Gauhati High Court
Ranjit Kakati & 3 Ors vs Krishna Prasad Kakati & 8 Ors on 5 November, 2014
Author: N. Chaudhury
Bench: N. Chaudhury
1
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
RSA 145/2013
1. Sri Ranjit Kakati
Son of Late Paramanda Kakati
2. Sri Ratneswar Kakati
Son of Late Paramanda Kakati
3. Sri Nipen Kakati
Son of Late Paramanda Kakati
4. Sri Bhaskar Kakati
Son of Late Paramanda Kakati
All are legal heirs, son of
Late Paramanda Kakati
R/o Village - Howly Town (Jalzali),
Mouza - Ghilajari,
P.O. Howly,
P.O. & District - Barpeta
... Appellants / Plaintiffs
Vs
1. Sri Krishna Prasad Kakati
2. Sri Sashi Bala Kakati
3. On the death of respondent No. 3,
Smti Kamala Kakati, her legal heirs -
3(i) Rakesh Bhuyan (son) 3(ii) Kuldeep Bhuyan (son) as per Hon'ble Court's order dated 26.03.2014 passed in M.C. No. 346/14 All sons and daughter of Late Baliram Kakati and all residents of Howly Town (Jaljali), Mouza - Ghilajari, P.O. Howly, P.S. & District - Barpeta.
......... Respondents/Opp. Parties
4. Sri Niranjan Kakati Son of Late. Gajendra Kakati.
5. Sri Mahendra Kakati Son of Lt. Gajendra Kakati
6. Smt. Lakheswari Kakati Wife of Late. Gajendra Kakati
7. Smt. Dipti Kakati
8. Smt. Dalimi Kakati
9. Smt. Golapi Kakati 2 All are sons and daughters of Late Gajendra Kakati, all are resident of Howly Town (Jaljali) Mouza - Ghilajari P.O. & P.S. Barpeta, District - Barpeta.
...... Proforma Respondents
Proforma Defendants
BEFORE
HON'BLE Mr. JUSTICE N. CHAUDHURY
For the Appellants :: Mr. K.P. Sarma
Mr. H. Gogoi
Mr. H. Das
Mr. S. Nath
Mr. H. Hatibaruah
Mr. L. Kalita
...... Advocate for the appellants
For the Respondent :: Mr. B.K. Bhagawati
Mr. C.C. Deka
Mr. P.S. Deka
Ms. A. Chakraborty
...... Advocates for the respondents
Date of hearing :: 05.11.2014
Date of delivery of Judgment :: 05.11.2014
JUDGMENT & ORDER(ORAL)
This second appeal at the instance of the plaintiff of Title Suit No. 32 of 1990 of the Court of learned Civil Judge (S.D.) at Barpeta is directed against the concurrent findings of the learned Courts below. Title Suit No. 32 of 1990 filed by the plaintiff for declaration of his right, title and interest and confirmation of possession was dismissed by the learned trial Court and the counter claim filed by the defendants praying for declaration of their right, title and interest and consequent eviction of the plaintiff from the suit land was decreed by the trial Court by judgment and decree dated 18.06.2001. Being 3 aggrieved plaintiff preferred Title Appeal No. 28 of 2006 in the Court of learned Additional District Judge (F.T.C.) at Barpeta. The learned first appellate Court by his judgment and decree dated 14.09.2011 dismissed the appeal upholding the judgment and decree passed by the learned trial Court.
