Nos.1 to 4 v. Nos.1 to 4 in the appeal)

On the basis of the pleadings, the Trial Court framed the follow (cid:28)1) Is there any cause of action for the suit? 2) Is the suit maintainable in its present form? 3) ation? 4) 5) Is the suit barred by waiver, estoppel and acquiescence and law of limit Whether the plaintiff has right, title and interest over the suit land? To what relief, if any, is the plaintiff entitled to? (cid:29) Addl. issue: Whether the plaintiff was in possession of the land described in the Sch 6) edule ’A’ of the plaint, and whether the plaintiff was dispossessed by the defen dant on or about 14/12/88 from the land described in the Schedule ’B’ of the pla int? (cid:29) [5] The plaintiffs in support of their claim examined 4(four) witnes ses and proved 4(four) documents, namely the sale deed dated 30th March, 1977 (E xhibit-1); the Periodic Kheraj Patta issued in favour of the original owner, nam ely Harekrishna Dalai (Exhibit-2); copy of the Jamabandi for the settlement year 1968-69 in respect of Dag No.79 of Periodic Patta No.33 (Exhibit-3) and the cop y of the order passed by the Additional Deputy Commissioner, Nagaon in the mutat ion proceeding (Exhibit-4). The defendant examined 3(three) witnesses including the defendant No.1(b) himself. The trial Court, upon appreciation of the evide nces as adduced by the parties, dismissed the suit by holding that the suit is b arred by limitation in view of the provisions contained in Article 64 of the Lim itation Act, 1963. [6] which has been partly decreed, as noticed above. Hence, the present appeal. Being aggrieved, the plaintiffs preferred the aforesaid appeal, [7] , 2002 on the following substantial question of law:- The appeal was admitted for hearing vide order dated 4th January (cid:28)Whether the learned Court below committed error in fact and law in not granting a decree for recovery of possession of the suit land by evicting the respondent s? (cid:29) [8] nd in his place the present appellants were substituted. During the pendency of the appeal, the original plaintiff died a [9] I have heard Mrs. T. Goswami, learned counsel for the appellants and Mr. B.R. Dey, learned senior counsel appearing for the respondent Nos.1 to 4, who were the defendant Nos.1(a) to 1(d) in the suit. None appears for the ot her respondents. Mrs. Goswami, learned counsel appearing for the appellants refer [10] ring to the pleadings in the plaint as well as in the written statement has subm itted that the First Appellate Court has refused to pass a decree for recovery o f khas possession in respect of Schedule-B land solely on the ground that the de fendant Nos.1(a) to 1(d) being the tenant, they cannot be evicted without initia ting a proceeding under the provisions of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (in short, (cid:28)the Act (cid:29)). The learned counsel submits that it wa s neither the case of the plaintiffs nor of the defendants that the defendants a re the tenant in respect of the land and as such, the learned First Appellate Co urt solely based on the Exhibit-3 Jamabandi ought not to have refused to pass a decree for recovery of khas possession in respect of Schedule-B land, when the F irst Appellate Court has held that the plaintiffs have right, title and interest in respect of the Schedule-A land. It has also been submitted that it is not b eing the case of the defendants that they are possessing the Schedule-C land, th e learned first appellate Court ought to have passed a decree confirming the pos session of the plaintiffs in respect of Schedule-C land. Mr. Dey, learned senior counsel appearing for the respondent Nos [11] .1 to 4, on the other hand, supporting the judgment and decree passed by the Fir st Appellate Court has submitted that as it is evident from the Exhibit-3 Jamaba ndi that the land covered by Dag No.79 is the Rayati land in respect of which ri yati khatian has been issued, the First Appellate Court has rightly refused to p ass a decree for khas possession in respect of Schedule-B land, for which it has also rightly been held that the plaintiffs have to institute the proceeding und er the provisions of the 1971 Act. Mr. Dey, learned senior counsel, however, ha s fairly submitted that the defendants having no claim in respect of Schedule-C land, the Court below could have pass the decree for confirming the possession o f the plaintiffs in respect of Schedule-C land. Mr. Dey has further submitted t hat it is being the pleaded case of the defendants in the written statement and also the evidence relating to the claim of adverse possession having been led by them, by examining their own witnesses and also by cross-examining the plaintif fs’ witnesses, the Court below ought not to have decreed the suit of the plainti ffs without deciding the claim of adverse possession, which having not been done , it is a fit case for remand to the first Appellate Court to record the finding relating to the claim of adverse possession on the basis of the evidences adduc ed. [12] I have considered the submissions advanced by the learned counse l appearing for the parties and also perused the judgments and decrees passed by the learned Courts below. [13] As noticed above, the case of the plaintiffs in the plaint is th at they acquired the right, title and interest by virtue of purchase, vide regis tered sale deed dated 30th March, 1977 (Exhibit-1) from the original owner