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2008 DIGILAW 51 (GAU)

Dilip Goswami v. Anita Goswami

2008-01-24

ANIMA HAZARIKA

body2008
JUDGMENT A. Hazarika, J. 1. The defendants in the suit are appellants before this Court. The plaintiff filed a suit being Title Suit No. 2 of 2004, for declaration, recovery of possession and permanent injunction. The plaintiff in the meanwhile died on 19.10.2005 and his legal heirs were duly substituted. The said suit was filed on behalf of the plaintiff by a Power of Attorney holder Sri Jyoti Prasad Dutta. In all 5(five) reliefs were prayed in the suit which are quoted hereunder. (i) declaring the plaintiff's right, title and interest over the suit property as described in the Schedule -"B" hereto. (ii) that the eviction of the defendant and any other person/persons in their behalf, if found with them from the suit property and for restoration of khas and vacant possession thereof to the plaintiff, if necessary by breaking open the lock on the door of the suit house. (iii) for permanent injunction and restraining the defendants, their agents and any other person/persons in their behalf from entering into and occupying the suit property or any part thereof. (iv) for costs of the suit. (v) for any other relief/reliefs deemed just, fair and proper. 2. The dispute as averred by the plaintiffs, relates to a plot of land measuring 2(two) kathas, 10(ten) lechas covered by Dag No. 5465 (old), 5582 (new) P.P. No. 61 (old), 213(new) of Block No. 3 of Jorhat Town with the houses therein which has been fully described in Schedule-"A" of the plaint. In the said schedule land one RCC building on its western part and one 'L' patterned 'Assam Type House' standing thereon which has been described in Schedule-"B" land wherefrom the decree of eviction has been sought. The basis of claim of a decree as sought for rests on being the owner of the entire 'A Schedule' and 'B Schedule' of land. 3. The basis of claim of a decree as sought for rests on being the owner of the entire 'A Schedule' and 'B Schedule' of land. 3. In order to understand the claim for a decree sought for by the plaintiffs, it would be appropriate to quote both 'A' and 'B' Schedule which is quoted hereunder: Schedule-'A' The plot of land measuring 2(two) kathas 10(ten) lechas with one RCC building on its western part and one 'L' pattern Assam Type House' on its eastern part covered by Dag No. 5465 (old), 5582 (new) of P.P. No. of 61 (old), 213 (new) of Block 3 of Jorhat town bounded: On the East: By the compound wall of J.B. College On the West: By Phukan Ali. On the North: By the land and the house of Sri Dhruba Phukan On the South: By Srinath Kutir Mess and Sri Anjan Phukan. Schedule-'B' The 'L' Patterned Assam Type House consisting of 4(four) rooms with C.I. sheet roofing measuring 12 (twelve) feet x 14 (fourteen) feet each except the middle room measuring 14 (fourteen) feet x 16(sixteen) feet with attached bath room and fitted with over head tank with an out house standing on the eastern part of the plot of the land measuring 2(two) kathas, 10(ten) lechas covered by Dag No. 5465 (old), 5582 (new) of P.P. No. 61 (old), 213 (new) of Block No. 3 of Jorhat town within the following four boundaries: North: By Sri Dhruba Phukan. South: By Sri Anjan Phukan. East: By compound wall of J.B. College West: By the other part of the land covered by Dag No. 5465 (old), 5582 (new) of P.P. No. 61 (old), 213 (new) of Block No. 3 of Jorhat town with the RCC building standing thereon. 4. The trial proceeded ex-parte against the defendant No. 1 since he did not contest the suit. But, however, the defendant No. 2, the wife of the defendant No. 1 contested the suit by filing written statement disputing the pleadings of the plaintiffs except admitting the averment that the plaintiff is the owner of the RCC building but denied the fact from where the decree is sought, i.e. L pattern house standing thereon in Schedule-'A' of the plaint. 5. 5. On the pleadings of the parties, the Trial Court framed as many as 8(eight) issues, which are quoted hereunder: (i) Whether there is any cause of action of the suit? (ii) Whether the suit is maintainable? (iii) Whether the suit is barred by law of res judicata? (iv) Whether the suit is barred by law of adverse possession? (v) Whether the plaintiff has right title and interest over the suit property? (vi) Whether the plaintiff is entitled to evict the defendants from the suit property and for khas possession of the land? (vii) Whether the plaintiff is entitled for granting permanent injunction? (viii) Whether the parties are entitled to get relief/reliefs as prayed for? 6. By way of oral evidence, the Attorney of the plaintiffs stepped in the witness box and exhibited documentary evidence by filing affidavit as required under Order 18 Rule 4 of the Code of Civil Procedure who was cross examined in detail. The defendant No. 2 has also filed an affidavit being her examination-in-chief together with another witness as DW-2, who were cross-examined. 