Gauhati High Court
Sri Hareswar Deka vs On The Death Of Sachin Choudhury His ... on 3 January, 2020
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/27
GAHC010172712008
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 49/2008
1:SRI HARESWAR DEKA
S/O LT. MOTI RAM DEKA
2: SRI TRAILOKYA NATH HALOI
BOTH ARE R/O FATASHIL AMBARI
PS. FATASHIL AMBARI
GHY -01
DIST. KAMRUP(M)
ASSA
VERSUS
1:ON THE DEATH OF SACHIN CHOUDHURY HIS LEGAL HEIRS SMTI
PUSHPA CHOUDHURY AND(WIFE) ORS
S/O LATE SACHIN CHOUDHURY R/O PUB SARANIA, PS. CHANDMARI,
GHY- 3, DIST. KAMRUP(M), ASSAM.
1:(B) SRI SISHIR CHOUDHURY
S/O LATE JOGENDRA NATH DAS
2:SMTI TILOTTAMA DAS
W/O JOGENDRA NATH DAS
ALL RESIDENTS OF PUB SARANIA
GUWAHATI-03
PS. CHANDMARI
DIST. KAMRUP(M)
ASSAM
3:(b) SRI DIPANKAR BORO
S/O LT MUKUNDA RAM KACHARI
R/O FATASHIL DHIRENPARA AAMTOLA GALI GUWAHATI DIST KAMRUP.
Page No.# 2/27
3:ON THE DEATH OF MUKUNDA RAM KACHARI HIS LEGAL HEIR (a)
BIMAL BORO
S/O LATE MUKUNDA RAM KACHARI
R/O FATASIL
DHIREN PARA
AAMTOLA GALI
GUWAHATI
DIST. KAMRUP(M)
ASSAM.
4:TARUN CH. BARUAH
S/O LT. HEM CH. BARUAH
R/O UZANBAZAR
GHY
5:GUWAHATI METROPOLITAN AUTHORITY
BHANGAGARH
GHY-05
ASSAM.
6:SR. SUB-REGISTRAR
GUWAHATI
7:ADDL. DY. COMMISSIONER
KAMRUP
GHY-1
Advocate for the Petitioner : MR. P UPADHYAY
Advocate for the Respondent : MR. P K KALITA
BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA JUDGMENT AND ORDER (CAV) Date : 03-01-2020 Page No.# 3/27 Heard Mr. P. Upadhyay, the learned counsel for the appellants. Also heard Mr. P.K. Kalita, the learned senior counsel assisted by Mr. N. Das, the learned counsel for the respondents No.1 and 2, and Mr. G. Bordoloi, learned Govt. Advocate, Assam, appearing for respondents No.6 and 7. None appears on call for the respondents No. 3, 4 and 5.
2) By this appeal under Section 100 C.P.C., the appellants have assailed the first appellate judgment and decree dated 14.09.2007, passed by the learned Civil Judge (Senior Division) No.2, Kamrup, Guwahati in Title Appeal No. 94/2006, thereby setting aside and reversing the judgment and decree dated 10.11.2006, passed by the learned Civil Judge (Junior Division) No.3, Kamrup, Guwahati, by which the suit filed by the respondents No.1 and 2 (plaintiffs) was dismissed.
3) The respondents No.1 and 2 were the plaintiffs in T.S. No. 383/2006. The suit was filed for declaration of right, title and interest and for recovery of khas possession, for permanent injunction and for declaration that the Sale Deed No. 3406/95 and 3407/95 are void in law, illegal and inoperative. In the plaint, it was projected that the appellant- defendant No.1 was engaged by the respondents No.1 and 2 (plaintiffs) as chowkidar in their private school and he also was the cleaner of their vehicles and that the appellant No.1 was allowed to stay in the house of the appellants at Ambari Fatasil at Guwahati. The appellant No.2 was the brother- in- law of the appellant No.1. It was claimed that proforma respondent No.3 was the raiyot of proforma respondent No.4 in respect of the land described in Schedule of the plaint. It is also stated that on 01.08.1963, the proforma defendant No.3 had executed a registered sale deed No. 5023/1963 and sold land measuring 1 bigha covered by Dag No. 44/149 of khatian No. 236 of Patta No.1 of Village- Fatasil, Mouza- Beltola in favour of (i) Bapu Ram Das, (ii) Kiran Bala Das, (iii) Tilottama Das (respondent- plaintiff No.2), and (iv) Suniti Bala Das and that thereafter, the said purchasers had constructed their respective houses thereon and the respondent No.2 was paying land revenue and municipal taxes. It was stated that in the year 1967, the respondent No.2 had constructed her house towards Page No.# 4/27 the western side of the said purchased land, which was let out by the respondent No.2 from time to time and that the respondent No.2 had allowed Kanak Das, her younger brother to stay in the house, who obtained electricity connection in his name in the year 1972 and that the said house had seven rooms and two verandah, where one of the sons of the respondents No.1 and 2 was staying. It was stated that prior to the said sale deed, the respondents had purchased possession of the suit land from proforma respondent No.3. It was also stated that in the settlement operation, there was some changes and Dag No.44 was merged with Dag No. 149. The proforma respondent No.4 sold the suit land to the respondent No.1 vide registered sale deed No. 3837 dated 02.06.1995. It was projected that second son of the respondents had seen that the appellants were showing the house standing on the suit land to a police personnel of Ambari Fatasil P.S. with a view to let it out and when objected to, the appellant No.1 informed that he had purchased the said land from the proforma respondent No.4 and accordingly, the matter was reported to the respondent No.1 and on enquiry, the respondent No.1 became aware that the proforma respondent No.4 had registered sale deeds No. 3406/95 and 3407/95 in favour of the appellants. It is projected that by the said two sale deeds, the appellants had purchased different plot of land in the same Dag covering a big area, but could not find their purchased land. It is projected that the appellant No.2 had never come into the picture and he was acting collusively with the proforma respondent No.4. It is projected that on 24.08.1995, the appellants had drove away the chowkidar and took possession of the house standing on the suit land. It was stated that the land was mutated in the names of appellants on the basis of order dated 04.12.1995 in Grant Mutation Case No. 63/94-95 65/94-95 and the land revenue records were corrected, which is projected to have been done with collusion. However, mutation case filed by the appellants before the Settlement Officer was dismissed by order dated 19.01.1996. Thus, by projecting that the cause of action for the suit arose on 18.12.1995, 24.08.1995, 04.12.1995 and 28.12.1995, the respondents No.1 and 2 had prayed for (i) declaring the right, title and interest of the respondents No.1 and 2 (plaintiffs) over the suit land, for recovery of khas possession by removing the appellants, their agents, etc. from the suit land and house standing thereon, for declaration that the registered sale deeds No. 3406/95 and 3407/95 by proforma respondent No.4 were collusive, void, illegal and cannot be given effect to and for directing the Senior Sub- Registrar (proforma defendant No.5, sic. should have been proforma Page No.# 5/27 respondent No.6) to cancel the same and to issue precept for such cancellation, (iii) permanent injunction, (iv) permanent injunction, (v) cancellation of order dated 04.12.1995 in G.M. Case No. 65/94-95 and correction of land records vide order dated 26.12.1995 by proforma respondent No.7, (vi) cost of suit, and (vii) any other relief. As per the plaint, the boundaries of the suit land in the North: Road, South: Smt. Sunity Talukdar and Kiron Das, East: Road and West: Tiken Das and Niranja Das, within which house covered by Holding No.407 of GMC Ward No.11 (old) in the name of respondent No.1 was standing.
