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2015 DIGILAW 758 (GAU)

Jatindra Chandra Deb v. Ashim Kumar Ghosh

2015-06-16

SUMAN SHYAM

body2015
ORDER : 1. This Second Appeal has been filed against the concurrent judgment and decree dated 25.06.2004 passed by the learned Civil Judge (Senior Division) No.1, Silchar in Title Appeal No.8/2003 dismissing the appeal and affirming the judgment and decree dated 21.12.2002 passed by the learned Civil Judge (Junior Division) No.1, Silchar in Title Suit No.42/2000. 2. The facts of the case, stated in brief, is that the predecessor-in-interest of the plaintiffs, Late Jagat Chandra Deb, was the owner in possession of the suit land. During his life time, Jagat Chandra Deb had executed a tenancy agreement with Anil Chandra Ghosh i.e. the predecessor-in-interest of the defendants on 16.09.1962 under which a tenancy in respect of the suit premises was created on condition of payment of monthly rent of Rs.4/- which would become due within the 7th day of each succeeding month. Subsequently, rent was enhanced to Rs.8-/- per month by executing another agreement on 04.02.1974. During the currency of the tenancy as aforesaid, Jagat Chandra Deb gifted the suit property along with other properties, to his wife Labangabala Deb vide registered deed of gift dated 28.05.1974. Pursuant to the execution of the deed of gift dated 28.05.1974, Labangabala Deb became the owner of the tenanted premises and as such Anil Chandra Ghosh i.e. the predecessor of the defendants had executed a fresh tenancy agreement with Labangabala Deb fixing the monthly rent at Rs.10/-. After the death of Anil Chandra Ghosh, the defendants along with their mother Chaya Rani Ghosh had been occupying the tenanted premises but since the tenants failed to pay rent with effect from Jaistha 1386 B.S., Labangabala Deb i.e. the mother of the plaintiffs, dring her life time, had to institute Title Suit No.194/1980 in the Court of Sadar Munsiff No.1, Silchar for ejectment of the defendants from the tenanted premises on the ground of defaulter and bona fide requirement. By the judgment and order dated 16.04.1983, the trial Court decreed the suit filed by Labangabala Deb. The judgment and decree dated 16.04.1983 was challenged by Chaya Rani Ghosh by filing Title Appeal No.78/1983 in the Court of Assistant District Judge No.1, Silchar whereby the said appeal was allowed by the First Appellate Court by reversing the judgment and decree passed by the trial Court. The judgment and decree dated 16.04.1983 was challenged by Chaya Rani Ghosh by filing Title Appeal No.78/1983 in the Court of Assistant District Judge No.1, Silchar whereby the said appeal was allowed by the First Appellate Court by reversing the judgment and decree passed by the trial Court. Being aggrieved, the plaintiffs had preferred Second Appeal No.68/1988 before this Court which was dismissed by the order dated 28.11.1996 passed in Second Appeal No.68/1988 on the ground that the plaintiffs had not served a valid notice before instituting the suit for ejectment of the defendants. 3. It is the case of the plaintiffs that Labangabala Deb had sold the suit property along with her other properties to the plaintiffs vide registered deed of sale dated 26.05.1992 pursuant whereto the plaintiffs have become the registered owners in respect of the properties mentioned in the sale deed dated 26.05.1992 including the suit property. The plaintiffs have averred in the plaint that since the defendants have continued to occupy the tenanted premises without paying any rent to the plaintiffs since the year 1992 and on account of the fact that the defendants were claiming the suit property as their own by denying the title of the plaintiffs, the right, title and interest of the plaintiffs over the suit had become clouded. As such, the plaintiffs had filed Title Suit No.42/2000 in the Court of learned Civil Judge (Junior Division) No.1, Silchar praying for declaring their right, title and interest over the suit land and also for recovery of khas possession by evicting the defendants therefrom. 