High Court · 2012

The predecessor-in-interest of the present appellants instituted Title Suit No. 32/1976 in the Court of the learned Senior Judge (Junior Divisio n), No. 2 at Tezpur against the present respondent as defendant for declaration of right, title and interest and confirmation of possession and also for a decre e for permanent injunction contending inter alia that the original plaintiff Rad haballav Saha took lease of 2‰ kathas of land about 23 years back and has been r esiding thereon by constructing initially a thatched house and two roofed CI she et house and thereafter RCC building on the northern portion of the suit land ap art from constructing pucca well and latrine. It has further been pleaded that i n front of the RCC building there was open space where the plaintiff used to par k his truck and also used the same for approaching to the main road, which open space has been in his use and occupation for about 17 years. The further pleaded case of the plaintiff is that he allowed the defendant to live in the room bein g part of the four roofed CI sheet house constructed by the plaintiff and though the defendant was a tenant he, however, on 3.5.1976 prevented the plaintiff fro m parking his truck in the open space and on 4.5.1976 collected bricks for raisi ng structure which necessitated filing of the suit for declaration of right, tit le and interest and confirmation of possession, apart from a decree for permanen t injunction.

3. The defendant on receipt of the summon contested the suit by fil ing the written statement contending inter alia that 1 katha of land was taken o n lease by Premananda Sikdar, the father of the original plaintiff and the defen dant from its owner and constructed first a two roofed CI sheet house and then f our roofed CI sheet house thereon with the money borrowed from the Govt. of Assa m under the refugee rehabilitation scheme and started living there with his fami ly. It has further been pleaded that the plaintiff thereafter, took lease of ano ther plot of land to the northern side of the suit land and constructed RCC buil ding on the said land and started living there with his family. According to the defendant after the death of Premananda, his wife and the youngest son shifted to the house of the plaintiff and started living there with the plaintiff while the defendant continued to live on the suit land and in the house constructed th ereon. It has also been pleaded that thereafter the lease was created in the nam e of the defendant by its owner and ultimately on 5.4.1976 the defendant purchas ed the suit land from the owner. The defendant, therefore, denies the right, tit le and interest of the plaintiff as well as his possession over the suit land an d prayed for dismissal of the suit. 4. y the trial court for determination :- (cid:28)1. Whether there is any cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is bad for waiver, estoppel and acquiescence? 4. Whether the suit is bad for nonjoinder or necessary party? 5. Whether the suit is barred by limitation? 6. Whether the plaintiff has right, title and interest over the suit land? 7. Whether the defendant has right, title and interest over the suit land? On the basis of the pleadings the following issues were framed b

8. Whether the defendant purchased the suit land by registered sale deed on 5.4. 1976 and possessed the same? 9. To what relief or reliefs, if any, the plaintiff is entitled to? (cid:29)

5. During pendency of the suit the original plaintiff Radhaballav S aha died and in his place the present appellants were substituted as plaintiffs vide order dated 5.8.1997 passed by the trial court.

6. Both the plaintiffs and the defendant examined two witnesses eac h and proved some documents which were marked as exhibits. The witnesses were du ly cross examined by the respective parties. The trail court upon appreciation o f the evidences on record dismissed the suit of the plaintiff vide judgment and decree dated 6.12.1999. The plaintiffs being aggrieved filed Title Appeal No. 6/ 2000 on 16.2.2000 together with an application seeking condonation of delay of n ine days in preferring the appeal against the said judgment and decree dated 6.1 2.1999. The first appellate court accordingly issued notice on the application s eeking condonation of delay. After filing of the aforesaid memorandum of appeal along with the application seeking condonation of delay, the defendant filed two applications, one under Section 152 of the CPC and the other under Order 47 Rul e 1 and 2 CPC, which were registered as Misc. (J) case Nos. 12/2000 and 13/2000 before the trial court, seeking review of the findings recorded against the issu e Nos. 7 and 8. The said applications were allowed by the trial court vide order dated 15.7.2000 by deciding the issue Nos. 7 and 8 de novo and in favour of the defendant, without disturbing the decision on the other issues and also without disturbing the ultimate decree passed by the trial court dismissing the suit of the plaintiffs.

7. The plaintiffs, in view of the review of the findings on issue N os.7 and 8 recorded by the trial court, filed an application seeking amendment o f the memorandum of appeal filed against the judgment and decree dated 6.12.1999 , by way of incorporation of additional grounds challenging the findings recorde d by the trial court against the issue Nos. 7 and 8 vide order dated 15.7.2000. The said application by the plaintiffs was filed on 1.9.2000 as it appears from the record of the Title appeal No. 6/2000. The first appellate court has dismiss ed the appeal preferred by the plaintiffs/appellants by refusing to admit the sa me on the ground that the decree passed on 6.12.1999 is non existent in view of the subsequent order passed on 15.7.2000 in the aforesaid Misc (J) Cases allowin g the review and as such the appeal preferred by the plaintiffs/appellants again st the judgment and decree dated 6.12.1999 is not maintainable. The first appell ate court, however, while doing so did not consider the application filed by the plaintiffs seeking amendment of the memorandum of appeal by way of incorporatio n of new ground, after the decision of the trail court against the issue Nos. 7 and 8 was altered on the basis of the review applications filed by the defendant . Hence the present appeal.

