Gauhati High Court
Ramdhan Sinha vs Notified Area Authority, Kailashahar on 13 June, 2001
Equivalent citations: AIR 2001 GAUHATI 149, (2001) 3 GAU LR 469 (2002) 1 CIVLJ 528, (2002) 1 CIVLJ 528
JUDGMENT
1. By this revision petition filed under Section 115 of the CPC the petitioner challenged the impugned order dated 30.5.1994 passed by the learned Munsiff, North Tripura, Kailashahar in Title Suit No. 13 of 1994 (Special Case).
2. For the purpose of deciding the present petition, the following facts need to be briefly stated:-
The respondent-Notified Area Authority, Kailashahar filed a case purportedly under Section 90 of the CPC seeking for the opinion of the Court relating to the matter involved in the plaint. The plaintiff arrayed as many as 13 person including the present petitioner as defendant in the said suit contending, inter alia, that on 29.2.1994 a lawful bona fide contract was entered into between the plaintiff and defendant, for setting the case for the opinion of the Court and the contract was made in writing and along with the plaint the contract had also been submitted and the suit was valued at Rs. 10 for the purpose of jurisdiction and Court fees.
The present petitioner being a plaintiff filed another petition under Section 90 of the CPC having arrayed the State of Tripura, Executive Engineer, PWD and Notified Area Authority, Kailashahar as Opposite Parties contending, inter alia, that on the strength of registered sale deed dated 17.12.1996 and another sale deed dated 18.12.1996 the petitioner purchased land measuring 2 Kanis from the erstwhile rightful owner Akhil Chandra Ghosh and since purchase the petitioner has been in possession of the said land uninterruptedly beyond the prescribed period of limitation and the said land stood recorded in the petitioner's name in the record of right prepared by the Revenue Department.
The SDO, Kailashahar took up a programme for constructing drainage and road development of Kailashahar Town and the petitioner came to know that the SDO Kailashahar and other Opposite Parties made an attempt to lay out the alignment for the purpose of widening the road and in this way the petitioner's land has been attempted to be encroached. In order to resolve the said dispute it was settled that the SDO Kailashahar would make a reference of the dispute to the Court under Section 90 of the CPC so the petitioner also sought for appointment of a Survey Commissioner for demarcating the land.
The learned Trial Court registered the petition having arrayed as many as 13 private parties including the present petitioner as defendant on the basis of the petition filed by the Notified Area Authority, Kailashahar and registered it as Title Suit No. 13 of 1994 (Special Case) vide order dated 28.2.1994. The learned Trial Court appointed a Survey Commissioner and on receipt of the report, heard the arguments of the parties and delivered the impugned judgment on 30.5.1994. The learned Trial Court accepted the Commissioner's report and decreed the suit and against the impugned judgment and decree, the present petitioner preferred this Civil Revision under Section 115 of the CPC.
3. The learned senior counsel, Mr. A. Chakraborty appearing for the respondent-Notified Area Authority, Kailashahar raised a preliminary objection as to the maintainability of the Civil revision. According to him, since the learned Trial Court finally decreed the suit, the remedy available to the petitioner was to prefer regular appeal under Section . 96 read with Order XLI of the CPC. The learned senior counsel, Mr. S. Deb appearing for the petitioner having referred rule 6 of Order XXXVI submits that no appeal lie from a decree passed under rule 5 of the said order of the CPC. On perusal of the impugned judgment and decree it appears that the learned Trial Court registered the case having assumed jurisdiction under Section 90 of the CPC and as such the impugned decree has been passed under rule 5 of Order XXXVI of the CPC and thus in view of rule 6 thereunder no appeal is maintainable and as such in my considered opinion, the petitioner rightly approached this Court with the revision. The revision petition is maintainable.
4. The learned counsel for the petitioner submits that the learned Trial Court ought to have registered as many as 13 cases under Section 90 of the CPC instead of one consolidated case because of the fact that as many as 13 private individual persons entered into agreements in writing with Notified Area Authority, Kailashahar for referring the disputes for the opinion of the Court and the each agreement had been executed by the parties separately relating to their individual respective lands described in the individual agreement and as such the registration of one case by the learned Trial Court vitiated the entire proceeding and the impugned judgment/decree have been passed having no jurisdiction. Though the written agreement as contemplated under Section 90 of the CPC has not been annexed with the formal petition filed by the Notified Area Authority, Kailashahar on which the learned Trial Court took cognizance and registered the case, but the agreements in writing signed by the parties are very much available with the Lower Court Record. In the Lower Court Record as many as 13 written agreements are available executed by 13 individuals separately and each agreements contain the land of different descriptions with different quantums belonging to the 13 individual persons and as such it cannot be held that there was one written agreement seeking reference of the dispute for the opinion of the Court as contemplated under Section 90 of the CPC. Every agreement should have been treated as individual case seeking reference and the learned Trial Court should have registered individual agreement as a separate reference case, notwithstanding for convenience sake trial could have been held analogously. Since the agreements appear to be separate with reference to separate land belonging to the individuals, the revision petition filed by present petitioner without having arrayed the other . 12 individuals is maintainable. The petitioner is interested and concerned with his own land described in the agreement seeking reference and he has no way been concerned with the other land described in the other agreements relating to other 12 persons.
