High Court
Case Details
RSA 170/2002 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY This second appeal has been preferred by the legal heirs of original plaintiff c hallenging the judgment and decree dated 02.07.2002 passed by the Civil Judge, ( Senior Division) No. 1, Guwahati in Title Appeal No. 22 of 1993 partly allowing the appeal and setting aside the judgment and decree passed by the learned Munis ff No. 3 on 28.04.1993 in Title Suit No. 71 of 1984. 2.
Legal Reasoning
It appears from records that one Golab Chand Sarawgi, the predecessor of the present appellant, as plaintiff instituted Title Suit No. 235 of 1983 in th e Court of learned Sadar Munsiff No. 1 at Guwahati. The said suit was subsequent ly re-numbered as Title Suit No. 71 of 1984, perhaps, on being transferred to th e Court of learned Munsiff No. 3. In the said suit the plaintiff made prayer for preliminary decree for partition of the land described in Schedule B to the pla int out of Schedule A described therein, for direction to the collector for effe cting the partition in accordance with terms of the preliminary decree, for fina l decree thereafter giving/ allotting Schedule-B land to the plaintiff and separ ate possession etc. According to the plaintiff, the Schedule-A land including su it land measuring 1 katha 4 lechas was previously owned and possessed jointly by one Late Bhogi Sheikh, the predecessor in interest of the defendants No. 1 to 3 , late Matia Sheikh the predecessor in interest of the Nos. 4 - 5, Md. Bhonda Sh eikh, the defendant No. 6 and Md. Hataru Sheikh, defendant No. 7. The plaintiff claimed to have purchased the land on 03.04.1958 from said Matia Shiekh and Bhon da Sheikh by a registered deed of purchase within definite boundaries described in Schedule B within Schedule A of the plaint. Following some quarrels with resp ect to the land, the plaintiff had to institute Title Suit No. 43 of 1966 in the Court of Sadar Munsiff at Guwahati for declaration of his title and possession over the land but the said suit was dismissed on 23.06.1967 against which he pre ferred Title Appeal No. 79/1967 in the Court of learned Assistant District Judge , Guwahati and that appeal also failed on 23.06.1970. However, in second appeal No. 178/1970 judgments of the two courts below are set aside. This Court allowed the second appeal and declared right, title and interest of the plaintiff over land measuring 1 katha 4 lechas out of the Schedule- A land. The aforesaid decre e passed by the second appellate Court having been put into execution in Title E xecution Case No. 14/1976, the learned Munsiff No. 2, Guwahati gave joint posses sion of the said land to the plaintiff on 20.12.1976. Thereafter the plaintiff m ade prayer for mutation in the records of right vide mutation Case No. 97/76-77 before the SDC, Palasbari Circle but the same was rejected by order dated 05.08. 1977. The plaintiff challenged the said order before the jurisdictional Deputy C ommissioner vide RA No. 41/77-78 but the appeal was also dismissed on 19.01.1981 . The plaintiff thereafter preferred appeal before the Assam Board of Revenue an d the appeal was allowed on 12.10.1982 and this is how the name of the plaintiff was duly mutated in the records of right with respect to 1 katha 4 lechas of la nd within Schedule A of the plaint. Thus having established title and possession and being a recorded pattadar of the said land the plaintiff instituted the sui t for partition with the prayer mentioned above. Separate written statements were filed by defendant No. 6 (Md. Bhonda Sh 3. eikh), defendant No. 14, (Md. Mamud Ali), defendant No. 16 (Sri Pusparaj Agarwal la), and also defendant No. 17 (Sri Gajen Chandra Das). It appears that the defe ndant Nos. 16 & 17 claimed title to the land of the plaintiff and resisted parti tion for giving Schedule-B land to the plaintiff. In paragraph 9 of the written statement by defendant No. 16, it was claimed as follows: (cid:28)9. That this defendant has purchased 1 (one) katha of land of the suit patta an d got his name registered in the Revenue Records and has constructed houses on h is land and is in possession thereof. (cid:29) 4. The defendant No. 17, Sri Gajen Chandra Das by filing separate written s tatement claimed that he purchased the land in question from Md. Hataru Sheikh, Upon consideration of the aforesaid pleadings of the parties, the learne son of Sera Sheikh on 20.10.1981 by Registered Sale Deed No. 8135, took possessi on of the land and has been continuing till date. In paragraph 8 of the written statement, however, stated that it is better to separate the entire patta land a mongst the share-holders and possession or if necessary cost of the share be giv en to them. 5. d trial Court framed as many as 6 issues and the same are as follows: 1. Whether the suit is maintainable in the present form? 2. Whether the suit is barred by limitation? 