Gauhati High Court
On The Death Of Golap Ch. Kalita His Legal ... vs On The Death Of Haren Rajbanshi His Legal ... on 19 July, 2016
Equivalent citations: AIR 2016 GAUHATI 179, (2016) 165 ALLINDCAS 584 (GAU)
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
RSA No.73 of 2005
On the death of Golap Chandra Kalita
his legal heirs Smti. Dhanmati Kalita
& others. ... ... ... Appellants
-Versus-
On the death of Haren Kalita his
legal heirs Smti Kalita Rajbongshi
& others. ... ... ... Respondents.
BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY For the appellants : Mr. P. K. Deka, Advocate.
For the respondents : Mr. P. K. Kalita, Advocate.
Date of hearing : 19.07.2016.
Date of Judgment : 19.07.2016.
JUDGMENT & ORDER (Oral)
1. Dismissal of his suit by the two Courts below has been challenged by the plaintiff in the present Second Appeal.
2. The present appellant as plaintiff instituted Title Suit No.12/1992 in the Court of learned Munsiff at Rangia stating that the suit land RSA No.73/2005 Page 1 of 22 measuring 2 bighas 8 lechas covered by Dag No.1459 of K.P. Patta No.145 of village Tulsibari under Panduri Mouza of Rangia Circle was originally owned along with other lands by one Debi Ram Kalita. He mortgaged the entire land in favour of one Garga Ram Kalita by creating usufructory mortgage on the condition that the land would stand redeemed after the mortgage money is realized by the mortgagee from the usufructs. But even after liquidation of the mortgage money the mortgagee did not hand over vacant possession of the land in favour of Debi Ram Kalita for which he instituted Title Suit No.86/1970 in the Court of learned Munsiff at Guwahati for redemption of the land and for recovery of possession. The suit was decided ex parte in favour of the plaintiff on 03.12.1971. In the meantime, on 26.06.1968 original owner Debi Ram Kalita executed a registered sale deed in favour of the plaintiff with respect to the suit land but possession was not delivered as mortgagee was in possession of the land. Subsequently, after redemption of mortgage on the basis of judgment and decree passed in Title Suit No.86/1970, Debi Ram Kalita got the possession and thereafter handed over the same to the plaintiff. He continued enjoying the same on assertion of his right, title and possession but he failed to get mutation in the records of rights because of the objection raised by the defendants who are the two sons of the mortgagee. This is because the mortgagee had, in the meantime, got his name mutated in the records of rights although he has no semblance of title in regard thereto. The plaintiff instituted the suit for RSA No.73/2005 Page 2 of 22 declaration of his right, title and interest over the suit land on the basis of registered sale deed No.4070 dated 26.06.1968 and for confirmation of possession. He also made a prayer for appropriate direction for correction of the entries in the records of rights.
3. On being summoned the two defendants appeared and submitted their written statement. Debi Ram Kalita was inmpleaded as proforma defendant No.4 in the case. He also submitted a written statement separately. The defendants No.1 and 2 in their written statement submitted that the suit land originally belonged to Debi Ram Kalita who had mortgaged the same in favour of their father late Garga Ram Kalita. Debi Ram Kalita later on instituted the suit for redemption of usufructory mortgage and during pendency of the suit Garga Ram died. Accordingly they were substituted as defendants but they did not contest the suit since the suit land was released in favour of the plaintiff upon liquidation of the mortgage money from the usufructs. In the meantime, Garga Ram also transferred his title in favour of the original owner Garga Ram Kalita. Mutation of their names, if there be any, in the records of rights were due to mistake or otherwise and so they prayed that the suit of the plaintiff be decreed except with cost. In their written statement they enclosed a copy of decree dated 03.12.1971 passed in Title Suit No.86/1970 and a copy of Misc. Case No.2/1972 disposed of on 14.06.1971 (sic).