8. The appeal was admitted for hearing vide order dated 1.5.2002 on the following substantial question of law:-

1. Whether the learned First Appellate Court erred in law in not admitting and d ismissing the appeal under Order 41 Rule 11(4) of the Code of Civil Procedure ho lding it as not maintainable because of review of impugned judgment resulting in to altering of findings of issue Nos. 7 and 8 stated to be not necessary without considering applications for condonation of 9 days’ delay in preferring appeal and for amendment of Memorandum of Appeal for incorporating additional grounds o f appeal against the review?

9. Ms B Choudhury, learned counsel appearing for the respondents. Heard Mr. Khetri, learned counsel for the appellants as well as

10. The learned counsel for the appellant submits that since the app ellants have filed the application seeking amendment of the memorandum of appeal by way of incorporation of the additional grounds challenging the subsequent fi nding recorded by the trial court on 15.7.2000 against the issue Nos. 7 and 8 on the basis of the review applications filed by the defendant, the first appellat e court ought not to have dismissed the appeal preferred by the appellants on th e ground that in view of the subsequent order dated 15.7.2000 passed by the tria l court the earlier decree dated 6.12.1999 became non existent and hence the app eal preferred against the judgment and decree dated 6.12.1999 is not maintainabl e, without considering the application filed by the appellant seeking amendment of the memorandum of appeal by way of incorporation of additional grounds.

11. The learned counsel appearing for the respondents has contended that in view of the subsequent order passed on 15.7.2000 by the trial court allo wing the applications filed by the defendant seeking review of the findings reco rded against issue Nos. 7 and 8 the decree dated 6.12.1999 became non existent a nd hence the first appellate court has rightly dismissed the appeal of the plain tiffs preferred against the judgment dated 6.12.1999 as not maintainable.

12. As discussed above, the trial court vide judgment and decree dat ed 6.12.1999 while answering the issue Nos. 7 and 8 against the defendant has, h owever, dismissed the suit of the plaintiffs against which the appeal was prefer red by the plaintiffs/appellants together with an application seeking condonatio n of delay of nine days. While the said application seeking condonation of delay was pending for consideration, two applications were filed by defendant, one un der Section 152 CPC and the other under Order 47 Rule 1 and 2 of the CPC seeking review of the findings recorded by the trial court against the issue Nos. 7 and 8. The review petition filed by the defendant was allowed vide order dated 15. 7.2000 by altering the finding earlier recorded in the judgment and decree dated 6.12.1999 and deciding the said issues in favour of the defendant without, howe ver, disturbing the ultimate decree passed by the trial court against the plaint iffs. The plaintiffs thereafter filed the application seeking amendment of the m emorandum of appeal by way of incorporation of grounds challenging the judgment and decree dated 15.7.2000 passed on the basis of the review petition. The first appellate court, however, without considering the said application for amendmen t of the memorandum of appeal has passed the impugned judgment and decree dated 17.7.2001 dismissing the appeal preferred by the appellants against the judgment and decree 6.12.1999 on the ground that it is not maintainable in view of the o rder passed in the review petition dated 15.7.2000. The approach of the first ap pellate court is found to be too technical and the aforesaid order has been pass ed without considering the aforesaid application seeking amendment of the memora ndum of appeal by way of incorporation of additional grounds challenging the fin ding recorded by the trial court against issue Nos.7 and 8 by the subsequent ord er dated 15.7.2000 whereby the issue Nos. 7 and 8 were answered in favour of the defendant without, however, disturbing the ultimate decree passed in the suit a gainst the plaintiff. In view of the above the judgment and decree dated 17.7.2001 pas 13. sed by the first appellate court is set aside. The matter is remitted to the lea rned Civil Judge, Sonitpur at Tezpur for deciding the Title Appeal No. 6/2000 af resh taking into consideration the application seeking amendment of the memorand um of appeal and also the application seeking condonation of delay. The first ap pellate court shall make endeavour to decide the said appeal within a period of three months from the date of appearance of the parties.

14. urt on 10.12.2012. The parties are directed to appear before the first appellate co

15. s to reach the said court on or before 01.12.2012. The Registry is directed to send down the records forthwith so a

16. The appeal is accordingly allowed by answering the substantial q uestion of law. No cost.