High Court
Case Details
RSA 14/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL) This appeal by the plaintiffs in Title Suit No. 58/1991 is directed against the judgment and decree dated 23.8.2001 passed by the learned Civil Judge, (Sr. Divi sion), Sonitpur in Title Appeal No. 33/1996 dismissing the appeal by affirming t he judgment and decree dated 31.8.1996 passed by the learned Munsiff, Tezpur whe reby and whereunder the trial court while dismissing the suit of the plaintiff, has decreed the counter claim of the defendants. 2. The plaintiffs instituted the aforesaid suit praying for a decre e for permanent and perpetual injunction restraining and prohibiting the defenda nts, their man, servants, agents and associates from entering into and from maki ng any construction over the suit land, more fully described in the schedule to the plaint, contending inter alia that they got the suit land by inheritance fro m their forefathers which has been continuously in their peaceful possession fro m the time of their forefathers. It has further been contended that the defendan ts threatened the plaintiffs and took forcibly possession of the suit land and s tarted to construct the house and structure thereon illegally, on 25.11.1991, th ough in an earlier suit instituted by them, being Title Suit/1984, a compromise decree was earlier passed in their favour declaring their right to possess the l and. The plaintiffs, therefore, prayed for permanent and perpetual injunction as noticed above.
Legal Reasoning
3. The defendants contested the suit by filing joint written statem ents contending inter alia that the suit is not maintainable because of non join der of necessary parties and that the plaintiffs never were in possession of the suit land and that the suit land was transferred by Akbar and Jamaluddin by exe cuting two separate deeds of sale dated 22.3.1985 and 24.4.1989, Ext. Ka and Kha , respectively, by virtue of which they became the owners of the property. The d efendants have also filed a counter claim for declaration of right, title and in terest and for recovery of khas possession by evicting the plaintiffs therefrom as they have subsequently dispossessed the defendants from the suit land. 4. The plaintiffs filed written statement against the counter claim filed by the defendants denying the right, title and interest by virtue of such sale and reiterated their averments made in the plaint. It has also been pleade d that the sale of land vide Ext. ka and kha are void, illegal and inoperative a s by the said sale the minor’s property has been sold not for the benefit of the minor and the brother of minor being not the lawful guardian under the Mahameda n Law cannot transfer the minor’s property. 5. med the following issues for determination: - The trial court on the basis of the pleadings of the parties fra (cid:28)1. Whether the plaintiffs suit is maintainable in its m? 2. 3. 4. Whether there is any cause of action for the suit? Whether the suit is barred by limitation? Whether the suit is bad for non joinder of necessary part and joinder of present for unnecessary party? 5. Whether the dendants threatened the plaintiffs on 25.11.1991 to forcibly construct house and structures on the suitland? Whether the plaintiffs are entitled to the decree of permanent injunctio Whether the defendants are parties to the suit No. T.S. 22/84 and are bo 6. n? 7. und by the compromise decree thereof? 8. Whether the defendants were disposed on and from 17.2.1992 from the plot of land measuring 6 lessas covered by Dag No. old. 1551/new 625/595 of P.P. No, old 458/new 205/209 of Tezpur town part III and construct a thatched house cons Whether the defendants are entitled to the decree of right, title and in ists of 3 rooms measuring 27‰ x 8‰ illegally? 9. terest over the suit land? 10. Whether the defendants are entitled to decree of eviction of the plainti ffs and delivery of khas possession of the suit land by demolishing the newly co nstructed house thereon? 11. Whether the registered sale deed No. 1546 for the year 1985 and 761 for the year 1989 of Tezpur Sub Registry office are null, void and inoperative in la w? 12. To what other relief, the parties are entitled? 6. The learned Munsiff upon appreciation of the evidence on record, both oral and documentary, dismissed the suit of the plaintiffs on the ground o f non joinder of necessary parties and also by holding that the plaintiffs could not establish the right to possess the property in respect of which decree for injunction has been prayed for. The trial court, however, has decreed the counte r claim declaring the right, title and interest of the defendants over the suit land, based on purchase, though it has been held that the sale deed being Ext. k a and kha are void, illegal and inoperative. 7. Being aggrieved the plaintiffs filed Title Appeal No. 33/1996 wh ich has also been dismissed by upholding the judgment and decree passed by the t rial court and hence the present appeal. 8. ed 1.2.2002 on the following substantial questions of law: - The appeal was admitted for hearing by this Court vide order dat i) Whether the learned courts below erred in law in not decreein g the suit of the plaintiff although the Ex. Ka and Kha which are the sole basis for defence and counter claim of the defendants were found to be void? ii) Whether the learned courts below erred in law in not decreei ng the suit for possession of the plaintiff inasmuch as the suit land stands in the share of the plaintiff on the basis of decree in T.S. No. 22/84 which is nei ther appealed against nor sought to be cancelled? iii) Whether the learned courts below erred in law in decreeing the counter claim of defendants after having found that Ex. Ka and kha alienatin g minor’s property was void? iv) Whether the learned courts below erred in law in holding the suit bad for non joinder of other pattadars although by this suit the plaintiff s have sought relief against trespassers and not against co sharers? v) Whether the findings of the learned courts below are perverse ?
