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2012 DIGILAW 1293 (PAT)

Nilam Devi v. Vidya Sagar Chaudhary

2012-09-12

V.NATH

body2012
JUDGMENT The judgment and decree dated 18.3.2009 passed in T.S. No. 51 of 2002 by Sub-Judge-I, Katihar is under challenge in this appeal. By the impugned judgment and decree the learned court below has granted the decree ex-parte to the plaintiff as prayed and held him entitled to get possession over the suit land through the process of the court. 2. The T.S. No. 51 of 2002 has been filed by the plaintiff for declaration of his title and possession over the suit land and further for declaration that the transfer of the two acres of the land out of the suit land by the defendant nos. 7 and 8 to the defendant nos. 1 to 6 by virtue of five sale deeds dated 2.5.2002 was illegal and inoperative. The prayer has also been made to declare the five sale deeds as null and void and inoperative in law. The plaintiff has also prayed for confirmation of his possession over the suit land and permanent injunction against the defendants restraining them from interfering with his possession and in the alternative has prayed for recovery of possession in case of dispossession. 3. The narration of facts, in brief, of the case of the plaintiff is that Dev Nandan Choudhary was the common ancestor of the plaintiff and defendant nos. 7 and 8. He constituted a joint Hindu family along with his five sons, namely, Baidnath Prasad Choudhary, Ganesh Prasad Choudhary, Jagarnath Choudhary, Raghunath Choudhary and Kamta Prasad Choudhary out of whom Jagarnath Choudhary was the father of the plaintiff and Baidnath Prasad Choudhary was the father of defendant nos. 7 and 8. Baidnath Prasad Choudhary was the eldest son of Dev Nandan Choudhary from his first wife and other four sons were born from the second wife of Dev Nandan Choudhary. As Baidnath Prasad Choudhary was the eldest son, the joint family property had been mostly acquired in his name out of the joint family fund. 7 and 8. Baidnath Prasad Choudhary was the eldest son of Dev Nandan Choudhary from his first wife and other four sons were born from the second wife of Dev Nandan Choudhary. As Baidnath Prasad Choudhary was the eldest son, the joint family property had been mostly acquired in his name out of the joint family fund. However, taking advantage of the purchase of the lands in his name as well as entry of his name in the recent survey khatiyan, Baidnath Prasad Choudhary started assailing his exclusive title over the same which led to the filing of T.S. No. 62 of 1964 before Sub-Judge, Purnea by Dev Nandan Choudhary against Baidnath Prasad Choudhary for declaration that the lands acquired and recorded in the name of Baidnath Prasad Choudhary were all joint family properties. The said suit was decreed declaring that the entire property acquired and recorded in the name of Baidnath Prasad Choudhary were the joint family property. In Ceiling Case No. 242 of 1965-66 also the Deputy Collector Land Reforms held that the entire property standing in the name of Baidnath Prasad Choudhary was joint family property. No appeal was filed by Baidnath Prasad Choudhary against the judgment and decree passed in the title suit or the order passed in the ceiling proceeding. During the consolidation proceeding also by order dated 22.7.1988 the Consolidation Officer in Consolidation Case No. 2703 of 1988 passed the order for recording the properties, standing in the exclusive name of Baidnath Prasad Choudhary in the survey khatiyan or acquired in his name, in the names of the five sons of Dev Nandan choudhary. 4. The further case of the plaintiff is that after the death of Dev Nandan Choudhary, his five sons separated and came in separate possession of the joint family property according to the convenience but later on they amicably partitioned all the lands and accordingly filed a petition before the Consolidation Officer for preparing the consolidation records of the land separately in their names according to the partition. By order dated 7.5.1993 passed by the Consolidation Officer in Case No. 2719 of 1988, the prayer was allowed and direction was issued to record the land separately in the names of all the five brothers according to the partition. 5. By order dated 7.5.1993 passed by the Consolidation Officer in Case No. 2719 of 1988, the prayer was allowed and direction was issued to record the land separately in the names of all the five brothers according to the partition. 5. It is further case of the plaintiff that in the partition, he has been allotted 2.72 acres of land of R.S. plot no. 2173 of khata no. 518 besides other plots and has been coming in exclusive possession of the same. His name has also been mutated for the same and he has been paying rent and getting rent receipts. However, the defendant nos. 7 and 8 who are the daughters of Baidnath Prasad Choudhary, who died in the year 2001, have illegally transferred by sale 2 acres of land out of 2.72 acres of R.S. plot no. 2173, which has fallen share of the plaintiff in partition, in favour of the defendant nos. 1 to 6. The plaintiff has stated that the transfer of the aforesaid land by five sale deeds dated 2.5.2002 in favour of the defendant nos. 1 to 6. is collusive and fraudulent transaction because after the decree passed in the T.S. No. 62 of 1964 and also in view of the orders passed in the ceiling proceeding as well as the