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2015 DIGILAW 797 (GAU)

Chotu Devi Yadab v. Jamuna Prasad Koiri

2015-06-23

SUMAN SHYAM

body2015
JUDGMENT Heard Mr. B. Ullah, learned counsel appearing for the appellants/ defendant. Also heard Mr. S.P. Choudhury, learned counsel representing the respondents. 2. This second appeal has been filed against the concurrent judgment and decree dated 15-12-2006 passed by the learned Civil Judge (Sr. Div.), Dibrugarh in Title Appeal No. 16/2004 dismissing the appeal of the appellant/ defendant and affirming the judgment and decree dated 21-09-2004 passed by the Civil Judge (Jr. Div.) No. 1, Dibrugarh in Title Suit No. 84/2000. 3. The fact of the case, as projected in the plaint in brief is that originally Ram Janam Koiri, Dhoritri Koiri and the plaintiff himself were the joint owners and co-pattadars in respect of a plot of land measuring 1B-1K-3L covered by Dag No. 137 of PP No. 278 of Dibrugarh Town mouza, Chiring Gaon ward in the district of Dibrugarh. After the death of Ram Janam Koiri and Dhoritri Koiri, the plaintiff Jamuna Prasad Koiri had become the owner of the suit land on the basis of an amicable settlement between the legal heirs of the deceased pattadars and has been possessing the land since then. It is the case of the plaintiff that he had appointed one Lachman Bhagat Shah as chowkidar to look after the aforesaid landed property of the plaintiff and accordingly Lachman Bhagat Shah had built up a temporary structure over the suit land for residential purpose and has been residing therein with his family. About ten years before filing the suit, Lachman Bhagat Shah died and after his death the defendant No. 1, i.e. the daughter of the Lachman Bhagat Shah continued to stay in the suit land along with her family including defendant No. 2, who is her husband. On 30-08-2000 the plaintiff requested the defendant to vacate the suit land by removing the houses standing thereon, but the defendants paid no heed to such request. Plaintiff’s case is that Lachman Bhagat Shah was a permissive occupier under the plaintiff in respect of the suit land and, therefore, soon after the death of Lachman Bhagat Shah, the license granted to him had expired and as such the defendants had no right, title and interest over the suit land. Hence, the plaintiff had filed the suit for recovery of possession by evicting the defendants. 4. Hence, the plaintiff had filed the suit for recovery of possession by evicting the defendants. 4. The defendants contested the suit by filing their written statement-cum-counter claim, inter alia, questioning the maintainability of the suit on the grounds of the same being barred by limitation; for want of cause of action etc. The defendants claimed that the defendant No. 1 has been in continuous physical possession in respect of the suit land for more than 50 years i.e. since her birth and prior to that her father possessed the suit land in a manner adverse to the interest of the actual owner. She, therefore, claimed to have an acquired title over the suit land by way of adverse possession and claimed for a declaratory decree to that effect under the counter claim. The defendants have, however, admitted that they had no knowledge as to who is the actual owner of the land. But having said that the defendant No. 1 categorically denied that Lachman Bhagat Shah was ever appointed as a chowkidar under the plaintiff or that Lachman Bhagat Shah had ever stayed in the suit land as a licensee under the plaintiff as has been claimed by him. The defendant No. 1 further stated that name of Lachman Bhagat Shah had been duly entered in the municipal record by assigning a holding number in respect of the house standing over the suit land. On the basis of such pleadings the defendants have prayed for dismissal of the suit. 5. Upon hearing the pleadings of the parties the learned Trial Court had framed as many as ten issues including one additional issue, which are as follows: 1) Whether the suit is maintainable in law? 2) Whether the suit is barred by law of limitation? 3) Whether there is cause of action in the suit? 4) Whether Late Lachman Bhagat was a licencee of the suit land under the plaintiff? 5) Whether the defendants are in the possession of 0B-2K-0L of land? 6) Whether the house over the suit land is permanent structure? 7) Whether the defendants are entitled to relief, as mentioned in the counter-claim? 8) Whether the defendants are possessing the suit land adversely to the owner? 9) What relief/ reliefs parties are entitled to? Addl. Issue: 10) Whether the plaintiff is entitled to decree as prayed for? 6. 6) Whether the house over the suit land is permanent structure? 7) Whether the defendants are entitled to relief, as mentioned in the counter-claim? 8) Whether the defendants are possessing the suit land adversely to the owner? 