appeal filed by the appellants was registered as T.A.
No. 43/2018, which was dismissed on 16.05.2019. The Misc. Appeal No. 16/2007 was
dismissed on 11.11.2011. Revision filed before this Court against decree dated 11.11.2011
was registered as CRP No. 68/2011 which was dismissed by order dated 25.04.2012, as not
maintainable. Thereafter, the appellant filed an appeal before this Court against the decree
dated 11.11.2011, which was registered as M.A.(S) No. 1/2013, which was dismissed by this
Court by judgment dated 10.12.2019. Thereafter, the present appeal has been on 06.01.2020
against the herein before referred judgment and decree dated 16.05.2019.
5. The suit premises described in Schedule I and II of T.S. No.44/1999
instituted against Sukhamoy Deb is as follows:
Schedule-1.
All that piece and parcel an area of 1916 Sq. ft. (one thousand nine hundred
sixteen square feet) of vit land situated in paragana Kushiarkul, Mouza Banamali,
Karimganj town, Kittey Station Road appertaining to Mahal Daswana 15025/338
No. Fazil Md. And falls in Settlement Dag No.4486(old) and 4487(old) of Final
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Khatian No.4825 Karimganj town sheet No.64/5 holding no.160(old) new 148,
butted and bounded by
On the east: by foot path and PWD road.
On the west: by western bank of the patit tank.
On the north: by vit land houses etc. of Basanti Das and others.
On the south: Vit land houses etc. in possession of Hari Das Deb.
Schedule II. (Suit houses situated over the 1st schedule land above).
1. A home measuring 20 ½ ft. from east to west and 10 ½ ft. from north to
South with pacca wall and floor, C.I. sheet roofing on the west of this home.
2. A home measuring 7' x 9' ft. with tin roofing and bamboo wall, pucca floor.
6. The suit premises involved in T.S. No. 338/2006 are described in the
schedule as hereunder:-
Schedule-1.
All that piece and parcels of land appreciating to Cadastral Survey Dag
No.4486(old) and 4487(old) of Khatian No.4825 in Mauza Karimganj Town, Sheet
No.64"/5, Kitte Station Road, Pargona Kushiarkul under Police Station and District
Karimganj as detailed below:
Plot No. 1:
North ... originally by land of Sirajul Haque Choudhury- now by land and house of
Shri Kshitish Deb and Shri Radha Kanta Deb, South ... Land and house under
possession of Shri Surajit Deb (Principal Defendant No.5),
East ... Station Road (N.H.44),
West ... Plot No.2 (two) below.
Within these boundaries passage 5' (five feet) in breadth (North-South) and 40'
(forty feet) in length (East-West), total measuring 200 (two hundred) Sq. feet.
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Plot No.2:
North ... Towards eastern side ... Originally by land of Md. Sirajul Haque Choudhury
- Now by land and house of Shri Kshitish Deb and Shri Radha Kanta Deb.
North ... Towards Western side Land of Niranjan Saha,
South ... Towards Eastern side ... Land and house belonging to Shri Sukhamoy Deb
under possession of his licencee, Shri Haridas Deb,
South ... Towards Western side ... Land and house of the legal heirs of late
Rasamoy Dey.
East ... Towards Northern side ... Plot No.1 (one) above.
East ... Towards Southern side ... Shop house under possession of Shri Surajit Deb,
Principal Defendant No.5 (five).
West ... Originally by land of Matasin Ali - now by homestead of Shri Sribash Paul.
Within these boundaries land measuring 1482 (one thousand, four hundred and
eighty two) Sq. feet.
Total land of plot nos. 1 and 2 above ... 1682 (one thousand, six hundred and
eighty two) Sq.ft.
Schedule-2:
[Description of the houses standing on the land of plot no.2 (two) described in
Schedule-1 (one) above.]
Eastern-side room (Godown) measuring 17'6" (seventeen feet and six inches) in
length (East-West) and 10'6" (ten feet and six inches) in breadth (North-South).
Plinth ... pucca. Covered by C.I. sheets.
