High Court
Case Details
RSA 169/2002 BEFORE THE HON’BLE MR. JUSTICE N. CHAUDHURY JUDGMENT AND ORDER (ORAL) These two second appeals being RSA No. 218 of 2010 and RSA No. 169 of 20 02 have been analogously listed for hearing in view of the fact that the 2 conte sting parties in these 2 second appeals have been litigating, claiming title wit h respect to the same plot of land. The facts involved in the 2 second appeals a re summarily narrated in the following paragraphs.
Legal Reasoning
[2] The legal battle between the parties was initiated with the institutio n of Title Suit No. 27 of 1990 by Baidnath Khatiwara against his nephew Churamon i Khatiwara praying for declaration that the defendant of the said suit was Adhi ar under the plaintiffs and the said suit was subsequently renumbered as title s uit No. 33 of 1990 on being transferred to the Court of the learned Additional D istrict Judge. By filling a written statement in the said suit, defendant Churam oni Khatiwara submitted additional written statement, after the plaint in Title Suit No. 33 of 1990 was amended by the plaintiff, Baidnath and thereby defendant Churamoni denied his status as Adhiar under plaintiff Baidnath and rather claim ed the title. Under such circumstances plaintiff Baidnath withdrew Title Suit No .33 of 1990 with liberty to refile and thereafter filed T.S. No.1 of 1997 in the Court of learned Munsiff at Lakhimpur. But since the suit was valued as Rs.42,0 00/-, the plaint was returned for refilling before the appropriate Court and acc ordingly the new suit being Title Suit No. 1 of 1997 came to be registered in th e Court of learned Additional District Judge at North Lakhimpur. [3] In this suit plaintiff described himself as the owner of 11B 1K 1L land in which the defendant Churamoni is described to be Adhiar with respect to half of the land i.e. 5B 3K ‰ L. The plaintiff stated in the plaint that init ially the defendant entered into as Adhiar since the year 1985 and was given th e share of Adhi till 1989 but ultimately when he started claiming ownership over the plot of land, the defendant denigrated himself to the status of encroacher and thus without serving any notice under Section 54 of the Assam (Temporarily S ettled Areas) Tenancy Act, 1971, the plaintiff filed the aforesaid suit in which he not only prayed for declaration of his right, title and interest over Schedu le-1 land, but also prayed for ejectment of the Adihar (defendant) from Schedule -2 land appearing in the case. The defendant Churamoni denied to be an Adihar un der the plaintiff and also raised the plea of res judicata, challenging maintain ability of the suit. It is the pleading of the defendant that his name was no wh ere written as Adihar and that he was really the owner of the land and that plai ntiff subsequently came from Nepal. It is further stated in Paragraph-8 of the w ritten statement that the allegation of the plaintiff that the defendant wrongly got his name included in the records of rights behind the back of the plaintiff was incorrect and that it is the plaintiff who gave his signature in the chitha recognizing the right of the defendant. With a view to grab the land of the def endant, he had filed title suit No. 39 of 1990 and obtained decree therein. The defendant further pleaded that the trial court decree in Title Suit No. 1/1997 w as affirmed by the learned Appellate Court in Title Appeal No. 1/2002 and the se cond appeal was pending before the High Court at that time. In the title suit wh ile the plaintiff was staking claim of title to the land, same was also the clai m of the defendant as well. On such rival contentions learned trial court framed following 8 issues: (cid:28)1) Whether there is a cause of action for the suit? 2) Whether the suit is maintainable in its present form? 3) Whether the suit is barred by Res Judicate? 4) Whether the suit is barred by the principle of Estopel and Waiver? 5) Whether the suit is barred by limitation? 6) Whether the plaintiff has right, title and interest and po ssession over the suit land? 7) Whether this court has jurisdiction to try this suit? 8( What relief the parties are entitled? (cid:29) [4] Plaintiff examined as many as 3 witnesses while defendant examined 2 witnesses and both the side produced some documents but none of them produce any document showing their title. While deciding issue No.6, the learned trial cour t observed that the P.W.1 exhibited certified copy of jamabondi being Ext No.1 w hich shows that the total land to be 11B 1K 1L under Dag No. 98 of Tariani Rajga rhgaon of Kadam Mouza in the Jamabandi dated 30.11.1988. Nobody else was shown a s co-sharer. The learned Court observed that defendant did not submit any docume nt or copy of jamabandi showing his name as owner of the land but according to t he claim of the defendant that plaintiff had given signature in the chitha