Gauhati High Court
Babul Bora And Ors vs Ghana Kanta Bordoloi And Anr on 13 August, 2015
Author: A.K. Goswami
Bench: A.K. Goswami
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
RSA No.149/2005
1. Sri Babul Bora,
S/o. Late Bogai Bora.
2. Sri Naren Bora,
S/o. Late Bogai Bora.
Both are residents of Bhokotia Gaon, Dergaon Mauza
and at present residing at North Lakhimpur Town,
District - Lakhimpur.
3. Smti. Dharmewari Bora,
Widow of Late Baliram Bora,
4. Sri Bashob Bora,
S/o. Late Baliram Bora.
Both are residents of Bhokotia Gaon, Dergaon Mauza
District - Golaghat.
....... Appellants/Defendants
-Versus-
1. Smti. Ghanakanti Bordoloi,
Daughter of Late Phatik Bordoloi,
Resident of Bhokatia Gaon, Dergaon Mauza,
District - Golaghat.
......Respondent No.1
2. Sri Thireswar Bora,
S/o. Late Phopai Bora,
Resident of Joraguri Village, Missamara Mauza,
District - Golaghat.
......Pro forma Respondent No.2
BEFORE
THE HON'BLE MR. JUSTICE A.K. GOSWAMI
For the appellants : Mr. Mr. C. Baruah, Sr. Advocate.
For the Respondents : Mr. Mr. D. Das, Advocate.
RSA No.149/2005 Page 1 of 7
Date of Hearing : 13.08.2015.
Date of Judgment : 13.08.2015.
JUDGMENT & ORDER
(ORAL)
Heard Mr. C. Baruah, learned Senior Counsel for the appellants/defendants and Mr. D. Das, learned counsel for the respondents/plaintiffs.
2. The second appeal by the plaintiffs is preferred against the judgment and decree dated 21.03.2005 passed by the learned District Judge, Golaghat in Title Appeal No.1/2004, dismissing the appeal and affirming the judgment and decree dated 29.10.2003 passed by the learned Civil Judge (Senior Division), Golaghat in Title Suit No.14/2000, whereby the suit of the plaintiffs was dismissed.
3. The plaintiffs filed the suit praying for, amongst others, right, title and interest in respect of 3 plots of land as described in the schedule to the plaint. Schedule- A refers to land measuring 2 Bigha 3 Katha 5 Lecha, out of which, 1 Bigha 0 Katha 15 Lecha is covered by Dag No.486 and 1 Bigha 2 Katha 10 Lecha covered by Dag No.487, both the Dags being of Periodic Patta No.232. The total land in Schedule-B in Periodic Patta No. 97 measures 1 Bigha 3 Katha 17 Lecha, out of which, 3 Katha 19 Lecha is in Dag No.148, 2 Katha 10 Lecha in Dag No.295 and 2 Katha 8 Lecha in Dag No.308. Schedule-C measures 1 Bigha 2 Katha covered by Dag No.307 of Periodic Patta No.103. All the plots of land in Schedule-A,B and C is of Hahpani Gaon in Dergaon Mouza. Recovery of khas possession from the plots of land in Schedule-A,B and C measuring 5 Bigha 2 Katha 2 Lecha in total was also prayed for. The plaintiffs also sought for a declaration of a sale-deed allegedly executed on 14.05.1997 by the plaintiff Nos.1,2 and 4 and the pro forma defendant No.2 as fraudulent and also for cancellation of mutation of the name of defendant No.1. Damage of Rs.5,000/- with interest at the rate of 12% per annum from the date of suit to the date of payment, cost of the suit etc. were also prayed for.
4. The case projected in the plaint is that the suit land is the ancestral property of the plaintiffs and they owned and possessed the same and on 06.09.1999, the defendant No.1 trespassed upon the land falling under Periodic Patta No.232, cut certain standing trees and in the month of October, 1999, the defendant No. 1 ploughed the land despite protest made by plaintiff No.3, proclaiming to the villagers that she had purchased the said land from the owners.
RSA No.149/2005 Page 2 of 75. On inquires being made, plaintiffs came to learn that the defendant No.1 had fraudulently got a forged sale-deed executed on 14.05.1997, allegedly by plaintiffs Nos.1,2,4 and pro forma defendant No.2. The details of various transgressions made by the defendant No.1 in the form of cutting trees etc. have also given.
