Gauhati High Court
Dwarika Nath Sahu vs On The Death Of Bahagi Kalita Her Legal ... on 22 September, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
RSA 111 of 2007
DWARIKA NATH SAHU
S/O LATE SAGARMAL SAHU
SOOTEA SARAIJANIA, PS. SOOTEA,
DIST. SONITPUR, ASSAM.
Appellants/plaintiffs
Versus-
1. ON THE DEATH OF BAHAGI KALITA HER LEGAL HEIRS
1(a) BABUL KALITA (SON)
1(b) DADUL KALITA (SON)
1(c) SMT. DIPTI KALITA GOGOI (DAUGHTER)
1(d) SMT. BAUTI KALITA @ MATUL HAZARIKA (DAUGHTER)
As per Hon'ble Court's order dated 19.09.2013 passed in MC
1770/2013.
2. SRI BHUPEN HAZARIKA,
S/O LT. BOKAI HAZARIKA,
NAGA BORACHUCK, SOOTEA,
DIST- SONITPUR, ASSAM.
Respondents/Defendants
BEFORE HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA Advocate for the appellant Mr. N Dhar Advocate for the respondent Mr. B B Das and Ms. M Barman Date of hearing 18th May, 2017 Judgment: 22.09.2017 JUDGMENT AND ORDER (CAV) RSA 111 of 2007 Page No.2 Heard Mr. N Dhar, the learned counsel appearing on behalf of the appellant. Also heard Mr. B B Das, learned senior counsel assisted by Ms. M Barman, learned counsel appearing on behalf of the respondents.
2. The present appellant is the plaintiff in Title Suit No. 4/2000 in the court of learned Munsiff, Tezpur. The plaintiff/appellant filed the suit against the defendants/respondents for declaration of right, title and interest over the suit land described in Schedule-B, declaration that the mutation entry in the records of rights vide order dated 26.05.1997 of the Circle Officer, Naduar Revenue Circle passed in MC Case No. 22/1996-97 is null and void and for permanent injunction. It is pertinent to mention here that the original defendant No.1, Bahagi Kalita died during the pendency of the present appeal where after her legal heirs were substituted vide order dated 19.09.2013 passed in MC No.1779/2013 impleading the legal heirs as the respondent Nos. 1(a) to 1(d). The case of the plaintiff/appellant is that he is the owner of the Schedule-B land mentioned in the plaint by right of inheritance and mutual partition with the rest of his family members i.e. proforma defendant Nos. 3 and 4. The defendant/ respondent No.1, Bahagi Kalita had been running a tea stall by erecting a temporary shed on the road side land near the suit land. On her eviction from the road side shed by the Government sometime in the month of August, 1992, the said defendant/respondent No.1 requested the plaintiff/appellant to give her a room on rent by erecting on the Schedule-B land of the plaint. The plaintiff/appellant constructed an ekchali room measuring 32' x 16' made of thatched roof with bamboo chatai walls over a portion of suit land which is described in Schedule-C of the plaint and as per request of the defendant/ respondent No.1. There after the plaintiff/appellant let out the said ekchali house and premises to the defendant/respondent No.1. The tenancy started in the first week of October, 1992 at a monthly rent of Rs.40/- payable within the first week of each and every succeeding English calendar month and since then the defendant/respondent No.1 has been in occupation of Schedule-C house and carrying her business of the tea stall therein. The RSA 111 of 2007 Page No.3 defendant/respondent No.1 paid rent to the plaintiff/appellant in respect of the suit house up to the month of May, 1996 and thereafter the said defendant/respondent No.1 deliberately failed and neglected to pay the house rent to the plaintiff/appellant in spite of repeated request and demand. The defendant/respondent No.1 filed an application before the Circle Officer, Naduar Circle in the month of September, 1996 for mutation of her name over the suit land which was registered as MC Case No.22/1996-97. A notice was served upon the plaintiff/appellant, who contested the case and the Circle Officer, Naduar circle granted mutation of the name of the defendant/respondent No.1 illegally in respect of the suit land on the strength of possession on 26.05.1997. The said mutation order has been put under challenge in Revenue Appeal No. 6/1997-98 on 23.07.1999 before the Deputy Commissioner, Sonitpur, Tezpur. The plaintiff/appellant filed Title Suit No.38/1998 in the court of Civil Judge, Junior Division at Tezpur for recovery of possession of the suit house and arrear rent against the defendant/respondent No.1. In the said suit, the defendant/respondent No.1 filed her written statement and denied the relationship of landlord and tenant with the plaintiff/appellant and claimed her right, title and possession over the suit land by adverse possession on the strength of illegal mutation. After submission of the written statement of the defendant/respondent No.1 in Title Suit No.38/1998, the plaintiff/appellant withdrew the said suit with permission of the court to institute a fresh suit and fresh cause of action on 27.09.1999. The plaintiff/appellant submitted that the illegal mutation order dated 26.05.1997 in respect of the suit land in favour of the defendant/respondent No.1 is illegal and the claim of the defendant/respondent No.1 in the said Title Suit No.38/1998 had clouded the right, title and interest of the plaintiff/appellant over the suit land. During the pendency of the suit, the defendant/respondent No.1 inducted the defendant/respondent No.2 in the suit house. Therefore, the plaintiff/appellant filed the suit with the reliefs mentioned hereinabove.