consolidation proceeding, the father of the defendant nos. 7 and 8 had no right, title and interest left in that 2.72 acres of land which is the suit land and therefore after his death, his daughter:) defendant nos. 7 and 8 also could have no right, title and interest in the suit land. 6. The defendant nos. 1 to 8 has appeared in the suit and defendant nos. 1 to 6 filed their joint written statement whereas the defendant nos. 7 and 8 filed their separate joint written statement contesting the case of the plaintiff. The defendant nos. 7 and 8 in their written statement have come out with the case that Baidnath Prasad Choudhary was born from the first wife of Dev Nandan Chaudhary and after the death of his first wife Dev Nandan Choudhary re-married and had four sons from the second wife. It has been stated that Baidnath Prasad Choudhary was driven out of the house by Dev Nandan Choudahry and his four sons and thereafter he started living in another village and by his own. It has been stated that Baidnath Prasad Choudhary was driven out of the house by Dev Nandan Choudahry and his four sons and thereafter he started living in another village and by his own. efforts he acquired about 17 acres of land including the suit land. The defendants have denied any• share of the plaintiff or any of the four sons of Dev Nandan Choudhary from his second wife in the property acquired by Baidnath Prasad Choudhary and claimed that it was the self-acquisition of Baidnath Prasad Choudhary and after his death the defendant nos. 7 and 8 inherited the same. These defendants have further stated that the decree passed in T.S. No. 62 of 1964 was ex parte and without any knowledge or contest by Baidnath Prasad Choudhary or these defendants, and have further stated that later on the said ex parte was set aside and the suit was restored to its original file. It is also the case of the defendants that no order was thereafter passed in T.S. No. 62 of 1964. These defendants have further stated that they have no knowledge of the ceiling case and further have also averred that the ceiling court has no jurisdiction to hold the land of Baidnath Prasad Choudhary to be joint family property and the report by the Circle Officer in the ceiling case was collusive and wrong. It is also further case of the defendants that no petition was filed by Baidnath Prasad Choudhary before the Consolidation Officer and further that the orders passed by the Consolidation Officer is not final as the consolidation proceeding has not been confirmed and no notification under Section 26A has been made. These defendants have also pleaded that they have no knowledge of any order passed by the Consolidation Officer to record the land separately on the basis of partition and the document of partition produced before the Consolidation Officer is forged and fabricated document. These defendants have claimed their exclusive title and possession over the suit land and have further assailed that they have validly transfer the same in favour of the defendant nos. 1 to 6 for two acres of land. 7. The defendant nos. 1 to 6, who are purchasers from the defendant nos. 7 and 8, in the written statement have reiterated the case as pleaded by defendant nos. 7 and 8. 1 to 6 for two acres of land. 7. The defendant nos. 1 to 6, who are purchasers from the defendant nos. 7 and 8, in the written statement have reiterated the case as pleaded by defendant nos. 7 and 8. However, they have stated that they have no knowledge of T.S. No. 62 of 1964 and its judgment. 8. It appears from the order-sheet of the T.S. No. 51 of 2002, in which the impugned judgment and decree has been passed, that the defendants initially appeared, filed their written statement and participated in the proceeding but they did not appear in the suit on 23.7.2008 when the issues were framed and thereafter they never appeared and contested the suit. The learned court below then proceeded with the hearing of the suit, allowed the plaintiff to adduce his evidence and after considering the oral and documentary evidence of the plaintiff has passed the impugned judgment and decree granting the decree ex parte to the plaintiff as prayed for. 9. The learned counsel appearing on behalf of the appellants has firstly submitted that the learned court below has committed error in law in passing the impugned judgment and decree without fixing the suit for ex parte hearing when the defendants failed to appear. It has been urged that the provision of Order IX Rule 6 CPC is very clear in this regard and as such the learned court below could have no jurisdiction to pass the impugned judgment and decree and the same suffer with material irregularity going to the root of the matter. It has been further submitted that even otherwise also after framing of the issues, the learned court below was obliged to consider and give its finding on each and every issue and the failure to do so has vitiated that impugned judgment. The learned counsel has also canvassed that the learned court below has failed to appreciate that the plaintiff has not adduced adequate cogent evidence to establish his case. It has been lastly submitted that in the facts and circumstances of the case the matter should be remanded to the learned court below for fresh hearing, after setting aside the impugned judgment and decree. 