Judgement & Order (Cav)

Factual Matrix :-

1. This appeal was admitted on the following substantial question of Law:- " whether the findings of the First Appellate Court are perverse on the face of the pleading and evidence of the plaintiff's witnesses.”

2. The appellants in this case are (i) Nowshad Ali, (ii) Fuleshwari Bibi, (iii) Abul Hussain, and (iv) Jafar Sk, whereas, the respondents in this case are (i) Alep Uddin, (ii) Golap Uddin, and (iii) Gias Uddin.

3. The Title Suit No. 60/2012, was brought up by the appellants/plaintiffs contending inter alia that the deceased predecessor of the plaintiffs namely Basaddi Sk was the exclusive owner and recorded pattadar and was in possession of a parcel of land admeasuring 1B 4K 9L appertaining to Dag No. 147(old) 316(new); 82(old) 232(new) ; 138(old) 288(new); and 288(old) 130(new) under patta No. 94(old) 85(new) of Durahati Village under Dhubri Circle.

4. This plot of land is the subject matter of the suit and is described in the Schedule-B of the plaint. When the plaintiffs filed a petition before the learned A.S.O., Dhubri Circle, to get their names recorded, a Misc. Case being DM (Misc) Case 19/2010 was registered and the order dated 04.08.2010, was passed in favour of the plaintiffs 1 and 2 but the patta was wrongly entered as patta No. 16 instead of patta No. 94(old) 85(new) and the details are described in the Schedule-A of the plaint. Meanwhile, the defendant Nos. 1, 2 and 3/the present respondents filed Misc. Appeal No. 62/2010 in the Court of Defendant No. 5 i.e., S.O., Dhubri Circle against the order of the Defendant No. 4 i.e., A.S.O., Dhubri Circle. The Misc. Appeal No. 62/2010 was allowed and the order of the Defendant No. 4 was set aside. Nonetheless, the plaintiffs have brought up this suit that they have right, title, interest and possession over the Schedule-B land and the defendant Nos. 1, 2 and 3 have no right, title, interest and possession over the Schedule-A land.

5. It is contended that the defendant Nos. 1, 2 and 3 have taken the plea that the sale deed No. 2245/59 was executed by one, Kaser Uddin with respect to the suit land and the said sale deed is forged and fraudulent and is not related to the suit land. However, defendant Nos. 1, 2 and 3 attempted to take possession of the suit land by demolishing the houses of the plaintiffs and to that effect, a criminal case was also filed against the defendant Nos. 1, 2 and 3, and simultaneously this suit was also filed for right title interest, confirmation of possession, cancellation of sale deed, correction of record and for permanent injunction. The defendants appeared but failed to file written statement within the stipulated period and accordingly, this suit proceeded ex-parte against all the defendants.

6. The plaintiffs, however, adduced evidence of 8 witnesses and the defendants cross-examined the witnesses. It was held by the learned Trial Court that the suit is hit by proviso to Section 34 of the Special Relief Act and found not to be maintainable and the Trial Court dismissed the suit.

Findings of the learned Trial Court :-

7. The learned Trial Court has held that the plaintiffs admitted that some portion of the suit land was under the possession of the medical subcentre which was illegally gifted by the predecessor of the defendants about 30 years back. It was observed by the learned Trial Court that the evidence of PW1/plaintiff No. 1 reveals that Isamuddin, predecessor of the defendant illegally gifted some portion of the suit land to the medical sub-centre, some 30 years back and the plaintiff has not prayed for cancellation of the gift deed. Admittedly, there was no prayer for Khas possession. A suit merely for declaration without a prayer for Khas possession is not maintainable. The proviso to Section 34 of the Specific Relief Act provides that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.

8. The learned Trial Court delved into the evidence, adduced by the witnesses and the evidence of PW1 was taken note of. PW1 stated that the suit land belongs to his father and they were in continuous possession of the suit land. The sale deed No. 2245/59 has to be declared as a fraudulent deed as the same is the root cause of the dispute. PW1 proved kacha patta as Exhibit-1, and the certified copy of the order in DM (Misc) Case No. 19/2010 as Exhibit-2 and certified copy of the Misc. Appeal No. 62/2010 as Exhibit-3 and the certified copy of the sale deed No. 2245/59 as Exhibit-4. This evidence and pleadings of PW1 has been supported by the evidence of PW2, Jain Ali. He has also confirmed the continuous possession of the plaintiffs over the suit land.

