Gauhati High Court
Jorhat District Congress (I) Committee vs Sri Krishna Kanta Rajkumar on 14 August, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
PRINCIPAL SEAT
RSA No. 136/2016
The District Congress (I) Committee,
Jorhat, Assam, 785001 & Ors
.......... Appellants/Defendants
-VERSUS -
Sri Krishna Kanta Rajkumar & Ors.
............ Respondents/ Plaintiffs
Advocate for the appellants: Mr. P. Baruah, Mr. A. Thakur, Ms. J.R. Thakur, ....... Advocates.
Advocate for the Respondents Mr. T.J. Mahanta, Sr. Adv.
Ms. P. Bhattacharyya, Mr. S. Barthakur, Mr. A. Baruah, ............ Advocates.
-BEFOR E-
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
Date of hearing : 14.08.2017
Date of judgment & order : 14.08.2017
JUDGMENT & ORDER (Oral)
2
Heard Mr. P. Baruah, learned counsel, appearing for the appellants/ defendants and Ms. P. Bhattacharyya, learned counsel, appearing on behalf of the respondent/ plaintiff No. 1.
2] This second appeal is against the judgment and decree passed by the learned first appellate court in Title Appeal No. 28/2013 by the learned court of Civil Judge at Jorhat.
3] The present appellants are the defendants in T.S. No. 75/1995 [T. S. No. 92/06 (Old) and T.S. No. 51/07 (New)], preferred by the respondent No. 1. It is the case of the plaintiff/ respondent No. 1 that he is the absolute owner of the suit property by virtue of being the son of late Ghanakanta Rajkumar, the original Pattadar No. 2. The defendants were the permissive occupiers of the said suit property till the year 1963 when they vacated the same and 3 handed over it to the plaintiff. The suit property was occupied by the Assam Homeopathic College, Jorhat for a period of 9 years with effect from 1978 till December, 1986. The said college also left vacating the suit property and since then the respondent/ plaintiff No. 1 was in possession of the same. One Nobin Chandra Buragohain in his capacity as the President of the Indian National Congress, Jorhat Unit initiated a proceeding under Section 145 Cr.P.C. against the plaintiff/ respondent No. 1, which was dropped on 3.1.1990 by the order of the learned trial Magistrate. 4] It is also pleaded that on the strength of the mutation order dated 4.9.1969, the defendants/ appellants mutated their names in the Mutation Case No. 533/1966-67. On 22.8.1994, a news item was published in the Dainik Janambhumi wherein it was reported that a Mental Hospital was to be set up on the suit property and the defendant/ appellant No. 6 had already taken over charge of the said suit property and the same was objected by the plaintiff/ 4 respondent but the defendant No. 7 vide notice dated 3.10.1994 addressed the father of the respondent/ plaintiff that the suit property standing in the name of the defendants/ appellants would be measured on 6.10.1994. Against the said objection from the plaintiffs, the defendants forcibly ousted the respondent/ plaintiff from the suit property and occupied the same.
5] Being aggrieved, the present suit was filed for declaration of his title over the suit property, recovery of khas possession, cancellation of mutation and for permanent injunction.
6] The defendants/ appellants through their written statement, denied about the permissive occupation. It is the defence that since 1934 they are in occupation and their names already mutated which was never challenged by the respondent/ plaintiff because of which the suit is barred by the law of Limitation. It is also denied that the Homeopathic 5 College, Jorhat was ever in occupation of the suit property. It is the contention of the defendants/ appellants that the father of the Nation, Mahatma Gandhi during his visit to Jorhat on 18.4.1934 had laid the foundation stone of the Hatibarua Smriti Bhawan ( which is also known as "Rohini Hatibharua Smriti Bhawan") over the suit land being preceded by the inauguration of the Public Naamghar in the contiguous land. Hatibarua Smriti Bhawan was constructed in 1935 and Pandit Jaharwal Nehru inaugurated it and the office of the Congress Party was being run in the said Bhawan.
7] In the year, 1972-73, the former Member of Parliament, Late Bijoy Krishna Handique, who became the President of the Jorhat Congress Committee shifted the office of the Congress Party to its present place at A.T. Road, Jorhat and the Rohini Hatibarua Smriti Bhawan was used as the office of the Congress Seva Dal besides running of other activities of the Congress Party in the said Bhawan. In the 6 year 1978-79 the said Rohini Hatibarua Bhawan was temporarily permitted by the Congress Party to be occupied by the Homeopathic College and since then after construction of the building of the said College at Jorhat, the said Rohini Hatibarua Bhawan was vacated and the possession was delivered to the Congress Party sometime in the year, 1994 and since then it was in absolute possession of the Congress Party.
