Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 664 (GAU)

Rajesh Kumar Bharatia v. Krishna Kumar Bharatia

2015-06-02

NISHITENDU CHAUDHURY

body2015
JUDGMENT : ” The defendant in Title Suit No. 17/2003 of the Court of the learned Civil Judge at Nalbari has preferred this appeal challenging the judgment and decree dated 17.01.2006 whereby the suit filed by the plaintiff was decreed in entirety. 2. Plaintiff, Krishna Kumar Bharatia instituted Title Suit No. 3/2003 in the Court of the learned Civil Judge, Nalbari stating that he and the defendants as well as proforma defendants have descended from a common ancestor and they are governed by Mitakshara School of Hindu Law. During the time of his father, a deed of partial partition was executed on 17.03.1972 amongst all the co-sharers, including the ancestors of defendants where upon their respective shares were amicably separated and accordingly, they started exclusively enjoying the same. The said partition deed was duly registered being Deed No. 2049/1972 and in paragraph 2 thereof, it was noted that there is a common path leading from N.T. Road, which ends in the premises shown in the enclosed map to the plaint. This common path was being used by all the parties for necessity, including for performance of their religious rites. But in the year 2002, the defendant Nos. 1, 2, 3 and 4 created obstruction so as to restrain the plaintiff from making use of the common path. Under such circumstances, plaintiff approached the learned Executive Magistrate leading to registration of Case No. 70M/2002 under Section 133, Cr.P.C. and an order was passed for removal of the obstruction on 03.05.2002. 3. Even thereafter, the defendants were creating obstruction and so, plaintiff was compelled to institute the suit for declaration of his right and title to use the common path described in Schedule to the plaint along with consequential relief of prohibitory injunction against the defendants. 4. On being summoned, the defendant Nos. 1, 2, 3 and 4 submitted a joint written statement wherein they took a specific plea that even after execution of the Partition Deed, they continued exclusively using the approach road as their own and the plaintiff did not have any claim to the same. To obviate any scope of dispute in future Gobordan Das, father of the plaintiff was requested to relinquish his right over the approach road and accordingly, plaintiff by a letter dated 18.11.1975 relinquished his right to use the path and since then the answering defendants have been exclusively using the approach road. To obviate any scope of dispute in future Gobordan Das, father of the plaintiff was requested to relinquish his right over the approach road and accordingly, plaintiff by a letter dated 18.11.1975 relinquished his right to use the path and since then the answering defendants have been exclusively using the approach road. In the written statement, the defendant specifically denied the averments made in the plaint and stated that the plaintiff does not have any necessity of the approach road and so the suit is liable to be dismissed. 5. Upon perusal of such pleadings of the parties, the learned trial Court framed as many as 10 issues as follows: (1) Whether the suit is maintainable? (2) Whether there is a cause of action for the suit? (3) Whether the suit is bad for non joinder of necessary parties? (4) Whether the suit is bad for estoppel, acquisance and waiver? (5) Whether proper court fee has been paid? (6) Whether the plaintiff has relinquished his request to use common path? (7) Whether plaintiff has title over the common path after relinquishment of his right to use the common path? (8) Whether there is public temple/mandir inside the premises? (9) Whether the plaintiff has joint right, title and joint possession upon the use of the common path? (10) Whether the alleged common path is own property of the defendant? 6. In course of trial, the plaintiff examined 3 witnesses, who were cross-examined by the defendants and the defendants also examined 3 witnesses in their favour, who were duly cross-examined by the plaintiff side. After perusal of the evidence and exhibits adduced by the parties, the learned trial Court by his impugned judgment and decree dated 17.01.2006 declared right and title of the plaintiff to make use of the common path described in the Schedule to the plaint along with the defendants. The learned trial Court also issued a permanent decree of injunction restraining the defendants from putting hindrance to the common path. This judgment and decree has been brought under challenge in the instant appeal. 7. I have heard Mr. S.K. Goswami, learned counsel for the appellants and Mr. S. Samaria, learned counsel for the sole respondent. I have perused the lower Court ” s records to examine the evidence led by the parties. 8. At the threshold, Mr. This judgment and decree has been brought under challenge in the instant appeal. 7. I have heard Mr. S.K. Goswami, learned counsel for the appellants and Mr. S. Samaria, learned counsel for the sole respondent. I have perused the lower Court ” s records to examine the evidence led by the parties. 