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2013 DIGILAW 694 (GAU)

Manomaya Khatiwara v. Churamoni Khatiwara

2013-09-19

NISHITENDU CHAUDHURY

body2013
JUDGMENT Nishitendu Chaudhury, J. 1. These two second appeals being RSA No. 218 of 2010 and RSA No. 169 of 2002 have been analogously listed for hearing in view of the fact that the 2 contesting parties in these 2 second appeals have been litigating, claiming title with respect to the same plot of land. The facts involved in the 2 second appeals are summarily narrated in the following paragraphs. The legal battle between the parties was initiated with the institution of Title Suit No. 27 of 1990 by Baidnath Khatiwara against his nephew Churamoni Khatiwara praying for declaration that the defendant of the said suit was Adhiar under the plaintiffs and the said suit was subsequently renumbered as title suit No. 33 of 1990 on being transferred to the Court of the learned Additional District Judge. By filling a written statement in the said suit, defendant Churamoni Khatiwara submitted additional written statement, after the plaint in Title Suit No. 33 of 1990 was amended by the plaintiff, Baidnath and thereby defendant Churamoni denied his status as Adhiar under plaintiff Baidnath and rather claimed the title. Under such circumstances plaintiff Baidnath withdrew title Suit No. 33 of 1990 with liberty to refile and thereafter filed T.S. No. 1 of 1997 in the Court of learned Munsiff at Lakhimpur. But since the suit was valued as Rs. 42,000/-, the plaint was returned for refilling before the appropriate Court and accordingly the new suit being Title Suit No. 1 of 1997 came to be registered in the Court of learned Additional District Judge at North Lakhimpur. 2. But since the suit was valued as Rs. 42,000/-, the plaint was returned for refilling before the appropriate Court and accordingly the new suit being Title Suit No. 1 of 1997 came to be registered in the Court of learned Additional District Judge at North Lakhimpur. 2. In this suit plaintiff described himself as the owner of 11B 1K 1L land in which the defendant Churamoni is described to be Adhiar with respect to half of the land i.e. 5B 3K 1/2 L. The plaintiff stated in the plaint that initially the defendant entered into as Adhiar since the year 1985 and was given the share of Adhi till 1989 but ultimately when he started claiming ownership over the plot of land, the defendant denigrated himself to the status of encroacher and thus without serving any notice under Section54 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971, the plaintiff filed the aforesaid suit in which he not only prayed for declaration of his right, title and interest over Schedule-1 land, but also prayed for ejectment of the Adihar (defendant) from Schedule-2 land appearing in the case. The defendant Churamoni denied to be an Adihar under the plaintiff and also raised the plea of res judicata, challenging maintainability of the suit It is the pleading of the defendant that his name was no where written as Adihar and that he was really the owner of the land and that plaintiff subsequently came from Nepal. It is further stated in Paragraph-8 of the written statement that the allegation of the plaintiff that the defendant wrongly got his name included in the records of rights behind the back of the plaintiff was incorrect and that it is the plaintiff who gave his signature in the chitha recognizing the right of the defendant. With a view to grab the land of the defendant, he had filed title suit No. 39 of 1990 and obtained decree therein. The defendant further pleaded that the trial court decree in Title Suit No. 1/1997 was affirmed by the learned Appellate Court in Title Appeal No. 1/2002 and the second appeal was pending before the High Court at that time. In the title suit while the plaintiff was staking claim of title to the land, same was also the claim of the defendant as well. In the title suit while the plaintiff was staking claim of title to the land, same was also the claim of the defendant as well. On such rival contentions learned trial court framed following 8 issues: "1) Whether there is a cause of action for the suit? 2) Whether the suit is maintainable in its present form? 3) Whether the suit is barred by Res Judicata? 4) Whether the suit is barred by the principle of Estoppel and Waiver? 5) Whether the suit is barred by limitation? 6) Whether the plaintiff has right, title and interest and possession over the suit land? 7) Whether this court has jurisdiction to try this suit? 8) What relief the parties are entitled?" 