High Court
Case Details
RSA 174/2002 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL) This appeal by the plaintiffs is directed against the judgment and decree dated 30.5.2000 passed by the learned Civil Judge (Sr. Division), Hailakandi in Title Appeal No. 34/2000 allowing the appeal preferred by present respondent and partl y reversing the judgment and decree dated 13.9.2000 (decree drawn on 22.9.2000) passed by the learned Civil Judge, (Jr. Division) No. 2, Hailakandi in Title Sui t No. 85/1988 whereby and whereunder the suit of the plaintiff was dismissed by decreeing the counter claim filed by respondent/defendant. 2.
Legal Reasoning
The predecessor-in-interest of the appellants, Dilip Kumar Nath, filed the suit against Md. Ali Raja and the respondent Nos. 2 to 5, as defendan ts, praying for declaration of right, title and interest in respect of the land measuring 2 bighas 8 kathas 8 chataks and 1 bigha 4 katahs 4 chataks in the west ern part under Dag No. 1 of 2nd RS patta No. 1 under mouza Uttar Jasnabad Part I , Pargona Barnarpur, district Cachar, more fully described in the schedule to th e plaint and for confirmation of possession in respect of 2 bighas 8 kathas 8 ch ataks of land and recovery of possession in respect of 1 bigha 4 katahs 4 chata ks of land which is in the western part thereof in Dag No. 1, second RS patta No . 1 contending inter alia that the land measuring 19 bighas 18 kathas 3 chataks of dag No. 1 of second RS patta No. 1 was curved out from the said patta, which originally belonged to the predecessor-in-interest of the plaintiff, comprised i n two strips, one measuring 12 bighas 12 kathas 11 chataks in the southern strip and in the northern strip 7 bighas 5 kathas 8 chataks. The entire land of the p laintiff’s predecessor was attached in connection with the loan which was subseq uently purchased by Hare Kishore Chakravorty in auction, through court and becam e the possessor thereof through tenants. It has also been pleaded that the fathe r of the defendant No. 11 purchased the entire land from Hare Kishore Chakravort y on 17.7.1940 and got another land measuring 4 bighas 17 kathas in the northern portion of the said land, and on the same day transferred 4 bighas 17 kathas in the northern side of the said land to Lohit Mohan Nath. The defendant No. 11 th en purchased the remaining land from the successor of Bhabananda Singha and Kshe tri Babudhan Singha by two registered sale deeds dated 21.3.1957 and 16.11.1962 respectively and became the owner thereof. It has further been pleaded that one Bachhna Singh purchased another part of the plot from said Lalit Mohan Nath and became the owner and thereafter the plaintiff and his brother (the predecessor-i n-interest of the proforma defendant Nos. 10 ka to 10 niya) purchased 7 bighas 5 kathas 8 chataks of land from proforma defendant No. 11 and Bachhna Singh by tw o registered deed of sale dated 21.3.1958 and 11.8.1961 and became the owner in respect of the said land. The further pleaded case of the plaintiff is that vide sale deed dated 7.4.1965 Kutub Ali and Saukat Ali, the father and paternal uncl e of the defendant Nos. 6/7, purchased 1 bigha 4 katahs 4 chataks in the eastern part of the said land from the proforma defendant No. 11 and became the owner a nd possessor in respect thereof and for the convenience of living they made an a greement with the proforma defendant Nos. 10 Ka to 10 niya for exchange of the s aid land. It has further been pleaded that the said defendants after execution o f a deed of exchange of land dated 31.5.1969 handed over the said land including 1 bigha 4 kathas 4 chataks to the predecessor-in-interest of the proforma defen dant Nos. 10 ka to 10 niya and since then they are enjoying the possession of th e land. According to the plaintiffs the defendant Nos. 6 and 7 became the owner and possessor of 1 bigha 4 kathas 4 chataks having purchased the said land from the proforma defendant Nos. 10 ka and 10 niya by registered deed of sale dated 2 .7.1971. The further case of the plaintiff is that the defendant Nos. 6 and 7 so ld the said land to the plaintiff and his brother i.e. predecessor-in-interest o f profroma defendant Nos. 10 ka 10 niya by registered deed of sale dated 21.4.19 72, which in turn was sold in favour of Aklu Mia, proforma defendant No. 9, by r egistered sale deed dated 21.12.1983 (Ext. 22), with specific boundary and menti oning that the same is 33 nals away from the eastern boundary. It is also pleade d that Aklu Mia sold it to Ali Raja (defendant No. 1) vide sale deed dated 26.12 .1983 (Ext. E). According to the plaintiff since the defendant has dispossessed the plaintiff from the 1 bigha 4 kathas 4 chataks of land and clouded the title in respect of land measuring 2 bighas 8 katahs 