Tripura High Court
Sri Debendra Chandra Nath vs Sri Rakesh Chandra Nath on 26 April, 2017
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
RSA NO.77 OF 2011
1. Sri Debendra Chandra Nath,
son of late Uday Nath
2. Sri Satyendra Chandra Nath,
son of Sri Debendra Chandra Nath
3. Sri Jitendra Chandra Nath,
son of Sri Debendra Chandra Nath
4. Sri Harendra Chandra Nath,
son of Sri Debendra Chandra Nath
- all are residents of village & P.O. Ganganagar,
Dharmanagar, North Tripura, PIN:799 250
..................... Appellants
- Vs -
Sri Rakesh Chandra Nath,
son of late Lab Chandra Nath,
resident of Ganganagar, P.O. Ganganagar,
Dharmanagar, North Tripura, PIN:799 250
................... Respondent
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the appellants : Mr. K.N. Bhattacharji, Senior Advocate
Mr. Kohinoor N. Bhattacharji, Advocate
For the respondent : Mr. G.K. Nama, Advocate
Date of hearing & order : 26.04.2017
Whether fit for reporting : Yes No
√
JUDGMENT & ORDER (ORAL)
Heard Mr. K.N. Bhattacharji, learned senior counsel assisted by Mr. Kohinoor N Bhattacharji, learned counsel appearing for Page 1 of 12 RSA 77 of 2011 the appellants and Mr. G.K. Nama, learned counsel appearing for the respondent.
[2] This is an appeal under Section 100 of the CPC from the judgment dated 27.08.2011 delivered in Title Appeal No.07 of 2010 by the Additional District Judge, North Tripura, Dharmanagar affirming the common judgment and decree dated 29.01.2010 delivered in Title Suit No.21 of 2001 and Title Suit No.06(C.C) of 2006 by the Civil Judge (Senior Division), North Tripura, Dharmanagar. [3] At the time of admission of this appeal the following substantial question of law was formulated by the order dated 08.12.2011:
"Whether a decree of compromise passed by a Court can be interfered by the same Court on a petition filed by one of the parties to the compromise?"
[4] The brief facts those are essential to appreciate the challenge are that the plaintiff-respondent instituted the suit being Title Suit No.21 0f 2001 in the court of the Civil Judge (Senior Division), North Tripura, Dharmanagar, as it then was and hereinafter referred to as the trial court, against the appellants who had also instituted the counter-claim vis-a-vis the Title Suit 21 of 2001 being T.S.06(C.C.) of 2006. The plaintiff-respondent's case was that the appellants were permitted to possess the suit land temporarily for 4(four) years, but they continued to retain the same beyond the stipulated time and their object was not to vacate the suit land. To evict them from the suit land, the suit was instituted by the plaintiff- respondent for declaration of right, title and interest and for a decree Page 2 of 12 RSA 77 of 2011 for recovery of possession by evicting the appellants [the counter- claimants] with mense profit.
[5] The counter-claimants, the appellants herein, have stated that the entire land, mentioned in the first schedule, measuring 1.50 acres pertaining to C.S. Plot No.3486 under Khatian No.1374 was under possession of one Uday Nath who died in the year 1971. Uday Nath is the father of the present appellants. After death, one of the counter-claimants namely Debendra Chandra Nath, his only son succeeded to his estate. By a sale-deed, he transferred to the plaintiff 1 kani 10 ganda from C.S. Plot No.3486 by the registered sale-deed No.1-3532 dated 12.04.1971. Thereafter, Debendra Chandra Nath, the appellant No.1 sold out another plot of land measuring 15 ganda from C.S. Plot No.3486 to the plaintiff by the registered sale-deed No.1- 1055 dated 08.03.1972. The said defendant/counter-claimant also sold out 1 kani of land to one Sudhir Nath by the registered sale-deed No.1-7219 dated 13.12.1974 and another 10 ganda to Sudhir Nath by the registered sale deed No.1-677 dated 04.02.1975. Sudhir Nath transferred his land to one Sri Ranjit Das by sale and Ranjit Das had subsequently transferred the land to Rajani Kanta Nath by sale from whom the plaintiff ultimately purchased 1 kani 10 ganda of land together by the registered sale-deed No.1-931 dated 05.03.1984. Those transferees got in their possession simultaneously with the execution of the sale deed. The plaintiff-respondent thus acquired the title and possession of 3 kani 15 ganda or 1.50 acres which has been described in the first schedule of the plaint.