7. In TS No. 338/2006, it was projected that on 15.08.2006, the respondents
herein had threatened to dispossess the appellant and then the appellants had made enquiry
in the Civil Court and on 17.08.2006, they came to know about the proceedings of T.Ex. Case
No. 18/2003. It was projected that the appellants herein had acquired land holder's right over
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the Schedule-I land by way of adverse possession and that to the knowledge of all, they have
been maintaining their title and possession over the same beyond the period of limitation to
exclusion of all others and that by constructing two houses mentioned in Schedule-II they are
in possession of the said two houses as owners. It was also projected that the houses
described in Schedule-II was constructed by the appellants which were not a part of the
Schedule of the decree obtained by the respondent and accordingly, amongst others, prayer
was made in TS 338/2006 for a decree of confirmation of possession over the suit land
described in Schedule-1, and also for setting aside the decree in TS 44/1999, and other
reliefs.
8. It is submitted that the appellants were in possession the suit land which is
at the backside of the decreetal premises of TS No. 44/1999, which was lost sight by the
learned Courts below. It is submitted that the finding that the suit land was the purchased
land of the appellants is perverse. It is also submitted that Ext.1 was misinterpreted by the
learned Courts below, and the judgment was passed by ignoring the evidence and materials
on record, which had vitiated the concurrent finding on the ground of perversity. It is also
submitted that notwithstanding that an application under Order XXI Rules 97 and 99 CPC was
filed, but as TS 338/2006 had also been filed, the learned Courts below had erred in law in
concluding that all questions relating to right, title and interest arising between the parties to
the proceeding shall be determined in an application under Order XXI Rules 97 and 99 CPC is
perverse. It is submitted that as the appellants are not parties to TS No. 44/1999, they are
not bound by the decree. It is also submitted that the learned Courts below erred in law in
holding that the appellants were required to prove that the suit land in TS 338/2006 was
different from land involved in TS 44/1999 as it amounted to put the burden of proof on the
appellants. These submissions are the substantial grounds formulated by the appellants, on
which this appeal has been presented. The learned counsel for the appellants has cited the
following cases in support of his argument, viz., (i) Krishna Ram Mahale Vs. Shobha Venkat
Rao, (1989) 4 SCC 131 (para-8); (ii) Kazi Akeel Ahmed Vs. Ibrahim & Anr., (1996) 8 SCC 372
(para-8); (iii) Prataprai N. Kothari Vs. John Bragaza, (1999) 4 SCC 403 (para-11); (iv) R.
Kapilnath Vs. Krishna, (2003) 1 SCC 444 (para-5); (v) Rame Gowda Vs. M. Varadappa Naidu
Page No.# 8/17
(Dead) through LRs. & Anr., (2004) 1 SCC 769 (para-8 and 9); (vi) Niyamat Ali Molla Vs.
Sonargon Housing Co-operative Society Ltd. & Ors., AIR 2008 SC 225 (para-27); (vii)
Subramanya Swamy Temple, Ratnagiri Vs. V. Kanna Gounder, (2009) 3 SCC 306 (para-12);
(viii) Ram Daan Vs. Urban Improvement Trust, (2014) 8 SCC 902 (para-12) .
9. Per contra, the learned senior counsel for the respondent nos. 1, 2 and 3
has placed reliance on the judgment and order dated 10.12.2019, passed by this Court in
M.A.(S) No. 1/2013 for the purpose of opposing admission of the appeal.