5. Now, the only question posed before me is whether the learned Trial Court committed any jurisdictional error in deciding the care and that question is to be examined with reference to the provision embodied in Section 90 read with Order XXXVI of the CPC. Section 90 authorises the Court to enter in a reference to express his opinion on the basis of written agreement by the parties expressing their desire to refer the matter for the opinion of the Court, but the procedure to adjudicate the matter has been prescribed under Order XXVI of the CPC. For convenience sake the relevant provisions of Section 90, Section 2(16) and Order XXVI rule 2 and 3 are extracted below:-
Special Case "90. Power to state case for opinion of Court. - Where any person agrees in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed."
"(16) "Prescribed" means prescribed by rules."
Order XXXVI rules 2 sand 3:
"2. Where value of subject matter must be stated. - Where the agreement is for the delivery of any property, or for the doing, or the refraining from doing, any particular act, the estimated value of the property to be delivered, or to which the act specified has reference, shall be stated in the agreement.
3. Agreement.to be filed and registered as suit. - (1) The agreement, if framed in accordance with the rules hereinbefore contained, may be. filed (with an application) in the Court which would have jurisdiction to entertain a suit, the amount or value of the subject matter of which is the same as the amount of value of the subject matter of the agreement.
(2) (The application) when so filed, shall be numbered and registered as a suit between one or more of the parties claiming to be interested a plaintiff or plaintiffs, and the other or the others of them as defendant of defendants; and notice shall be given to all the parties to the agreement, other than the party or parties by whom (the application was presented.)"
6. The learned counsel for the petitioner submits that in the written agreements it appear that the dispute arose regarding the claims and counter claims over the land described in the agreements. The Notified Area Authority, Kailashahar claimed that the khas land remained under the possession of the individuals including the present petitioner while the petitioners claimed that they had been possessing their Jote lapd. So, obviously the dispute regarding the delivery of quantum of land as specified in the agreement had been referred for the opinion of the Court and as such in view of rule 2 of Order XXXVI the estimated value of the property or so much of property what intended to be delivered as described in the agreement ought to have been specified in the agreement and in view of rule 3, only in case an agreement is framed in accordance with the rules of Order XXXVI the Court could assume jurisdiction. The learned counsel for the petitioner submits that since the agreement has never been framed in accordance with the provision of Order XXXVI of the CPC, the Court should not have assumed jurisdiction and as such the learned Trial Court having no jurisdiction entertained in the suit and decided the matter by the impugned Judgment and decree and thus the same is liable to be quashed.
7. In view of rule 2 of Order XXXVI of the CPC stipulates the agreement so far it relates to delivery of immovable property must contain the estimated value of the said property and rule 3 prescribes that the Court can assume jurisdiction only if the agreement is framed in accordance with the rules 1 and 2 of Order XXXVI of the CPC.
8. On perusal of the agreement entered into in writing by the petitioner and the respondent dated (no date mentioned) it appears that no estimated value of the property described in the agreement and thus the requirement of rule 2 of Order XXVI appears to be lacking. In that view of the legal position, the learned Trial Court should not have assumed jurisdiction.
9. The object of putting the estimated value as has been required under rule 2 is very much purposeful as it is manifestly revealed from rule 3, because rule 3 says that estimated value put in the agreement would decide the pecuniary jurisdiction of the Court.
10. The learned counsel for the petitioner having referred the written agreements submits that the written agreements executed jointly by the petitioner and the respondent contain the land covered by C.S.Plot No. 4207, 4208, 4209 and 4210 and thus having paid a look to the records of right and the agreements it appears that the said agreements pertains to land measuring 0'558 acres (1 Kani 7 gandas 2 kara and odds) and the valuation of which would exceed the pecuniary jurisdiction of the learned Court below and as such the impugned judgment and decree passed by the learned Trial Court is without jurisdiction.
11. After careful consideration of the materials available in the Lower Court record and on consideration of the impugned judgment and decree and having applied the provision embodied in Section 90 and Order XXXVI of the CPC, I am of the considered opinion that since the agreement entered into by the petitioner and the respondent does not contain the estimated value of the land described therein, the provision of rule 2 of Order XXXVI has not been fulfilled and as such the Court should not have assumed jurisdiction in view of rule 3 of Order XXXVI and consequently the judgment and decree passed by . the learned Trial Court is without jurisdiction and liable to be interfered in exercise of revisional power under Section 115 of the CPC and as such I am of the considered opinion that the learned Trial Court assumed Jurisdiction quite illegally in deciding the reference.
12. In the result, this revision petition is allowed. The impugned judgment and decree passed by the learned Trial Court in Title Suit No. 13 of 1994 so far it relates to the land covered by the agreement entered into between the petitioner Shri Ramdhan Sinha and the respondent Notified Area Authority is hereby quashed/set aside. No order as to costs.