Gauhati High Court
On The Death Of Nechan Ch. Das His Legal ... vs Smti Bimala Bala Das & Ors on 5 February, 2013
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram &
Arunachal Pradesh)
RSA No. 80 of 2002
On the death of Nechan Ch. Das,
his legal heir-
1. Sri Gobinda Das (son).
2. Sri Aniruddha Das (son).
3. Smt. Lakhi Bala Das (daughter).
4. Smt. Himani Das (daughter).
5. Smt. Majani Das (daughter).
......Appellants.
-Versus-
1. Smt. Bimala Bala Das,
W/O late Amulya Prasad Das.
2. Sri Banamali Das,
S/O late Amulya Prasad Das.
3. Sri Khanindra Nath Das,
S/O late Amulya Prasad Das.
4. Smt. Ahuja Bala Das.
5. Smt. Rashmi Bala Das.
6. Smt. Chaya Bala Das.
7. Smt. Sabita Bala Das.
8. Smt. Manika Bala Das.
9. Smt. Bina Bala Das.
Sl. Nos.4 to 9 are daughters of late Amulya Prasad
Das, residents of Brindabanhati,
Barpeta Town, Dist.-Barpeta, Assam.
......Respondents.
Advocate(s) for the Appellants :
Mr. C. Bhattacharyya, Mr. S.S. Baruah, Mr. M. Sarma, Mr. D. Mazumdar, Ms. A. Ozah, RSA 80/2002 Page 1 of 1 Mr. M.A. Ozah.
Advocate(s) for the Respondents :
Ms. T. Goswami, Mr. G. Mishra, Mr. H. Chakraborty, Mr. R. Sarma, Mr. B.K. Das, Miss D. Bora.
BEFORE
THE HON'BLE MR. JUSTICE B.P. KATAKEY
Date of Hearing : 05.02.2013
Date of Judgment & Order : 5th February, 2013
JUDGMENT AND ORDER (Oral)
This appeal by the plaintiff is directed against the judgment and decree dated 19.01.2002 passed by the learned Civil Judge (Sr. Division), Barpeta, in Title Appeal No.13/1999 allowing the appeal preferred by the defendants in Title Suit No.95/1995 and setting aside the judgment and decree dated 29.04.1999 passed by the learned Civil Judge (Jr. Division), Barpeta, in the said suit, whereby and whereunder the suit of the plaintiff was decreed.
2. The appellant as plaintiff instituted the aforesaid suit, against the present respondent Nos.1, 2 and 3 and the predecessor-in- interest of the present respondent Nos.4 to 9, for declaration of his title by right of adverse possession and for confirmation of possession as well as for issuance of the permanent injunction restraining the RSA 80/2002 Page 2 of 2 defendants from dispossessing the plaintiff from the suit land measuring 4 bighas 4 kathas 3 lechas covered by dag No.62, K.P. Patta No.5 of village Jyoti, Mouza-Barpeta, in the district of Barpeta, more fully described in Schedule-B to the plaint, contending inter alia that he was the owner and possessor of 9 bighas 4 kathas 3 lechas of land described in Schedule-A to the plaint, out of which he sold 5 bighas of land to one Umesh Ch. Das and retained 4 bighas 4 kathas 3 lechas of land with him. It has further been pleaded in the plaint that the plaintiff borrowed Rs.3,500/- from his friend Amulya Prasad Das, the original defendant No.4, on 06.10.1976 to meet the expenses for treatment of his wife in Guwahati, by putting his signature in blank stamp paper, which, however, were subsequently converted to two sale deeds dated 06.10.1976 and 08.10.1976 (Exts.-Ka and Kha, respectively) and got the mutation, about which the plaintiff could know subsequently on 05.09.1977. According to the plaintiff, though he went to return the said amount of Rs.3,500/- to the defendant No.4, he refused to accept the same and has informed the plaintiff that he in fact has sold the land in the name of his sons and wife by the aforesaid two registered deeds. According to the plaintiff, he has never parted with the possession of the suit land and has been continuously, openly and adversely possessing the same against the interest of the defendants and as such he has acquired the prescriptive right over the suit land by adverse possession.
