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Assam Schedule VII, Form No 132
HIGH COURT FORM NO. (J) 2
HEADING OF JUDGMENT IN ORIGINAL SUIT
In the Court of the Munsiff No 3, At Guwahati
District: Kamrup (M)
Present:
Munmee Neog, AJS
Wednesday, the 17th day of December, 2014
Title Suit No 227/2013
1. Smti. Sushila Devi
w/o Sri Shankar Singh
R/O Sarab Bhati,
Guwahati,Kamrup…………………………………….……Plaintiff
Versus
1. Sri Deben kakati
2. Sri Bhaben Kakati
3. Md. Hidish Ali
4. Sri Ananda Singh
5. Sri Dibakar Barman…………………………….....Defendant(s)
6. Sri Somnath Boro…………………………Proforma Defendant
This suit/ case coming on for final hearing on 4/12/2014 in the
presence of
Sri H.K Sharma……………..….Learned Counsel for the Plaintiff(s)
And,
None for the Defendant
And having stood for consideration to this day the Court delivered the
following judgment:Typed by me:
Munmee Neog ,Munsiff No. 3,Kamrup(M)
Kamrup(M)
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JUDGMENT
1.
This is a suit under Section 6 of Specific Relief Act, 1963 for
recovery of possession and permanent injunction.
PLAINTIFF’S CASE:
2.
The case of the Plaintiffs in brief is that a plot of land measuring 1
Katha 5 lecha covered by Dag No. 114 situated in Village- Sahar
Ulubari Part I under Mouja- Ulubari in the District of Kamrup,
Assam (described as Schedule A ) is a Government land which is in
possession of the plaintiff since 1975. To the northern side of the suit
land there is an Assam Type House covering an area of 10 lechas
constructed by the Plaintiff, which was assessed by the Guwahati
Municipal Corporation. Plaintiff has been paying holding tax from
the date of assessment till date. That toujibahi revenue has also been
paid by the Plaintiff which shows possession of the Plaintiff over the
suit land .It has been contended by the Plaintiff that in the year 1997
when he has already completed 22 years of occupation over the suit
land, notice was issued to the plaintiff in connection with Eviction
Case No 46/97(B) by the Office of Deputy Commissioner,
Kamrup(M) directing him to vacate the suit land. The plaintiff has
preferred an Appeal against the said Eviction Case before the Learned
Assam Board of Revenue and vide order and judgment passed in that
Appeal the impugned notice arising out of the Eviction Case was set
aside. Thereafter the Plaintiff also approached the Honorable Gauhati
High Court by way of filing W.P (C) No 5003/2005 whereon the
Honorable Gauhati High Court ordered the State of Assam and its
subordinates not to evict the Plaintiff/petitioner without following
procedure of law.
3.
That on 15/6/2013 the plaintiff along with her family went to Bihar
leaving her house lying on the suit land and when she returned to
Gauhati on 24/6/2013 found that some houses were constructed
covering about 15 lechas (described as Schedule B )out of the total
land in possession of the plaintiff which falls in the Southern side of
Typed by me:
Munmee Neog ,Munsiff No. 3,Kamrup(M)
Kamrup(M)
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the Schedule A land. Plaintiff on 25/6/2013 found that three houses
were erected over the suit land and on inquiry came to know that it is
the proforma Defendant Sri Somnath Boro, at whose instance the
houses were constructed and at whose instance the nuisance was
occurred, but the fact remains that the Proforma Defendant has not
entered the suit land and it the other defendants who continue to have
possession over the Schedule B land. Accordingly, the plaintiff prays
for recovery of possession of the Schedule B suit land (which is a part
of Schedule A land) by evicting the Defendants from the suit land
and also prays for delivery of khas possession of the same. The
plaintiff further apprehends that the Defendants with their men and
muscle power are likely to dispossess the Plaintiff from the remaining
land in Schedule A and as such claims the relief of permanent
injunction in respect of the entire Schedule A land of 1 katha 5 lecha
against the Defendants.