RSA 111 of 2007 Page No.4
3. The defendant/respondent No.1 contested the suit by filing her written statement separately and the suit proceeded ex-parte against the proforma defendant Nos. 3 and 4. Denying the claim of the plaintiff/respondent, she pleaded that the suit is barred by law of limitation, non maintainability of the suit under the law and facts, the defendant/respondent No.1 further pleaded her case that the defendant/respondent is in forcible occupation of the suit land by constructing house there on denying the title of the plaintiff/appellant since 1979 and immediately after forcible occupation of the land by the defendant/respondent, the plaintiff/appellant protested and asked the defendant/appellant to vacate the same which was refused by the defendant/respondent No.1 claiming that the suit land as her own. The suit land was low lying land and the defendant/respondent No.1 with the help of her husband developed the said low lying land by earth filling with her own expenses and constructed a temporary thatched house. The name of the defendant/respondent No.1 was mutated in respect of the suit land after hearing the plaintiff/appellant by the Circle Officer, Naduar circle in MC Case No. 22/1996-97 and thereafter Revenue Appeal No.6/1997-98 was filed which is pending. The defendant/respondent No.1 had been in occupation of the suit land by constructing her own house thereon forcibly, openly, adversely and uninterruptedly with the knowledge of the plaintiff/appellant since October, 1979 for more than the statutory period and ripened her title over the suit land. The defendant/respondent No.1 was never the tenant of the plaintiff/appellant in respect of the suit house. Knowing fully all the facts, the plaintiff appellant filed TS No.38/1998 by suppressing the real facts.
4. The defendant/respondent No.2 filed a separate written statement denying the plaintiff's claim supporting the case of the defendant/respondent No.1. On the basis of the pleadings the learned trial court framed the following issues:
"i. Whether the suit is maintainable in its present form?
ii. Whether there is any cause of action for the suit?
iii. Whether the plaintiff has right, title and interest over the suit land and the premises?
RSA 111 of 2007 Page No.5 iv. Whether the defendant No.1 has acquired ownership over the suit land through the adverse possession?
v. whether the plaintiff is entitled to get a decree as prayed for? vi. To what relief/s the parties are entitled to?
Addl. Issues:
i. Whether the suit is bad for non-joinder of necessary parties? ii. Whether the present suit is barred under law as per order dated 27.09.1999 passed in TS No.38/98 by the Civil Judge (Jr. Divn.) No.2, Tezpur?"
5. During the hearing of the suit, plaintiff/appellant adduced and examined as many as five witnesses including him and exhibited some documents. The defendant/respondent side also adduced and examined as many as nine witnesses including the defendant/respondent No.1 and exhibited some documents.
6. It is pertinent to mention here that after filing of the Title Suit No.38/98, the plaintiff/appellant at the stage of evidence of the defendant side of TS No.38/98, filed an application for granting permission to the plaintiff/appellant to withdraw the Title Suit 38/98 seeking for the liberty to institute a fresh suit in respect of the same subject matter of the suit under Order 23 Rule 1 of the CPC. The learned court of Civil Judge (Junior Division) No.2 at Tezpur vide order dated 27.09.1999 [exhibit-3 (kha)] holding that the defects so mentioned are not a formal one and as such without granting the liberty to file the suit afresh allowed the plaintiff/appellant to withdraw the suit under Order 23(1) of the CPC. The whole case record of Title Suit No.38/98 was exhibited as exhibit-Ga by the defendant/respondent No.1.
7. The learned trial court vide judgment and decree dated 21.06.2006 dismissed the suit of the plaintiff/appellant. The trial court took up issue No.1 and additional issue No.ii and held that the plaintiff/appellant is precluded to file the suit as per order 23 rule 1(4) of the CPC and the suit is also barred under Order 2 Rule 2 of the CPC and as such the suit was not maintainable. While discussing the said issue, the learned trial court considered the plaint of Title Suit No.38/98. It was also further held that the subject matter of Title Suit No.38/98 is similar to the one in the subsequent suit but the earlier court at the time of withdrawal of RSA 111 of 2007 Page No.6 the suit did not grant the liberty to file it afresh. Accordingly, the plaintiff/appellant was precluded to institute the present suit.
