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2015 DIGILAW 159 (GAU)

NANDRAM DAS v. BHADRESWAR HAZARIKA

2015-02-11

N.CHAUDHURY

body2015
ORDER (ORAL) This first appeal at the instance of defendant No. 1 of Title Suit No. 34/1999 is directed against judgment and decree dated 06.09.2003 passed by learned Additional District Judge (Adhoc), Jorhat in the aforesaid title suit decreeing the suit of the plaintiff for declaration of right, title and interest and for recovery of possession over schedule B land measuring 4 kathas. 2. The respondent No. 1 herein, as plaintiff, instituted T.S. No. 34/1999 in the Court of learned Civil Judge (Sr. Divn.) at Jorhat on 23.06.1999 stating that land measuring 1 bigha 2 kathas 5 lechas covered by dag No. 205 of PP No. 85 of Baliparia Baga Gaon in Titabor mouza of Jorhat district and more particularly described in schedule A to the plaint is his land. He has valid right, title and interest with respect thereto but the defendant No. 1 who was a neighbour at the northern boundary of this land, dispossessed the plaintiff from 4 kathas described in schedule B. He raised protest on such dispossession. After having come to know about this dispossession, defendant No. 1 immediately lodged a complaint with the jurisdictional Executive Magistrate on 04.04.1992 leading to registration of a proceeding under Section 145 Cr.P.C. vide No. 125/1992. It is thereafter, the defendant No. 1 filed a civil suit being Title Suit No. 49/1992 in the Court of learned Munsiff No. 2 at Jorhat on 04.11.1992 praying for declaration of his right, title and interest allegedly on the ground of exchange from its purported original owner, one Dhuruka Kaibartya, the predecessor of the principal defendants No. 2 and 3 herein. The learned trial court decreed Title Suit No. 49/1992 on 20.04.1996 declaring right, title and interest of defendant No. 1 on the suit land and also decreed prayer of injunction against the present plaintiff with confirmation of possession. Aggrieved, the present plaintiff, as appellant, preferred title appeal being T.A. No. 8/1996 in the court of learned Civil Judge (Sr. Divn.) at Jorhat whereupon the appeal was partly allowed setting aside the part of the decree as to declaration of right, title and interest over the present defendant No. 1 but confirming his possession over the same land. Aggrieved, the present plaintiff, as appellant, preferred title appeal being T.A. No. 8/1996 in the court of learned Civil Judge (Sr. Divn.) at Jorhat whereupon the appeal was partly allowed setting aside the part of the decree as to declaration of right, title and interest over the present defendant No. 1 but confirming his possession over the same land. According to the present plaintiff, the said decree is not binding on him and he is entitled to a decree of declaration as to right, title and interest along with a decree for recovery of khas possession. 3. On being summoned, the defendant No. 1 appeared and submitted written statement denying the case of the plaintiff and also making mention that that he had instituted T.S. No. 49/1992 with respect to the same plot of land and between the same set of parties and his right, title and interest was declared in that case. On being appealed against, the decree was modified maintaining the decree of confirmation of possession but setting aside decree for declaration of right, title and interest. The defendant No. 1, therefore, pleaded that suit was not only barred by the principle of res-judicata but it was also barred by limitation. On the basis of such pleadings, the learned trial court framed as many as 10 (ten) issues and the same are quoted below: 1. Whether there is any cause of action for this suit? 2. Whether the suit is barred by principle of res judicate? 3. Whether the suit is barred by limitation? 4. Whether the suit is properly valued and stamped? 5. Whether the plaintiff has right, title and interest over the suit land (described in Schedule A of the plaint)? 6. Whether the defendant No. 1 has acquired title over the land described in schedule B of the plaint? 7. Whether the plaintiff is entitled to get a declaration that the finding in T.A. 8/96 is not enforceable in law? 8. Whether the defendant No. 1 is liable to be evicted from the Schedule B land and whether the plaintiff is entitled to get khas possession in respect of Schedule B land? 9. Whether the plaintiff is entitled to get relief as prayed for? 10. Reliefs? The following additional issue was also framed subsequently :- 11. Whether the suit is maintainable in the present form? 4. 