9) What relief/ reliefs parties are entitled to? Addl. Issue: 10) Whether the plaintiff is entitled to decree as prayed for? 6. The plaintiff side has examined three witnesses including himself whereas the defendant had also examined three witnesses including the defendant No. 1 herself. After considering the evidence on record and on hearing the argument of both sides the learned Trial Court had decreed the suit of the plaintiff. 7. Being aggrieved and dissatisfied with the judgment and decree dated 29-09-2004 passed by the learned Trial Court in Title Suit No. 84/2000, the defendants as appellants had preferred Title Appeal No.16/2004 in the court of learned Civil Judge, Dibrugarh. By the judgment and decree dated 15-12-2006 the learned First Appellate Court had dismissed the appeal filed by the defendants as appellants thereby affirming the judgment and decree of dismissal passed by the learned Trial Court below. 8. Being highly aggrieved with the concurrent judgment and decree dated 15-12-2006 passed by the court of learned Civil Judge (Sr. Div.), Dibrugarh the defendant as appellants have preferred this second appeal which was admitted by this Court by framing the following substantial question of law: “Whether the learned lower Appellate Court left out of consideration evidence, oral and documentary, bearing on adverse possession claimed by the appellants in decreeing the suit of the respondent plaintiff?” 9. Mr. B. Ullah, learned counsel for the appellants submits that a decree for recovery of possession cannot be granted in a suit based on title unless the plaintiff succeeds in proving and establishing his title over the suit land and a finding to that effect is recorded by the court below. In the instant case although the plaintiff has claimed to be the owner of the suit land yet, the aforesaid claim is based only on Exhibit-1 jamabandi and a few revenue paying receipts, which are not the document of title. He submits that it is settled law that entries in jamabandi are relevant only for fiscal purpose and the same does not confer ownership and title. In support of his aforesaid contention Mr. Ullah has placed reliance upon (2007) 6 SCC 186 (Suraj Bhan and Ors. Vs. He submits that it is settled law that entries in jamabandi are relevant only for fiscal purpose and the same does not confer ownership and title. In support of his aforesaid contention Mr. Ullah has placed reliance upon (2007) 6 SCC 186 (Suraj Bhan and Ors. Vs. Financial Commissioner and Ors.) and (2008) 9 SCC 368 (Rajinder Singh Vs. State of Jammu and Kashmir and Ors.) to contend that the plaintiff has failed to produce any evidence in support of the claim of his title since jamabandi is not a document of title. 10. By relying upon another decision of the Hon’ble Apex Court reported in AIR 1995 SC 1377 in the case of Nagar Palika, Jind Vs. Jagat Singh, he submits that in a suit for recovery of possession based on title, when the possession of the plaintiff has been disputed by the defendant from the stage of written statement, it was incumbent upon the court of first appeal to record findings on the claim of title to the suit land. However, in the instant case the learned First Appellate Court has decreed the suit without recording any such finding thereby acting in clear contravention of the mandate of Order XLI Rule 31 CPC. Mr. Ullah further submits that as per Order XLI Rule 31 CPC the First Appellate Court was required to record a finding deciding each of the issues based on materials on record. However, in the instant case the said exercise has not been done by the court below. In support of his aforesaid argument, Mr. Ullah has relied upon two decisions of this Court in the case of Zanthungo Kithan Vs. Nchumbemo Tungo and Ors. reported in 1997 (2) GLT 36 and in the case of Mantu Nag Vs. Empire Plantation (I) Ltd. reported in 1998 (4) GLT 375 contending that the lower appellate court was required to pronounce judgment on all the issues. Therefore, since the learned court below has decreed the suit filed by the plaintiff without deciding the issues based on materials of record, hence, the decree passed by the court below stood vitiated in the eye of law and as such the same is liable to be interfered by this Court. 11. Per contra Mr. Therefore, since the learned court below has decreed the suit filed by the plaintiff without deciding the issues based on materials of record, hence, the decree passed by the court below stood vitiated in the eye of law and as such the same is liable to be interfered by this Court. 11. Per contra Mr. S.P. Choudhury, learned counsel appearing for the respondents by relying upon a decision of this Court reported in 2003 GLT 453 contend that the copies of jamabandi as well as the revenue paying receipt cannot be altogether brushed aside by the court while dealing with the question of the title of all the plaintiff even though the said documents may not by itself be document of title. He submits that since the defendant have not categorically denied the title of the plaintiff over the suit land in their written statement, hence, the learned courts below was justified in decreeing the suit filed by the plaintiff on the grounds and reasons mentioned therein. 