Gauhati High Court
Amal Ghatak And Anr vs Kanan Bala Datta on 9 June, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
RSA No.83 of 2005
Sri Amal Ghatak and others ... ... Appellants
-Versus-
Sri Subrata Dutta ... ... ... Respondent.
BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY For the appellants : Ms. B. Choudhury, Advocate.
For the respondent : None appeared at the time of hearing.
Date of hearing : 09.06.2016.
Date of Judgment : 09.06.2016.
JUDGMENT & ORDER (Oral)
1. Plaintiffs of Title Suit No.113/1984 of the Court of learned Civil Judge (Junior Division) No.1, Sonitpur at Tezpur being aggrieved by the first appellate judgment and decree dated 30.06.2004 in Title Appeal No.15/1998 of the Court of learned Civil Judge (Senior Division), Sonitpur at Tezpur has preferred this Second Appeal. The learned Civil Judge (Junior Division), Tezpur had decreed the suit of the plaintiffs on RSA No.83/2005 Page 1 of 13 30.05.1998 declaring their right, title and interest over the suit land also for recovery of khas possession by evicting the defendants from the suit land measuring about 10 lechas covered by Dag No.2478 of NK Patta No.4 of Tezpur Town under Mahabhairab Mouza. The learned First Appellate Court reversed the decree of the learned trial Court and dismissed the suit holding that the suit is bad for non-joinder of necessary parties. Aggrieved, the present Second Appeal has been preferred by the plaintiffs.
2. The legal heirs of Late Birendra Chandra Ghatak as plaintiffs instituted Title Suit No.113/1984 in the Court of learned Sadar Munsiff at Tezpur stating that suit land measuring 1 Katha 15 Lechas were originally owned by Haleswar Debalaya of Tezpur under N.K. Patta No.5 and Dag No.2478. One Abdul Hakim possessed the suit land and he thereafter by executing a registered sale deed on 23.01.1947 transferred the land to one Jagadish Chandra Dutta along with house standing thereon. Jagadish Chandra Dutta improved the land and made some constructions thereon and also obtained another registered document from the Sebait of Haleswar Debalaya on 05.03.1953. He got his name mutated in the records of rights on the basis of the aforesaid purchase deeds. Thereafter, he sold the suit land measuring 1 katha 15 lechas along with residential house and latrine to one Birendra Chandra Ghatak on 27.12.1963 by executing a registered sale deed and handed over possession. Upon death of Birendra Chandra Ghatak the plaintiffs RSA No.83/2005 Page 2 of 13 being his legal heirs inherited the right, title and interest and continued possessing and enjoying the same. But on 16.11.1984 the defendants who are owner in occupation of the adjacent northern plot trespassed into the land and dispossessed the plaintiffs from about 10 lechas of land by demolishing a pucca structure of two seater latrine. The suit, therefore, was instituted for delivery of khas possession by evicting the defendants from the suit land and also for compensation of Rs.3000/- along with cost and consequential injunction etc.
3. On being summoned the defendants appeared and submitted a written statement denying the allegation of trespass and/or dispossession and even the title of the plaintiffs over the suit land. The defendants denied title of Abdul Hakim or Jagadish Chandra Dutta over the suit land and claimed that they have been possessing the suit land since 1967 without any hindrance from any quarter and as such the suit be dismissed with cost.
4. On the basis of the aforesaid pleadings of the parties the learned trial Court framed as many as 8 issues and the same are quoted below :-
"1. Whether the suit is maintainable in its present form?
