Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 895 (GAU)

On the death of Tufani Nunia v. Makram Ali

2012-07-27

BROJENDRA PRASAD KATAKEY

body2012
JUDGMENT B.P. Katakey, J. 1. This appeal by the successors-in-interest of the original plaintiff, Tufani Nunia, is directed against the judgment and decree dated 12.4.2002 passed by the learned Civil Judge (Senior Division), No. 2 (now Civil Judge), Cachar at Silchar in Title Appeal No. 36/1992, allowing the appeal preferred by the defendant Nos. 1, 2 and 3, against the judgment and decree dated 14.8.1992 (decree drawn on 26.8.1992) by setting aside the judgment and decree passed by the trial court. The predecessor-in-interest of the appellants instituted the Title Suit No. 121/1988 in the Court of the learned Munsiff, No. 2 Cachar at Silchar for declaration of his right, title and interest over the schedule I(A) land, which is part of schedule I land; declaration of his jot right over the schedule I (B) land, under the proforma defendant Nos. 7 to 16 which is also a part of schedule I land; for declaration that the proforma defendants have no right, title and interest and possession over the suit land. The plaintiff also prayed for declaration that the final khatian No. 54 issued in favour of the principal defendants in respect of Schedule II B land is collusive, fraudulent, illegal and void, apart from claiming a decree declaring the final khatian No. 53 to be accordingly amended/corrected after such cancellation of khatian No. 54. The plaintiff also claimed a declaration that he is a tenant under the proforma defendant Nos. 7 to 16 in respect of the schedule land except schedule I (A) land as well as for declaration that the demarcation case No. 48/87-88 instituted before the Sub Deputy Collector (Sadar) Silchar is illegal, inoperative, apart from praying for direction to issue khatian in favour of the plaintiff and also for permanent injunction. It has been pleaded by the plaintiff in the plaint that he vide sale deeds dated 13.11.1967 (Ext. 4) and 19.4.1965 (Ext. 6) purchased two plots of land from the original owner namely Harikrishna Nath and Narendra Nath Choudhury, respectively, who have by the said documents transferred their rights over the land measuring 6 bighas 7 kathas 15 chataks and 10 bighas 2 kathas 14 chataks 10 gandas, respectively, which land forms part of schedule IA land. 4) and 19.4.1965 (Ext. 6) purchased two plots of land from the original owner namely Harikrishna Nath and Narendra Nath Choudhury, respectively, who have by the said documents transferred their rights over the land measuring 6 bighas 7 kathas 15 chataks and 10 bighas 2 kathas 14 chataks 10 gandas, respectively, which land forms part of schedule IA land. It is the claim of the plaintiff that by virtue of such sale the original owners transferred their right, title and interest in favour of the plaintiff and accordingly the plaintiff has acquired the right, title and interest. The further pleaded case of the plaintiff is that he also purchased the jot rights from the landlord Rup Singh vide registered deed dated 10.4.1963 (Ext. 5), in respect of 20 bighas 10 kathas 12 chataks 10 gandas of land in R.S. patta No. 171 and 172 and hence he became the jot right holder over the said land, out of which 5 bighas 6 kathas 8 chataks of land was surrendered by the plaintiff being ceiling surplus land over which the proforma defendant Nos. 17, 18 and 19 got their possession certificate and accordingly possessed the same. The plaintiff has further pleaded in the plaint that the defendants having no possession or jot right over the land collusively included the land in the khatian No. 53 and 54 issued in their names in the year 1977 and being armed with such khatians issued, there was an attempt made to dispossess the plaintiff from the part of the suit land in the middle of May 1988, for which the suit had to be instituted, as aforesaid. 2. The principal defendants on receipt of the summons entered appearance and contested the suit by filing the joint written statement contending inter alia that Mastan Ali, who is the predecessor-in-interest of the defendant Nos. 1 to 5 and the father of the defendant No. 6 took settlement of the land in RS patta 171 covered by dag No. 708/710/711/721 from the landlord on condition of payment of yearly rent and as such they have acquired the status of non evictable occupancy tenant for which the revenue authority after making necessary enquiries issued two khatians being 53 in respect of 25 bighas 2 kathas 8 chataks of land and 54 in respect of 7 bighas 17 kathas of land pertaining to RS 171 and 172. It has further been pleaded that besides that Mastan Ali also purchased jot rights in respect of 7 bighas 6 chataks