Gauhati High Court
On The Death Sudhir Ch. Sarmah His Legal ... vs The State Of Assam And Ors on 24 April, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: RSA 156/2007
On the death of Sudhir Ch. Sarma
his legal heirs -
Smt. Sefali Sarma and another ...... Appellants
-Versus-
The State of Assam and others ..... Respondents
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA For the Appellant : Mr. DP Chaliha Sr. Advocate Mr. UP Chaliha Advocate For the Respondents : None appears Date of Hearing : 18.04.2017 Date of delivery of Judgment and Order : 24.04.2017 JUDGMENT AND ORDER (CAV) Heard Mr. DP Chaliha, learned senior counsel assisted by Mr. UP Chaliha, learned counsel for the appellants. None appears for the respondents. Page 1 of 8 RSA 156/2007
2. The present appellants herein are the plaintiffs in Title Suit No. 38/1982 filed against originally the respondents No. 1 to 4 for declaration and perpetual injunction.
3. The brief facts of the case of the plaintiff/appellants are that the land described in the schedule of the plaint is classified as 'charbharat' land situated nearby the Kushiara river which was made khas by the Government of Assam and the same was under long standing possession of different persons nearby the land settled to them. The respondents started Encroachment Cases No. 11/1944-45 and 2/1944-45 against the occupiers. One Radhika Ranjan Das and 41 others including one Irfan Ali instituted Title Suit No. 301/1947. In the said suit, Irfan Ali was arrayed as plaintiff No. 9 and the suit was instituted against the State (Province of Assam). It was sought in the said Title Suit No. 301/1947 for the reliefs of declaration that the said 42 numbers of plaintiffs are entitled to get settlement of the land under the said encroachment cases and for a direction to the Government for giving settlement to them. The said Title Suit No. 301/1947 was decreed in favour of the plaintiffs on the basis of a compromise decree passed on 19.01.1955. In the present suit the land described in second schedule of the plaint is the part of first schedule of land which was in possession of Irfan Ali as it was situated on the contiguous northern side of his patta land vide patta No. 373/1951 forming part of the land mentioned in Title Suit No. 301/1947. As per the decree passed in Title Suit No. 301/1947, the said Irfan Ali was entitled for settlement of the said second schedule land. The Irfan Ali transferred his right of possession and the right to get settlement of second schedule land along with patta land to one Premoda Bala Debi, wife of late Page 2 of 8 RSA 156/2007 Rudreswar Sarma. Premoda Bala Debi managed the said property through her relative Khirod Sarma and the plaintiff No. 1 Sudhir Sarma. The said Premoda Bala Debi decided to enter into Jote settlement with the plaintiff appellants but a dispute arose between the said Khirod Sarma and herself. Title Suit No. 20/1968 was instituted against the said Khirod Sarma and others which was decreed in favour of Premoda Bala Debi and the said land was gifted to the plaintiff appellants by executing a gift deed. The respondents No. 2 to 4 granted settlement of a portion of second schedule land in favour of the plaintiff appellants vide Settlement Case No. 3/1964-65 and the said portion of land is described in schedule 3 of the plaint. But while the process of settlement of further area of land covered under second schedule was on, it came to the notice of the plaintiff appellants that the respondents No. 2 to 4 were trying to settle the land in favour of the original defendants No. 5 and 6, namely, Ramadhar Kalwar and Ramdasi Kalwar. As the said defendants No. 5 and 6 were not party to the Title Suit No. 301/1947 they were not entitled for the said settlement and as such the suit was filed for declaration of entitlement for settlement of the plaintiff appellants with respect to the land described in the plaint.
4. The respondents No. 1 to 4 filed a written statement and the defendant No. 5 Ramadhar Kalwar also submitted written statement and contested the suit. However, the defendant No. 6 Ramadasi Kalwar expired before filing the written statement upon which her legal heirs were substituted as defendants No. 6(a) to 6(h) who are the present respondents No. 7 to 14. However, the names of the respondents No. 7 to 9 were struck out vide order dated 13.05.2013 passed by this Court in M.C. No. 1291/2013. The said substituted legal heirs did not file any Page 3 of 8 RSA 156/2007 separate written statement but accepted the one filed by the defendant No. 5 who is the predecessor-in-interest of the present respondents No. 6(a) to 6(e). The said title suit No. 38/1982 was decreed in favour of the appellant plaintiffs vide judgment and decree dated 26.09.1988 by the learned Munsiff No. 1, Karimganj. The said trial court decreed that the plaintiff appellants are entitled to get settlement of the portion of Khas Charbharat land lying contiguous north of the patta land and settled land upto the E & D Bandh (municipal path) and bounded by the patta land and settled land and a portion of Khas Charbharat land under the possession of defendants No. 5 and 6 on the east and the land of Ranendra Mohan Das etc. on the west. The plaintiff appellants are not entitled to get the settlement of the portion of Khas Charbharat land under the possession of defendants No. 5 and 6 lying contiguous north of their patta land and settled land upto the E & D Bandh (municipal path) as stated above. The Government defendants are at liberty to settle this portion of khas land to the defendants No. 5 and 6.
