Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 687 (GAU)

Ratan Lal Saha v. Gossaigaon Town Committee

2013-09-17

NISHITENDU CHAUDHURY

body2013
JUDGMENT Nishitendu Chaudhury, J. 1. This Second appeal is directed against the judgment of reversal passed by the learned Civil Judge (Senior Division), Kokrajhar in Title Appeal No. 3 of 1999 allowing the appeal of defendant/respondent No. 2 and thereby setting aside the judgment and decree dated 26.09.1997 and 21.01.1998 respectively, passed by the learned Civil Judge (Junior Division) No. 2, Kokrajhar in Title Suit No. 7 of 1994. The learned first appellate Court by its judgment under challenge dismissed the suit of the plaintiff/appellant. One Ratan Lal Saha appellant herein as plaintiff instituted tile suit No. 7 of 1994 in the Court of learned Munsiff No. 1, Kokrajhar stating that a plot of land measuring 9 B 3 K 6 Lechas was formerly under possession of Dhubri Local Board and since 1958 the petitioner's father occupied the plot of land measuring 2 lechas which is 7ft in length and 4ft in breadth over land covered by Dag No. 189 of Khatian No. 1 to the knowledge of all including the State of Assam. After the death of Ratan Lal Saha, petitioner continued with the possession and has been running a Pan Shop in the said plot obtaining license under the Assam Municipal Act, 1956. It is the pleaded case of the plaintiff that after dissolution of Dhubri Local Board, the land stood returned to the Government of Assam and with the constitution of Gosaigaon Town Committee in the year 1972, the land was neither acquired by the Government nor did the Government vest the same on the Town Committee and as such the right of Padalal Saha (father of the plaintiff, now deceased) acquired in the year 1958 due to uninterrupted possession over the plot of land in question and continuance of the possession of the plaintiff openly and hostile to the interest of others matured into valid title by right of adverse possession. The plaintiff further contended that Lal Mandal of the State of Assam visited the land and threatened the plaintiff with dispossession, for which the plaintiff issued notice under section 80 CPC against the State of Assam stake claim of adverse possession. After the expiry of the statutory period of 60 days, the suit, therefore, was instituted for declaration of right, title and interest by way of adverse possession. 2. After the expiry of the statutory period of 60 days, the suit, therefore, was instituted for declaration of right, title and interest by way of adverse possession. 2. The defendant No. 1, herein, the State of Assam, submitted a written statement through the Collector of the Kokrajhar district pleading, inter aha, that the land was not a Khas land, but a patta land under the Sub-Divisional Officer, Kokrajhar, who was shown as pattadar in the records of rights. The said defendant No. 1 did not say that the land was acquired and vested otherwise on the defendant No. 2, namely, Gossaigaon Town Committee under Section 62(1)(e) of the Assam Municipal Act, 1956 or by any other law for the time being in force. On the other hand, defendant No. 2 submitted a written statement claiming that the land being a market place vested on it under Section 62(1)(e) when Gosaigaon Town Committee was established in the year 1972. Since the plaintiff had been paying tolls against occupation of the shop under the municipality, it could not have acquired the right of the adverse possession. 3. On the basis of such contradictory claims of all the three parties as referred to above, the learned trial court framed as many as 7 issues and the same are quoted below: "1) Whether there is any cause of action? 2) Whether the suit is barred by law of limitation? 3) Whether the suit is bad in law for nonjoinder and mis-joinder of parties? 4) Whether the plaintiff has continuous possession adversely against the defendant have acquired ay right, title and interest over the suit land? 5) Whether the plaintiff by opening shop daily is public marked any by paying daily tolls to the lessee of the market acquire states of land holder under land laws? x x x x x x x x x x 6) Whether plaintiff can assert to claim open adverse possessional right against the defendant being a toll payer to the lessee? 7) Whether the Town Committee by virtue of Govt. Notification U/S 334 A.M. Act acquire the uninterrupted rights of the market land under provision of Section 62(1) of A.M. Act for over all management and development?" 4. The plaintiff examined 2 witnesses and the defendant No. 2 also examined 2 witnesses. Defendant No. 1 did not examine any witness and did not produce any record. Notification U/S 334 A.M. Act acquire the uninterrupted rights of the market land under provision of Section 62(1) of A.M. Act for over all management and development?" 