3. The defendants on receipt of the summons entered appearance and filed the joint written statement contending inter alia RSA 80/2002 Page 3 of 3 that the plaintiff by two sale deeds, being Exts.-Ka and Kha, transferred the entire suit land measuring 4 bighas 4 kathas 3 lechas and delivered possession on the date of execution of the aforesaid two sale deeds i.e. on 06.10.1976 and 08.10.1976, respectively. According to the defendants in the month of January, 1990 the plaintiff approached them expressing his intention to cultivate the land and accordingly the defendants allowed the plaintiff to cultivate the suit land on payment of paddy per bigha per year and accordingly the plaintiff entered into possession of the suit land in the year 1990. It is also the pleaded case of the defendants that on 15.09.1995 the plaintiff with a malafide intention of grabbing the land constructed a thatched house over the suit land and allowed his son and daughter-in-law to reside therein and though they have asked the plaintiff to remove the house and vacate the suit land, he refused to do so. The defendants, therefore, have contended that the plaintiff became the trespasser subsequently. The defendants, hence, also filed the counter claim for declaration of their right, title and interest over the suit land and also for recovery of khas possession by evicting the plaintiff from the suit land i.e. the land described in Schedule-B to the plaint.
4. The Trial Court on the basis of the pleadings of the parties framed the following issues for determination:-
(i) Whether there is cause of action for the suit?
(ii) Whether the suit is maintainable in its present form?
(iii) Whether the suit is under valued and the plaint is under stamped?RSA 80/2002 Page 4 of 4
(iv) Whether the suit is bad for non-joinder of necessary parties?
(v) Whether the suit is barred by limitation?
(vi) Whether the plaintiff acquired title over the suit land possessing it adversely against the true owner?
(vii) Whether the defendants have right, title and interest over the suit land?
(viii) Whether the plaintiff was in permissive possession of the suit land and the defendants are entitled for a decree of khas possession in respect of the suit land as prayed in their counter claim?
(ix) To what other relief or reliefs, if any, the parties are entitled?
5. During pendency of the suit, the defendant No.4, Sri Amulya Prasad Das, expired and in his place the present respondent Nos.4 to 9 have been substituted on 01.10.1996, as the right to sue survived on them.
6. The plaintiff in support of his case, examined 9(nine) witnesses including himself and also proved certain documents, which are marked as exhibits. The defendants have also examined 3(three) witnesses including the defendant No.1 and exhibited certain documents which are also marked as exhibits.
7. The Trial Court upon appreciation of the evidence on record and on hearing the parties decreed the suit of the plaintiff, while declaring the right, title and interest of the defendants, by holding that the plaintiff has acquired the title over the suit land by possessing the RSA 80/2002 Page 5 of 5 same openly, continuously and adverse to the interest of the lawful owner i.e. the defendants for more than 12 years.
8. Being aggrieved the defendants preferred Title Appeal No.13/1999, which has been allowed by the First Appellate Court by setting aside the judgment and decree passed by the Trial Court. The First Appellate Court has held that the plaintiff could not prove the acquisition of the prescriptive right over the suit land by adducing the cogent and reliable evidence and since the plaintiff's son and daughter- in-law claim to be in possession of the suit land, the suit is bad for non- joinder of necessary party i.e. the son and the daughter-in-law and their possession cannot be treated as the possession of the plaintiff over the suit land. Hence this appeal.
9. The appeal was admitted for hearing vide order dated 17.05.2002 on the following substantial questions of law:-
(i) Whether the respondents have lost their title in respect of the suit land for not bringing any action within the period of twelve years in view of Article 65 of the Limitation Act?
(ii) Whether the learned Lower Appellate Court was right in reversing the findings on issue number 4 holding that the suit is bad for non-joinder of necessary parties under Order 1 Rule 9 of CPC?
(iii) Whether a party against whom no relief is claimed or any cause of action arose can be treated as necessary party to the suit?