5. Being aggrieved, respondent defendants No. 1 to 4 preferred Title Appeal No. 10/1989 in the court of learned Civil Judge, Karimganj against the said judgment and decree dated 26.09.1988 passed in Title Suit No. 38/1982. During pendency of the said title appeal No. 10/1989 one Sri Jitendra Kumar Das @ Dipal Das preferred an application under Order I Rule 10 of the CPC for his impleadment as a party in title suit 38/1982 filed by the present plaintiff appellants. The ground mentioned in the said petition for impleadment is that the mother of the said Jitendra Kumar Das is entitled for settlement, inasmuch as, the land claimed by the plaintiff appellants on the basis of the sale made by Irfan Page 4 of 8 RSA 156/2007 Ali is wrong and moreover, in the judgment passed by the trial court while discussing issue No. 3, the name of the mother of the said Jitendra Kumar Das came to be mentioned. However, the said petition was rejected by the first appellate court vide order dated 20.02.2006 passed by the learned Civil Judge, Karimganj.
6. The said order rejecting the prayer for impleadment was challenged in CRP No. 42/2006 in this Court and vide order dated 04.12.2006, this court allowed the revision petition by ordering that the said Jitendra Kumar Das be impleaded as a party in title appeal No. 10/1989 and with a direction that he be allowed to make his submission.
7. On the basis of the said order of this court passed in CRP No. 42/2006, the said Jitendra Kumar Das @ Dipal Das was impleaded as the appellant No. 5 who is the present respondent No. 5 in the second appeal. The learned first appellate court vide judgment and decree dated 05.07.2007 allowed the appeal by setting aside the judgment and decree passed by the trial court. Being aggrieved, the present appellant plaintiffs have preferred the present second appeal which was admitted on 17.12.2007 on the following two substantial questions of law:-
1. Whether the learned first appellate court can add a person as an appellant and allow him to challenge the decree passed by the learned trial court without being as a party in the suit?
2. Whether the learned first appellate court can rely on the additional evidence adduced by the appellant without affording the opportunity to cross-examine such witness?
Page 5 of 8 RSA 156/2007
8. Mr. Chaliha, learned senior counsel, submits that the first appellate court passed the judgment and decree by relying the submissions of the said respondent No. 5 that the contiguous southern side land of the suit land belonged to Sushila Bala Das and he being the successor-in-interest owned the same. It is also accepted by the first appellate court that DW 1 deposed in favour of Sushila Bala Das because he deposed that western side of land of Sushila Bala Das is the land of Ranendra Mohan Das and further accepted that the patta land of Sushila Bala Das appertaining to Dag No. 286, 287 is the contiguous south of the suit land. On the submission of the learned counsel appearing on behalf of the present respondent No. 5, the learned first appellate court came to its own finding that on the basis of the submission of the said learned counsel he found better and convincing evidence adduced by the defendant side. Finally the learned first appellate court held that applying the principle of preponderance of probability it was held that Irfan Ali though instituted Title Suit No. 301/1947 along with 41 other plaintiffs and as per terms of Solenama they got the decree but no right had accrued on Irfan Ali in respect of the suit land of Title Suit No. 38/1982 for the reasoning that his plot of land including contiguous southern side patta land had not been ascribed either in the plaint schedule of title suit No. 301/1947 or in the Solenama decree in title suit No. 301/1947 for which no enforceable right has been transferred to Premoda Bala Debi on the strength of Exhibits 10, 11 and 12 and as such the appellant plaintiffs did not acquire any right on the strength of gift deed regarding the suit land. For the said reason the first appeal was allowed setting aside the judgment and decree passed by the trial court in favour of the plaintiff appellants.
Page 6 of 8 RSA 156/2007
9. Considered the submissions of Mr. Chaliha and also perused the record of title appeal No. 10/1989. With regard to the substantial question of law No. 1 it is not disputed that if a person is aggrieved by any judgment passed in a suit without making him as a party he has a right to prefer an appeal or implead himself as an appellant. This is a case wherein a direction was issued by this court to the first appellate court to implead the present respondent No. 5 as the appellant in the said appeal and with a further direction to allow him to make his submission. The order passed by this court never directed to consider the submissions of the newly impleaded appellant without following the due process and procedure known to the procedural law and the principles of natural justice. The acceptance of the submissions of the newly impleaded appellant cannot be considered without there being any pleadings to that effect and giving a chance to the other side to contest the veracity of the submissions made by the said newly impleaded appellant by way of cross examination. Under such circumstances, a duty was cast upon the first appellate court after considering the submissions of the present respondent No. 5 to take recourse to the provisions stipulated under Order XLI Rule 23 or any other rules under Order XLI thereby allowing the said newly impleaded appellant to contest the claim of the present plaintiff appellants by allowing him to be impleaded as one of the defendants and further allowing him to file his written statement and the said submissions ought to have brought on record by way of pleadings and evidence. Having not done so, a gross injustice has been done to the plaintiff appellants. Under such circumstances, both the substantial questions of law are decided in the affirmative and this second appeal is allowed by setting aside the judgment Page 7 of 8 RSA 156/2007 and decree passed by the first appellate court in title appeal No. 10/1989 and further the matter is remanded to the learned first appellate court i.e. learned Civil Judge, Karimganj to decide the appeal as per the observations made hereinabove within the ambit and scope of the procedural law.
10. The learned first appellate court shall issue notice to the parties to the present second appeal and also in title appeal No. 10/1989 fixing the date for appearance immediately on receipt of the case records.
11. The Registry shall send the case records immediately.
JUDGE BiswaS Page 8 of 8 RSA 156/2007