2. Whether there is any cause of action for the suit?
3. Whether the suit is bad for non-joinder of necessary parties?
4. Whether the plaintiffs have right, title and interest over the suit land?RSA No.83/2005 Page 3 of 13
5. Whether the defendants have been in peaceful possession of the suit land for long 18 years since 1967?
6. Whether the defendant demolished any two seated pucca latrine constructed by the plaintiffs on the suit land?
7. Whether the plaintiffs are entitled to a decree as prayed for?
8. To what relief/reliefs are the parties entitled?"
5. In course of trial plaintiffs examined four witnesses and exhibited as many as 9 documents including sale deed dated 23.01.1947 (Ext-7), Sale deed dated 05.03.1953 (Ext-9), Sale deed dated 27.12.1963 (Ext-1) and Chita (Ext-2). The defendants, on the other hand, examined two witnesses and adduced documentary evidence including sale deed dated 15.12.1967 (Ext-Unga) and Chita (Ext-Ka). They also exhibited revenue receipts vide Ext-Kha. The learned trial Court having considered the arguments of both sides and on perusal of the materials available on record decided Issue No.4 in favour of the plaintiffs holding that the plaintiffs have right, title and interest with respect to the suit land on the basis of purchase vide Ext-1 from Jagadish Chandra Dutta who, in turn, had purchased possessory right from Abdul Hakim vide Ext- 7 and lease holding right from Jagyeswar Sarma vide Ext-9. He also got his name duly mutated in the records of rights which is evidenced by Ext-2. The learned trial Court thereafter while deciding Issue Nos.5 and 6 together found that from valuation list exhibited by the plaintiffs and the sale deed (Ext-1) adduced by the plaintiffs it was clear that there was a RSA No.83/2005 Page 4 of 13 pucca latrine on the suit land earlier. The defendants could not suitably dislodge or discredit the witnesses of the plaintiffs in regard to dispossession on 16.11.1984 and so it was held that the defendants were liable to be evicted from the suit land. With these findings holding that the plaintiffs had right, title and interest over the suit land as raiyot under Haleswar Debalaya and that defendants had trespassed into 10 lechas of land decreed the suit in entirety by judgment and decree dated 30.05.1998.
6. Aggrieved, the defendants preferred Title Appeal No.15/1998 in the Court of learned Civil Judge (Senior Division), Sonitpur at Tezpur. The learned Civil Judge (Senior Division) by his judgment and decree dated 30.06.2004 dismissed the suit holding that in the absence of Haleswar Debalaya it is not possible to adjudicate the dispute between the parties. According to the learned First Appellate Court, Haleswar Debalaya is a necessary party and so by deciding Issue No.3 in favour of the defendants and against the plaintiffs dismissed the suit in entirety and did not give any finding in regard to findings of the learned trial Court on Issue Nos.4, 5 and 6. This first appellate judgment and decree dated 30.06.2004 has been called in question in the present Second Appeal.
7. This Court while admitting the Second Appeal on 02.02.2007 framed the following three substantial questions of law :- RSA No.83/2005 Page 5 of 13
"1. Whether all lands of Haleswar Devalaya having been acquired vide Notification No.RRT 53/77/4 dated 25-3-77 and having been vested in the State Government and thereby the said institution became divested of all rights, title and interest therein is a necessary party and in whose absence it will not be possible to pass an effective decree in the absence of such party?
2. Whether the said Notification dated 25-3-77 can be taken judicial notice by the Court even if it was not formally tendered?
3. Whether the learned Court below was justified in reversing the decree passed by trial Court?"
8. I have heard Ms. B. Choudhury, learned counsel for the appellants. None appears for any of the respondents although names of as many as four learned counsel have been distinctly disclosed in the cause list. No one has appeared when the matter was taken up for hearing. Under such compelling circumstances and considering that the Second Appeal is of the year 2005 the same is taken up ex parte.