RSA No.73/2005 Page 3 of 22
4. Defendant No.3 filed yet another written statement admitting the claim of the plaintiff. He specifically admitted in paragraph 2 of the written statement that he had mortgaged land to Garga Ram Kalita, the late father of the principal defendants, by way of usufructory mortgage against loan. He claimed to have instituted a suit for redemption of the suit land in the Court of learned Munsiff at Guwahati against Garga Ram Kalita. Garga Ram Kalita died during pendency of the suit and so principal defendants No.1 and 2 of the present suit were impleaded as defendants in that suit. These substituted defendants did never contest the suit although they had appeared and so the suit and the Misc. Case were decreed ex parte. Since, in the meantime, the defendant No.3 had to migrate from the suit land, he executed a registered sale deed in favour of the plaintiff and so he urged that he would not have any objection as against the claim of the plaintiff. Along with the written statement a copy of the ex parte decree dated 03.12.1971 in Title Suit No.86/1970 and a copy of Misc. Case No.2/1972 disposed of on 14.06.1971 (sic) were also annexed.
5. At this stage, on 16.11.1992, one Haren Rajbangshi by filing an application bearing No.702/92 prayed for being impleaded as defendant No.1 in the suit in addition to the earlier defendants. Ultimately, the learned Court by order dated 31.03.1993 allowed the prayer and thereafter the newly impleaded defendant, namely, Haren Rajbangshi submitted a written statement a copy of which appears to RSA No.73/2005 Page 4 of 22 have been received by the learned counsel for the plaintiff on 21.09.1993. In his written statement the newly added defendant denied the pleaded case of the plaintiff and claimed in paragraph 4 that he had purchased 2 bigha 8 lechas of land in Dag No.1469 in K.P. Patta No.149 of village Tulsibari on 10.04.1970 and since then he has been in continuous possession of the suit land along with Kalipriya. He had preferred Revenue Appeal No.147/72-73 and also filed a complaint case under Section 448/427 IPC against the principal defendants. The newly added defendant prayed that the suit of the plaintiff be dismissed with a compensatory cost of Rs.5000/-. He did not file any counter-claim for declaration of his right, title and interest etc. But subsequently on 01.02.1999 the contesting defendant Haren Rajbangshi filed an application stating that during pendency of the suit the plaintiff had obtained an order from the learned Executive Magistrate in Case No.27M/1983 against the contesting defendant and obtained possession of the suit land. Under such circumstances, it was necessary on his part to file an additional written statement so as to enable the defendant to bring on record the subsequent events arising afterwards. This application was numbered as Petition No.42/99. This application was allowed by the learned trial Court on 16.06.1999 by passing a detailed order. The contesting defendant, Haren Rajbangshi, was thereby permitted to file an additional written statement fixing 27.07.1999 for filing the same. The additional written statement was not immediately filed but after the suit was adjourned on two successive RSA No.73/2005 Page 5 of 22 dates ultimately on 08.01.2000 the additional written statement was filed and the plaintiff was given chance to file reply thereto. It is to be mentioned here that although by the aforesaid order dated 16.09.1999 the prayer of the contesting defendant for filing an additional written statement was permitted under Order VIII Rule 9 of the CPC, yet, while filing the additional written statement the contesting defendant also filed a counter claim. However, subsequently by filing another application on 20.11.2000 vide Petition No.902/2000 the defendant prayed for striking out the expression 'counter claim' from the additional written statement without affecting the reliefs sought in the additional written statement. It appears that this prayer of the defendant was accepted on 28.01.2001. The additional written statement was accepted by the learned trial Court and plaintiff was given liberty to file objection. The plaintiff accordingly filed a written statement against the additional written statement and counter-claim of the defendant on 19.06.2001. It was stated, inter alia, that the counter-claim is not only barred by limitation but in paragraph 6 it was further stated that by order dated 02.06.1999 the defendant was not allowed to submit counter-claim at all. However, all the averments made in the additional written statement filed by the defendant was denied by the plaintiff and it was further disclosed in paragraph 1 that the additional written statement is not maintainable at the stage as evidence of the parties have been closed and the suit was fixed for final argument and thereafter both the sides were heard. When the suit was fixed for RSA No.73/2005 Page 6 of 22 judgment on 22.09.1998 the defendant filed the application for additional written statement but in the meantime the same defendant had already instituted a separate suit being Title Suit No.42/1998 before the same Court as regards the same suit land and so there was no cause of action for the counter-claim at all. With these averments the plaintiff prayed that the additional written statement -cum- counter claim be rejected and judgment be passed after hearing argument of both sides.