Page 3 of 12 RSA 77 of 2011 [6] The plaintiff-respondent has further pleaded that he permitted the defendant/counter-claimant appellants to retain the possession for an extended period and this permission was misutilised by the defendant/counter-claimant appellants. When on the demand of the plaintiff the defendants did not vacate the possession, the suit was instituted as stated earlier. By filing the counter-claim, the defendant/counter-claimant has claimed that said Uday Nath, father of the defendant/counter-claimant No.1 was the original owner of the entire suit land including the land described in the first schedule. Out of C.S. Plot No.3486, which was sold out to the plaintiff the possession was handed over to him by way of sale. It has been admitted that the land measuring 1 kani 10 ganda was sold by him to Sudhir Chandra Nath and ultimately the plaintiff purchased that land in the year 1984 by the registered sale deed No.1-931 dated 05.03.1984 and got the possession. But inadvertently, the boundary description was wrongly provided in the deed whereby the plaintiff-respondent purchased the land and in the subsequent settlement operation the plaintiff in collusion with the settlement officers prepared the Khatian No.459 and recorded the suit land in his name. On that basis it is stated that the record of rights does not project true fact and the suit land was not in his possession at any point of time. It is alleged by the defendant/counter-claimant appellants that the land sold by them to the plaintiff is not the suit land. In the village meeting held on 02.01.1998 the plaintiff admitted that fact. In that meeting, the plaintiff-respondent had promised to execute a rectified sale deed in favour of the defendant/counter-claimant with proper boundary description in respect of a land measuring 0.70 acre which has been Page 4 of 12 RSA 77 of 2011 described in the second schedule of the suit land. But the plaintiff- respondent did not abide by the said resolution taken at the village meeting. The defendant/counter-claimants have denied that in the year 1986 they got the possession of the suit land from the plaintiff temporarily to get rid of their hardship. They also denied that they continued to retain the possession beyond the stipulated period etc. It is their case that the plaintiff-respondent has filed this suit to take the advantage of the wrong entries in the record of rights being Khatian No.459, but the suit land was never possessed by the plaintiff- respondent. As the possession was with them [the defendants] they filed one suit being Title Suit No.07 of 2003 for declaration of their title, confirmation of their possession and permanent injunction. [7] It appears from the records that the issues as noted hereunder were framed:
(i) Is there any cause of action for filing the suit?
(ii) Whether the plaintiff has right title and interest over the suit land?
(iii) Whether the plaintiff is entitled to recovery of possession of the suit land as prayed for?
(iv) Whether the plaintiff is entitled to the decree as prayed for?
(v) What other relief or reliefs the parties are entitled to?
In the T.S.06(CC) of 2006, the following issues were framed for purpose of adjudication of the said counter-claim:
(i) Is the suit maintainable in its present form?
(ii) Whether the defendant/counter claimant no.1 namely Debendra Chandra Nath has right title and interest and possession over the suit land?
(iii) Whether the defendant/counter claimant is entitled to the decree as prayed for?Page 5 of 12
RSA 77 of 2011 [8] Thereafter, the parties adduced the evidence, oral and documentary, both in the suit and in the counter-claim. Finally, the trial court decreed the suit in pursuance to the judgment dated 29.01.2010 observing as under:
"After setting up counter claim the defendant/counter claimant had filed a petition on 17/01/2017 under order XXIII rule 1 read with section 151 CPC to withdraw from T.S.07 of 2003 which was allowed by my Ld. Predecessor by his order dated 17/01/2017 and T.S.07 of 2003 was thus disposed of as being withdrawn by the defendant/counter claimant of the present suit. Court proceeded with the trial of T.S.21 of 2001 and T.S.06(CC) of 2006. No fresh evidence was adduced by the parties in T.S.21 of 2001. In T.S.06(CC) of 2006 the defendant/counter claimant had however led fresh evidence and at the argument stage they filed a compromise petition under order XXIII rule 3 CPC for a compromise decree and on the basis of the compromise petition my Ld. predecessor by order dated 12/09/2007 decreed the suit in terms of the compromise and after inviting objection of the parties to the draft decree passed a compromise decree on 22/09/2007 making thereby the compromise petition a part of the decree. After the compromise decree was passed the plaintiff/opponent again approached this court in a position involving the jurisdiction of their court under section 151, 152 and 153 CPC either to make correction in the compromise decree which contained wrong plot nos. or in the alternative to recall the order dated 12/09/2007 whereby the compromise decree was passed. The petition of the plaintiff/opponent was registered as Civil Misc. 01 of 2009 which was disposed of by order dated 26/06/09 cancelling thereby the compromise decree passed in this suits. Since the compromise decree was passed at the argument stage the parties were asked to advance their arguments in T.S.21 of 2001 and T.S.06(CC) of 2006 and Ld. Counsel representing the parties advanced their arguments."