8. The learned trial court thereafter took up issue No.4 and decided the same in favour of the defendant/respondent No.1 by holding that the possession of the defendant/respondent No.1 is adverse to the title of the plaintiff/appellant in respect of the suit land and as per provision of Article 65 of the Limitation Act,1963 the suit is barred. While discussing the said issue, the learned trial court took up the pleadings of the plaintiff/appellant and the defendant/respondent No.1 and the evidence on record of the parties. The defendant/respondent No.1 has been in continuous possession of the suit land more than 12 years by denying title of the plaintiff and the plaintiff/appellant remained inactive for more than 12 years. Thus the possession of the defendant/respondent No.1 become adverse to the title of the plaintiff/appellant. Being aggrieved by the said judgment and decree passed by the trial court, the plaintiff/appellant preferred Title Appeal No. 12/2006 in the court of Civil Judge, Sonitpur, Tezpur. The learned First Appellate Court vide judgment and decree dated 23.3.2017 dismissed the said appeal upholding the findings of the trial court, where after the present second appeal was filed challenging the said judgment and decree passed by the First Appellate Court.
9. The present second appeal was admitted on 27.02.2008 on the following substantial questions of law:
" 1. Whether decision of the Courts below regarding acquisition of ownership of the suit and through adverse possession is erroneous in law in the absence of evidence of open assertion of hostile title coupled with exclusive possession and enjoyment to the knowledge of the plaintiff/appellant as also the point of time of animus to constitute ouster by the defendant who claimed adverse possession by virtue of alleged sole possession and enjoyment of the suit property?
10. However, at the time of hearing, the learned counsels appearing on behalf of the parties to the appeal expressed that another substantial question of law is to be framed with RSA 111 of 2007 Page No.7 regard to the findings of issue No.1 and the additional issue No.2. Accordingly, the substantial question of law is framed as follows :
"Whether the learned courts below were justified in holding that the plaintiff/appellant since failed to seek relief of right, title, interest and possession over the suit land and cancellation of mutation order in earlier suit (TS No.38/98) under Order 2 Rule 2 (iii) of the Code of Civil Procedure, 1908, he cannot after wards sue for any relief so entitled on the same cause of action including declaration of right, title and interest and cancellation of mutation order passed in MC No.22 of 1996-97 in the present subsequent suit?"
11. Let us examine the substantial question of law No.1. Mr. Dhar submits that the pleading of the defendant/respondent No.1 is totally silent with respect to the starting point of the adverse possession so claimed by the defendant/respondent No.1. The initial entry of the plaintiff/respondent No.1 was permissible one in the form of a tenant under the plaintiff/appellant. It is submitted that in case where the defendant pleads adverse possession against the rightful owner, the burden of the plaintiff is limited to the extent to show that he is the rightful owner and requires no proof to show that he has been maintaining the possession all throughout since the date of entry of the defendant to the suit property. The defendant/respondent No.1 failed to show her intent to dispossess the plaintiff/appellant from the suit land all throughout the possession since the year 1979 as pleaded in the written statement. She even failed to prove her entry in the month of October, 1979. There is no specific pleadings as aforesaid with respect to the date on which the possession of the defendant/respondent No.1 turned to be adverse. The defendant/respondent No.1 mutated her name and the date of mutation order could be taken to be the starting point from which the possession of the defendant/respondent No.1 started to be adverse against the plaintiff/appellant. If the same is considered to be the date of mutation order passed i.e. 26.05.1997 then also the suit is not barred by limitation inasmuch as the initial suit was filed in the year 1998 and after withdrawing the same it was filed in the year 2000. There is no piece of evidence of assertion of hostile possession to the knowledge of the plaintiff/appellant as such the court below wrongly decided the issue No.4. RSA 111 of 2007 Page No.8
12. Mr. Das submits that in the written statement there is specific pleading that in the month of October, 1979 the defendant/respondent No.1 entered into the suit land, filled up the same openly against the resistance of the plaintiff/appellant. The fact that the defendant/respondent No.1 was tenant under the plaintiff/appellant cannot at all be believed inasmuch as there is contradictory evidence on record with respect to the suit house purportedly let out to the defendant/respondent No.1 by the plaintiff/appellant. As per the pleading of the plaintiff/appellant, after the eviction of the defendant/respondent No.1 from the road side tea stall, he constructed a thatched house measuring 36' x 12' and thereafter permitted the defendant/respondent No.1 to possess the same as a tenant at a monthly rent of Rs.40/-. In his evidence as PW-1, the plaintiff/appellant deposed that the existing cowshed was let out which is about 15' x 12' and there is a specific denial by the said PW-1 that on the request of the defendant/respondent No.1, plaintiff/appellant constructed the ekchali room measuring 32' x 16'. The plaintiff/appellant totally failed to show that the defendant/respondent No.1 was the tenant and as such the court below came to the finding rightly that the suit is barred by the law of limitation and the possession of the defendant/respondent No.1 had ripened to the title and acquired ownership by way of adverse possession.
