High Court
Case Details
RSA 23/2003 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the defendants is directed against the judgment and decree dated 12th June, 2002 passed by the learned District Judge, Karimganj, in Title Appeal No.11/1993, whereby and whereunder the appeal preferred by the present appellan ts has been dismissed by affirming the judgment and decree dated 25th May, 1987 (decree drawn on 5th June, 1987) passed by the learned Munsiff No.2, Karimganj i n Title Suit No.356/1982.
Legal Reasoning
The predecessor-in-interest of the present respondents, namely, [2] Sushil Kumar Chakraborty, instituted the aforesaid suit for declaration that the predecessor-in-interest of the present appellants, namely, Parimal Bala Devi, i s the benamdar of the plaintiff in respect of the suit land, for conformation of possession and for injunction restraining the defendant from transferring the s uit land, contending inter alia that suit land was purchased by the plaintiff vi de registered deed of sale dated 2nd March, 1969 (Exhibit-1) executed by Dinesh Chandra Das and others in favour of the defendant, Parimal Bala Devi, mother of the plaintiff, as benamdar, though the entire consideration amount was paid by t he plaintiff. It has further been contended that though the suit land was purch ased in the name of his mother, the plaintiff continued to be in possession and as the defendant, i.e. the plaintiffs’ mother, threatened to transfer the land o n 18th September, 1982, the right to sue accrued on that date and hence, he file d the suit on 22nd December, 1982 claiming the reliefs, as noticed above. [3] The defendant contested the suit by filing written statement den ying the claim of the plaintiff and contending inter alia that the suit land was purchased from the fund arranged by her by selling the stree-dhan, i.e. the gol d ornaments, vide registered deed of sale dated 2nd March, 1969 (Exhibit-1). [4] e following issues for determination:- Based on the pleadings of the parties, the trial Court framed th (cid:28)1. Is there and cause of action for the suit? 2. Is the suit under valued and plaint insufficiently stamped? 3. Whether the suit is maintainable in its present form? 4. Whether the plaintiff has got right, title and interest over the suit land an d whether defendant No.1 is benamdar of Plaintiff? 5. To what relief, if any, is the plaintiff entitled? (cid:29) [5] Though no issue relating to the question of limitation, as raise d by the defendants in the suit, has been framed, parties have led evidence on s uch question. The trial Court upon appreciation of the evidence on record, decre ed the suit of the plaintiff by holding that the suit has been filed within time , the suit is maintainable as is not hit by the provisions of the Benami Transac tion Prohibition Act, 1988 (in short, (cid:28)1988 Act (cid:29)) and that the plaintiff could p rove that the consideration amount was paid by him, while the defendant has fail ed to prove that the same was paid by her. [6] Being aggrieved, Parimal Bala Devi, the defendant, preferred Tit le Appeal No.11/1993, which has been allowed vide judgment and decree dated 25th April, 1994 by setting aside the judgment and decree passed by the trial Court, by holding that the suit of the plaintiff is bared by time, having not institut ed within 3(three) years from the date of execution of the sale deed dated 2nd M arch, 1969 (Exhibit-1) and that in view of the provisions of the 1988 Act, the s uit is not maintainable. The issue No.4, however, has not been discussed, in vie w of the decision given in the question of limitation and the maintainability of the suit. During pendency of the said appeal, both the plaintiff and the defend ant died and in their places, the present respondents as well as the appellants were substituted. The present respondents being aggrieved by the aforesaid judgmen [7] t and decree passed by the first appellate Court preferred Second Appeal No.143/ 1994, which has been disposed of vide judgment and order dated 26th April, 2000 remanding the appeal to the first appellate Court for deciding the question of l imitation as well as the maintainability of the suit afresh, having regard to th e decision of the Apex Court in R. Rajagopal Reddy -Vs- Padmini Chandrasekharan reported in AIR 1996 SC 238. [8] On remand, the learned District Judge, Karimganj, decided the sa id appeal vide impugned judgment and decree dated 12th June, 2002, dismissing th e appeal and affirming the judgment and decree passed by the trial Court on 25th May, 1987. The said