4. The defendants contested the suit by filing written statement, inter alia, questioning the maintainability of the suit on the ground of want of cause of action; the suit being barred by principles of res judicata; the suit being bad for non-joinder of necessary party etc. While denying the claim of the plaintiffs, the defendants took a stand that since this Court has already rejected the Second Appeal No.68/1988 arising out of Title Suit No.194/1980 filed by the mother of the plaintiffs i.e. Labangabala Deb rejecting her claim for ejectment of the defendants from the suit premises, the present suit filed by the plaintiffs was barred by the principles of res judicata. The defendants further stated that their predecessor viz., Anil Chandra Ghosh, had taken settlement of an area of 8 Chattak of low lying land from Jagat Chandra Deb, the predecessor of the plaintiffs and got possession of the same. Said Anil Chandra Ghosh also took possession of another 8 chattak of land in the road side Government khas land and made the land fit for construction of house by earth filling wherein he had raised construction of a house and has been residing with his family members in the backside and carrying on business of cycle repairing on the front side. It has also been averred in the written statement that Anil Chandra Ghosh never paid any monthly rent in respect of the suit house and for the possession of the said 8 chattak of land Anil Chandra Ghosh used to pay Rs.48/- annually and thereafter Rs.120/- annually. After the death of Anil Chandra Ghosh, his wife Chaya Rani Ghosh used to pay rent for the land to said Jagat Chandra Deb and there was no system of granting receipt in respect of the rent. On the basis of the said pleadings the defendants had urged that the plaintiffs suit was not maintainable and hence the same was liable to be dismissed with cost. 5. On the basis of the pleadings of the parties, the learned trial Court had framed the following issues:- “1. Is there any cause of action for the plaintiffs’ suit? 2. Is the suit barred under the principles of res-judicata? 3. Is the suit bad for defect of necessary parties? 4. Whether the defendants are monthly tenant under the plaintiffs in respect of suit premises? 5. Whether the defendants have defaulted in payment of monthly rent for the suit premises? 6. Whether the suit premises required bonafide by the plaintiffs for the purpose of repairing reconstruction? 7. Whether the plaintiffs are entitled to get the decree as prayed for? 8. To what relief/reliefs, the parties are entitled?” 6. After hearing the learned counsels for the parties, the learned trial Court had decided the Issue Nos.2 and 4 against the plaintiffs holding that the plaintiffs suit was barred under the principles of res judicata and that the defendants were not monthly tenants under the plaintiffs in respect of the suit premises. To what relief/reliefs, the parties are entitled?” 6. After hearing the learned counsels for the parties, the learned trial Court had decided the Issue Nos.2 and 4 against the plaintiffs holding that the plaintiffs suit was barred under the principles of res judicata and that the defendants were not monthly tenants under the plaintiffs in respect of the suit premises. The learned trial Court had also decided Issue No.3 against the plaintiffs holding that the suit of the plaintiffs was bad for non-joinder of the State of Assam as a necessary party. The trial Court had also decided the Issue No.5 against the plaintiffs. Consequently, the suit filed by the plaintiffs stood dismissed by the judgment and order dated 21.12.2002 passed by the learned trial Court. 7. The judgment and order dated 21.12.2002 was carried in an appeal by the plaintiffs as appellants by filing Title Appeal No.8/2003 before the Court of learned Civil Judge (Senior Division) No.1, Silchar. The aforesaid appeal was also dismissed by the learned First Appellate Court by judgment and decree dated 25.06.2004 thereby affirming the judgment and decree passed by the trial Court. 8. Being aggrieved by the concurrent judgment and decree dated 25.06.2004 passed by the learned First Appellate Court the plaintiffs as appellants have preferred this Second Appeal which was admitted to formal hearing by framing the following substantial questions of law :- “1. Whether the suit of the plaintiffs’ right, title and interest can be decided without framing any issue in that respect? 2. Whether the right, title and interest of the plaintiffs in respect of the land which comprises of the Govt. khas land can be declared in respect of the land which are not Govt. khas land? 3. Whether suit of the plaintiffs is barred u/s 11 CPC in view of the decision in S.A. No.68/88?” 9. I have heard Mr. S. Banik, learned counsel appearing for the appellants. None appears for the respondents despite service of notice. 