Keleng Pator Vs Ghana Kanta Samua

Heard Mr. A. Sattar, the learned counsel appearing on behalf of the appellant. Mr. V. K. Barooah, the learned counsel appears on behalf of the respondent.

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Page No.# 2/9

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This is a Appeal filed by invoking the jurisdiction under Section 104 read with Order XLIII Rule 1(u) of the Code of Civil Procedure, 1908 (for short, ‘the Code’) challenging the order dated 04.07.2009 passed by the Court of the learned Civil Judge, Morigaon, (hereinafter referred to as ‘the learned First Appellate Court’) in Title Appeal No.5/2009 by which the learned First Appellate Court had set aside the judgment and decree dated 29.11.2008 passed by the learned Munsiff No.1, Morigaon (hereinafter referred to as ‘the learned Trial Court’) in Title Suit No.14/2004 and remanded the suit back to the learned Trial Court by framing two additional issues.

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The question which arises for consideration before this Court is as to whether the learned First Appellate Court was justified in doing so. It is relevant to take note of that the appellant herein as plaintiff had instituted a suit being Title Suit No.14/2004 before the Court of the Civil Judge (Junior Division) No.2, Morigaon seeking declaration of his right, title and interest over the plot of land described in Schedule-A to the plaint. Additionally, the plaintiff also sought for cancellation of the registered Deeds of Sale bearing Sale Deed No.1068/87 dated 14.07.1987 as well as the Sale Deed No.1187/87 executed on 11.09.1987.

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The case of the plaintiff in brief is that the land mentioned

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in the Schedule-A to the plaint belonged to the father of the plaintiff and his father cultivated upon the said land. After the demise of his father, the plaintiff cultivated upon the Schedule-A land without any interruption. The plaintiff filed an application after the death of his father to correct the revenue records in the name of the plaintiff, and accordingly, on 15.02.1996, the Circle Officer, Bhuragaon vide an order dated 14.02.1995, mutated the name of the plaintiff in place of his father as the sole owner by right of inheritance. However, during the last part of the year 2003, when the plaintiff went to the Deputy Commissioner's Office for a certified copy of the Jamabandi of the Schedule-A land, he was surprised to learn that the name of the plaintiff in the Sadar Jamabandi for the Schedule-A land was cancelled by the Additional District Magistrate, Morigaon in connection with Misc. Case No.12/2002 vide the order dated 21.03.2003 without any notice and in his place, the name of the defendant was inserted. The plaintiff thereupon made enquiries and came to learn that on the basis of two purported Deeds of Sale bearing Deed No.1068/87 and Deed No.1187/87 dated 14.07.1987 and 11.09.1987 respectively, the defendant claimed to have acquired right over the Schedule-A land. Thereupon, the plaintiff alleged that his father never executed the Deeds of Sale and the said Deeds of Sale were executed fraudulently by the defendant in

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order to grab the Schedule-A property. It is under such circumstances, the plaintiff sought for a declaration that the plaintiff had right, title and interest over the Schedule-A land; for a decree for cancellation of the Sale Deeds bearing Deed No.1068/87 and Deed No.1187/87 and for issuance of a precept to the Sub-Registrar’s Office, Dhing, Nagaon to cancel the Deeds of Sale.

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It is very pertinent to take note of that the plaintiff though claimed to be in possession of the Schedule land, neither sought for declaration as regards confirmation of the possession of the plaintiff over the Schedule-A land nor sought for any recovery of possession.

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The defendant, thereupon, appeared and filed a written statement raising various preliminary issues as regards the maintainability of the suit. The defendant in the written statement duly defended the Deeds of Sale and denied that there was any fraud, impersonation or misrepresentation. It was further mentioned that there was an Agreement for Sale entered into by and between the plaintiff's father and the defendant on 28.06.1987 for sale of 3 bighas of land out of the total ScheduleA land for a consideration of Rs.1,000/- per bigha and in that regard, the father of the plaintiff had received the amount of Rs.1,000/- on the same date. It was further mentioned that

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thereupon sale permission was taken and the father of the plaintiff executed the registered Deed of Sale bearing No.1068/87 on 14.07.1987 in favour of the defendant for 3 bighas of land for a consideration of Rs.3,000/-. It was further mentioned that in the said Deed of Agreement for Sale, it was also mentioned that if there is any necessity of the father of the plaintiff to sell the remaining part, i.e. admeasuring 3 bighas 8 lechas, the same also would be sold to the defendant. Thereupon, vide another Deed of Sale bearing Deed No.1187/87 dated 11.09.1987, the remaining 3 bighas 8 lechas of land was sold to the defendant and the possession was thereafter handed over. It was further mentioned that the plaintiff had due knowledge about the Deeds of Sale in as much as he was a signatory along with his father in the Sale Agreement dated 28.06.1987. The defendant categorically mentioned in his written statement that post the date of purchase and the delivery of possession, the defendant had been in possession of the suit land by paying the land revenue. On the basis of the said pleadings, as many as five issues were framed which being relevant are quoted herein under:-

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

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(ii) Whether suit is maintainable in its present form?