10. It has been lastly submitted that in the facts and circumstances of the case the matter should be remanded to the learned court below for fresh hearing, after setting aside the impugned judgment and decree. 10. Per contra, the learned counsel appearing on behalf of the plaintiff-respondent has submitted that this appeal has been preferred only by the two purchaser defendants out of six purchaser-defendants who were defendant nos. 1 to 6 in the suit. It has further been pointed out that no appeal has been preferred by defendant nos. 7 and 8 who claimed their title and possession over the suit property by inheritance from Baidnath Prasad Choudhary. It has been urged that the impugned decree has attained finality against the defendant nos. 7 and 8 as well as against non-appealing defendants and therefore allowing this appeal would only result in inconsistent and conflicting decree. The learned Senior Counsel has further pointed out that the defendants in fact contested that suit uptil 9.9.2004 when the injunction order was passed against them, and thereafter they filed Misc. Appeal No. 5 of 2004 before the learned District Judge against the said order but after the dismissal of the appeal they realized the falsity of their case and left pairvi in the suit. It has been urged that no document has been filed on behalf of the defendants before framing of the issue and therefore any averment made by them in the written statement has remained unsubstantiated. It has been contended that the plaintiff besides adducing oral evidence has filed documentary evidence as well to establish the facts regarding the decree passed in T.S. No. 62 of 1964 as well as the orders passed by the ceiling authorities and the consolidation authorities and therefore the learned court below has committed no illegality in granting the decree to the plaintiff after appreciating the oral and documentary evidence. It has also been submitted that in view of the provision of Section 99 CPC also the impugned judgment and decree should not be interfered on the basis of bald submissions on behalf of the appellants. 11. In view of the rival contentions of the parties, the following points emerge for determination:- (I) Whether the impugned judgment and decree can be sustained in law as well as on facts? 11. In view of the rival contentions of the parties, the following points emerge for determination:- (I) Whether the impugned judgment and decree can be sustained in law as well as on facts? (II) Whether the plaintiff has succeeded in establishing his case by leading cogent evidence and was entitled to the decree as prayed? 12. Point Nos. 1 and 2:-It is not in dispute that the defendants appeared in the suit after service of summons and the defendant nos. 1 to 6 on one hand and the defendant nos. 7 and 8 on the other filed their separate written statements. From the order sheet of T.S. No. 51 of 2002, it appears that the defendants regularly appeared till 9.9.2004 on which date the plaintiff's prayer for injunction was allowed restraining the defendants from interfering with the peaceful possession of the plaintiff over the suit land and further not to alienate the suit property during the pendency of the suit. It further appears that the records of the suit were called for by the appellate court in Misc. Appeal No. 5/2004 filed by the defendants against the injunction order. But defendants however continued to appear in the suit uptil 6.2.2007 on which date the order was passed to place the matter after the receipt of the original records of the suit and the order of the appellate court. The order dated 5.6.2008 in the suit shows that the information regarding the dismissal of the. Misc. Appeal No. 5 of 2004 as well as the records was received by the court and thereafter the defendants never appeared in the suit. From the lower court records, it also appears that no evidence has been led by the defendants but the plaintiff has adduced his oral and documentary evidence. 13. From perusal of the grounds taken in the memo of this appeal, it transpires that the appellants have not assailed the impugned judgment and decree on the ground that the learned court below should not have proceeded to decide the suit ex parte. No ground has been taken in the memo of appeal explaining the non-appearance of the defendants or suggesting sufficient cause for their non-appearance. No ground has been taken in the memo of appeal explaining the non-appearance of the defendants or suggesting sufficient cause for their non-appearance. The appellants have only taken the ground that they did not get a chance to file the documents in the suit but have omitted to mention as to what prevented them from contesting the suit by adducing evidence and cross examining the witnesses of the plaintiff. Even after filing of this appeal no prayer has been made for adducing additional evidence to explain and justify the non-appearance of the defendants in the suit after the dismissal of their appeal against the order of injunction. All these facts only give credence to the submission on behalf of the plaintiff-respondent that after passing of the injunction order and dismissal of their appeal against the same, the defendants deliberately left the suit. It also appears that no documentary evidence has been filed on behalf of the defendants along with the written statement or before framing of the issues. Again there is no explanation by the appellants for non-filing of their documentary evidence and no such ground has been raised in the memo of appeal. In absence of any grounds in the memo of appeal or any material on record of this appeal to establish that the defendants did not intentionally left to contest the suit but were prevented by sufficient cause, the conclusion is inescapable that the defendants had deliberately and knowingly left the contest in the suit, and they were aware of the consequences. 