8] The proforma respondent Nos. 2, 3 and 4 defendant Nos. 5, 6 and 7 had initially contested the suit by way of submitting their written statement supporting the fact that the suit land was mutated in the name of the defendant No. 1. Apart from the suit land, remaining land measuring 12 Lechas in the suit dag was recorded in the name of Indreswari Gabhoru and ten others over which the respondents have possession now. Hence they had prayed for dismissal of the suit.
79] On the basis of the pleadings, following issues were framed:-
(1) Whether there is cause of action for the present suit?
(2) Whether the suit is barred under the principle of waiver, estoppel and limitation? (3) Whether the suit is maintainable? (4) Whether the defendant constructed the "Rohini Hatibarua Smriti Bhawan" and was inaugurated in the year 1935 by Pandit Jawaharlal Nehru? (5) Whether the plaintiff has right, title and interest over the suit premises?
(7) Whether the mutation of the name of defendant No. 1 in respect of the suit land is invalid and void and as such, liable to be cancelled? (8) Whether the suit is barred by provision of violation of Section 80 CPC?
(9) Whether the plaintiff is entitled to any relief? (10) Whether the suit land and the properties thereon are properly described?
(11) What relief/ reliefs the plaintiff is entitled to?8
10] The trial court decreed the suit in favour of the plaintiff/ respondent No. 1. The trial court declaring the title of the plaintiff/ respondent No. 1 alongwith other co-owners, also decreed that the defendants/ respondents be evicted from the suit land possession be delivered to the plaintiff/ respondent No. 1 amongst other reliefs so prayed in the plaint.
11] Being aggrieved, the defendants/ appellant preferred Title Appeal No. 28/2013 which was also dismissed vide judgment and decree dated 14.12.2015 by the court of the learned Civil Judge at Jorhat. Thereafter, the said judgment and decree was put under challenge in this second appeal which is taken up for admission today. 12] Mr. Baruah, learned counsel appearing for the appellants submits that the plea of the plaintiff/ respondent No. 1 is itself contradictory. On one hand he has claimed right, title, interest over the suit land by way of inheritance. 9 On the other hand, he took the plea of his title by way of adverse possession. On the face of such pleadings, both the courts below came to the finding that the plaintiff is entitled for declaration of his right, title and interest over the suit land alongwith other co-owners. There is no mention in both the judgments passed by the trial court and the first appellate court that with regard to whom plea of adverse possession by the plaintiff/ respondent was taken. 13] In such a situation, both the courts below erred in law inasmuch as contradictory plea taken by the plaintiff/ respondent No. 1 itself goes to show that on one hand he is claiming his title on the basis of the inheritance and on the other hand, he is admitting the title of the defendants/ appellants. It is also submitted by Mr. Baruah that the courts below declared the right, title and interest over the suit land of the plaintiff/ respondent No. 1 alongwith other co owners but regarding recovery of possession, the courts below 10 decreed a part of the relief in favour of the plaintiff/ respondent No. 1 only.
14] The courts below failed to consider that any property held by various co-owners, one of the co-owners cannot be permitted to take exclusive possession only and unless partition is sought for. This aspect of the matter would cause serious prejudice to the other owners, co- owners and that itself is a substantial question of law to be decided. Further it is submitted that if the plaintiff/ respondent No. 1 is not holding possession of the suit land as per the pleading how he has claimed his title by way of adverse possession. Under such circumstances, the courts below ought not to have decreed the suit for recovery of possession.
15] Coming to the point of Limitation, Mr. Baruah submits that both the courts below failed to take into consideration the materials on record. Admittedly 145 Cr.P.C. 11 proceeding was initiated at the instance of the defendants/ appellants in the year 1990. However, the same was dropped by the trial court which itself goes to show that the possession was maintained by the defendants/ appellants. In addition to that the said fact of possession is very much established on the admitted position that the name of the defendant/ appellant No. 1 was recorded in the Jamabandi and for mutation, the prime ingredients is the possession. The said mutation has been maintained all along in the copy of the Jamabandi since the year 1969 and it was well within the knowledge of the plaintiff/ respondent No. 1 and that too alongwith the possession of the defendants/ appellants. The court below ought to have considered the said fact of mutation coupled with the possession which itself is adverse inasmuch as even if it is considered that the said fact of mutation over the suit land of the defendant/ appellant to be starting point of running the prescribed period of 12 years then also suit is barred inasmuch as the same is filed in the year 1995. Finally summing up his submission, Mr. Baruah 12 pointed out that there are substantial questions of law to be formulated the appeal is to be admitted.