8 chataks, he has to file the sui t for declaration as aforesaid. The defendant Nos. 1 to 4 contested the suit by filing the writt 3. en statement alleging inter alia that there is no cause of action, that the suit is not maintainable in its present form, that the suit is bad for defects of pa rties etc. The defendants have denied the allegation and material averments of t he plaintiff. According to the contesting defendants the eastern portion of the suit land comprising an area of 1 bigha 4 katha 4 chataks was purchased by the p laintiff from Kutub Ali and the plaintiff has been possessing this land through Aklu Mia. The land situated to the contiguous west of the aforesaid land i.e. we stern portion of the alleged suit land comprising an area of 1 bigha 4 kathas 4 chataks was purchased by the defendant No. 1 Ali Raja from defendant No. 9 Aklu Mia and defendant No. 1 has right, title and possession over his land, which is specifically described in the schedule of the written statement. The land situat ed to the further west, was purchased by the father of the defendant No. 8 from one Bonomali Singha and at present defendant No. 8 Jalal Uddin has been possessi ng the said land. The answering defendants have in denied the right, title of po ssession of plaintiff over the western portion of the suit land by virtue of his alleged purchase. According to the defendants, plaintiffs, in collusion with Ak lu Mia gave incorrect description in the sale deed dated 26.12.1983. It has, the refore, been pleaded that the plaintiff’s suit is liable to be dismissed with co st. The defendants have also brought a counter claim in their written statement praying for declaration of right, title in the land which was purchased vide dee d dt. 26.12.1983 and described in the schedule of the written statement. 4. aim of the defendant. The plaintiff filed the written statement against the counter cl On the basis of the pleadings of both the parties the following 5. issues were initially framed: - (cid:28)1. Is there any cause of action of the suit? 2. Is the suit maintainable in its present form? 3. Is the suit bad for waiver, estoppel and acquiescence? 4. Is the suit beyond the pecuniary jurisdiction of this court/ 5. Is the suit under valued and insufficiently stamped? 6. Whether cause of action for the eastern half of suit land arose on and from 2 3.2.1988 or 16.5.1989? 7. Whether the western half of the suit land and the land mentioned in the sched ule of the written statement are same land and whether the answering defendant i s tha owner of the same? 8. To what relief or relief if any plaintiff is entitled? The learned Civil Judge (Jr. Division) thereafter framed the fol 6. lowing additional issues: (cid:28)1. Whether the plaintiff has right, title and interest in the entire suit land and has possession over the eastern half of the suit land? 2. Whether the plaintiff is entitled to get khas possession of the western half of the suit land? 3. Whether the defendants are entitled to get any relief in respect of their cou nter claim? (cid:29) 7. The suit of the plaintiff was initially decreed by dismissing th e counter claim filed by the defendants, which decree, however, was set aside by the first appellate court and remanded the case for fresh trial by framing the following two additional issues: - 1. Whether the counter claim preferred by the defendant cover entirely a differe nt land and beyond the suit land? 2. Whether the market value of the property of counter claim is Rs. 70,000.00 an d whether the counter claim is not sufficiently valued and stamped by the plaint iffs? (cid:29) 8. The trial court upon hearing the learned counsel for the parties and on the basis of the evidence adduced by the parties decreed the suit of the plaintiff by dismissing the counter claim vide judgment and decree dated 3.9.20 00. Being aggrieved the defendants preferred Title Appeal No. 34/2000 which has been allowed vide judgment and decree dated 30.5.2002, partly decreeing the suit of the plaintiff and decreeing the counter claim of the defendant in full. Henc e the present appeal. 9. During pendency of the first appeal the original plaintiff died and in his place the present appellants were substituted. Similarly the original defendant No. 1 also died during pendency of the present appeal and in his plac e the respondent Nos. 2 to 5 being already on record no substitution application has been filed being not necessary. The appeal was admitted for hearing vide order dated 21.3.2003 o 10. n the following substantial question of law: - (i) Whether the first appellate court was wrong in construing that the land in E xts. E and 22 are same and whether there was any case of non reading of the Exts . before the court below as Exts. 27(a) and 27(b)?