14. It has been submitted by the learned counsel for the appellants that the procedure prescribed in Order IX Rule 6(1)(a) CPC has not been followed as the suit had not been fixed for ex parte hearing against these defendants by specific order and therefore the learned court below has committed error in law in proceeding to dispose of the suit ex parte without first fixing the same for ex parte hearing. This submission, on the wordings of the provision of Order IX Rule 6(1)(a) C.P.C. appears to be misconceived. The said course is to be adopted at the first hearing of the suit where the court is required to pass an order for hearing the suit ex parte, if the defendant, upon whom the summons has been duly served, does not appear. The said course is to be adopted at the first hearing of the suit where the court is required to pass an order for hearing the suit ex parte, if the defendant, upon whom the summons has been duly served, does not appear. The same procedure, obviously, is not to be foil wed when the defendant has appeared after the service of summons and has taken part in the proceeding of the suit after filing his written statement but subsequently has failed to appear at the adjourned hearing. In such a case the provisions of Order XVII Rule 2 C.P.C. are applicable. These provisions of the Code of Civil Procedure came for consideration by the Apex Court in the case d Sangram Singh vs. Election Tribunal, Kotah, A.I.R. 1955 S.C. 425 and their Lordships have held as follows:- "....Therefore we reach the position that Order 9, Rule 6(1)(a), which is the rule relied on, is confined to the first hearing of the suit and does not 'per se' apply to subsequent hearing...." 15. There Lordships in the same judgment further considered the connotation of the words 'proceed ex parte' as was present in Order IX Rule 6(1)(a) and have held as follows:- "....When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the court may proceed in his absence. But, be it noted, the court is not directed to make an 'ex parte' order.....All that Rule 6(1)(a) does is to remove a bar and no more. It merely authorizes the Court to do that which it could not have done without this authority........ " 16. There Lordships, also, considered the provision of Order XVII, Rule 2 C.P.C. and have laid down as follows:- "....Now Rule 2 only applies when one or both the parties do not appear 'on the day fixed' for the adjourned hearing. In that event, the court is thrown back to Order IX with the additional power to make "such order as it thinks fit". In that event, the court is thrown back to Order IX with the additional power to make "such order as it thinks fit". When it goes back to Order IX it finds that it is again empowered to proceed 'ex parte' on the adjourned hearing in the same way as it did, or could have done, if one or other of the parties had not appeared at first hearing, that is to say, the right to proceed 'ex parte' is a right which accrues from day to day because at each adjourned hearing the court is thrown back to Order IX, Rule 6." 17. It would be pertinent to notice here that by 1976 Amendment in the Code of Civil Procedure; the words "proceed ex parte" appearing in Order IX, Rule 6(1)(a) have been substituted by the words "make an order that the suit be heard ex parte". However, the provision of Order IX, Rule 7 has remained unchanged, and therefore the substitution of the words by amendment has not effected any substantial alteration in the scope of the provision of Order IX, Rule 6(1)(a) in the sense of passing an "ex parte order" against the defendant who has failed to appear on the date of hearing or the adjourned hearing. There is still nothing to deny the defendant from appearing on the adjourned date of hearing of the suit and participating in the proceeding of the suit from that stage with the only disability that he cannot claim to be relegated back to the same position when he failed to appear, or ‘set the clock back’ as held by their Lordship in Arjun Singh vs. Mohindra Kumar, A.I.R. 1964 S.C. 993. For "setting the clock back" or for reopening of the proceedings in his absence, the defendant can file an application under Order XI, Rule 7 showing good cause for his previous non-appearance but he is still not required to pray for setting aside the order fixing the suit for ex parte hearing. As such there is no substance in the submission on behalf of the appellants that the learned court below has committed material irregularity in deciding the suit without firstly fixing it for ex parte hearing. 18. As such there is no substance in the submission on behalf of the appellants that the learned court below has committed material irregularity in deciding the suit without firstly fixing it for ex parte hearing. 