Gauhati High Court
Haji Idris Ali Laskar & Anr vs Md. Ibrahim Ali Laskar on 12 March, 2015
Equivalent citations: AIR 2015 GAUHATI 96, (2019) 3 GAU LR 23 (2015) 2 GAU LT 222, (2015) 2 GAU LT 222
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
CRP No. 115 of 2007
1. Haji Idris Ali Laskar,
S/O Late Mosrob Ali.
2. Md. Ismail Ali,
S/O Late Maiyar Ali.
Both are residents of village North Rongpur,
PO-Rongpur, PS-Hailakandi,
Dist.-Hailakandi, Assam.
......Petitioners/Defendants.
-Versus-
On death of Md. Idbrahim Ali Laskar, his legal heirs are-
1. Mustt. Fatima Begum (daughter),
W/O Abdul Mannan.
2. Md. Rafique Ahmed (son).
3. Md. Safique Ahmed (son).
4. Md. Sayed Ahmed (son).
Sl. Nos.1 to 4 are residents of village Nimaichandpur,
PO-Nimaichandpur, Dist.-Hailakandi, Assam.
5. Mustt. Ayesha Begum (wife).
6. Md. Khasur Ahmed (son).
7. Md. Eksan Ali (minor son).
8. Mustt. Masuma Begum (minor daughter).
9. Mustt. Salma Begum (minor daughter).
10. Mustt. Khulsuma Begum (minor daughter).
Sl. Nos.5 to 10 are residents of village Rangpur,
PO-North Rangpur, Dist.-Hailakandi, Assam.
......Respondents/Plaintiffs.
Advocate(s) for the Petitioners : Mr. N. Dhar,
Mr. B.K. Sen,
Mr. B. Malakar.
Advocate(s) for the Respondents : Mr. S.C. Keyal,
Mr. S.K. Ghosh,
Mr. S.P. Choudhury,
Mr. P. Goswami.
CRP 115/2007 Page 1 of 6
BEFORE
THE HON'BLE MR. JUSTICE HRISHIKESH ROY
Date of Hearing and Judgment : 12 th M arch, 2015
JUDGMENT AND ORDER (ORAL)
Heard Mr. N. Dhar, the learned counsel appearing for the petitioners (defendants). The learned counsel Mr. S.P. Choudhury appears for the respondents (plaintiffs).
2. Alleging dispossession from the suit land on 09.06.1998, the predecessor of the present respondents, Md. Ibrahim Ali Laskar (deceased), filed the Title Suit No.24/1998 under Section 6 of the Specific Relief Act, 1963, for restoration of possession. In the WS filed by the defendant No.1, a counter claim was made under Order VIII Rule 6A of the CPC for declaration of title of the defendant No.1 and confirmation of his possession in the suit land. The learned Civil Judge (Sr. Division), Hailakandi, on 20.06.2005 (Annexure-6) after consideration of the evidence, answered the recast Issue No.1 in favour of the plaintiff by declaring that he was dispossessed on 09.06.1998 and the suit having been filed within a month of dispossession, the plaintiff is entitled to restoration.
3. On the title claim of the defendant No.1, the Court held that in a suit under Section 6 of the Specific Relief Act the only question to be determined is possession and dispossession and therefore the title claim preferred by the defendant No.1 cannot be adjudicated in such suit. Consequently, the Court held that the counter claim is not maintainable and the defendant was refused relief.
4. The aggrieved defendants then filed the CRP No.116/2005 to contend that it was incumbent upon the Trial Court to decide the defendants' counter claim on merit. The High Court held that a counter claim can be filed in any suit and there is no bar to claim title through a counter claim in a suit under Section 6 of the Specific Relief Act. Therefore, through the judgment dated 05.09.2006 (Annexure-7) it was held that the Trial Court erred in refusing to decide the defendant's claim and on this basis, the Trial Court's judgment was CRP 115/2007 Page 2 of 6 set aside and the matter was remanded back for deciding the issue of counter claim for a fresh decision in the suit.
5. After remand of the suit, the defendants filed an application on 19.12.2006 (Annexure-8) under Section 151 of the CPC to allow them to introduce 3 documents and to mark the same as exhibits in the case. These documents were (i) the certified copy of Jamabandi of R.S. Patta No.94 of Mouza-Rangpur; (ii) the original purchase deed executed by Abdul Gani, father of the plaintiff in favour of the father of defendants on 19.10.1938; and (iii) the original purchased deed executed by Abdul Gani, father of the plaintiff in favour of the defendant Idris Ali, on 18.10.1954. However, the learned Trial Court after observing that no direction was given in the remand order for adducing any additional evidence, refused to allow the defendants' application or mark the 3 documents as exhibits.
6. Thereafter since earlier decision was quashed by the remand order, the Issue No.1 was reconsidered and after noting the evidence, the Court opined that the plaintiff succeeded in discharging his initial burden that the defendants had dispossessed them from the suit land on 09.06.1998.
7. The Court then proceeded to consider the Issue No.2 pertaining to title claim. The defendants claimed title to the suit land on the strength of the sale deed dated 19.10.1938 allegedly executed by Abdul Gani, the father of the plaintiff in favour of the father of the defendant No.1; the original purchase deed dated 18.10.1954 executed by Abdul Gani, the father of the plaintiff in favour of the defendant Idris Ali; and the certified copy of Jamabandi of R.S. Patta No.94 of Mouza-Rangpur. But the Court refused to consider them as evidence on the ground that the defendant failed to exhibit the documents during the hearing of the case. It was thus held that the defendant couldn't establish their title by adducing convincing evidence and accordingly the Issue No.2 was decided against the defendants.
