High Court
Case Details
RSA 160/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (oral) T. Goswami, learned counsel for the respondent. Heard Mr. P.S. Deka, learned counsel for the appellants and Mrs.
Legal Reasoning
[2] This appeal has been filed by the defendants in Title Suit No.54 /1993 challenging the judgment of reversal dated 29th June, 2002 passed by the l earned Civil Judge (Sr. Division) No.2 at Guwahati in Title Appeal No.14/1998, d ecreeing the suit of the plaintiff/respondent by reversing the judgment and decr ee dated 6th April, 1998 passed by the learned Civil Judge (Jr. Division) No.2 a t Guwahati in Title Suit No.54/1993, whereby and whereunder the suit of the plai ntiff was dismissed on the ground limitation. [3] The respondent herein as plaintiff, instituted the said suit for declaration of his right, title and interest and recovery of khas possession co ntending inter alia that he purchased the suit land from the predecessor-in-inte rest of the defendants by 2(two) registered deeds dated 11th August, 1970 and 9t h February, 1971, whereafter though he was put into possession, he was subsequen tly dispossessed by the defendants on 18th June, 1992, who also subsequently rai sed a thatched chali on the suit land and damaged the trees grown thereafter. On receipt of summons, the present appellants/ defendants entere [4] d appearance and filed their joint written statement denying the execution of th e sale deeds, contending inter alia that the plaintiff might have obtained the s ale deed fraudulently as Bheluram Kalita was mentally not sound. It has further been contended that late Bheluram Kalita in the year 1960 partitioned the land amongst the 3(three) sons, namely, the defendant Nos.1 and 2 and the predecessor -in-interest of the defendant Nos.3 to 8 and the land all along under the posses sion of the defendants, who are residing thereon by constructing the dwelling ho uses. [5] es were framed by the trial Court:- On the basis of the pleadings of the parties, the following issu (cid:28)1. Whether there is cause of action for the suit? 2. 3. Whether the suit is barred by limitation? Whether the plaintiff has right, title and interest over the suit land? 4. t and/or any other relief? (cid:29) Whether the plaintiff is entitled to the reliefs prayed for in the plain [6] The plaintiff in order to prove his case has examined 3(three) w itnesses including the plaintiff himself as PW-3. The defendants have examined 5 (five) witnesses including the defendant No.4 as DW-1, defendant No.6 as DW-2 an d the defendant No.5 as DW-4. The plaintiff has also proved 5(five) documents, which are marked as Exhibits-1 to 5. The defendants have proved 16(sixteen) doc uments being Exhibits-Ka, Kha and Ga(i) to Ga(xiv). The trial Court upon appreciation of the evidence on record, whi [7] le holding that by virtue of the aforesaid sale deeds (Exhibits-1 and 2) the pla intiff has acquired right, title and interest over the suit land, however, has d ismissed the suit of the plaintiff on the ground that it is barred by the law of limitation as the plaintiff never possessed the land after the execution of the said sale deed. It has further been held that there is no cause of action for f iling the suit. [8] Being aggrieved the plaintiff/respondent filed the aforesaid appeal, which has been allowed by holding that the suit of the plaintiff is not barred b y limitation. The issue relating to the declaration of right, title and interes t has also been decided in favour of the plaintiff by refusing to allow the defe ndants to argue the said issue in their favour, in view of non-filing of the wri tten cross-objection/cross-appeal. [9] er, 2002 on the following substantial question of law:- The appeal was admitted for hearing vide order dated 26th Novemb Whether the lower appellate Court was right in coming to the conclusion that the plaintiff’s suit was not barred by limitation? [10] Mr. Deka, learned counsel appearing for the appellants has submi tted that though the trial Court has recorded a clear finding that the suit of t he plaintiff is barred by limitation, having not instituted within 12(twelve) ye ars from the date of execution of the sale deed, on being found that the plainti ff was never put into possession after such sale deeds were executed, the first appellate Court ought not to have disturbed the said finding recorded by the tri al Court without discussing all the evidences on record, though required, the sa id Court being the final Court on facts. It has been submitted that such findin g on the question of limitation has been reversed by the first appellate Court o nly upon discussing the evidence of 2(two) PWs, namely, PW-1 and PW-2, without bothering to look into the evidence adduced by the defendants, namely, the evid ence of DWs-1 to 5. [11] Referring to the provisions of Order 41 Rule 22 of the CPC, it h as also been submitted by the learned counsel for the appellants that since the respondent in the first appeal, though may not have appeal from any part of the decree, may not only support the decree but may also state that the finding agai nst him in the Court below in respect of any issue ought to have been decided in his favour, the first appellate Court was not justified in refusing to go into the question of title as decided by the trial Court, on the ground that the resp ondent has not filed any cross-appeal or cross-objection. The learned counsel, therefore, submits that the judgment and de [12] cree passed by the first appellate Court may be set aside and the matter may be remitted to the first appellate Court for deciding the same afresh, on the basis of the evidences already adduced by the parties. [13] Mrs. Goswami, learned counsel appearing for the respondent, on the other hand, supporting the judgment and decree passed by the first appellate Court, h as submitted that as the trial Court has dismissed the suit of the plaintiff on the ground of limitation without discussing the evidence on record, the first ap pellate Court has rightly set aside the said decree, upon holding that the suit of the plaintiff is not barred by law of limitation, on the basis of the evidenc e adduced. It has also been submitted that the present appellants having not fi led any written cross-objection/cross-appeal, the first appellate Court has righ tly refused the present appellants to argue on the issue relating to the right, title and interest of the respondent/plaintiff. [14] As discussed above, the trial Court has dismissed the suit of th e plaintiff on the ground of limitation, without, however, discussing all the re levant evidence on record. The first appellate Court has disturbed said finding and decreed the suit of the plaintiff by holding that the suit is not barred by limitation. The same was done after discussing the evidence of only PWs-1 and 2, without bothering to discuss the other evidences on record including the evid ences of DWs-1 to 5. [15] The first appellate Court being the final Court on facts, is req uired to discuss all the evidences on record, more so, when the finding recorded by the trial Court is disturbed, which has not been done in the instant case. [16] In view of the above, the judgment and decree passed by the firs t appellate Court is set aside. The appeal is remitted to the first appellate C ourt for deciding the same afresh, on the basis of the evidence on record. Appe al is accordingly allowed as indicated above. [17] The parties are directed to appear before the first appellate Co urt on 22nd July, 2013, who within 2(two) months thereafter, shall decide the ap peal in accordance with law. [18] as to reach the first appellate Court before the date fixed for appearance. The Registry is directed to send down the records forthwith, so