Gauhati High Court
On The Death Of Rakesh Ch. Dey His Legal ... vs Moklisa Khatun And Ors on 21 July, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Regular Second Appeal No.35 of 2006
1. On the death of appellant No.1
Rakesh Chandra Dey, his legal heairs:-
1(i) Sri Rekhashree Dey,
1(ii) Ratna Dhar,
1(iii) Rupashree Dey
1(iv) Rakhal Ranjan Dey
1(v) Rakishree Duta.
2. On the death of appellant No.2
Ananda Mohan Dey, his legal heirs:-
2(i) Khela Rani Dey.
2(ii) Sri Ajoy Kumar Dey.
............ Appellants
- Versus -
On the death of Ahmed Ali Majumdar,
his heirs and legal representatives:-
1. Musstt. Moklisa Khatun,
Widow of Late Ahmed Ali Majumdar
2. Md. Khair Uddin Majumdar,
3. Md. Masir Uddin Majumdar,
4. Md. Fakar Ali Majumdar,
5. Md. Tasim Uddin Majumdar,
Nos. 2, 3, 4 and 5 are all sons of late
Ahmed Ali Majumdar, residents of
Village Rongpur Part-IV, Pargana-
Barakpar, P.O- Rongpur, Dist- Cachar.
6. Musstt. Untun Nessa,
W/o- Faiju Rahman Laskar.
7. Musstt. Safia Begum,
W/o- Armuj Ali Laskar.
RSA No.35/2006 Page 1 of 18
8. Musstt. Motorbanu,
W/o- Abdul Wajid Ali
Nos.6, 7 and 8 are all residents of
Village Rongpur Part-IV, Pargana-
Barakpar, P.O- Rongpur, Dist- Cachar.
9. Musstt. Ful Neha,
W/o- Abdul Rahman Laskar of Hatirhar,
Pargana-Banskandi, Dist- Cachar.
10. On the death of Abdul Bari Majumdar,
His heirs and legal representatives:-
(i) Md. Mohi Uddin Majumdar.
(ii) Md. Sarif Uddin Majumdar.
(iii) Md. Muslim Uddin Majumdar.
Nos. 10(i), (ii) and (iii) are all sons of
Late Abdul Bari Majumdar, all are
residents of village Rongpur, Part-IV
Pargana- Barakpar, P.O- Rongpur,
Dist- Cachar.
(iv) Musstt. Sitara Majumdar,
W/O- Md. Baktar Majumdar of Itavatta,
Tup Khana, Pargana- Barakpar,
Dist- Cachar.
....... Respondents
11. Sri Niresh Ch. Dey,
S/o- Late Barada Charan Dey,
Village Rongpur Part-IV,
Pargana- Barakpar, P.O- Rongpur,
P.S- Silchar, Dist- Cachar.
.............Proforma Respondent
BEFORE
HON'BLE MR. JUSTICE N. CHAUDHURY
For the appellant: Ms. R. Choudhury, Advocate
For the respondents: None appeared.
Date of Hearing : 21.07.2016.
Date of Judgment: 21.07.2016.
RSA No.35/2006 Page 2 of 18
JUDGMENT & ORDER (ORAL)
The defendants No. 1 and 2 of Title Suit No.120/1995 of the Court of learned Civil Judge (Junior Division) No.3, Cachar at Silchar has preferred this second appeal challenging the two judgments and decrees passed by the learned Courts below.
