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2013 DIGILAW 22 (SIK)

Furden Tshering Bhutia v. Payzee Bhutia (Sherpa)

2013-07-29

PIUS C.KURIAKOSE, S.P.WANGDI

body2013
Judgment Wangdi, J. This Appeal arises from the impugned judgment of the Learned District Judge, South & West Sikkim at Namchi dated 13-03-2013 in Title Suit Case No.07 of 2004 by which the suit filed by the Appellants was dismissed. 2. The facts of the case so far as relevant for disposal of this Appeal are that Title Suit No.07 of 2004 was filed by the Appellants against the Respondents No.1, 2 and 3, in the Court of the Learned District Judge, South and West Sikkim at Namchi, for declaration of title and other consequential reliefs in respect of plots No.76, 77 and 78 measuring about 0.2660 hectare, 1.3550 hectare and 0.1500 hectare respectively standing in the name of Late Topching Bhutia @ Topchen Bhutia (Lama) situated under Thangsing Block, Bermiok, South Sikkim. It is stated that the Appellants are the sons of Late Karma Tshering Pintso Bhutia @ Sepchung Bhutia who also died on 08-12-1981. Late Karma Tshering Pintso Bhutia @ Sepchung Bhutia, the father of the Appellants, was the only son of Late Topching Bhutia @ Topchen Bhutia (Lama) who was in enjoyment and possession of the suit properties during his entire lifetime along with the Appellants. 3. Respondent No. 1, Payzee Bhutia, is the eldest of the 3 daughters of Topching Bhutia @ Topchen Bhutia who was married to one Passang Sherpa. It is stated that the Respondent No. 1 had made an application before the District Collector, South Sikkim, the Respondent No.5, on 28-08-2001 requesting for mutation of the suit land in her name on the basis of documents alleged to have been manufactured and a false report obtained from the Revenue Supervisor. It is alleged that it was only later that the Appellants came to learn of the mutation having been allowed by the Respondent No.5 from his Office which led them to file an objection before the District Collector, Namchi, South Sikkim. 4. Without delving further into the facts of the case, it is sufficient for the disposal of this Appeal to record that the matter ultimately resulted in the Appellants filing Title Suit No.07 of 2004 in the Court of the Learned District Judge, South and West Sikkim at Namchi, inter alia, praying for declaration of their title over the suit properties and for cancellation of the Order of mutation passed by the Respondent No.6 which ultimately suffered dismissal by judgment dated 22-10-2008. In the Appeal filed by the Appellants against that judgment being RFA No.07 of 2011, this Court having found that the Learned Trial Court had not considered and decided on all the 14 issues that it had framed, remanded the case back to the Learned Trial Court with the following directions:- “(i) The trial Court is directed to re-admit the suit under its original number in the register of civil suits. (ii) The trial Court will fix the onus upon the parties for providing the issues already framed. (iii) The evidence recorded during the original trial shall, subject to all just exceptions, be evidence during the trial. (iv) The parties shall be allowed to lead further evidence in support of their respective claims/issues. (v) Since the suit is pending for the last more than 8 years the trial Court shall proceed to decide the suit finally not later than 6 (six) months. The dates in the case shall be fixed not later than 15 (fifteen) days and no adjournment shall be granted unless necessary and by recording reasons. (vi) The parties will appear before the trial Court on 21.05.2012.” 5. The grievance of the Appellants in the present Appeal is that despite such clear directions issued by this Court, the Learned Trial Court has once again committed the very same error in disposing of the suit by giving findings only on two of the 14 issues framed by it. 6(i). Before us Mr. B. Sharma, Learned Senior Counsel, submitted that the impugned judgment was clearly in conflict with the directions of this Court dated 01-05-2012 passed in RFA No.07 of 2011 and also the procedure laid down under Order XIV Rule 2 of the Code of Civil Procedure, 1908. (ii) Mr. S.S. Hamal, Learned Counsel, appearing on behalf of the Respondents No. 1 to 3, fairly concedes to this position. 7. In view of the above, we are clearly of the view that the matter requires to be remanded back to the Learned Trial Court for consideration of the entire matter afresh. We observe with a sense of deep concern that the Learned Trial Court appears to have completely overlooked the clear and categorical directions issued by this Court in our judgment dated 01-05-2012 in RFA No.07 of 2011 and also has fallen in grave error in not noticing the statutory provisions. We observe with a sense of deep concern that the Learned Trial Court appears to have completely overlooked the clear and categorical directions issued by this Court in our judgment dated 01-05-2012 in RFA No.07 of 2011 and also has fallen in grave error in not noticing the statutory provisions. For the sake of convenience, Order XIV Rule 2 CPC is reproduced as under:- “2. Court to pronounce judgment on all issues.—(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to— (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” 8. Mr. B. Sharma submits that he has filed an application seeking to place on record certain documents in CM Appl No.57 of 2013. We are not inclined to allow the application at this stage but would rather choose to transmit it along with the objection thereto filed by Mr. S.S. Hamal, Learned Counsel for Respondents No. 1 to 3, for consideration by the Learned Trial Court leaving upon its discretion to give a decision on the matter. 9. The Learned Trial Court is directed to reconsider the entire matter with the additional directions as contained hereunder:- (i) The suit shall be restored to its original number; (ii) The other directions contained in the earlier judgment of this Court in RFA No.07 of 2011 dated 01-05-2012 shall stand as if it has been passed in this appeal also; and (iii) The entire process shall be completed in not later than 6 (six) months from hence. 10. For the aforesaid reasons, the Appeal is allowed and the impugned judgment of the Learned District Judge, South & West Sikkim at Namchi dated 13-03-2013 in Title Suit Case No. 07 of 2004 naturally stands set aside. 10. For the aforesaid reasons, the Appeal is allowed and the impugned judgment of the Learned District Judge, South & West Sikkim at Namchi dated 13-03-2013 in Title Suit Case No. 07 of 2004 naturally stands set aside. 11. The parties shall appear before the Learned Trial Court on 14-08-2013. 12. No order as to costs. 13. Let a copy of this judgment along with the original records of the case be transmitted forthwith to the Learned District Judge, South and West Sikkim at Namchi for necessary compliance.