4) The appellants (defendants No.1 and 2) had filed their joint written statement, thereby denying the statements made in the plaint. It was denied that the appellant No.1 had ever worked as chowkidar of the respondents' school or allowed to stay in their house. It was denied that by registered sale deed dated 01.08.1963, 1 bigha land was sold to (i) Bapu Ram Das, (ii) Kiran Bala Das, (iii) Tilottama Das (respondent- plaintiff No.2), and (iv) Suniti Bala Das and it was stated that the land sold by Sale Deed No. 5023/1963 had no relevancy with the suit land. It was stated that there was no house, as such, there was no letting out of any house by the respondents No.1 and 2 or allowing brother of respondent No.2 to stay there. It was stated that the suit land was under occupation of Moti Ram Das (since deceased), the father of the appellants with full knowledge and adverse to the interest of the proforma respondent No.4 and thereafter, the appellants were in occupation thereof after the appellant No.2 obtained possession of 1K-5L land from the appellant No.1. Thereafter, by registered Sale Deed No. 3407/95, 15 lecha land was sold by the proforma respondent No.4 to the appellant No.1 and 1K-5L land was sold to appellant No.2 vide registered Sale Deed No.3406/95. The boundaries of the respective land of the appellants were demarcated and the house of appellant No.1 was covered by GMC Holding No.407 of Ward No.14. It is stated that the sale deed in favour of the appellants were registered prior to the registration of sale deed in favour of the respondents No.1 and 2 and, as such, the subsequent sale deed was illegal and void and created no right in favour of the respondents and that the respondents No.1 and 2 did not have exclusive physical possession of the suit land. It was submitted that the appellants had purchased the same land which was in their possession prior to their purchase. It is submitted that although in the No objection Page No.# 6/27 Certificate obtained by the vendor for sale of the land, the four boundaries for 2 katha land was stated as North: Road, South: P.K. Baishya, East: D. Talukdar, West: T. Das, but the boundaries were wrongly mentioned in the registered sale deeds No. 3406/95 and 3407/95, there was a mistake in mentioning the four boundaries. However, the proforma respondent No.4 had died and, as such, Dipima Baruah, the wife of the deceased proforma respondent No.4 had executed and registered correction/ rectification deeds No. 9239/99 and 9270/99, thereby giving correct four boundaries of the land sold vide the said two sale deeds. It was stated that the houses of the appellants were duly assessed by GMC and they were paying the holding tax thereof to the GMC. It was also stated that the suit was barred under GMC/ GMDA Acts and accordingly, the appellants had prayed for dismissal of the suit.
5) On the basis of pleadings, the learned trial Court had framed the following issues for trial:-
1. Whether the suit is barred by limitation?
2. Whether the suit is bad for non- joinder of necessary parties?
3. Whether the plaintiff had purchased the suit land prior to purchasing of the same by the defendants No.1 and 2?
4. Whether the plaintiff had got possession of the suit land after purchase and had constructed his dwelling house there?
5. Whether the defendant No.1 and 2 had dispossessed the plaintiff from the suit land and never standing there illegally?
6. Whether the plaintiff is entitled to get a decree as prayed for?
7. To what other relief/ reliefs the parties are entitled to?
6) It is seen that the suit was initially tried by the Assistant District Judge No.1, Kamrup, Guwahati (as it was then), thereafter, the matter was transferred to Civil Judge (Senior Division) No.2, Kamrup, Guwahati. Thereafter, the suit was tried by the Court of Munsiff No.3, Kamrup, Guwahati.
Page No.# 7/27
7) In support of the case, the plaintiff had examined Jogendra Nath Das (plaintiff No.1 then alive) as PW-1, and Girindra Kumar Das (PW-2), Ratikanta Teron (PW-3), Chittaranjan Patwari (PW-4), Mukunda Kachari (PW-5), Karuna Choudhury (PW-6), Durlabh Chandra Talukdar (PW-7), Kanak Chandra Das (PW-8). The respondents No.1 and 2 (plaintiffs) had exhibited the following documents, viz., Registered Sale Deed No. 5023 dated 01.08.1963 by Mukunda Ram Kachari (Ext.1) in favour of (1) Bapu Ram Das, (2) Kiran Bala das (3) Tilottama Das, and (4) Suniti Bala Das, GMC Assessment sheet for 4 th Quarter of 1977-78 in the name of Girin Das and Kanak Das, prepared on 26.10.95 (Ext.2), GMC Tax paid receipts [Ext.3(1) to 3(9)], Treasury challans showing money deposited in SBI [Ext.4(1) and 4(2)], GMC Assessment sheet for 4 th Quarter of 1977-78 in the name of Girin Das and Kanak Das, prepared on 23.04.97 (Ext.5), GMC Tax paid receipts [Ext.6(1) & 6(2)], Electricity bills in the name of Kanak Chandra Das [Ext. 7(1) to 7(9)], Registered Sale Deed No. 3837 dated 02.06.1995 by proforma respondent No.4 to the respondent No.1 (then alive) (Ext.8), Certified copy of Registered Sale Deed No. 3407 dated 18.05.95 (Ext.9), Certified copy of Registered Sale Deed No. 3407 dated 18.05.95 (Ext.9), Certified copy of Registered Sale Deed No. 3406 dated 18.05.95 (Ext.10), NOC dated 08.08.1995 by GMDA to proforma defendant No.4 to sell 2 katha land to the respondent No.1 (Ext.11). It is also seen that the appellants (defendants No.1 and 2) had examined Hareswar Deka (defendant No.1 as DW-1), Kanak Boro (DW-2), Atul Kalita (DW-3) and had exhibited the following documents, viz., Sale Deed No. 3407 dated 18.05.1995 (Ext. Ka), Sale Deed No. 3406 dated 18.05.1995 (Ext. Kha), Site map of suit land approved by CEO, GMDA dated 15.07.1995 showing description of four boundaries (Ext.Ga), No Objection Certificate issued by GMDA on 15.07.95 for transfer of land by proforma respondent No.4 to the appellants (Ext.Gha), Deed No. 9223 dated 15.12.1999 by Dipima Baruah for rectification of Sale Deed No. 3407 dated 18.05.1995 (Ext.Unga), Deed No. 9270 dated 16.12.1999 by Dipima Baruah for rectification of Sale Deed No. 3406 dated 18.05.1995 (Ext.Cha), order dated 04.12.1995 by Additional Deputy Commissioner, Kamrup in Grant Case No. 65/94-95 (Ext.Chha), jamabandi (Ext.Ja), Treasury challan showing money deposited in State Bank of India [Ext.Jha to Jha(5)], GMC Notice under Section 156(3) of GMC Act (Ext. Niya), GMC Assessment Sheet in the name of appellant No.1 dated 01.02.1996 Page No.# 8/27 (period not given, showing year of construction in 1995-96) (Ext.Ta), GMC Tax paid receipt dated 09.12.98 [Ext.Tha to Tha (4)], Electricity bills in the name of appellant No.1 [Ext.Da to Da(3)].