3. Whether the suit is barred by the principle of resjudicate? 4. Whether the contesting defendants have any right, title and interest in the s uit land? 5. Whether the plaintiff is entitled to a decree as prayed. 6. To what relief if any the parties are entitled? 6. It would appear from issue No. 4 above, that the same was framed for det ermination as to whether the defendants have any right title and interest to the suit land and by the next issue No. 5 task was taken upto decide as to whether the plaintiff is entitled to a decree as prayed. Plaintiff examined as many as 4 witnesses while the defendant examined 8 witnesses in all. After hearing both s ides the learned trial court by judgment and decree dated 28.04.1993 dismissed t he suit. The learned trial Court decided issue Nos. 1 & 2 in favour of the plain tiff. After having observed that as many as 6 issues were framed it appears that the learned trial Court made mention of one issue No. 3 in the judgment in rega rd to the principle of constructive res judicata and held that the plaintiff ha ving earlier filed a T.S. 43 of 1996 in respect of Dag No. 415 & 528 and plainti ff having purchased 1 katha 4 lechas under the aforesaid dag and moreover the pl aintiff not having made any prayer for partition on the earlier occasion the sui t of the plaintiff was barred by the principle of constructive res judicata. Whi le deciding issue No. 4 in regard to claim of title of the contesting defendant No. 16, the learned trial Court observed that the plaintiff described defendant no. 16 as a mere trespasser but by adducing oral and documentary evidence vide exhibit A & B (certified copy of sale deed and photostat copy of original sale d eed), exhibit-C (Chita) showing mutation in favour of defendant No. 16 the title of Muharilal was established. Since the said Muharilal had no issue and the def endant No. 16 Pusparaj Agarwalla is the brother’s son of Muharilal Agarwalla, he being class-II legal heir of Muharilal had acquired title to the suit land and accordingly defendant No. 16 had right, title and interest to the same. The issu e No. 4, therefore, was decided in favour of the defendant and against the plain tiff. The learned Munsiff while deciding issue Nos. 5 & 6 held on fact that plai ntiff might have purchased 1 katha 4 lechas in 1957 but not having come into pos session thereof during the long period and on the other hand the defendant No. 1 6 having been in possession of the land the plaintiff cannot get partition. 7. With the above observations, the learned trial Court dismissed the suit. Preferring appeal before Civil Judge, (Civil Division) No. 1, Kamrup vide Title Appeal No. 22/1993, the plaintiff challenged the said decree. The learned first appellate Court also took note of all the 6 issues. However, without framing an y point for determination as required under the provision of Order 31 of Rule 41 of the Code of Civil Procedure proceeded to decide the appeal issue wise. Altho ugh the learned first appellate Court did not interfere with the finding of the learned trial Court in regard to issue Nos. 1 & 2 but set aside the finding as r egards issue No. 3 on constructive res judicata. The learned appellate Court als o held in acquisition of title by defendant No. 16, Pusparaj Agarwalla from his uncle Muharilal Agarwalla. However, reversing the finding of the learned trial C ourt with regard to issue Nos. 5 & 6, the learned appellate Court partly allowed the appeal decreeing that land under Schedule-A be partitioned and the share of the plaintiff with regard to 1 katha 4 lechas be curved out for delivery of pos session to him. The learned first appellate Court also issued direction for appo intment of Commissioner to effect partition of a schedule land and in course of such exercise, defendant No. 16 should be given 15 lechas of land in Dag No. 615 out of Schedule- B land being the land under his possession. The said judgment was passed on 02.07.2002. By filing the present second appeal, the appellants who were the legal h 8. eirs of the original plaintiff have challenged the legality and validity of the said judgment and decree of the learned trial Court and appellate Court respecti vely. The appeal was admitted on 10.12.2002 on the following substantial questio ns of law: A. Whether learned lower appellate Court erred in law in making a case for the d efendant No. 16, not pleaded in his written statement ? B. Whether the learned lower appellate Court can travel beyond the pleading ? 9. However, in course of argument the learned counsel appearing for the app ellant admitted that the purport of both the substantial questions of law is the same, namely, whether the defendant should have been permitted to lead evidence beyond pleading and as to whether the learned Court below ought to have conside red such evidence lying beyond the pleading of the parties.