8. At the threshold, Mr. S.K. Goswami, learned counsel for the appellants pointed out that Exhibit-1 is a map showing the area containing the disputed common path. Mr. Goswami submits that the plaintiff, Mr. Krishna Kumar Bharatia does not have any access to the common path as the common path does not go along any of the boundaries of the land owned and possessed by the plaintiff, Krishna Kumar Bharatia as per the partition. The plaintiff, therefore, cannot have any easement of necessity insofar as the common path is concerned, which has been in use by the defendants alone for ingress and egress to the N.T. Road. Mr. Goswami further pointed out that so-called evidence led by the plaintiff is no evidence in the eye of law inasmuch as the so-called examinations-in-chief submitted under Order XVIII, Rule 4 of the Code of Civil Procedure was not supported by any affidavit whatsoever. This being the position, even the exhibits cannot be considered to have been exhibited in accordance with law. Having so found, suit of the plaintiff is devoid of any evidence at all in support of the pleadings and consequently, the suit is liable to be dismissed reversing the impugned judgment and decree. 9. Mr. S. Samaria, learned counsel for the sole respondent, on the other hand, would argue that the examination-in-chief was supported by a verification and the learned Court also marked the exhibits by putting seal and signature thereon. These documents, having been exhibited without objection, appellants cannot challenge the admissibility of the exhibits at the appellate stage. His alternate argument is that in the event it is held that the examination-in-chief does not have any sanctity of law for want of solemn affirmation, in that event, it is a mere irregularity and so, plaintiff is entitled to a scope for rectifying the same. 10. Having heard the learned counsel for the parties, I have perused the 3 examinations-in-chief submitted on behalf of PWs ' 1, 2 and 3. 10. Having heard the learned counsel for the parties, I have perused the 3 examinations-in-chief submitted on behalf of PWs ' 1, 2 and 3. These pieces of evidences are merely verified and not supported by any affirmation of oath as required by law. Order XVIII, Rule 4 of the Code of Civil Procedure has been amended with effect from 01.07.2002 by Amending Act No. 22/2002, and thereby, it is provided that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. The marking of exhibits, however, would be subject to further order of this Court. 11. Prior to the amendment of the Code of Civil Procedure, such examination-in-chief used to be recorded by Court on being orally stated by a witness. Evidence as defined under Section 3 of the Evidence Act are of two types, namely, oral evidence and documentary evidence. Oral evidence is one which statement, a Court permits or requires to be made before it by witness in relation to matters of facts or enquiry. The condition precedent for a oral evidence, therefore, is that it has to be made before the Court on being permitted or required by it. The procedure for making a statement before a Court is either by orally making the statement on being administered oath and after amendment of the Code of Civil Procedure in the year 2002, such statement is to be made in the form of affidavit sworn by the witness. Either way, administering oath to the witness before making of a statement is a must. Here in this case, plaintiff submitted three pieces of examinations-in-chief which were merely verified. The witnesses did not appear before the officer authorized by the Court to take solemn affirmation of oath. Under such circumstances, these pieces of examinations-in-chief cannot be said to be supported by an affidavit and that being the position, it is not an evidence within the meaning of Order XVIII, Rule 4 of the Code of Civil Procedure (as amended). After such pieces of evidences were presented by the plaintiff to the Court, the learned Court ought to have returned the same to the plaintiff for removing the irregularity. This is because, defect in affidavit or verification is a curable defects. After such pieces of evidences were presented by the plaintiff to the Court, the learned Court ought to have returned the same to the plaintiff for removing the irregularity. This is because, defect in affidavit or verification is a curable defects. Even after return of the examinations-in-chief, plaintiff does not cure the defect, in that event, Court is at liberty not to consider the same. But since the plaintiff was not given an opportunity for removing the irregularity, such a harsh stand cannot be taken at this stage. 12. It appears that the learned trial Court did not note these irregularities. Because there being no evidence on record, the learned trial Court committed error in decreeing the suit basing on some purported examinations-in-chief and some documents, which cannot be said to have been exhibited in accordance with law. Since it has been noticed that the 3 pieces of examinations-in-chief submitted by the plaintiff were no evidence within the meaning of Order XVIII, Rule 4 of the Code of Civil Procedure (as amended), the suit of the plaintiff could not have been decreed. Consequently, the impugned judgment and decree has also been vitiated for placing reliance on such evidence, which is really no evidence in the eye of law. 13. Considering the facts and circumstances, the impugned judgment and decree is set aside and the matter is remanded back to the learned trial Court for giving opportunity to the parties to lead appropriate evidence in accordance with law. Learned trial Court shall also frame an additional issue as follows: Whether the plaintiff has the easement of necessity for the common path described in Schedule to the plaint? 14. Since the suit is of the year 2006, the learned trial Court shall decide the matter afresh within a period of 6 (six) months after receipt of the records. Parties shall appear before the learned trial Court on 13.07.2015 to obtain necessary order from the learned trial Court. Registry shall transmit the record in the meantime. Order accordingly.