relin quishing his right in favour of the defendant. On these findings, the learned tr ial court decided the issue in favour of the plaintiff that plaintiff has got ri ght, title and interest in the land in question. The said judgment of the learne d trial court was brought in appeal in title appeal No. 1 of 2002 in the Court o f learned District Judge at North Lakhimpur. The learned district judge by judgm ent and order dated 07.08.2008 partly allowed the appeal and held that admittedl y defendant being an Adihar he cannot be evicted from the suit land except by fo llowing the procedure prescribed under Section 54 Assam (Temporarily Settled Are as) Tenancy Act, 1971. This judgment dated 7.8.2008 has been challenged before t his Court by plaintiff Baidnath. This court admitted the appeal on 07.12.2010 on sole substantial question of law as follows: (cid:28)Whether the learned First Appellate Court is justified in refusing to affirm th e decree passed by the learned Trial Court for recovery of Khas possession, by h olding that the plaintiff has not taken recourse of Section 51 of the Assam (Tem porarily Settled Areas) Tenancy Act, 1971, in view of the stand taken by the def endant in the written statement that he is not a tenant under the plaintiff? (cid:29) [5] I have heard Mr. P. P. Boruah, learned counsel for appellant in the c ase and Mr. G. Rahul, learned counsel for respondents. [6] Admittedly as per the averments made in the plaint which is the basis of this suit, the plaintiff is the owner of the land and the defendant is stated to be an Adhiar. According to the learned court, these findings have been estab lished. The status of the plaintiff as owner and landlord in respect of the defe ndant is also the finding of the learned trial court. It is established law that in second appellate stage the status of the landlord and tenant cannot be ascer tained in view of the decision of Hon’ble Supreme Court in AIR 1963 SC 361. Howe ver, admittedly the defendant was an Adihar under the plaintiff that being the b asic frame of this suit, the plaintiff cannot institute suit against the defenda nt without serving a notice for his ejectment. This is also precondition under S ection 54 of the Assam (Temporarily Settled Areas) Tenancy act. The suit of the plaintiff, therefore, is barred because of failure to give notice under Section 54(2) of the Act. So the concurrent findings of the learned courts below as to l andlord and tenant relationship between the parties is to be accepted then the s uit of the plaintiff for ejectment of tenant has to be held as not maintainable for non issuance of notice under Section 54 (2) of the Assam (Temporarily Settle d Areas) Tenancy Act, 1971. It is not the case of the appellant that defendant i s not an Adhiar. Hence, the substantial question of law framed by this Court has to be decided in the affirmative and in the favour of the defendant and the sui t of the plaintiff in so far as it relates to the prayer of ejectment has to be held as not maintainable. [7] It is necessary to make a mention here, more particularly, in view of the fact that there is another pre existing suit in second appeal No. 69 of 2002 whe rein alleged Adhiar (Churamoni) has sought a decree for declaring him as owner a nd the present plaintiff as a licensee. The plaintiff in the present suit has no document at his possession to rely on except entries in the records of rights t o stake a claim of title. So is the situation in the second suit out of which RS A No. 169 of 2002 has arisen. Before making any comment in regard to title of th e parties to the land in question it is, therefore, necessary to discuss the sai d suit as well. [8] RSA No. 169 of 2002 deals with the said plot of land which is the subj ect matter of the above second appeal, namely, RSA No. 218 of 2010. The suit out of which this second appeal has arisen was instituted by Churamoni against Baid nath in title suit No. 39 of 1990. In this suit, plaintiff Churamoni claims titl e to a total of 11B 1K 1L of land, though he is the owner of 5B 3K ‰L of land, r ecorded in the joint name of the plaintiff Churamoni and defendant Baidnath in P atta No.1 of Mouza Tariani under Dag No. 98. The plaintiff of this suit Churamon i claims exclusive title to half of the aforesaid land being 5B 3K ‰ L. The plai ntiff stated that Baidnath came from Nepal in the year 1989 and pursued the land of the plaintiff to part with half of the aforesaid land. But he after getting land filed the Title Suit No. 27 of 1990 claiming ownership and describing the p laintiff as Adihar. Under such circumstances filing of the suit by Churamoni had become necessary to get his title adjudicated in accordance with law. Baidnath as defendant in this case had submitted a written statement reiterating his cas e as stated in the plaint of Title Suit No. 27 of 1990 (title suit