6. After filing a written statement, defendant No.1 filed an amended written statement. It was averred that there was no cause of action and the suit is barred by law of limitation as well as bad for non-joinder of necessary parties for not impleading elder sister of the defendant No.1, Smti Sonpahi Bordoloi, who is also a co-pattadar in respect of Periodic Patta No.97 and also for not impleading Jagat Hazarika and Atul Borah, who are in possession of Dag Nos.295 and 308 of Periodic Patta No.97. It is also averred that suit land in Periodic Patta No.97 under Dag No.148 is barred by res judicata in view of decision in Title Suit No.14/60, instituted by the father of defendant No.1, Late Phatik Ch. Bordoloi against the fathers of plaintiffs Nos.1 and 2, Late Bogai Bora and husband and father of the plaintiff Nos.3 and 4, respectively, Late Baliram Bora. Judgment in the suit was rendered on 11.05.1961, which was also affirmed in Title Appeal No.35/1961. The pleaded stand in the written statement is that plaintiffs and the pro forma defendant No.2 were not joint owners in respect of the suit land and they had never been in possession of the same and the date of occurrence as presented by the plaintiffs is fictitious. It is stated that land under Dag No.148, 295, 308 and 302 of Periodic Patta No. 97 is the ancestral property of the defendant No.1 and her elder sister Smti. Sonphai Bordoloi, and they inherited the same from their father, Late Phatik Ch. Bordoloi @ Kalita. The suit land in Periodic Patta No.232 was earlier comprised in Annual Patta No.56 and 36. Dag No.486 in Annual Patta No.56 measured 1 Bigha 0 Katha 15 Lecha and Dag No.487 in Annual Patta No. 36 measured 1 Bigha 2 Katha 10 Lecha and the said plots of land were all along in their possession since the time of their father who died in the year 1972. The plaintiffs had surreptitiously got the Annual Patta land converted to Periodic Patta No.232 by an order dated 02.03.1994. The land comprised under Dag No.307 of Periodic Patta No. 103 was also in their peaceful possession. Though the plaintiffs had left for North Lakhimpur more than 35 years ago, they got their names mutated illegally and therefore, she had engaged a petition writer named Khagen Bora to set right the anomalies. It is admitted that she had no knowledge of the deed and it was Khagen Bora who had manufactured the forged sale-deed. It is stated that it was not necessary for her to obtain any sale-deed from the plaintiffs. Reference was also made to 3 sale-deeds by which her father had purchased 3 Katha 19 Lecha in Dag No.148(old 431), 2 Katha 10 Lecha covered by Dag No.295 (old 191) and 2 Katha 8 lecha covered by Dag No.308(old 464) under Periodic Patta No.97(old 35). It is pleaded that in respect of lands covered by Periodic Patta No.232 and RSA No.149/2005 Page 3 of 7 103, they had acquired right, title and interest as they had been in possession of the land for more than 30 years adversely to the interest of the plaintiffs and the pro forma defendant No.2.
7. The learned Trial Court, on the basis of the pleadings, had framed the following issues:
"1. Whether there is any cause of action for the suit and whether suit is false and vexatious ?
2. Whether the suit is bad for non-joinder of necessary parties ?
3. Whether the suit is barred by the principle of res-judicata ?"
4. Whether the Sale Deed dated 14.05.97 executed by the plaintiff Nos.1,2,4 and the pro forma defendant No.2 in favour of the defendant No.1 is forged ?
5. Whether the said Sale Deed is liable to be declared void and cancelled ?
6. Whether the suit land is the ancestral property of the defendant No.1 and her sister and whether they are in possession of the same for a long time ?
7. Whether the plaintiff Nos.1,2 and 4 and pro forma defendant No.2 have subsisting right and title in respect of the suit land ?
8. Whether defendant No.1 wrongfully trespassed upon the land under P.P. No.232 and illegally removed the trees standing thereon and thereby caused damage to the plaintiff ?
9. To what relief, if any, the plaintiffs are entitled ?"
8. During the course of trial, plaintiffs examined 6(six) witnesses and the defendant examined 3(three) witnesses.
9. The learned Trial Court decided issue Nos.2,6,7 and 8 against the plaintiffs. Issue No. 2 was decided against the Plaintiff on the ground that Sonpahi Bordoloi, sister of the defendant No.1 was not made a party to the proceedings. The learned Trial Court, however, in view of the stand of the defendant No. 1, held that the plaintiffs are entitled to a decree for cancellation of sale-deed dated 14.05.1997 and accordingly, the same was declared as void and cancelled, and accordingly, mutation made in favour of the defendant No.1 effected on 04.12.1997 on the basis of said sale-deed was also cancelled. Apart from the above, the plaintiffs were held not entitled to any other relief.
10. The learned lower Appellate Court also dismissed the appeal.
RSA No.149/2005 Page 4 of 711. This appeal was admitted by this Court to be heard by an order passed on 22.07.2005 on the following substantial questions of law:
"1. Whether the cancellation of the sale deed and mutation of the respondent No.1 made on the strength of the said sale deed, the declaration of the title over the suit land in favour of the defendant No.1 is justified ?
2. Whether in absence of pleading and proof, the Court below is justified in holding that the defendant No.1 has good title over the suit land as she is possessing the same adversely to the plaintiffs ?
