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2007 DIGILAW 196 (GAU)

Lal Mohan Nath v. Monorama Sarma

2007-03-08

I.A.ANSARI

body2007
1. This second appeal has arisen out of the judgment and decree, dated 29.4.2003, passed, in Title Appeal No. 27/2000, by the learned Civil Judge (Senior Division), Karimganj, dismissing the appeal and upholding thereby the judgment and decree, dated 25.5.2000, passed by the learned Civil Judge (Junior Division) No. 1, Karimganj, in Title Suit No. 65/1997, whereby the plaintiff/respondent's suit stood decreed. 2. The material facts and various stages, which have given rise to the present appeal, may, in brief, be set out as follows:- The plaintiff respondent herein instituted Title Suit No. 65/1997 aforementioned, his case being, briefly stated, thus: By registered deed, dated 20.2.1956, the plaintiff purchased the land, described in Schedule-1 to the plaint with dwelling house standing thereon, which is described in Schedule 3 to the plaint, from one Dashraj Sharma under whom the plaintiff have been a tenant since the year 1950. After the said purchase, the plaintiff occupied and continued to possess the western part of the land with the house standing thereon, as described in Schedule 3 aforementioned, and rented out the eastern part of the land of Schedule 1 to different traders at different times and, lastly, on the request of the defendant No. 1 (that is, the present appellant No. 1), the plaintiff allowed the defendant No. 1 to stay as a licensee in the suit room, which stood on the eastern part of the said land and is described in Schedule-4 to the plaint. However, in the year 1973, when Sub-Divisional Officer, Karimganj, served notices on the plaintiff disputing his title to the land of Schedule-1 including the land of Schedule-3, which forms part of land of the Schedule-1, the plaintiff instituted Title Suit No. 57/73 against the State of Assam and the defendant No. 1, seeking, inter alia, declaration of his title to the land of Schedule-1 including the land and the house mentioned in Schedule 3 and confirmation of his possession over the said plot through defendant No. 1 as his licensee. Though the defendant No. 1 contested the said suit, the suit was decreed in plaintiffs favour and in this decree, the defendant No. 1 was declared to be a licensee under the plaintiff. Though the defendant No. 1 preferred an appeal against the said decree, the appeal was dismissed and the second appeal, preferred by the defendant No. 1, also ended in dismissal. Though the defendant No. 1 preferred an appeal against the said decree, the appeal was dismissed and the second appeal, preferred by the defendant No. 1, also ended in dismissal. Though the plaintiff had asked the defendant No. 1, on 1.1.1987, to hand over the possession of the suit house, described in Schedule-4, as the plaintiff urgently required the house, the defendant No. 1 not only refused to hand over the possession of the suit house to the plaintiff, but he also, in collusion with the other defendants in the suit, dispossessed the plaintiff, on 16.2.1996, from the land of Schedule-3. With the help of his subsequent suit, the plaintiff sought for, inter alia, declaration of his rights, title and interest over the land of Schedule-3 and for recovery of khas possession thereof by evicting the defendants there from. 3. The defendants contested the suit contending, inter alia, that the suit was not maintainable under section 11 of the Code of Civil Procedure and also that the suit was barred by limitation, the case of the contesting defendants being, in brief, thus: The grand-uncle of defendant No. 1 was the owner and possessor of the suit land by right of inheritance and on his father's death, defendant No. 1's father inherited the suit land and the said house along with other properties and, on the death of his father, the defendant No. 1 has been in possession and enjoyment of the suit property. It is not the defendant No. 1, but the plaintiff, who is a licensee under the defendant No. 1, in the western part of the suit property. So far as the eastern part of the suit property is concerned, the defendant No. 1 have let out the houses, standing thereon, to different persons as tenants and defendant No. 1 has, thus, been in possession and enjoyment of the suit property. Defendants accordingly sought for dismissal of the suit. 4. Following issues were framed for determination in the suit: "1. Whether the plaintiff has cause of action for the suit ? 2. Whether the suit is maintainable and the court has jurisdiction to try this suit ? 3. Whether the suit is barred by limitation ? 4. Whether the plaintiff has right, title, interest and possession over the suit land ? 5. Whether the plaintiff is entitled to get a decree as prayed for ? 6. 2. Whether the suit is maintainable and the court has jurisdiction to try this suit ? 3. Whether the suit is barred by limitation ? 4. Whether the plaintiff has right, title, interest and possession over the suit land ? 5. Whether the plaintiff is entitled to get a decree as prayed for ? 6. To what reliefer reliefs is the plaintiff entitled ?" 5. Upon recording evidence, the learned trial court decided the issues in favour of the' plaintiff. The suit was decreed accordingly. Aggrieved by this decree, the defendants preferred an appeal. As the appeal has failed to yield any favourable result to the defendants, they are, now, before this court in this Second Appeal. 6. I have heard Mr. J.P. Sarma, learned counsel for the defendants/ appellants and Mr. N. Dhar, learned counsel for the plaintiffs/ Respondents. 7. This appeal has been admitted for hearing on the following questions as substantial questions of law: "(a) Whether both the courts below are justified in holding that the suit was instituted within limitation as provided for under limitation Act? (b) Whether both the courts below were justified in holding that the principles of res judicata bars the appellants /defendants from raising the granting the issue of limitation ? (c) Whether the findings of both the courts below that the appellants/ defendants disposed the respondents/plaintiffs in 1994 from Schedule 3 is based on any legal evidence on record ? (d) Whether findings of both the courts below is perverse and not sustainable in law ? (e) Whether both the courts below exceeding their jurisdiction and erred in law in passing Judgment and Decree in respect to western portion of the suit house ?" 