Gauhati High Court
Sri Parikhit Pathak And Anr vs Sri Joy Madhab Baruah And 11 Ors on 19 December, 2019
Equivalent citations: AIRONLINE 2019 GAU 615
Page No.# 1/12
GAHC010222362019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 199/2019
1:SRI PARIKHIT PATHAK AND ANR
S/O- LATE JAMUNA PATHAK, R/O- HOSPITAL ROAD/GNG ROAD,
NAGARMAHAL MOUZA, P.O., P.S. AND DIST.- SIVASAGAR, ASSAM.
2: SRI DEBAJIT PATHAK
S/O- LATE JAMUNA PATHAK
R/O- HOSPITAL ROAD/GNG ROAD
NAGARMAHAL MOUZA P.O.
P.S. AND DIST.- SIVASAGAR ASSAM
VERSUS
1:SRI JOY MADHAB BARUAH AND 11 ORS.
S/O- LATE SATYARAM BARUAH, R/O- KAKATIGAON, BETBARI MOUZA,
P.O. SUKAN PUKHURI, P.S. AND DIST.- SIVASAGAR, ASSAM.
2:SMTI. PUTALI SINGHA
W/O- LATE JATIN SINGHA
3:SMTI. NAMRATA DEVI SINGHA
D/O- LATE JATIN SINGHA
4:SMTI. MAMATA DEVI SINGHA
D/O- LATE JATIN SINGHA
5:SRI PNAKAJ SINGHA
S/O- LATE JATIN SINGHA
6:SRI PRANJAL PRATIM SINGHA
S/O- LATE JATIN SINGHA
7:SRI AMITAV SINGHA
Page No.# 2/12
S/O- LATE JATIN SINGHA
8:SRI NILUTPAL SINGHA
S/O- LATE TARUN SINGHA
9:SMTI. ALPHOOL SINGHA
D/O- LATE TARUN SINGHA
10:SRI OM PRAKASH PATHAK
R/O- HOSPITAL ROAD
GNG ROAD
NAGARMAHAL MOUZA P.O.
P.S. AND DIST.- SIVASAGAR
ASSAM PIN- 785640.
11:SRI SARU DUTTA
R/O- HOSPITAL ROAD
GNG ROAD
NAGARMAHAL MOUZA P.O.
P.S. AND DIST.- SIVASAGAR
ASSAM PIN- 785640.
12:SRI MINTU JUGANI
S/O- MAHABIR PRASHAD JUGANI
ALL ARE R/O- HOSPITAL ROAD
GNG ROAD
NAGARMAHAL MOUZA P.O.
P.S. AND DIST.- SIVASAGAR ASSAM
PIN- 785640
Advocate for the Petitioner : MR. P J SAIKIA
Advocate for the Respondent : MR. B C DAS
BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI Date : 19-12-2019 JUDGMENT & ORDER Page No.# 3/12 This second appeal is directed against the order dated 03.08.2019 passed by the learned Civil Judge, Sibasagar in T.A. No. 13/2019.
2. Notices were served on the respondents, who have already entered appearance through learned counsel. Learned counsel for the appellant Mr. P.J. Saikia and the learned Sr. Counsel Mr. B.C. Das for the respondent were heard at length on admission.
3. Learned Sr. Counsel, Mr. B.C. Das raising vehement objection against admission of this second appeal contended that no substantial question of law is involved in this appeal and therefore, the appeal does not deserve to be admitted.
4. The respondent herein as plaintiff filed a suit being T.S. No. 46/1989 for ejectment and arrear rent, which was decreed by the learned trial court. The legal heirs of Nandi Singh i.e. his son, daughter and grand children were also made defendant in the T.S. 46/1989. The appeal preferred by the defendants was dismissed. The second appeal filed by the defendants also stood dismissed and accordingly the judgment and decree passed in T.S. No. 46/1989 attained finality. Thereafter, execution proceeding was instituted by the plaintiff/respondent. During pendency of the execution proceeding, the present appellant filed an application under Order 21 Rule 97/101 CPC R/W Rule 151 CPC challenging the executability of the decree, alleging that they were in possession of the suit land for long time, but in the suit filed by the plaintiff/respondent, the present appellants were not made party and therefore the decree was not binding on them.
