Ramesh Mahato vs Urmila Devi
2022 Latest Caselaw 3272 Gua

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GAHC010111512022




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

                                Case No. : RSA/124/2022

            RAMESH MAHATO
            S/O- LATE RAM MILAN MAHATO, R/O- VILL.- BHAKRAPARA, DOLAIGAON,
            WARD NO. 14 BONGAIGAON MUNICIPALITY, P.O., P.S. AND DIST.
            BONGAIGAON, ASSAM

            VERSUS

            URMILA DEVI
            W/O- LATE RAM MILAN MAHATO, R/O- VILL.- RAILWAY QUARTER NO.
            447/B NEAR R.P.F. BARRACK, BONGAIGAON, P.O., P.S. AND DIST.
            BONGAIGAON, ASSAM

Advocate for the Petitioner   : MR. A SATTAR

Advocate for the Respondent : MR. B J MUKHERJEE

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER (ORAL)

Date : 30-08-2022

1. Heard Mr. A. Sattar, the learned counsel appearing on behalf of the Appellant and Mr. B. J. Mukherjee, the learned counsel appearing on behalf of the Respondent.

2. This is an appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") against the judgment and decree dated 21.01.2022 passed by the Court of the Civil Judge, Bongaigaon in Title Appeal Page No.# 2/6

No.19/2019 whereby the judgment and decree dated 26.03.2019 passed by the Court of the Munsiff, Bongaigaon in Title Suit No.02/2016 was upheld.

3. This Court is taking up the instant appeal at the stage of Order XLI Rule 11 of the Code to ascertain as to whether any substantial question of law arises that can be formulated in terms with Section 100(4) of the Code. For the purpose of deciding the said appeal, it is relevant to take note of the brief facts of the instant case. For the sake of convenience, the parties herein are referred to in the same status as they stood before the Trial Court.

4. The plaintiff who is the mother of the defendant has filed the suit being Title Suit No.02/2016 seeking declaration of right, title and interest over the suit land as described in the schedule to the plaint for recovery of khas possession as well as for permanent injunction. The case of the plaintiff in brief is that the plaintiff purchased the suit land vide a registered Deed of Sale bearing Deed No.772 dated 26.10.2004 from one Sri. Gopal Chandra Roy and took delivery of possession of the same. It was specifically averred in the plaint that the plaintiff purchased the land in question out of her past savings from the family expenditure and own money procured through selling of ornaments. The said suit land was duly mutated in the name of the plaintiff. The defendant alongwith his wife and children were living with the plaintiff under a common mess and it has been alleged that the said defendant and his wife had mistreated the plaintiff and on 06.09.2014, the plaintiff was forcefully driven out from her own house. It is under such circumstances that the present suit was filed seeking for declaration of right, title and interest; recovery of khas possession as well as for permanent injunction.

5. The defendant had filed his written statement denying to the various statements and averments made in the plaint. Although, the purchase made in Page No.# 3/6

respect to the suit land by the Deed of Sale was admitted but it was the specific case of the defendant that the suit land was purchased out of the joint family income and as such it was the joint family property wherein the defendant also have equal rights over the suit land. On the basis of the said pleadings as many as 6 issues were framed which were as hereinunder:

(a) Whether there is any cause of action for the suit?

(b) Whether the suit is bad for non-joinder of necessary parties?

(c) Whether the plaintiff has right, title and interest over the suit land?

(d) Whether the defendant has no right, title and interest over the suit land?

(e) Whether the defendant illegally and forcefully evicted the plaintiff from the suit premises on 06.09.2014?

(f) Whether the plaintiff is entitled to the relief as prayed for or any other relief/reliefs?

6. The plaintiff has examined as many as 5 witnesses and exhibited various documents which were marked as Exhibit-1 to Exhibit-15. The defendant has examined the evidence of 3 witnesses and exhibited two documents which were marked as Exhibit-A and Exhibit-B.

7. The Trial Court vide a judgment and decree dated 26.03.2019 decreed the suit in favour of the plaintiff. Pertinent herein to mention that it was held that the suit land in question was a self-acquired property of the plaintiff and the plaintiff was also forcefully driven out from the suit land on 06.09.2014.