8) The learned trial Court, on the basis of evidence on record, held in respect of issue No.1 that the cause of action for the suit arose on 24.08.95, 04.12.95, 18.12.95 and 28.12.95, as such, the suit field on 30.01.96 was not barred by limitation. In respect of issue No.2, it was held that the appellants had not stated who ought to be the necessary party, as such, the issue was decided in the negative. In respect of issue No.3, it was held that the respondents No.1 and 2 had not purchased the suit land prior to its purchase by the appellants. In respect of issue No.4, it was decided in the negative and against the respondents. Similarly, the issue No.5 was also decided in the negative and against the respondents No.1 and 2. In view of the decision on issues No.3, 4 and 5, the issues No.6 and 7 were also decided against the respondents No.1 and 2 by holding that the respondents No.1 and 2 were not entitled to any relief.
9) The respondents No.1 and 2 had assailed the judgment and decree passed by the learned trial Court by filing Title Appeal No. 94/2006. The learned first appellate Court had affirmed the decision of the learned trial Court on issues No. 1 and 2. The issues No.3 and 4 were taken up together. In this regard, the learned first appellate Court had relied on the Sale Deed No. 5023 dated 01.08.1963 (Ext.1) and held that the proforma respondent No.4 was the raiyot of land covered by Dag No. 149 (New) of Patta No.1 and accordingly, it was held that when the proforma respondent No.4 had sold land to the respondents No.1 and 2 vide Ext.9 and 10, he was not in possession. It was further observed that the learned trial Court had failed to take note that while executing Deed of Rectification, Dipima Baruah had not obtained any "no objection certificate" from other heirs of proforma respondent No.4. Moreover, on the basis of evidence of PW-2 and electricity bills [Ext.7(1) to 7(9)], it was held that the respondent No.1 took electricity connection in the name of his brother. It was also held that the learned trial Court had failed to consider that the appellants had taken a plea of adverse possession, but did not led any evidence and that plea of adverse possession was Page No.# 9/27 belied by Ext.9 and Ext.10. It was also held that the appellants had got the land mutated without notice to the respondents No.1 and 2. Accordingly, based on Ext.1, it was held that the respondents No.1 and 2 had purchased the suit land prior to the appellants and, as such, the decision of the learned trial Court on the said issues No.3 and 4 was reversed. In respect of issue No.5, it was held that the appellants did not dispossess the respondents No.1 and 2, but they were illegally staying in the suit land and accordingly, the decision of the learned trial Court on issue No.5 was reversed. Accordingly, in view of the finding on issues No.3, 4 and 5, it was held that the respondents No.1 and 2 were entitled decree as prayed for. Accordingly, the judgment and decree of dismissal of the suit by the learned trial Court was reversed and the suit was decreed by the learned first appellate Court.
10) Assailing the first appellate judgment, it is submitted by the learned counsel for the appellants that in paragraph 18 of the plaint, the respondents No.1 and 2 had specifically admitted that by order dated 04.12.1995, the suit land was mutated in the names of the appellants in Mutation Case No. 6/94-95, as such, there was no dispute as regards the identity of the suit land, as such, it is submitted that the finding by the learned first appellate court to the effect that the land of the appellants was different from that of the respondents No.1 and 2, is perverse and not sustainable. It is also submitted that the case projected in the plaint was false because it was projected that the appellant No.1 was the servant of the respondent No.1 in his school and was cleaning their vehicle, but the respondents did not disclose the name of the school in the plaint and also did not produce any record of the said school to show the engagement of the appellant No.1 as his servant. It is also submitted that merely because the appellant No.2 was related to the appellant No.1, it did not make the said appellant No.2 a permissive occupier of the suit land under the respondents No.1 and 2. It is also submitted that notwithstanding the purported status of the appellant No.1 as the servant of the respondent No.1, but as the appellants had purchased the suit land by virtue of two registered sale deeds executed by the proforma respondent No.4 in the respective names of the appellants, the appellants had attained the status of land holder as defined under Section 8(2) of the Assam Land And Revenue Regulation, 1886, as such, on and from the date of obtaining land- holder's status and right, the status of the appellants is immaterial for Page No.# 10/27 granting decree of right, title, and interest in respect of the suit land.
11) It is submitted that the sale deeds Ext.9 and Ext.10 contained incorrect boundaries, but the correct boundaries was given in the No objection certificate granted by the GMDA, as such, the correct four boundaries were incorporated in the said two sale deeds by Dipima Baruah by executing and registered Deed of Rectification No. 9223 and 9290, but without obtaining it is submitted that the learned first appellate Court had discarded the two sale deeds and deeds of rectification in favour of the appellants merely because the wife of proforma respondent No.4, the lawful vendor did not take no objection from other heirs left behind by the deceased proforma respondent No.4, which, according to the learned counsel for the appellants, is not sustainable because when the vendor had died, any one of his legal representative could execute the rectification deed in order to correctly describe the land sold by the two sale deeds and that it was mentioned in the said rectification deed that the other heirs of proforma respondent No.4 had no objection. It is submitted that the rectified boundaries was in accordance with the site map (Ext.Ga) and the No Objection Certificate (Ext.Gha), both containing the correct description of four boundaries of 2 katha land jointly purchased by the appellants. It is also submitted that the respondents No.1 and 2 had not challenged the two deeds of rectification (Ext.Unga and Ext. Cha), and there is no finding by the learned first appellate Court that the two sale deeds (Ext.9 and Ext.10) of the deeds of rectification (Ext.Unga and Ext. Cha) were liable to be cancelled, yet by granting decree in terms of the prayers made in the plaint, the said two sale deeds were held to be illegal and precept was issued for cancelling the said two sale deeds. It is also submitted that there was no issue as to whether the mutation of the names of the appellants in respect of the suit land was sustainable and although no revenue records were called for and proved by the respondents, yet, by allowing all the prayers made in the plaint, the order of mutation was erroneously set aside and in this connection, it is submitted that without a formal finding by the appellate Court, thereby declaring the title of the respondents No.1 and 2, the decree for cancelling the order of mutation was not sustainable because of the express bar under Regulation 154 (c) of the Assam Land And Revenue Regulation, 1886.