Legal Reasoning
11. ll as Mr. Das, learned counsel appearing for the respondents. I have heard Mr. Ghosh, learned counsel for the appellants as we 12. Referring to the judgment and decree passed by the first appella te court it is submitted by the learned counsel for the appellant that though th e trial court taking into account the description of the land given in Ext. 22 a nd also the Ext. 27(a) and 27(b) came to the finding that by Ext. 22 the land me asuring 1 bigha 4 katahs 4 chataks was transferred beyond 33 nals from the easte rn boundary by the original plaintiff Dilip Kr. Nath in favour of Aklu Mia, whic h land was sold by Aklu in favour of defendant No. 1 vide Ext.E sale deed 26.12. 1983, the first appellate court has reversed the said finding even without discu ssing the description of the land given in Ext. 22 and also evidence of Aklu Mia that he has purchased the land from Dilip Nath beyond 33 nals which land he has sold to Ali Raja (defendant No. 1). According to the appellant the appellate co urt decreed the counter claim of the defendant and set aside the decree passed b y the trial court in favour of the plaintiff solely on the ground there is not m ention in the sale deed that Aklu Mia sold the said land in favour of Ali Raja b eyond 33 nals from the eastern boundary of the land, though Aklu Mia in his depo sition has stated that he has purchased the land beyond 33 nals from Dilip Nath in the eastern boundary. The learned counsel submits that the first appellate co urt being the final court on facts, though is required to discuss all the eviden ce on record more particularly when it is a judgment of reversal, having not bee n done, the judgment needs to be set aside and the appeal needs to be remanded t o the first appellate court for fresh decision on the said issues. 13. The learned counsel for the respondents on the other hand submit s that it is evident from the judgment passed by the first appellate court that there is absolutely no mention about leaving of 33 nals from the eastern boundar y in the sale deed dated 26.12.2983, Ext. E, executed by Aklu Mia in favour of A li Raja, defendant No. 1, and hence no illegality has been committed by the firs t appellate court in allowing the appeal. The learned counsel, therefore, submit s the judgment does not suffer from non reading of the report as well as the Map , Ext. 27(a) and 27(b). 14. I have considered the submissions advanced by the learned counse l for the parties. It is evident from the judgment passed by the trail court tha t issue Nos. 7, additional issue Nos. 1 and 2 and the further additional issues as framed, as per the direction of the first appellate court, were decided by th e trial court based on the evidence of all the witnesses of the plaintiffs as we ll as Aklu Mia, proforma defendant No. 9, who has been examined as PW 6, apart f rom the map as well as the commissions report marked as 27(a) and 27(b). 15. It also appears that Aklu Mia in his evidence has admitted that he has purchased the land measuring 1 bigha 4 kathas 4 chataks from Dilip Nath, (Ext. 22), which is 33 nals away from the eastern boundary. Aklu Mia has also ad mitted that he sold the said land to Ali Raja on 26.12.1983 (Ext. E). The first appellate court, however, while deciding the said issues has held that as in the sale deed 26.12.1983, Ext. E, by which Aklu Mia had sold 1 bigha 4 kathas 4 cha taks of land in favour of Ali Raja (defendant No. 1) there is no mention of leav ing 33 nals from the eastern boundary, the defendant have acquired right, title and interest in respect of 1 bigha 4 kathas 4 chataks of land as claimed in the counter claim, without discussing entire evidence on record adduced by the parti es. The first appellate court being the final court on fact is requi 16. red to discuss all the evidence on record, more so when it is a judgment of reve rsal, which has not been done in the instant case, more particularly while discu ssing the most important issue, i.e., whether the land sold by the plaintiff to Aklu Mia, proforma defendant No. 9, vide sale deed dated 21.12.1983 (Ext. 22) is the same land sold by Aklu Mia to Ali Raja (defendant No. 1) vide sale deed dat ed 26.12.1983 (Ext. E). That being the position, the judgment and decree passed by the f 17. irst appellate court is set aside and the appeal is remitted to the first appell ate court for deciding the same afresh, on the basis of the evidence adduced by the parties. The parties are directed to appear before the first appellate court on 29.7.2013 who shall within two months thereafter decide the said appeal, aft er hearing the parties. 18. 19. 20.
Decision
The appeal is allowed to the extent indicated above. The parties are directed to bear their own cost. The Registry is directed to send down the records so as to reach the court below on or before the date fixed for appearance of the parties.