5. The plea raised by the appellant in the application under Order 21 Rule 97 CPC was that they were the son of Savitri Singh and grandson of late Nandi Singha. Nandi Singha entered into the suit property in the year 1940 by way of dispossessing the original owner M/S Phulchand Bhagawandas and had been possessing the land openly and adversely denying the title of the original owner and thereby acquired title over the suit property by adverse possession. The mother of the appellant Savitri inherited the right, title over the property and she was also possessing the suit property and the appellants acquired title from their mother Page No.# 4/12 and had been possessing the two rooms with kitchen, bathroom over the suit property. However, they were not made party in the T.S. 46/1989 and they had no knowledge about the suit. The contention of the appellants was that the decree in T.S. 46/1989 was not binding on them being not party to the suit. The respondent resisted the petition filed by the present appellant and upon hearing both the sides, learned Munsiff rejected the petition in Misc. (J) Case No. 64/2018. The learned Munsiff held, that the defendants in the T.S. 46/1989 were also legal heirs and descendent of Nandi Singha and they also raised the claim of title over the suit land by adverse possession through Nandi Singha, which was rejected by the court and the suit of the plaintiff/respondent was decreed and decree was upheld by the first appellate court as well as by the High Court in the second appeal. The learned trial court further held that the appellants being legal heirs of Nandi Singha, could not raise the same plea of title over the suit property by adverse possession through Nandi Singha, inasmuch as, the plea already raised by other legal heirs Nandi Singha was decided and the same had attained finality when confirmed by the High Court in Second Appeal. Having held so, the learned trial court rejected the petition under Order 21 Rule 97 CPC filed by the appellant.
6. Aggrieved by the order passed by the learned Munsiff in Misc (J) Case No. 64/2018, the appellant preferred a title appeal being T.A. No. 13/2019, which stood dismissed. Aggrieved by the order passed by the learned appellate court in T.A. No. 13/2019, the present second appeal has been filed.
7. Initially, in the memo of appeal, the substantial question of law was formulated to the effect, as to whether the decree passed by the learned trial court in T.S. No. 46/1989 was binding upon the appellants who, were not party to the suit. During the course of hearing on admission of this appeal, the learned counsel for the appellant contended that they were in possession of the suit land having right, title and interest therein by rigt of inheritance. However, the plaintiff did not implead the appellants in the suit and therefore, the decree passed in T.S. 46/1989 was not binding on the appellants.
8. Learned Sr. Counsel, Mr. B.C. Das submitted that when some of the legal heir of Nandi Singha were parties in the original suit, and raised the same issue of title by adverse Page No.# 5/12 possession through Nandi Singha, which was rejected by the courts including the High Court in the second appeal, the appellant could not raise the same issue, on the ground of non- representation or that they were not made party, inasmuch as, the estate involved in the suit was sufficiently represented by the defendants, who were also the legal heirs of Nandi Singha and as such the decree was binding on the appellant too. In order to buttress his submission, learned Sr. counsel Mr. B.C. Das, placed reliance on the following decisions.
(i) 2004 (2) GLT 337 (Narayan Ch, Deb Vs. United Commercial Bank & Anr.)
(ii) (2008) 3 SCC 233 (Mohammad Hussian (Dead) by LRs and Ors. Vs. Occharlal & Ors.)
(iii) AIR 1965 (SC) 1049 (Daya Ram & Ors. Vs. Shyam Sundari )
9. In Narayan Ch. Dev (supra) dealing with the doctrine of sufficient representation, the Apex Court held as under:
".......................... ......... Thus, on a review of the authorities, it can be said that the crucial test is whether the legal representatives already on record even in another capacities can sufficiently represent the estate of the deceased. In this case, I find that there are some peculiar facts as already referred to in the foregoing paragraph No. 7, which cannot be lost sight of in determining whether the doctrine of sufficient representation of estate has been satisfied. These peculiar facts coupled with the facts that the petitioner is the son the deceased defendant and that the respondent no. 2 being the wife of the same defendant have pursuaded me to hold that the share of the deceased defendant in the said mortgaged properties has been sufficiently represented by the petitioner and his stepmother. Consequently, the Ld. Civil Judge is right in holding that the suit is neither abated nor is the decree a nullity. Therefore, there is no jurisdicrional error committed by the Ld. Civil judge in rejecting the objection of the petitioner u/s 47 of the Code."