16] Ms. Bhattacharyya, learned counsel appearing on behalf of the plaintiff/ respondent No. 1 submits that both the courts below have not erred in law, nor there is any perversity in the findings. It is submitted that the possession declared in favour of the plaintiff/ respondent No. 1 would amount to joint possession of the plaintiff/ respondent No. 1 alongwith the other co-owners inasmuch as the same is a consequential relief arising out of the declaration of the status of the plaintiff/ respondent No. 1 alongwith other co- owners with respect to the suit land.
17] On the point of limitation, Ms. Bhattacharyya submits that on the basis of the act of dispossession in the guise of measuring the suit property in the-year 1994 by the defendants/ appellants, the cause of action accrued to the plaintiff wherefrom the possession of the defendants/ 13 appellants started to be adverse to the plaintiff/ respondent No. 1. The suit was filed in the year 1995 and it is well within the period of limitation as prescribed under Article 65 of the Limitation Act, 1963. Finally she submits that there is no substantial question of law involved on the basis of the concluded facts arrived at by the first appellate court as such she submits that the second appeal ought not be admitted. 18] Considered the submissions of both the learned counsels and on perusal of the plaint it transpires that the plaintiff/ respondent No. 1 in his pleading claimed devolution of title on him amongst others over the suit land by way of inheritance. It is also pleaded that the plaintiff/ respondent has been possessing the suit land which is adverse to the defendants and can claim title by way of right of adverse possession also.
19] In the written statement filed by the defendants/ appellants there is no specific pleading to the effect whereby 14 and wherefrom it can be concluded that such plea of contradictory pleadings taken by the plaintiff itself non-suit the plaintiff/ respondent alongwith other co-owners. Regarding declaration of the recovery of possession in the name of the plaintiff/ respondent No. 1, this court is not inclined to accept the submission of Mr. Baruah inasmuch as the relief of recovery of possession as submitted by Ms. Bhattacharyya is a relief which is consequential in nature flowing out of the declaration of the status of the plaintiff/ respondent No. 1 alongwith other co-owners over the suit property. One co-owner can protect the suit property wherein the other co-owners are also share holders of the suit property. There is no bar to it. The declaration of ejectment and recovery of possession will be governed by the declaration of the title so decreed in favour of the plaintiff/ respondent No. 1 alongwith the co-owners. On the submission of the point of limitation, it is an admitted fact that 145 Cr.P.C. proceeding was initiated at the instance of the defendants/ appellants.
1520] Mr. Baruah submits that the said 145 Cr.P.C. proceeding was initiated on the attempt made by the plaintiff/ respondent No. 1 to dispossess the defendants/respondents. However, there was no such dispossession which actually took place. This submission cannot be accepted on the face of the findings of the courts below wherein it is held that the Homeopathic College, Jorhat prior to vacating the suit land and the premises, issued letters to the plaintiff/ respondent No. 1 by the Principal of the said college. The said fact of issuance of letter and the signature of the Principal was duly proved by none other than the PW 2, an employee of the said college. In addition to that, the electricity meter of the said college stood in the name of the father of the plaintiff/ respondent No. 1. Such finding on the part of both the courts below are concurrent in nature, which this court as the second appellate court refrained itself from entering into again. It is also seen from the written statement of the defendants/ 16 appellants that the plea of adverse possession was also raised not to speak of mutation entry of the defendants/ appellants on the strength of gift. The defendants/ appellants failed in discharging on its own at least to disprove the fact of possession of the plaintiff/ respondent No. 1 with respect to the suit property prior to his dispossession.
21] The plea of adverse possession raised by the defendants/ appellants itself indicates that the ownership and the title of the suit property is accepted to be with the plaintiff/ respondent No. 1 and its co-owners. To be a substantial question of law, there must be a foundation in the pleading. In the present case in hand, with regard to submission of the contrary stand taken by the plaintiff/ respondent No. 1, there is no such pleading in the written statement taken by the defendant/ appellant, though an issue was framed with regard to the maintainability of the suit. As discussed by the court below, it appears that no 17 such plea was raised before the court below. In such a situation, this court finds this appeal is lacking in any substantial question of law to be formulated. Accordingly, the same is dismissed.
22] No order as to costs.
JUDGE
Eam/...