Legal Reasoning
10. I have heard Mr. A.C. Sarma and Mr. B.C. Talukdar assisted by Mr. P. Cha krabarty, learned counsel for the appellants. Although notices were duly served on all the respondents yet no one appears to have put-up appearance. Cause list shows the name of Mr. Sheeladitya as counsel for the respondents who being prese nt in the Court in course of argument expressed that perhaps he was not there in the case and no vakalatnama also could be traced in the records to ascertain as to whether the respondents, more particularly, the contesting defendant No. 16 (Pusparaj Agarwalla) had at all put up appearance in this case. Hence the appeal is taken up for hearing. Coming to the merit of the case vis-à-vis the substantial questions of l 11. aw, since the time of Privy Council (AIR 1930 PC 57) it is settled position of l aw that no amount of evidence can be led which is beyond pleading. It has been f ollowed consistently by the Supreme Court of India in a catena of decisions. The Hon’ble Supreme Court in the case of Union of India v. Ibarahim Uddin reported even in (2012) 3 SCC 148 has dwelt on this aspect in detail and reiterated in p aragraph 78 that a case not specifically pleaded cannot be considered. Applying the said ratio it is to be tested as to whether the plea taken 12. by the defendant No. 16 (Pupsaraj Agarwalla) can at all be taken into considerat ion. Admittedly the defendant No. 16 pleaded to have purchased title to the suit land. Now, in the evidence a different stand has been taken saying that one Mah arilal was the real purchaser who died issueless and as such the defendant No. 1 6 inherited his share. Had this stand been taken in the written statement, the p laintiff would have the scope to lead evidence to establish the contrary. So, al lowing such deviated stand would be prejudicial to interest of the plaintiff. Moreover, learned counsel, Mr. Sarma has drawn my attention from the cro 13. ss-examination of said defendant No. 16. (Pusparaj Agarwalla) who was examined a s DW 2 in this case. In course of cross-examination he said that did not purchas e the land and it was purchased by his uncle. In the said breath he made a posit ive statement that Bawarilal Sarawgi is his own brother. On the face of this cr oss-examination two things appear, first, that defendant No. 16 inherited the pr operty from Maharilal was never pleaded; secondly it also appears from the same cross-examination that there was another person, namely, Bawarilal Sarawgi anoth er class-II legal heir of Maharilal and thus even if plea of the defendant No. 1 6 being a class II legal heir of Maharilal is accepted yet his claim to the whol e of the title of Maharilal cannot be accepted because of presence of Bawarilal, atleast 50% of the title of Maharilal cannot be owned by DW2 if there is other class-II legal heir of Maharilal. So, claim of DW2 is patently absurd. 14. In view of above, the substantial questions of law mentioned above have to be decided in favour of the plaintiff / appellant holding that evidence as to inheritance by defendant No. 16 being beyond plead cannot be considered. The pl ea of title of defendant No. 16 consequently fails. The finding of the first ap pellate Court that the defendant No. 16 is entitled to 15 lechas of land in Dag No. 615 in question is without any basis. 15. In the result the second appeal is allowed and the first appellate decre e is hereby modified. The defendant No. 16 shall have no right or authority to c laim 15 lechas of land in Dag No. 615 as held by the first appellate Court. Cons equently, let a preliminary decree be drawn deciding question of share of all th e pattadars and all further steps be taken for preparation of precepts by the co llectorate under Section 54 of the Code of Civil Procedure and for all further s teps be taken as are required under law for passing the final decree and giving possession to the parties to the suit under Order XX Rule 18 of the Code of Civi l Procedure. 16.