9. The Lot Mandal deposed as PW3 that Exhibit-1, patta No. 94/85 stands in the name of Basaddi Sk and the newly formed patta No. 164 measuring 1K 10L was recorded in the name of Nowshad Ali as legal heir. The Lot Mandal also admitted that the documents produced by him do not clearly state against whose name the remaining land has been recorded. The other Lot Mandal deposed as PW6 that the kacha patta 94/85 was recorded in the name of Basaddi Sk for land measuring 1B 4K 9L which was prepared in the year 1993. The draft chitta has been corrected but the corrections have not been reflected in Exhibit-1. Another Lot Mandal deposed as PW7 that as per original jamabandi, the land under patta No. 94/85 has been recorded in the name of Basaddi Sk and Isamuddin Sk.

10. Thus, it was held by the learned Trial Court that the original jamabandi reflects that patta No. 94/85 stands in the name of the predecessors of the parties and the plaintiffs failed to adduce any evidence to substantiate their title over the entire suit land. After scrutinizing the evidence, the learned Trial Court dismissed the suit.

Findings of the learned Appellate Court :-

11. It was observed by the learned Appellate Court that the plaintiff, PW1 admitted in his cross-examination that his father, Late Basaddi Sk, and the father of the defendant Nos. 1, 2 and 3, Late Isamuddin Sk are brothers, but it was not in his knowledge how his father acquired the suit land which is recorded in the name of his father. The learned Appellate Court also considered the depositions of the Lot Mandal, PW7, who testified in his cross-examination that the patta No. 85 covers 1B 4K9L of land recorded in the name of Basaddi Sk and patta No. 96 has been separated into two patta Nos. i.e., patta No. 16 and patta No. 85.

12. It was held by the Appellate Court that the pleadings are silent as to how Basaddi Sk acquired Schedule-A land. The plaintiff No. 1, PW1 also admitted in his cross-examination that some portion of the land has been illegally gifted by Isamuddin, (deceased father of defendant Nos. 1, 2 and 3 and uncle of plaintiff) to medical sub-centre some 30 years back. It was also observed by the Appellate Court that PW2, Jane Ali admitted in his cross-examination that earlier the suit land was under the ownership and possession of the brothers, Isamuddin and Basaddi Sk.

13. The learned Appellate Court has also agreed with the decision of the learned Trial Court that it has surfaced through evidence that there is a medical sub-centre on a portion of the suit land and the plaintiffs have not filed a suit for cancellation of the gift deed through which Isamuddin has illegally gifted land to the medical sub-centre. Thereby, as a suit for declaration of title and consequential injunction, clear title over the property has to be proved. The Court through a declaratory suit is not bound to grant declaratory decree in favour of the plaintiff when the title over the suit land is under cloud. It was held by the learned Appellate Court that the plaintiff could not prove their clear title to the Schedule-A land.

Arguments for the appellant :-

14. The learned counsel for the appellants, Ms. R. Choudhury laid stress in her argument that the plaintiff as PW1 has clearly admitted that the suit land was also under the ownership of his uncle, Isamuddin as well as his father Basaddi Sk. It is also argued that new facts have been introduced through evidence beyond pleadings. The plaintiffs have not stated in their pleadings that there is a medical sub-centre over a portion of the suit land and this portion of the land was gifted to the medical sub-centre illegally by his uncle, Isamuddin.

15. It is further contended that the defendants have not filed any written statement but have only cross-examined the witnesses. Both the courts below have erred as the plaintiff has not claimed for title but they have only claimed for recovery of Khas possession and thus this suit is not barred under Section 34 of the Special Relief Act 1963 (The Specific Relief Act for short).