appeal was decided on 2(two) issues, i.e. issues relating to limitation and maintainability without, however, deciding the issue No.4. Th e first appellate Court has held that the suit of the plaintiff is maintainable, as according to the plaintiff, as pleaded in the plaint, the right to sue accru ed to him on 18th September, 1982, when the original defendant threatened to ali enate the property. The first appellate Court without, however, recording any f inding relating to the claim of the plaintiff that the defendant threatened the plaintiff on 18th September, 1982 to alienate the property, based on which it is the case of the plaintiff that his suit is not barred by time, has decided the question of limitation in favour of the plaintiff. Hence, the present appeal. [9] The appeal was admitted for hearing vide order dated 11th March, 2003 on the following substantial questions of law:- (cid:28)1. Whether the suit is barred by limitation in view of Article 113 of the Limit ation Act, 1963? 2. Whether the learned Courts below erred in decreeing the suit by mis-interpret ing and mis-construing the deed, Ex.1? (cid:29)
Legal Reasoning
[10] I have heard Mr. S.K. Ghosh, learned counsel for the appellants/ defendants and Mr. N. Dhar, learned counsel appearing for the respondents/plaint iffs. [11] Referring to the first substantial questions of law formulated, it has been contended by the learned counsel for the appellants that since it is the claim of the plaintiff that his right to sue accrued on 18th September, 198 2, i.e. the date on which, according to the plaintiff, the defendant threatened to alienate the property, a finding of fact has to be recorded by the Courts bel ow as to whether there was in fact any threatening to alienate the property as p leaded by the plaintiff, which finding of fact, however, has not been recorded b y any of the Courts below. The learned counsel submits that the first appellate Court vide impugned judgment and decree dated 12th June, 2002 has held that the suit of the plaintiff is not bared by limitation, only on the basis of the plea dings in the plaint and without looking for the proof thereof. [12] With regard to the second substantial question of law formulated , Mr. Ghosh, learned counsel has submitted that since the defendant in Title App eal No.11/1993 has questioned the finding recorded by the trial Court against th e issue No.4, the first appellate Court has to record its finding in relation to the said issue, which has not been done by the first appellate Court either in the judgment dated 25th April, 1994 or in the subsequent judgment on remand date d 12th June, 2002 and hence, the challenge made to the finding recorded against the issue No.4 has remained unattended to and unanswered. The learned counsel, therefore, submits that it is a fit case where the appeal may be remitted to the first appellate Court for deciding the said appeal afresh, based on the evidenc e adduced by the parties, both on the issues relating to limitation and also iss ue No.4. The learned counsel has, however, fairly submitted that in view of the judgment passed by the Apex Court in R. Rajagopal Reddy (supra), the question o f maintainability of the suit need not be gone into as the sale deed was execute d prior to the date when the 1988 Act came into effect. [13] Mr. Dhar, learned counsel appearing for the respondents, on the other hand, has submitted that though the trial Court in the judgment and decree dated 25th May, 1987 did not record any finding relating to the question of lim itation, the first appellate Court in the impugned judgment and decree dated 12t h June, 2002 has gone into the question of limitation, as directed by this Court vide judgment and order dated 26th April, 2000 passed in Second Appeal No.143/1 994 and has recorded the finding that the right to sue having accrued to the pla intiff on 18th September, 1982, and the suit having been filed within 3(three) y ears thereafter, it is within time, in view of the provisions contained in Artic le 113 of the Limitation Act. [14] Mr. Dhar, learned counsel further submits that though the first appellate Court either in its earlier judgment dated 25th April, 1994 or in the subsequent judgment on remand dated 12th June, 2002, did not specifically rejec ted the contention of the defendants in the appeal, challenging the finding reco rded by the trial Court in issue No.4, since the appeal preferred by the defenda nt has been dismissed, it tantamount to rejection of the contention of the defen dants relating to the said issue. [15] I