ABHOY KANTA GOHAIN Vs. GOPINATH DEB GOSWAMI

JUDGEMENT

(1.) This appeal is by defendant 1 in a suit for declaration that the transactions referred to in the plaint related to the property described in Schedule Kha of the plaint and that the plaintiff thereby acquired title to this property though the description given thereof in the several documents was inadequate. The plaintiff also prays for rectification of the relevant documents and for possession of the property on partition by metes and bounds. The property which the plaintiff now claims as having been the real subject-matter of the several transactions is entered in the General Register of Revenue Free Estates in the Assam Valley Districts as serial No. 4, No. 10 of 1863-64 Bamuni Grant, situated in Thana Sadar, Mouza Mikir Bamuni. A certified copy of an extract from the General Register is Ex. 10 in this case. In the present plaint this property is given in Schedule Kha and there it is described as 78.68 acres out of revenue free (F.S.) land measuring 238 acres 3 karas belonging to the share of the defendant and included in F.S. Grant Serial No. 4, Grant No. 10 appertaining to Mikir Bamuni Grant Kismat in Mauza Chalchali District Nowgong.

(2.) The plaintiff's case is (1) that first in 1919 and then again in 1923, defendant 1 gave this property along with others in mortgage to him to secure repayment of loans of Rs. 5000 and Rs. 3300 respectively, (2) that in the mortgage deeds this property was described as 238 acres 3 karas of land included in Bamuni Fee Simple Grant No. 4 of Chalchali Mauza in District Nowgong within the jurisdiction of police station Chamaguri and Sub-Registry Nowgong, (3) that on 10 April 1929 all the properties covered by the two mortgages referred to above were sold by defendant 1 to the plaintiff at the price of Rs. 15,000, (4) that in the sale deed the descriptions of the properties including the property now in dispute were copied from the mortgage deeds, (5) that on 22 November, 1931, the plaintiff instituted the Title suit No. 20 of 1931 in the Court of the Subordinate Judge, Nowgong, Assam Valley Districts, for recovery of possession of the properties thus purchased by him in, 1929, (6) that in the plaint of that suit the description of the properties was taken from the sale deed of 1929 and thus in it the present property was described as 238 acres 3 karas of land in the share of defendant 1 and now in his possession out of the lands included in serial No. 4 Bamuni Fee Simple Grant No. 10 in Mauza Chalchali, (7) that the suit was decreed in favour of the plaintiff on 15 December 1933 and in the decree this property was described as in the plaint of that suit; (8) that in course of the proceedings in execution of this decree, the Amin who went to deliver possession of the decretal properties reported that the property pointed out in the locality as corresponding to the above description was situated in Mikir Bamuni Grant Kismat, but that the description given in the decree was inadequate to identify the decretal land with this property in the locality, (9) that the executing Court ordered delivery of possession of this land in Mikir Bamuni Grant, Kismat as the decretal land; (10) that on appeal by defendant 1 the learned District Judge held that as the description of the property given in the decree was inadequate to identify the decretal land with the land in Mikir Bamuni Grant Kismat, it was beyond the competence of the executing Court to enquire and decide if this was the real subject-matter of the decree and of the antecedent transactions, and that for the deter, mination of this question the only course-left to the decree, holder was to have recourse to a suit in a proper Court; (11) that delivery of possession of the property was thus refused by the appellate Court on 24 August 1986 on this ground of want of jurisdiction; and (12) that this order of the appellate Court was ultimately confirmed by the High Court on 17 May 1937.

(3.) The plaintiff, therefore, instituted the present suit on 29 May 1939 with the above allegations for the reliefs stated above. The present appellant appeared and filed a written statement alleging inter alia that the land as described in the decree in Title Suit No. 20 of 1981 and in the antecedent transactions was a different property distinct from the land now claimed in the present suit and that all the antecedent transactions and the above decree related not to the land now claimed but to the other land correctly and adequately described in the decree and in the various other documents referred to in the plaint. The learned Additional Subordinate Judge held that there was no necessity for the rectification of the several documents mentioned in the plaint and of the decree in Title Suit No. 20 of 1981 and consequently dismissed the plaintiff's claim for rectification of these documents. As regards the rest of the case of the plaintiff, the learned Judge decreed the suit finding that defendant 1 had no property at Bamuni village satisfying the description given in the several documents named in plaint and that all the transactions and the decree in the Title Suit No. 20 of 1981 related to the land described in Schedule Kha to the present plaint. It is no longer disputed that all the transactions beginning with the mortgage of 1919 and ending with the decree in Title Suit No. 20 of 1931 were intended by the parties to relate, and purported to refer to the land of which the possession was delivered to the plaintiff by the Amin in Title Execution case No. 5 of 1935 and which is now described in Schedule Kha to the present plaint and is covered by the entry in the General Kegister of Be venue Free Estate in the Assam Valley Districts excluding Goal-para, a certified copy of the extract from which is Ex. 10 in this suit.