9. Whether the plaintiff is entitled to get relief as prayed for? 10. Reliefs? The following additional issue was also framed subsequently :- 11. Whether the suit is maintainable in the present form? 4. Plaintiff examined as many as two (2) witnesses and exhibited three (3) documents in his support while none of the defendants adduced any evidence on their behalf. After consideration of the materials available on record, the learned trial court decided all the issues in favour of the plaintiff. Learned trial court held that the suit was neither barred by limitation nor by principle of res-judicate. It is this judgment of the learned trial court which has been brought under challenge in the present first appeal. 5. Upon the aforesaid fact and circumstances, the principal point of determination that emerges in the case is as follows: Whether suit of the plaintiff is barred by limitation? 6. I have heard Mr. GN Sahewalla, learned senior counsel assisted by Ms. B Sarma for the appellant. None appears for the respondents although notices were duly served. 7. Mr. Sahewalla submits that the earlier round of litigation emanating from T.S. No. 49/1992 of the Court of learned Munsiff No. 1, Jorhat culminated in first appeal being T.A. No. 8/1996 of the Court of learned Civil Judge (Sr. Divn.) at Jorhat. This appellate judgment and decree attained finality and no further appeal was brought against the same before this Court. It was the finding of fact of the learned first appellate court on earlier occasion that the defendant No. 1/ present appellant came into possession of the suit land in the year 1986 and he made construction of a pucca granary in the year 1988 on the suit land. The suit was instituted on 23.06.1999 clearly much beyond the statutory period of 12 years and thus the suit is clearly barred by limitation. I have perused Ext. 3, the appellate judgment in T.A. No. 8/1996. Even in the impugned judgment and decree, the learned trial court found that the present suit and the former one related to the same plot of land measuring 4 kathas covered by dag No. 205 of P.P. No. 85. Even the present appellant was defendant in the former suit and so the findings of the earlier proceedings are relevant for the purpose of the present case. Having perused Ext. Even the present appellant was defendant in the former suit and so the findings of the earlier proceedings are relevant for the purpose of the present case. Having perused Ext. 3, the appellate judgment in the earlier round of litigation, the following findings are discernible: “From the deposition of the witnesses it is clearly seen that after the verbal agreement practically the plaintiff came to possession of the suit land in the year 1986. Since then he was in peaceful possession of the suit till 1990. In the year 1988 the plaintiff constructed a granary for storage of paddy in the suit land and the defendants were very much present there at the time of construction for help of the plaintiff.” It is the finding of fact of the learned first appellate court in the earlier round of litigation that the same plot of land has been under possession of the present appellant since 1986 and he had occasion to construct a pucca granary thereon in the year 1988. It is also mentioned therein that the present plaintiff was very much aware about such possession of Nanda Ram Das over the schedule B land. This finding of fact has attained finality as no second appeal was preferred in this Court. As long as this finding continues to remain on record, it has to be presumed that defendant No. 1 of the present suit has been enjoying possession over the suit land since 1986 and that he constructed a pucca granary on a part of it in the year 1988. It is also to be presumed that in view of specific finding of the first appellate court on earlier round of litigation, present plaintiff was very much aware about such developments. If the defendant No. 1 is in peaceful possession of schedule B land since 1986 and the present plaintiff did not file suit within a period of 12 years from the date of such possession the suit of the plaintiff must be held to be barred by limitation under Article 65 of the Limitation Act, 1963. Once it is found that the suit of the plaintiff is barred by limitation, there is no necessity for entering into any further discussion on merit. Accordingly, this first appeal is allowed. The findings of the learned first appellate court in regard to limitation being reversed, the appeal stands allowed. 8. Once it is found that the suit of the plaintiff is barred by limitation, there is no necessity for entering into any further discussion on merit. Accordingly, this first appeal is allowed. The findings of the learned first appellate court in regard to limitation being reversed, the appeal stands allowed. 8. The impugned judgment and decree are hereby set aside. 9. No order as to costs. 10. Send down the Lower Court’s records.