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2012 DIGILAW 789 (GAU)

Hareswari Hazowari v. Madan Rabha

2012-06-26

BROJENDRA PRASAD KATAKEY

body2012
JUDGMENT Hon'ble Mr. Justice B.P. Katakey 1. This appeal by the plaintiffs is directed against the judgment and decree dated 28.9.2001 passed by the learned Civil Judge, (Senior Division), Goalpara in Title Appeal No. 2/2001 dismissing the appeal preferred by the plaintiffs/appellants by upholding the judgment and decree dated 30.10.2000 passed by the learned Civil Judge (Junior Division), No. 1, Goalpara in Title Suit No. 31/1995. The appellants, as plaintiffs, instituted the suit for declaration of right, title and interest over the plot of land measuring 10 lechas under Dag No. 172/520 of village Thekesu Part I under Dudhnoi Circle, contending inter alia that the plaintiff Nos. 1 and 2 are the owner of 4 bighas 1 kathas of land covered by Dag No. 172/520, out of which 17 lechas of land was transferred to one Madan Lal Todi, leaving 4 bighas 0 kathas 3 lechas in the name of the plaintiffs, in respect of which land the plaintiff No. 2's name was also mutated in the last settlement operation along with the plaintiff No. 1 being the owners of the land. It is also the pleaded case of the plaintiffs that out of 4 bighas 0 kathas 3 lechas of land, the defendant in the middle of 1993 trespassed into 10 lechas of land and despite the protest of the plaintiff No. 2 started construction of houses thereby clouding the title of the plaintiff for which the suit has been filed for declaration of right, title and interest and for recovery of khas possession by demolishing the structures thereon and by evicting the defendants. 2. The suit was contested by the defendants by filing a joint written statement denying the title of the plaintiffs and also taking the plea that the suit is barred by limitation. It has also been pleaded that the defendants are possessing the suit land for 30-35 years by constructing houses thereon and their right over the land has ripen by prescription of law i.e. by right of adverse possession. 3. The trial court on the basis of the pleadings framed the following issues for determination : 1. Whether there is any cause of action to the suit. 2. Whether the suit is barred by law of limitation. 3. Whether the plaintiffs have right, title and interest over the suit, Dag No. 172/520. 4. 3. The trial court on the basis of the pleadings framed the following issues for determination : 1. Whether there is any cause of action to the suit. 2. Whether the suit is barred by law of limitation. 3. Whether the plaintiffs have right, title and interest over the suit, Dag No. 172/520. 4. Whether the suit land is the khas land or patta land of the plaintiffs?" 5. To what reliefs the plaintiffs are entitled to. 4. The trial court on the basis of the evidences on record, both oral and documentary, dismissed the suit filed the plaintiffs by holding that the suit of the plaintiffs is barred by limitation, the same having not been brought within 12 years as required under Article 64 of the Limitation Act. The trial court, however, has not recorded any finding relating to the claim of the plaintiffs for declaration of right, title and interest over the suit land. No finding has also been recorded against the issue No. 4 i.e. whether the suit land is a Govt. khas land or patta land of the plaintiffs. 5. Being aggrieved the plaintiffs preferred Title Appeal No. 2/2001 in the court of the learned Civil Judge (Senior Division) which has also been dismissed as aforesaid, vide judgment and decree dated 28.9.2001. The first appellate court has held that the suit of the plaintiffs is barred by time in view of Article 64 of the Limitation Act. The first appellate court, however, did not record any finding relating to the claim of the plaintiff for declaration of right, title and interest (issue No. 3) and whether the land is a Govt. khas land as pleaded by the defendants or patta land belonging to the plaintiffs as pleaded by the plaintiffs in their respective pleadings (issue No. 4). Hence the present appeal. 6. The appeal was admitted for hearing vide order dated 18.6.2002 on the following substantial question of law: 1. Whether the suit was barred by limitation and whether Article 64 of the Limitation Act was applicable as held by the courts below. 7. I have heard Mr. J Deka, learned counsel for the appellants as well as Mr. B Deka, learned counsel for the respondents. 8. Whether the suit was barred by limitation and whether Article 64 of the Limitation Act was applicable as held by the courts below. 7. I have heard Mr. J Deka, learned counsel for the appellants as well as Mr. B Deka, learned counsel for the respondents. 8. Referring to the findings recorded by both the learned courts below and also the case as pleaded by the plaintiffs and the defendants in their respective pleadings, it has been submitted by the learned counsel for the appellants that as the plaintiffs have claimed declaration of right, title and interest in respect of the land described in the schedule to the plaint, the learned courts below have erred in law in applying Article 64 of the Limitation Act as the said provision would apply when the plaintiffs' suit is based on previous possession and not on title. It is submitted by the learned counsel that the suit of the plaintiffs being for declaration of right, title and interest, the provision of Article 65 of the Limitation Act would apply and the period of limitation would start to run on the date when the possession of the defendants have become adverse to the plaintiffs. The learned counsel further submits that having regard to Article 65 of the Limitation Act and also the claim of the plaintiffs in the suit, the crucial date, which requires determination for the purpose of deciding as to whether the suit is barred by limitation, is the date on which the defendants' possession has become adverse to the interest of the plaintiffs, which aspect has not been gone into by any of the courts below. It has also been contended that though the issue Nos. 3 and 4 i.e. as to whether the plaintiffs have right, title and interest and whether the suit land is a khas land or patta land belonging to the plaintiffs, were framed and accordingly the evidences were laid by both the parties, there is no discussions of the evidences on record and no finding has also been recorded by any of the courts below on the said issues. The learned counsel, therefore, submits that the appeal may be remitted to the first appellate court for deciding the title appeal afresh issue-wise and on the basis of the evidences on record, as no clear finding has been recorded by the trial court against the issue Nos. The learned counsel, therefore, submits that the appeal may be remitted to the first appellate court for deciding the title appeal afresh issue-wise and on the basis of the evidences on record, as no clear finding has been recorded by the trial court against the issue Nos. 3 and 4. 