4. The plaintiff examined 2 witnesses and the defendant No. 2 also examined 2 witnesses. Defendant No. 1 did not examine any witness and did not produce any record. Defendant No. 2, namely, Gosaigaon Town Committee, has not produced any notification/order of 1972 whereby the land is claimed to have vested on the defendant No. 2 by operation of Section 62(1)(e) of the Assam Municipal Act, 1956. After perusal of the materials on record the learned trial court decreed the suit holding that the right, title and interest of the suit land really vested on defendant No. 1. and same got extinguished because of adverse possession of the plaintiff. The said judgment was passed on 26.09.1997. 5. Aggrieved, the defendant No. 2 as sole appellant preferred title appeal No. 3 of 1999 in the Court of learned District Judge at Kokrajhar, without, however, making the defendant No. 1 a party. The plaintiff was impleaded as sole respondent who appeared and contested the appeal, inter alia, on the point of maintainability. The defendant No. 1 who is stated to be the holder of title of land in question either as khas land or as patta land on the basis of patta in favour of Sub-Divisional Officer of Kokrajhar did not prefer any appeal and thus, the decree of trial court attained finality in so far as the defendant No. 1 is concerned. But without considering this aspect of the matter, the learned appellate court by his judgment and decree dated 20.12.2001 allowed the appeal holding that the petitioner did not acquire any right of adverse possession against the defendant No. 2 and consequently the suit of the plaintiff was dismissed. This appellate judgment of reversal has been brought under challenge in the present Second Appeal. This Court while admitting this Second Appeal on 26.04.2002 framed 2 following substantial questions of law: "i) Whether the learned lower appellate court was justified in reversing the decree in the appeal filed by the Gossaigaon Town Committee in absence of the main defendant the State of Assam? This Court while admitting this Second Appeal on 26.04.2002 framed 2 following substantial questions of law: "i) Whether the learned lower appellate court was justified in reversing the decree in the appeal filed by the Gossaigaon Town Committee in absence of the main defendant the State of Assam? ii) Whether the impugned judgment and decree of the learned lower appellate court is vitiated by error of law due to consideration of documentary evidence in the form of Exhibit 'A' 1, 2, C, D-1, D-2 and D-3?" 6. I have heard Mr. B.R. Dey, learned Senior Counsel assisted by Ms. B. Das and Mr. S. Dey, learned counsel for appellant. None appeared for the respondents although the name of engaged counsel Mr. K.K. Nandi has been shown in the cause list. Learned Government Advocate was also not available when the appeal was called on for hearing. Under such circumstances, I have to precede to decide the appeal ex-parte in the absence of the engaged counsel of the respondents. 7. It is the pleaded case of the plaintiff/appellant that the suit land belonged to the Government and it never vested on the defendant No. 2 though the defendant No. 2 by filing written statement claimed to have acquired title but no notification whatsoever has been brought on record to substantiate the said claim. On the other hand, the defendant No. 1 the State of Assam, has taken a specific stand that the land was neither Khas nor vested on anybody rather it is a patta land owned by Sub-Divisional Officer, Kokrajhar. Thus, the claim of the defendant No. 2 that it is Municipality land or that it is a market land or that the same has vested on the defendant No. 2, though pleaded, could not be established by adducing evidence. The only evidence that has been brought on record by the defendant No. 2 is that the licenses given to the plaintiff for running shop. Exhibit-A is an application submitted by one Kanailal Joarder and others showing that they were ready to remove their existing shops and electrification when Town Committee would inform them. Exhibit-A (ii) is a similar letter addressed to Executive Officer of Gosaigaon Town Committee. Exhibit-B is an advertisement issued by the Executive Officer of Gossaigaon Town Committee proposing to go for construction of market area with certain terms and conditions. Exhibit-A (ii) is a similar letter addressed to Executive Officer of Gosaigaon Town Committee. Exhibit-B is an advertisement issued by the Executive Officer of Gossaigaon Town Committee proposing to go for construction of market area with certain terms and conditions. Upon perusal of the said advertisement, I do not find