Harek rishna Dalai. The defendant Nos.1(a) to 1(d) (respondent Nos.1 to 4 in the appe al) have pleaded that they are in possession of the land described in Schedule-B of the plaint for about 45(forty-five) years, initially through their predecess or-in-interest and presently by themselves. The defendants have denied the titl e of the plaintiffs and according to them, they are possessing the same by clear ing jungle and their right over the Schedule-B land has been perfected by advers e possession. It is neither the case of the plaintiffs in the plaint nor the ca se of the defendants in the written statement filed that the defendants are tena nt either under the plaintiffs or the original owner, namely Harekrishna Dalai. The defendants in the written statement have, however, pleaded the adverse poss ession. The trial Court, in view of the above, ought to have framed the [14] specific issue relating to the adverse possession, which, however, has not been done. Even in the absence of any specific issue on the question of adverse poss ession, the parties, as it appears from the evidences available on record, adduc ed evidence and as such, non framing of the issue would not be a ground for non- deciding the question relating to the adverse possession by the Court below. [15] It appears from the judgment passed by the First Appellate Court that the plaintiffs could prove their title over the Schedule-A land by right o f purchase vide registered sale deed dated 30th March, 1977 (Exhibit-1), which w as duly proved. The First Appellate Court based on the said sale deed has declar ed the right, title and interest of the plaintiffs over the Schedule-A land, wit hout going into the question relating to adverse possession. It has, however, r efused to pass a decree for recovery of khas possession in respect of Schedule-B land, which is part of the Schedule-A land, on the ground that the defendants b eing the tenant, the plaintiffs have to initiate the proceeding under the provis ions of the aforesaid Act for their eviction. Such finding by the First Appellat e Court cannot be sustained as it is nobody’s case that the defendants are tenan t. There is also no evidence on record to demonstrate that the defendants are te nant. The First Appellate Court was also not right in refusing to pass a decree for recovery of khas possession in respect of Schedule-B land solely on the grou nd that in the jamabandi (Exhibit-3), in respect of Dag No.79 of periodic patta No.33, there is a note relating to tenancy, without recording any finding as to the total land in that Dag, as the plaintiffs claim their right only in respect of 3 bighas 4 kathas of land and the tenancy may be in respect of other land in that Dag. In any case, no finding relating to the tenancy can be recorded by the First Appellate Court even if there is evidence on record to that effect, as ne ither of the parties has pleaded the existence of tenancy in the plaint or the w ritten statement filed. The First Appellate Court, however, ought not to have d ecreed the suit of the plaintiffs declaring their right, title and interest in r espect of the Schedule-B land, which is part of the Schedule-A land, without dec iding the claim of the defendants for adverse possession. The decree declaring t he right, title and interest of the plaintiffs and for recovery of khas possessi on in respect of the Schedule-B land would depend upon the determination of the plea of adverse possession taken by the defendants in respect of Schedule-B land . [16] There is no dispute that the plaintiffs are in possession of the Schedule-C land, which land is also part of the Schedule-A land and purchased b y the plaintiffs vide Exhibit-1 sale deed dated 30th March, 1977. The defendants have also no claim in respect of the Schedule-C land. The First Appellate Court has completely overlooked the said position and did not pass a decree declaring the right, title and interest of the plaintiffs in respect of the Schedule-C la nd and also the confirmation of possession. [17] In view of the above, while decreeing the suit of the plaintiffs declaring their right, title and interest and confirmation of possession in res pect of Schedule-C land, which is part of the Schedule-A land, the case is remit ted to the First Appellate Court to record finding relating to the plea of adver se possession taken by the defendants in the written statement and on the basis of the evidences already adduced by the parties and to pass a decree relating to the claim of the plaintiffs for declaration of right, title and interest and re covery of khas possession in respect of Schedule-B land. [18] The Parties are directed to appear before the First Appellate Co urt, i.e. the Court of the learned Civil Judge No.1, Nagaon, on 20th December, 2 012. The First Appellate Court shall make all endeavour to decide the appeal, a s directed, within a period of 2(two) months from the date of appearance of the parties, as fixed by this Court. It is, however, made clear that the First Appellate Court would [19] not go into the question of title and confirmation of the possession of the plai ntiffs in respect of Schedule-C land, which has already been decreed by this Cou rt by this judgment. [20] The appeal is accordingly allowed. No costs [21] as to reach the First Appellate Court on or before 17th December, 2012. The Registry is directed to send down the records forthwith, so