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12) It is submitted that the respondents No.1 and 2 had prayed for decree for delivery of possession of land, but the learned first appellate Court held that the respondents No.1 and 2 were in possession of the land, yet the decree for possession of land was decreed and, as such, the said decree was inconsistent with the finding. It is further submitted that the learned first appellate Court heavily relied on the sale deed dated 01.08.1963 (Ext.1) by one Mukunda Ram Kachari, but no proof had been tendered to show that the name of the said person was entered in the land revenue records as a raiyot i.e. occupancy tenant under the relevant tenancy law, as such, the finding of the learned first appellate Court on issues No.3, 4 and 5 was not sustainable on facts and in law.
13) It is submitted that there was no dispute that the proforma respondent No.4 had executed and registered Sale Deeds No. 3407/95 and 3406/95 on 18.05.1995, i.e. prior in point of time to the execution and registration of sale deed No. 3837/95 dated 02.06.1995, as such, there is no way that any valid and lawful title can pass on to the respondents No.1 and 2 and, as such, the first appellate judgment, thereby extinguishing a lawful and valid title of the appellants was not sustainable on facts and in law. It is further submitted that the suit was decreed by the learned first appellate Court on the basis of Sale Deed dated 01.08.1963 (Ext.1), executed by proforma respondent No.3, who was not the title holder, but without any documentary proof, the respondents No.1 and 2 had projected him to be a raiyot, but the suit is based on title and not based on possession alone, as such, the decree of the suit was not sustainable on facts and in law.
14) It is further submitted that the learned first appellate Court did not comply with the requirement of Order XLI, Rule 31 CPC as it failed to formulate points of determination, and without any discussions on the reliefs sought for by the respondents, all the reliefs as prayed for in the plaint was allowed by one stroke of pen, by mentioning in the judgment and the respondents are entitled to all reliefs as prayed for, which was not in accordance with law.
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15) In support of his submissions, the learned counsel for the appellants has placed reliance on the following cases, viz., (i) Kanailal Vs. Ram Chandra Singh, (2018) 13 SCC 715 (para-11 to 13), (ii) Coal Mines Provident Fund Commissioner through Board of Trustees Vs. Ramesh Chandra Jha, (2012) 2 SCC 67 (para-20), (iii) S. Nazeer Ahmed Vs. State Bank of Mysore & Ors., (2007) 11 SCC 75 (para-7), (iv) Gannmani Anasuya & Ors., Parvatini Amarendra Chowdhary & Ors., (2007) 10 SCC 296 (para-23), (v) Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan, (2003) 1 SCC 197 (para-12), (vi) State of Rajasthan Vs. Rao Raja Kalyan Singh (Dead) through LRs., (1972) 4 SCC 165 (para-6), (vii) Azeezulla Sheriff & Ors. Vs. Bhabhurimul, AIR 1973 Mys 276 (para-13), and (viii) S. Arunachalam Asari (Dead) & Ors. Vs. Sivan Perumal Asari & Anr., AIR 1970 Mad 225 (para-5).
16) Per contra, the learned senior counsel for the respondents No.1 and 2 has made his submissions in support of the judgment and decree passed by the learned first appellate Court. It is submitted that as all the issues as framed by the learned trial Court was discussed, the non- framing of points of determination as per the provisions of Order XLI, Rule 31 CPC was not fatal. It is further submitted that objection as to non- joinder of State of Assam as a necessary party in the suit cannot be permitted to be taken up by the appellants at the second appellate stage and moreover, in this regard, it is submitted that no relief was claimed against the State respondents and, as such, there was no necessity of impleading the State of Assam as one of the defendants in the suit and moreover, it is submitted that as of LCR, it can be seen that by order dated 01.02.1996, the issuance of prior notice to the State respondents under Section 80 C.P.C. was exempted, for which it is submitted that non- issuance of notice under Section 80 CPC was not fatal in the present case in hand. It is further submitted that no specific issue of maintainability of the suit was framed and, as such, without any pleading as to who ought to have been joined as necessary party in the suit, the respondents No.1 and 2 cannot be non- suited at this second appellate stage. In this regard, it is also submitted that without making a specific pleading to disclose who was the proper and necessary party in the suit, the point of non- joinder of necessary parties cannot be allowed to be raised at the second appellate stage. It is further submitted that the appellants did not raise any cross- objection as regards non- joinder of necessary parties in the first Page No.# 13/27 appellate stage and, as such, the said plea is deemed to have been waived and therefore, a new ground cannot be allowed to be taken by the appellants.
17) The learned senior counsel for the respondents No.1 and 2 has submitted that proforma respondent No.3 was khatian holder of the suit land and he sold 1 bigha land to four persons including the respondent No.2 by virtue of registered sale deed dated 01.08.1963 and delivered possession thereof to the purchasers and thereafter, the proforma respondent No.4 had sold the suit land to the respondents No.1 and 2, as such, the possession of the respondents had been perfected by obtaining title. It is also submitted that the transfer of land without possession could not amount to a valid transfer of right, title, interest and possession of the suit land in favour of the appellants and, as such, the dismissal of the suit is justified. It is also submitted that the specific plea of the respondents No.1 and 2 in paragraph 13A of the plaint is that the sale deed of the appellants is in respect of a different plot of land, which was a fact and thereafter, during the pendency of the suit, the appellants had surreptitiously got the boundaries of the land purchased vide Sale Deed No. 3407/95 (Ext.9) and 3406/95 (Ext.10) dated 18.05.1995 rectified vide Deed No. 9223 dated 15.12.1999 (Ext.Unga) and 9270 dated 16.12.1999 (Ext.Cha) by Dipima Baruah, wife of proforma respondent No.5) without other legal heirs signing the said deeds and without obtaining no objection from other heirs of the deceased proforma respondent No.4. Hence, it is submitted that although the appellants had purchased different land somewhere, but they did not get possession thereof and thus, after taking illegal possession of the suit land, they got the boundaries of purchased land rectified and the appellants are not making a vain attempt to protect their illegal possession of the suit land. It is also submitted that the respondents No.1 and 2 were found to be in possession of the suit land by the learned first appellate Court and, as such, the suit was rightly decreed by allowing the appeal.
18) In support of his submissions, the learned senior counsel for the respondents No.1 and 2 had relied on the following cases, viz., (i) State of A.P. Vs. M/s. Pioneer Builders, AIR 2007 SC 113 (para-16 & 18), (ii) Sri Ram Pasricha Vs. Jagannath & Ors., AIR 1976 SC 2335 (para 15), and (iii) Manindra Ch. Paul Vs. State of Tripura & Ors., (2007) 4 GLR 197 Page No.# 14/27 (para-12).
19) The learned Government Advocate has submitted that the main dispute is between the appellants and the respondents No.1 and 2 and therefore, as by any order that may be passed in this appeal, the interest of the State is not hampered, he has no submissions to make.