10. By referring to a judgment and decision of the Hon’ble Apex Court in the case of V. Dhanapal Chettiar vs. Yesodai Ammal reported in (1979) 4 SCC 214 Mr. Banik submits that there is no requirement under Section 106 of the Transfer of Property Act, 1882 to serve notice for eviction of tenants under any State Rent Control Act. 10. By referring to a judgment and decision of the Hon’ble Apex Court in the case of V. Dhanapal Chettiar vs. Yesodai Ammal reported in (1979) 4 SCC 214 Mr. Banik submits that there is no requirement under Section 106 of the Transfer of Property Act, 1882 to serve notice for eviction of tenants under any State Rent Control Act. Such being the position, there was no justification for this Court to pass the order dated 28.11.1996 dismissing the Second Appeal No.68/1988 without going into the merit of the case. He further submits that even assuming that there was, in fact, a requirement of service notice upon the defendants even in that case the decision rendered in Second Appeal No.68/1988 by this Court would not operate as a res judicata against the plaintiffs in the present suit on account of the fact that the Second Appeal was not decided on merits by discussing the issues framed therein by this Court. He further submits that the suit filed by the plaintiffs being one for declaration of right, title and interest, the same was different from suit for ejectment of tenant which was earlier instituted by Labangabala Deb. Even assuming that the defendants are not tenants under the plaintiffs even in that case the plaintiffs were entitled to maintain a suit for declaration of right, title and interest and recovery of khas possession on the basis of subsequent cause of action. 11. Mr. Banik further submits that in the instant cases the learned Courts below did not at all addressed the issue of right, title and interest of the plaintiffs and rejected the suit merely on the ground of same being barred by res judicata. The suit of the plaintiffs was also rejected on the ground of non-joinder of State of Assam without giving the plaintiffs an opportunity of impleading the State of Assam if the same was deemed necessary. 12. I have considered the submissions made by Mr. Banik, learned counsel for the appellants and have also perused the records. On examination of the materials on record it appears that the Title Suit No.194/1980 was instituted by Labangabala Deb for ejectment of Chaya Rani Ghosh on the ground of defaulter and bona fide requirement alleging that she was a tenant under Labangabala Deb. Banik, learned counsel for the appellants and have also perused the records. On examination of the materials on record it appears that the Title Suit No.194/1980 was instituted by Labangabala Deb for ejectment of Chaya Rani Ghosh on the ground of defaulter and bona fide requirement alleging that she was a tenant under Labangabala Deb. Therefore, the said suit was one for ejectment of a tenant in an urban residential property and hence the Assam Urban Areas Rent Control Act, 1972 would govern the rights and interests of the parties in respect thereof. Reversing the judgment and decree passed by the learned trial Court in Title Appeal No.78/1983 the learned First Appellate Court had held that the plaintiffs in Title Suit No.194/1980 had failed to prove that the defendants therein was a tenant or that the defendant was a defaulter. On such ground the suit filed by the predecessor of the plaintiffs, namely, Labangabala Deb had been dismissed. 13. By the order dated 28.11.1996 this Court had dismissed the Second Appeal arising out of Title Appeal No.78/1983 by holding the suit as not maintainable on account of the fact that the plaintiffs had not served a valid notice to the defendants/tenants before instituting the suit for ejectment. From a perusal of the order dated 26-11-96 it is evident that this court a dismissed the appeal on a technical ground of non-service of valid notice to the tenants before instituting the suit for ejectment. This court, however, did not decide any of the issues on merit. 13. A perusal of the plaint filed in the Title Suit No.42/2000 clearly goes to show that the plaintiffs suit is one for declaration of right, title and interest and for recovery of khas possession of the suit premises by evicting the defendants. Since the defendants have denied the title of the plaintiffs over the suit premises and claimed to have acquired title on the basis of an alleged settlement granted by Jagat Chandra Deb in favour of Anil Chandra Ghosh, the principal controversy involved in Title Suit No.42/2000 was that pertaining to the question of title of the plaintiffs over the suit premises. The issues pertaining to defaulter and bonafide requirement were at best, ancillary issues. 14. Section 11 of the Code of Civil Procedure deals with res judicata which reads as follows :- “11. The issues pertaining to defaulter and bonafide requirement were at best, ancillary issues. 14. Section 11 of the Code of Civil Procedure deals with res judicata which reads as follows :- “11. Res judicata.-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit, in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” From a reading of Section 11 it is apparent that the issue in the former suit has to be directly and substantially an issue in the latter suit concerning the same subject matter and by and between the same parties or parties litigating under the same title. 