w w w . L a w y e r S e r v i c e s . i n



Madhusudhan Paul & Others v/s Ganesh Biswas

    CRP No. 357 of 2010

    Decided On, 02 June 2015

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE HRISHIKESH ROY

    For the Petitioners: D. Mazumdar, Sr. Advocate, S.C. Biswas, R. Sarma, Advocates. For the Respondent: P. Bhattacharya, P.P. Dutta, A. Bhattacharya, R. Bora, Advocates.



Judgment Text

Judgment And Order:

1. Heard Mr. D. Mazumdar, the learned Senior Counsel appearing for the petitioners (defendants). Also heard Ms. P. Bhattacharya, the learned Counsel for the respondent (plaintiff).

2. The respondent applied for recovery of possession of the suit land under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as 'the S.R. Act'), where he pleaded that he was in possession of the suit land from where he was forcibly dispossessed by the defendants on 18.2.2009. According to the plaintiff, the defendants earlier made an unsuccessful attempt to dispossess the plaintiff on 31.12.2008 but since the authorities failed to take any action on the plaintiff’s complaint, the embo

Please Login To View The Full Judgment!

ldened defendants dispossessed the plaintiff on 18.2.2009. The defendants contested the suit along with a counter claim where they pleaded that the plaintiff transferred the suit land to one Prafulla Das on 7.12.2001 and the said Prafulla Das in turn sold the possessory right on 23.4.2003 to the defendant No.1 Madhusudhan Paul. According to the defendants the plaintiff had filed a false case and therefore they made a counter claim for declaration of possession in their favour.

3.1 The learned Munsiff No.1, North Lakhimpur noted the evidence of the witnesses including the evidence of D.W.4 Golap Bhuiya who stated that he sold the suit land to the plaintiff about 10/11 years ago for Rs.5,000/- but the plaintiff gave up possession for consideration of Rs.8,500/- to Prafulla Das and Krishna Das, through an unregistered Sale Deed. The two purchasers in turn sold the suit land for Rs.9000/- to the defendant No.1 by an unregistered Sale Deed executed on 23.4.2003 and since then, the defendants are in possession of the suit land.

3.2 The defendants side failed to adduce any evidence from Prafulla Das and Krishna Das and therefore the Court inferred that the defendants are trying to conceal the truth and accordingly the Court held that the plaintiff was in possession but was dispossessed in December 2008. Accordingly since the suit was filed on 21.2.2009 within 6 months of dispossession, restoration of the land to the plaintiff was ordered through the impugned judgment dated 3.6.2010 (Annexure-D) by the learned Munsiff No.1, North Lakhimpur.

4.1 Assailing the legality of the impugned verdict, Mr. D. Mazumdar, the learned Senior Counsel submits that on claims for restoration of possession under Section 6 of the S.R. Act, the Court has to give a clear finding on whether the plaintiff was in possession and 2ndly the precise date when he was dispossessed, in order to determine whether the suit was filed within 6 months from the date of dispossession. But in the instant case, the learned Trial Judge failed to specify any date of dispossession. Moreover the plaintiff’s claim of being dispossessed on 18.2.2009 was never endorsed by the Court.

4.2 The defendants project that the plaintiff as the P.W.1 had stated that he put one Dilip Das in possession over the suit land and accordingly it is argued that if another person was put in possession, the plaintiff could not have been in possession when the defendants allegedly dispossessed him.

4.3 Referring to the evidence of the witnesses on the Panchayat deliberating on the dispute between the plaintiff and the defendants which lasted for about 3 weeks, Mr. Mazumdar submits that an impossible version was projected by the plaintiff when he filed the suit on 21.2.2009 with the pleading that he was dispossessed 3 days previously on 18.2.2009. The Counsel projects that if the Panchayat members were deciding on the dispute between the parties for several weeks, the version of dispossession just 3 days before the suit came to be filed can’t be true.

5.1 Representing the respondent (plaintiff), Ms. P. Bhattacharya, the learned Counsel on the other hand submits that if the defendants purchased the suit land from Prafulla Das and Krishna Das on 23.4.2003, the evidence of these vendors should have been adduced by the defendants. But as these vital witnesses have been withheld, the respondent argues that the defendants are not coming forward with the real truth in the matter.

5.2 The learned Counsel further submits that the proceeding under the S.R. Act are summary in nature and if evidence is available to show wrongful dispossession of the plaintiff, the Court can order for restoration of possession in a suit filed under Section 6 of the S.R. Act.

6. In my perception the most glaring omission in the impugned judgment is that there is no indication of the precise date, on which the plaintiff was dispossessed. This date is relevant in a proceeding under Section 6 of the S.R. Act since a suit for recovery can be allowed only when, it is filed within 6 months of dispossession. But unfortunately the learned Trial Judge failed to specify the precise date of dispossession of the plaintiff. Moreover while the pleaded case of the plaintiff is that he was dispossessed on 18.2.2009, the evidence of some of the witnesses indicate that dispossession happened on 31.12.2008. But there was no reconciliation of those 2 different dates by the learned Trial Court.

7. The plaintiff in his cross-examination as P.W.1 admitted that he put one Dilip Das in possession of the suit land and therefore this aspect required special attention of the Court as in the event of possession being handed over to Dilip Das, the dispossession if any, could not have been of the plaintiff but of someone else. But the learned Court failed to note the significance of this testimony of the plaintiff.

8. During the trial some of the witnesses including the P.W.1 testified about the Village Panchayat attempting to resolve the dispute between the plaintiff and the defendants. According to the plaintiff, the Panchayat Members deliberated on the matter for about 3 weeks and only when the Panchayat verdict was against the plaintiff, he decided to file the suit for recovery of possession. If the version of the P.W.1 is believed and the Panchayat proceeding on the dispute between the plaintiff and the defendants lasted for 3 weeks, the plaintiff’s claim of filing the suit on 21.2.2009 within 3 days of dispossession on 18.2.2009 can’t be true since the two versions can’t be reconciled. The evidences of the witnesses on the Panchayat proceedings show that the plaintiff twisted the facts for his own advantage.

9. From the above discussion it clearly emerge that several inconsistent versions were available and they were neither explained by parties nor reconciled by the Trial Judge. Moreover the Court didn’t specify the exact date of dispossession.

10. In view of the above inconsistencies and noticing the abrupt illogical conclusion of the Court, I feel that unmerited direction for restoration of possession by invoking the powers under Section 6 of the S.R. Act was issued. Therefore I hold that the impugned decision of 3.6.2010 (Annexure-D) in the Title Suit No.5/2009 is legally unsustainable and the same is therefore quashed. The Revision petition is accordingly allowed by leaving the parties to bear their respective cost.

11. The Registry is directed to return the L.C.R. with a copy of this order to the concerned court.
O R