7. The learned Trial Court took up the issue No. 3 being vital for adjudication of the suit for consideration which relates as to whether the suit was barred by the principle of resjudicata. The Court after consideration of the prayer of the earlier suit being Title Suit No. 12 of 1998 and Title Suit No. 2 of 2004 and the schedule of property from where the eviction was/has been sought for, held that the suit filed subsequently is barred by principle of resjudicata under Section 11 of the Code of Civil Procedure resulting in dismissal of the suit. 8. The plaintiffs took up the matter on appeal before the Appellate Court who on perusal of the materials on record and after hearing the parties allowed the appeal by setting aside the judgment and decree passed by the learned Trial Court holding that the suit is not barred by principle of resjudicata since the defendants have re-entered into the suit premises after execution of the decree and occupying the suit premises as described in Schedule-'B' of the plaint not on any title and right of theirs but being mere trespassers in the suit premises. Since the cause of action of the two suits are different and the defendants have admittedly trespassed in the suit property, the plaintiffs are entitled to a decree as claimed in the plaint and hence, allowed the appeal. 9. The defendants have preferred the instant appeal under Section 100 of the Code of Civil Procedure and the Court admitted the appeal formulating the following substantial questions of law: (a) Whether the learned Courts below are justified under Order 3 Rule 1 and 2of the Code in allowing the power of Attorney holder to file the evidence on affidavit and consequently thereupon allowed the holder to enter into the witness box for cross-examination on material points on behalf of the plaintiff's to which he does not have any personal knowledge? (b) Whether the learned Court of Appeal below is justified in holding that the present suit being T.S. No. 2 of 2004 is not barred under Section 11 of the code when the former suit being T.S. No. 12 of 1998 was heard on the same issue between the same parties and finally decided by the Court? 10. To substantiate the law formulated in the instant second appeal, Mr. B. Banerjee, learned Counsel appearing for the appellant took up the question of resjudicata first and draws the attention of the Court, the pleadings made in the plaint in both the title suits. In T.S. No. 12 of 1998 the plaintiffs sought for declaration of right, title and interest in respect of the properties as described in Schedule-'A', 'B' and 'C' for confirmation of possession in respect thereof. The plaintiff has further prayed for a decree that the defendants have no right, title and interest in respect of 'A', 'B' and 'C' schedule land and for a declaration that the defendants are trespassers and are in illegal possession of the suit premises as described in 'B' schedule land and are liable to be evicted. Thus prayed that by evicting them to deliver khas possession and for granting temporary and perpetual injunction. 11. Mr Banerjee has submitted that the T.S. No. 12 of 1998 was decreed on 29.06.2002 by the learned Trial Court wherefrom there was no appeal and therefore the decree has attained its finality. Thus prayed that by evicting them to deliver khas possession and for granting temporary and perpetual injunction. 11. Mr Banerjee has submitted that the T.S. No. 12 of 1998 was decreed on 29.06.2002 by the learned Trial Court wherefrom there was no appeal and therefore the decree has attained its finality. The said decree was put on execution being Title Execution Case No. 19 of 2002 and in the said Execution case khas possession of the suit property as fully described in the schedule 'B' land was delivered to the plaintiff on 21.03.2003 by the Nazir with the help of the Lot Mandal in presence of the witnesses and the plaintiff took over khas possession of 'B' schedule land and the aforesaid fact has been admitted by the plaintiffs in their pleadings in paragraphs - 3, 4 and 5 of the plaint in T.S. No. 2 of 2004. Mr. Banerjee has further submitted that the eviction from 'B' schedule land of both the defendants has been proved by the D W-2, Dr. Dhruba Nath Phukan, who is a boundary man of the said suit land. D.W.-2 deposed that the personnel from the Court evicted Dilip Goswami, the defendant No. 1 and Smt. Rupali Goswami, the present defendant No. 2 herein and the subsequent suit being T.S. No. 2 of 2004 has been filed on a cause of action dated 27.04.2003 when the defendants once again entered into 'B' schedule land wherefrom the eviction has been sought for in the present case and therefore, urged that the suit is barred by principle of resjudicata and Section 11of Code of Civil Procedure would come into play wherein issues have been raised, heard and finally decided by the Court between the same parties. 12. In regard to the first substantial questions of law formulated, Mr. 12. In regard to the first substantial questions of law formulated, Mr. Banerjee has drawn the attention of the Court the various provisions of Order 3 Rule 1 and 2, Order 10, Rule 4, Order 11 Rule 1, Order 18 Rule 4 and 19 and Order 26 of the Code and submitted that power of attorney holder can depose in place of Principal only in respect of acts done by power of attorney holder in exercise of power granted by the instrument and therefore, cannot depose for Principal in respect of matters of which only Principal can have personal knowledge and in respect of which Principal is liable to be cross-examined. In support of his contention he has cited a case reported in AIR 2005 SC 439 (Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors.) wherein the Hon'ble Apex Court has held that power of attorney holder cannot depose in place of Principal. Mr. Banerjee has, therefore, urged that the decree under challenge cannot be sustained in view of the decision rendered by the Apex Court. 