8. Feeling aggrieved and dissatisfied, the defendant as appellant has preferred an appeal before the Court of the Civil Judge, Bongaigaon which was registered and numbered as Title Appeal No.19/2019. The First Appellate Court Page No.# 4/6

formulated the following point for determination "Whether the judgment dated 26.03.2019 and decree dated 02.04.2019 passed by the learned Munsiff, Bongaigaon, in Title Suit No.02/2016 is just and proper or whether it lacks propriety warranting interference in appeal ?"

9. It further appears from the judgment of the First Appellate Court dated 21.01.2022 that the appeal was dismissed thereby confirming the judgment and decree dated 26.03.2019 passed by the Court of the Munsiff, Bongaigaon in Title Suit No.02/2016.

10. Feeling aggrieved, the instant appeal has been preferred under Section 100 of the Code. Mr. A. Sattar, the learned counsel appearing on behalf of the Appellant has proposed various substantial questions of law which are involved in the instant appeal. He further submits that though in the Memo of Appeal, there are certain substantial questions of law proposed but he submits that he proposes the following three substantial questions of law to be involved in the instant appeal which are quoted hereinbelow:

"1. Whether the concurrent finding of facts arrived at by the courts below suffers from perversity without taking into consideration the provisions of Order XXXII A as contained in Order XXXIIA Rule (2) Sub-Rule (f) and (g) with Rule (3) and (5) of the CPC, 1908 ?

2. Whether the courts below were right in holding that the suit property was not a joint property but the exclusive property of the plaintiff purchased vide Exhibit-1 thereby ignoring the evidence on record to the effect that the plaintiff (PW1) being a house wife had no source of income and/or Bank Account to purchase the said property after the demise of her husband save and except with that amount which accrues on settlement of dues of Late Ram Milan Mahato i.e. the husband of the plaintiff and father of the Page No.# 5/6

defendant ?

3. Whether the appellant being the son of Late Ram Milan Mahato can be evicted from the suit land when the evidence on record suggest that the plaintiff on getting the gratuity amount and other dues of her husband had managed to purchase the suit land vide Exhibit-1 mean for enjoyment of the entire family members and not the plaintiff alone ?"

11. Let this Court take into consideration as to whether the above substantial questions of law so proposed are involved in the instant appeal.

12. The first substantial question of law which has been proposed is as to whether the concurrent finding of facts arrived at by the Courts below suffers from perversity without taking into consideration the provisions of Order XXXIIA as contained in Order XXXIIA Rule (2) Sub-Rule (f) and (g) read with Rule (3) and (5) of the CPC, 1908. This Court has perused the provisions of Order XXXIIA. Rule 1 of Order XXXII Rule A stipulates where the said Order shall be applicable. A perusal of the plaint in Title Suit No.2/2016 would clearly go to show that the suit in question is a suit based on title and for recovery of khas possession and for permanent injunction. The suit has been filed by the plaintiff claiming right, title and interest over the suit land on the basis of purchase by way of registered Deed of Sale. Under such circumstances, the said suit does not fall within the contours of Rule 1 of Order XXXIIA and consequently, the said substantial question of law so proposed cannot be formulated as a substantial question of law involved in the instant appeal.

13. The substantial question of law so proposed at Serial Nos. 2 and 3 are one and the same inasmuch as a perusal thereof would transpire that as to whether the Courts below were justified in arriving at the conclusion that the suit land Page No.# 6/6

was a self-acquired property of the plaintiff without taking into account the evidence to the effect that the property in question was purchased by joint family income.

14. I have perused both the judgments of the Trial Court as well as the First Appellate Court. Both the Courts below after taking into account the evidence on record had come to a finding that there has been no evidence led to the effect that the amount which were received in the Bank Account of the plaintiff i.e. the amount of Rs.1,58,655/- and Rs.1,22,977.24/- were the amounts which have been received out of the family pension or settlement on account of the service benefits of the husband of the plaintiff.

15. This aspect of the matter has been concurrently held by both the Courts below and in absence of anything being shown by the Appellant before this Court which would show that the Courts below has omitted to take into account any material evidence which would have otherwise altered the decision of the Courts below, this Court, therefore is not inclined to accept the said two substantial questions of law to be involved in the instant appeal on the basis of surmises of conjectures that the plaintiff had no other source of income.

16. Consequently, the substantial questions of law proposed at Serial Nos. 2 and 3 cannot be framed as substantial questions of law involved in the instant appeal.

17. Under such circumstances, the instant appeal being devoid of any substantial questions of law is accordingly dismissed. However, in the facts of the case, there shall be no costs.

JUDGE Comparing Assistant