16. The plaintiffs have not made any prayer for possession of the subcentre but they are aggrieved by the disturbance in the possession by defendant Nos. 1, 2 and 3. The pleadings are clear in Paragraphs 9 & 10 of the plaint that the defendant Nos. 1 and 3 attempted to get possession of the suit land, demolishing the house of the plaintiffs, and they have assaulted the plaintiff No. 1, his wife and plaintiff No. 3, when the defendants were obstructed.

17. It is further contended that the plaintiffs have proved all the documents by adducing the evidence of 8 witnesses whereas, the defendants did not file any written statement or counter-claim or even a cross-appeal. It is submitted that the plaintiffs are not claiming the entire 9B 2K 15L of land but the plaintiffs are praying to reside peacefully in their own share of land. The case of the plaintiffs was not denied or rebutted by the defendants. Only on the basis of the cross-examination, both the Courts have erroneously come to a conclusion which is bad in law. In case of inheritance, only revenue records can prove the share of the legal heirs whereas, on the contrary, unregistered sale deeds and gift deeds cannot prove right, title in case of inheritance.

18. The prayer of the appellants were not taken into consideration and both the Courts have diverted from the prime cause of action and arrived at a sudden decision to the detriment of the plaintiffs.

Arguments for the respondents :-

19. The learned counsel for the respondent laid stress in his argument that as the title suit had no merits, it was not necessary for the defendant to file any written statement or counter-claim. The title suit was decreed in favour of the defendants as the plaintiff had no case at all and their title appeal was also correctly dismissed by the Appellate Court as the appeal was devoid of merits.

20. Instead of filing an application to set aside the ex-parte order, dismissing the suit, the plaintiffs have preferred an appeal. Without any defence, the plaintiffs have admitted about the medical sub-centre in the suit land and now the plaintiffs cannot raise grievance that the medical sub-centre was taken into consideration beyond pleadings.

21. The learned counsel for the respondent has relied on the decision of the Hon’ble Supreme Court in Vasantha (Dead) TH.LR Vs. Rajalakshmi @Rajam (Dead) TH.LRS, in Civil Appeal No. 3854/2014.

Analysis, Reasoning and Conclusion :

22. Heard learned counsel Ms. R. Choudhury for the appellants as well as learned counsel Mr. G. Bharadwaj for respondent Nos. 1, 2 and 3.

23. The remaining part of the arguments will be discussed during analysis.

24. It is submitted by the learned counsel for the respondents that the source of title by way of inheritance is not pleaded in the plaint nor introduced in evidence. It has been held by the Hon’ble Supreme Court in Vasantha (Dead) TH.LR Vs. Rajalakshmi @Rajam (Dead) TH.LRS, in Civil Appeal No. 3854/2014, that:-

                   “30. In Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) thr. LRs (2-Judge Bench), the purpose behind Section 34 was elucidated by this Court. It was observed that the purpose behind the inclusion of the proviso is to prevent multiplicity of proceedings. It was further expounded that a mere declaratory decree remains non-executable in most cases. This Court noted that the suit was never amended, even at a later stage to seek the consequential relief and therefore, it was held to be not maintainable. This position of law has been reiterated recently in Akkamma and Ors. v. Vemavathi and Ors. (2-Judge Bench).

                   31. This Court in Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and Others (2-Judge Bench) while reversing the High Court decree, observed that because of Section 34 of the SRA, 1963, the plaintiff not being in possession and claiming only declaratory relief, ought to have claimed the relief of recovery of possession. It was held that the Trial Court rightly dismissed the suit on the basis that the plaintiff has filed a suit for a mere declaration without relief for recovery, which is clearly not maintainable.”

25. Reverting back to this case, it is held that the plaintiffs have also prayed for:-

                   i) Right title, interest and possession over the land of Schedule-A be declared in the names of the plaintiffs;

                   ii) Confirmation of possession of Suit Land, Schedule-A be declared in the names of the plaintiffs;

                   iii) The sale deed No. 2245/15 to be declared illegal and fraudulent and be set aside;

                   iv) Order passed by ASO, Dhubri in Misc. Appeal No 62/2010 on 19.01.2012 be declared illegal and set aside;

                   v) The correction of the record of the suit land of Schedule-A be made in the name of plaintiffs as being legal heirs of the deceased Basaddi Sk;

                   vi) A permanent injunction against the defendant Nos. 1, 2 and 3 restraining them from interfering, disturbing and dispossessing the plaintiffs from the suit land of Schedule-A and restraining the defendant No. 4 from executing the order of defendant No. 5 passed on 19.01.2012 in Misc. Appeal No. 62/2010; and

                   vii) Cost of suit.