15. As has been indicated herein before, the former suit filed by the plaintiffs predecessor appears to be one for ejectment of the defendants / tenants on the ground of defaulter/ bona fide requirement falling strictly within the scope and ambit of Assam Urban Areas Rent Control act, 1972 and there was no relief claimed for declaration of title since there was no cause of action for the same. Therefore, controversy in the subsequent suit also does not come within the purview of Explanation (iii) since the plaintiffs or their predecessor had not claimed declaration of right, title and interest over the suit land in the former suit. 16. It is settled law that an appeal is a continuation of the suit. When an appeal is preferred, the whole matter is at large before the appellate court. Since, the right to prefer an appeal is a right provided by the statue, hence, for a decision on any issue involved in a suit to attain finality so as to operate as a res-judicata, such issue(s) would have to be decided on merit by the appellate court where an appeal is preferred 16. It has been held by the Hon’ble Apex Court in a catena of decisions that the rule of res-judicata is based on principles of justice and public interest viz. a litigant should not be vexed twice over the same issue and there should be finality. It has been held by the Hon’ble Apex Court in a catena of decisions that the rule of res-judicata is based on principles of justice and public interest viz. a litigant should not be vexed twice over the same issue and there should be finality. In the case of Escorts Farms Ltd vs Commissioner, Kumaon Division reported in (2004) 4 SCC 281 , the Hon’ble Apex court, in the context of section 11 CPC, has observed that an issue or a point decided and attained finality should not be allowed to be re-opened and reagitated twice over. The observations made in paragraph 51 is as follows: “51. Res judicata is a plea available in civil proceedings in accordance with Section 11of the Code of civil Procedure It is a doctrine applied to give finality to ‘lis’ in original or appellate proceedings. the doctrine in substance means that an issue or a point decided and attaining finality should not be allowed to be reopened and re-agitated twice over. The literal meaning of res is 'everything that may form an object of rights and includes an object, subject-matter or status' and res judicata literally means: a matter adjudged; a thing judicially acted upon or decided: a thing or matter settled by judgment.' Section 11 of CPC engrafts this doctrine with a purpose that 'a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and. as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.” 17. In the earlier round of litigation which culminated into Second Appeal No 68/88, this court had not expressed any opinion, whatsoever, as regards the legality and validity of the judgment and decree of reversal which was under challenge but had dismissed the appeal by the order dated 26-11-98 on a purely technical point i.e. non service of notice upon the defendants. It appears that the order date 26-11-96 was passed by this court on an assumption that the defendants were tenants under the predecessor of the plaintiffs. It appears that the order date 26-11-96 was passed by this court on an assumption that the defendants were tenants under the predecessor of the plaintiffs. From the tenor of the order dated 26-11-96, it further appears that by necessary implication , leave was granted to the plaintiffs in Title Suit No 194 of 1990 to initiate a fresh process after due service of notice upon the defendants therein, leaving the issues in the suit open for a decision on merit at an appropriate stage. Be that as it may, since this court had not decided Second Appeal No 68/ 1988 on merit, hence, in my considered opinion , the findings recorded by the first appellate court in respect of the issues involved in the former suit had not attained finality in the eye of law. As such ,the principles of res-judicata will not be applicable in the facts and circumstances of the present case. Moreover, as has been discussed herein above, the subsequent suit being one based on the claim of title over the suit land filed on an independent cause of action, the same could not have been held to be barred under the principles of res-judicata. In that view of the matter, I am of the opinion that the suit filed by the plaintiffs for declaration of right, title and interest on the 18. Coming to the merit of the suit, a perusal of the judgment and order passed by the learned Courts below goes to show that even the trial Court was conscious of the fact that at best the Issue No.4 of the subsequent suit being identical