2. The predecessor of the present respondents as plaintiffs instituted Title Suit No.120/1995 in the Court of learned Munsiff No.1, Cachar at Silchar as against three defendants namely, Rakesh Ch. Dey, Ananda Mohan Dey and Niresh Chandra Dey stating that land measuring 9K-8Ch covered by Dag No.375 of 2nd R.S Patta No.104 and measuring 5K of the same Dag and Patta were purchased by them from the original owners including the defendants by various Sale Deeds and got their names duly mutated in the records of right. Land described in Schedule-I measuring 9K-8Ch is situated on the Northern side of river Barak, which is receding towards South and some Char land has developed in contiguous South of the Schedule-I land, which was partly in possession of Rakesh Ch Dey, the defendant No.1 and he parted with possession and title whatsoever he had over such accreded land measuring 1K in favour of plaintiffs. The plaintiffs are in possession of the entire Southern side of Char Bharat land measuring 15K in the locality and they were in peaceful possession of the land. According to them, there is no dispute over this Char Bharat land mentioned in Schedule-II. Paragraph-5 of the plaint is quoted below for ready reference:-
"That the land described in Schedule-I below are on the northern side of River Barak which is receding towards RSA No.35/2006 Page 3 of 18 South and some Char land has developed in contiguous South of the Schedule-I land. This land was partly in possession of Rakesh Ch Dey S/O- Late Boroda Charan Dey and he parted with possession and title whatever he had over such accreded land measuring 1 Katha in favour of the plaintiffs who are in possession of entire Southern side of Charbarauet land which measures not less than 5 Kathas in the locality and they are in peaceful possession of the land and there is no dispute over this Charbarauet land and the land mentioned in Schedule-II."
3. It is pleaded by the plaintiffs that their peaceful possession over the land described in Schedule-I and Schedule-II was sought to be disturbed by the defendants unsuccessfully on a number of occasions, for which a proceeding u/s 144 Cr.P.C was initiated vide MR Case No. 7M/1995 by the learned Executive Magistrate, Silchar. Though the proceeding was decided in favour of the first party, but the matter was ultimately dropped though it reached up to the Hon'ble High Court. According to the plaintiffs, still there was apprehension of breach of peace in the locality over the possession of Schedule-I land as defendants had attempted to take over the same on 18.08.1995. The 144 Cr.P.C proceeding was drawn up for 6K of land covered by Schedule-I and accordingly a prayer was made for declaration of title of the plaintiffs over the land described in Schedules and for confirmation of possession thereon along with a decree of permanent injunction restraining the defendants from interfering with the possession of the plaintiffs.
4. On being summoned, the three defendants submitted a joint written statement denying the case of the plaintiffs in entirety. The defendants stated that they had transferred the Patta land belonging to them in favour of the RSA No.35/2006 Page 4 of 18 plaintiffs on various dates, but thereafter, there was a settlement between the plaintiffs and the defendants, whereupon plaintiffs were given possession of 15K of land covered by Dag No.457 and in return the plaintiffs parted with possession of the suit land in favour of the defendants and this is how the defendants had been enjoying the suit land for over seven years by constructing houses and planting fields. Paragraphs 13(d), (e) and (h) of the written statement are quoted below for ready reference:-
"13(d) That the answering defendants are there in possession of the remaining area of suit patta land and the accreded land by constructing their respective dwelling house, planting various types of fruits bearing trees over the suit patta land and by way of seasonal cultivation of paddy, green vegetables etc. over the accreded land and thus occupying possession and enjoying the same to the full knowledge and acquiescence of the plaintiffs and all other persons of the locality prior to 1960.
13(e) That the answering defendants are the possessor and owner of the suit land as described in the schedule of the plaint and the plaintiffs are never in the possession of the suit land.
13(h) That it is fact that sometime ago there was an amicable settlement between the parties in presence of (1) Sri Khair Uddin, Patwari (2) Tamizur Patwari, Patwari of the same locality and in presence of Sri Makhan Dey, Ashu Dey and Rahim Uddin Choudhury of the same locality and both the parties agreed and an amount of about 15 Kathas under Dag No.457 bounded by North-
Ahmed Ali, South- Baluchar, East-Khas land of Ahmed Ali, West- Khas land in possession of the defendants and the suit land described in the suit had been exchanged with RSA No.35/2006 Page 5 of 18 the plaintiff and since then the plaintiffs are in possession of 15 Kathas of land in Khas land under Dag No.457 and the defendants are the owner and possessor of the suit land as described in the schedule of the plaint."
