High Court
Case Details
RSA 106/2002 BEFORE HON’BLE MR JUSTICE B. P KATAKEY JUDGMENT & ORDER(ORAL) This appeal by the plaintiff is directed against the judgment and decree dated 2 .3.2002 passed by the learned Civil Judge (Sr. Divn.), Sonitpur at Tezpur in Tit le Appeal No. 6/1996, partly allowing the appeal preferred by the plaintiff/appe llant by setting aside the judgment and decree passed by the learned Sadar Munsi ff on 14.12.1995 in Title Suit No. 79/1993 decreeing the counter-claim of the de fendant but dismissing the suit of the plaintiff.
Legal Reasoning
2. The appellant, as plaintiff, instituted the title suit No. 79/1 993 for declaration of right, title and interest over the land measuring 1 bigha 2 kathas 9 leches out of the total land of 8 bighas 8 lechas covered by dag No. 162 under periodic patta No. 22 of village Asurmari under Mouza Dhekiajuli cont ending inter alia that he purchased the said land from Ranjit Ghosh and Ajit Gho sh, who are the sons of late Kalimohan Ghosh, vide registered sale deed No. 801 dated 9.8.89. It has been pleaded in the plaint that the father of vendor Kalimo han Ghosh purchased the land measuring 2 bighas 4 kathas 18 lechas from one Ab dul Samed Khan by registered sale deed No. 1512 on 17.6.1963 who also purchased the land measuring 2 bighas, 3 kathas 7 leches from Sukur Ali and Muslim Sheikh by registered sale deed No. 1231 on 16.5.59. It is also the case of the plaintif f that Sukur Ali and Muslim Shiekh purchased the land measuring 2 bighas 3 katha s 7 leches from one Md. Goijuddin Sikdar, son of Rajab Ali upon execution of reg istered sale deed No. 323 dated 3.2.59. It is the further case of the plaintiff that out of 2 bighas 4 kathas 18 leches of land, Kalimohan’s two sons Ranjit Gho sh and Ajit Ghosh while transferred the land measuring 1 bigha 2 kathas 9 leche s in favour of the plaintiff, rest 1 bigha 2 kathas 9 leches was transferred in favour of Jiban Dutta and Krishna Dutta and accordingly the name of all the pur chasers were mutated in the revenue records. It has been further pleaded that on 27.02.1993 the defendant Md. Tamijuddin forcibly trespassed into the land of th e plaintiff and erected thatched huts, for which the proceeding u/s 145 CrPC was initiated and the land was attached. The plaintiff, therefore, filed the afores aid suit for declaration of right, title and interest and for declaration of kha s possession by evicting the defendants from the same and also for permanent inj unction. 3. The respondent/defendant on receipt of the summons appeared and filed written statement, contending inter alia that Ranjit Ghosh and Ajit Ghosh had no right to sell the property as they are not the owners of the suit land. T he defendant has also denied the allegation of transfer of the property and on the other hand stated that he has been continuously possessing the suit land by constructing residential houses thereon which originally belonged to Tasem Ali Shiekh and late Kamini Begum wife of Jonab Ali. 4. The defendant has also filed the counter-claim for declaration o f right, title and interest and also for declaration that the sale deed 9.8.89 ( ext. 1) executed by Ranjit Ghosh and Ajit Ghosh in favour of the plaintiff is vo id, inoperative and not binding, apart from confirmation of possession. 5. amed the following issues for determination :- i) Whether the suit is maintainable in the present form ? ii) Whether there is any cause of action for the suit ? The trial court on the basis of the pleadings of the parties, fr iii) Whether the suit is barred by law of limitation ? iv) parties ? Whether the suit is bad due to non-joinder and mis-joinder of necessary v) vi) Whether the suit is properly valued ? Whether the plaintiff has any right, title and interest over the suit land ? vii) 7.2.93 and whether the defendant is liable to be evicted from the suit Whether the defendant dispossessed the plaintiff from the suit land on 2 land ? viii) Whether the plaintiff is entitled to the decree as prayed for ? Whether the counter claim is maintainable and whether the defendant is e ix) ntitled for decree as prayed for in the counter-claim ? x) To what relief/reliefs the parties are entitled to ? 6. The plaintiff in order to prove his case, examined 7 witnesses a part from proving a number of documents including the Sale Deeds executed by Goi zuddin Sikdar in favour of Sukur Ali and Muslim Shiekh, by Sukur Ali and Muslim Shieikh in favour of Abdul Samad Khan and by Samed Khan in favour of father of Ranjit and Ajit, who transferred the land in favour of the plaintiff. The defe ndant also examined 3 witnesses and proved a number of documents namely the reve nue records. 7. Upon appreciation of the evidence on record adduced by the parti es, the trial Court while dismissing the suit of the plaintiff, has decreed the counter-claim filed by the defendant/respondent. Being aggrieved, the plaintiff preferred Title Appeal No. 6/1996, which has been partly allowed by setting asid e the decree passed by the trial court on the counter-claim filed by the defenda nt, however affirming the judgment and decree passed by the trial court in so fa r it relates to dismissal of the suit of the plaintiff. Hence the present appeal . 8. on the following two substantial questions of law :- The appeal was admitted for hearing vide order dated 16.08.2012 1. Whether the courts below were right in holding that the suit of the plaintiff is bad for non-joinder of necessary parties, the plaintiff not having impleaded the vendors from whom the plaintiff had purchased the suit la nd ? 2. Whether in view of the decision of the learned lower appellate court in issue No. 9 dismissing the counter claim, the findings r ecorded by the learned lower appellate court in issue No. 6 in rejecting the cla im of the plaintiff for right, title and interest are sustainable in law ? 9.
