Gauhati High Court
Abdul Wahid Barbhuiya vs Kala Raja Laskar on 16 September, 2018
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
C.R.P. No. 147 OF 2017
Md. Abdul Wahid Barbhuiya ... Petitioner
-Versus-
Md. Kala Raja Laskar ...Respondent
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner : None appears
For the respondent : Mr. AH Alamgir, Advocate
Date of hearing &
judgment : 16.09.2017.
JUDGMENT & ORDER (ORAL)
None appears on call for the petitioner. Heard Mr. AH Alamgir, the learned counsel for the respondent.
2) In view of absence of the learned counsel for the petitioner, this Court was inclined to adjourn the matter. Moreover, the learned counsel for the respondent has insisted for hearing the matter on merit.
3) The short fact which arises in this application is that the sole respondent herein was the plaintiff No.1 in Title Suit No.33/2010.
CRP No.147 of 2017 Page 1 of 6The suit was instituted by the respondent herein along with one Merabjan Bibi, who was the plaintiff No.2 in the suit. The suit was filed against the petitioner herein, who was the sole defendant in the suit. The suit was dismissed by the learned court of Munsiff No.1, Hailakandi vide judgment and decree dated 05.02.2013. Aggrieved by the aforesaid judgment and decree, both the plaintiffs had jointly instituted an appeal before the court of Civil Judge, Hailakandi, which was registered as Title Appeal No.16/2014, wherein the petitioner herein was the sole respondent.
4) In the said appeal, the petitioner herein had filed an application before the learned first appellate court being Petition No.8358/43 under Order XXII Rule 3 (2) CPC, stating therein that the appellant No.2 had died leaving behind her heirs who are required to be made party as appellant by substituting the appellant No.2 within the time frame as prescribed by the Civil Procedure Code. It was stated that as the surviving appellant did not implead the legal representatives of the appellant No.2, the appeal stands abated as the rights of both the plaintiffs including that of the legal representatives of the appellant No.2, were joint and indivisible and in-severable. The learned first appellate court upon hearing the learned counsel for both sides, vide order dated 07.11.2016 held that the present appeal was preferred by one of the appellant/plaintiff with regard to right, title and interest in respect of the schedule land described in T.S. No.33/2010. Further, it was held that since the nature of the suit was basically for their right and interest, in considered opinion of the court, the right to sue does not extinguish even on the death of one of the plaintiff. Consequently, the court did not find merit on Petition No.8358/03 and therefore, petition was CRP No.147 of 2017 Page 2 of 6 rejected. Aggrieved by the said order, the petitioner herein approached this Court by challenging the said order under Article 227 of the Constitution of India.
5) The learned counsel for the respondent has referred to the provisions of Order XLI Rule 4 CPC and submits that where there are more plaintiffs or more defendants than one in a suit, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court had the power to reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. It is submitted that as the present respondent has the right to maintain an appeal, there is no infirmity in the impugned order passed by the learned first appellate court and therefore, this revision may be dismissed.
6) In support of his argument that the appeal filed by the respondent is maintainable in view of the provisions of Order XLI Rule 4 CPC, the learned counsel for the respondent has relied on the case of Ratan Lal Shah Vs. Firm Lalmandas Chandammalal and another, AIR 1970 SC 108 as well as the case of Bajranglal Shivchandrai Ruia Vs. Shashikant N. Ruia and others, AIR 2004 SC 2546.
7) Upon consideration of the arguments advanced by the learned counsel for the respondent, it is observed from the memo of appeal, which is annexed to this revision as Annexure-3 that the appeal was filed by the two appellants. During the pendency of the appeal, one of the appellant had died i.e. respondent No.2 herein leaving behind CRP No.147 of 2017 Page 3 of 6 some legal representatives. On perusal of the plaint, the following have been made therein:
"I) A decree declaring right, title and interest of the plaintiff over the Schedule-I in Ejmali; II) A decree declaring right, title and interest of the plaintiff No.1 over the Schedule-IV land; III) A decree declaring right, title and interest of plaintiffs in Schedule-II land in Ejmali; IV) A decree of recovery of possession directing the Ld. Executive Magistrate to deliver possession of the Schedule-III & IV in favour of the plaintiff; V) A decree for the cost of the suit;
VI) For any other relief/reliefs the Ld. Court deem fit and proper to grant."
8) From the prayers made in the plaint, it is apparent that the declaration of right, title and interest was sought for by the plaintiffs over the Schedule -I land in 'ejmali' (Assamese equivalent of joint/common). Insofar as the second prayer is concerned, it is for a separate declaration over the Schedule -IV land. But in respect of the prayer No.3, right, title and interest of the plaintiffs was sought for in respect of the Schedule -II land in 'ejmali' and similarly, a decree for possession of land of Schedule -III and Schedule -IV was sought for in favour of the plaintiffs. Therefore, although prayer No.2 was for right, title and interest of respondent No.1, but as per the prayer No.4, there was no prayer for declaration in favour of the plaintiff No.1 alone. Therefore, this Court is not convinced to agree with the learned counsel for the respondent that the right was agitated in respect of the plaintiff No.1 /respondent herein.
CRP No.147 of 2017 Page 4 of 69) Coming to both the cases cited above by the learned counsel for the respondent, there is no opposition to the well establish rule that under the provisions of Order XLI Rule 4 CPC, any aggrieved party has the to file an appeal, which is in consonance with the provisions of Order XLI Rule 4 CPC. This Court respectfully agrees with the ratio cited therein. However, the aforesaid two cases are in no way relevant for the present case, because if an appeal filed by two appellants, out of which one appellant has died, then there is a necessity to substitute the legal representatives of the appellant to be brought on record. Therefore, in the present case in hand, despite the knowledge that the appellant No.1 had died, no steps was taken to implead his legal representatives. Therefore, the appeal has abated and moreover, in the application the petitioner has further stated that the appeal suffered from the defect of non-joinder of legal representatives/heirs of the appellant No.2.
10) In view of the prayers made in the plaint as already quoted above, this Court is of the view that the learned First Appellate Court has committed jurisdictional error in concluding that the respondent herein was agitating his right in the appeal which is eventually incorrect because as per the copy of the memo of appeal, the appeal was filed by Md. Kala Raja Laskar (Appellant/Plaintiff No.1) as well as Merabjan Bibi (Appelant/Plaintiff No.2). The appeal was instituted with the knowledge that one of the appellants had died. Therefore, the findings recorded by the first appellant court that right to sue does not extinguish even on death of one of the plaintiff is not sustainable. In view of the fact that the impugned order passed by the learned first appellate court is erroneous to the effect that CRP No.147 of 2017 Page 5 of 6 present appeal was preferred by one of the appellant/plaintiff in respect of right, title and interest in respect of the schedule land described in T.S. No.33/2010, the said finding is perverse, being contrary to the memo of appeal annexed as Annexure-3, which reflects that the appellant No.1 was Md. Kala Raja Laskar and the appellant No.2 was Merabjan Bibi.
11) Therefore, this Court has no hesitation in setting aside the impugned order dated 07.11.2016 passed by the learned Civil Judge, Hailakandi in Title Appeal No.16/2014. Consequently, the Petition No.8358/03 stands allowed. The appeal i.e. Title Appeal No.16/2014 stands abated on the death of appellant No.2.
12) Resultantly, this revision petition stands allowed. Parties are left to bear their own costs.
JUDGE MKS CRP No.147 of 2017 Page 6 of 6