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2015 DIGILAW 248 (GAU)

Bamadas Chakraborty v. Upendra Chandra Bharali

2015-03-02

MANOJIT BHUYAN

body2015
JUDGMENT AND ORDER Manojit Bhuyan, J. - Heard Mr. Sheeladitya, learned counsel for the appellants. Also heard Mr. S. Dey, learned counsel for the respondents. 2. This Second Appeal was admitted for hearing by an order dated 21.7.2011 on the following substantial questions of law: "(a) In a suit for declaration of right, title and interest whether right to sue accrues on the date, on which cause of action arises? If so, whether the suit was barred under Article 58 of the Limitation Act, 1963. (b) Whether the defendants proved their entry into the suit land on 17.01.80 through a 'katcha' deed, if not on 14.01.78 as claimed by them in terms of exhibited documents A, B, C, & D. If so, whether ejectment of the appellant/defendants from the suit land is hit by Section 65 of the Limitation act, 1963." 3. At the outset Mr. Sheeladitya, learned counsel submits that an answer to the 2nd substantial question of law would conclusively determine the fate of this appeal. 4. Before proceeding further it would be apposite to look at Article 65 of the Limitation Act for the purpose of juxtaposing it with the evidence on record so as to determine whether the ground of limitation has any impact or merit to render the concurrent findings as perverse or if at all it can be accepted to be a substantial question of law involved in this appeal. 5. Article 65 of the Limitation Act sets down the limitation period as 12 years in respect of suit for possession of immovable properties or any interest therein based on title. Time begins to run from the period when the possession of the defendants becomes adverse to the plaintiff. Suits instituted thereafter, of the description given in Article 65, is barred and would suffer dismissal. Exception to it is provided in Section 4 to 24 (inclusive) thereof. However, the applicability of the said exception is not attracted in the present case. 6. Turning briefly to the facts of the case, the appellants/defendants trespassed into the patta land of the respondent/plaintiff and had kept one Pintu Bhattacharyya (defendant no. 3) in the suit land as the caretaker. According to the Respondent/Plaintiffs, the trespass occurred on 15.3.1991, which prompted initiation of the proceeding under section 145 Cr.P.C. The said proceedings culminated with the declaration of possession of the suit land in favour of the appellants/defendants. 3) in the suit land as the caretaker. According to the Respondent/Plaintiffs, the trespass occurred on 15.3.1991, which prompted initiation of the proceeding under section 145 Cr.P.C. The said proceedings culminated with the declaration of possession of the suit land in favour of the appellants/defendants. During the proceeding under section 145 Cr.P.C. the appellant/defendant no.1 claimed that the suit land was purchased by his wife i.e. appellant no.2/defendant no.2 on 17.1.1980 form one Pulin Rabha by means of an unregistered Sale Deed. On such claim being made, the respondent/plaintiffs were constrained to institute Title Suit No.131/2001. The prayer made in the said suit was for declaration of right, title and interest in respect of the suit land with further prayer for recovery of khas possession by removing unauthorised structure erected thereon by the appellant/defendants. 7. The appellants/defendants having contested the suit and having filed written statement pleaded that they have been in possession of the suit land from the year 1978 and, in fact, on 17.1.1980 they had purchased the same form Pulin Rabha, who was holding possession of the suit land adversely to the right and interest of the respondent/plaintiffs. According to the appellants/defendants, they had raised structure over the suit land, obtained holding number from the Municipality and had perfected their right over the suit land by way of adverse possession. 8. The said suit, which was registered and numbered as T.S. No. 131/2001, was decreed by declaring that the respondents/plaintiffs have right, title and interest over the suit land and are also entitled to recovery of khas possession. The said judgment and decree of the Trial Court was affirmed in Title Appeal No. 100/2006, brought about by the appellants/defendants. 9. Out of the 9(nine) Issues framed by the Courts below, the point for determination revolves round the findings and decision on Issue Nos. 2 and 4, which have direct bearing on the 2nd substantial question of law so formulated in this Second Appeal. For ready reference the said Issue Nos. 2 and 4 are extracted herein below: "2.Whether the suit is barred by limitation. 4. Whether the defendants' possession over the suit land in question is adverse to the interest of the plaintiffs." 10. For ready reference the said Issue Nos. 2 and 4 are extracted herein below: "2.Whether the suit is barred by limitation. 