High Court
Case Details
RSA 73/2004 BEFORE THE HON’BLE MR.JUSTICE N. CHAUDHURY JUDGMENT AND ORDER (ORAL) This second appeal has been preferred by the plaintiffs challenging the concurre nt findings of both the courts below in regard to the prayer of the plaintiffs f or declaration of the right, title and interest and recovery of khas possession over a plot of land measuring 2 Bigha 8 Lechas covered by Dag No. 716 of periodi c patta No.50 of Monaha Kissam &, Mouza in the District of Morigaon. The learned Trial Court by judgment and decree dated 26.06.2003 in Title Suit No. 8 of 2001 dismissed the suit holding that the plaintiffs failed to prove right, title and interest with respect to the suit land and also their possession over the same was not proved. As against the said judgment plaintiffs preferred Title Appeal N o. 20 of 2003 before the learned Civil Judge (Senior Division) No.1, Morigaon, a nd the said appeal was also dismissed on 24.12.2013. Against these said 2 (two) judgments, the present second appeal has been preferred. [2] The plaintiffs Tileshwar Medhi & Ghana Kanti Medhi are two sons of Late Tarapada Medhi, who on turn was one of the 7 sons of Bhutiram Medhi. The plainti ffs pleaded that land measuring 2 Bigha 8 Lechas covered by Dag No. 716 of Perio dic Patta No. 50 under Monaha Kissam & Mouza in the district of Morigaon fell in the share of Tarapada Medhi on amicable partition. The suit land is described i n the Schedule-A to the plaint. According to the plaintiffs, their grandfather L ate Bhutiram Medhi originally owned and possessed land measuring 4 Bigha 3 Katha 8 Lechas covered by Dag No. 351 of Periodic Patta No.33 as per settlement opera tion of 1957-58 and after his death his legal heirs got the land amicably partit ioned consequent to which suit land measuring 2 Bigha 8 Lechas, more particularl y described in Schedule-A to the plaint, fell in the share of the plaintiffs’ fa ther Tarapada Medhi. Further case of the plaintiffs was that subsequently the de fendants entering into collusion among themselves had shown a false partition wh ich did really never happen and on the basis of the same the plaintiffs were dis possessed in the year 1990. The defendants fraudulently made transfer of the lan d in favour of defendants No. 6 & 7. The plaintiffs, therefore, prayed not only for declaration of their right, title and interest over the suit land with a dec ree for recovery of possession but also for further declaration that the partiti on claimed by the defendants so as to grab the Schedule-A land was illegal, inop erative and fraudulent. [3] On being summoned, the defendants appeared and submitted written stateme nt. In their written statements, defendants admitted that the suit land original ly belonged to one Bhutiram Medhi and have also admitted that there was amicable partition but they disputed the statement that the suit land fell in the share of the plaintiffs after partition. According to the defendants, the suit land or iginally fell in the share of Naren Medhi who obtained mutation in his favour an d subsequently in the year 1990 he transferred the suit land to other defendants for establishing a school i.e. B.M. Prathamik Bidyalaya in the name of Bhutiram Medhi and also in favour of Kanak Ch. Medhi, the defendant No.6. According to t he defendants, the records of rights bear testimony to the fact that the partiti on claimed by them is correct and that suit land never fell in the share of the plaintiffs’ father Late Tarapada Medhi. [4] On the basis of the aforesaid rival contention, the learned trial court framed as many as 7 issues which were subsequently recast and reframed. Those is sues are quoted below:
Legal Reasoning
(cid:28)i ) Whether there is any cause of action of the suit? ii) Whether the suit is maintainable in the present form? iii) Whether the plaintiffs has right, title and interest over the suit land through right of inheritance? father Tarapad Medhi at the time of amicable partition? iv) Whether the suit land fell into the share of the plaintiff’s as possession? for? v) Whether the plaintiffs are entitled to get the decree for kh vi) Whether the plaintiffs entitled to get the relief as prayed vii) To what relief/ reliefs the parties are entitled to? (cid:29) [5] In course of trial plaintiffs examined as many as 3 witnesses including the plaintiff No.1 and exhibited 9 documents, whereas the defendant examined 3 w itnesses who are defendant No.2, defendant No. 6 & defendant No.9. The defendant exhibited 3 documents as Exhibits- ’Ka’, ’Kha’ & ’Ga’. [6] After hearing the learned counsel for the parties and on perusal of the materials available on record, the learned Trial Court passed judgment on 20.06. 