[9] This context is highly essential to understand the present challenge. Finally, the trial court decreed the Title Suit No.21 of 2001 granting all the reliefs, but the counter-claim filed by the defendant/counter-claimant appellants being T.S.06(CC) of 2006 was dismissed.
Page 6 of 12 RSA 77 of 2011 [10] Against the said common judgment dated 29.01.2010 allowing the Title Suit No.21 of 2001 and dismissing the Title Suit T.S.06(CC) of 2006, the appellants filed one combined appeal in the court of the Additional District Judge, North Tripura, Dharmanagar being Title Appeal No.07 of 2010. By the impugned judgment dated 27.08.2011, the Additional District Judge affirmed the judgment of the trial court and dismissed the appeal as he did not find any infirmity in the said judgment and hence this appeal has been preferred by the defendant-appellants.
[11] At the very threshold this court raised a question that how the defendant/counter-claimant-appellants can challenge the reopening of the suit under Sections 151 and 153 of the CPC when after the said reopening, the defendant-counter-claimant-appellants participated in the trial till its culmination in the form of the judgment dated 29.01.2010.
[12] Mr. K.N. Bhattacharji, learned senior counsel appearing for the appellants has submitted that since this proceeding is a continuation of the suit and the counter-claim, this can be challenged in view of Section 105 of the CPC which provides that no appeal shall lie from any order made by a Court in the exercise of its original or the appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. That apart, Mr. Bhattacharji, learned senior counsel has contended that by implying the doctrine of merger also, this judgment of the trial court can be held as the judgment merged with the order Page 7 of 12 RSA 77 of 2011 that has been passed in the proceeding under Sections 151 and 152 of the CPC. In this regard, he has relied on a decision of the apex court in Union of India vs. West Coast Paper Mills Ltd. and Another reported in (2004) 3 SCC 458, where the apex court had occasion to hold as under:
11. When we heard the matter earlier, Shri P.P. Malhotra, the learned senior counsel for the appellants placed reliance on a 2 Judges Bench decision of this Court in P.K Kutty Anuja Raja and Anr. v. State of Kerala and Anr., [1996] 2 SCC 496 wherein this Court has held that the limitation would commence from the date of decision by the Tribunal and unless and until the operation of the impugned judgment was stayed by any superior forum the plaintiff could not take shelter behind the plea that the decision of the Tribunal was put in issue in appeal.
Indeed, this Court in the earlier round of litigation had not stayed the declaration given by the Tribunal and the submission of learned senior counsel for the appellants was that the commencement of period of limitation and running thereof was not stalled. In his submission, the period of limitation shall have to be calculated by reference to 18.04.1966, the date on which declaration was made by Tribunal and if the period of limitation was calculated by reference to that date, the suit instituted by West Coast Paper Mills Limited on 12.12.1973 was hopelessly barred by time. We entertained a doubt about the correctness of the view taken in P.K. Kutty (supra) and therefore, directed the matter to be placed for consideration before a three Judges Bench. The decision by 3-Judges Bench is available reported as Union of India and Ors. V Coast Paper Mills Limited and Anr: (2004) 2 SCALE 285. The three Judges Bench has laid down the law that Me order of the Tribunal dated 18.04.1966 has merged into the judgment of this Court dated 14.10.1970 and, therefore, the limitation would run from 14.10.1970 and not from 18.04.1966. The two Judges Bench decision in P.K. Kutty's case (supra) has been overruled as not laying the correct law. Having decided the question of law, the three Judges Bench has referred the matter back to the present two judges Bench for decision on facts and other Please, if any.