3. Plaintiff examined as many as 3 witnesses while defendant examined 2 witnesses and both the side produced some documents but none of them produce any document showing their title. While deciding issue No. 6, the learned trial court observed that the P.W. 1 exhibited certified copy of jamabondi being Ext No. 1 which shows that the total land to be 11B 1K 1L under Dag No. 98 of Tariani Rajgarhgaon of Kadam Mouza in the Jamabandi dated 30.11.1988. Nobody else was shown as co-sharer. The learned Court observed that defendant did not submit any document or copy of jamabandi showing his name as owner of the land but according to the claim of the defendant that plaintiff had given signature in the chitha relinquishing his right in favour of the defendant. On these findings, the learned trial court decided the issue in favour of the plaintiff that plaintiff has got right, title and interest in the land in question. The said judgment of the learned trial court was brought in appeal in title appeal No. 1 of 2002 in the Court of learned District Judge at North Lakhimpur. The learned district judge by judgment and order dated 07.08.2008 partly allowed the appeal and held that admittedly defendant being an Adihar he cannot be evicted from the suit land except by following the procedure prescribed under Section 54 Assam (Temporarily Settled Areas) Tenancy Act, 1971. This judgment dated 7.8.2008 has been challenged before this Court by plaintiff Baidnath. The learned district judge by judgment and order dated 07.08.2008 partly allowed the appeal and held that admittedly defendant being an Adihar he cannot be evicted from the suit land except by following the procedure prescribed under Section 54 Assam (Temporarily Settled Areas) Tenancy Act, 1971. This judgment dated 7.8.2008 has been challenged before this Court by plaintiff Baidnath. This court admitted the appeal on 07.12.2010 on sole substantial question of law as follows: "Whether the learned First Appellate Court is justified in refusing to affirm the decree passed by the learned Trial Court for recovery of Khas possession, by holding that the plaintiff has not taken recourse of Section 51 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971, in view of the stand taken by the defendant in the written statement that he is not a tenant under the plaintiff?" 4. I have heard Mr. P.P. Boruah, learned counsel for appellant in the case and Mr. G. Rahul, learned counsel for respondents. 5. Admittedly as per the averments made in the plaint which is the basis of this suit, the plaintiff is the owner of the land and the defendant is stated to be an Adhiar. According to the learned court, these findings have been established. The status of the plaintiff as owner and landlord in respect of the defendant is also the finding of the learned trial court. It is established law that in second appellate stage the status of the landlord and tenant cannot be ascertained in view of the decision of Hon'ble Supreme Court in AIR 1963 SC 361 . However, admittedly the defendant was an Adihar under the plaintiff that being the basic frame of this suit, the plaintiff cannot institute suit against the defendant without serving a notice for his ejectment. This is also precondition under Section 54 of the Assam (Temporarily Settled Areas) Tenancy act. The suit of the plaintiff, therefore, is barred because of failure to give notice under Section 54(2) of the Act. So the concurrent findings of the learned courts below as to landlord and tenant relationship between the parties is to be accepted then the suit of the plaintiff for ejectment of tenant has to be held as not maintainable for non issuance of notice under Section 54(2) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971. So the concurrent findings of the learned courts below as to landlord and tenant relationship between the parties is to be accepted then the suit of the plaintiff for ejectment of tenant has to be held as not maintainable for non issuance of notice under Section 54(2) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971. It is not the case of the appellant that defendant is not an Adhiar. Hence, the substantial question of law framed by this Court has to be decided in the affirmative and in the favour of the defendant and the suit of the plaintiff in so far as it relates to the prayer of ejectment has to be held as not maintainable. 6. It is necessary to make a mention here, more particularly, in view of the fact that there is another pre existing suit in second appeal No. 69 of 2002 wherein alleged Adhiar (Churamoni) has sought a decree for declaring him as owner and the present plaintiff as a licensee. The plaintiff in the present suit has no document at his possession to rely on except entries in the records of rights to stake a claim of title. So is the situation in the second suit out of which RSA No. 169 of 2002 has arisen. Before making any comment in regard to title of the parties to the land in question it is, therefore, necessary to discuss the said suit as well. 7. RSA No. 169 of 2002 deals with the said plot of land which is the subject matter of the above second appeal, namely, RSA No. 218 of 2010. The suit out of which this second appeal has arisen was instituted by Churamoni against Baidnath in title suit No. 39 of 1990. In this suit, plaintiff Churamoni claims title to a total of 11E 1K 1L of land, though he is the owner of 5E 3K 1/2L of land, recorded in the joint name of the plaintiff Churamoni and defendant Eaidnath in Patta No. 1 of Mouza Tariani under Dag No. 98. The plaintiff of this suit Churamoni claims exclusive title to half of the aforesaid land being 5B 3K 1/2L. The plaintiff stated that Baidnath came from Nepal in the year 1989 and pursued the land of the plaintiff to part with half of the aforesaid land. The plaintiff of this suit Churamoni claims exclusive title to half of the aforesaid land being 5B 3K 1/2L. The plaintiff stated that Baidnath came from Nepal in the year 1989 and pursued the land of the plaintiff to part with half of the aforesaid land. But he after getting land filed the Title Suit No. 27 of 1990 claiming ownership and describing