High Court
Case Details
RSA 36/2007 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY This appeal by the defendants, is directed against the judgment and decr ee dated 06.12.2006, passed by the learned Civil Judge, Barpeta, in Title Appeal No.8/2006, allowing the appeal preferred by the plaintiffs, by setting aside th e judgment and decree dated 23.12.2005, passed by the learned Civil Judge (Jr. D ivision) No.1, Barpeta, in Title Suit No.122/2004, whereby and whereunder the su it of the plaintiffs was initially dismissed.
Legal Reasoning
2. The present respondents as plaintiffs instituted the said suit for decla ration of right, title and interest and also for recovery of khas possession by evicting the defendants from the land measuring 3 kathas 12 lechas, more fully d escribed in schedule to the plaint and also for cancellation of the mutation and for issuance of the precept to the revenue authority to correct the record of r ights pursuant to the decree that may be passed, contending inter alia that the suit land originally belonged to Afazuddin, on whose death it devolved on the pl aintiff Nos.1 to 8 and the husband of the plaintiff No.9 being the legal heirs. It has also been contended that the defendant Nos.1 and 2 suddenly on 25.05.2002 dispossessed the plaintiffs from the land, on the strength of the mutation of t heir names in the revenue record, though they did not have any right over the su it land and hence are trespassers. 3. The suit of the plaintiffs has been contested by the defendants by filin g joint written statement taking the plea that there is no cause of action, that the suit is not maintainable in the present form, that there is mis-joinder of causes of action, that the suit is barred under Section 154 of the Assam Land an d Revenue Regulation, that the suit is bad for non-joinder of necessary parties. It has further been pleaded that the suit land originally belonged to Afazuddin , father of the plaintiff Nos.1 to 8 and the husband of the plaintiff No.9, and that the defendants have purchased the suit land from the true owner and pattada rs by registered sale deed and got delivery of possession and as such they have acquired the right, title and interest in respect of the suit land. 4. for determination:- (i) (ii) (iii) essary parties? (iv) land? (v) (vi) (vii) Based on the pleadings of the parties, the following issues were framed Whether there is cause of action of the suit? Whether the suit is maintainable in the present form? Whether the suit is barred by limitation and lead for non-joinder of nec Whether the plaintiffs have got right, title and interest over the suit Whether the plaintiffs are entitled for the decree of khas possession? Whether the plaintiffs are entitled for the decree as prayed for? To what other relief or reliefs the parties are entitled? 5. While the plaintiffs examined two witnesses including the plaintiff No.8 as PW-1 and proved the revenue records i.e. the Jamabandi, which was marked as Ext.-1, the defendants did not adduce any evidence, despite various opportunitie s granted to them. The witnesses examined by the plaintiffs, however, were cross -examined by the defendants. 6. The Trial Court upon appreciation of the evidence on record, both oral a nd documentary, dismissed the suit of the plaintiffs by refusing to declare the right, title and interest on the ground that they have failed to challenge cance llation of the mutation of their names in the revenue record dated 09.03.1994 an d the PW-1 does not know the date of dispossession from the suit land, apart fro m ground that the pleadings in paragraphs 1 and 3 of the plaint suffers from vag ueness and self-contradictory. 7. Being aggrieved, the plaintiffs preferred the aforesaid appeal, which ha s been allowed by the Appellate Court by holding that the plaintiffs could prove the title over the suit land by inheritance and there is no contradiction or va gueness in the averments made in paragraphs 1 and 3 of the plaint. Hence the pre sent appeal. The appeal was admitted for hearing vide order dated 11.05.2007 on the f 8. ollowing substantial questions of law:- (i) Whether a suit is maintainable without swearing an affidavit on oath sup porting the contents and facts of the plaint under Section 26 of the CPC and Ord er 6 Rule 15 after the amendment? (ii) as required under Order VI Rule 2 of the Code of Civil Procedure? (iii) Whether the learned appellate court has committed grave error of law and facts of the case while deciding the Title Appeal without the discussing the is Whether the suit is maintainable without specifying expressed the dates Whether the burden of proof is automatically shifted to the defendants w sues framed by the learned Trial Court and with reversing the same? (iv) hen the plaintiffs failed to prove their burden? (v) Whether the appellate court misconceived the law regarding the cause of action in absence of any specific proof of dispossession by the appellants/ defe ndants to the plaintiffs/respondents from the suit land?