9. Ms. B. Choudhury, learned counsel for the appellants, would argue that no relief has been claimed by the plaintiffs against Haleswar Debalaya. It is a dispute plaintiffs being the tenants of Haleswar Debalaya on one hand and holder of periodic patta on the other, wherein the holders of the periodic patta had trespassed into the land of the Debalaya under occupation of the plaintiffs in the capacity of tenant under Assam Non-Agricultural Urban Areas Tenancy Act, 1955. RSA No.83/2005 Page 6 of 13 The plaintiffs are tenants within the meaning of Section 3(g) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (herein after referred to as the 'Act of 1955') and there is no relief whatsoever against Haleswar Debalaya which is a landlord within the meaning of Section 3(c) of the Act of 1955. In the case in hand the defendants trespassed into the land under occupation of the plaintiffs on 16.11.1984, demolished their pucca structure and dispossessed the plaintiffs. The defendants had no connection whatsoever with Haleswar Debalaya and by adducing Ext-Unga they have sought to establish that their land is butted and bounded on the south of the land of Haleswar Debalaya whereas their own land is covered by periodic patta No.618 and Dag No.1470. This is a out and out proceeding against trespass by a third party and that is why learned First Appellate Court committed error in holding that Haleswar Debalaya is a necessary party and so the dismissal of the suit is hit by Section 99 of the Code of Civil Procedure, Ms. B. Choudhury argued. She has placed reliance on a judgment of the Hon'ble Supreme Court Vidur Impex and Traders Private Limited and others vs. Tosh Apartments Private Limited and others, reported in (2012) 8 SCC 384.
10. I have gone through the pleadings of the parties, the evidence adduced by them both oral and documentary and the impugned first appellate judgment passed by the learned First Appellate Court as well as the original judgment and decree passed by the learned trial Court. RSA No.83/2005 Page 7 of 13
11. It is the case of the plaintiffs that the land originally belonged to Haleswar Debalaya and one Abdul Hakim came into possession of the suit land under the Debalaya way back in the year 1937. He thereafter by executing a registered sale deed on 23.01.1947 (Ext-7) sold his possessory right in favour of one Jagadish Chandra Dutta. Till then the Assam State Acquisition of Lands belonging to Religious or Charitable Institution of Public Nature Act, 1959 (Assam Act IX of 1961)(hereinafter referred to as 'the Act IX of 1961') had not been in existence. The Act received the assent of the President on 02.04.1961 being a matter under the Concurrent List under the Seventh Schedule to the Constitution of India and only thereupon it came into force upon publication of notification in the official Gazette. The Act came into effect with effect from 01.01.1963. However, after the Act had come into existence on 01.01.1963 Jagadish Chandra Dutta executed Ext-1 sale deed on 27.12.1963 in favour of the predecessor of the plaintiffs by executing a registered sale deed. As on that date when the Act IX of 1961 came into force Jagadish Chandra Dutta had already acquired possessory right of the suit land by way of purchase from Abdul Hakim vide Ext-7 on the one hand and by deed dated 05.03.1953 (Ext-9) on the other hand from Jagyeswar Sarma of Haleswar Dbalaya. Jagadish Dutta, therefore, was a raiyot of the Debalaya as on 01.01.1961 and so he acquired the status of a tenant under Section 15 of the Act IX of 1961. It is also to be mentioned here that prior to the same by way of operation of Act of RSA No.83/2005 Page 8 of 13 1955, which had come into force on 01.08.1955, Jagadish Chandra Dutta became a 'tenant' within the meaning of Section 3(g) of the Act of 1955 and he having made construction thereof, as has been revealed from the findings of the learned trial Court in respect of Issue Nos.5 and 6, he became entitled to protection from eviction under Section 15 of the Act of 1955. It is, therefore, wrong to hold that Jagadish Chandra Dutta did not acquire any semblance of right, title or interest with respect to the suit land by his purchase on 23.01.1947 or when he sold the same to the predecessor of the plaintiffs on 27.12.1963. Whether he is evictable or not would be a dispute at the instance of Haleswar Debalaya and definitely a third party cannot question the status of the plaintiffs by referring to the provisions of Act IX of 1961. The learned First Appellate Court only considered that by enactment and promulgation of Act IX of 1961 State of Assam became the owner and so Debalaya is a necessary party.