8. While considering the questions, which have framed, in this appeal, as substantial questions of law, what needs to be noted is that a mere question of law cannot be regarded as substantial question of law. In order to maintain a second appeal, a substantial question of law must be raised. A substantial question of law does not, however, mean a substantial question of law of general importance, but a substantial question of law, which has arisen for determination of the effective rights of the parties concerned. In order to maintain a second appeal, a substantial question of law must be raised. A substantial question of law does not, however, mean a substantial question of law of general importance, but a substantial question of law, which has arisen for determination of the effective rights of the parties concerned. In order to, therefore, succeed in a second appeal, the appellant is not merely required to show that the decree suffers from error of facts and/or law, but must also show that the error adversely effects the interest of the appellant. A mere error of fact or law cannot, thus, form basis for challenge of a decree in second appeal. Unless, therefore, an appellant, in a second appeal, can show that a question of fact or a question of law has been decided erroneously and that such an error has caused or is likely to cause prejudice to his right, the second appeal would not be maintainable, for, entertaining such an appeal would mean a mere academic exercise with no substantial benefit to the parties concerned. 9. Bearing in mind what has been indicated above, when one turns to the facts of the present case, it becomes more than abundantly clear that while the case of the plaintiff is that he is the owner of the entire suit land, that the house, standing on the suit land, belongs to the plaintiff, that the defendant No. 1 is his licensee on the eastern part of the suit land and that after the decree, declaring the defendant No. 1 as a licensee, had been granted by the court, the defendants dispossessed him from the entire suit land, the case of defendant No. 1 is that he is the owner of the property by right of inheritance and that the plaintiff is a licensee on the western part of the land. What, however, needs to be carefully noted is that while both the parties claimed title to the suit land, the case of the plaintiff was that eastern part of the land had been in the possession of the defendant No. 1 and that the defendant No. 1 had dispossessed him from the western part of the land too. What, however, needs to be carefully noted is that while both the parties claimed title to the suit land, the case of the plaintiff was that eastern part of the land had been in the possession of the defendant No. 1 and that the defendant No. 1 had dispossessed him from the western part of the land too. As against this, the case of the defendant No. 1 was that the western part of the land had been in the possession of the plaintiff as a licensee of the defendant No. 1 and that the eastern part of the land had been under the tenants of the defendant No. 1. It is, thus, clear that the defendant No. 1 never claimed that the western part of the land is in his actual possession; rather, his case was that he has been in constructive possession of both eastern and western part of the land through his tenants and licensee respectively. 10. What is, now, of immense importance to note is that in Title Suit No. 57/73, the plaintiffs title has been declared over the entire suit land, which is the land of Schedule-1 of the present suit too. In the face of this fact, there could have been no escape from the conclusion that the plaintiff was the title-holder of the entire land of Schedule 1 of the present plaint and defendant No. 1 was a licensee on the eastern part of the said land. The effect of the decree, passed in Title Suit No. 57/73 aforementioned, was that the plaintiff was the owner and title holder of the entire land of Schedule 1 including the land on which stood the house, which has been in occupation of the defendant No. 1, as a licensee. 11. What clearly emerges from the above discussion is that when the entire land belongs to the plaintiff, he is already in possession of the western part of the said land and the defendant No. 1 is a licensee on the eastern part of the said land, the defendant No. 1 could not have been allowed to remain in possession of any part of the said land, when his license stood terminated on the demand raised by the plaintiff. Though the defendant No. 1 sought to take the plea of adverse possession, the fact remains that unless proved otherwise, a licensee is always a licensee until the time his license stands terminated. When defendant No. 1 had already been declared as a licensee, the question of treatening the possession of the defendant No. 1 as adverse possession could not have arisen. 12. In the facts and circumstances indicated herein above, the decree granted by the learned trial court cannot be said to have been suffering from any infirmity, factual or legal. The learned appellate court too examined the whole evidence on record and assigned cogent reasons for upholding the decree passed by the learned trial court. Upon, now, considering the materials on record, I do not find that any question of law, far less substantial question of law, can be said to have been raised for determination in the present appeal. This appeal is, thus, wholly without merit and must necessarily be dismissed. 13. In the result, and for the reasons discussed above, this appeal fails, and the same shall accordingly stand dismissed. 14. Send back the LCR.