4. Proceeding of the suit:`
After receiving summons the Defendant No 1 and 2 appeared in the suit
and instead of filing written statement filed a Petition stating thereby
that they have no intention even to occupy the suit land which is
admittedly a Government land and
also stated that they have no
interest over the suit land. Contending that the suit land is now under
possession and occupation of Water Resource Department, Govt. Of
Assam after the plaintiff being evicted from the same by the
Government, the Defendant No 1 and 2 prayed before Court to
adjudicate the matter in absence of them. It appears from record that the
Plaintiff has not given any objection to such Petition and accordingly
same being disposed of ordering to proceed the suit ex parte against the
Defendant No. 1 and 2 in view of the prayer of the Defendants to
proceed the suit in absence of them. Case record also reveals that
during subsequent proceeding of the suit the plaintiff himself filed
another Petition under Order 1 Rule 10(2) of CPC praying for striking
off the names of Defendant No.s 3 to 5 from the suit as the Defendant
No 3, 4 and 5 left the suit land and as such there remain no necessity to
proceed against them and Court has allowed the same thereby striking
off the names of Defendant No 3, 4 and 5. Whereas, the Defendant No
Typed by me:
Munmee Neog ,Munsiff No. 3,Kamrup(M)
Kamrup(M)
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6 though appeared upon receiving summon, but failed to file any
written statement and as such the suit proceeded ex parte against him.
5.
The Plaintiff has adduced evidence on affidavit of herself and three
other witnesses namely Sri Shankar Singh ,Smti Suni Devi ,Smti
Ayesha Khatoon and Sri Sukumar Rai respectively as PW 1, PW2,
PW 3, PW 4 and PW 5.The Plaintiff as PW 1 in her evidence in chief
reiterated all the facts averred in the Plaint and has adduced following
documentary evidence in support of her claimExhibit 1 and 2: Tax paying Receipts issued by Gauhati Municipal
Corporation
Exhibit 3: Certified copy of Order dated 27/7/2001 passed by the
Assam Revenue Board
Exhibit 4: Copy of order passed by HonourableGauhati High Court i
the year 2005
Exhibit 5: Copy of Electricity Bill ; whereas all the other witnesses
have supported the averments as raised by the Plaintiff PW1.
6.
Now, coming to the provision of Section 6 of Specific Relief Act,
1963 it provides that no suit shall be brought after expiry of six
months from the date of dispossession in case of a suit by person
dispossessed of immovable property without his consent otherwise
than in due course of law. Thus, this provision has the implication
that the person who has brought a suit for recovery of possession
must have to prove through his evidences that he was in possession of
same prior to six months of the alleged dispossession. If we scrutinize
the evidence on record it appears to me that Exhibit 1 and 2 –the two
of the Tax payment Receipts of Guwahati Municipal Corporation are
of 2006 and 2008. Moreover, that two exhibits does not show
anything with regard to the plaintiff’s possession over the suit land
covered by Dag No 114,situated in the Villlage Sahar - Ulubari Part I
under Mouja- Ulubari in the District of Kamrup as claimed by the
Plaintiff. Similar is the position in case of Exhibit 5 the Electricity
Payment Bill which is of the year 2008 and it has been admitted by
PW 1 the Plaintiff that same is in respect of a different address and
not relates to the suit land. So, in my opinion Exhibit 5 also does not
Typed by me:
Munmee Neog ,Munsiff No. 3,Kamrup(M)
Kamrup(M)
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at all shows possession of the plaintiff over the suit land at any point
of time. Again, Exhibit 3 the Copy of Order of Assam Revenue
Board passed in the year 2001 and, Exhibit 4 the copy of order
passed by Honourable Gauhati High Court (which directs the State
Government not to evict the Petitioner from the suit premises) was
passed in the year 2005 and from both these documents it cannot be
ascertained that the plaintiff is in possession of the suit land prior to
six months from the date of alleged dispossession in the year 2013 as
claimed by her.