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(iii) Whether plaintiff has right, title, interest over the suit? (iv) Whether the sale deed 1068/87 and 1187/87 purported to be executed by plaintiff are legally enforceable or whether on the strength of such deeds, the defendant has acquired any right over the suit land?

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(v) Whether plaintiff is entitle to relief as prayed for?

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On behalf of the plaintiff as well as the defendants, both adduced oral and documentary evidence. Vide the judgment and decree dated 29.11.2008, the suit was decreed in favour of the plaintiff. It is relevant to take note of that while deciding the Issue No.(iv) which was the most pertinent issue as to whether the Deed of Sale bearing Nos.1068/87 & 1187/87 were legally enforceable or whether on the strength of such Deeds, the defendant had acquired any right over the suit land, the learned Trial Court decided the issue in favour of the plaintiff opining that the defendant failed to prove that the Sale Deeds in question were not fraudulent.

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At this stage, this Court finds it relevant to observe that the said findings of the learned Trial Court was on the face of it, contrary to the provisions of Section 101 of the Indian Evidence Act, 1872 in as much as it is the plaintiff who sought for a judgment in his favour that the Deeds in question were

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fraudulent documents, and as such, it was the burden upon the plaintiff to prove that the Deeds in question were fraudulent documents. However, the learned Trial Court decided the Issue No.(iv) in favour of the plaintiff by putting the burden upon the defendant. The consequential effect of the decision in Issue No. (iv) affected the decision in respect to Issue No.(iii) in as much as without those two Deeds of Sale, the plaintiff had the right, title and interest over the suit land.

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The defendant being aggrieved preferred an Appeal before the Court of the Civil Judge (Senior Division) at Morigaon which was registered and numbered as Title Appeal No.5/2009. The learned First Appellate Court while deciding the said Appeal took up the Issue Nos.(iii) & (iv). While doing so, the learned First Appellate Court opined which in the opinion of this Court rightly so, that the burden was on the plaintiff to prove that the Deeds of Sale which were challenged were fraudulent documents.

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Be that as it may, the learned First Appellate Court went into another aspect of the matter which was never the issue either before the Trial Court or even in the Appellate Court as regards the possession over the suit land as well as the mutation order. It is noteworthy to mention that the defendant never filed any counterclaim. The plaintiff also did not seek for any declaration as regards his confirmation of possession or sought

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for recovery of possession. Consequently, the First Appellate Court ought not to have gone into the issue as regards possession or for that matter, as regards the mutation order passed in Misc. Case No.12/2002. Under such circumstances, the framing of the additional issues by the First Appellate Court, in the opinion of this court, was not in proper exercise of the powers conferred under Order XLI Rule 25 of the Code.

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At this stage, this Court further finds it relevant to point out that when an order of remand is passed, it is also the requirement of law that the Appellate Court who remands the order should also exercise its jurisdiction in terms with Order XLI Rule 26A of the Code thereby fixing a date of hearing before the learned Trial Court which was, however, not done here.

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Be that it as it may, the learned First Appellate Court ought not to have framed these additional issues and ought to have decided the Appeal on the basis of the evidence which was already available.

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Considering the above, the impugned order dated 04.07.2009 passed by the Court of the learned Civil Judge, Morigaon in Title Appeal No.5/2009 is set aside and quashed.

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Taking into account that both the parties are duly represented, this Court directs both the parties to appear before

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the learned First Appellate Court, i.e. the Court of the Civil Judge at Morigaon on 04.04.2025.

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The learned First Appellate Court shall thereupon fix a date for hearing of the Appeal on the basis of the materials already available on the record and take effective steps for disposal of the same at the earliest and preferably within 3 months from the date of appearance of both the parties.

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The Registry is further directed to immediately remit the records back to the learned First Appellate Court, i.e. the Court of the Civil Judge (Senior Division) at Morigaon so that the learned First Appellate Court is in a position to take up the Appeal on 04.04.2025 as fixed herein above and in that regard, if necessary, the Registry shall employ the services of a Special Messenger.

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JUDGE

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Comparing Assistant

Keleng Pator v. Ghana Kanta Samua

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Keleng Pator v. Ghana Kanta Samua

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