13. Considered the submission of the learned counsels. Perused the case records and the judgment passed by the courts below. Adverse possession is a mixed question of both facts and law. The evidence and the pleadings of the parties are to be looked into. The plaintiff/appellant pleaded that the defendant/respondent No.1 had been running tea stall on the road side land near the suit land by constructing temporary shed. She was evicted there from sometime in the month of August, 1992. On request, the plaintiff/appellant erected the ekchali room measuring 32' x 16' with bamboo chatai walls over a portion of B-Schedule land of the plaint. The plaintiff/appellant thereafter let out the ekchali room to the defendant/respondent No.1 in the first week of October, 1992 at monthly rent of Rs.40/- RSA 111 of 2007 Page No.9 which was paid till the month of May, 1996 and thereafter deliberately neglected to pay the rent. The defendant/respondent No.1 illegally filed an application for mutation of her name over Schedule-B land which was allowed by the Circle Officer, Nauduar Circle against the objection raised by the plaintiff/appellant. Thereafter, the plaintiff/appellant filed a suit for ejectment and for arrear rents against the defendant/respondent No.1 which was subsequently withdrawn and the present suit was filed.
14. The defendant/respondent No.1 in her written statement took the stand that she acquired and ripened her right, title and interest over the suit land by virtue of adverse possession. The defendant/respondent No.1 with the help of her husband forcibly occupied the suit land in the month of October, 1979 and developed the low lying land by earth filling, and constructed temporary thatched house to the knowledge of the plaintiff/appellant. The plaintiff/appellant protested and asked her to vacate the suit land which was refused by the defendant/respondent No.1. Thereafter, she started her tea stall and maintaining her possession openly with hostility and uninterruptedly since October, 1979 denying the title of the plaintiff/appellant and the same had ripened to her title. She is the sole and absolute owner. She denied the construction of the said thatched house by the plaintiff appellant and the tenancy as alleged in the plaint.
15. From the pleadings of the parties it is seen that the plaintiff/appellant claimed that the defendant/respondent No.1 entered into the suit land as a tenant in the month of October, 1992. On the other hand, the claim of the defendant/respondent No.1 was a forcible entry to the suit land in the month of October, 1979. Thereafter, she continued her possession with hostility. The possession of the defendant/respondent No.1, over the suit land as claimed is thus of a trespasser in nature as per the pleadings. The burden on the defendant/respondent No.1 is that, she must show she made her entry as trespasser over the suit land and she had been maintaining her possession thereon with the intent to dispossess the plaintiff/appellant during her period of continuous possession since the date RSA 111 of 2007 Page No.10 of entry and that too with compelling evidence which must be vibrant with the intention to dispossess the plaintiff/appellant.
16. The evidence of DW-1 is that the defendant/respondent No.1 constructed her house 23 years back just before the Durga Puja. The said house is covered under Sootia Gaon Panchayat and she has been paying the panchayat tax. She deposed that there was resistance by the plaintiff/appellant at the time of earth filling against which she expressed her intent to dispossess him and continued her possession denying the title of the plaintiff/appellant. She denied her eviction from road side tea stall. She stated that she with her husband constructed the house after occupying the land forcibly. DW-2, the husband of DW-1 deposed supporting the entry to the suit land during the month of October, 1979. DW- 3, Tileswari Hazarika also supported the fact of possession of the defendant/respondent No.1 since the past 23 years. The cross-examination by the plaintiff/appellant is confined with respect to the date of entry over the suit land and expenses incurred in carrying out the construction which the DW-1 and DW-2 gave an account but not supported by documentary piece of evidence. However, there is no contradiction so far the evidence of DW-1 and DW-2 are concerned as per the record. Both the DW-1 and DW-2 has denied the fact of eviction in the year 1992 from the road side shop and also with respect to the tenancy so pleaded by the plaintiff/appellant.
17. The evidence of PW-1, the plaintiff/appellant in his chief deposed that the defendant/respondent after eviction requested him to let out the cowshed which he agreed and since October, 1992 he let out the same at a monthly rent of Rs.40/- since October, 1992. In the chief, it is further deposed that the defendant/respondent No.1 was a tenant and now she claimed to be the owner. In his cross-examination, he affirmed that the cowshed was let out by the defendant/respondent No.1. He denied that he pleaded that on her request and considering her condition, he constructed a room of 32' x 16' and let out the same.
RSA 111 of 2007 Page No.11
18. From the evidence of the plaintiff/appellant as PW-1, it is seen that there is a specific contradiction in respect of the subject matter of tenancy inasmuch as it is the case of the plaintiff/appellant pleaded that he constructed a thatched house of size 32' x 16' and allowed the defendant/respondent No.1 to enter into the said thatched house as a tenant but in his evidence he has denied construction of any such house of size 32' x 16'. Rather it was the cowshed in existence which was let out to her as a tenant. The tenancy so pleaded could not be proved by the plaintiff/appellant on the face of the specific denial to it by the defendant/respondent No.1. Ismail Shah, PW-2, in his chief stated that the cowshed of size 15' x 12' was let out to defendant/respondent No.1 after she was evicted from the road side tea stall. He deposed that he saw twice the defendant/respondent No.1 paying rent to the plaintiff/appellant but could not say the month/year etc. In his cross-examination, he deposed that at the time of settlement of the lease, he along with five persons were present but could not say the names of the rest of the persons present. PW-3, Ramesh Kalita in his cross-examination deposed that the cowshed over the suit land is standing since the year 1977-78. PW-2 could not prove the tenancy and his presence at the time of settlement of the tenancy but PW-3 stated that the cowshed was in existence since the year 1977-78 and there is no pleading in the plaint with respect to letting out of the said cow shed to the defendant/respondent No.1. This itself goes to show that the defendant/respondent No.1 was possessing the house which has been termed as cowshed since the year 1979.
