High Court
Legal Reasoning
This appeal under the provision of Order 43 Rule 1(u) of the Code of Civil Proce dure has been preferred by the defendant against the judgment and order dated 11 .12.2001 passed by the learned Additional District Judge (Sr. Divn. No. 2), Kamr up, Guwahati in Title Appeal No. 8/1999 thereby allowing the appeal setting asid e the judgment and decree dated 10.08.1999 passed by learned Civil Judge (Senior Division) No. 2, Guwahati in Title Suit No. 7/1994 and there upon remanding the case to the trial Court under Order 41 Rule 25 of the Code of Civil Procedure. 2. The respondent/plaintiff, Uttam Chandra Koch filed Title Suit No. 7/1994 in the Court of learned Assistant District Judge, No. 1, Guwahati stating that suit land measuring 2 bighas covered by Dag No. 93 of K.P. Patta No. 30 describe d in schedule to the plaint alongwith other land belonged to his grandfather Lat e Bhakat Koch. Father of the plaintiff and the defendant No. 1, Late Garga Ram K och who was son of late Bhakat Koch married for the second time after death of t he plaintiff’s mother and the defendant No. 1 was born to the second wife of Gar ga Ram Koch. According to the plaintiff because of the second marriage by his fa ther he was exposed to unfavourable treatment by his step mother and to safeguar d his interest his grandfather Late Bhakat Koch made gift of the suit land measu ring 2 bighas in his favour. Since the value of the land did not exceed Rs. 100/ - so there was no written gift deed and the registration thereof as required und er Section 122 & 123 of the Transfer of Property Act. The plaintiff further stat ed that this fact of gift of the suit land in his favour was known to all and th ough he was a minor, the settlement authority mutated his name with respect to s uit land by order dated 17.11.1939. Subsequently after the defendant No. 1 and t he plaintiff had both grown up, the defendant No. 1 approached him for allowing him to raise crops on the suit land. He acceded to his request and this is how t he defendant No. 1 was growing crops over the suit land giving a part of the usu fruct to the plaintiff from time to time. But about 5/6 years prior to filing of the suit the plaintiff came to the suit land and found that the defendant No. 2 who is a stranger was cultivating the land and on enquiry, he further knew that a sale deed was executed by defendant No. 1 on 20.08.1990 in favour of the defe ndant No. 2 and thereby 1 bigha of land from the suit land was sold to the defen dant No. 2. Petitioner further stated that prior to making the sale, the defenda nt No. 1 had obtained mutation in his favour with respect to the suit land behin d the back of the plaintiff and objection filed by him before the authority did not yield any result. So by filing the suit he made a prayer for a declaration o f his right, title interest over the suit land and for cancellation of the same sale deed dated 20.08.1990 alongwith other prayers. By filing a written statemen t the defendant denied the case of the plaintiff and stated his own fact by para graph 12 of the written statement wherein it was asserted that the plaintiff and the defendant No. 1 inherited 2 bighas 3 kathas 15 lechas each out of the 5 big has 2 kathas 10 lechas and out of the said land the plaintiff already sold 2 big has in favour of one Madharam Deka and one Haliram Deka on 02.02.1957 and 07.12. 1957 respectively. According to the defendant the plaintiff had exhausted his ti tle in the said Dag and as such there was no basis for this claim. The defendant further stated that he got the suit land in his share and out of that he execut ed sale deed on 20.08.1990 in favour of defendant No. 2 for 1 bigha and subseque ntly on 27.10.1992 he conveyed remaining 1 bigha to the same defendant No. 2. Wi th this statement the defendant prayed that the suit of the plaintiff be dismiss ed. 3. After filing of the written statement on 22.11.1994, the plaintiff appro ached trial Court with an application for amendment of the plaint on 22.11.1994 and prayed for amendment so as to incorporate paragraph 7(a) of the amended plai nt. The learned trial Court by order dated 15.07.1997 allowed the prayer for ame ndment and consequently the additional prayer for cancellation of the sale deed dated 27.10.1992 found place in the original plaint. It