to Issue No.7 in the former suit, could be held to be barred by the principles of res judicata but not the claim of the plaintiffs for declaration of their right, title and interest in respect of the suit premises. However, having observed as above, the learned Court below did not make any attempt to either frame an issue as regards the question of right, title and interest of the plaintiffs nor addressed the same on the basis of the documents of title namely, Ext-3 (registered deed of gift) and Ext-5 (registered deed of sale) produced by the plaintiffs together with the supporting document in the form of Ext-6 showing the payment of land revenue by the plaintiffs in respect of the suit land. In the ultimate analysis what value such evidence would carry in deciding the plaintiffs claim is a different matter altogether. But the court below ought to have considered such material evidence and recorded a finding in respect thereof. 19. The learned First Appellate Court also did not make an attempt to record any finding as regard the effect and impact of the title documents produced by the plaintiffs in support of their claim for title over the suit premises. The learned First Appellate Court appears to have concurred with the views and conclusions expressed by the trial Court in a most perfunctory manner without recording any independent finding in respect of the issues based on the materials available on record. In view of the above, I am of the considered opinion that the trial of the suit had been practically misdirected by the court below by laying over emphasis on the question of res-judicata and non-joinder of necessary party when the same was not called for. As a result of the same, the court below failed to address the key issue in the suit pertaining to the question of right, title and interest of the plaintiffs based on the material evidence available on record. 20. As has been indicated herein before, the learned Court below ought to have framed an issue as regards the entitlement of the plaintiffs for a declaration of their right, title and interest and recovery of khas possession in respect of the suit land. Although a specific plea was raised to that effect by the learned counsel for the appellants before the First Appellate Court, yet, the said plea was brushed aside on purely technical grounds without appreciating the contentions on merit. 21. Order XIV Rule 5 CPC authorizes the Court to amend and strike out issues including power to frame additional issues or to recast issues already framed. In the case of Bachahan Devi & another vs. Nagar Nigam, Gorakhpur & another, reported in (2008)12 SCC 372 the Hon’ble Apex Court has held that the power of the First Appellate Court is co-extensive with that of the trial Court under the Code and that the First Appellate Court can analyze factual aspects and can also decide an issue or additional issue. 22. 22. In the case of Tejender Singh Ghambhir & another vs. Gurpreet Singh & others, reported in (2014) 10 CC 702 the Hon’ble Apex Court has observed that the appellate court can recast the issues and give its decision on the said issues if there is sufficient evidence available on record so as to pronounce a judgment. In a decision of this Court reported in 2005 (1) GLT 407 in the case of Premomaybasu vs. Rita Purkayastha & others, this Court has held that the appellate Court has power to determine a case when evidence on record is sufficient. 23. In view of what has been discussed above, I am of the considered opinion that this is a fit case where the matter be remanded back to the First Appellate Court for a fresh decision of the Title Appeal on merit by addressing the question of right, title and interest of the plaintiffs, if necessary by recasting the issues .The First Appellate Court would decide the said question based on materials available on record and record a finding as regards the validity of the claim of the plaintiffs for issuance of a declaratory decree of right, title and interest and recovery of khas possession in respect of the suit land. 24. The appellant would now appear before the First Appellant Court on 20.07.2015. Since the respondents are not present before this Court, hence, the First Appellate Court would cause notice of the appeal to be served afresh upon the respondents. Considering the fact that the Title Suit is of the year 2000, hence, an attempt may be made for expeditious disposal of the appeal, preferably within a period of six months from the date of service of notice upon the respondents, without being influenced by any observations made by this Court herein before. The Second Appeal is disposed of with the aforesaid observations. There would be no order as to cost. Registry may send back the records expeditiously.