* * * *
13. The cause of action arose to the plaintiff on 14th October, 1970 when the dispute came to be finally adjudicated upon by this Court and in view of the three Judges Bench decision dated 05.02.2004 referred to hereinabove, there is no manner of doubt that the decision of the Tribunal has merged with the decision of this Court dated 14.10.1970. The plaintiff was justified in staking its claim based on the decision of this Court dated Page 8 of 12 RSA 77 of 2011 14.10.1970 and serving a notice under Section 80 of the Code. The notice so served squarely attracts the applicability of sub- section (2) of Section 15 of the Limitation Act, 1963.
As such according to Mr. Bhattacharji, learned senior counsel appearing for the appellants, the challenge is sustainable and the appeal deserves to be decided on merit.
[13] Mr. Bhattacharji, learned senior counsel appearing for the appellants has further submitted that when a compromise under Order XXIII Rule 3 of the CPC is accepted by the court on the prayer of one of the parties, the said compromise cannot be un-wound. There was no consent from the defendant/counter-claimant appellants for unwinding the compromise. As such, the subsequent proceeding after the compromise decree was passed in the proceeding under sections 151 and 152 of the CPC is wholly illegal and unsustainable in law. Therefore, interference of the court is called for substantial justice. [14] From the other hand, Mr. G.K. Nama, learned counsel appearing for the plaintiff-respondent has submitted that the very appeal filed by the appellants under Section 96 of the CPC being Title Appeal No.07 of 2010 was unsustainable in law inasmuch as from the said appeal it is clear against which judgment, the appeal has been preferred. Even from a reading of the grounds of the memorandum of appeal it would not surface whether the finding in the suit, meaning the suit filed by the plaintiff-respondent or the finding in the counter- claim filed by the appellants was under challenge. However, he has fairly submitted that this aspect of the matter was not really agitated before the first appellate court. In support of his said contention, Mr. Nama, learned counsel has referred a decision of the apex court in Page 9 of 12 RSA 77 of 2011 Narhari and others vs. Shanker and others reported in AIR 1953 SC 419, which however is not relevant for the controversy. Further, Mr. Nama, learned counsel for the respondent has referred to the decision of the apex court in R. Rajana vs. S.R. Venkataswamy & Ors. reported in 2015 AIR SCW 706, where the apex court has approvingly referred a previous decision in Pushpa Devi Bhagat vs. Rajinder Singh and Ors. reported in (2006) 5 SCC 566. In Pushpa Devi (supra) it was observed by the apex court as under:
Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree, is nothing but contract between partie s superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.8.2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27.8.2001), filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by second defendant was not maintainable, having regard to the express bar contained in section 96 (3) of the Code.
Section 96(3) of the CPC provides as under:
"No appeal shall lie from a decree passed by the Court with the consent of parties."
[15] What Mr. Nama, learned counsel appearing for the respondents has submitted did not persuade this court much, inasmuch as the decree that was challenged in the first appeal was not Page 10 of 12 RSA 77 of 2011 a compromise decree. The compromise decree was un-wound by the trial court and the parties thereafter participated in the hearing. [16] This court is of the opinion that the combined and composite appeal filed by the appellants herein is unsustainable. But having regard to the substantial ends of justice, this court is of the further view that the appellants herein must get fair opportunity to approach the first appellate court and to assert against which judgment they would maintain the appeal. The option before the appellants is either to maintain the appeal against the judgment as passed in the suit or to maintain the appeal against the judgment passed in the counter-claim filed by the appellants. [17] For paving that purpose and without any observation on the merit of this case, the impugned judgment is interfered with and set aside. The matter is remanded to the first appellate court with a very strict condition that within 30(thirty) days from the date when the first appellate court will receive the copy of this judgment with the records, the appellants meaning the defendants-counter-claimants shall file a petition categorically stating that against which judgment they would like to maintain the appeal. According to their option, they may be permitted to a limited extent to correct the memorandum of appeal in terms of Order XLI Rule 3 of the CPC for which the appellants are allowed to file an appropriate petition simultaneously. If within 30(thirty) days such petition is not filed by the appellants this order will stand completely inoperative and without any force. As consequence, the impugned judgment challenged in this appeal, being RSA No.77 of 2011, shall be restituted for all purposes. Page 11 of 12 RSA 77 of 2011 Hence, this appeal stands disposed of in terms of the above.
Draw the decree accordingly.
Send down the LCRs thereafter.
JUDGE Moumita Page 12 of 12 RSA 77 of 2011