5. On the basis of the rival contentions of the parties, the learned trial Court framed the following 10(ten) issues:-
1) Is the suit maintainable?
2) Is there any cause of action?
3) Has the plaintiff got right, title/contd.14 over the suit land?
4) Is the suit bared by limitation?
5) Is the suit bad for mis-joinder and non-joinder of parties?
6) Whether the suit is bad for waiver, estoppels and
acquiescence?
7) Are the defendants in possession over the suit land?
8) Whether the legal notice was served upon the defendants?
9) Whether the defendants has homestead on the suit land?
10) Whether the plaintiff is entitled to get any relief as prayed for?
6. In course of trial, plaintiffs examined three witnesses and exhibited as many as 07(seven) documents. Exhibit-1 is Sale Deed dated 02.05.1981, Exhibit-2 is Sale Deed dated 04.07.1975, Exhibit-3 is Sale Deed dated 21.11.1960, Exhibit-4 is Sale Deed dated 29.12.1961, Exhibit-5 is Sale Deed dated 12.07.1960. No document has been marked as Exhibit-6, but Exhibit-7 is petition No.120/16 filed by the plaintiffs on 29.08.1997. Out of the aforesaid documents, only Exhibit-2 Sale Deed dated 04.07.1975 was proved under objection of the defendants and the remaining five documents were exhibited without objection. Exhibit-6 was not signed by the learned Court and accordingly, it was not marked.
RSA No.35/2006 Page 6 of 18
7. The defendants, on the other hand, examined only defendant No.3 as DW-1, but did not adduce any documentary evidence.
8. It is to be noted that, although plaintiffs alleged in their plaint that all along they had been in possession of the Schedule-I and Schedule-II land, but defendants specifically denied the same in paragraph-5 of the written statement and claimed to have been in possession of the suit land. The plaintiffs did not make any prayer for amendment immediately after filing of the written statement, but subsequently vide Exhibit-7 filed on 29.08.1997, the plaintiffs prayed for amendment of plaint for incorporation of the prayer of recovery of Khas possession alleging that they were dispossessed from the suit land on first week of 1996 and thereafter defendants made construction of shed on 16.11.1996. The defendants by filing objection thereto, contested the prayer for amendment and the learned Court by order dated 05.04.1997 rejected the prayer for amendment and thus the prayer for recovery of Khas possession of the suit land was not incorporated in the plaint and it remained a suit for confirmation of possession.
9. In course of trial, plaintiffs examined as many as three witnesses. Original plaintiff Ahmed Ali Mazumdar was examined as PW-1. He stated that the suit land is alluvial (Char Bharat) and the adjacent Southern plot is owned by him by way of purchase. He exhibited the Sale Deeds as Exhibits 1 to 5. But he admitted in course of cross examination that he has no document to show that he is owner of the adjacent Southern plot of the alluvial land. He further admitted that defendants are in possession of the suit land as they had dispossessed the plaintiffs during the pendency of the suit. PW-2 Gitesh Ranjan Das being the scribe of the Sale Deed proved execution thereof. But, RSA No.35/2006 Page 7 of 18 he could not say anything about the description of the land or its location. PW-3 is one Jasimuddin, who claimed to be a neighbour and he also stated that 6K of land for which suit has been instituted are alluvial land (Char Bharat), which is under possession of the defendant No.1 for last two years. He also stated that Char Bharat land is owned by the Government, but he denied the suggestion that suit land was never in possession of the plaintiffs.
10. Defendants examined only one witness, namely, Niresh Chandra Dey. According to him, defendants No.1 and 2 are his brothers and he is defendant No.3. They are still in possession of the land of the suit Patta except the lands hold by them, but they have their residential houses over the suit land.