have considered the submissions advanced by the learned counse l appearing for the parties and also perused all the judgments and decrees refer red to above. [16] The trial Court while passing the judgment dated 25th May, 1987 decreeing Title Suit No.356/1982 in favour of the plaintiff, did not discuss the question of limitation as raised by the defendant in the written statement. The first appellate Court vide judgment dated 25th April, 1994 has decided the ques tion of limitation against the plaintiff by holding that as the suit was filed b eyond 3(three) years from the date of execution of the sale deed (Exhibit-1), th e same is bared by limitation, having not instituted within 3(three) years as re quired under Article 113 of the Limitation Act. By the said judgment, the first appellate Court has also held that the suit of the plaintiff is not maintainabl e, in view of the provisions contained in 1988 Act. The first appellate Court v ide judgment and decree dated 25th April, 1994 did not decide the issue No.4, in view of the decision in the appeal on the question of limitation and maintainab ility. The second appellate Court vide judgment and order dated 26th April, 200 0, however, in view of the subsequent judgment passed by the Apex Court in R. Ra jagopal Reddy (supra) remanded the appeal to the first appellate Court for decid ing the question of limitation as well as the question of jurisdiction, i.e. the maintainability of the suit, afresh. [17] The first appellate court, on remand, passed the judgment and de cree dated 12th June, 2002, dismissing the appeal preferred by the defendants an d by upholding the judgment and decree dated 25th May, 1987 passed by the trial Court, without, however, deciding the issue No.4. The first appellate Court, on remand, by the aforesaid judgment and decree has also decided the 2(two) issues, namely, the issues relating to the limitation and maintainability in favour of the plaintiff. The issue relating to the limitation has been decided by the fir [18] st appellate Court, based on the pleadings in the plaint that the defendant thre atened to alienate the suit property on 18th September, 1982, on which date, the right to sue accrued and hence, in view of the provision contained in Section 1 13 of the Limitation Act, the suit of the plaintiff is not barred by limitation, the same having been filed within 3(three) years thereafter. The first appella te Court, however, did not bother to go into the question whether the plaintiff could prove such a plea in the plaint, though required, as the plaintiff claimed that his suit is not barred by limitation as the right to sue accrued on 18th S eptember, 1982. The question of limitation being a mixed question of law and fa cts, the Courts below have to record finding based on the pleaded case of the pl aintiff relating to the limitation, which has not been done in the instant case. As noticed above, the first appellate Court neither it its judgment and decree dated 25th April, 1994 nor in the judgment and decree dated 12th June, 2002, pa ssed on remand, recorded any finding relating to the issue No.4 and hence, the c hallenge to the finding recorded against the issue No.4 remains unanswered. The first appellate Court, being the final Court on facts, is required to decide al l the issues by formulating points for determination based on the evidence adduc ed by the parties, which has not been done. [19] In view of the above, the judgment and decree dated 12th June, 2 002 passed by the learned District Judge, Karimganj in Title Appeal No.11/1993 i s set aside. The appeal is remanded to the first appellate Court for deciding t he 2(two) issues, i.e. the issue relating to the limitation as well as the issue No.4, based on the evidence already on record. The issue relating to the maint ainability of the suit need not be gone into, in view of the judgment passed by the Apex Court in R. Rajagopal Reddy (supra). [20] The parties are directed to appear before the first appellate Co urt on 16th December, 2013. The first appellate Court, having regard to the fact that the suit was instituted in the year 1982, is directed to decide the said s uit within 45(forty-five) days from the date of appearance of the parties. The Registry is directed to send down the records to the first a [21] ppellate Court, i.e. the Court of the learned District Judge at Karimganj, so as to reach the Registry of the said Court before the date fixed for appearance of the parties. [22] No costs. The appeal is accordingly allowed to the extent indicated above.