Legal Reasoning
I have heard Mr. T.C. Khatri, learned Sr. counsel, appearing for the appellant and Ms. B. Choudhury, learned counsel appearing for the responden t. 10. It has been submitted by the learned Sr. counsel for the appella nt that the issue relating to the non-joinder of necessary parties has been dec ided against the appellant keeping in mind only the counter claim filed by the d efendants as the appellate court has held that since the defendants in the count er claim has prayed for declaration that the sale deed (Ext. 1) is void, inopera tive and not binding, the vendors Ranjit Ghosh and Ajit Ghosh are necessary part ies. It has been submitted that the First Appellate Court did not decide the sai d issue on the point of view of written statement but on the point of view of co unter claim filed by the defendants. It has further been submitted by the learne d Sr. Counsel that since there is evidence on record adduced by PW 6 and PW 7 th at because of the fire incident in the year 1983, the official records of settle ment were destroyed, the learned court below ought not to have dismissed the app eal preferred by the appellant in so far as the suit of the plaintiff is concern ed, on the ground that the copy of the Jamabandi does not reveal the names of ei ther Goisuddin Sikdar, Sukur Ai, Muslim Sheikh, Abdul Samad Ali, though the name of Kalimohan Ghosh and Ranjit Ghosh appeared in the Jamabandi, apart from the name of Jibon Dutta and Krishna Dutta, who purchased the land from Ranjit and Aj it Ghosh vide registered instrument. The learned counsel, therefore, submits tha t the First Appellate Court has decided the appeal without appreciation of the e vidence on record, though being the final court of facts the First Appellate Cou rt ought to have discussed the evidence on record. It has also been submitted th at since the defendants have not denied the title of Jibon Dutta and Krishna Dut ta over the suit land which they have derived by virtue of purchase from Kali Mo han, the defendant could not have disputed the right of Ranjit Ghosh and Ajit Gh osh for transfer of the land in favour of the plaintiff vide registered sale dee d dated 9.8.89. 11. Ms. B. Choudhury appearing for the defendants submitted that the counter claim filed by the defendant has been dismissed by the First Appellant Court on one of the grounds, that the said counter-claim is barred by limitati on though in the counter- claim they have prayed for passing a decree for declar ation that the sale deed Ext. 1 is void, inoperative and not binding and when su ch counter claim was filed within three years from the date of knowledge of tra nsfer. It has been also submitted that while holding that the counter claim of t he respondents is barred by limitation, the First Appellate Court did not discus s the evidence of PW 6 and 7 who specifically stated that before grant of mutati on no notice was ever issued to the defendant. 12. Referring to the finding recorded in issue no 6 it has also been submitted that the First Appellate Court did not discuss the entire evidence on record and had it discussed the evidence on record, the First Appellate Court w ould not have passed the judgment setting aide the decree passed in the counter claim filed by the defendant. Mr. Khatri, learned Sr. Counsel, in reply, has submitted that 13. it is evident from the evidence on record that the name of Kali Mohan was record ed in the revenue record in the year 1976 apart from the names of Ranjit Ghosh a nd Ajit Ghosh and also the name of plaintiff, which was recorded in the revenue record in 1989 and hence it cannot be said that the defendants had no notice ab out the transfer of property. According to the learned Sr. Counsel, the defendan t’s counter claim has rightly been held to be barred by limitation. 14. I have considered the submissions advanced by the learned counse l for the parties and also perused the judgments and decrees passed by the learn ed courts below. 15. As noticed above, both the courts below have dismissed the suit of the plaintiff for declaration of right, title and interest and recovery of kh as possession. The trial court, however, has decreed the counter claim filed by the defendant, which, has been interfered with by the First Appellate Court by the impugned judgment passed. 16. It appears form the judgment passed by the First Appellate Court that the evidence of PW 6 and PW 7, apart from the evidence of PW 4, have not b een discussed in detail while dismissing the appeal preferred by the appellant i n so far it relates to the dismissal of the suit. It also appears that the First Appellate Court, in so far the counter claim of the defendant is concerned, has not taken into account the entire evidence on record, apart from the evidence t hat the defendant came to know about the execution of the sale deed in the proc eeding initiated under Section 145 CrPC. The First Appellate Court being the fin al court of facts is required to discuss all the evidence on record, which has n ot been done. 17. In view of the above discussion, judgment and decree dated 2.3.2 002 passed by the First Appellant Court is set aside and the appeal is remanded back to the First Appellate Court to decide the same afresh on the basis of the evidence on record adduced by the parties and on hearing the parties. The First Appellate Court shall dispose of the same in accordance with law, within a peri od of two months from the date of appearance of the parties before the First App ellate Court. 18. The parties are directed to appear before the First Appellant Co urt on 4th of April, 2013. The Registry is directed to send back the records so as to reach the First Appellate Court on or before 25th of March, 2012. 19. ent as indicated above. No cost. The appeal as well as the cross objection are allowed to the ext