10. In Mohammed Hussain (supra), the Apex Court held as under:
"12. It is true that in a suit for redemption of mortgage, all the heirs and legal representatives of the deceased mortgagee are necessary parties but, in the facts and circumstances of the present case, we do Page No.# 6/12 not find any reason to agree that in the absence of the two married daughters, the suit could not be maintainable in law, for at least two reasons: -
i) It was the finding of the first appellate court that at the time of filing of the suit for redemption, one of the mortgagees viz., Nandram was already dead. A finding was also made that one of the married daughters viz., Annapurna was dead. If this finding is accepted, then Annapurna cannot be said to be a necessary party at the time of filing of the suit. So far as the other married daughter viz., Pyaribai is concerned, the finding of the appellate court was to the effect that she was not in occupation of the suit premises nor was she staying with the mortgagee viz., Nandram at the time of his death. Again, if this finding is also accepted, we are not in a position to hold that the suit could not be held to be not maintainable in law in the absence of the two married daughters.
ii) Even assuming that the two married daughters of Nandram were necessary parties, then also, we must hold that the interest of the two married daughters in the estate of Nandram was sufficiently represented by their two brothers viz., Manaklal and Motilal.
13. In the case of N.K. Mohd. Sulaiman Sahib Vs. N.C. Mohd. Ismail Saheb and others [AIR 1966 SC 792], this court in paragraph 14 observed as follows: -
"14. Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognized exceptions. Where by the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The Court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties Page No.# 7/12 irrespective of their religious persuasion."(Emphasis supplied) From a bare reading of the aforesaid observation of this court in the abovementioned decision, it is clear that ordinarily the court does not regard a decree binding upon a person who was not impleaded in the action. While making this observation, this court culled out some important exceptions: -
(i) Where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, the decree would be binding on all the persons interested in the estate.
(ii) If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate.
(iii) The court will also investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the court. Therefore, in the absence of fraud, collusion or other similar grounds, which taint the decree, a decree passed against the heirs impleaded binds the other heirs as well even though the other persons interested are not brought on record.
11. In Daya Ram (supra), the Apex Court held as under:
"When this provision speaks of "legal representatives" is it the intention of the legislature that unless each and every- one of the legal representatives of the deceased defendants, where these are several, is brought on record there is no proper constitution of the suit or appeal, with the result that the suit or appeal would abate? The almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. The principle of this rule of law was thus explained in an early decision of the Madras High Court in Kadir Vs. Muthukrishna Ayyar (1902) ILR Mad. 230.
................................"
12. Thus from the above authorities it is abundantly clear that when some of the legal heirs were brought on record and the estate is sufficiently represented by them, the decree is binding, not only on the legal heirs who were impleaded but also on all other legal heirs who were not made parties by virtue of the doctrine of sufficient representation. In the case in hand, when the plea sought to be raised by the appellant in the application under Order 21 Rule 97/101 CPC, as legal heirs of Nandi Singha, was already raised in the suit by some other Page No.# 8/12 as legal heirs of Nandi Singha and was rejected by the court, such decision is binding on the appellants though, they were not parties to the suit, inasmuch as, the estate was sufficiently represented by the other legal heir if Nandi Singha, who were made parties. Confronted with the above legal proposition, the appellants abandoned the substantial question proposes initially and proposes the following three substantial questions of law for admission of this second appeal:
"i. whether on a petition filed under O.21 R.99, 101 R/W Section 151 of CPC, being a suit by itself before the Executive Court, filed by third party can be disposed of without following all procedures of a suit?
ii. whether a court exercising original jurisdiction in a civil suit can proceed to pass its judgment and order, firstly without framing issue(s) necessary to adjudicate and secondly without allowing to adduce evidence by the party filing the suit?
iii. whether a judgment and decree passed on a petition filed under O.21 R.99, 101 R/W Section 151 of CPC by a Executing Court without framing issues on the pleadings of the parties and basing its decision without taking any evidence from the parties is sustainable in law?"
13. Learned counsel for the appellants submitted that the petition filed by the appellant under Section 21 Rule 97 was disposed of by the learned trial court without framing any issue or giving any opportunity to the appellant to adduce evidence and therefore, such decision is not sustainable in law.