10. Perused the memo of appeal and the documents enclosed thereto. On a
perusal of judgment dated 10.12.2019 rendered in M.A.(S) No. 1/2013 it is seen that the
respondent nos. 1, 2 and 3, as plaintiffs had instituted T.S. No.44/1999 against Sukhamoy
Deb, the father of the appellants, which was decreed vide judgment and decree dated
29.06.2002 by the learned Civil Judge (Junior Division) No.1, Karimganj. The said decree has
attained finality and in this regard, there is no dispute at the Bar. In T.S.44/1999, the case
projected by the respondent nos. 1, 2 and 3 herein (i.e. plaintiffs in the suit) was that one
Md. Sirajul Hoque Choudhury was the owner of the suit property, which was in occupation of
the said Sukhamoy Deb as a tenant. The said suit property was sold to Amitava Das (since
deceased), the predecessor- in- interest of the respondent nos. 1, 2 and 3 vide registered
Sale Deed No.2494/1986. Late Amitava Das died on 31.08.1996, leaving behind the
respondent nos. 1, 2 and 3 as the successors to the suit property, each having equal share
therein. It also appears that in Misc. Case 99/2006, the appellants herein had not tendered
any evidence and accordingly, by order dated 10.09.2007, the said Misc. Case was dismissed.
This Court had recorded in the judgment rendered in M.A.(S) 1/2013 in the said Misc. Case
that the appellants herein were the petitioners and only the respondent nos. 1, 2 and 3 were
arrayed as opposite parties without impleading Sukhamoy Deb, their father. It has been
recorded in para-22 of the said judgment that in paragraph 1 of the said Misc. Case it was
stated that on 15.08.2006 on the strength of decree dated 29.06.2002 in T.S. 44/1999, the
respondents herein had threatened to dispossess the appellants from the land described in
Schedule-1 which is a part of decreetal land under the schedule of the execution case filed by
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the respondent herein and also from the second schedule houses. It was stated that on the
said date, the appellants had gathered knowledge of T.S. No.44/1999 and its related
execution case. In paragraph 2 of the said petition, it was mentioned that the appellants had
acquired land holder's right over the Schedule-1 land by way of adverse possession to the
knowledge of all and that they had been maintaining their title and possession over the same
beyond the period of limitation to the exclusion of all other and that they have constructed
the two houses in this Schedule-2 land in the year 1985 and they are possessing the same as
owners and it was further stated that all these were stated in T.S.338/2006 filed by them
against the respondents herein. In paragraph 3, it was stated that the houses constructed by
the petitioners described in Schedule-2 are not the part of the schedule of the decree
obtained by the respondents and that there is also no reason for being so. Accordingly, it was
prayed that the respondents be restrained from evicting the appellants from the land
described in Schedule-1.
11. It would be relevant to quote herein below para-22 and 23 of the said
judgment dated 10.12.2019 passed in M.A.(S) No. 1/2013:-
"22. The perusal of the LCR and the records of this appeal reveal something
very disturbing that how process of law have been abused by the appellants. As
mentioned herein before, petition No.1026/22 dated 22.08.2006 was registered as
Misc. Case No.99/2006. In the LCR, the said petition is found supported by an
affidavit sworn by the appellant No.2, namely, Samarjit Deb. In the said affidavit,
the age of the appellant No.2 is mentioned as 38 years, as such, he was born in
the year 1968. The English translation and vernacular version of the said Misc.
Case No.99/2006 is annexed to this Memorandum of this appeal as Annexure 5
from page 43 to 49, but the said affidavit page available in the LCR has been
withheld by the appellants in this memo of appeal. The reasons for withholding the
said vital affidavit appears to be because as per the said affidavit, the appellant