12. In the case of Vidur Impex and Traders Private Limited (supra), relied on by Ms. B. Choudhury, learned counsel for the appellants, Hon'ble Supreme Court has held in paragraph 41.2 that a necessary party is the person who ought to be joined as a party to the suit and in whose absence an effective decree cannot be passed by the Court. A proper party, on the other hand, is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues though he may not be a person in favour of RSA No.83/2005 Page 9 of 13 or against whom a decree is to be made. In Section 99 of the Code of Civil Procedure it has been provided that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any mis-joinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. In the proviso, however, it has been laid down that nothing in this section shall apply to non-joinder of a necessary party. Addition of proviso to Section 99 goes to show that in case a necessary party is not impleaded in a proceeding bar under Section 99 of the CPC shall not apply. The proviso does not include proper party but it includes only necessary party. This is why before seeking either to allow an appeal or to modify a decree or to remand the case, it is necessary to ascertain as to whether a party is a necessary party or not. This can be examined only by going through the averments made in the plaint and the prayers made therein. A person against whom some relief is claimed can only be a necessary party. This is because unless such party is impleaded and given an opportunity of placing his case no decision can be arrived at contrary to his interest. If any order is passed or action is taken against someone resulting in civil consequence on them and that too by not giving him an opportunity of hearing, in that event, such order passed or action taken become non-est in law by virtue of violation of the principles of natural justice. This is why to ascertain a person or an authority is a RSA No.83/2005 Page 10 of 13 necessary party or not it has to be seen whether he has any reply to give against the recital made in the plaint or not. If no reply or view of such person is required for adjudication of the matter raised, in that event, he may not be a necessary party and his presence may not be indispensable although he may be a proper party as his presence may be necessary to ascertain the correctness or otherwise of the respective cases of the two sides in litigation. Having noticed the meaning of the words 'necessary party' within the meaning of proviso to Section 99 of the CPC it has to be seen as to whether in the present case Haleswar Debalaya can be said to be a necessary party and thereupon to decide as to whether the impugned first appellate judgment and decree is violative of Section 99 of the CPC or not.
13. As pointed out above and at the cost of repetition it is to be mentioned that here is a dispute between tenant of Haleswar Debalayta on one side and a third party on the other side and the point to be decided is whether the third party had entered into the land under possession of Haleswar Debalaya. Had the defendants claimed that they were also tenants under Haleswar Debalaya, in that event, presence of Haleswar Debalaya might have been necessary to ascertain as to whom was the land given by Haleswar Debalaya. Ext- Unga goes to show that land purchased by the defendants from Jatindra Chandra Bose is not covered by N.K. Patta belonging to Haleswar Debalaya. It pertains to Khiraj Periodic patta and so it cannot RSA No.83/2005 Page 11 of 13 be said that defendants claimed their right, title and interest through Haleswar Debalaya. By noticing such nature of dispute between the plaintiffs and the defendants it is not possible to hold that in the absence of Haleswar Debalaya the suit instituted by the plaintiffs cannot be adjudicated. Once it is held that Haleswar Debalaya is not a necessary party, in that event, allowing the appeal setting aside the trial Court decree on the ground of non-joinder of parties by the learned First Appellate Court is obviously hit by the provision of Section 99 of the Code of Civil Procedure.
14. Although a number of substantial questions of law were framed by this Court, as quoted above, the real dispute raised by the plaintiffs before this Court is covered only by substantial question of law No.3 referred to above. The substantial questions of law referred at Serial Nos.1 & 2 framed by order dated 02.02.2007 does not appear to arise from the facts and circumstances of the case and so it is not necessary to answer these two substantial questions of law. The notification dated 25.03.1977 has not been relied upon by any of the parties or any of the Courts below and as such notification did not come up for consideration in any point of time. Accordingly, substantial questions of law No.1 and 2 are not required to be answered as they do not arise from the facts and circumstances of the case.
15. In view of what has been stated above, particularly in regard to findings of the learned First Appellate Court as to non-joinder of RSA No.83/2005 Page 12 of 13 necessary party it has already been opined that the impugned first appellate judgment is hit by Section 99 of the Code of Civil Procedure. Accordingly, substantial question of law No.3 is decided in the negative and in favour of the appellants.
16. The Second Appeal stands allowed. The impugned first appellate judgment and decree is hereby set aside. The learned First Appellate Court has not considered or decided the Issue Nos.5 and 6 which are the crux of dispute between the parties. The matter stands remanded to the learned First Appellate Court for deciding these two issues on the basis of the materials available on record.
Send down the records immediately.
JUDGE T U Choudhury RSA No.83/2005 Page 13 of 13