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2015 DIGILAW 235 (GAU)

SURENDRA NATH PATHAK v. KHALIL AHMED

2015-02-26

MANOJIT BHUYAN

body2015
ORDER(ORAL) Heard Mr. P.K. Kalita, learned counsel appearing for the appellant assisted by Ms. T. Goswami. Also heard Mr. N. Dhar, learned counsel for the respondent. 2. This appeal was admitted for hearing on 11.10.2004 on the following substantial question of law: “Whether the judgment passed by the appellate Court is perverse in view of the pleadings on record that the plaintiff also possesses the periodic patta in respect of the suit land.” 3. Facts briefly stated are Sri Bachanji Pathak the original plaintiff, now represented by his legal heirs in the present appeal, instituted Title Suit No. 1/2002 before the Court of the Civil Judge, Junior Division, Jonai. The prayer in the suit being of utmost relevance, is extracted here under: “1. A decree for declaration of right, title and interest over the suit land measuring 54 sq. ft. out of 4 lechas mentioned in schedule ‘A’ and a decree of khas possession by evicting the defendant from the suit land. 2. A decree for khas possession over the suit land mentioned in schedule ‘B’ by evicting the defendant as the plaintiff is in possession of the suit land for a long period. 3. A decree for permanent injunction restraining the defendant or any other men under him to enter into the land and from interfering with the peaceful possession of the plaintiff of the land mentioned in schedule ‘A’ and ‘B’. 4. Cost of the suit. 5. Relief or relieves that may be granted in favour of the plaintiff.” 4. It clearly transpires that the prayer of the appellant/plaintiff is with regard to declaration of right, title and interest of a portion of schedule ‘A’ land i.e. 54 sq. ft. In so far as schedule ‘B’ land is concerned the prayer is not for a declaration of right, title and interest but only confined to a decree for khas possession. 5. Mr. Kalita, learned counsel has put a challenge to the judgment and decree of the first appellate Court and submits that it is wholly a vague and cryptic judgment without there being any discussion in respect of the scheduled portion of the schedule ‘A’ land. According to Mr. Kalita, the first appellate Court proceeded without determining the exact nature and prayer made in respect of the schedule ‘A’ and Schedule ‘B’ land. According to Mr. Kalita, the first appellate Court proceeded without determining the exact nature and prayer made in respect of the schedule ‘A’ and Schedule ‘B’ land. Further, it is also contended that the finding of the first appellate Court with regard to the State of Assam being a necessary party is wholly mis-placed, inasmuch as, in so far as schedule ‘B’ land is concerned, the prayer is not in respect of a declaration for right, title and interest but only confined to a decree for khas possession. In that view, Mr. Kalita, learned counsel submits that the State of Assam or a Deputy Commissioner is not a necessary party. Mr. Kalita, learned counsel further submits that there has been no application of mind on the part of the first appellate Court while discussing the Issue No. 4, as framed by the trial Court pertaining to right, title and interest of the plaintiff over the suit land. In fact, Mr. Kalita reiterates that the decision and findings of the first appellate Court have proceeded only as a matter of course. In the premises Mr. Kalita, learned counsel submits that this is a fit case for remand with direction to the first appellate Court to determine the issue on right, title and interest over the scheduled portion of the schedule ‘A’ land and with regard to the fact of possession over schedule ‘B’ land. 6. I have also heard Mr. N. Dhar, learned counsel for the respondent and Mr. Dhar does not oppose to the prayer made by Mr. Kalita. 7. I have perused the records available and find force in the submission of Mr. P.K. Kalita, learned counsel for the appellant. Indeed the judgment and decree of the first appellate Court is wholly cryptic and the issues on right, title and interest over the scheduled portion of the schedule ‘A’ land as well as the fact of possession in respect of the schedule ‘B’ land do not find mention. In fact, no point for determination has also been formulated by the first appellate Court. I find that the judgment passed by the first appellate Court is perverse and contrary to evidence on record and goes to the root of the matter. Accordingly the substantial question of law so formulated is answered in favour of the appellant. 8. In fact, no point for determination has also been formulated by the first appellate Court. I find that the judgment passed by the first appellate Court is perverse and contrary to evidence on record and goes to the root of the matter. Accordingly the substantial question of law so formulated is answered in favour of the appellant. 8. For the reasons aforesaid the judgment and decree dated 28.1.2004 passed by the District Judge, Dhemaji in Title Appeal No. 1 of 2003 (arising out of Title Suit No. 1/2002) is hereby set aside and the matter is remanded to the said first appellate Court for determining the appeal afresh on the issue of right, title and interest on the scheduled portion of the schedule ‘A’ land and the fact of possession of either parties over the schedule ‘B’ land. 9. The parties shall appear before the first appellate Court on 25.03.2015 for the purpose of receiving such direction of the Court with regard to further proceedings in the appeal. 10. Registry is directed to send back the case records to the Court of District Judge, Dhemaji forthwith. 11. This second appeal stands allowed in terms of the above. No costs.