Legal Reasoning
9. r. Kalita, learned counsel appearing for the respondents. I have heard Mr. Ghosh, learned counsel for the appellants and M 10. Referring to the judgments passed by the learned courts below it has been contended by the learned counsel for the appellants that though the pl aintiffs instituted the suit seeking a decree for permanent injunction against t he trespassers, the learned court below has dismissed the suit for non joinder o f necessary parties, namely the copattadars, though in such a suit the other co pattadars are not necessary parties. It has also been held that the plaintiffs c ould not prove the right to possess the land though it has successfully been ple aded and proved by adducing evidence that the plaintiffs have acquired right ove r the suit property by inheritance. The learned counsel further submits that the counter claim of the defendants has been decreed by both the court below despit e holding that the Ext. ka and kha sale deeds are void, illegal and inoperative. According to the learned counsel the courts below ought not to have decreed the counter claim based on the possession when there is no plea of adverse possessi on either in the written statement or in the counter claim filed. The learned co unsel submits that when the sale deed Ext. ka and kha were held to be void, ille gal and inoperative, based on which the defendants have claimed right, title and interest, the learned court ought to have dismissed the counter claim filed by the defendant. 11. Per contra, Mr. Kalita, learned counsel submits that as the plai ntiffs instituted the suit for passing permanent and perpetual injunction, the p laintiffs have to prove their right to posses the property, which they having fa iled to establish, the learned courts below have rightly dismissed the suit of t he plaintiffs. It is submitted that the suit of the plaintiffs has been dismisse d solely on the ground of non joinder of necessary parties. The learned counsel further submits that since by Ext. ka and kha sale deeds the property belonging to Jamaluddin was also transferred in favour of the defendants, the learned cour t below have rightly decreed the counter claim of the defendants. It has also be en submitted that the compromise decree passed in Title Suit 22/1984 is not bind ing on the defendants as they are not parties to the said suit and the suit land is not part of the land involved in the said suit. 12. I have considered the submissions advanced by the learned counse l for the parties and also perused the judgment and decree passed by the learned courts below. 13. The plaintiffs instituted the suit for passing a decree for perm anent and perpetual injunction. The plaintiffs, therefore, are required to prove their right to possess the property to get such a decree from the civil court. According to the plaintiffs the defendants are disturbing the peaceful possessio n of the plaintiffs and trying to dispossess the plaintiffs from the suit land. However, the courts below have dismissed the suit of the plaintiffs by holding t hat they could not prove their right to posses, without discussing the evidence adduced by the parties and solely on the basis of the finding recorded relating to non joinder of necessary parties. 14. In a suit for injunction the other co pattadars may not be the n ecessary parties when the claim of the plaintiffs is that their peaceful possess ion is threatened to be disturbed by the defendants who have no right to possess the suit property. The learned courts below have also decreed the counter claim of 15. the defendants based on the long possession even though there is no pleading rel ating to the adverse possession either in the written statement or the counter c laim filed by the defendants. Both the courts though recorded the finding that t he sale deed Ext. Ka and kha are void, illegal and inoperative as by the said sa le deeds the minor’s property has been transferred by a person who is not compet ent to do so and not for the benefit of the minor, the learned courts, however, have completely ignored the fact that by the sale deeds, Ext. ka and kha, the in terest of Jamaluddin has also been transferred apart from the interest of the mi nor. No attempt has been made by the courts below to ascertain the interest of J amaluddin in respect of the land transferred vide Ext. ka and kha, though it fou nd that the sale in respect of the minor’s share only is affected. That importan t aspect of the matter has completely been overlooked by the learned courts belo w while decreeing the counter claim of the defendants, which has been decree bas ed on possession, and even in the absence of any pleadings relating to adverse p ossession. 16. irst appellate court is set aside. That being the position, the judgment and decree passed by the f 17. The matter is remitted to the first appellate court to decide th e appeal afresh on the basis of the evidence already adduced by the parties. The appeal shall be decided within a period of two months from the date of appearan ce of the parties as fixed by this Court. 18. urt on 19.8.2013. The parties are directed to appear before the first appellate co 19. The Registry is directed to send down the records forthwith so a s to reach the first appellate court before the date fixed for appearance of the parties. 20. The appeal is accordingly allowed as indicated above. No cost.