14. Refuting the submission of the learned counsel for the appellant with regard to the above proposed substantial question of law, Mr. B.C. Das, learned Sr. Counsel contended, that the question raised by the learned counsel for the appellant are not at all substantial question of law, as substantial question of law is one, which arose in the suit pertaining to the dispute between the parties and it does not relate the procedure to be followed. To buttress his submission, Mr. Das placed reliance on the following decisions:
(i) (2001) 3 SCC 179 (Santosh Hazari Vs. Purushottam Tiwai (Dead) by LRS)
(ii) (2008) 8 SCC 92 (State Bank of India & Ors. Vs. S.N. Goyal) Page No.# 9/12
15. Section 100 of the CPC provides that save as otherwise expressly provided in the body of the code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to a High Court, if the High Court is satisfied that the case involves a substantial question of law. Section 101 provides that no second appeal shall lie except on the grounds mentioned in Section 100 CPC. Thus, it is trite law, that second appeal from an appellate decree lies only if there is a substantial question of law involves. Therefore, no second appeal can be entertained without substantial question of law being involved. In the instant case, although the appellate order arose out of the order passed by the learned Munsiff upon an application under Order 21 Rule 97 and 101 CPC, such order though, not a decree in real sense, but by way of legal fiction in view of Rule 102 and Order 21 CPC, such an order is deemed to be a decree and amenable to appeal as if it is a decree. Since a second appeal does not lie without substantial question of law, before entertaining a second appeal, the court is required to be satisfied that it involves substantial question of law. The Apex Court in SBI Vs. S.N. Goyal (supra) dealing with what is the substantial question of law, held as under:
"9.1) Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the concerned High Court), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the concerned High Court) would have led to a different decision, the appeal Page No.# 10/12 would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this court (or the concerned High Court) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a strait-jacket definition as to when a substantial question of law arises in a case. Be that as it may."
16. In Santosh Hazari (supra), dealing with as to what is the substantial question of law, the Apex Court observed as under:
"12. The phrase substantial question of law, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying question of law, means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase substantial question of law as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacturing Co. Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
..when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:- The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so Page No.# 11/12 whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
17. What is therefore abundantly clear from the above authorities is that the substantial question of law is one, which arises in the suit relating to the dispute involved and the substantial question involved in the case between the parties. The substantial question of law proposed by the appellants were that the learned trial court did not frame any issue or received any evidence while deciding the application and therefore, such order was illegal. From the very nature of the questions proposed by the appellants, it is apparent that the questions proposed are not involved in the case or substantial question of law arising out of the dispute between the parties, rather, relates to the procedure adopted by the court in disposing the application filed by the appellant.
18. It is to be borne in mind, that the order passed by the learned Munsiff in disposing of the application under Order 21 Rule 97 CPC, though, deemed to be a decree by legal fiction in view of Rule 102 of the Order 21 CPC, such an order need not necessarily be passed in strict compliance with the provision of Order 20 Rule 4 CPC. As define in Section 2(14) CPC, 'Order' means the formal expression of any decision of a civil court which is not a decree. Having gone Page No.# 12/12 through the order passed by the learned Munsiff on the petition filed by the appellant under Order 21 Rule 97 CPC and affirmed by the first appellate court, it is apparent that the learned Munsiff had discussed the issue involved in the petition relating to the title of the appellants and had come to a finding. When the learned trial court elaborately discussed the issue of tile of the appellants or claim made by them in the application and came to a finding against the appellant, it cannot be said, that the order has suffered from illegality, merely because of not framing issue, inasmuch as, the definition of the order clearly provides that Order means a formal expression of the court and unlike Order 20 Rule 4 CPC, the Section 2(14) CPC does not prescribe any specific form of Order. Therefore, non framing of issue, per se, cannot vitiate any order passed in an application under Order 21 Rule 97 CPC. Therefore, in my considered view, non-framing of an issue or point for determination in a particular way cannot be considered to be a substantial question of law arising in the suit or involved in the dispute between the parties, having bearing in the final outcome. This apart, when the issue raised by the appellant in the application under Order 21 Rule 97/101 CPC was already decided in the suit which was binding on the appellant for the reason stated above, there was no scope for receiving evidence further, or to reopen the issue raised in the application filed by the appellant. When there was no scope for re-opening the issue of title raised by the appellant, there was obviously no question of receiving evidence to decide the application. Thus, the substantial question proposed by the appellant cannot be considered as substantial question of law involved in the lis so as to enable the court to admit the instant second appeal. Being of the above view, I find no reason to admit this appeal in absence of any substantial question of law. Accordingly, the appeal stands dismissed.
JUDGE Mkk Comparing Assistant