In Kusum Chandra Debbarma v. Sunil Chandra Debnath & ors. AIR
2012 Gauhati 88, it was held by Justice S. C. Das that—“The plaintiff
has brought on record Ext. 1, a title deed, executed by defendant no.-2,
transferring the suit land and that is legally proved. It is the settled
principle of law that title follows possession. If a person claims title to an
immovable property, he has to prove his possession thereof as
otherwise such title has got no value at all. However, that does not
mean that title thereof has been extinguished because of the person
not being in possession. The decision of the first Appellate court on this
point was, therefore, wrong that since the plaintiff could not prove his
possession his title also should go and the registered title deed has no
value at all.”
GAUHATI HIGH COURT
Judge : S.C. DAS
Decided On : Mar-21-2012
Case Number : RSA No.10 of 2002
Appellant : Kusum Chandra Deb Barma
Respondent : Sunil Chandra Debnath and Others
1. This second appeal was admitted for hearing on the following substantial questions of law:
i) Whether refusal to recovery of possession itself can be a ground to refuse declaration of title?
ii) Whether the suit can be dismissed on finding of non-joinder of parties without giving opportunity to the other parties to the suit?
2. Heard learned senior counsel, Mr. K.N. Bhattacharjee, assisted by learned counsel Mr. S. Acharjee for the appellant and learned counsel, Mr. P.K. Pal for the respondents.
3. Brief fact, necessary for disposal of the second appeal, may be stated thus:
The appellant, as plaintiff, instituted Title Suit No.3/96 in the Court of Civil Judge (Jr. Division), Kamalpur, North Tripura seeking declaration of title and recovery of Khas possession of the suit land prescribed in schedule “Kh” to the plaint recorded in Khatian No.150 Plot No.707 of Mouja - Salema measuring 1.60 acres.
The case of the plaintiff was that he purchased the suit land from defendant No.2, Paresh Ch. Deb Barma on payment of valuable consideration by a registered sale deed, executed by defendant No.2 on 15.12.1989 and registered with the office of Sub-Registrar, Kamalpur vide No.-1286 dated 18.12.1989 and he got delivery of possession thereof from the defendant No.2. Thereafter, he cultivated the land and grown paddy on the suit land but he was forcibly dispossessed by the defendant Nos.1 and 3 on 17th Kartik, 1990 and his paddy plants were destroyed. He, therefore, filed the suit for declaration of title and recovery of possession.
4. The defendants contested the suit by filling written statement denying all the averments made in the plaint inter alia stating that the defendant No.2 never executed any such sale deed on receipt of consideration from the plaintiff and the thumb impression appeared in the sale deed was not of defendant No.2 Paresh Chandra Deb Barma and that the plaintiff in collusion with his relative, one Samparai Deb Barma, arranged the sale deed and the plaintiff only possessed the suit land and the defendant No.2 never handed over the possession to plaintiff. It was further contended by the defendants that the Khatian No.150 in the name of the defendant No.2 was clearly reflecting that the land recorded in plot Nos.454, 457 and 707 were possessed by Sonamani Debnath, Radhamadhav Debnath and Sukumar Debnath as against Section 187 of TLR and LR Act and while those persons were in possession, the claim of the plaintiff that the defendant NO.2 handed over the possession to the plaintiff was cock and bull story and that such story should be disbelieved.
5. The trial court considering the pleadings of the parties framed the following issues:
“(1) Is the suit maintainable?
(2) Is the suit barred by limitation?
(3) Is the suit properly valued and sufficiently stamped?
(4) Has the plaintiff any cause of action to institute the suit?
(5) Is the date of Sub-Kabla dated 15.12.1989 is a forged document?
(6) Has the plaintiff any right, title and interest over the suit land?
(7) Is the suit bad for non-joinder and mis-joinder of parties?
(8) Is the plaintiff entitled to get a decree for khas possession?
(9) To what relief/reliefs the parties are entitled?
6. In course of trial the plaintiff examined himself as PW.1 and also examined 4 (four) more witnesses and in support of his case he proved the registered Title Deed No.1-1286 dated 28.12.1989 which was marked as Ext.1. The defendants examined 2 (two) witnesses including defendant ANo.2 and relied on a copy of khatian No.150 in the name of defendant No.2 and that was marked as Ext.A.
7. Learned Civil Judge (Jr. Division), Kamalpur, decided issue Nos.2, 3, 4, 5, 6, 7 and 9 in favour of the plaintiff but issue No.8 against the plaintiff and therefore, by impugned judgment dated 22.08.2000 held that the plaintiff has got right, title and interest over the sit land but since he could not prove his possession and dispossession from the suit land prayer for recovery of possession was rejected.