any Dag number or patta number therein to connect the same with the present suit land. On the other hand, the plaintiff has produced certain documents. Exhibit-3 is a receipt of license for running a Pan Shop. So are the Exhibits-2 and 5. It is true that the land falls within the area of Town and as such any trader is bound under law to obtain trade license for running his business. Such a trade license for running a Pan Shop cannot be interpreted to be a document of license against the possession of land, more so, when there is nothing on record to hold that the land vested on the Town Committee. The decree has been passed against the defendant No. 1, the Officer of which had threatened the plaintiff for eviction. The learned trial court held that the defendant No. 1 was the real title holder, irrespective of whether the land was a patta land or a khas land. It was also held that such title of the pattadar stood extinguished because of adverse possession of the plaintiff since 1958. In this view of the matter decree passed by the learned trial court is really against the defendant No. 1. The said defendant No. 1 admittedly has not preferred any appeal. The defendant No. 2 preferred the appeal on behalf of itself without; however, impleading the defendant No. 1 as a party. Section 99 CPC prohibits setting aside or modifying a decree of trial court on the ground of non-joinder of a party. But the proviso appended thereto shows that such a provision would not apply if the party not joined is a necessary party. Here in this case, it cannot be said by any stretch of imagination that the defendant No. 1 against whom the decree was passed is not a necessary party and as such failure to implead such a necessary party can definitely vitiate the appeal. This position that by non-impleading a necessary party vitiate an appeal can be tested from different angle. Assuming that a decree is directed against both the defendants. This position that by non-impleading a necessary party vitiate an appeal can be tested from different angle. Assuming that a decree is directed against both the defendants. In that event failure of one of the defendants to challenge the decree and allowing the decree to attain finality and thereafter appeal by the other defendant without the non appealing defendant party cannot affect the right of decree holder accrued to him owing to passivity of a defendant. It is not in doubt that the suit relates to only one plot of land measuring 7ft by 4ft and as such when this 7ft by 4ft is claimed by 2 defendants and decree by one such defendant attains finality, maintaining appeal by the other party without bringing on record the non appealing party, would result in severe once a decree which is otherwise not severable. In that event also the decree of injunction against to one of the contesting defendants would remain in force whereas the same as apart another would cease to exist, if, the appeal is allowed. So, such an exigency shall give rise to dichotomous position. Hence in this case decree of prohibitory injunction against defendant No. 1 remained in force whereas because of the impugned judgment the same against defendant No. 2 stood vacated. Can such a situation be visualized when the suit land is same, unpartitioned and compact? This only points out that the appeal has to be held incompetent in the absence of defendant No. 1. Consequently, appellate judgment allowing such appeal is not sustainable in law. The first substantial question of law, therefore, is decided infavour of the appellant and against the defendants. 8. Having held that the appeal itself is incompetent and as such the appellate judgment is not sustainable in law, there is no necessity of deciding the second substantial question of law, which only relates to validity of the appellate decree for non consideration of certain exhibits. If the appeal itself is incompetent, by questioning, whether the appellate Court did or did not consider those exhibits, is irrelevant? Therefore, the second substantial question of law is abandoned being not relevant. In the result the second appeal is allowed. If the appeal itself is incompetent, by questioning, whether the appellate Court did or did not consider those exhibits, is irrelevant? Therefore, the second substantial question of law is abandoned being not relevant. In the result the second appeal is allowed. The impugned appellate judgment passed by the learned Civil Judge Senior Division, Kokrajhar, is set aside and the learned trial court decree passed by the learned Civil Judge Junior Division No. 2, Kokrajhar, in title suit No. 7 of 1994 is restored. 9. Draw up a decree accordingly and send down the records to the learned courts below. No order as to cost.