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2009 DIGILAW 300 (GAU)

Anil Kr. Pathak v. Prabin Sarma

2009-05-06

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. G.P. Bhowmick, learned Counsel for the appellants and Mr. D. Choudhury, learned Counsel for the respondent. 2. This appeal has been preferred against judgment and Decree dated 16.5.2008, passed by the Civil Judge (Senior Division) No. 1, Guwahati, in Title Appeal No. 41 of 2007, dismissing the appeal and upholding the judgment and Decree dated 25.5.2007, passed by the Civil Judge (Junior Division) No. 3, Guwahati, in Title Suit No. 201/2004. 3. Mr. G.P. Bhowmick, learned Counsel for the appellants submits that the appellants, as defendants, in Title Suit No. 201/2004, filed counter-claim before the learned Trial Court with specific averments to the effect that they were put in possession of 1 katha 5 lechas of land since 31.3.1989 which is covered by F.S. Grant Patta No. 1 of Dag No. 1 (old) of Chunchali Tea Estate under Ulubari Mouza, Guwahati, by one Sri Ramesh Ch. Das, S/o Late Madhab Das, by obtaining consideration money of Rs. 15,000/- (Rupees Fifteen Thousand) giving possessory right over ceiling surplus land' of the aforesaid Tea Estate together with one thatched house executing a Katcha Deed on 31.3.1989 in favour of the defendant No. 2 (herein appellant No. 2). The defendants/appellants after taking possession of the said land put up boundary fencing around it and used to cultivate Rabi crops by clearing the jungles and developing the land. It is further submitted by Mr. Bhowmick, learned Counsel, that the learned Trial Court as well as the lower appellate Court did not frame any issue pertaining to the counter-claim of the appellants/defendants and the Courts below failed to consider and dispose of the aforesaid counter claim. 4. Mr. D. Choudhury, learned Counsel for the respondent submits that issue No. 7 "Whether the defendants have acquired right, interest and possession over the suit house and land", covers the issue involved in the counter claim of the appellants/defendants and as such, the Courts below have dealt with the said issue and the same has been settled already. 5. I have considered the submissions made by the learned Counsel appearing for the parties and also considered the materials placed alongwith the Memo of Appeal. It appears that the appellants/defendants filed counter claim before the learned Trial Court and the Courts below failed to frame appropriate issue for settlement of the issue raised by the appellants/defendants. 5. I have considered the submissions made by the learned Counsel appearing for the parties and also considered the materials placed alongwith the Memo of Appeal. It appears that the appellants/defendants filed counter claim before the learned Trial Court and the Courts below failed to frame appropriate issue for settlement of the issue raised by the appellants/defendants. No discussions, in this regard, have been made in the judgment and Decree dated 25.5.2007 passed by the learned Trial Court and also in the impugned judgment and Decree dated 16.5.2008 passed by the appellate Court. In view of the above admitted position, the impugned judgment and decree dated 16.5.2008 is liable to be quashed and accordingly, the same is quashed. 6. The matter is remanded back to the learned Trial Court for re-adjudication and disposal, particularly in respect of the counter-claim of the appellants/defendants in accordance with law preferably within a period of 2 (two) months from the date of receipt of a certified copy of this order. Parties shall appear before the trial Court on 18th May, 2009. 7. The appeal stands disposed of accordingly. Interim order, if any, shall stand vacated. There shall be no order as to cost. 8. Send down the LCRs to the concerned Court forthwith.