11. The plaintiffs did not plead or did not make any pleading as to how the alluvion had taken place. It is not clear as to whether such accretion to the suit land was sudden or it was gradual. No pleading has been made to show that the alluvial land was settled with the vendors of the plaintiff u/s 34(c) of the Assam Land and Revenue Regulations, 1886, yet the learned Trial Court on consideration of the materials available on record decreed the suit of the plaintiffs in entirety declaring their right, title and interest over the suit land and confirming their possession. In so doing, the learned Trial Court failed to take into consideration that admittedly the defendants were in possession of the suit land. While it was the case of the defendants that they had all along been in possession of the suit land pursuant to exchange with the plaintiffs for land measuring 15K covered by Dag No.457, the plaintiffs claimed in the plaint that they had been in possession of the suit land. Though prayer of the plaintiffs for amendment of plaint so as to incorporate the prayer for recovery of Khas possession was rejected by the learned trial RSA No.35/2006 Page 8 of 18 Court, yet Exhibit-7 remained in record as a testimony of admitted possession of the defendants over the suit land. The judgment and decree dated 24.02.1999 passed by the learned Trial Court was called in question by the defendants in Title Appeal No.13/1999 in the Court of learned Civil Judge, Cachar at Silchar. The plaintiffs did not file any cross appeal or cross objection under Order XLI Rule-22 of the CPC asking for any modification of the learned Trial Court's decree. The learned First Appellate Court after hearing the parties, dismissed the appeal, but modified the decree passed by the learned Trial Court by changing the decree of confirmation of possession into a decree of recovery of possession by taking judicial notice that the defendants had dispossessed the plaintiffs during pendency of the suit. In so doing, the learned First Appellate Court also did not consider as to whether plaintiffs had discharged their burden arising from Section 3 read with Section 34(c) of the Assam Land and Revenue Regulations, 1886 in so far as the alluvial land is concerned. The defendants specifically pleaded in their written statement that there was exchange of the land and in the process plaintiffs have been possessing the land covered by Dag No.457 of the same Patta and the defendants were enjoying the suit land. The plaintiffs did not cross examine the DW-1 on this point, but yet the learned First Appellate Court was of the view that there was nothing on record to arrive at a finding that there was any exchange at all. The learned First Appellate Court by his judgment and decree dated 21.03.2005, upheld the findings of the learned Trial Court as to declaration of right, title and interest of the plaintiffs over the suit land and modified the decree of confirmation of possession into a decree of recovery of Khas possession. These two judgments and decrees passed by the learned Courts below have been called in question in the present second appeal. RSA No.35/2006 Page 9 of 18
12. This Court while admitting the second appeal on 18.09.2006, framed the following substantial question of law:-
1. Whether the findings of the appellate Court were perverse to the extent of passing the decree of Khas possession modifying the decree of confirmation of possession without prayer being made in the plaint and thereby the judgment and decree passed by the appellate Court travelled beyond the pleadings?
13. I have heard Ms. R. Choudhury, learned counsel for the appellant. None appeared for the respondents, although their names have been duly shown in the cause list. I have perused the lower Courts records including the pleadings of the parties, the depositions of the four witnesses and the six documents adduced by the plaintiffs.