is no longer res integra that amendment once allowed relates back to the date of institution of the suit . The Hon’ble Apex Court held in the case that Sampat Kumar reported in 2002 7SC C 559 that once allowed the amendment will take effect from the date of institut ion of the suit by applying the doctrine of relating back. Whether there is cause of action for the suit ? Whether the suit is maintainable ? Whether the suit is barred by limitation ? Whether the suit has been properly valued and if proper court fee as bee 4. The learned trial Court framed as many as 11 issues on the pleadings of the parties including the issues on limitation and right, title and interest of the plaintiff. The issues are quoted below: 1. 2. 3. 4. n paid ? 5. 6. tive ? 7. 8. ng the defendants from the suit land ? 9. malpur is not lawful ? 10. 11. Whether the suit is bad for non-joinder ? Whether the sale deed No. 930 dated 20.8.90 is fraudulent, void, inopera Whether the plaintiff has right, title and interest over the suit land ? Whether the plaintiff is entitled to a decree for khas possession ejecti Whether the plaintiff is entitled to a decree as prayed for ? To what relief the plaintiff is entitled under the law and equity ? Whether the order of mutation passed on 12.8.91 by the learned S.D.C. Ka 5. The learned trial Court decided issue Nos. 1, 2, 4 & 5 in favour of the plaintiff. The learned trial Court held that the suit of the plaintiff with resp ect to sale deed dated 20.08.1990 was time barred and accordingly issue No. 3 wa s partly decided in favour of the plaintiff and partly in favour of the defendan t. While deciding issue No. 6 in regard to status of sale deed dated 20.08.1990 the learned Court observed that the plaintiff did not place the sale deed on rec ord. Deciding issue No. 7 in regard to right, title and interest of the plaintif f on the basis of gift and the consequent mutation by Exhibit-2, the learned tri al Court held that the said mutation having being cancelled on 12.08.1991 the pl aintiff had no title to the suit land and thus on entire consideration of the ma tter in the light mentioned above the High Court dismissed the suit on 08.09.199 9. 6. The plaintiff challenged the said decree of dismissal before the learned District Judge, Kamrup vide the title appeal No. 8 of 1999. On being transferre d to the Court of learned Additional District Judge, Kamrup the appeal was deci ded in favour of the plaintiff and thereby trial Court’s judgment dated 10.08.19 99 was set aside. The learned appellate Court on perusal of the orders passed by the learned trial court found that by order dated 15.07.1997 an amendment of th e plaint was allowed and consequently the plaintiff submitted amended plaint on 15.09.1997. Thus the sale deed dated 27.10.1992 was also brought under challenge but there was no issue in regard to validity of the said sale deed and conseque ntly there was no decision by the learned trial Court in regard to validity of t he said sale deed dated 20.07.1992. The first appellate Court after observing th e aforesaid aspect of the matter passed judgment on 11.12.2001 and thereby reman ded the matter to the trial Court with a direction to frame issues in respect of sale deed No. 1207 dated 27.10.1992 as per amendment and thereafter to try the matter afresh after giving opportunity to the parties. 7. The said order of remand has been challenged by present appeal under Ord er 43 Rule 1(u) of the Code of Civil Procedure. It appears that on 13.03.2004 no tice of motion was issued to the respondent without admitting the appeal and by subsequent orders it was proposed that the matter would be decided on merit afte r both the parties appear and the records were also called for. Records of both the Courts below have already been received, though no order of this Court calli ng for records could be found out from order sheet. 8. Although this is an appeal against order passed under Order 43 Rule 1(u) yet in the light of judgment of the Hon’ble Supreme Court in the case of Naraya nan V. Kumaran reported in 2004 (4SCC) 26 such an appeal also requires framing o f substantial questions of law as if it is an appeal under Section 100 of the Co de of Civil Procedure. Since the appeal was not earlier admitted, there was no o ccasion for framing of substantial questions of law.