20) The appeal was admitted by order dated 14.07.2008 on the following substantial questions of law No.(i) to (iii) below:-
i. Whether, in spite of specific bar of jurisdiction of Civil Court under the provisions of Assam Land and Revenue Regulation, 1886 the First Appellate Court can acquire jurisdiction to cancel the mutation order dated 04.12.1995 passed by the competent Revenue Authority in respect of suit land in Q.M. Case No. 65/94- 95?
ii. Whether the proforma defendant Nos.5 to 7 being the state and public officers, the First Appellate Court is justified in passing decree against them without service notice as required under Section 80 of CPC; and iii. Whether State Government of Assam is a necessary party in Title Suit No.383 of 2006 or not.
21) It would be relevant to mention herein that as per Ext.Chha, i.e. the certified copy of order of mutation dated 04.12.1995, the case number is mentioned as Grant Case 64/94-95. In prayer (v) of the plaint, the respondents No.1 and 2 had prayed for cancellation of order dated 04.12.95 in G.M. Case No. 65/94-95. Therefore, it appears that clerical/ typing error has crept in while framing substantial question of law No.1 by inadvertently referring Grant Case 64/94-95 as Q.M. Case No. 65/94-95. This has necessitated reframing of the substantial question of law by giving correct description of the mutation case number, as such, the said substantial question of law is re-cast as under:-
Page No.# 15/27 i. Whether, in spite of specific bar of jurisdiction of Civil Court under the provisions of Assam Land and Revenue Regulation, 1886 the First Appellate Court can acquire jurisdiction to cancel the mutation order dated 04.12.1995 passed by the competent Revenue Authority in respect of suit land in G.M. Case No. 65/94- 95?
Discussion on substantial question of law No. (ii):-
22) It is seen from the LCR that the present suit was registered as Title Suit No. 8/1996 and was filed on 31.01.1996, and the said suit was made over to the Court of Assistant District Judge No.1, Kamrup, Guwahati (ADJ-1 for short) for disposal. Thereafter, by an order dated 01.02.1996, the said learned Court had granted leave to file the suit without complying with the provisions of Section 80 CPC. In course of time the suit was tried by the Court of learned Munsiff No.3, Kamrup, Guwahati, where it was re-numbered as T.S. No. 383/2006. Thus, at the trial stage, the appellants did not press for framing non- issuance of notice as required under Section 80 CPC, as such, no issue had been framed thereon. The appellants did not assail the said order dated 01.02.1996 and moreover, the appellants had not filed any objection and/or cross objection against the aforesaid order dated 01.02.1996, thereby granting leave to file suit without serving notice under Section 80 CPC. Thus, the non- issuance of notice under Section 80 CPC is a new plea which cannot be entertained for the first time in this appeal under Section 100 CPC. Thus, the substantial question of law is answered by holding that in view of the order dated 01.02.1996, passed by the learned ADJ-
1, thereby granting leave to institute the suit without serving notice under Section 80 CPC, the learned first appellate Court is justified in passing decree against proforma respondents No.4 to 7 herein.
Discussion on substantial question of law No. (iii):-
23) In this connection, it is seen that while the appeal was admitted, the appellants had not taken up the plea that the State of Assam was not arrayed as one of the defendants in the suit. However, by citing the provisions of Order XXVI, Rule 5A CPC and Coal Page No.# 16/27 Mines Provident Fund Commissioner (supra) , it is has been submitted by the learned counsel for the appellants that the suit filed by the respondents No.1 and 2 was not maintainable as the suit was filed against the State Govt. officers i.e. respondents No. 5 to 7, but without arraying State of Assam as one of the defendants in the suit. In this case in hand, it is seen that the officials of the Government are arrayed as proforma defendants No.5 to 7, but in prayers No. (ii), (iv) and (v), relief has been claimed against the said proforma respondents, as such, the learned counsel for the appellants is not wrong in submitting that the provisions of Order XXVII, R.5A CPC mandates that Government to be joined as a party in a suit against a public officer.
24) It is seen that in paragraph 2 of the written statement, the appellants had taken a stereotype plea that the suit was bad for mis-joinder and non-joinder of necessary party. The learned counsel for the appellants could not show that it was specifically pleaded in the written statement that the State of Assam was not arrayed as a defendant in the suit.
Therefore, while deciding the issue No.2, the learned trial Court had held that there was no pleading in the written statement that who ought to be the necessary party. From the LCR of Title Appeal No. 94/2006, the learned counsel for the appellants could not show that any objection and/or cross- objection was filed by the appellants before the learned first appellate Court regarding non- maintainability of suit or against the decision of the learned trial Court on issue No.2. Accordingly, the learned first appellate Court had also given its finding on issue No.2, as framed by the learned trial Court, thereby concurring with the finding of the learned trial Court. Therefore, in the considered opinion of the Court, when the non- joinder of State of Assam as one of the defendants was not specifically pleaded by the appellants in the written statement and that when there was no objection and/or cross- objection on the decision of the learned trial Court on issue No.2, the issue No.2 of non- joinder of necessary party was affirmed by the learned first appellate Court.
25) In this regard, this Court is reminded of the case of Dr. Dwijendra Mohan Lahiri Vs. Rajendra Nath, AIR 1971 Gau 143: (1971) 0 Supreme(Gau) 13 , wherein this Court had held as follows:-
Page No.# 17/27 "10. We may observe that a court should decline to frame an issue as to maintainability of a suit in absence of specific averment in the written statement as to how and in what circumstances the same is not maintainable in law. A mere vague recital in the written statement, without anything more, cannot be the basis for raising such an issue. Issues are framed for a right decision of the case with an object to pinpoint the real and substantial points of difference between the parties specifically and unambiguously emerging out of the pleadings. Vague issues, suggested in a mechanical way, should not be framed to keep the door open for astute casuistry as a suit proceeds at different levels leading inevitably to the law's delay. The court has to own its own responsibility in framing issues."
26) It must be kept in mind that if the appellants had specifically pleaded about non- joinder of State of Assam in the plaint, and if still the said party was left out, then the dismissal of the suit on ground of non- joinder would have been justified. But in the present case, there is concurrent finding by both the learned Courts below that the suit was not bad for non- joinder of necessary party. Thus, non filing of objection and/or cross objection by the appellants against the finding of the learned trial Court on issue No.2, amounted to waiver of the plea, as such, the Court has no hesitation to hold that the issue of non- joinder of Government of Assam is a new plea taken at the second appellate stage, which cannot be entertained. Hence, the case of Coal Mines Provident Fund Commissioner (supra) does not help the appellant on the distinguishable facts of the present case.
27) Moreover, it is seen that the State has not raised any grievance regarding maintainability of the suit against their officers without complying with the requirement of Order XXVII, R.5A CPC. Therefore, the appellants cannot be really aggrieved for non- joinder of State of Assam as one of the defendants in the suit.