No.2 was 38 years of age as on 22.08.2006, as such, in the year 1985, when the
appellant No.2 is alleged to have constructed house on the decreetal land of TS
44/1999, he would be a minor of 17 years of age. Moreover, in the LCR, petition
Page No.# 10/17
No.143/21 dated 07.07.2007 filed by the appellants is supported by an affidavit
sworn by appellant No.2, as per which his age on 11.05.2007 was declared to be
36 years and accordingly, the appellant No.2 would be aged 15 years in the year
1985. However, in the cause title of T.S. No. 338/2006 and Misc. Case No.
99/2006, the age of appellant No.1 is disclosed to be 42 years and that of
appellant No.2 is disclosed to be 38 years. The projection of the age of the
appellant No.1 to be 42 years as on 22.08.2006 is another example of the fact that
the appellants had resorted to falsehood and/or suppression of material facts. In
this case in hand, the age of the appellants is very material and any incorrect
description would lead to incorrect finding by the Courts. The reason thereof is
that the appellant No.1, namely, Sumit Deb has sworn an affidavit on 13.12.2018
in respect of I.A.(Civil) 4262/2018, in connection with this appeal, wherein his age
is disclosed as 38 years on 13.12.2018, as such, the appellant No.1 was born in or
about the year 1980. It may be mentioned that in the print-out of the affidavit, the
age is mentioned as 28 years, but by pen 2 is made 3 and, as such, while
swearing the affidavit on 13.12.2018, his age was 38 years. Hence, in the year
1985, when he had allegedly constructed the houses on the decreetal land, he
would be aged 5 years only and, as such, a minor. Accordingly, by no means, it
can be accepted that in the year 1985, the appellants herein could have
constructed houses over the suit land so as to claim possession independent of
their father, namely, Sukhamoy Deb. It may be pertinent to mention herein that
the appellants had miserably failed to prove that they had constructed any houses
on the decreetal land, therefore, at this second appellate stage the Court is unable
to accept that the appellants have semblance of any right, title or interest in
respect of those houses and, as such, there appears to be no merit in the
submissions made by the learned counsel for the appellant to claim that the
objection by the appellants is sustainable, rather, the Court is of the considered
opinion that if any construction has come up on the decreetal land, so as to
change the nature and character of the houses standing on the decreetal land, had
come up after the decree was passed in R.S. No.44/1999, which cannot confer any
right upon the appellants in respect of the decreetal land or in respect of any
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houses standing thereon. As mentioned herein before, the appellants have given
different age in Misc. Case No. 99/2006 only to mislead the learned executing
Court as well as this Court, so as to falsely portray before the Court that they were
adults in the year 1985. In the facts of the present case, the nature of falsehood
and/ or suppression of material facts is nothing but an attempt to perpetrate fraud
upon the Court and as fraud is found to have vitiated the stand of the appellants,
fraud is an exception which can be assailed even in a collateral proceeding, which
had compelled the Court to examine the pleadings on record. Hence, the story
projected in Misc. Case No.99/2006 is found to be baseless and not at all plausible.
It is, therefore, presumed that to prevent such discrepancy of the age of the
appellants from being exposed, the appellants had made no attempt to give
evidence in connection with Misc. Case No. 99/2006.
22. The Court is conscious of the well settled law that ordinarily the second
appellate Court ought not to re-appreciate pleadings and evidence to arrive at a
finding which is not the case of any of the parties in the proceeding. But in this
case in hand, as an appellate Court, the Court was required to glance at the
pleadings on record, and in the process, it has come to the notice of the Court that
the Misc. Case No. 99/2006 filed before the learned executing Court was
supported by an affidavit, which is available at page-33 of the LCR. However, as
the said affidavit was suppressed by the appellants by not filing the same as a part
of Annexure-5 of the Memo of Appeal i.e. Misc. Case No.99/2006, the Court has
taken a view that there is suppression of material facts which amounts to
perpetrating fraud upon the Court. It is for the said limited purpose that the
pleadings has been gone into at this second appellate stage and it has appeared to
the Court that there cannot be any other reason for suppressing material facts
having immense bearing on the case, but to prevent this Court from appreciating
that both the appellants herein were minors in the year 1985, when they had
allegedly constructed houses on the decreetal land, thereby claiming creation of
interest adverse to their own father, namely, Sukhamoy Deb and the landladies,
i.e. the respondents. There is a well accepted doctrine of law, i.e. fraus et jus
Page No.# 12/17
nunquam cohabitant, meaning that fraud and justice never dwell together. In the
case of Satluj Jal Vidyut Nigam Vs. Raj Kumar Rajinder Singh (Dead) through LRs.,
2018 STPL 10872 SC: (2018) 0 Supreme(SC) 920, the Supreme Court of India had
discussed the meaning and case law on 'fraud' and held that fraud vitiates every
solemn act and that fraud and justice never dwell together and it cannot be
perpetuated or saved by the application of any equitable doctrine including res
judicata. In the case of Meghmala & Ors. Vs. G. Narasimha Reddy & Ors., (2010) 8
SCC 383, the Supreme Court of India had held that fraud is intrinsic, collateral act,
and fraud of an egregious nature would vitiate the most solemn proceeding of
courts of justice. Fraud is an act of deliberate deception with a design to secure
something, which is otherwise not due. In this regard, it was held that the
expression fraud involves two elements, deceit and injury to the person deceived.