the plaintiff as Adihar. Under such circumstances filing of the suit by Churamoni had become necessary to get his title adjudicated in accordance with law. Baidnath as defendant in this case had submitted a written statement reiterating his case as stated in the plaint of Title Suit No. 27 of 1990 (title suit No. 30 of 1990) and did not admit that the he was a licensee. In this case also the learned court framed as many as 7 issues and these are also quoted below: "i) Whether there is cause of action for the suit? ii) Whether the suit is maintainable? iii) Whether the suit land exclusively belong to the plaintiff and the plaintiff has right, title and possession over the suit land? iv) Whether the suit was mutated in accordant with law? v) To what reliefs if any of the plaintiff is entitled? vi) Whether the suit land has been possessing by the plaintiff from the life time of father? vii) Whether the plaintiff is entitled to get the permanent injunction?" 8. The learned Court held that plaintiff Churamoni succeeded to establish his case of ownership and defendant Baidnath as permissive occupier. With these findings, the trial Court by judgment dated 04.02.1992 dismissed the suit in its entirety and then defendant Baidnath preferred title appeal No. 5 of 1992 in the Court of Additional District Judge on North Lakhimpur and the said appeal was also dismissed. Thereafter, a second appeal was preferred before this Court and this Court by judgment and decree dated 24.11.1998 allowed the second appeal and remanded the case to first appellate Court. Upon remand, the first appellate court by the judgment dated 04.05.2002 held, inter alia, as follows: "It is seen that the land belonged to both the plaintiff and the defendant the extent of possession of the plaintiff is not ascertainable; the plaintiff did not sought any right title and interest over the possessed land as there was no partition of the suit land." 9. It is held that since the land belonged to both the plaintiff and defendants, the extent of possession of the plaintiff is not ascertainable, the plaintiff did not seek any right, title and interest over the possessed land and there was no boundary of the suit land also. But holding that plaintiff Churamoni does not have any cause of action the suit of the plaintiff was dismissed on appeal. Nevertheless, the finding on merit that both the plaintiff and the defendant has got title to the suit remains and the same is not challenged by the defendant of that suit (Baidnath) by filing any cross appeal or cross objection under Order XLI Rule 22 of the CPC. Thus comparing the judgment in its entirety, the appeal arising out of the title suit of No. 1 of 1997 instituted by Baidnath against Churamoni title of Baidnath was declared by learned courts below and at the same time the title of Churamoni with respect to the same land has also been held by both the Courts below in the title suit No. 29 of 1990 and in the appeal preferred there against for which the present second appeal has arisen. So there is an apparent contradiction of judicial decision in regard to title of the same plot of land. This controversy of facts as well as law could have been avoided if both the suits would have been tried together in accordant with law. In the case of State of India Vs. Raj an Chemical reported in (2007) 1 SSC 97 the Hon'ble Supreme Court if common question of law and facts arise in 2 proceedings and plaintiff of one is defendant in another and there is chance of over lapping of decision and evidence, those 2 suits should always be heard together. It is necessary to mention here that the plaintiff of either suit has not produced and proved any document of title in their respective suit. None of them has disclosed the source from which they have derived title. Under such circumstances and in view of law laid down in the case of Rajan Chemical (Supra), I feel inclined to allow both the second appeal by setting aside judgments of the learned courts below. None of them has disclosed the source from which they have derived title. Under such circumstances and in view of law laid down in the case of Rajan Chemical (Supra), I feel inclined to allow both the second appeal by setting aside judgments of the learned courts below. The learned counsel for both the sides submit that the judgments of the Courts below were required to be set aside and the parties should be given a chance to prove their rights for adjudicating the suit afresh by way of leading fresh evidence and as such they pray for remanding the case to the trial court. Accordingly, the respective judgments of the trial courts as well as first appellate courts in title suit No. 1 of 1997 as well as title suit No. 39 of 1990 and the respective appeals are hereby set aside. Both the suits shall be transmitted to the Court of learned Civil Judge, North Lakhimpur in view of the law laid down in Rajan Chemical (supra). 10. Let the records of both the suits, namely, Title Suit No. 1 of 1997 and title suit No. 39 of 1990 be sent down to the learned Civil Judge, Lakhimpur immediately. Parties shall appear before the learned Civil Judge, lakhimpur, on 18.11.2013 for taking necessary orders from the learned court. It is needless to say that both the parties shall be given liberty to adduce more evidence both oral and documentary, if so advised. Second appeals are disposed of.