2. Plaintiff Paramananda Kakati instituted a suit against Krishna Prasad Kakati, Smt. Sashi Bala Kakati and Smt. Kamala Kakati, his brother and sisters respectively and also against Proforma Defendants No. 5 to 10 stating that a plot of land measuring 1 bigha 1 katha 3 lechas out of 4 bighas 4 kathas 12 lechas covered by Periodic Patta No. 456 of Dag No. 332 situated at village- Jaljali of Mouza- Ghilajari in the district of Barpeta with an Assam Type House standing thereon, originally belonged to his father, Baliram Kakati. After death of Baliram, his legal heirs including the plaintiff, the Proforma Defendant No. 4 and Gajendra Kakati inherited the property and they have been possessing the same. It is claimed that the plaintiff and Proforma Defendant No. 4 have right, title, interest and possession over the suit land and the plaintiff was paying revenue regularly. The names of plaintiff and the Proforma Defendants were duly mutated in the records of rights but the principal defendants without having any right, title, interest or possession over the suit land collusively obtained mutation in their favour in Mutation Case No. 126/1987- 1988 relying on a purported Will made by Baliram Kakati. According to the plaintiff the aforesaid Will dated 03.03.1969 was fraudulent and so no right, title and interest was accorded to the defendants on the basis of the said Will and consequently mutation order dated 19.09.1990 passed on the basis of the probate of the Will was also illegal and untenable. With these statements on fact, the plaintiff claimed that a decree be passed declaring his right, title, interest and confirmation of his possession and also for setting aside of mutation order dated 19.09.1990 by adjudicating the Will dated 03.03.1969 to be a fraudulent one.
3. On being summoned the principal defendants appeared and filed a written statement and contested the claim of the plaintiff. It was stated that the Will dated 03.03.1969 was duly presented before the probate Court by impleading the plaintiff and other legal heirs of Balram Kakati party but the plaintiff and Proforma defendant No. 4 even being aware of the fact chose not to contest the proceeding. It is under such circumstances and on being admitted by the other sons of 4 Gajendra Kakati and the other sons of Baliram Kakati, the Will was duly probated. There was no appeal against the order passed by the probate Court and thus it attained finality. After the Will was probated, defendants prayed for mutation, vide Mutation Case No. 126/1987-1988 and the SDC, Barpeta allowed mutation to the defendants on 19.09.1990. The aforesaid probate order dated 08.02.1989 and consequent mutation on 19.09.1990 were well within the knowledge of the plaintiff and same having attained finality the suit was devoid of any cause of action and liable to be dismissed without any cause. The Proforma Defendants also filed a counter claim stating that plaintiff was not having any shelter and so he was permitted by the defendants to stay in their house and so plaintiff was at best a permissive occupier under the defendants without having any right, title and interest over the suit property and so a decree was claimed by way of counter claim for eviction of the plaintiff from the suit land and for holding that the defendants were the owner of the suit property. On the basis of the rival contention of the parties the learned trial Court framed as many as 8 issues which are quoted below:
1. Whether there is cause of action for the suit?
2. Whether the suit is under stamped?
3. Whether the mutation Order dated 19.9.90 passed by the S.D.C., Barpeta Circle in connection with Misc. Case 126/87-88 is liable to be set-aside?
4. Whether the registered will No. 569-A dtd. 3.3.69 is fraudulent and is liable to be cancelled as null and void in the eye of law?
5. Whether the defendants are rightful owners of the suit and are entitled to partition thereon?
6. To what relief or reliefs are the parties entitled?
7. Whether the plaintiff has right, title and interest and possession over the suit property?
8. Whether the plaintiff is entitled to get confirmation of possession over the suit property and is entitled to get permanent injunction?5
4. Plaintiff examined 4 witnesses and exhibited some documents while defendants examined as many as 7 witnesses and exhibited documents in their favour. The learned trial Court after considering all the materials available on record decided issue No. 4 in favour of the defendants holding that the Will dated 03.03.1969 was not a fraudulent one and was not liable to be cancelled and adjudged as null and void. It is also held that defendants are rightful owner of the suit land on the basis of probate granted by the District Judge pursuant to the Will dated 03.03.1969. The learned trail Court did not find any fault with the S.D.C., Barpeta in passing mutation order dated 19.09.1990. Having decided the vital issue in favour of the defendants the suit of the plaintiff was dismissed and counter claim of the defendants was decreed. The aggrieved plaintiff preferred only one title appeal against both the decrees. Be that as it may, the learned first appellate Court considered the entire gamut of circumstances including the documents adduced by the parties and arrived at a finding that the suit land was originally owned by Baliram Kakati who executed a Will in favour of Sri Krishna Prasad Das, Smti Kamala Bala Kakati and Smti Sashi Bala Kakati on 03.03.1969 and the learned District Judge probated this will. There is no iota of fact in favour of the plaintiff to hold that the plaintiff have any semblance of title with respect to the suit land. Considering Ext.-Uma and Ext.-cha (the municipal tax receipts), the learned trial Court arrived at a finding that the house claimed to be built by the plaintiff was not built by him and so his claims in respect of the suit house, was not tenable. The findings of the learned first appellate Court are identical in so far as it relates to tile of the suit land as well as house standing thereon and so the learned first appellate Court did not find any reason to reverse the findings of the learned trial Court.