18. Examining this submission from another angle also, it could not be pointed out on behalf of the appellants as to what material prejudice they have suffered by the failure of the court below in not fixing the suit for ex parte hearing on the day when they failed to appear. As earlier mentioned, the defendant-appellants never appeared in the suit after 6.2.2007 and the hearing proceeded ex parte against them. Thus, even if no order has been passed to proceed 'ex parte' against them, it cannot alleviate their status and put them to any advantageous legal position. The decisions of this Court reported in 1982 PLJR 500 , 1983 Pat. 103 and 1984 PLJR 486 , relied upon by the learned counsel for the appellants, have been rendered in different setting of facts, and even otherwise also no such principle, as propounded on behalf of the appellants, has been laid down therein. It would however be apt to take into notice Section 99 CPC which provides that a decree cannot be reversed or modified for error, defect or irregularity, any proceeding in the suit not affecting the merits of the case or the jurisdiction of the court. As held earlier, the defendant-appellants have failed to satisfactorily explain their default in not appearing when the suit was taken up for hearing. Thus, simply because the learned court below has not passed specific order for ex parte hearing of the suit after the defendants left appearing in the suit, the impugned judgment and decree cannot be reversed as this objection is too technical to have impact on the jurisdiction of the court or even the merits of the case. This view is in consonance with the law laid down in the case of Bhaskar Ganguli vs. Sujit Kumar Gupta, 1995(2) PLJR 563. 19. I.A. No. 6478 of 2011 has been filed under Order 1 Rule 10 CPC by the respondent nos, 2 to 9 on 19.9.2011 praying for transposing them as appellants in this appeal. However, in the said petition no reason has been assigned to justify the transposition of the vendor-respondent nos. 2 to 9 in the category of appellants in the appeal. However, in the said petition no reason has been assigned to justify the transposition of the vendor-respondent nos. 2 to 9 in the category of appellants in the appeal. It is not the case of the respondent nos. 2 to 9 that the appellants are proposing to abandon or withdraw the appeal doing any act prejudicial to the interest of the respondent nos. 2 to 9. The only reason which has been assigned, is that these respondents 2 to 9 failed to join as appellants at the time of filing of this appeal and therefore they should be transposed as appellants in view of their joint interest in the suit property. This cannot be accepted as valid ground to seek transposition. Moreover, the provisions of Order 41, Rule 4 and Rule 33 C.P.C. are there to protect the interest of their interest. As such the prayer for transposition as made in I.A. No. 6478/2011 is without reasonable foundation, and is, accordingly dismissed. However, the learned counsel for the respondent nos. 2 to 9 has made his submission in support of the appellants. His submissions are in line with the submissions of the learned counsel for the appellants and therefore require no separate consideration. 20. Technicalities apart, it has been submitted by the learned counsel for the appellants that the plaintiff has not succeeded in establishing his claim on the basis of evidence on record. It is accepted position that no documentary evidence has been filed on behalf of the defendants. However, the plaintiff has filed Ext.-7 (certified copy of the judgment passed in T.S. No. 62/64), Ext.-5 (certified copy of the order passed by the consolidation court in case no. 2719 of 1988) and Ext.-6 (certified copy of order of ceiling case no. 242 of 1965) besides other documentary evidence. The perusal of the aforesaid documents clearly corroborate the case of the plaintiff as stated in the plaint. Besides, the plaintiff has also examined witnesses to establish his case. All his witnesses have, supported his case. In view of the judgment passed in T.S. No. 62/64 (Ext.-7) and the order passed by the consolidation court (Ext.-6), it is clear that the defendant nos. 7 and 8 have no title and possession over the suit land. In absence of any material to disbelieve the evidence of the plaintiff, the inevitable conclusion is that the plaintiff has established his claim. 21. 7 and 8 have no title and possession over the suit land. In absence of any material to disbelieve the evidence of the plaintiff, the inevitable conclusion is that the plaintiff has established his claim. 21. Although, the learned court below has not recorded its findings issue-wise but in absence of the contest and evidence in rebuttal, the learned court below cannot be held to have committed material irregularity although it was desirable that the findings should have been recorded separately. However, the learned court below has considered the oral and documentary evidence of the plaintiff and has passed the impugned judgment and decree on the basis of that consideration. 22. It has been submitted on behalf of the appellants as well as the learned counsel for the respondent nos. 2 to 9 that the matter should be remanded to the court below after setting aside the impugned judgment and decree but as observed earlier, in absence of any cogent explanation for non-appearance of the defendants in the suit, after the dismissal of their appeal against the order of injunction, this prayer cannot be granted. 23. In the result, this appeal, being sans merit, is dismissed accordingly. The impugned judgment and decree is hereby affirmed. However, there shall be no order as to costs.