covered by dag No. 709, 909, 711, 718, 712, 713 in patta No. 172 by registered deed dated 7.12.1957 and 10.4.1958. The defendants, however, in the written statement have admitted the proprietary right in respect of 10 bighas of land in patta No. 172 contending that though the plaintiff has the proprietary right, the possession of the property is with the defendant as the tenant. The further pleaded case of the defendants is that khatian 56 was issued in favour of the plaintiff in respect of the land measuring 6 bighas 6 chataks only in patta No. 172 but the plaintiff has claimed the jot right for more than the said land pertaining to said patta. It has further been pleaded that though the plaintiff has also claimed the jot right in respect of 20 bighas 10 kathas 12 chataks 10 gandas by virtue of purchase from Rup Singh on 10.1.1963 covered by RS patta No. 171 and 172, Rup Singh had no right over the said land to sell such jot right. That apart, the defendants also pleaded that the suit is bad for non joinder of necessary parties. 3. The trial court on the basis of the pleadings of the parties framed as many as following fourteen issues, though there was no requirement to frame fourteen issues in the suit having regard to the lease between the parties: - 1. Is there any cause of action for the suit? 2. Is the suit maintainable in its present form? 3. Whether the suit suffers from defects of parties? 4. Whether the suit is barred by limitation? 5. Whether the plaintiff has got right, title and interest over the schedule IA land? 6. Whether the plaintiff has got jote over the schedule IB land under the proforma defendant Nos. 7 to 16? 7. Whether the final khatian No. 54 in the name of the principal defendants is liable to be cancelled? 8. Whether order of amendment of final khatian No. 53 can be passed by this court legal and factual? 9. Whether the plaintiffs are entitled to a declaration as tenant under the proforma defendant Nos. 7 to 16? 7. Whether the final khatian No. 54 in the name of the principal defendants is liable to be cancelled? 8. Whether order of amendment of final khatian No. 53 can be passed by this court legal and factual? 9. Whether the plaintiffs are entitled to a declaration as tenant under the proforma defendant Nos. 7 to 16 in respect of schedule land except schedule IA land and whether plaintiffs are entitled to a fresh khatian in respect of this land from the revenue authority? 10. Whether this court has jurisdiction to declare demarcation case No. 48/1987-88 as illegal and inoperative? 11. Whether the suit land has been properly described in the plaint and whether it is identifiable? 12. Whether the khatian No. 56 in the name of plaintiffs is a collusive document? 13. Whether the defendants are in occupation of the suit land with homestead thereon? 14. To what relief/reliefs the plaintiffs are entitled to? 4. The trial court upon appreciation of the evidence on record decreed the suit of the plaintiffs in its entirety against which the defendants, as aforesaid, preferred Title Appeal No. 36/1992 which has been allowed vide judgment dated 12.4.2002 by setting aside the judgment and decree passed by the trial court. Hence the present appeal. 5. The appeal was admitted for hearing vide order dated 31.5.2002 by formulating the following substantial questions of law: - 1. Whether the learned First Appellate Court's decision in dismissing the suit for nonjoinder of the Government as a party is sustainable in law? 2. Whether the Khatian issued by the revenue officials without proof of continuous three years' possession could be acted upon by the learned First Appellate Court? 3. Any other substantial question of law that may arise during the course of argument? 6. During pendency of the first appeal before the first appellate court the original plaintiff expired and in his place his legal heirs namely the present appellants were substituted. 7. I have heard Mr. Yadav, learned counsel for the appellants as well as Mr. Banik, learned counsel appearing for the respondents. 8. Referring to the judgment and decree passed by the first appellate court and Order 41 Rule 31 CPC it is contended by Mr. 7. I have heard Mr. Yadav, learned counsel for the appellants as well as Mr. Banik, learned counsel appearing for the respondents. 