2003. By the said judgment the learned Trial Court took up issue No.4 as first i ssue which is in regard to the claim of the plaintiffs that suit land had fallen in the share of their father Late Tarapada Medhi. Consequent to amicable partit ion among the legal heirs of Bhutiram Medhi in deciding the issue No.4, the lear ned Trial Court considered the exhibits relied on by the parties and came to fin ding that name of Narendra Nath Medhi, defendant No.1, exists in the records of rights since 1968-69 settlement operation which is evidenced by entry of his nam e in the records of rights as the original pattadar. Subsequently, the names of defendants No. 6 & 7 were mutated in place of original pattadar Naren Medhi in t he year 1990. On this observation and in the absence of any written memorandum o f the settlement for amicable partition among the legal heirs of Bhutiram Medhi, the learned Court was of the considered opinion that the plaintiffs failed to g ive any plausible explanation as to how, his predecessor could be owner in posse ssion of the suit land when it is apparent that defendant No.1 is the recorded p attadar since 1968. As per entries made in the records of rights suit land fell in the share of Naren Medhi. On these considerations the learned Trial Court hel d that the plaintiffs did not have any right, title and interest over the suit l and. Moreover according to the learned Trial Court, the plaintiffs could not pro ve possession over the Schedule-A land and as such the question of recovery of p ossession also did not arise. Be that as it may, along with the said issue the l earned Trial Court while deciding the issue of maintainability of the suit, made an observation that the suit is barred under Section 154 of the Assam Land and Revenue Regulation, 1886, inasmuch as the entries in the records of rights have been challenged in the suit. Against the aforesaid judgment of the learned Trial Court, plaintiffs ap [7] proached the learned Civil Judge (Senior Division) No.1 by preferring an appeal. The appeal was numbered as Title Appeal No. 20 of 2003. The learned First Appel late Court after hearing the learned counsel for the parties was of the view tha t the issue No.4 was the principal issue which was really the bone of contention between the parties and accordingly, without going for determining any point fo r determination as is required under the provision of Order XLI Rule 31 proceede d to decide the appeal issue wise. Issue No.4 was taken up first and all the mat erials particularly Exhibit.1, Exhibit- ’Ka’ and other exhibits adduced by the p arties were duly considered. The learned First Appellate Court was of the view t hat the plaintiffs could not prove the said issue in their favour. Consequently, it was held by the learned First Appellate Court that the land described in the Schedule-A of the plaint fell in the share of Naren Medhi i.e. defendant No.1 a nd not in favour of Tarapada Medhi, the predecessors in interest of the plaintif fs. The learned First Appellate Court did not feel necessity to discuss the othe r issues and dismissed the appeal by his judgment dated 24.12.2003 in view of fi ndings in issue No.4. [8] Plaintiffs preferred second appeal against both the aforesaid judgments. This Court while admitting the second appeal on 14.05.2004 framed the following 2 (two) issues and the same are reproduced below: Whether the suit is barred under Section 154 of the Assam Land and Reven Whether the judgment of the lower Appellate Court is bad for not framing the points for determination as provided under Order 41 Rule 31 of the Code of i) ue Regulation? ii)
Legal Reasoning
I have heard Mr. A.C. Sarma, learned counsel for the appellants and Mr. Civil Procedure? [9] Z. Mukit, learned counsel for the respondents. [10] According to the learned counsel for the appellants the plaintiffs file d the suit for declaration of right, title and interest and not for declaration that any endorsement made in the records of rights are erroneous or illegal and as such the findings of the learned Trial Court that the suit is barred by Secti on 154 of the Assam Land and Revenue Regulation, 1886, is erroneous. According t o the learned counsel for the appellants, the Appellate Court failed to take int o consideration these aspects of the matter and as such fell into error of law. Learned counsel for the appellants submits that without deciding the question of maintainability of the suit, it was not open on the part of the learned First A ppellate Court to enter into the merit of the case and accordingly, the appeal i s liable to be allowed setting aside the aforesaid judgments of the learned Cour ts below. It is well settled principles of law that a suit for declaration