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2015 DIGILAW 1145 (GAU)

Mugkuchi Gopal Mandir v. Tarun Haloi

2015-09-07

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. U. Dutta, learned counsel for the appellant. None appears for the respondent. 2. This second appeal is preferred against the judgment and decree dated 24.12.2004 passed by the learned Civil Judge (Senior Division), Nalbari in Title Appeal No.14/2004, allowing the appeal and setting aside the judgment and decree dated 19.06.2004 passed by learned Civil Judge (Junior Division) No. 2, Nalbari in Title Suit No. 21/2003, whereby the suit of the plaintiff was decreed. 3. The second appeal was admitted to be heard by an order dated 01.06.2005 on the following substantial questions of law:- “1. Whether the learned lower appellate Court committed illegality in reversing the judgment and decree passed by the learned trial Court without setting aside the findings recorded by the trial Court under Issue Nos.3 and 4 ? and 2. Whether the findings recorded by the learned lower appellate Court that the defendant/Respondent was settled with the suit land is perverse on the face of documents exhibits “Ka” and “Kha?” 4. The case of the plaintiff is that the plaintiff, which is a religious institution, was allotted 1 Bigha 1 Katha 9 Lecha of land of Dag No.327 of Village-Mugkhuchi vide order Memo No. RSS 250/99/10 dated 21.05.1999. The plaintiff started possessing the land and a tank was dug. However, the defendant encroached upon 11 Lecha of land on the northern side on 20.01.2002 and he made preparation to raise permanent structure. Accordingly, suit was filed by the plaintiff for declaration of right, title and interest and for khas possession as well as for permanent injunction. 5. Defendant filed written statement admitting that about 40’ away from his homestead, there is a Mandir. Digging of any tank by the plaintiff was denied and it was asserted that the disputed 11 Lecha of land is part of homestead land of the defendant. It was pleaded that original Dag No.238 contained 2 Bigha 4 Katha 14 Lecha of land in K.P. Patta No.28 and the same belonged to the father of the defendant. There was Government land on the southern boundary of Dag No.238 and during the settlement in the year 1960, 4 Katha 9 Lecha out of Dag No.238 was included in Sarkari Dag No.327 without the knowledge of the defendant. An eviction case was instituted being Eviction Case No.341/86-87 in respect of encroachment of 11 Lecha of land. There was Government land on the southern boundary of Dag No.238 and during the settlement in the year 1960, 4 Katha 9 Lecha out of Dag No.238 was included in Sarkari Dag No.327 without the knowledge of the defendant. An eviction case was instituted being Eviction Case No.341/86-87 in respect of encroachment of 11 Lecha of land. However, the case was amicably settled and defendant continued to possess the land peacefully. Subsequently, again Eviction Case No.2/2002-03 was started at the behest of the plaintiff. However, the State Land Advisory Committee vide its resolution No.72 dated 29.05.2003 decided to allot the land measuring 11 Lecha to the defendant. 6. On the basis of the pleadings, following issues were framed:- “1. Whether there is cause of action for the suit ? 2. Whether the suit is bad for non-joinder of necessary parties ? 3. Whether the land measuring 1 Bigha 1 Katha 9 Lecha under dag No.327 was allotted to the Mugkuchi Gopal Mandir by the Govt. of Assam and whether the suit land is a part of the said land allotted in favour of the Mugkuchi Gopal Mandir ? 4. Whether the plaintiff has right, title, and interest over the suit land? 5. Whether the plaintiff is entitled to the relief as claimed for ? 6. To what relief/reliefs the parties are entitled to ?” 7. The plaintiff examined 4 witnesses and also exhibited documents marked as Exts-1 to 4. Defendants examined 3 witnesses and also exhibited 4 documents marked as Ext-ka to gha. 8. Mr. Dutta has submitted that impugned judgment of the learned lower Appellate Court cannot be construed to be a judgment in accordance with Order 41 Rule 31 CPC. The learned counsel submits that the learned lower Appellate Court wrongly assumed that there was admittedly an eviction case being 2/2000-01 initiated against the defendant by the Deputy Commissioner, Nalbari, which was exhibited as Ext-gha. Mr. Dutta has submitted that in the facts and circumstances of the case and having regard to the nature of the judgment passed by the learned lower Appellate Court, it will also be appropriate to frame one more substantial question of law to the effect as to whether impugned judgment of the learned lower Appellate Court is vitiated on account of the same being not a judgment in terms of Order 41 Rule 31 of CPC. 9. Upon hearing Mr. 9. Upon hearing Mr. Dutta, the following additional substantial question of law is also framed: “whether impugned judgment of the learned lower Appellate Court is vitiated, the same being not a judgment in terms of Order 41 Rule 31 CPC ?” 10. Mr. Dutta submits that the case projected by the defendant was a notice issued to defendant being Eviction Case No.2/2002-03. However, holding that the eviction notice was issued in the year 2000-01, the learned lower Appellate Court held that it was apparent that the defendant was in possession of the suit land prior to 20.01.2002, the date of alleged dispossession by the defendant, i.e., the date of cause of action for filing the suit and accordingly, held that the plaintiff has no right, title and interest over the said 11 Lecha of land allotted by the Government to the defendant. It is submitted that the impugned judgment of the learned lower Appellate Court, in these circumstances, deserves to be set aside and the matter is to be remanded back to the learned lower Appellate Court for fresh disposal. 11. I have considered the submissions of the learned counsel for the appellant. I find substance in his argument. Perusal of the judgment of the learned lower Appellate Court goes to show that there is no discussion of the evidence on record. 12. It was pleaded by the defendant that an eviction case being Eviction Case No.2/2002-03 was started against him and the learned lower Appellate Court proceeded with the appeal considering that eviction case bearing No.2/2000-01 was initiated against the defendant. The same is not found to be in consonance with the pleading of the defendant. In Ext-gha, there is no date and memo number. What will be the effect of Ext-gha in absence of any pleading is to be considered. The learned lower Appellate Court did not consider these aspects of the matter and merely on the basis of the alleged Eviction Case No.2/2000-01, the suit of the plaintiff was dismissed. It is also noticed that findings recorded by the learned Trial Court in Issue No.3 and 4 were also not set aside. 13. Ext-gha is found in the records of Misc.(J) No.9/2003. Documents exhibited in the suit are to be kept in the assigned place and not scattered here and there in all the records. 14. It is also noticed that findings recorded by the learned Trial Court in Issue No.3 and 4 were also not set aside. 13. Ext-gha is found in the records of Misc.(J) No.9/2003. Documents exhibited in the suit are to be kept in the assigned place and not scattered here and there in all the records. 14. In case of judgments of reversal, it is incumbent on the part of the learned lower Appellate Court to advert to the evidence record to arrive at its finding. However, it is noticed that in the instant case, without examining the materials on record in the correct perspective, the impugned judgment was passed by the learned lower Appellate Court. 15. On consideration of the materials available on record, the impugned judgment of the learned lower Appellate Court having been found to be vitiated, the same is set aside and the appeal is remanded back to the learned lower Appellate Court for fresh disposal in accordance with law. Substantial question off law framed to-day is answered in favour of the appellant. As the appeal is remanded, the court need not answer the other two substantial questions of law framed. No cost. 16. Registry will send back records.