19. The existence of cowshed and its letting out is not the case pleaded by the plaintiff/appellant. But it is the case of the defendant/respondent No.1 that in the month of October, 1979, the defendant/respondent No.1 trespassed into the suit land, filled up with earth and constructed the house and possessing the same against stiff resistance from the plaintiff/appellant. Thus, from the preponderance of probabilities, the entry of defendant/respondent No.1 into the suit land in the year 1979 is not at all disbelivable inasmuch as there is no pleading in the plaint about the existence of the cowshed since the RSA 111 of 2007 Page No.12 year 1977-78. But it is the PW-3, who deposed in his cross-examination that the cowshed exists since about the year 1977-78. If it is so then existence of the shed, termed to be cowshed must have been constructed by the defendant/appellant No.1 after her entry in the month of October, 1979 to the suit land. Further, on perusal of the mutation order, it is seen from the record that she has been possessing the land since the year 1978. Thus, the point of time starting the adverse possession is pleaded and proved by the defendant/appellant. In Vasantiben Prahladji Nayak & Ors Vs Somnath Muljibhai Nayak & Ors reported in 2004 AIR SCW 1704, the Hon'ble Apex Court held that in cases of adverse possession the starting point of limitation does not commence from the date when the right of ownership arose to the plaintiff but it commence from the date when the defendants possession become adverse. It is on record from the evidence of DW-2 that the suit land is situated to the opposite side of the house of the plaintiff/appellant intersected by the road. The possession was peaceful and open. The raising of construction of the house and continuous earth filling went on till the year 1987 as deposed by the DW-2 in his cross-examination. It is shown that such overt acts were carried out during the period prescribed under Article 65 of the Limitation Act, 1963 after the possession which was forcible in nature in the year 1979 as trespasser; such overt acts of earth filling itself indicates the intent of the defendant/respondent No.1 to dispossess the plaintiff/appellant. The said intent/animus starts since the initial entry in the month of October, 1979 and continue all throughout till the name of defendant/appellant No.1 was recorded on the basis of long possession.
20. In P.T. Munichikkanna Reddy & Ors vs Revamma And Ors reported in (2007) 6 SCC 59 the Hon'ble Apex Court held as follows:
"19. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms:
" Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be RSA 111 of 2007 Page No.13 accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: ( a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and ( e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession "
20. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner."
21. Keeping in view the ratio laid down by the Apex court, in the present case in hand the defendant/respondent No.1 had been able to show her entry and possession over the suit land to be in the month of October, 1979 and her possession was forcible one i.e. that of a trespasser. The fact of possession was very much known to the plaintiff/appellant and her said possession remained upon the suit land undisturbed spanning from October, 1979 till the date of filing the suit in the year 1998. The intention that the defendant/respondent No.1 had been possessing the suit land to dispossess the plaintiff/appellant is clear as pointed out above.
22. Had the present case in hand been a case that without any rhyme or reasons the defendant/respondent No.1 entered into the suit land by trespassing in to it and started construction of a house thereon then the burden of the plaintiff is restricted to the extent to prove that he is the owner of the suit land. He need not have to prove the possession since the period or since the date of claim of adverse possession by the defendant/respondent No.1. But it is the case wherein the plaintiff had stated that the defendant/respondent No.1 is a tenant with respect to a thatched house which he constructed and the tenancy started w.e.f. October, 1992 in order to disprove the entry and possession of the defendant/respondent No.1 as a trespasser denying his title. The plaintiff had taken the RSA 111 of 2007 Page No.14 burden to show her as his tenant and in such a situation and that too on the face of denial of tenancy and claiming adverse possession by the defendant/respondent No.1, the burden of proving the tenancy lies on the part of the plaintiff/appellant at least by proving that the house under the possession of the defendant/respondent No.1 was constructed by him as per the pleadings and not the cowshed to show her entry to be a permissive one. But the plaintiff/appellant failed to discharge the said burden as discussed hereinabove. The onus on the plaintiff so shifted against the initial burden taken by the defendant/respondent No.1 that the suit house was constructed by the defendant/respondent No.1 after forcible possession of the suit land could not be rebutted by the plaintiff/appellant. For the said reason, this Court is bound to hold that the entry of the defendant/appellant No.1 was a forcible one with an intent to dispossess the plaintiff/appellant from the suit land. The date of entry of the defendant/respondent No.1 is very much pleaded which is in October, 1979 and the date of entry is the starting point of the possession of the defendant/respondent No.1 which is adverse to the interest of the plaintiff/respondent. The suit ought to have been filed atleast in the year 1992. Having not done so the suit is barred under Article 65 of the Limitation Act, 1963.Accordingly, the substantial question of law is decided against the plaintiff/appellant.