of ri ght, title and interest cannot be barred by Section 154 of the Assam Land and Re venue Regulation, 1886, as such the first substantial question of law framed by this Court is required to be decided in the negative holding that the suit of th e plaintiffs was maintainable, the learned counsel for the appellants maintained . Coming to the second substantial question of law the leaned counsel [11] for the appellants, however, fairly submits that in view of the fact that the le arned First Appellate Court proceeded to decide the appeal issue wise, there was substantial compliance of the provision of Order XLI Rule 31 and as such the le arned counsel did not argue the same. [12] Per contra, Mr. Z. Mukit, learned counsel for the respondents would argu e that even if the first substantial question of law is decided in favour of the appellants the end result does not change inasmuch as both the Courts have decl ared that the plaintiffs do not have right, title and interest with respect to t he suit land. The dismissal of the suit at least on issues No.3 & 4 and affirmat ion thereof by the First Appellate Court cannot in any way be disturbed. Accordi ng to Mr. Z. Mukit the two substantial questions of law framed by this Court at the time of admission of the second appeal are not material for the purpose of s econd appeal. The learned counsel for the respondents submits that the findings in regard to title having been given concurrently by both the Courts against the plaintiffs and the said findings not having been challenged in any way before t his Court, the second appeal is liable to be dismissed. [13] By Section 154 of the Assam Land and Revenue Regulation, 1886, some m atters have been exempted from cognizance of Civil Court and it includes the mat ters in regard to preparation of records of rights. As many as 14 items have bee n mentioned under Section 154 giving an exhaustive list of the exempted items. T he suit of the plaintiffs relates to declaration of right, title and interest wh ich is neither included in Section 154 nor could it be so included. Section 9 CP C has vested Civil Courts to decide any suit of civil nature excepting the suit of which cognizance is barred specifically by a statute. So, except the items me ntioned in various Clauses of Section 154 all other items shall be covered by Se ction 9 CPC. A civil court has been endowed with plenary power to entertain any suit of civil nature as long as the jurisdiction is not barred specifically by a ny statute. So, to confer jurisdiction of Civil Court, no other provision is nec essary in view of provision under Section 9 CPC. Rather, ouster of jurisdiction of civil court can be done by a specific statutory provision only. Even if the j urisdiction of civil court is otherwise barred by any statute even thereafter wh en there is violation of the fundamental judicial Procedure and/ or provisions o f the said Act and/ or the Principles of natural justice, a civil suit shall lie . The suit in hand is one for declaration of right, title and interest and the s ame, prima facie, does not come in any of the items mentioned under Section 154 of the Assam Land and Revenue Regulation. In that view of the matter the finding of the learned Trial Court that the suit is barred under Section 154 is erroneo us. The first substantial question of law, therefore, is decided in the negative and in favour of the plaintiffs. [14] The second substantial question of law has not been pressed by the learn ed counsel for the appellants as has been stated above. The question then arises after having decided the first substantial question of the law framed in the se cond appeal in favour of the appellants what would happen to the impugned judgme nts? This takes us to the findings of the learned Courts below which are referre d to above. The learned Courts below have held that the plaintiffs have failed t o prove their right, title and interest and possession over the Schedule-A to th e plaint and this being the basic issue or the crux of the suit, the plaintiffs are not entitled to any relief. This is what has happened in the present case. P laintiffs’ suit may be maintainable but the facts remain that the plaintiffs cou ld not prove their right, title and interest. In that view of the matter althoug h the substantial question No.1 of law is decided in favour of the appellants ye t the findings of the learned courts below on merit. i.e. claim of plaintiffs as to right, title and interest over the Schedule-A are not interfered. Consequent ly, the said concurrent findings of fact and the decision that the plaintiffs ar e not entitled to relief are upheld. [15] Interim order, if there be any, shall stand automatically vacated.