8. The defendants preferred Title Appeal No.1/2000 in the court of Additional District Judge, Kamalpur challenging the judgment and decree passed by learned Civil Judge (Junior Division) and the learned Additional District Judge, by impugned judgment, dated 25.04.2001 allowed the appeal and set aside the judgment and decree of the trial Court on the ground that the plaintiff since could not prove his possession and dispossession over the suitland and since the persons whose names transpired in Ext.A.1 the Khatian, were not made party, the plaintiff could not prove his case and therefore, the appeal was allowed and the judgment and decree was set aside.
9. Learned senior counsel, Mr. Bhattacharjee, appearing for the plaintiff, submitted that the trial Court has held that the plaintiff could not prove his possession to the suit land and dispossession therefrom by the defendant Nos.1 and 3 but the title of the plaintiff over the suit land has been established by dint of Ext.1 and the finding of the first appellate Court that since the plaintiff could not prove his possession and dispossession his title also should be deemed to have not proved was a wrong decision altogether, and therefore, the judgment passed by the first appellate court is liable to be set aside. He has further submitted that there was no issue framed for non-joinder of any necessary party and in the absence of such issue the decision of the first appellate court that the plaintiff did not include the persons whose names transpired in Ext.A, the Khatianwas absolutely wrong and therefore, this Court in second appeal should interfere in the decision.
10. On the other hand, learned counsel, Mr. P.K. Pal, appearing for the respondents, has submitted that the plaintiff placed on record Ext.1, the Title Deed, alleged to have executed by defendant No.2 but defendant No.2 denied execution of such deed and also denied handing over of such possession to the plaintiff and while the plaintiff has failed to prove his possession and dispossession thereof in the suit land, the decision o the first appellate court in dismissing the suit as a whole was a right decision. Learned counsel, however, admitted that there was no issue of non-joinder of necessary parties but has submitted that since in Ext.A it has clearly transpired that some other persons were in possession of the land, recorded in the Khatian, it should be presumed that the plaintiff was never in possession of the suit land and the story of possession and dispossession was completely false.
11. Both the substantial questions of law formulated by this Court are taken up together for decision.
Admittedly, Paresh Chandra Deb Barma, the defendant No.2, was the rightful owner in possession of the suit land including other land recorded in Khatian No.150 of Mouja Salema. The plaintiff’s case is that he purchased the land from Paresh Chandra Debbarma by dint of Ext.1, the sale deed executed and registered on 15.12.1989 and 18.12.1989 respectively. The plaintiff proved the registered deed examining himself, the deed writer and the attesting witness PW.3. No doubt, while the executants of the deed denied execution, burden was heavily on the plaintiff to prove the genuineness of the deed. Defendant No.2 put LTI in Ext.1 and this LTI put by him had been proved and marked as Ext.1/1 (series). The defendants though taken a plea that the thumb impression if examined by the expert it will reveal that it was not the thumb impression of defendant No.2 and on accepting the pleadings the court directed respondents to deposit the cost for taking expert opinion but ultimately defendants did not deposit the cost and therefore, the expert opinion could not be taken for the fault of the defendants. Under such circumstances, though defendant No.2 denied execution of such deed but the presumption of such registered instruments goes against the defendants and in favour of the plaintiff that the deed was actually executed by defendant No.2 in favour of the plaintiff.
12. The plaintiff has brought on record Ext.1, a title deed, executed by defendant No.2, transferring the suit land and that is legally proved. It is the settled principle of law that title follows possession. If a person claims title to an immovable property, he has to prove his possession thereof as otherwise such title has got no value at all. However, that does not mean that the title thereof has been extinguished because of the person not being in possession. The decision of the first appellate court on this point was, therefore, wrong that since the plaintiff could not prove his possession his title also should go and the registered title deed has no value at all.
13. Admittedly, there was no issue on non-joinder of necessary parties. In Ext.A the names of Sonamani Debnath, Radhamadhav Debnath and Sukumar Debnath transpires and that does not mean that they ought to be a party to the suit and for non-inclusion of those persons as party to the suit, it shall fail. Such decision of the first appellate court is contrary to the provisions prescribed in Order I, Rules 9 and 13 of the Code of Civil Procedure. Since the point was not raised at the time of trial and no issue was framed thereof, the first appellate court would not consider it as a ground for dismissal of the judgment and decree passed by the trial Court. The decision of the first appellate court was therefore absolutely wrong and is liable to be interfered. The judgment and decree passed by the learned Additional District Judge, Kamalpur, North Tripura in Title Appeal No.1/2000 is accordingly set aside. The judgment and decree passed by the learned Civil Judge (Junior Division), Kamalpur, North Tripura in Case No.TS.3/1996 is upheld.
13A. The appeal accordingly stands dismissed of. No cost.
14. Send back the LC record along with a copy of this judgment.
Order accordingly.
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