8.1 Assailing the legality of the impugned order, Mr. N. Dhar, the learned counsel submits that the Trial Court acted without jurisdiction in disallowing the defendants to adduce evidence and to exhibit documents in support of their counter claim. He submits that unless the documents are allowed CRP 115/2007 Page 3 of 6 to be exhibited, the Court will not be able to decide the real controversy in the case. It is also argued that the Court erred in recording a finding that the defendant failed to lead evidence in support of his counter claim, by overlooking the defendant's application dated 19.12.2006 (Annexure-8).
8.2 The petitioners further contend that when a judicial determination of the counter claim was required to be made by the Court, unless evidence is allowed to be tendered by the parties, there can be no effective determination of the dispute.
9.1 For the respondents, Mr. S.P. Choudhury, the learned counsel submits that original documents are required to be produced at the stage issues are settled and in this case, the defendant tried to introduce additional documents only at the stage of the fresh hearing, after remand of the case from the High Court. He submits that concerned documents were not enclosed with the WS through which, the defendant No.1 made his counter claim and therefore it is contended that the Court has rightly disallowed exhibition of these additional evidence.
9.2 Projecting that a decision on title claim is a decree of the Court against which an appeal lies under Section 96 of the CPC, Mr. Choudhury argues that the present Revision petition is not maintainable.
10.1 Before proceeding any further, it would be appropriate to deal with the maintainability objection raised by the respondents. The rejection decision of the defendant's title claim by the learned Civil Judge (Sr. Division), Hailakandi, may be appealable before the District Judge, but the High Court is not the appellate forum against the trial Court's decision.
10.2 Under Section 115 of the CPC, the High Court can exercise revisional power only when no appeal lies thereto and explaining the scope of the High Court's revisional power, the Supreme Court in Smt. Vidya Vati Vs. Shri Devi Das reported in AIR 1977 SC 397, declared as follows:
"7. ......... The words of limitation used in Section 115 are "in which no appeal lies thereto" and these words clearly mean that no appeal must lie to the High Court from the order sought to be revised, because an appeal is a much larger remedy than a revision application and if an CRP 115/2007 Page 4 of 6 appeal lies, that would afford sufficient relief and there would be no reason or justification for invoking the revisional jurisdiction. The question, therefore, here is whether an appeal against the order made by the learned Sub-Judge allowing the review application lay to the High Court. If it did, the revision application would be clearly incompetent. Now Order XLIII, Rule 1, cl. (w) undoubtedly provides an appeal against an order allowing a review application, but the order allowing the review application in the present case was made by the learned Sub-Judge, and hence an appeal against it lay to the District Court and not to the High Court, and, obviously, since no appeal lay against the order of the learned Sub-Judge to the High Court, the revision application could not be rejected as incompetent. The preliminary contention must, in the circumstances, be decided against the respondent."
10.3 If we apply the ratio of the above decision in this case, where the appellate forum is the District Judge, there can be no limitation on exercise of Revisional power under Section 115 of the CPC. That apart, the decision under Section 6 of the Specific Relief Act is not an appealable order. Moreover, when the impugned decision was rendered on remand by the High Court in exercise of its revisional jurisdiction, I feel that dismissal of the Revision petition without considering the matter on merit will defeat the cause of justice.
11. The Supreme Court in Smt. Swaran Lata Ghosh Vs. H.K. Banerjee reported in 1969(1) SCC 709 observed that the trial of a civil dispute in Court is intended to achieve a judicial determination of the matter in controversy. The Court also held that the essential attributes of a judicial trial, inter alia, is ascertainment of facts by means of evidence tendered by the parties. The expression came to be considered in Deep Chand Vs. Land Acquisition Officer reported in (1994)4 SCC 99, where the Supreme Court referred to the Black's Law Dictionary and approved the following meeting of the expression:
"Adjudication. - The legal process of resolving a dispute. The formal giving or pronouncing a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved."
12. In this case the Trial Court was required to decide the title claim of the defendant No.1. As part of the adjudicatory process the Court was obliged to pronounce judgment on the basis of evidence tendered by the parties. But simply because specific direction was not given in this Court's remand order to allow evidence, the defendant's plea to exhibit the 3 documents wasn't allowed. More CRP 115/2007 Page 5 of 6 significantly although defendant applied to exhibit the evidence and it was the Court which thwarted the effort, the impugned decision was erroneously attributed to the failure of the defendant to adduce evidence to prove their case.
13. Under sub-rule (3) of Rule 5 Order XIII of the CPC, documents can be permitted to be produced for cross-examination of the witnesses of the other side. When title is to be decided, the parties should have been allowed to tender their evidence, so that the Court can determine the truth in the controversy. If we look at the issue from another angle, the High Court in the earlier Revision decision, never said that additional evidence should not be permitted. But only because positive direction for accepting evidence was not given, the Trial Court disallowed the defendants' application to introduce the three supporting documents.
14. What will be the impact of the additional documents on the merit of the controversy is not the concern of this Court, but in disallowing the defendant's documents, the Trial Court not only failed to provide a level playing field to the defendants but also diminished the possibility of finding the truth. Moreover without these documents, there may not be a fair judicial determination of the controversy between the parties.
15. In view of the forgoing discussion, I hold that the learned Trial Court was not justified in disallowing the defendant's evidence. The Court in my opinion failed to exercise the jurisdiction vested on it without adjudicating the dispute in accordance with law. Therefore the judgment and decree dated 22.12.2006 in the Title Suit No.24/1998 rendered by the learned Civil Judge (Sr. Division), Hailakandi, is held to be unsustainable. The matter is remanded back for a fresh decision on the counter claim of the defendant No.1 by allowing the documents to be exhibited by defendant. It is ordered accordingly.
16. With the above order, the case stands allowed. The parties to bear their own cost. The Registry is directed to return the LCR along with a copy of this order.
JUDGE Roy CRP 115/2007 Page 6 of 6