It is cheating intended to get an advantage. Thus, the Court is constrained to hold
that the appellants have made a deliberate and willful attempt to mislead the
Court by giving a false age in Misc. case No. 99/2006 for the purpose of concealing
their year of birth with a purpose of concealing the year when they had attained
the age of majority. Thus, by practicing deceit, the appellants had made an
attempt to secure an order in their favour. However, the present appeal is not
dismissed on the ground that the appellants are guilty of suppression of material
facts amounting to fraud upon the Court."
12. The submissions made by the learned senior counsel, which are stated to be
based on the substantial questions of law as formulated by the appellants in the memo of
appeal are now examined.
13. It was submitted that as the appellants are not parties to TS No. 44/1999,
they are not bound by the decree. In this regard, it is seen that paragraph 1 of the plaint of
TS 338/2006, there is a categorical statement that in the year 1985, the appellants, their
father, and respondent nos. 5 and 7 were residing in a joint mess. Therefore, when alive,
Sukhamoy Deb, the father and predecessor- in- interest of the appellants had suffered a
Page No.# 13/17
decree in T.S. No. 44/1999. He had contested the suit as a tenant. On a query made by the
Court, the learned counsel for the respondent nos. 1, 2 and 3 had stated upon instructions
that Sukhamoy Deb had died on 20.05.2015. Upon the death of Late Sukhamoy Deb, the
appellants and the respondent nos. 4 and 5, being the legal heirs, had succeeded to his
estate. Consequently, all the legal heirs and representatives of Late Sukhamoy Deb would be
squarely bound by the decree of eviction. Moreover, nothing has been brought on record to
show before this Court that at any point of time prior to the date of hearing of this appeal,
the appellants and the respondent nos. 4 and 5 had either denied that they are not the legal
heirs of Late Sukhamoy Deb or that they had applied before the Court for determination of
question as to legal representative of Sukhamoy Deb as envisaged under Rule 5 of Order XXII
CPC. Thus, the Court is constrained to hold that notwithstanding the alleged claim of adverse
possession in respect of suit property decreed in TS 44/1999, the appellants are not found
entitled to prayer No. (d) made in TS 338/2006 for setting aside the decree dated
29.06.2002, passed by the learned Civil Judge (Junior Division) No.1, Karimganj (now
renamed as Court of Munsiff No.1, Karimganj) in T.S. No. 44 of 1999. It may also be
mentioned that in M.A.(S) 1/2013, the plea of adverse possession as raised by the appellant
was discussed and negated. The said proceeding was in Misc. Case No. 99/2006, arising out
of T.Ex. Case No. 18/2003 which was filed one day prior to institution of TS 338/2006 and
was decided prior in point of time and the second appeal, being M.A. (S) 2/2013 was also
decided prior in point of time. In connection with issue nos. 5 and 6, the learned trial Court
had returned a finding that the title of the predecessor of the respondent nos. 1, 2 and 3 was
not renounced till final outcome of TS 4/1999 and the father of the appellants had contested
the suit (i.e. TS 44/1999) in his capacity as a tenant, which is further found to be proved by
the appellants in TS 338/2006 by exhibiting Ext.1 kerayanama. Therefore, in this appeal, the
same plea of adverse possession raised by the appellants is hit by the principle of issue
estoppel. The appellant cannot be permitted to re-litigate on the same issue twice. In light of
the herein before made discussions, the submissions made by the learned counsel for the
appellant to the effect that notwithstanding that an application under Order XXI Rules 97 and
99 CPC was filed, but as TS 338/2006 had also been filed, the learned Courts below had
erred in law in concluding that all questions relating to right, title and interest arising between
the parties to the proceeding shall be determined in an application under Order XXI Rules 97
Page No.# 14/17
and 99 CPC is perverse is devoid of any merit because the appellants had filed this suit on
21.08.2006 first and on the very next date, i.e. on 22.08.2006, the Misc. Case No. 99/2006
was filed and hotly contested till second appellate stage. Therefore, having lost the said Misc.