28) Thus, the substantial question of law No. (iii) is answered in the affirmative that ideally the State of Assam was a necessary party, yet, as the appellants had not specifically pleaded non- joinder of State of Assam as a necessary party, the decision of the learned Courts below on issue No.2 is held to be justified and the non- impleading of the Page No.# 18/27 State of Assam as one of the defendants in the suit is not fatal under the unique facts of this case in hand.
Discussions on substantial question of law No.(i):-
29) It is seen that the appellant No.1 had purchased 15 lecha land from the proforma respondent No.4 by virtue of registered sale deed No.3407 dated 18.05.1995 (Ext.9/ Ext.Ka). The appellant No.2 had purchased 1 katha 5 lecha land from proforma respondent No.4 vide registered sale deed No. 3406 dated 18.05.1995 (Ext.10/ Ext.Kha).
Thus, both the appellants had purchased 2 katha land from proforma respondent No.4. It is not in dispute that by virtue of deed of rectification/ correction bearing deed No.9223/99 (Ext.Unga) dated 15.12.1999 and deed No.9270/99 (Ext.Cha) dated 16.12.1999, the boundaries of sale deed No.3407 and 3406 were respectively rectified by Dipima Baruah, the wife of the vendor, namely, Tarun Chandra Baruah. In this regard the learned counsel for the respondents No.1 and 2 had submitted that the two deeds of rectification were invalid documents which were void ab intio because the vendor who had died before the deed of rectification was executed, but the executants did not procure any "no objection certificate"
from the said daughter of the deceased vendor. In this regard the Court is of the considered opinion that neither the legality and validity of the said two deeds of rectification, nor the power and authority of Dipima Baruah to execute and register the said two deeds of rectification bearing deed No.9223/99 dated 15.12.1999 (Ext.Unga) and deed No.9270/99 dated 16.12.1999 (Ext.Cha) has been challenged, questioned or assailed either by the respondents No.1 and 2 in the plaint or by any surviving legal representative of the vendor/ proforma respondent No.4 (since deceased). It was submitted by the learned counsel for the appellants that the effect of the said two deeds of rectification would take effect on and from the date of registration of the two sale deeds bearing No.3406/95 and 3407/95 both dated 18.05.1995 and no legal proposition has been brought to the notice of the Court that such submissions made by the learned counsel for the appellants is without basis.
30) In this regard it would be relevant to quote the provisions of regulation Page No.# 19/27 154(1) (c) of the Assam Land and Revenue Regulation, 1886:-
"154. Matters exempted from cognizance of Civil Court - (1) Except when otherwise expressly provided in this Regulation, or in rules issued under this Regulation, no Civil Court shall exercise jurisdiction in any of the following -
(a) xxxxx
(b) xxxxx
(c) the formation of the record-of-rights or the preparation, signing, or alteration of any
document contained therein."
31) This Court in the case of Siraj Uddin Laskar Vs. State of Assam, (2018) 5 GLR
165: 2017 (4) GLT 810 , had relied upon the finding of this Court in paragraph 20 of the case of Moosa (Md.) and Anr. Vs. State of Assam & Ors., 2007 (1) GLT 400 , wherein this Court had the occasion to interpret the provisions of Reg. 154(1)(c) of the Assam Land and Revenue Regulation, 1886. The relevant portion of paragraph 20 of the said judgment is quoted below:-
"20. The above aspects of the matter, on being agitated by the appellant in the first appeal as erroneous and contrary to the evidence on records, the first appellate court has reversed the findings of the trial court in respect of issue No. 1 and 5. Section 154(2) of the above quoted Regulation clearly says that jurisdiction in respect of matters enumerated under Section 154(1) shall rest with the revenue authorities only. Section 154(1)(c) bars the jurisdiction of civil court in matters relating to formation of the records of right, or the preparation, signing or alteration of a document contained therein. Section 154(1) exempts the jurisdiction of civil court relating to questions as to the validity or effect of any settlement, or as to whether the conditions of any settlement are still in force."
32) It is also seen that the learned trial Court had framed issue No.3 to the effect that "whether the plaintiff had purchased the suit land prior to purchasing of the same by the defendant Nos. 1 and 2?" As already indicated above, the prayer - (ii) in the plaint for declaration that the registered sale deeds No. 3406/96 ( sic. ought to have been 1995) and 3407/96 (sic. ought to have been 1995) by proforma respondent No.4 were collusive, void, Page No.# 20/27 illegal and cannot be given effect to and for directing the Senior Sub- Registrar, Kamrup, Guwahati (proforma defendant No.5, sic. should have been proforma respondent No.6) to cancel the same and to issue precept for such cancellation. It may be pertinent to state here that the two sale deeds bearing No.3407 and 3406 were executed and registered on 18.05.1995, but in prayer (ii) of the plaint, the said sale deeds are referred to as 3406/96 and 3407/96 and, as such there is no other option but to hold that the respondents No.1 and 2 had not even challenged or assailed the concerned sale deeds No.3406 and 3407 of the year 1995 dated 18.05.1995. It is also seen that no issue was framed as to whether the said two sale deeds were collusive, void in law or illegal. The learned Senior counsel for the respondents No.1 and 2 could not show from the judgment and decree passed by both the learned Courts below that there is any finding by the learned Court below to the effect that the registered sale deeds No.3406/95 (Ext.10/ Ext. Kha) and 3407/95 (Ext.9/ Ext. Ka) were collusive, void- in- law or illegal. Therefore, in the considered opinion of the Court in the absence of any specific finding by the learned first appellate Court, holding the said two sale deeds as collusive, void in law or illegal, the decree in terms of prayer No. (ii) of the plaint could not have been passed by the learned first appellate Court and moreover, by virtue of the first appellate decree, the sale deeds No.3406/95 (Ext.10/ Ext. Kha) and 3407/95 (Ext.9/ Ext. Ka) are not found to be affected because the specific prayer No. (ii) in the plaint is to cancel sale deeds No.3406/96 and 3407/95 but not sale deeds No.3406/95 (Ext.10/ Ext. Kha) and 3407/95 (Ext.9/ Ext. Ka).
33) It is also seen that in prayer (v) of the plaint, the prayer is to the effect for cancellation of the order dated 04.12.1995 in G.M. Case No.65/94-95 (G.M. is short form of Grant Mutation) and correction of land records order dated 28.12.1995 passed/ done by the proforma defendant No.7. However, the respondents No.1 and 2, while examining their PWs did not call for the relevant revenue records regarding mutation of the names of the appellants in respect of the suit land by order dated 04.12.1995 or the order dated 28.12.1995 for correction of records. Nonetheless, the DW-1 has exhibited a certified copy of order dated 04.12.1995 (Ext. Chha) and the Jamabandi (Ext.Ja) containing remarks dated 28.12.1995 for correction of records. From the cross-examination of DW-1, the learned senior Page No.# 21/27 counsel for the respondents No.1 and 2 could not show that any suggestion was even made to the DW-1 that the order of mutation was collusive or illegal or not based on the transfer of land-holders right by way of the two said deeds No. 3407 (Ext.9/ Ext. Kha) and 3406 (Ext.10/ Ext.Ka), both dated 18.05.1995. Moreover, the PWs had also not called for or exhibited the order of mutation as well as the order of correction of land records. Thus, in the absence of any finding by the learned first appellate Court that the said order of mutation dated 04.12.1995 (Ext. Chha) and the Jamabandi (Ext.Ja) containing remarks dated 28.12.1995 for correction of records was not sustainable or illegal, the passing of the decree in terms of prayer (v) by the learned first appellate Court is neither justified nor sustainable on facts and in law and, as such, perverse.