8. Referring to the judgment and decree passed by the first appellate court and Order 41 Rule 31 CPC it is contended by Mr. Yadav, learned counsel for the appellants that since the first appellate is the final court on facts and law it is required to discuss all the evidences on record more so when the first appellate court reverse the finding recorded by the trial court. It is submitted that the trial court though decreed the suit of the plaintiff in its entirety the first appellate court has set aside the said judgment and decree without even discussing all the relevant evidences on record, Mr. Yadav, learned counsel referring to the findings recorded against issue No. 11 relating to the non furnishing the proper description of the land in schedule IA and IB has submitted that since the schedule IA and IB is part of the schedule A land it cannot be said that the said land is not identifiable for passing an effective decree by the court when the full description of schedule I land is given in the plaint. The learned counsel, therefore, submits that the finding recorded by the first appellate court against issue No. 11 is not sustainable in law. Mr. Yadav, therefore, submits that it is a fit case where the appeal may be remitted to the first appellate court for deciding the same afresh on the basis of the evidences on record. 9. Mr. Banik, learned counsel appearing for the respondent Nos. 1 to 3, who were the appellants before the first appellate court, has submitted that it is evident from the description given in the pleadings in the plaint as well as the schedule IA and IB to the plaint that though the plaintiff claimed right, title and interest in respect of the schedule IA land and jot rights in respect of the schedule IB land, which form part of the schedule I land, there is absolutely no description either of the dag numbers or of the boundaries of the land described in schedule IA and IB though schedule I comprises of 11 dags. It has further been submitted that it cannot be ascertained under which dag, out of 11 dags, of RS patta No. 172 the schedule IA and IB land falls. Mr. Banik further submits that since the khatian Nos. 53 and 54 have been issued in favour of the principal defendants in respect of schedule IIA and IIB land, the Govt. is a necessary party in the suit and in the absence of whom no decree as prayed for by the plaintiff can be granted. The learned counsel further submits that though the first appellate court has not discussed all the evidences on record as required by law, the said judgment and decree does not require any interference in second appeal. 10. I have considered the submissions of the learned counsel for the parties and also perused the judgments and decrees passed by both the courts below apart from the various Exts., attention to which has been drawn by the learned counsel appearing for the parties. 11. It is a settled position of law that the first appellate court being the final court on facts and law is required to decide the appeal upon discussion of all the evidences on record, both oral and documentary, more so when the first appellate court disturbs the findings recorded by the trial court. In case of affirming the finding recorded by the trial court a general agreement with the views expressed by the trial court and with some reasons for affirming the said view may be sufficient. In the instant case the trial court had decreed the suit of the plaintiff in its entirety, which decree, however, has been disturbed by the first appellate court by setting aside the judgment and decree passed by the trial court. The first appellate court, as it appears from the judgment passed, has disturbed the findings recorded by the trial court and set aside the decree without discussing the evidences on record. The said judgment, therefore, cannot be construed to be a judgment required to be passed under Order 41 Rule 31 CPC. 12. The first appellate court, as it appears from the judgment passed, has disturbed the findings recorded by the trial court and set aside the decree without discussing the evidences on record. The said judgment, therefore, cannot be construed to be a judgment required to be passed under Order 41 Rule 31 CPC. 12. It, however, appears from the discussion against issue No. 11 i.e. whether the suit land has been properly described in the plaint and whether it is identifiable, though the trial court has answered the said issue in favour of the plaintiff by holding that since the full description of the property in schedule 1 has been given with dag numbers, the suit in respect of the prayer made for declaration of right over schedule IA and IB land cannot be dismissed for want of description of the property. The trial court, however, did not notice that out of the total land in schedule I the plaintiff claimed right, title and interest and jotdar right in respect of the parts of it. The first appellate court has decided the said issue against the plaintiff after noticing the description of the land given in schedule I A and IB, which form part of schedule I land. 13. For better appreciation schedule I, IA and IB appended to the plaint are quoted below:- SCHEDULE -I In the district Cachar, Ph-Chatla, Mouza-Barjalenga, Part VI, of 2nd R.S. Patta No. 172 of Dag Nos. 709/712/713/717/718/711/716/ 724/715/719/720/709 land measuring 44 B 13 K 3Ch. Dag falls 909 SCHEDULE I(A) Within the schedule I, lands measuring 16B 10K 13Ch 10g of purchased lands of the plaintiff. SCHEDULE I(B) Within the schedule I lands, measuring 28B 2K 5Ch 10G of jot lands of the plaintiffs as the aforesaid lands relates to full dags for which the boundary of the land are not given. 