Case No. 99/2006 all throughout, it is not open for the appellants to claim the finding
returned by the learned Courts below to be perverse.
14. The learned counsel for the appellant had submitted that the appellants were
in possession the suit land which is at the backside of the decreetal premises of TS No.
44/1999, which was lost sight by the learned Courts below. It was also submitted that the
learned Courts below erred in law in holding that the appellants were required to prove that
the suit land in TS 338/2006 was different from land involved in TS 44/1999 as it amounted
to put the burden of proof on the appellants. Both the said pleas are devoid of any merit
because in evidence, the two PWs examined by the appellants had only exhibited a
photocopy of kerayanama (rent agreement). The appellant had not even exhibited the
judgment rendered in TS No. 44/1999. Moreover, no attempt had been made to prove that
the suit land described in schedule-1 and 2 of the plaint of TS No. 338/2006 was not the
same as decreed in TS No. 44/1999. The description of properties described in both the suits
has been reproduced herein before. While the suit premises described in TS 44/1999 was
over land measuring 1916 sq.ft. covered by Dag No.4486(old)/ 4487 (old) of Final Khatian
No.4825 of Karimganj Town Sheet No.64/5, holding no.160(old)/ 148(new) of Mouza-
Banamali, Paragona-Kushiarkul, District Karimganj. But the suit land of TS 338/2006 is only
1682 sq.ft. of the same dag and patta number. The appellants have not exhibited land
revenue document or revenue trace map to show that the suit premises in both suits are
distinct, and that suit property in TS 338/2006 does not consist of a part of suit land of TS
44/1999. Naturally, if the appellants are claiming lesser land (1682 sq. ft) in T.S. 338/2006
than 1916 sq. ft. land claimed by respondent nos.1, 2 and 3 in T.S.44/1999, there would be a
mis-match of the four boundaries, which by itself does not prove that the two suit lands are
distinct, and that the suit land in T.S. 338/2006 is not over-lapping the suit land of T.S.
No.44/1999.
15. It was submitted that the finding that the suit land was the purchased land
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of the appellants is perverse has been examined. It is seen that in respect of issues no.5 and
6, the learned trial Court had returned a finding that the appellants do not have any
instrument of title. The learned first appellate Court, while deciding point of determination
no.1, in paragraph 16 had recorded as follows - " 16. PW-1 in his evidence stated that the
suit land is purchased land by him and his brother. The said statement is not found
conformity with the present case as such, the present version of the plaintiff in this case is
found to be contradictory with the evidence ." No attempt has been made to produce a copy
of the evidence of PW-1 along with the memo of appeal to negate the said finding as
perverse. Therefore, there is no merit in this submission and it is seen that such a finding is
not found to be contrary to the record.
16. It was also submitted that Ext.1 was misinterpreted by the learned Courts
below, and the judgment was passed by ignoring the evidence and materials on record,
which had vitiated the concurrent finding on the ground of perversity. In this regard, it is seen
that no attempt has been made to produce a copy of the evidence of the two PWs and the
evidence of the respondents, if there be any, have neither been enclosed to the memo of
appeal nor produced separately to show that which evidence on record has been ignored. It
is too well settled that except for the evidence on record, the trial Court is not required to rely
on any un-exhibited documentary evidence to return a finding. Therefore, there is no merit in
this submission.