14. Ms. R. Choudhury, learned counsel for the appellant vehemently argued that plaintiffs were never in possession of the suit land, yet they filed a suit for declaration of right, title and interest and confirmation of possession. On their first appearance, the defendants filed written statement disclosing this fact that they have been possessing the suit land all along. The plaintiffs were never in possession of the suit land. Yet, the plaintiffs did not get the plaint amended. Subsequently, on a flimsy ground, an application was filed after several months praying for amendment of the plaint on the ground that the defendants had dispossessed the plaintiffs during pendency of the suit without furnishing required materials, but for which, the learned trial Court was pleased to reject the application for amendment by his order dated 05.04.1997. The plaintiffs accepted the position and did not challenge the RSA No.35/2006 Page 10 of 18 order by way of revision. The plaintiffs also did not challenge the order by way of cross appeal u/s 104 read with Order-XLI Rule-22 of the CPC. According to Ms. Choudhury, the subsequent deposition made by the plaintiffs or their witnesses alleging dispossession from the suit land, therefore, is beyond pleadings and in that view of the matter this part of the evidence could not have been considered by the learned Courts below. The learned Trial Court was correct in not taking cognizance of this evidence being not tenable but, the First Appellate Court went a step further and accepted the deposition of the plaintiff No.1 at face value in regard to dispossession during pendency of the suit, which is beyond pleadings. Learned counsel further argued that plaintiffs admittedly made claim of title over alluvial land for which necessary pleadings have not been brought on record, but none of the learned Courts below considered the same and thus arrived at erroneous findings. The impugned judgments and decrees, therefore, are vitiated for more than one ground.
15. I have given my anxious consideration to the argument put forward by the learned counsel for the appellant. Since the learned counsel for the respondents have not turned up in course of hearing despite disclosure of their names in the cause list, this Court requested Mr. S. Sarma, learned counsel who was present in the Court to render his assistance on behalf of the respondents. Mr. S. Sarma, readily agreed to the request and extended his valuable assistance by relying and placing the pleadings on behalf of the plaintiffs and the law in his support.
16. Here is a case where plaintiffs instituted a suit for declaration of right, title and interest over two plots of land described in Schedule-I and Schedule- RSA No.35/2006 Page 11 of 18 II of the plaint. It is admitted in paragraph-5 of the plaint that the suit land is alluvial land and was owned and possessed by their vendors, who by executing Sale Deed, transferred the title and handed over vacant possession. Accordingly, the plaintiffs were enjoying the same. The defendants, thereafter, made a votive attempt to dispossess the plaintiffs, which gave rise to cause of action for the suit and hence plaintiffs filed the suit for right, title, interest and confirmation of possession. Apparently, the plaintiffs claimed title over the suit land on the basis of purchase from the defendants and others. He having disclosed that the suit land is alluvial land at paragraph-5 of the plaint, which has been quoted above, it was necessary on the part of the plaintiffs to plead and establish that the alluvial land had arisen gradually over years or that it had suddenly appeared as terra firma (Firm Earth) and thereupon the Deputy Commissioner settled the land with its vendors u/s 3 read with Section 34(c) of the Assam Land and Revenue Regulations, 1886. There is no specific law in India in regard to alluvion and diluvium. So it has been judicially accepted that the English Law of alluvion is not irrelevant in the Indian context. This point came up for consideration before this Court on an earlier occasion in the case of Bihari Das @ Bihari Lal Das and others -versus- Sam suddin and others , reported in (1989) 2 GLR 232 and this Court held the view that if there is gradual accretion to a land in that event owner of the land will acquire title to the alluvial land. On the other hand, if the alluvial land had suddenly appeared, in that event, it would be a Government Khas land and unless and until Government make settlement in favour of the party adjacent thereto u/s 34(c) of the Assam Land and Revenue Regulations, 1886, in that event no automatic right will devolve RSA No.35/2006 Page 12 of 18 on any possessor. Paragraphs 6, 7, 8 and 9 of the aforesaid judgment id quoted below for ready reference:-
"6. The question which, therefore, arises for consideration is whether the doctrine of accretion under the law of England is applicable to the present case in the absence of any statutory enactment.
