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2015 DIGILAW 703 (GAU)

Abdul Matin v. Sahan Uddin

2015-06-09

A.K.GOSWAMI

body2015
JUDGMENT A.K. GOSWAMI, J. 1. Heard Mr. I. Alam, learned counsel for the appellants. Also heard Mr. B.K. Purkayastha, learned counsel for the respondents. 2. This appeal is directed against the judgment and decree dated 30.06.2004, passed by the learned Civil Judge (Senior Division) No. 1, Cachar, Silchar, in Title Appeal No. 56/02, remanding the case to the learned Trial Court under Order 41 Rule 25 CPC for fresh disposal with a direction to frame the following additional issue: “Whether the plaintiffs have right, title, interest and possession over the suit land described in Schedule-1, 2 and 3A of the plaint?” 3. By the said judgment dated 30.06.2004, while partly allowing the appeal, the impugned judgment and decree, dated 19.09.2002, passed by the learned Civil Judge, Junior Division No. 1, in Title Suit No. 21/1999 was set aside and the learned Trial Court was directed to dispose of the suit within a period of four months from the date of receipt of the records. The parties were also granted liberty and opportunity to adduce fresh evidence, if they so desired. 4. By an order passed on 29.11.2004, this appeal was admitted to be heard on the following substantial question of law: “Whether the learned court below erred on the law of pleadings in framing the issue on the appellant’s title and remitting the same for trial to the court below in exercise of power under Order 41 Rule 25 of CPC?” 5. The plaintiffs filed the suit for declaration of title and confirmation of possession in Schedule-1, 2 and 3A and for eviction of the defendants from Schedule 3B land. The suit land comprised of 4 Katha 4 Chattak in Dag No. 705 of 2nd R.S. Patta No. 12; and 8 Katha 10 Chattak in Dag No. 704 of 2nd R.S. Patta No. 6 and the lands in these two Dags and Pattas are brought under the heading “Schedule-1”. The suit land also includes 18 Katha 2 Chattak in Dag No. 733 of R.S. Patta No. 12 forming part of Schedule-2A, 13 Katha 5 Chattak of land in Dag No. 728 of 2nd R.S. Patta No. 6 forming part of Schedule -2B, 3 Bigha 10 Katha 14 Chattak in Dag No. 694 of 2nd R.S. Patta No. 12 forming part of Schedule-3A. Schedule-3B refers to an area of 1 Bigha approximately, which is in possession of the defendants and on which the plaintiffs want khas possession by evicting the defendants. 6. The pleaded case of the plaintiffs is that the defendants were allowed to reside in the Schedule 3B land as licencee. The defendants filed a written statement. An additional written statement was also filed after the plaint was amended, amending primarily paragraphs 2 and 3 relating to the area and Patta of the land with corresponding changes in the Schedules. 7. The defendants, in their written statement, apart from the usual legal pleas, had averred that title cannot be declared without joining the co-sharers of the suit property. The extent of title claimed by the plaintiffs and the plea of amicable partition was also denied. So also the plea regarding possession. The defendants stated that the predecessor of the defendants had tenancy with the predecessor of the plaintiffs more than 60 years ago, which was not confined to Schedule-3B alone. 8. The learned Trial Court, on the basis of the pleadings, framed the following issues: “1. Is there any cause of action for this suit? 2. Is the suit maintainable under the provisions of Assam Tenancy Act or Indian Easement Act? 3. Is the suit bad for defect of parties? 4. Whether the suit property has been properly valued? 5. Whether the plaintiffs are tenants or they are licensees in respect of the suit land? 6. Whether the plaintiffs are entitled to get a decree, as prayed for? 7. To what relief/reliefs, the parties are titled?” 9. The plaintiffs examined 3 witnesses and the defendants examined 4 witnesses and both the parties exhibited certain documents. 10. The learned Trial Court, in respect of Issue Nos. 6 and 7, held as follows: “In the light of the discussion made above, I hold that the defendants are licencees in respect of the suit schedule-3B land and are therefore liable to be rejected. Plaintiffs’ title over the remaining portion of land, as described in different schedules of the plaint, are not denied and the defendants have failed to establish their so-called claim of tenancy over portions of the same. Hence, the plaintiffs are entitled to get a decree/relief, as prayed for.” 11. Plaintiffs’ title over the remaining portion of land, as described in different schedules of the plaint, are not denied and the defendants have failed to establish their so-called claim of tenancy over portions of the same. Hence, the plaintiffs are entitled to get a decree/relief, as prayed for.” 11. In a suit where the plaintiffs are praying for right, title and interest as well as confirmation of possession, apart from praying khas possession in respect of some portion of land, in the considered opinion of this Court, an issue ought to have been framed by the learned Trial Court as directed by the learned Lower Appellate Court. It is not a case, as sought to be contended by Mr. Alam, that the defendants had admitted the right, title and interest of the plaintiffs. The learned Trial Court misconstrued the written statement filed by the defendants and erroneously held that the defendants had not denied the plaintiffs’ title over the remaining portion of land, meaning thereby the land other than in Schedule-3B. In absence of an admission in the written statement admitting right, title and interest of the plaintiff, it was necessary to frame such an issue. A perusal of the judgment of the learned Trial Court goes to show that it proceeded on the premise that the title of the plaintiffs had been admitted by the defendants and decree was, accordingly, passed. 12. In view of the above discussions, the substantial question of law is answered against the appellants. I find no merit in this Second Appeal and, accordingly, the same is dismissed. No cost. 13. The parties to the proceeding will appear before the learned Munsiff No. 1, Cachar, Silchar, on 07.08.2015. The learned Trial Court will dispose of the matter within the time-frame and in the manner as directed by the learned Lower Appellate Court by providing opportunities to the parties to adduce evidence, if they so desire. 14. Registry will forthwith send back the records as the date for appearance of the parties before the learned Trial Court is fixed on 07.08.2015.