3. Whether in the earlier suit instituted by the father of the defendant No.1 against the predecessor in interest of the appellants involving only Dag No.148 in P.P. 97, which went in favour of the father of the defendant No.1, the learned Court below is justified in holding that the defendant No.1 has good title over the suit land, which involve several dags and several pattas including the dag No.148 and P.P. 97 ?
4. Any other question/questions, which may be allowed to be raised by the Court at the time of hearing ?"
12. At the very outset, taking a cue from substantial question of law No.4, Mr. Baruah has submitted that the learned lower Appellate Court did not analyse the evidence on record and also did not examine the import of the exhibits and therefore, a substantial question of law may be formulated as to whether the impugned judgment of the learned lower Appellate Court is vitiated because of non-compliance of order 41 Rule 31 C.P.C. It is submitted by Mr. Baruah that if this Court holds that the impugned judgment of the learned lower Appellate Court is vitiated, there will be no occasion for this Court to consider the other substantial questions of law formulated earlier and the case has to be remanded to the learned lower Appellate Court for fresh disposal.
13. Mr. Das, learned counsel appearing for the respondent no.1, in his usual fairness, has submitted that such a substantial question of law does arise as the impugned judgment of the learned lower Appellate Court does not reflect discussion on the evidence on record to reach the conclusions.
RSA No.149/2005 Page 5 of 714. Having heard the learned counsel for the parties and on perusal of the impugned judgment of the learned lower Appellate Court, it seems to the court that a substantial question of law also arise to the following effect:
"Whether the impugned judgment of the learned lower Appellate Court is vitiated in view of the same being not in conformity with Order 41 Rule 31 C.P.C.?"
15. The aforesaid substantial question of law is formulated in view of the fact that there is a requirement to formulate a substantial question of law before an issue is debated.
16. Mr. Baruah has submitted that without adverting to the evidence on record, the learned lower Appellate Court had made a very cryptic finding which is perverse to the evidence on record that suit land covered by Periodic Patta Nos.97 and 103 does not stand in the name of the plaintiffs. There was no discussion whatsoever with regard to the issue of non-joinder of necessary parties also. Without examining the exhibited documents, the learned lower Appellate Court also made an omnibus statement that in view of decree in Title Suit No.14/1960, the suit land is the ancestral property of the defendant No.1, though Title Suit No.14/1960 was not filed in respect of the entire suit land and the learned Trial Court also, while deciding issue No.3, had recorded that it cannot be said that the particular land for which decree was given is the suit land.
17. Mr. Das has also submitted that the case may be remanded back to the learned lower Appellate Court as the learned lower Appellate Court has not discussed the evidence on record.
18. The learned lower Appellate Court being the final court of facts, it is incumbent on the appellate court to consider the evidence adduced by the parties and documents exhibited. In a case when the learned lower Appellate Court agrees with the view of the learned Trial Court on the evidence, it may not be necessary for the learned lower Appellate Court either to reiterate the reasoning given by the learned Trial Court or to reaffirm the effect of the evidence. In such a case, expression of general agreement with the reasoning given in the judgment which is under challenge before the learned lower Appellate Court would normally suffice. In the instant case, the learned lower Appellate Court did not refer to the reasoning given by the learned Trial Court and therefore, it cannot be said that the learned lower Appellate Court had affirmed the reasoning given by the learned Trial Court. The learned lower Appellate Court independently sought to arrive at the findings but while attempting to RSA No.149/2005 Page 6 of 7 do so, an analysis of the evidence on record had not been undertaken and therefore, I consider it appropriate to remand the case to the learned lower Appellate Court for disposal in accordance with law after hearing the parties bearing in mind the observations hereinabove.
19. As the appeal is remanded to the learned lower Appellate Court, this court has refrained from dealing with the substantial questions of law framed on 22.07.2005. It is also made clear that this court has not recorded any finding whatsoever on any of the issues and the observations made are only for the purpose of arriving at the satisfaction as to whether the case is required to be remanded to the learned lower Appellate Court.
20. In view of the above, the impugned judgment of the learned lower Appellate Court is set aside and the case is remanded to the learned lower Appellate Court for fresh disposal in accordance with law after hearing the parties. When a case is remanded for fresh disposal to the learned lower Appellate Court after hearing the parties, generally, the court fixes date of appearance before the lower Appellate Court and this Court also wanted to fix a date of appearance before the learned lower Appellate Court. However, Mr. Das, learned counsel for the respondents submits that there is no contact with his clients since the time of filing of the Vakalatnama and therefore, this Court may direct the learned lower Appellate Court to issue notice to the parties for the purpose of hearing of the case. Mr. Baruah, learned Senior Counsel for the appellants does not oppose the prayer of Mr. Das and in view of the above, the learned lower Appellate Court is directed to issue notice to the parties and decide the case as expeditiously as possible and, at any rate, within a period of 4(four) months from the date of appearance of the parties. No cost.
21. Registry will send back the records forthwith.
JUDGE Benoy RSA No.149/2005 Page 7 of 7