7.
Thus, upon careful analysis of the exhibits adduced by the Plaintiff
nothing could be extracted which shows possession of the plaintiff
over the suit land prior to six months from the date of alleged
dispossession in the year 2013. It can very well be said that with the
documentary evidences adduced by the Plaintiff she fails to prove
that she was in possession of the suit land prior to six months from
the time of her dispossession from the same in the year 2013.
Moreover, it is also very pertinent to reiterate here that the Plaintiff
during the proceeding has abandoned her claim against the Defendant
No 3,4 and 5 submitting before Court that all the three defendants, i.e
Defendant No 3,4 and 5 has already left the suit land, whereas , she
herself in her pleading has admitted the fact that the Proforma
Defendant No 6 had never entered into the suit land. On the other
hand, in case of Defendant No 1 and 2, both the Defendants
themselves by filing petition had submitted before this Court that
they have no interest over the suit land and even no intention to
possess the suit land same being a Government land and to that
submission of the Defendants the plaintiff had raised no objection.
Moreover, it is also worthy to be mentioned here that while filing the
suit the Plaintiff has simultaneously filed a petition for temporary
injunction under Order 39 Rule 1 and 2 against the Defendants , but
later on she withdraw the same on the ground of same becoming
infractuous. Thus, analysing the aforesaid factual circumstance also I
am of the opinion that at present there is no cause of action against
any of the Defendants as admittedly none of the defendants have any
claim over the suit land.
Typed by me:
Munmee Neog ,Munsiff No. 3,Kamrup(M)
Kamrup(M)
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8.
Thus, the sum and substance of all above point towards the
conclusion that though the defendants have not denied the averments
of the Plaintiffs by contesting the suit either by filing written
statement or by participating in trial, the plaintiff even miserably
failed to substantiate her own pleadings by adducing necessary
evidence. Hence, under the present circumstances of the suit I find no
sufficient reason to grant relief of recovery of possession of the suit
land as claimed by the Plaintiff .As such no question arises at all as to
grant relief of permanent injunction in respect of the suit land against
the Defendants.
ORDER
9.
The suit is dismissed ex parte against the Defendant 1,2 and Proforma
Defendant No 6.
Under the factual circumstances of the suit as discussed above since
the Defendant No 1 and 2 have already submitted that they have no
interest over suit land, the names of Defendant No 3,4 and 5 have
been strike off from the suit on the prayer of plaintiff
and as
admittedly the Proforma Defendant No 6 has not dispossessed the
Plaintiff, so I find no reason to impose any cost upon the Defendants.
Prepare decree accordingly.
Given under my hand and the seal of this court on this the 17 th day of
December, 2014 at Guwahati.
Munsiff No 3
Kamrup (M)
Guwahati
Typed by me:
Munmee Neog ,Munsiff No. 3,Kamrup(M)
Kamrup(M)
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APPENDIX
A) Plaintiff’s Witnesses:
PW 1:
Smti Sushila Devi(Plaintiff)
PW 2:
Sri Shankar Singh
PW 3:
Smti Suni Devi
PW4:
Smti Ayesha Khatoon
PW 5:
Sri Sukumar Rai
B) Plaintiff’s Exhibits:
Exhibit 1 and 2:
Tax paying Receipts issued by Gauhati
Municipal Corporation
Exhibit 3:
Certified copy of Order dated 27/7/2001
passed by the Assam Revenue Board
Exhibit 4:
Copy of order passed by HonourableGauhati
High Court in the year 2005
Exhibit 5:
Copy of Electricity Bill
C) Defendant’s Witnesses:
NIL
D) Defendant’sExhibits:
NIL
Typed by me:
Munmee Neog ,Munsiff No. 3,Kamrup(M)
Kamrup(M)
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Munsiff No. 3
Kamrup (M)
Gauhati
Typed by me:
Munmee Neog ,Munsiff No. 3,Kamrup(M)
Kamrup(M)