High Court
Case Details
RSA 64/2002 BEFORE THE HON’BLE MR. JUSTICE N. CHAUDHURY BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY JUDGMENT AND ORDER (ORAL) (Chaudhury, J)
Legal Reasoning
This Second appeal is directed against the judgment of reversal passed b y the learned Civil Judge (Senior Division), Kokrajhar in Title Appeal No. 3 of 1999 allowing the appeal of defendant/ respondent No.2 and thereby setting aside the judgment and decree dated 26.09.1997 and 21.01.1998 respectively, passed by the learned Civil Judge (Junior Division) No.2, Kokrajhar in Title Suit No. 7 o f 1994. The learned first appellate Court by its judgment under challenge dismis sed the suit of the plaintiff/ appellant. [2] One Ratan Lal Saha appellant herein as plaintiff instituted tile suit No. 7 of 1994 in the Court of learend Munsiff No.1, Kokrajhar stating that a plo t of land measuring 9 B 3 K 6 Lechas was formerly under possession of Dhubri Loc al Board and since 1958 the petitioner’s father occupied the plot of land measur ing 2 lechas which is 7 ft in length and 4 ft in breadth over land covered by Da g No. 189 of Khatian No.1 to the knowledge of all including the State of Assam. After the death of Ratan Lal Saha, petitioner continued with the possession and has been running a Pan Shop in the said plot obtaining license under the Assam M unicipal Act, 1956. It is the pleaded case of the plaintiff that after dissoluti on of Dhubri Local Board, the land stood returned to the Government of Assam and with the constitution of Gosaigaon Town Committee in the year 1972, the land w as neither acquired by the Government nor did the Government vest the same on th e Town Committee and as such the right of Padalal Saha (father of the plaintiff, now deceased) acquired in the year 1958 due to uninterrupted possession over th e plot of land in question and continuance of the possession of the plaintiff op enly and hostile to the interest of others matured into valid title by right of adverse possession. The plaintiff further contended that Lat Mandal of the State of Assam visited the land and threatened the plaintiff with dispossession, for which the plaintiff issued notice under section 80 CPC against the State of Ass am stake claim of adverse possession. After the expiry of the statutory period o f 60 days, the suit, therefore, was instituted for declaration of right, title a nd interest by way of adverse possession. [3] The defendant No.1, herein, the State of Assam, submitted a written sta tement through the Collector of the Kokrajhar district pleading, inter alia, tha t the land was not a Khas land, but a patta land under the Sub-Divisional Office r, Kokrajhar, who was shown as pattadar in the records of rights. The said defen dant No.1 did not say that the land was acquired and vested otherwise on the def endant No.2, namely, Gossaigaon Town Committee under Section 62 (1) (e) of the A ssam Municipal Act, 1956 or by any other law for the time being in force. On the other hand, defendant No.2 submitted a written statement claiming that the land being a market place vested on it under Section 62 (1) (e) when Gosaigaon Town Committee was established in the year 1972. Since the plaintiff had been paying tolls against occupation of the shop under the municipality, it could not have a cquired the right of the adverse possession. [4] On the basis of such contradictory claims of all the three parties as referred to above, the learned trial court framed as many as 7 issues and the s ame are quoted below: (cid:28)1) Whether there is any cause of action? 2) Whether the suit is barred by law of limitation? 3) Whether the suit is bad in law for non-joinder and mis-joinder of parties? 4) Whether the plaintiff has continuous possession adversely against the defenda nt have acquired ay right, title and interest over the suit land? 5) Whether the plaintiff by opening shop daily is public marked any by paying da ily tolls to the lessee of the market acquire states of land holder under land l aws? x x x x x x x 6) Whether plaintiff can assert to claim open adverse possessional right against x x x the defendant being a toll payer to the lessee? 7) Whether the Town Committee by virtue of Govt. Notification U/S 334 A.M. Act a cquire the uninterrupted rights of the market land under provision of Section 62 (1) of A.M. Act for over all management and development? (cid:29) [5] The plaintiff examined 2 witnesses and the defendant No.2 also examin ed 2 witnesses. Defendant No.1 did not examine any witness and did not produce a ny record. Defendant No.2, namely, Gosaigaon Town Committee, has not produced any notifica tion/ order of 1972 whereby the land is claimed to have vested on the defendant No.2 by operation of Section 62 (1) (e) of the Assam Municipal Act, 1956. After perusal of the materials on record the learned trial court decreed the suit hold ing that the right, title and interest of the suit land really vested on defenda nt No1. and same got extinguished because of adverse possession of the plaintiff . The said judgment was passed on 26.09.1997. [6] Aggrieved, the defendant No.2 as sole appellant preferred title appeal No. 3 of 1999 in the Court of learned District Judge at Kokrajhar, without, how ever, making the defendant No.1 a party. The plaintiff was impleaded as sole res pondent who appeared and contested the appeal, inter alia, on the point of maint ainability. The defendant No.1 who is stated to be the holder of title of land i n question either as khas land or as patta land on the basis of patta in favour of Sub-Divisional Officer of Kokrajhar did not prefer any appeal and thus, the d ecree of trial court attained finality in so far as the defendant No.1 is concer ned. But without considering this aspect of the matter, the learned appellate co urt by his judgment and decree dated 20.12.2001 allowed the appeal holding that the petitioner did not acquire any right of adverse possession against the defen dant No.2 and consequently the suit of the plaintiff was dismissed. This appella te judgment of reversal has been brought under challenge in the present Second A ppeal. This Court while admitting this Second Appeal on 26.04.2002 framed 2 foll owing substantial questions of law: (cid:28)i) Whether the learned lower appellate court was justified in reversing the dec ree in the appeal filed by the Gossaigaon Town Committee in absence of the main defendant the State of Assam? ii) Whether the impugned judgment and decree of the learned lower appellate cour t is vitiated by error of law due to consideration of documentary evidence in th e form of Exhibit ’A’ 1, 2 , C, D-1, D-2 and D-3? (cid:29)