13. Countering the attack, Mr. M.K. Choudhury, learned Senior counsel assisted by Mr. T. Islam, learned Counsel appearing on behalf of the respondents, has drawn the attention of this Court to both the plaints of TS No. 12 of 1998 and T.S. No. 2 of 2004 and the decree sought for in both the suits and has urged that the cause of action of earlier suit and the subsequent suit are different, the relief sought for are different and the parties are different and therefore, the principle of resjudicata would not come into play in the present appeal. The principle contained in Section 11 of the Code has been rightly discarded by the learned lower Appellate Court since the defendants have trespassed the land once again. 14. In regard to the decision of Apex Court in Janki Vashdeo (supra), Mr. The principle contained in Section 11 of the Code has been rightly discarded by the learned lower Appellate Court since the defendants have trespassed the land once again. 14. In regard to the decision of Apex Court in Janki Vashdeo (supra), Mr. Choudhury has submitted that the principle laid down in the case would not be applicable in the instant case and has urged that under Section 100 of the Code the new plea as raised in the instant appeal for the first time with regard to the first substantial question of law i.e., allowing the power of attorney holder to depose in place of the principal would not be allowed to be entertained since the said point has not been raised and/or pleaded in subordinate Courts. In support of his contention, he has referred the decisions reported in 1997 (2) GLT12 (Panchu Gopal Barua v. Umesh Ch. Goswami and Ors.) and 2002 (1) GLT 209 (Sachindra Mohan Deka Raja v. Sat Ram Bora and Ors.). 15. Considered the arguments advanced by the parties. Coming to the first substantial question of law, there is no finding of fact by the first appellate Court about the point raised in substantial questions of law No. 1 relating, to allowing the power of attorney holder to file the evidence on affidavit and allowing the holder to enter into the witness box for cross examination on material points on behalf of the plaintiff to which he does not have any personal knowledge. Therefore, I do not intend to take up this question as a substantial question of law. 16. Coming to the second substantial question of law the point requiring for examination is whether the findings of the first Appellate Court on the point of resjudicata is valid in the eye of law? From the arguments advanced by Mr. B. Banerjee, the learned Counsel appearing for the appellant, I am not convinced as to how far this plea of resjudicata would help him in non suiting the plaintiff/respondent from evicting the appellants/defendants from their unlawful occupation of the suit premises after delivery of possession in execution of earlier decree, when the appellants/defendants are also litigating the same title in the earlier suit. 17. The substantial question of law with regard to resjudicata is a matter of equity. 17. The substantial question of law with regard to resjudicata is a matter of equity. Even if I set aside the judgment of the lower Appellate Court by restoring that of the Trial Court, thereby allowing the appellant herein to remain in unlawful occupation in the suit premises that will lead to a serious denial of equity to the respondent/plaintiff. The substantial question of law as framed and argued cannot thus held to be a substantial one in view of the discussion made above. 18. The lower Appellate Court has rightly held that the appellants herein are in unlawful occupation of the suit premises and allowed the appeal by holding that cause of action of the present suit is different from the earlier suit and therefore the suit is not barred by principle of resjudicata. Disputing this finding the learned Counsel appearing for the appellants strenuously urged that the cause of action of the present suit and the earlier suit are the same. With regard to the cause of action, the Hon'ble Apex Court in Kunjan Nair Sivaraman Nair v. Narayanan Nair and Ors. reported in AIR 2004 SC 1761 held at para 16 as thus: The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense 'cause of action' means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in 'cause of action'. The Hon'ble Apex Court further held in the said case at para 17 and 18 as thus "17. In Halsbury 's Laws of England (4th Edn.) it has been stated as follows: 'Cause of action' has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. In Halsbury 's Laws of England (4th Edn.) it has been stated as follows: 'Cause of action' has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. "Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action." 18. As observed by the Privy Council in Payana Reena Saminathan v. Pana Lana Palaniappa the rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction. One great criterion is, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit whether the same evidence will maintain both actions. (See Mohd. Khalil Khan v. Mahbub Ali Mian.) 19. When the plaintiffs respondents prayed for machinery of the Court to evict the trespassers to get back the lawful possession of the suit premises, will it be proper on my part to protect the person who are in unlawful possession of the suit premises? The question of balance of equity has to be resorted to in order to stop litigation any further. This consideration has compelled me to scrutinize the substantial question of law so framed in the instant case. I am of the view that once I hold that no injustice has been done to the appellants herein by deciding the issue of resjudicata in favour of the plaintiffs/respondents, the substantial question of law so framed cannot be a substantial question of law in the instant appeal. In the result, the appeal is dismissed. The parties are left to bear their own cost. Appeal dismissed.