7. Dereliction may be either gradual or sudden. The present case is of land gained by a gradual dereliction of a river. Under the law of England, where the water of a river recedes or shrinks back below the usual water-mark gradually and imperceptibly from the land thereby causing gradual and imperceptible increment of the pre-existing land, the increment is known as land gained by gradual dereliction. In such a case, the result is the same as the land gained by alluvion as it is alluvion in its legal sense. Alluvion is the land gained from the sea or a river by washing up of sand and soil so as to form "terra firma" (firm earth). If the process is gradual and imperceptible the accretion belongs to the owner of the pre-existing lands (riparian owner); if the process is sudden and perceptible, the accretion belongs to the Crown. The principles underlying the law of England is based upon the impossibility of indentifying from day to day the small additions to or substratum from the land caused by constant action of the physical force of the running water.
8. In the absence of statutory law on the subject, I am of the view that the principle underlying the law of England is not altogether irrelevant for consideration for the following reasons. The principle is based on the natural right or the natural advantages from its situation, and the explanation to section 3 widens the scope of section 3 of the Regulation so as to include the land gained by alluvion, or by dereliction, of a river within the meaning of estate under section 3 and therefore, the effect must be given to the legislative intent to consider the land gained by RSA No.35/2006 Page 13 of 18 alluvion, or by dereliction of a river to any estate to be a part of the estate to which it is accreted notwithstanding the fact that there is no statutory law in force. This view of mine finds support from the decision of the Privy Council in Secretary of State vs. Foucar and Co. Ltd., AIR 1934 PC 17. The relevant portion is at page 19 and is as follows:
"In India the doctrine has been embodied in the law of Bengal Regulation 11 of 1825, and Oudh by Act 18 of 1876, and it is equally well established in Madras, where there is no statutory enactment on the subject. In Bombay the right is recognized but is restricted by the Land Revenue Code of 1879, S.4, to accretions not exceeding an acre in extent. Under these circumstances it would, their Lordships think, be difficult to hold, as the appellant contends, that the doctrine is wholly inapplicable to Burma, where under Act 13 of 1898 the ultimate test is to be justice, equity and good conscience."
(emphasis added)
9. For the reasons stated, accretion caused gradually and imperceptibly by alluvion or by dereliction, of a river, shall be accreted to the adjacent riparian owner as a matter of natural right. However, if addition be caused suddenly or in a single season and remaining unchanged, it will belong to the State. Otherwise, it would contradict the term "gradual and imperceptible."
17. The plaintiffs having stated in paragraph-5 of the plaint that the suit land is an alluvial land, it was necessary on the part of the plaintiffs to disclose as to whether such an accretion had taken place gradually over years or it had taken place automatically. The land described in Schedules of the plaint is a substantially big chunk of land and so the possibility of the same RSA No.35/2006 Page 14 of 18 being a Government Khas land under the aforesaid circumstances cannot be totally ruled out. If that is so, in that event, the learned Courts below might have committed error in holding that the suit is not vitiated for non-joinder of the State of Assam. It was necessary to make an enquiry as to the nature of the alluvial land to find out as to whether the vendors of the plaintiffs had been settled with it in any point of time. The plaint, therefore, lacks such essential facts.