Legal Reasoning
[7] I have heard Mr. B. R. Dey, learned Senior Counsel assisted by Ms. B . Das and Mr. S. Dey, learned counsel for appellant. None appeared for the respo ndents although the name of engaged counsel Mr. K. K. Nandi has been shown in th e cause list. Learned Government Advocate was also not available when the appeal was called on for hearing. Under such circumstances, I have to precede to decid e the appeal ex-parte in the absence of the engaged counsel of the respondents. [8] It is the pleaded case of the plaintiff/ appellant that the suit lan d belonged to the Government and it never vested on the defendant No.2 though th e defendant No.2 by filing written statement claimed to have acquired title but no notification whatsoever has been brought on record to substantiate the said c laim. On the other hand, the defendant No.1 the State of Assam, has taken a spec ific stand that the land was neither Khas nor vested on anybody rather it is a p atta land owned by Sub-Divisional Officer, Kokrajhar. Thus, the claim of the def endant No.2 that it is Municipality land or that it is a market land or that the same has vested on the defendant No.2, though pleaded, could not be established by adducing evidence. The only evidence that has been brought on record by the defendant No.2 is that the licenses given to the plaintiff for running shop. Exh ibit-A is an application submitted by one Kanailal Joarder and others showing th at they were ready to remove their existing shops and electrification when Town Committee would inform them. Exhibit-A (ii) is a similar letter addressed to Exe cutive Officer of Gosaigaon Town Committee. Exhibit-B is an advertisement issued by the Executive Officer of Gossaigaon Town Committee proposing to go for const ruction of market area with certain terms and conditions. Upon perusal of the sa id advertisement, I do not find any Dag number or patta number therein to connec t the same with the present suit land. On the other hand, the plaintiff has prod uced certain documents. Exhibit-3 is a receipt of license for running a Pan Shop . So are the Exhibits-2 and 5. It is true that the land falls within the area of Town and as such any trader is bound under law to obtain trade license for runn ing his business. Such a trade license for running a Pan Shop cannot be interpre ted to be a document of license against the possession of land, more so, when th ere is nothing on record to hold that the land vested on the Town Committee. The decree has been passed against the defendant No.1, the Officer of which had thr eatened the plaintiff for eviction. The learned trial court held that the defend ant No.1 was the real title holder, irrespective of whether the land was a patta land or a khas land. It was also held that such title of the pattadar stood ext inguished because of adverse possession of the plaintiff since 1958. In this vie w of the matter decree passed by the learned trial court is really against the d efendant No.1. The said defendant No.1 admittedly has not preferred any appeal. The defendant No.2 preferred the appeal on behalf of itself without; however, im pleading the defendant No.1 as a party. Section 99 CPC prohibits setting aside o r modifying a decree of trial court on the ground of non-joinder of a party. But the proviso appended thereto shows that such a provision would not apply if the party not joined is a necessary party. Here in this case, it cannot be said by any stretch of imagination that the defendant No.1 against whom the decree was p assed is not a necessary party and as such failure to implead such a necessary p arty can definitely vitiate the appeal. This position that by nonimpleading a ne cessary party vitiate an appeal can be tested from different angle. Assuming tha t a decree is directed against both the defendants. In that event failure of one of the defendants to challenge the decree and allowing the decree to attain fin ality and thereafter appeal by the other defendant without the non appealing def endant party cannot affect the right of decree holder accured to him owing to pa ssivity of a defendant. It is not in doubt that the suit relates to only one plo t of land measuring 7 ft by 4 ft and as such when this 7 ft by 4 ft is claimed b y 2 defendants and decree by one such defendant attains finality, maintaining ap peal by the other party without bringing on record the non appealing party, woul d result in severe once a decree which is otherwise not severable. In that event also the decree of injunction against to one of the contesting defendants would remain in force whereas the same as apart another would cease to exist, if, the appeal is allowed. So, such an exigency shall give rise to dichotomous position . Hence in this case decree of prohibitory injunction against defendant No.1 rem ained in force whereas because of the impugned judgment the same against defenda nt No.2 stood vacated. Can such a situation be visualized when the suit land is same, unpartitioned and compact? This only points out that the appeal has to be held incompetent in the absence of defendant No.1. Consequently, appellate judgm ent allowing such appeal is not sustainable in law. The first substantial questi on of law, therefore, is decided infavour of the appellant and against the defen dants. [9] Having held that the appeal itself is incompetent and as such the appe llate judgment is not sustainable in law, there is no necessity of deciding the second substantial question of law, which only relates to validity of the appell ate decree for non consideration of certain exhibits. If the appeal itself is in competent, by questioning, whether the appellate Court did or did not consider t hose exhibits, is irrelevant? Therefore, the second substantial question of law is abandoned being not relevant. In the result the second appeal is allowed. The impugned appellate judgment passed by the learned Civil Judge Senior Division, Kokrajhar, is set aside and the learned trial court decree passed by the learned Civil Judge Junior Division No.2, Kokrajhar, in title suit No.7 of 1994 is rest ored. [10] Draw up a decree accordingly and send down the records to the learne d courts below. [11] No order as to cost.