6. It is to be noted here that prior to filing of the additional written statement the Court had framed issues and allowed the parties to lead their respective evidence. Accordingly, plaintiff had examined as many as six witnesses and adduced five documents and similarly defendant had also examined four witnesses and adduced two documents. Following were the issues framed by the learned trial Court on 03.09.2001 by recasting the earlier issues :-
"1. Is there any cause of action for the suit?
2. Is the suit barred by limitation?
3. Whether the plaintiff ahs lawfully purchased the suit land from Deviram Kalita aqnd has acquired valid title over the same if not, whether the defendant Haren Rajbongshi has acquired valid title over the suit land by purchase the same from the said Deviram Kalita?
4. Whether during pendency of the suit defendant Haren Rajbongshi was dispossessed from the suit land and hence, he is entitled to recover possession of the same?
5. To what other relief/reliefs the parties are entitled?"RSA No.73/2005 Page 7 of 22
7. After consideration of the evidence lead by the parties and on the basis of the pleadings filed by them the leaned trial Court passed judgment and decree dated 26.03.2002 dismissing the suit of the plaintiff and decreeing the counter-claim of the defendant. It is to be mentioned here that the learned trial Court did not find any cause of action for the plaintiff in the present suit as it was a suit for correction of the mutation entries but in so doing the learned trial Court failed to notice that there was a prayer for declaration of right, title and interest as well on the basis of the sale deed dated 26.06.1968. Coming to Issue No.2 the learned trial Court held that plaintiff though claimed to have purchased the land on 26.06.1968, yet, no possession was delivered to him. He might have obtained possession in the year 1983 and so the suit was barred by limitation. According to the learned trial Court, filing of written statement by Debi Ram Kalita supporting the case of the plaintiff indicated that the suit was a collusive one. Ext-2 sale deed was mere certified copy and so plaintiff failed to establish his right, title and interest over the suit land. Mere examination of PW 6, copyist of Sub- Registrar office, for proving the content of Ext-2 was of no help. The scribe or identifier or registering officer cannot be an attesting witness of a sale deed and moreover plaintiff failed to make out a case for accepting secondary evidence of the sale deed and failed to prove the same by examining attesting witness. It was held that Ext-2 sale deed is manufactured for the purpose of the case. The possession of the RSA No.73/2005 Page 8 of 22 suit land was not delivered to the plaintiff after execution of the sale deed for which Ext-2 could not convey any title to the plaintiff as if delivery of possession is sine qua non for effecting the sale under Section 54 of the Transfer of Property Act. The learned trial Court held that contesting defendant Haren Rajbangshi exhibited Ext-Ka whereby he has purchased the suit land from Debi Ram Kalita. The witness of the sale deed was examined as DW 2 who deposed that after making of payment by the defendant, Debi Ram redeemed the mortgage by paying Rs.5000/- to Garga Ram. Haren Rajbangshi gave money to Garga Ram and after redeeming the mortgage Debi Ram sold the suit land to Haren Rajbangshi by taking full consideration money and delivered possession. Thus, defendant was able to prove that he had lawfully purchased the suit land vide Ext-Ka sale deed. Coming to Issue No.4, the learned trial Court held that the plaintiff admitted initiation of proceeding under Section 145 Cr.P.C. for recovery of possession of the suit land before the Executive Magistrate who passed a final order in favour of the plaintiff and on that basis plaintiff took over possession of the suit land with the help of police and thus the entire proceeding was hit by the doctrine of lis pendens but in arriving at such finding the learned trial Court failed to notice that neither the order passed by the Executive Magistrate in the alleged proceeding under Section 145 Cr.PC. nor any other scrap of paper was brought on record by the defendant to show that plaintiff was not in possession of the suit land prior to alleged date of dispossession and that he got possession only on RSA No.73/2005 Page 9 of 22 the basis of order of the Executive Magistrate. Be that as it may, by deciding the Issue No.4 in favour of the contesting defendant, it was held that he is entitled to recovery of possession of the suit land although the defendant admittedly had made a prayer for striking out the word 'counter claim' from his additional written statement. The learned trail Court did not enter into any discussion as to whether merely on the basis of an additional written statement filed after conclusion of evidence of both sides a prayer of the defendant could have been allowed in the suit instituted by the plaintiff for declaration of his right, title and interest and for confirmation of possession. The plaintiff did not make any prayer for negative declaration that the contesting defendant did not have any right, title and interest with respect to the suit land. Moreover, plaintiff did not make any prayer against the contesting defendant and he had sought for declaration of his right as against the principal defendants, namely, Prabin Kalita and Arun Kalita only. It is the defendant who not only filed a separate suit being Title Suit No.42/1998 in the same Court understandably for recovery of khas possession and may be for declaration of his right, title and interest which, however, cannot be conclusively held as neither the Court felt need for analogously deciding the suit nor did the defendant made any attempt for analogous hearing of the two suits. With the aforesaid findings the learned Civil Judge (Junior Division), Rangia, dismissed the suit of the plaintiff but decreed the counter-claim of the contesting defendant.