14. While the plaintiff has given the dag numbers as well as patta numbers and land comprising the said dags in full in schedule I, in respect of the land over which the plaintiff claims right, title and interest (schedule IA) and the land over which the plaintiff claims jot right (schedule IB), which are parts of the schedule I land, no description i.e. either the dag numbers or the boundaries thereof have been given. Since the schedule I land comprises of 11 dags it is not known under which of the dags or part of the dags schedule IA and IB land fall. 15. Order 7 Rule 3 CPC requires that where the subject matter of the suit is immovable property the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. 16. The purpose of giving such description of the immovable property, which is the subject matter of the suit, is to enable the court to pass an effective decree. The court will refrain from passing a decree which is not effective and which is not capable of execution in the absence of the specific identity of the land. 17. As discussed above, going by the pleadings in the plaint the schedule IA and IB land is not at all identifiable, as the description of the property sufficient to identify it has not been given. No steps have been taken by the plaintiff to furnish the description of Schedule 1A & 1B land to sufficiently identify the same, despite taking the plea relating to vague description by the defendants in their written statement and framing of issue in that regard, which the plaintiff could have done during pendency of suit before the trial court. The contention of the learned senior counsel for the appellants that after the decree is passed the executing court through the revenue staff can identify the land in respect of which the right, title and interest and jot rights are decreed, cannot be accepted as before passing a decree the court must be sure in respect of which land the right, title and interest and in respect of which land the jot right has been claimed. The executing court also cannot go behind the decree passed. The other contention of the learned counsel that full description of Schedule-1 land having been given, the suit of the plaintiff can be dismissed for want of proper description of Schedule-1A and 1B land, also cannot be accepted for the reason that though Schedule-1 comprises 11 dags in RS patta No. 172, it is not known land in Schedule-1A and 1B falls in which dag(s) or part of it. No descriptions of the boundaries are also given. 18. Having regard to the aforesaid position, the plaintiff, in any case, is not entitled to the relief claimed as against the schedule IA and IB land. It, however, appears that the plaintiff apart from the claim in respect of the schedule IA and IB land have also claimed jot right in respect of land covered by R.S. Patta No. 171 by virtue of purchase vide sale deed dated 10.4.1963 (Ext.-5). 19. As discussed above, the first appellate court which is the final court on facts and law while disturbing the finding recorded by the trial court has not discussed the evidences on record in respect of claim of jot right in respect of land covered by RS patta No. 171 though as the first appellate court is duty bound to do so. 20. In view of the above, the judgment and decree passed by the first appellate court in so far as it relates to the prayer made by the plaintiff for declaration of jot right in respect of the land in R.S. Patta No. 171 is set aside. The case is remitted to the first appellate court to decide the appeal afresh in relation to the claim of the plaintiff for jot right in respect of the land covered by R.S. Patta No. 171. The learned court, however, shall not go into the claim of the plaintiff in respect of the schedule IA and IB land. The said appeal shall be decided on the basis of the evidences already on record. The parties are directed to appear before the first appellate court on 27.9.2012. 21. The said court shall make an endeavour to decide the said appeal within three months from the date of appearance of the parties. 22. The Registry is directed to send down the records forthwith to the first appellate court so as to reach the said court on or before 27.8.2012. The appeal is accordingly partly allowed. No cost.