Legal Reasoning
9. I have heard Mr. M.Z. Shah, learned counsel for the appellants. None app ears for the respondents today despite reflection of the names of the learned co unsel appearing for them in the cause list. 10. The learned counsel referring to the provisions contained in Order VI Ru le 15(4) has submitted that despite the mandatory requirement of filing an affid avit by the plaintiffs in support of the pleadings, since the plaintiffs did not file the affidavit, the plaint is defective and hence ought to have been reject ed. The learned counsel submits that the said aspect of the matter has not been gone into by any of the Courts below. It has also been submitted that though und er Order VI Rule 2 CPC, the material facts are required to be pleaded in the pla int, since the plaintiffs did not plead the material facts, the suit of the plai ntiffs ought to have been dismissed by the Appellate Court. The learned counsel further submits that though the defendants did not a 11. dduce any evidence in support of their pleadings that they have purchased the su it land, it does not automatically proves the case of the plaintiffs, as the pla intiffs has to prove their own case, which having not been done, the First Appel late Court ought not to have allowed the appeal by decreeing the suit of the pla intiffs. The learned counsel further submits that there is not specific proof of dispossession of the plaintiffs by the defendants and hence the First Appellate Court was not justified in decreeing the suit of the plaintiffs for recovery of khas possession. 12. I have considered the submissions advanced by the learned counsel for th e appellants and also perused the judgments and decrees passed by the Courts bel ow apart from the relevant records including the evidence adduced by the plainti ffs, both oral and documentary. 13. The record of the suit reveals filing of an affidavit by the plaintiffs, which was sworn on 11.10.2004, in support of the pleadings in the plaint. The s aid affidavit is available in File-C1 of Title Suit No.122/2004. Without going i nto the question whether the requirement of Order VI Rule 15(4) CPC is mandatory and its non-compliance entails rejection of the plaint, since such affidavit ha s been filed, which is available on record, the first substantial question of la w as formulated does not at all arise in the appeal. Relating to the second subs tantial question of law formulated, it appears that the material facts relating to the claim for declaration of right, title and interest and recovery of khas p ossession have been pleaded as required under Order VI Rule 2 CPC. It is a settl ed position of law that the pleadings are to be read as a whole and a sentence c annot be read in isolation of the other pleadings. Reading the pleadings in the plaint as a whole reveals that all necessary material particulars have been plea ded as required under Order VI Rule 2 CPC. 14. Relating to the 3rd, 4th and 5th substantial questions of law, it appear s from the evidence adduced by the plaintiffs, including the revenue record (Ext .-1) that the land originally belonged to Afazuddin, the predecessor-in-interest of the plaintiffs, who have inherited the said suit land after the death of Afa zuddin. They have thus acquired the right, title and interest over the suit land . On the other hand, though the defendants in the written statement have pleaded that they have acquired the right, title and interest over the suit land by pur chase by a registered instrument, they did not lead any evidence to that effect. The plaintiffs having proved the right, title and interest and the defendants h aving failed to prove their pleaded case, the defendants’ possession is unauthor ized and their status is that of a trespasser. It also appears from the evidence that the mutation granted in favour of the plaintiffs was earlier cancelled on 09.03.1994 and the defendants dispossessed the plaintiffs on 24.04.2002. Even if the date of cancellation of the mutation i.e. 09.03.1994 is taken as the date o f dispossession, the suit being instituted within 12 years therefrom, it is with in time, as the claim of the plaintiffs in the suit is based on title. 15. In view of the aforesaid discussion, I am of the view that the First App ellate Court has rightly allowed the appeal by setting aside the judgment and de cree passed by the Trial Court. Hence the appeal stands dismissed. The parties a re directed to bear their own cost throughout. 16. Registry is directed to send down the records.