RSA No.73/2005 Page 10 of 22
8. Aggrieved at the trial Court judgment and decree dated 26.03.2002 plaintiff preferred Title Appeal No.35/2002 in the Court of learned Civil Judge (Senior Division) at Guwahati. The learned First Appellate Court by his judgment and decree dated 28.02.2005 dismissed the appeal and upheld the findings of the learned trial Court. In so doing the learned First Appellate Court did not frame any point for determination as required under Order XLI Rule 31 of the Code of Civil Procedure. The learned First Appellate Court also did not consider the issues independently on the basis of the evidence available on record. The judgment of the learned First Appellate Court appears to be a mechanical confirmation of the findings of the learned trial Court whereby it was held that there was no cause of action for the suit, that the suit was barred by limitation and that the plaintiff failed to establish his purchase by cogent evidence, rather, the suit was barred by limitation. The learned First Appellate Court went a step further in observing that from the evidence on record it is evident that a proceeding under Section 145 Cr.P.C. was initiated by the plaintiff and by an order in that proceedings the defendant No.5 was dispossessed. But it is not clear as to what was the material available on record to enable the learned First Appellate Court to arrive at such finding when neither the records of the alleged 145 Cr.P.C. proceedings were called for by the learned trial Court or the appellate Court nor was the order passed therein brought on record by some or other means. Had those RSA No.73/2005 Page 11 of 22 records been produced it would have been possible on the part of the learned Courts below to see as to whether there was any finding as to prior possession of the plaintiff over the suit land within a period of two months from the date of alleged dispossession as contemplated under Section 145 Cr.P.C. All these observations were made at the mere ipse dixit of the respondent without there being any scrap of paper on records. These concurrent findings of the learned Courts below have been challenged before this Court by preferring the present Second Appeal.
9. This Court while admitting the Second Appeal on 06.06.2005 framed following two substantial questions of law :-
"1. Whether the suit is barred by limitation?
2. Whether there was any cause of action for the plaintiff's suit?"
On 20.06.2016, after this Second Appeal was heard to some extent, this Court framed yet another additional substantial question of law from the facts and circumstances of the case and the same is quoted below :-
"Whether the learned courts below committed error in not considering the doctrine of estate feeding estoppel under the facts and circumstances of the case?"
Thus, there are altogether three substantial questions of law to be answered in the present Second Appeal.