26. It is true that as per Section 34 of the Specific Relief Act, any person entitled to any legal character or to any right as to property may Institute a suit against any person denying his title to such character and a Court can make a declaration and the person or the plaintiff need not in such a suit ask for any further relief, but the provision debars a Court from making any declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so.

27. Here in this case, the plaintiffs have prayed for several reliefs but the plaintiff who has inherited a part of the property from his father has failed to pray for recovery of possession and cancellation of the gift deed through which admittedly land was gifted to a medical subcentre. The plaintiffs have prayed for confirmation of possession, and not for recovery of possession, as they were already in possession of the suit land.

28. Learned counsel for the appellant has relied on the decision of the High Court of Judicature at Kerala in Nalini and others-Versus-Padmanabhan Krishnan and others reported in 1993 SCC OnLine Ker 189 wherein it has been held that :-

                   “17. No doubt, the finding on the question of possession is a finding of fact. But that does not preclude this court from interfering with that finding under S. 100 of the Civil P.C. Where the findings of the court on facts are vitiated by non-consideration of relevant evidence or by essentially erroneous approach to the matter, the High Court is not precluded from interfering 1992 (1) SCJ 36.

                   18. Here, it is not a case of one or two items of relevant evidence being not considered. The entire evidence on the question of possession has been ignored by the first appellate court. It upset the finding regarding that aspect of the trial court by relying on the maxim "possession follows title".

29. Reverting back to this case, it is held that in the instant case the plaintiffs have failed to prove their exclusive title over the suit land. It is true that the plaintiff Nowshad Ali could prove his share over 1K 10L (a part of the suit land), but the plaintiffs have failed to prove their exclusive possession over the suit land. It is true that possession follows title and this Court can interfere with the facts of the case relating to title of the plaintiff but in this case at hand, the plaintiffs’ possession has been allegedly disturbed by the defendants and they have stated that they were in possession of the suit land. Their documents however failed to substantiate their claim of title over the entire suit land. This Court cannot be oblivious of the fact that old documents before the correction of citha have been produced by the plaintiffs’ side and the plaintiffs’ own witness PW-7 has stated that the plaintiffs’ father as well as the defendants’ father, were joint owners of the entire suit patta i.e. 94/85.

30. The evidence of PW-7 also reveals that the Patta No. 94 was separated into two Pattas as Patta No. 16 and Patta No. 85 and Patta No. 85 has 1B 4K 9L of land in the name of Basaddi Sk, i.e. the father of the plaintiffs. The plaintiffs however failed to substantiate how Basaddi Sk. got the Schedule A land. The other part i.e. Patta No. 16 has been recorded in the name of Isamuddin Sk. and the plaintiff No. 1 and the defendants No. 2 and 3.

31. It is trite law that recording of names in the land records does not confer title. The plaintiffs have stated that Patta No. 16 was wrongly entered as Patta No. 94(Old)/85(New).

32. This explanation of the plaintiffs of having acquired right over the Schedule A land cannot be accepted. The Misc Appeal against this grievance has already been dismissed. The plaintiffs have not submitted substantiating documents after correction of the citha as admitted by the Lat Mandal. Both the Trial Court as well as the Appellate Court of the first instance, have elaborately analyzed the evidence.

33. In view of my foregoing discussions, it is thereby held that this appeal is devoid of merits and the appeal is liable to be dismissed. I record my concurrence to the decision of the learned Trial Court in connection with Title Suit No. 60/2012 and the decision of the learned Appellate Court in connection with Title Appeal No. 24/2016. This answers the substantial question of law and it is held that the decision of the First Appellate Court is not perverse on the face of the pleading and the evidence of the plaintiffs’ witnesses.

34. Appeal is dismissed.

35. No order as to costs.

36. Send back the records of Title Suit No. 60/2012 and Title Appeal No. 24/2016.