17. The cases cited by the learned counsel for the appellant also do not help the
appellants in any manner.
a. The case of Krishna Ram Mahale (supra) and Ram Daan (supra) was cited to
project that even if the person in possession had no right to remain in suit
property, he must be evicted after due process of law. There is no opposition to
the well settled principle. But in this case, there is a lawful and valid decree in TS
44/1999, and it has been discussed herein before that the legal heirs and legal
representatives of Late Sukhamoy Deb, who is stated to have died on 20.04.2015,
are bound by the decree. Therefore, the cited cases do not help the appellant.
Moreover, the case of Ram Daan (supra) was dealing with a suit filed under section
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6 of the Specific Relief Act, 1963 whereas in the present case, the appellants are
seeking to frustrate a decree for eviction passed against their father in TS 44/1999.
b. The case of Kazi Akeel Ahmed (supra) was cited to project that once the suit is
instituted, the Misc. Case No. 99/2006 was not required to be determined. The
cited case does not help the appellants because not only Misc. Case No. 99/2006
was dismissed, but the suit based on same plea has also been dismissed.
Moreover, the plea that the appellants have adverse possessory title has been
negated by concurrent finding of fact.
c. The case of R. Kapilnath (supra) had been cited to project that if the appellant
is not found entitled to higher relief, he may still be granted lesser relief. This case
also does not help the appellants because the appellant had not made any attempt
to prove from land revenue records that the suit premises involved in TS 338/2006
was distinct from decreetal property described in TS 44/1999. Therefore, the
appellants are bound by the decree in TS 44/1999.
d. The case of Prataprai N. Kothari (supra) was cited to project that possessory
title is required to be considered as the appellants had been in long possession of
the decreetal land. In this regard, in view of the discussions above, as the
appellants have miserably failed to establish any adverse possession, merely a long
possession would not give the appellants the benefit of the cited case.
e. The case of Rame Gowda (supra) was cited possession without title would
entitle the appellants to protect their possession. This case does not help the
appellants as the appellants have not been able to establish their adverse
possession. In M.A.(S) 1/2013, this Court had rendered a categorical finding to the
effect that the appellants were minors in the year 1985, and that the appellant
no.1 would be aged 5 years then. It was also held that it was falsely projected that
in the year 1985, the appellants had constructed houses on the suit land during
their age of minority of 5 years and 15/17 years respectively. Thus, the plea of
adverse possession was held to be a plea to play fraud upon this Court. The
relevant observations of the Court have been extracted herein before.
f. The case of Anwarbi (supra), Niyamot Ali Molla (supra), Maya Devi (supra) and
Ashan Devi (supra) was cited to project that the obstructionist in possession can
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only be dispossessed in accordance with law and that where obstruction had been
caused to the execution of the decree, it is for the decree- holder to take
appropriate steps under Order XXI, Rule 97 CPC, In this case in hand, the ratio of
the cited case would not apply because the appellants have not been able to show
that they have any right independent of Sukhamoy Deb, their father, who is the
judgment debtor in T.S. No. 44/1999.
g. The case of Subramanya Swamy Temple (supra) was cited that when adverse
possession was taken as a defence, it was the duty of the Court to find out who
was in earlier in possession of the land. This case also does not help for the
reasons as assigned while referring to the cases of Rame Gowda (supra) and
Anwarbi (supra).
18. Thus, the present appeal is found to be devoid of any merit. No substantial
questions of law arise for determination in this appeal. Therefore, this appeal stands
dismissed with cost. Resultantly, the judgment and decree passed by both the learned Courts
below stand affirmed.
19. As a lawful and a valid decree dated 29.06.2002 passed by the learned Civil
Judge (Junior Division) No.1, Karimganj (now renamed as Court of Munsiff No.1, Karimganj)
in TS No. 44/1999 has been frustrated with the long drawn 19 years of litigation, it is made
clear that there is no impediment for the learned Court of Munsiff No.1, Karimganj [previously
Civil Judge (Junior Division) No.1, Karimganj] to proceed with Title Execution Case No.
18/2003 as expeditiously as possible.
20. Let a decree of dismissal of this appeal with cost be prepared.
Comparing Assistant