Consequently the first appeal was dismissed upholding the decree of eviction passed by the trial Court in the counter claim filed by the defendants. The aforesaid first appellate judgment and decree dated 14.09.2011 has been brought under challenge in the present second appeal.
5. I have heard Mr. K.P. Sarma, learned senior counsel assisted by Mr. H. Gogoi, learned counsel for the appellants and Mr. B.K. Bhagawati, learned senior counsel assisted by Ms. A. Chakraborty for the respondents.
66. Mr. K.P. Sarma, learned senior counsel would argue that the first appellate Court considered issues No. 1 to 8 whereas the trial Court framed issues no (a), (b), (c), (d), (e), (f), (g) and (h) and so there is utter confusion as to which issue is decided by the trial Court in which way. The learned senior counsel also argued that the first appellate Court is duty bound to frame point for considerations and to decide the same. According to the learned senior counsel, the appellate Court is duty bound to decide the same by laying down reasons for decision as contemplated in provision of Order XLI Rule 31 of the Code of Civil Procedure. This according to the learned senior counsel gives rise to substantial questions of law for admission of second appeal. In the case of K. Ibahal Singh v. C. I. Singh reported in (1993) 1GLR 325 this Court held that substantial compliance of Order XLI Rule 31 of the Code of Civil Procedure is necessary. What is required is that the learned first appellate Court being the last Court of fact and law is duty bound to consider both pleadings and evidence of the parties and if this is done this would amount to substantial compliance of Order XLI Rule 31 of the Code of Civil Procedure. The Hon'ble Supreme Court elaborately discussed this aspect of the matter in the case of Santosh Hazari reported in (2001) 3SCC 179.
7. This Court is required to see as to whether first appellate judgment and decree challenged in this appeal contain discussion in regard to pleadings and proof adduced by the parties. The learned senior counsel for the appellants does not argue that evidence was not taken into consideration. What is argued is that on the basis of Ext.-uma (1) to (11) and Ext.-cha (series) the learned appellate Court was not required to come to a finding on the ownership or title of the house. Although it was all along the case of the plaintiff that he is co- owner of the suit land and the house but the learned senior counsel would argue that even if the defendants are holder of title on the basis of the probate but defendants are duty bound to prove that they are owner of the house as well. Now to decide this question the learned first appellate Court has not only considered the pleadings of the parties but has also considered relevant exhibits like Ext.-ka, Ext.- kha, Ext.-uma series and Ext.-cha. Sufficiency of evidences cannot be a concern for second appeal. It is to be seen whether a particular finding of the learned first appellate Court is based on any evidence or not. Here in this case it cannot be said that the findings of the first appellate Court is based on no evidence. The substantial questions of law pressed by the learned senior counsel also do not reflect that 7 there is an argument in regard to perversity of findings of the learned Courts below. It is established law that unless a concurrent finding is perverse, second appellate Court cannot interfere with such finding. This being the position this Court is constrained to hold that no substantial question of law does arise from the facts and circumstances of the case. Accordingly this second appeal is not admitted and dismissed.
8. No order as to costs.
9. Interim order passed earlier shall stand automatically vacated.
sds JUDGE 8 MC 1964/2014 In RSA 145/2014 BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY 05.11.2014
In view of the judgment passed in the second appeal no order need be passed in the Misc. Case.
It is accordingly closed.
sds JUDGE