RSA No.73/2005 Page 12 of 22
10. I have heard Mr. P. K. Deka, learned counsel for the appellant and Mr. P. K. Kalita, learned counsel for the respondent Haren Rajbangshi. It is to be noted that the name of Prabin Kalita and Arun Kalita, the principal defendants and the proforma defendant No.3 all of whom had supported the case of the plaintiff were subsequently struck off by this Court by order dated 27.07.2015 in Misc. Case No.2872/2014. Similarly, name of the proforma defendant No.4, Smti Kalipriya Kalita, was also struck off. Thus, only Haren Rajbangshi, the contesting defendant, remained as sole respondent in this case. After death of Haren Kalita his legal heirs were impleaded as respondents in the appeal by order dated 14.11.2007. I have perused the lower Court records including the pleadings and evidence led by the parties. The substantial questions of law framed by this Court are required to be answered on the basis of the arguments put forward by the learned counsel for the parties and the materials available on record and the same is accordingly done as follows :--
11. Substantial question of law No.1.- Whether the suit is barred by limitation ?
Mr. P. K. Deka, learned counsel for the appellant, would argue that it is a suit for declaration of right, title and confirmation of possession as against defendants No.1 and 2. The defendants appeared and by filing written statement specifically admitted the title and possession of the plaintiff over the suit land and so it is a fit case for RSA No.73/2005 Page 13 of 22 decree on admission under Order XII Rule 6 of the CPC. According to Mr. Deka, it was a suit for confirmation of possession on the basis of title as against defendants No.1 and 2 and proforma defendants No.3 and
4. Under such circumstances, it is governed by Article 65 of the Limitation Act and so limitation would be 12 years from the date possession of the defendants became adverse. In the case in hand none of the defendants have raised the issue of adverse possession and so there is no question of the suit being barred by limitation. The contesting defendant appeared at the subsequent stage and did not file any counter-claim along with his written statement, he merely claimed to have acquired title over the suit land on the basis of the purchase from proforma defendant No.3 and even thereafter the plaintiff did not make any claim against him by way of amendment of the plaint. It is the case of the plaintiff that he was dispossessed by the contesting defendant Haren Rajbangshi during pendency of the suit but for which he went to Executive Magistrate under Section 145 Cr.P.C. and he got his relief therein. The contesting defendant thereafter instituted a suit being Title Suit No.42/1998 in the Court of learned Civil Judge (Junior Division) at Rangia asking for recovery of possession and so claim of the contesting defendant vis-à-vis the plaintiff was the subject matter in the subsequently instituted proceeding being Title Suit No.42/1998. None of the learned Courts below had made any observation as to whether the subsequently instituted suit was stayed or it was being pursued. According to Mr. Deka, whether the suit is barred RSA No.73/2005 Page 14 of 22 by limitation has to be considered on the basis of the averments made in the plaint and not on the basis of the averments made in the written statement. Here, in this case, plaintiff wanted declaration of his right, title and interest on the basis of purchase and he prayed for a decree of confirmation of possession on the basis of title. There was no question of the suit being barred by limitation, more so when all the defendants of the suit instituted by the plaintiff had admitted the claim of the plaintiff by specific pleading. The learned trial Court failed to take note of the fact that the suit was instituted for declaration of right, title and interest and not only for correction of the records of rights. That being the position, the first substantial question of law as to bar of limitation of the suit vis-à-vis the pleadings made in the plaint does not appear to apply. The first substantial question of law is accordingly decided in favour of the plaintiff.
12. Substantial question of law No.2.-- Whether there was any cause of action for the plaintiff's suit?
The plaintiff instituted the suit for declaration of his right, title and interest and for confirmation of possession vis-à-vis the original defendants No.1 and 2. The pleaded case of the plaintiff is that he purchased the suit land by registered sale deed dated 26.06.1968 which is prior to the sale deed executed in favour of the contesting defendant. The plaintiff stated that principal defendants Prabin Kalita and Arun Kalita did not have any semblance of right as their father was RSA No.73/2005 Page 15 of 22 a mere mortgagee in a usufructory mortgage. Title was retained by the mortgager Debi Ram Kalita who sold the right of redemption and the title to the plaintiff by sale deed dated 26.06.1968. Garga Ram Kalita did not acquire title in any point of time as per a mere usufructory mortgage. But action of the principal defendants No.1 and 2 in getting their names mutated in the records of right clouded the title of the plaintiff for which he was in need of institution of the suit to get his title declared by a competent civil court. Clouding of his right, title and interest for the allegedly erroneous mutation entries was the cause of action in the suit. Incidentally, the principal defendants against whom reliefs were claimed admitted the claim of the plaintiff and so the finding of the learned Courts below that there is no cause of action cannot be sustained. The plaintiff succeeded to make out arguable cause of action in the suit and so the second substantial question of law is also decided in favour of the appellant.