9. Mr. B Deka, learned counsel appearing for the respondents on the other hand supporting the judgment and decree passed by the learned courts below has submitted that though the plaintiffs have claimed declaration of right, title and interest, they could not prove their title over the suit land and hence their suit partakes the character of a suit for declaration based on previous possession and not on the title and hence Article 64 of the Limitation Act was rightly applied, consequently the suit was rightly held to be barred by time. The learned counsel further submits that since the plaintiffs could not prove their title over the suit land by adducing any cogent and reliable evidence, the learned courts below have rightly dismissed the suit as well as the consequent appeal. 10. I have considered the submission, of the learned counsel for the parties and also perused the judgment and decree passed by both the courts below. 11. As noticed above, five issues were framed, based on the pleadings of the parties. While the plaintiffs claim that they have right, title and interest over the suit land measuring 10 lechas and the defendants have trespassed into the suit land some time in the year 1993, the same has been refuted by the defendants contending that the plaintiffs have no right, title and interest as the land is a khas land over which they have the possession for 30 - 40 years by constructing houses thereon. The defendants though have claimed adverse possession no issue, however, has been framed. 12. The trial court has answered the issue No. 2, which relates to the question of limitation against the plaintiffs and in favour of the defendants by holding that the suit is barred by time in view of the provisions contained in Article 64 of the Limitation Act. The trial court though made certain discussions against issue Nos. 3 and 4 no finding, however, has been recorded as to whether the plaintiffs have right, title and interest over the suit land or the suit land is a khas land. The trial court though made certain discussions against issue Nos. 3 and 4 no finding, however, has been recorded as to whether the plaintiffs have right, title and interest over the suit land or the suit land is a khas land. Similarly the first appellate court has also held that the suit of the plaintiffs is barred by time in view of Article 64 of the Limitation Act. The first appellate court has also not recorded any clear finding against the issue Nos. 3 and 4 except saying that there is nothing to interfere with the finding recorded by the trial court, though no clear finding has been recorded by the trial court against the issue Nos. 3 and 4. 13. Article 64 of the Limitation Act provides the period of limitation of 12 years in respect of a suit for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession has been dispossessed. The time from which the period began to run is the date of dispossession. Article 65 of the Limitation Act provides the period of limitation for institution of a suit based on title, which is 12 years, which starts running when the possession of the defendant becomes adverse to the plaintiff. 14. The suit of the plaintiff being for declaration of right, title and interest and not being for possession based on previous possession, Article 65 would apply and not Article 64 of the Limitation Act. Both the courts below have wrongly applied Article 64 of the Limitation Act though the suit is for declaration of right, title and interest. If the plaintiffs fail to substantiate their right, title and interest they would not be entitled to a decree for such declaration. 15. To decide the question whether the suit is barred by time under Article 65 of the Limitation Act, it is also required to be seen whether the possession of the defendants have become adverse, if so, from which date. Nothing has been discussed by any of the courts below. 16. As discussed above, none of the courts below have decided the issue Nos. 3 and 4, which are also very important issues in the suit, keeping in view the respective pleadings. Nothing has been discussed by any of the courts below. 16. As discussed above, none of the courts below have decided the issue Nos. 3 and 4, which are also very important issues in the suit, keeping in view the respective pleadings. The suit of the plaintiffs being for declaration of right, title and interest, there ought to have been finding relating to issue No. 3, so also the issue No. 4, as the defendants have claimed that the suit land is not patta land of the plaintiffs but Govt. khas land which they are possessing. 17. In view of the aforesaid discussion, the judgment and decree passed by the first appellate court is set aside. The case is remitted to the first appellate court for deciding the appeal afresh based on the issues framed, as the trial court has not recorded any finding against the issue Nos. 3 and 4. The appeal shall be decided on the basis of the evidences available on record. 18. The parties are directed to appear before the learned Civil Judge at Goalpara on 17.8.2012. 19. Having regard to the year of institution of the suit, which is 1995, an endeavour shall be made by the first appellate court to decide the appeal within a period of two months from the date of appearance of the parties. 20. The appeal is allowed as indicated above. No cost. The Registry is directed to send down the records forthwith so as to reach the court of the learned Civil Judge, Goalpara on or before 30.7.2012. Appeal allowed.