18. The defendants were admittedly in possession of the land as on the date of passing of the trial Court's decree. While it is the case of the defendants that they had all along been possessing the suit land on the basis of exchange of land covered by Dag No.457 of the same Patta with the plaintiffs and that plaintiffs have been possessing Dag No.457 of the Patta without there being any other document of title and this is how the defendants have also been possessing the suit land on exchange of the land covered by Dag No.457. Such averments having been made in paragraph- 13(h) of the written statement, the plaintiffs were expected to meet such contention by appropriate materials. No question was put to the sole DW-1 in course of cross examination in this respect. Plaintiffs have not led any evidence in this regard. It is, however, equally true that defendants have failed to led any evidence to justify their pleadings made in paragraph-13(h) of the written statement. But if the defendants for some or other reasons were in possession of the land since beginning, in that event, institution of a suit for confirmation of possession by the plaintiffs would be not maintainable because of bar under proviso to Section 34 of Specific Relief Act. Of course, no such objection has been made in the written statement by the defendants. RSA No.35/2006 Page 15 of 18 But if plaint shows that it is a suit for confirmation of possession on assertion of title and possession and a contrary evidence is led by the plaintiffs, apparently such evidence would be beyond pleadings. It has been settled by the Privy Council in the case of Siddik M ahom ed Shah Vs. M t. Saran and others , reported in AIR 1930 PC 57 that no amount of evidence can be taken into consideration which is beyond pleadings. The same law has been adopted by the Hon'ble Supreme Court of the Country in various judgments. Law that has been crystallized so far in this regard is that any amount of evidence beyond pleading cannot be taken into consideration and if that law is applied under the facts and circumstances of the case, the learned First Appellate Court fell into error in taking note of the evidence of the PW's 1 and 3 in regard to dispossession of the plaintiffs from the suit land. Thus, at least two infirmities come forward on the face of the pleadings of the parties that the plaintiffs have failed to justify their claim over the alluvial land in terms of the pleadings made in paragraph-5 of the plaint and the plaintiffs failed to get the plaint amended in appropriate time after the written statement was filed by the defendants specifically claiming possession over the suit land since beginning. The learned First Appellate Court has exercised the inherent power under Order-VII Rule-7 and Order-XLI Rule-33 of the CPC to give complete relief to the plaintiffs, but in so doing, failed to question the title of the plaintiffs on alluvial land in terms of the law holding the field. The materials available on record, therefore, are not sufficient to arrive at the finding that the plaintiffs have any claim whatsoever on the alluvial land described in Schedules to the plaint. The plaintiffs having claimed to have purchased the suit land from their vendors, it was necessary to establish that the alluvial land was owned and possessed by their vendors before executing the Sale RSA No.35/2006 Page 16 of 18 Deed. I have examined all the Sale Deeds from Exhibit-1 to Exhibit-5 to find out as to whether there is any mention about the alluvial land therein. What has been recited in these documents is about transfer of Patta land, but not of alluvial land. Even DW-1 in course of his evidence deposed in no uncertain terms that land covered by their Patta was only transferred to the plaintiffs and not other lands. Such a statement followed by another claim of the defendants since beginning on the basis of appropriate pleadings that there was an exchange between the parties with respect to the suit land and that parties had antecedent title thereto, there was necessity for appropriate evidence from both sides. The plaintiffs as well as the defendants had failed to discharge their respective burdens in this respect. Even after such lacuna, the learned First Appellate Court came forward suo-moto to convert a decree of confirmation of possession into a decree of recovery of possession when there was neither a cross objection under Order-XLI Rule 22 of the CPC nor was an appeal against order dated 05.04.1997 u/S 104 of the CPC by way of cross appeal after the suit was decreed only for confirmation of possession and not for recovery of Khas possession. Plaintiffs did not make any prayer for conversion of the decree into a one for decree of recovery of Khas possession. That question was not arisen before the learned First Appellate Court, but it went further and by making a suo-moto exercise did convert the appeal in favour of the plaintiffs in an appeal preferred by the defendants only. Such an exercise by the learned First Appellate Court in view of entire facts and circumstances referred to above, does not appear to be just and proper. The sole substantial question of law is accordingly decided in the affirmative and in favour of the appellants.
RSA No.35/2006 Page 17 of 18
19. The second appeal stands allowed and the matter is remitted to the learned First Appellate Court to decide the matter afresh on fresh appraisal of the materials available on record and in view of the observations made herein above.
20. Since the respondents remained absent during the whole course of hearing, no date can be fixed for appearance of the respondents herein before the learned First Appellate Court. The appellants shall appear before the learned First Appellate Court on 01.09.2016 and if the respondents do not appear in that event, learned Court shall issue notice upon the respondents for appearance and thereafter the appeal shall be decided in accordance with law.
21. Send down the records immediately, so that it reaches the learned First Appellate Court before the next date.
22. No order as to costs.
JUDGE Alam RSA No.35/2006 Page 18 of 18