13. Third substantial question of law .- Whether the learned Courts below committed error in not considering the doctrine of estate feeding estoppels under the facts and circumstances of the case?
Mr. P. K. Deka, learned counsel for the appellant, would argue that during pendency of the usufructory mortgage, mortgager who is admittedly the original owner executed Ext-2 registered sale deed in favour of the plaintiff on 26.06.1968. The vendor was not in possession of RSA No.73/2005 Page 16 of 22 the suit land as on the date of execution of the sale deed as the land was admittedly in possession of the mortgagee Garga Ram Kalita. Even as per the deposition of DW 2, the attesting witness of Ext-Ka, Haren Rajbangshi made payment of Rs.5000/- to Debi Ram Kalita and Debi Ram, in turn, made this payment to Garga Ram and thereby redeemed the suit land from mortgage. But plaintiff claimed in his plait that there was a previous suit being Title Suit No.86/1970 whereby a decree of redemption was obtained by Debi Ram on 03.12.1971. This fact has been admitted in the written statement of the principal defendants and in fact there is a mention of this document at the bottom of the written statements. However, this judgment and decree dated 03.12.1971 in Title Suit No.86/1970 is neither exhibited by the plaintiff nor was it called for during the trial. If there was a decree for redemption, in that event the question would have arisen as to when did Debi Ram get redemption of the suit land. The plaintiff did not make attempt to produce this document, may be due to the fact that principal defendants had admitted the same in their written statement. But after Haren Rajbangshi had appeared it was necessary on the part of the plaintiff to get his plaint amended and to get rid of the sale deed (Ext- Ka) dated 10.04.1970. Now, if there are two sale deeds- one in favour of the plaintiff and another in favour of contesting defendant Haren Rajbangshi and plaintiff's sale deed was executed at a time when his vendor was not in possession of the suit land, question arises as to whether plaintiff would get the benefit of redemption of the suit land RSA No.73/2005 Page 17 of 22 which took place subsequently. But this question would arise only if the sale deed dated 26.06.1968 has been placed on record in accordance with the procedure established by law. Mr. Deka vehemently argued that PW 1 executed sale deed dated 26.06.1968 and it was marked as Ext-2 without objection and so the question of admissibility cannot be raised at this stage.
Per contra, Mr. P. K. Kalita, learned counsel for the respondent, would argue that mere exhibition of the sale deed by PW 1 or PW 2 would not suffice unless the contents therein were proved by the plaintiff. According to him, by examining PW 6, an employee of the local Sub Registry office, the plaintiff cannot be said to have discharged his burden of proving Ext-2 and its contents. According to Mr. Kalita, purchase by plaintiff vide sale deed dated 26.06.1968 has not been proved and so there is no question of applicability of the doctrine of estate feeding estoppels in the present case.