23. As regards the substantial question No.2, Mr. Dhar submits that the findings of the issue Nos. 1 and additional issue No. ii by both the courts below are erroneous. He submits that Order 2 Rule 2 of the CPC is not applicable in the present suit as no parallel proceeding is going on with respect to the same subject matter. It is the contention that since the earlier suit was withdrawn the question of applicability of Order 2 Rule 2 CPC does not arise. It will apply only if a second suit is filed. The subsequent suit was filed after withdrawing the earlier one i.e. Title Suit No.38/98 because of the fact that in the pleadings (written statement) of the defendant/respondent No.1 she denied the title of the plaintiff/appellant and the earlier suit was for nonpayment of rent and for mesne profits. The cause of action in Title Suit RSA 111 of 2007 Page No.15 No.38/98 is not similar to the one in the present suit. The word "leave" mentioned in Order 2 Rule 3 of the CPC and the word "permission" referred to under Order 23 Rule 1(1), (3) and 4(b) of the CPC cannot be termed to be in synchronization with each other. The earlier suit i.e. Title Suit No.38/98 was allowed to be withdrawn but without leave to file a fresh suit on the same cause of action that does not mean that a subsequent suit cannot be filed by the plaintiff/appellant wherein the relief sought is for eviction of the defendant/respondent No.1, who had denied the title of the plaintiff/appellant. So there is no ground at all for dismissal of the suit for non granting of the permission to file a subsequent suit with respect to the same subject matter. In support of his submission Mr. Dhar relies Mon Bharan Hazam vs Rati Ram Gore reported in 2002 (3) GLT 413, Vimlesh Kumari Kulshrestha Vs Sambhajirao and another reported in (2008) 5 SCC 58 and Kandapazha Nadar and others vs Chitraganiammal and others reported in (2007) 7 SCC 65.
24. Mr. Das, the learned Senior counsel submits that the facts narrated in plaint of Title suit No.38/98 and the one made in the plaint of Title Suit No.4/2000 are similar. The cause of action for declaration of the right, title and interest of the plaintiff/appellant arose when the defendant/respondent No.1 started the mutation proceeding and which was allowed by the Circle Officer, Nouduar Revenue Circle against the objection of the plaintiff/appellant. The said act of filing mutation proceeding and the contest therein by the plaintiff/appellant has been pleaded in Title Suit No.38/98. The plaintiff/appellant was fully aware with regard to the stand taken by the defendant/respondent No.1 challenging the title of the plaintiff/appellant over the suit land. Such being the position, not to speak of the relief for cancellation of mutation, the plaintiff/appellant ought to have sought for his declaration of right, title and interest for the said suit land inasmuch as he contested the claim of the defendant/respondent No.1 in the mutation process. There being no leave obtained, as required under Order 2 Sub Rule 3 of the CPC and in addition to that there being no permission granted by the court while withdrawing Title Suit No.38/98 the plaintiff/appellant RSA 111 of 2007 Page No.16 is precluded from instituting any fresh suit in respect of same subject matter. Mr. Das accordingly submits that the learned courts below rightly decided the issue Nos. 1 and additional issue No. ii and there is no scope of interference by this Court. In support of his submission, Mr. Das relies Virgo Industries (Eng.) Private Limited vs Venturetech Solutions Private Limited reported in (2013) 1 SCC 625.
25. Considered the submission of the learned counsels. The defendant/respondent No.1, exhibited the case record of Title Suit No.38/98. Exhibit-Ga is the case record of the said suit. Exhibit 3(2) is the petition filed by the plaintiff/appellant under Order 23 Rule 1 of the CPC with a prayer to grant leave for withdrawal of the Title Suit No.38/98 with liberty to file it afresh. It is contended in the said petition that the suit was filed for the ejectment of the defendant/respondent No.1 as tenant and when she filed written statement claiming the suit land to be her own, the plaintiff/appellant decided to prefer the suit for declaration of his right, title and interest, cancellation of mutation and eviction of defendant/respondent No.1. The defendant/respondent No.1 through her counsel objected to the granting of leave while withdrawing Title Suit No.38/09. The plea taken by the defendant/respondent No.1 is that there is no mention of any formal defect in the plaint of Title Suit No.38/98 and the ground stipulated in the petition under Order 23 Rule 1 of the CPC goes to the root of the suit and as such the same cannot be termed to be a formal defect and no leave be granted. Vide exhibit-3(kha) the order dated 27.09.1999, the court below dismissed the suit i.e. Title Suit No.38/98 on withdrawal without leave, to file it afresh.
