Phanidhar Kalita vs Saraswati Devi & Anr

3. Respondent no.1/defendant no.1 filed written statement stating that she purchased 1 bigha of land from Bati Ram on 4.8.1955 and constructed a thatched house and she has not encroached on the suit land as alleged by the appellant/plaintiff.

6. The trial Court framed 17 issues and the appellant/plaintiff examined himself and examined 5 other witnesses and marked 22 documents on his side. The respondents/defendant no.1 and 2 examined themselves and examined 4 other witnesses on their side. The Trial Court on consideration of the oral and documentary evidence dismissed the suit as well as the counter claim. The appellant/plaintiff preferred an appeal against the dismissal of the suit in Title Appeal no.8 of 1998 before the Civil Judge (Senior Division), Darrang at Mangaldoi and the respondent no.2/defendant no.2 preferred a cross objection and the Lower Appellate Court dismissed both on contest. The appellant/plaintiff preferred Second Appeal in R.S.A. no.116 of 2000 and the Guwahati High Court held that the appellant/plaintiff had title to the suit property in schedule-1 and partly allowed the appeal. The appellant/plaintiff herein filed Review Petition no.1 of 2008 stating that since the main relief had been granted, the consequential relief for khas possession of schedule-2 property ought to have been granted to him. The High Court dismissed the Review Petition. Challenging the rejection of the relief of recovery of khas possession of schedule-2 property and the relief of permanent injunction in the Judgment as well as Review, the appellant/plaintiff has preferred the present appeals to this Court.

(iii) Whether the learned trial court was justified to brush aside the amin commissioner’s report by observing that it was incomplete and biased?” By an elaborate judgment the High Court held that the findings of the courts below that the appellant/plaintiff had failed to prove his registered sale deed dated 12.7.1977 are perverse and upheld the title of the appellant/plaintiff to the suit property in schedule-1 and accordingly partly allowed the appeal by setting aside the portion of the judgment and decree of the courts below in that regard. In other words, the High Court answered the substantial question of law no.1 only and omitted to answer the other two substantial questions of law cited supra. The appellant/plaintiff pointed out the said omission by filing Review in Review Petition no.1 of 2008. However, the High Court dismissed it by holding that no ground is made out for Review.

11. In the interest of justice, we deem it fit to remit the matter to the Trial Court for fresh adjudication with regard to the reliefs of recovery of possession and permanent injunction only.

12. The appeals are allowed and the impugned judgment and decree of the High Court, declining the reliefs of recovery of khas possession of schedule-2 property and permanent injunction, are set aside and the matter is remitted to the Trial Court for fresh adjudication with regard to the said reliefs only and the parties are permitted to adduce evidence and the Trial Court after adjudication shall pass a comprehensive decree in respect of all the reliefs claimed in the suit. No costs. Since the title suit is of the year 1987 the Trial Court shall endeavour to dispose of the same as expeditiously as possible preferably within a period of six months from the date of receipt of records.

March 14, 2014.