Legal Reasoning
9. Learned counsel, Mr. S.P. Roy appearing on behalf of the appellant has a rgued that the appellate Court committed error in remanding the matter to the tr ial Court for framing a new issue without deciding the appeal himself and as suc h the same was in violation of the provision of Order 41 Rule 24 of the Code of Civil Procedure. The learned counsel proposed that this appeal should be admitte d and heard on the following substantial question of law: 1. Whether the learned first appellate Court are not law and in violation of Ord er 41 Rule 27 CPC in remanding the case to the trial Court without deciding the matter finally? The substantial question of law is accordingly framed and taken up for decision. The learned counsel for the appellant argues that the plaintiff having f 10. iled the suit for cancellation of sale deeds dated 20.08.1990 and 27.10.1992 whi ch was incumbent upon plaintiff to produce the said sale deed or to cause produc tion of said sale deeds before the court in order to get such relief. The plaint iff miserably failed either to call the originals of the said deeds or to take a ny other steps in this regard and as such in the absence of the deeds there was no question of cancellation thereof. If the sale deed dated 27.10.1992 was not b efore the Court there was no question of framing any issue on the said point, th e learned Court maintained. 11. Mr. Sheeladitya, learned counsel appearing on behalf of respondent has c ountered the submission of Mr. Roy on both the points as argued. According to hi m the plaintiff by filing the suit has sought to establish that the suit land wa s gifted to him by his grandfather during the first part of the last Century and the said gift was accepted by all and this is why when the plaintiff was minor in the year 1939, mutation order dated 17.11.1939 was passed by the Revenue Offi cial bringing his name in the records of rights on the basis of gift. Relying on Exhibit-2, the copy of the jamanbandi of the relevant period, the learned couns el for the respondent argues that the plea of gift attained finality when Revenu e Authority has passed order on the basis of the said deed and obviously on pos session and as such the said cannot be challenged after lapse of more than 60 ye ars. He has also brought my attention to the examination-in-chief where the plai ntiff has asserted the gift and the consequent mutation in his favour by exhibit -2 in the year 1939. On being questioned as to whether the said exhibit-2 was br ought under challenge by way of cross-examination the learned counsel has furthe r shown that cross-examination of the PW1 does not indicate that Exhibit-2 was c hallenged in any way. Mr. Sheeladitya ought to have relied on the case of Maria Margarida Sequeria Fernandez reported in (2012) 5SCC 370. In the said case the H on’ble Supreme Court has observed that the Civil Court is duty bound to find out the truth once a suit is instituted and for the said purpose it is incumbent on the Civil Court to frequently take recourse to Section 30 of the Code of Civil Procedure which is the power of the Court to order discovery and production of d ocument etc. Had the learned trial Court taken recourse to Section 30 of the CPC , both the documents, namely, the sale deed dated 20.08.1990 and the sale deed d ated 27.10.1992 would have been on record and there would have been no occasion on the part of the learned trial Court to observe that plaintiff failed to bring the said sale deeds on record. Obviously in the absence of the said documents t he learned first appellate Court could not have decided the case finally on meri t . In that view of the matter it cannot be said that the first appellate Court has committed any error in remanding the case to the trial Court for taking appr opriate action like framing of issues and giving opportunity to the parties etc. The decision of the first appellate Court, therefore, does not in offend provis ion of Order 41 Rule 24 CPC. The substantial question of law, therefore, has to be decided against the appellant and in favour of the plaintiff-respondent. It i s accordingly decided. The impugned order of remand passed by the first appellat e Court stands. Send down the records to the trial Court immediately for implementation 12. of the first appellate order of remand without any further delay as the matter h as already been delayed. The learned trial Court shall cause notice on the parti es to appear within a month and thereafter shall proceed to decide the suit afre sh keeping in view the observations made herein above. 13. 14.