34) It is seen that in paragraph 5.3, the learned first appellate Court while deciding issues No.3 and 4 has given its finding as follows:
"....Also, in view of the evidence of the PWs that defendant No.1 was allowed to remain on the suit land as chowkidaar and he was the servant of the plaintiffs for cleaning their vehicle, it is clear that the defendant No.1 was the permissive occupier of the suit land and defendant No.2, being the brother-in-law of defendant No.1 was along with defendant No.1. Also, there is evidence on record to show that the defendants got the Holding No. mutated in their names surreptitiously by suppressing the materials facts and without giving any notice to the plaintiffs, But the learned Trial Court has failed to consider and appreciate the above material evidence on record and by discussing limited evidence on pick and choose basis has arrived at erroneous findings and decided the issues No.3 an d 4 in negative, which I do hereby set aside and hold that the plaintiffs had got the possession of the suit land after purchase by virtue of Ext-1 and had constructed their dwelling house (an Assam type house) thereon in the year 1966 for which the Holding No.407 was obtained in the names of the brothers (PW2 and Shri Kanak Das) of the plaintiff No.2 as there is no bar to obtain the same when the plaintiffs consented thereto and that the plaintiffs had purchased the suit land prior to purchasing of the same by defendant No.1."
35) In respect of the said finding, the learned first appellate Court did not give a categorical finding that the sale deed dated 01.08.1963 (Ext.1) was executed by the pattadar i.e. the recorded land- holder. As per the evidence of PW-1 and PW-5, the sale deed No.5023 dated 01.08.1963 (Ext.1) was executed and registered by Mukunda Ram Kachari (PW-5).
Page No.# 22/27 Admittedly, Mukunda Ram Kachari is not the recorded pattadar/ land-holder of the suit land. PW-5 had referred to khatian No.236, but the respondents No.1 and 2 did not exhibit the khatian and, as such, no proof has been tendered by the respondents No.1 and 2 in the suit that the name of the executor of Ext.1 was recorded in the khatian as an occupancy tenant. Moreover, the Ext.1 is not in favour of the respondent No.1, but it is favour of 4 purchasers, one of whom is the respondent No.2. In the suit, no proof has been tendered that the share of the four purchasers of land vide Ext.1 had been partitioned and that the suit land measuring 2 katha fell in her share. The respondent No.2 was not examined as witness to her transaction with vendor of Ext.1. Therefore, a mere registration of the sale deed of "delivery of possession" by a third party cannot amount to transfer of lawful right, title or interest of the suit land in favour of the respondent No.2 because the proforma respondent No.3 did not have any iota of title over the suit land, he did not have the status of land holder in terms of Regulation 8 of the Assam Land and Revenue Regulation, 1886 and his name in the khatian was not proved. Thus, there was no documentary proof by the respondents No.1 and 2 to show that the proforma respondent No.3 was having physical possession of the suit land. Accordingly, viewed from all angles, the proforma respondent No.3, i.e. the vendor of Ext.1 could not have passed a better title in respect of the suit land to the respondent No.2 by virtue of sale deed No.5023 dated 01.08.1963 (Ext.1). Therefore, while by virtue of Ext.1, a lawful and valid title or possession of suit land was not transferred, but by virtue of sale deed Nos.3407 (Ext.10) and 3406 (Ext.9) dated 18.05.1995, valid transfer of right, title, interest and possession of the suit land was made by the proforma respondent No.4, the owner of the suit land, in favour of the appellants. The said two sale deeds No. 3407 and 3406 (Ext.9/ Ext. Kha) and 3406 (Ext.10/ Ext.Ka) were exhibited without any objection by PW-1 and DW-1. In this regard it would be very relevant to quote paragraph 12 of the case of Manmatha Rajan Tribedi Vs. Gopal Krishna T.E. Co. (P) Ltd. and others, (2006) Supp GLT 718 "It is thus, clear that in order to acquire a valid right, title and interest over any immovable property valued Rs.100/- or above by way of purchase it should be effected by a registered instrument by payment or promising to pay the consideration money. The Transfer of Property Act does not lay down any condition that in order to acquire title over a property purchased by executing registered sale deed, the delivery of possession is a condition precedent. By virtue of the registered sale deed referred to above, the right, title and interest over the land mentioned in Page No.# 23/27 the Schedule of the sale deed and interest over the concerned land has been validly transferred in favour of the plaintiff/ appellant." Therefore, as deed No.3407 and 3406 (Ext.10/Kha and Ext.9/Ka) both dated 18.05.1995 in favour of the appellants were executed and registered first in point of time prior to execution and registration of sale deed No.3837 dated 02.06.1995 (Ext.8), the finding by the learned first appellate Court that the respondents No.1 and 2 (plaintiffs) had purchased the suit land prior to purchasing of the same by the appellant No.1 (defendant No.1) is ex facie perverse and not sustainable.
36) Moreover, in respect of issues No.3 and 4, the learned first appellate Court had given a finding that the appellants had got holding number mutated in their names surreptitiously by suppressing material facts and without giving any notice to the respondents No.1 and 2 (plaintiffs) is also not found sustainable because the respondents No.1 and 2 did not call for the records of the Guwahati Municipal Corporation (GMC for short) in respect of holding number issued to the respondents. The respondents had not led any evidence to show that their names were recorded in the land revenue records or records of rights and, no evidence has been led to show that the even in the absence of a valid title, the respondents No.1 and 2 were entitled to a notice from GMC before mutation of municipal holding in favour of the appellants, who were holding a valid right, title and interest over the suit land by virtue of ownership and who were in actual physical possession of the suit land and house standing thereon, the said finding by the learned first appellate Court regarding surreptitious mutation of municipal holding in favour of the appellants is perverse and not sustainable on facts and in law. Rather, for not calling the relevant records from the GMC, adverse presumption under Section 114 Illustration (g) can be drawn against the respondents No.1 and 2 that had such records been called, it would have gone against their interest.