26. On comparison of the pleadings in the plaint of Title Suit No.38/98 and the one in the present suit it is found that similar pleadings are made wherein it was specifically pleaded with respect to the mutation proceeding which was granted in favour of the defendant/respondent No.1 by the Circle Officer, Nauduar Revenue Circle in which proceeding the plaintiff/appellant as per his pleading contested. In Title Suit No.38/98, relief was sought for ejectment, recovery of arrear rent, mesne profit etc. In the present suit, it is RSA 111 of 2007 Page No.17 the same pleading almost in toto as of that in Title Suit No.38/98 except the introduction of the pleading about the stand taken by the defendant/respondent No.1 in the earlier suit challenging the title of the plaintiff/appellant. The courts below came to the finding that the defendant/respondent No.1 before filing Title Suit No.38/98 denied the title of the plaintiff/appellant over the suit land. However, the plaintiff/appellant did not file the earlier suit for declaration of right, title and interest over the suit land and cancellation of the mutation order in favour of defendant/respondent No.1 for which cause of action arose prior to filing of the said Title suit No.38/98 and omitted to seek the leave for the relief of his right, title and interest over the suit land and the other one as such he is not entitled to seek the reliefs in the subsequent suit under the provisions of Order 2 Rule 2 of the CPC. It was also further held that the subject matter of the Title Suit No.38/98 is similar to the one in the subsequent suit but the earlier court at the time of withdrawal of the suit did not grant the liberty to file it afresh.
27. Order 23 Rule 1 of the CPC is reproduced herein below:
"1. Withdrawal of suit or abandonment of part of claim (1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court.
2................................
3. Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
4. Where the plaintiff-
(a) abandons any suit or part of claim under sub-rule(1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub- rule(3), He shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
5.............................."
RSA 111 of 2007 Page No.18
28. In K S Bhoopathy and others vs Kokila and others reported in AIR 2000 SC 2132, the Hon'ble Apex Court discussed with respect to the withdrawal of suits as enacted under Order 23 Rule 1 CPC, the ambit and scope of the said provision and its effect thereto and held as follows:
"11. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts: (a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the Court; in that case he will be precluded from suing again on the same cause of action. Neither the plaintiff can abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and (b) a plaintiff may, in the circumstances mentioned in sub-rule (3) be permitted by the Court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the Court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC.
12. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non suit Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule 1, In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of the such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided; (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action........"
29. From the aforesaid ratio, it can be concluded that the liberty and/or the permission is a must to be granted by the court at the time of withdrawal of suit in order to avoid the bar in Order 2 Rule 2 and Section 11 of the CPC. It is also observed by the Hon'ble Apex court that the grant of leave envisaged in Sub rule 3 of Rule 1 of Order 23 CPC is at the discretion of the court and such discretion is to be exercised by the court with caution and RSA 111 of 2007 Page No.19 circumspection. The learned trial court below while deciding the petition under Order 23 Rule 1 of the CPC filed by the plaintiff/appellant in Title Suit No.38/98 considered the submission of the plaintiff/appellant and came to the conclusion that ground for seeking withdrawal of the suit with permission to re-file touches the root of the dispute and affects the merit of the case and as such the same cannot be considered as formal defect under sub Rule 3 of Order 23 CPC. As such no liberty was granted to re-file a fresh suit on the same cause of action. The said decision attained its finality inasmuch as that was not challenged before the higher court by the plaintiff/appellant. The Order 2 Rule 2 of the CPC is reproduced below:
"2. Suit to include the whole claim- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action: but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2). Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
30. In (2013) 1 SCC 625 (supra) the Hon'ble Apex Court discussed with respect to the intent impregnated in Order 2 Rule 2 of the CPC which requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of the claim, if he intends to do so. Order 2 Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally leave any portion of the claim which he is entitled to make. Order 2 Rule 2 CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. Further, it is held by the Apex court that Order 2 Sub Rule 3 CPC does not contemplate omission or relinquishment of any portion of the plaintiff's claim without the leave of the court. Such leave of the court is contemplated by Order 2 Rule 2(3) in situations where plaintiff being entitled to more than one relief on a particular cause of action omits to sue for all such reliefs, the consequence is, the plaintiff is precluded from RSA 111 of 2007 Page No.20 bringing a subsequent suit to claim the relief earlier omitted, except situation where leave of the court had been obtained. In the said decision the Hon'ble Supreme Court accepted the definition of "cause of action" as stated in Halsbury's Laws of England "4th Edition" which is reproduced below:
"11. The cardinal requirement for application of the provisions contained in Order 2 Rule 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. It will be wholly unnecessary to enter into any discourse on the true meaning of the said expression i.e. cause of action, particularly, in view of the clear enunciation in a recent judgment of this Court in Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust. The huge number of opinions rendered on the issue including the judicial pronouncements available does not fundamentally detract from what is stated in Halsbury's Laws of England (4th Edn.). The following reference from the above work would, therefore, be apt for being extracted herein below:
"Cause of action' has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from the earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which defendant would have a right to traverse. "Cause of action' has also been taken to mean that particular action on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action."