(iv) Whether the judgment of the learned Lower Appellate Court is perverse?RSA 80/2002 Page 6 of 6
10. I have heard Mr. D. Mazumdar, learned counsel for the appellant and Mr. H. Chakraborty, learned counsel appearing for the respondents.
11. Mr. Mazumdar, learned counsel appearing for the appellant referring to the First Appellate Court's judgment dated 19.01.2002 passed in Title Appeal No.13/1999, has submitted that though the Trial Court upon discussion of the evidence on record, both oral and documentary, has passed the judgment decreeing the suit of the plaintiff, the First Appellate Court has set aside the judgment and decree passed by the Trial Court and allowed the appeal preferred by the defendants, without discussing the entire evidence on record, though it is bound to discuss all the evidence on record, it being the final Court on facts. The learned counsel has also drawn the attention of this Court to the deposition of DWs-1 and 2, whose entire evidence, according to the learned counsel, have not been discussed by the First Appellate Court while reversing the judgment and decree passed by the Trial Court. The learned counsel, therefore, submits that the judgment passed by the First Appellate Court reversing the judgment and decree passed by the Trial Court is perverse, the same having been passed without considering entire evidence on record. Mr. Mazumdar submits that in view of the above, the judgment and decree passed by the First Appellate Court needs to be set aside and the matter may be remitted to the First Appellate Court for deciding the appeal afresh. RSA 80/2002 Page 7 of 7
12. Mr. Chakraborty, the learned counsel appearing for the respondents, on the other hand, supporting the judgment and decree passed by the First Appellate Court has submitted that it is evident therefrom that though the plaintiff had prayed for declaration of his right, title and interest over the suit land contending that he has acquired the prescriptive right of adverse possession, he could not substantiate such claim by adducing any cogent and reliable evidence. The learned counsel further submits that it is evident from Exts.-Ka and Kha sale deeds that the possession of the suit land was handed over to the purchasers i.e. the defendant Nos.1 to 4 and as such the First Appellate Court has rightly disbelieved the plaintiff's story that he never handed over the possession of the suit land to the defendants on execution of the said sale deeds. It has also been submitted that since the plaintiff has claimed the right over the suit land by adverse possession, the burden lies on him to prove the date when he came into possession and from which date his possession has become hostile to the interest of the lawful owner i.e. the defendants.
13. I have considered the submissions advanced by the learned counsel for the parties and also perused the judgments and decrees passed by both the Courts below, apart from the materials available on record.
14. The Trial Court has decreed the suit of the plaintiff by holding that he has acquired the right, title and interest over the suit land by adverse possession because of his open, continuous and hostile RSA 80/2002 Page 8 of 8 possession over the suit land. The Trial Court while recording such finding, discussed all the evidence adduced by the parties, both oral and documentary.
15. It appears from the judgment and decree passed by the First Appellate Court that it has reversed the judgment and decree passed by the Trial Court and set aside the decree passed without discussing all the evidence on record, more particularly the entire evidence of DWs-1 and 2 and effect of their deposition during cross- examination.
16. The First Appellate Court being the final Court on facts, it has to discuss all the evidence on record, both oral and documentary, more so, when the First Appellate Court reverses the finding recorded by the Trial Court and set aside the judgment and decree passed. In the instant case, as discussed above, all the evidence on record have not been discussed by the First Appellate Court.
17. That being the position, the judgment and decree passed by the First Appellate Court is set aside and the matter is remitted to the First Appellate Court for deciding Title Appeal No.13/1999 afresh and on the basis of the evidence already adduced by the parties, which shall be done within a period of 45 days from the date of appearance of the parties as fixed by this Court by this judgment. The parties are directed to appear before the First Appellate Court i.e. the Court of the learned RSA 80/2002 Page 9 of 9 Civil Judge (Sr. Division) (now Civil Judge), Barpeta on 28.02.2013 for taking further order from the said Court.
18. The Registry is directed to send down the records to the First Appellate Court forthwith so as to reach the said Court on or before 22.02.2013.
19. The appeal is accordingly allowed to the extent indicated above. No cost.
JUDGE Roy RSA 80/2002 Page 10 of 10