37) In respect of issue No.5, on the basis of Ext.1, the learned first appellate Court held that the appellants were permissive occupiers of the suit land and that they had become illegal occupiers of the suit land on and from 24.08.1995. They demanded possession of the suit land on the basis of sale deeds (Ext.9 and Ext.10) and accordingly, by holding that the appellant were permissive occupiers of the suit land, there is no question of dispossessing Page No.# 24/27 the respondents No.1 and 2 from the suit land and house standing thereon and it was held that the appellant has not dispossessed the respondents No.1 and 2 and they were illegally staying on the suit land. However, the learned first appellate Court had failed to appreciate that notwithstanding whether or not the appellants were permissive occupiers of the suit land, but the appellants had acquired valid right, title and interest over the suit land by virtue of the sale deeds No.3407 (Ext.10/ Kha) and 3406 (Ext.9/ Ka). The learned first appellate Court had utterly failed to appreciate that the present suit is not for eviction of the appellants based on previous possession of the respondents No.1 and 2, but the suit is to extinguish the title of the appellants flowing from the said two sale deeds No. 3407 (Ext.10) and 3406 (Ext.9) and the order of mutation which follows acquisition of status of land holder. The documents exhibited by the respondents No.1 and 2 (plaintiffs) clearly reveal that sale deed No.3837 dated 02.06.1995 (Ext.8) in favour of the respondent No.1 was subsequent in point of time and that as on 02.06.1995, the proforma respondent No.4 had no right, title, interest or possession over any part of the suit land, as such, the said sale deed dated 02.06.1995 (Ext.8) did not convey a lawful and valid transfer the right, title, interest of possession of suit land to the respondent No.1. Thus, as there is no finding by the learned first appellate Court that the sale deeds No.3407 (Ext.10/ Kha) and 3406 (Ext.9/ Ka) are illegal or void ab initio, there is no way that the said sale deeds can be cancelled and, as such, the decree for canceling the said two sale deeds cannot be sustained and it is held that no case was made out before the learned first appellate Court to extinguish the lawful and valid right, title and interest of the appellants over the suit land, flowing from the sale deeds No.3407 (Ext.10/ Kha) and 3406 (Ext.9/ Ka).
38) The learned first appellate Court had failed to appreciate that in the habendum of the subsequent sale deed dated 02.06.1995, it contains narration of transfer of right and interest of the suit land, but surprisingly the narration regarding transfer of "title" is conspicuously absent. Thus, it is difficult to accept the submissions of the learned senior counsel for the respondents No.1 and 2 that a valid title was transferred by the proforma respondent No.4 in favour of the respondent No.1. The relevant portion of the habendum of the Sale Deed No. 3837 dated 02.06.1995 (Ext.8) is quoted below:-
Page No.# 25/27 "That in consideration of the sum of Rs.60,000/- (Rupees Sixty thousand) only paid by the purchaser to the Vendor, the receipt whereof the vendor has hereby acknowledged. The vendor hereby transfer by way of sale 2 (two) Kathas of land mentioned in the Schedule hereto, to have and to hold the same absolutely and forever and enjoy the same without interruption from the vendor or any other person or persons claiming under him together with all rights, interest, possession which the vendor enjoyed alongwith other covenants and indemnities which are hereby agreed to and assured the purchaser in respect of the land hereby sold."
39) The provisions of Regulation 147 of the Assam Land and Revenue Regulation, 1886 provides for the authorities to whom appeals shall lie in respect of orders passed under the said Regulation and as per Regulation 147(a), appeals from orders, original or accurate, passed by the Deputy Commissioner, Settlement Officer or Survey Officer lies to the Board of Revenue, Assam. Accordingly, by following the ratio laid down by this Court in the case of Moosa (Md.) (supra) and Siraj Uddin Laskar (supra), this Court has no hesitation to hold that the decree passed by the learned first appellate Court, more specifically the prayer Nos. (ii) and (v) of the plaint is not sustainable. Accordingly, the substantial question of law No.(i) is answered in the negative by holding that in view of the specific bar of jurisdiction of Civil Court under the provisions of Assam Land and Revenue Regulation, 1886 the learned first appellate Court cannot acquire jurisdiction to cancel the mutation order dated 04.12.1995 passed by the competent Revenue Authority in respect of suit land in G.M. Case No. 65/94-
95.
40) Thus, in view of the discussions above, the finding recorded by the learned first appellate Court in respect of issues No.3, 4 and 5 are not found sustainable on facts and in law and, as such, the finding of the learned first appellate Court in respect of issues No.3, 4 and 5 stands reversed by restoring the finding of the learned Munsiff No.3, Kamrup, Guwahati on the said issues. In light of the same, the decision of the learned first appellate Court on issues No.6 and 7 are also reversed and the decision of the learned trial Court on the said issues is restored. Resultantly, the respondents No.1 and 2 are not found entitled to Page No.# 26/27 any of the reliefs in the suit and the suit stands dismissed.
41) Before parting with the records, it is seen from the discussions above that the learned first appellate Court did not give its clear and categorical finding to the effect that the sale deeds No. 3406 (Ext.9/ Ka) and 3407 (Ext.10/ Kha) was illegal or void ab initio. There is no finding that the order of mutation was illegal. There is also no finding that Sale deeds No. 3406 (Ext.9/ Ka) and 3407 (Ext.10/ Kha) was subsequent to the execution of sale deed No. 3837 dated 02.06.1995 (Ext.8). However, the suit was decreed for all reliefs as prayed for in the plaint. In this regard, it is deemed appropriate that the first appellate Courts should be reminded of the mandate of Civil Procedure Code that the first appellate Courts are the last authority to revisit the facts and the first appellate proceedings is a continuation of the suit, as such, it is expected that the first appellate Court should give a categorical finding on the relevant issues and grant such relief to the concerned in accordance with law. In this case in hand, the learned first appellate Court ought not to have made one sweeping statement to the effect that the plaintiffs are entitled to all reliefs as prayed for, without specifying the reliefs granted. The Supreme Court of India, in the case of Kanailal & Ors. (supra), has reiterate the importance of complying with the provisions of Order XLI, R.31 CPC by re- stating that it is clear from mere reading of Rules 31 (a) to (d) that it makes it legally obligatory upon the appellate Court (both first and second appellate Court) as to what should the judgment of appellate Court contain, and it has also been clarified that so far as sub- clause (d) is concerned, it applied in those cases where the appellate Court had reversed the decree, in which case, the Court has to specify the reliefs to which the appellant has become entitled to as a result of the decree having been reversed in appeal at his instance.
42) The Court is conscious that ordinarily at the second appellate stage, re- appreciation of evidence on record is not envisaged, but in the present case in hand, the first appellate Court is found to have reversed the decree of dismissal of the suit passed by the learned trial Court and as the finding by the learned first appellate Court is found to be ex facie perverse, and that relevant and material evidence was not considered, re-appreciation of evidence at the second appellate stage was warranted in the present case in hand.
Page No.# 27/27
43) Thus, the appeal stands allowed and the decree passed by the learned first appellate Court stands reversed by restoring the decree of dismissal of the suit, as passed by the learned trial Court. Let a decree be prepared accordingly.
44) The LCRs be returned back.
JUDGE
Comparing Assistant