31. The term "subject matter" as stipulated in Order 23 Rule 1 of the CPC means the plaintiff's cause of action. Keeping in view the accepted definition of cause of action, the act of defendant/respondent No.1 obtaining the mutation is pleaded in the plaint by the plaintiff/appellant in Title Suit No.38/98, the said mutation proceeding admittedly was contested by the plaintiff/appellant as pleaded in the plaint wherein the defendant/respondent No.1 claimed her title against the plaintiff/appellant. That itself is the cause of action for seeking the relief of declaration of right, title and interest of the plaintiff/appellant in Title Suit No. 38/98 and cancellation of the mutation order, more so, when the mutation of the name of the defendant/respondent No.1 was granted by the Circle Officer. If for any reason, the plaintiff/appellant omitted to seek for the said relief, leave ought to have taken within the periphery of Order 2 Rule (2) of the CPC. Later on, the plaintiff/appellant sought for withdrawal of the Title Suit No.38/98 on the ground of the RSA 111 of 2007 Page No.21 denial of title by the defendant/respondent No.1 and sought for leave to file the suit afresh. The said leave was not granted and as held in AIR 2000 SC 2132 (supra) the said leave is required for overcoming the bar under Order 2 Rule (2) and (3) of the CPC which is against the submission of Mr. Dhar. The submission of Mr. Dhar relying 2002 (3) GLT 413 (supra) that it is not permissible for the court to grant the prayer for withdrawal of a suit and refuse the leave. But if the Court allows to withdraw the suit on the prayer of the plaintiff without granting any liberty to file the suit afresh the same would not debar the plaintiff to file the suit again provided the Court does not refuse specifically such prayer for granting liberty at the time of allowing to withdraw the suit. In such a situation, as per Mr. Dhar the said liberty/order of withdrawal must be examined along with the petition for withdrawal. Keeping the view of this court, the application for withdrawal under Order 23 Rule 1 of the CPC filed by the plaintiff/appellant is examined wherein it has been specifically stated that as the defendant No.1 had disputed his title over the suit land so it has become necessary to file the suit afresh withdrawing the Title Suit No.38/98 along with the leave. If it is construed from the said petition, it is very much clear that the said cause for withdrawal is very much pleaded in the plaint of Title Suit No.38/98 as the fact of mutation and participation of the plaintiff/appellant in the said mutation proceeding is very much apparent including the grant of mutation in favour of the defendant/respondent No.1. So knowing fully well about the cause for withdrawal the learned court rejected the prayer for leave terming the same is not a formal defect in order to grant the leave for filing the same afresh.
32. The ratio of the other decision, (2008) 5 SCC 58(supra) relied by Mr. Dhar is not applicable on the present factual matrix. In the said decision already a second suit was filed where after an application for withdrawal was filed in the first suit.
33. The other decision (2007) 7 SCC 65 relied by Mr. Dhar is also on a separate footing. The plaintiff therein filed a suit claiming right, title and interest over the suit property on the basis of a sale deed. The defendant in the said suit filed, in point of time, earlier a suit RSA 111 of 2007 Page No.22 against the plaintiff in the subsequent suit which was withdrawn by the defendant in the subsequent suit, as the respondent in the second appeal arising out of the former suit. The prior suit filed by the defendant in the subsequent suit was for his right, title and interest with respect to the same suit property on the basis of sale in the year 1971 whereby he challenged the title of the plaintiff in the subsequent suit. Question before the Hon'ble Apex Court was whether the defendant in the subsequent suit who withdrew the suit without grant of leave at the second appellate stage as the respondent preferred by the present plaintiff in the subsequent suit ( as the appellant) could raise the issue regarding validity of the conveyance deed of 1971. The Hon'ble Apex Court held that withdrawal application decided on merit is not a decree and as such the said bar does not come.
34. From the discussions made hereinabove, keeping in view the law holding the field, this Court comes to the finding that relief for declaration of right, title and interest of the plaintiff/appellant arose prior to filing the Title Suit No.38/98 which the plaintiff/appellant admitted in his cross-examination as PW-1. In addition to that, the right to relief for cancellation of the mutation of the defendant/respondent No.1 had also accrued at the time of filing Title Suit No.38/98 but even then, the plaintiff/appellant failed to take the leave at the time of filing of the said suit nor was granted the leave by the same court at the time of withdrawal of the suit. The said liberty is required to overcome the bar under Order 2 Rule 2 (2) and (3) of the CPC. Such being the position, the substantial question of law No.2 is decided in the affirmative thereby upholding the findings of the courts below.
35. This second appeal is accordingly dismissed.
36. Send back the LCR.
37. No costs.
JUDGE Rakhi RSA 111 of 2007