14. Having noted the rival contentions of the learned counsel for the parties this Court is constrained to note some cardinal points in this proceeding. Here is a case where plaintiff instituted the suit for declaration of his right, title and interest and for confirmation of possession vis-à-vis the principal defendants, namely, Prabin Kalita and Arun Kalita, on the ground that these two defendants did not have any semblance of title but they obtained mutation in their favour in the records of rights. This allegedly clouded the existing title of the plaintiff RSA No.73/2005 Page 18 of 22 and so he was in need of a declaratory decree for title and for confirmation of possession. These defendants came forward and admitted the claim of the plaintiff, perhaps, due to which the learned trial Court was of the view that the suit was a conclusive one, but subsequently when one Haren Rajbangshi came in the picture and got himself impleaded as defendant No.5 in the suit the title of the plaintiff really got clouded because of the disclosure that there was yet another registered sale deed dated 10.04.1970 in existence which was also executed by the same vendor but in favour of the contesting defendant, Haren Rajbangshi. Whether Haren Rajbangshi was a necessary party in the suit, may be yet another question. This is because plaintiff did not make any prayer as against Haren Rajbangshi at the time of institution of the suit. Even if a declaratory decree is passed in his suit vis-à-vis Prabin Kalita and Arun Kalita, obviously it would not have been binding on the contesting defendant Haren Rajbangshi unless he got himself impleaded as defendant. If Haren Rajbangshi was aggrieved at any action of the plaintiff he could have instituted an independent proceeding against the plaintiff seeking for cancellation of the previous sale deed dated 26.06.1968. He did not choose to do so, rather, for reasons best known to him he got himself impleaded in the suit when there is no prayer against him. But incidentally he also did not make any prayer for cancellation of sale deed dated 26.06.1968. So, under the facts and circumstances and on the averments made by the plaintiff as well as the contesting defendant Haren Rajbangshi, title of RSA No.73/2005 Page 19 of 22 both the plaintiff as well as Haren Rajbangshi got clouded. Now, after plaintiff allegedly got back possession through Executive Magistrate by a proceeding under Section 145 Cr.P.C. the materials of which, however, were neither exhibited nor otherwise brought on record. This Haren Rajbangshhi instituted a separate suit being Title Suit No.42/1998. We are not aware as to what was the prayer made in that suit, but it is perceived that Haren Rajbangshi might have made a prayer for recovery of khas possession on the basis of the sale deed dated 10.04.1970. He instituted the suit being Title Suit No.42/1998 first and then after a year or so he filed an application for filing of additional written statement. Be that as it may, an additional written statement was permitted by the learned trial Court but the question arises whether Haren Rajbangshi could have filed a counter-claim when no leave was granted for the purpose by the learned trial Court. He filed a counter- claim and thereafter he filed another application for striking out the word 'counter claim' from additional written statement and after all the Court accepted the additional written statement only. This gives rise to another question as to whether there was any counter-claim on record on the basis of such application filed by the contesting defendant and more so when a title suit being Title Suit No.42/1998 was side by side pending. None of the learned Courts below felt the necessity of making enquiry in this respect. What is necessary to decide in the third substantial question of law is to see as to whether there is a valid sale deed as on 26.06.1968, whether there was yet another sale deed on RSA No.73/2005 Page 20 of 22 10.04.1970 and as to when was the possession redeemed by Debi Ram Kalita and by what process. Plaintiff claimed that Debi Ram obtained possession through Title Suit No.86/1970. The ex parte judgment and decree dated 03.12.1971 passed therein is also relevant and necessary for adjudication of this question. DW 2 says that Haren Rajbangshi gave Rs.5000/- to Debi Ram who, in turn, made this payment to Garga Ram and got the suit land redeemed and got back the possession. Now, if Debi Ram Kalita got the suit land redeemed either way and if he had executed a sale deed on 26.06.1968, in that event the provision of Section 43 of the Transfer of Property Act would apply and doctrine of estate feeding estoppel would very much come into play. This substantial question of law, therefore, cannot be decided in the absence of materials necessary for the purpose.
15. Both the learned counsel appearing for the appellant as well as the respondent agree on this point that it is a fit case for setting aside the judgments and decrees passed by learned Courts below and for remanding the same to the learned trial Court by giving opportunity to both sides to furnish the relevant materials by appropriate pleadings/evidences and if need be to re-assess the whole thing along with Title Suit No.42/1998, if the same has not yet been decided.
16. The Second Appeal is accordingly allowed. The impugned judgments and decrees are set aside. The matter is remanded to the learned trial Court for giving opportunity to both sides to amend their RSA No.73/2005 Page 21 of 22 pleadings, if so advised and to lead further evidence so as to bring necessary materials on record to enable the learned Court to arrive at any decision in regard to the questions that have been indicated herein above. Since it is a matter of 1992 the learned trial Court shall make an endeavour for expeditious disposal.
17. The parties shall appear before the learned trial Court on 29.08.2016 to obtain necessary orders. If the defendant(s) fail to appear on the fixed date, the learned Court shall issue notice upon the defendant(s).
JUDGE T U Choudhury RSA No.73/2005 Page 22 of 22