No. 30 of 199 0) and did not admit that the he was a licensee. In this case also the learned c ourt framed as many as 7 issues and these are also quoted below: (cid:28)i) Whether there is cause of action for the suit? ii) Whether the suit is maintainable? iii) Whether the suit land exclusively belong to the plaintiff and the p laintiff has right, title and possession over the suit land? iv) Whether the suit was mutated in accordant with law? v) To what reliefs if any of the plaintiff is entitled? vi) Whether the suit land has been possessing by the plaintiff from the life time of father? vii) Whether the plaintiff is entitiled to get the permanent injunction? (cid:29) [9] The learned Court held that plaintiff Churamoni succeeded to establish h is case of ownership and defendant Baidnath as permissive occupier. With these f indings, the trial Court by judgment dated 04.02.1992 dismissed the suit in its entirety and then defendant Baidnath preferred title appeal No. 5 of 1992 in the Court of Additional District Judge on North Lakhimpur and the said appeal was a lso dismissed. Thereafter, a second appeal was preferred before this Court and t his Court by judgment and decree dated 24.11.1998 allowed the second appeal and remanded the case to first appellate Court. Upon remand, the first appellate cou rt by the judgment dated 04.05.2002 held, inter alia, as follows: (cid:28)It is seen that the land belonged to both the plaintiff and the defendant the extent of possession of the plaintiff is not ascertainable; t he plaintiff did not sought any right title and interest over the possessed land as there was no partition of the suit land. (cid:29) It is held that since the land belonged to both the plai [10] ntiff and defendants, the extent of possession of the plaintiff is not ascertain able, the plaintiff did not seek any right, title and interest over the possesse d land and there was no boundary of the suit land also. But holding that plainti ff Churamoni does not have any cause of action the suit of the plaintiff was dis missed on appeal. Nevertheless, the finding on merit that both the plaintiff and the defendant has got title to the suit remains and the same is not challenged by the defendant of that suit (Baidnath) by filing any cross appeal or cross obj ection under Order XLI Rule 22 of the CPC. Thus comparing the judgment in its e ntirety, the appeal arising out of the title suit of No.1 of 1997 instituted by Baidnath against Churamoni title of Baidnath was declared by learned courts belo w and at the same time the title of Churamoni with respect to the same land has also been held by both the Courts below in the title suit No. 29 of 1990 and in the appeal preferred there against for which the present second appeal has arise n. So there is an apparent contradiction of judicial decision in regard to title of the same plot of land. This controversy of facts as well as law could have b een avoided if both the suits would have been tried together in accordant with l aw. In the case of State of India vs. Rajan Chemical reported in (2007) 1 SSC 9 7 the Hon’ble Supreme Court if common question of law and facts arise in 2 proce edings and plaintiff of one is defendant in another and there is chance of over lapping of decision and evidence, those 2 suits should always be heard together. It is necessary to mention here that the plaintiff of either suit has not produ ced and proved any document of title in their respective suit. None of them has disclosed the source from which they have derived title. Under such circumstance s and in view of law laid down in the case of Rajan Chemical (Shupra), I feel in clined to allow both the second appeal by setting aside judgments of the learned courts below. The learned counsel for both the sides submit that the judgments of the Courts below were required to be set aside and the parties should be give n a chance to prove their rights for adjudicating the suit afresh by way of lead ing fresh evidence and as such they pray for remanding the case to the trial cou rt. Accordingly, the respective judgments of the trial courts as well as first a ppellate courts in title suit No. 1 of 1997 as well as title suit No. 39 of 1990 and the respective appeals are hereby set aside. Both the suits shall be transm itted to the Court of learned Civil Judge, North Lakhimpur in view of the law la id down in Rajan Chemical (shupra) . [11] Let the records of both the suits, namely, Title Suit No. 1 of 19 97 and title suit No. 39 of 1990 be sent down to the learned Civil Judge, Lakhim pur immediately. Parties shall appear before the learned Civil Judge, lakhimpur, on 18.11.2013 for taking necessary orders from the learned court. It is needles s to say that both the parties shall be given liberty to adduce more evidence bo th oral and documentary, if so advised. [12] Second appeals are disposed of.