4. Whether the defendants' possession over the suit land in question is adverse to the interest of the plaintiffs." 10. For deciding the Issues so framed including the Issues No. 2 and 4, the Courts below had access to the evidence on affidavits of witnesses of either parties, depositions on cross examination and documents exhibited by either parties in support of their respective cases. Amongst the documents produced and exhibited by the respondent/plaintiffs is Ext. 5 which is the true copy of the list of new/improved holding u/s 155 of the Gauhati Municipality Act, 1969 for third quarter 1984-85 in respect of Ward No.11(old) 16 (new). 11. With regard to the point of time when the respondent/plaintiffs had been dispossessed from the suit land, it is the case of the said respondent/plaintiff that the appellant nos. 1 and 2 had trespassed into the land on 15.3.1991, which prompted the respondent/plaintiff to initiate proceeding under section 145 Cr.P.C. and which eventually went in favour of the appellants/defendants. On the other hand, appellants/defendants' stand was that they have had been in occupation of the suit land from the year 1978 adverse to the right, title and interest of the respondent/plaintiff and that such hostile occupation has ripened into title. Accordingly, appellants/defendants pleaded that no cause of action arose on 15.3.1991 and, in fact, respondent/plaintiff's right to sue occurred in the year 1978. 12. On this backdrop, the documents exhibited as Ext. 5 assumes great significance. The said Ext.5 which pertains to the suit land as described in Schedule 'A' to the plaint indicates that the appellant no. 2/defendant no. 2 i.e. wife of the appellant/defendant no. 1 had been an occupier of the suit land from October, 1984 with structures thereon. This document produced and exhibited by the respondent/plaintiffs themselves goes to show that contrary to their stand that trespass had occurred on 15.3.1991, in fact, the appellant/defendants have been in occupation of the suit land from October, 1984, for which the respondent/plaintiffs had also prayed for a decree for khas possession of the Schedule 'A' land by removing structures standing over the said suit land. 13. 13. From a perusal of the records it clearly transpires that whereas the Court of the first instance did not even make mention of the said Ext. 5, far from considering it, the First Appellate Court generally proceeded with the view that the unregistered sale deed, i.e., Ext. 6 is the Ext. 5. Though mention had been made once there is no discussion or decision, whatsoever, of the value of the said Ext. 5. 14. Both the Courts below ignored to consider the Ext. 5 document which, in the opinion of this Court if considered, would have answered Issue Nos. 2 and 4 comprehensively and conclusively. 15. This Court is mindful of its limited jurisdiction under Section 100 of the C.P.C., more so, in an appeal against concurrent findings. This Court is also aware that appreciation of facts and/or fresh appraisal of evidence is not generally within the domain of section 100 C.P.C. However, here is a case where there are no findings of either of the courts below in respect of Issue Nos. 2 and 4 vis-a-vis Ext.5. The non-consideration of the said Ext. 5 have affected the verdict of the case. 16. Despite the limitation on the power and jurisdiction of this Court, interference of the findings of facts by the courts below is warranted as material evidence had not been considered which, if considered, would have led to a different conclusion. 17. Upon consideration of records, there is no gainsaying that the decision on Issues No.2 and 4 which are determinative issues and concomitant to the second substantial question of law so formulated, are perverse and goes on the root of the matter. As a result, this appeal succeeds by setting aside the judgment and decrees of the Courts below. The matter is remanded to the Court of First Instance with direction to re-admit the suit under its original number i.e. Title Suit No. 131/1001, as registered in the register of Civil Suits, and proceed to determine the suit on the evidence recorded during the original trial and to finally determine the suit by giving findings and reasons on Issue Nos. 2 and 4 afresh. 18. The parties to the suit shall appear before the Court of First Instance on 6.4.2015 for the purpose of receiving such direction of the Court as to the further proceeding in the suit. 2 and 4 afresh. 18. The parties to the suit shall appear before the Court of First Instance on 6.4.2015 for the purpose of receiving such direction of the Court as to the further proceeding in the suit. In view of the above, the substantial question of law is duly answered. This appeal stands allowed in terms of the above, however, without any order as to costs. Registry to send back the records to the Court of First Instance forthwith.