12. I have considered the rival submission made by and on behalf of the parties and have also perused the materials on record. On a perusal of the impugned judgment and decree passed by the First Appellate Court it appears that the lower Appellate Court had concurred with a finding of the Trial Court without recording any independent finding as regards the vital issue i.e. issue No. 4 by following the mandate of Order XLI Rule 31 CPC. Order XLI Rule 31 CPC reads as follows: “Contents, date and signature of judgment. – The judgment of the Appellate Court shall be in writing and shall state– (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 13. From a perusal of the judgment and order passed by the lower Appellate Court what is evident is that neither any points for determination has been framed by the court below nor any independent finding in respect of each of the issues had been recorded by giving reasons. From a perusal of the judgment and order passed by the lower Appellate Court what is evident is that neither any points for determination has been framed by the court below nor any independent finding in respect of each of the issues had been recorded by giving reasons. Therefore, the judgment and order passed by the learned First Appellate Court is in clear breach of requirement of Order XLI Rule 31 CPC. 14. From a perusal of the pleadings contained in the plaint as well as the written statement, it appears that suit filed by the plaintiff is one based on title which has been denied by the defendants. Despite the same neither any issue has been framed by the court below nor any finding is recorded as regards the title of the plaintiff. Even though no specific prayer for issuance of a decree declaring the right, title and interest of the plaintiff over the suit land had been made, even then the suit of the plaintiff having been based on a claim of title over the suit land, a decree for recovery of possession could not have been issued by the court below without arriving at a finding as regards the title of the plaintiff. That apart, even as regards issue No. 4 it appears that the learned First Appellate Court has failed to record any finding based on evidence on record on the said issue but had mechanically recorded concurrence with the conclusions drawn by the trial court. Decision and conclusion as regards issue No 4 would have a significant bearing in the outcome of the suit and, therefore, the learned first appellate could ought to have recorded its own finding on the said issue. The evidence on record is not sufficient for this Court to record a finding on fact. Moreover, in a second appeal this Court would not embark upon recording a finding of fact for the first time as regards issues which have not been properly dealt with by the court below. As such this court has no alternative but to set aside the Appellate Court’s judgment and decree and remand the matter back to the First Appellate Court for a fresh decision of the title appeal on merit by recording findings on each of the issues based on materials on record. 15. In the case of Tejender Singh Ghambhir & Anr. Vs. 15. In the case of Tejender Singh Ghambhir & Anr. Vs. Gurpreet Singh & Ors. reported in (2014) 10 CC 702 the Hon’ble Apex Court has held that the power of First Appellate Court would be co-extensive with that of the Trial Court. Therefore, there would be no bar on the part of the lower Appellate Court to recast the issues and record finding in respect of all the issues if the evidence on record are sufficient for the purpose of doing so. Similar view has been expressed by this Court in 2005 (1) GLT 407 in the case of Premomaybasu Vs. Rita Purkayastha & Ors. Even otherwise, subject to the condition laid down in Order XLI Rule 27 CPC, the First Appellate Court, being the final court of fact, would have the power to receive additional evidence if the same is justified in the facts and circumstances of the case. 16. In view of the above, the impugned judgment and decree is hereby set aside and the matter is remanded back to the First Appellate Court for a fresh decision on merit. The learned First Appellate Court would now recast the additional issue No. 10 and decide the question of title of the appellant vis-à-vis the plea of adverse possession raised by the defendant in the counter claim. Having regard to the fact that the suit is old one being of the year 2000 an attempt would be made for expeditious disposal of the same preferably within a period of 6 months from the date of receipt of the record if necessary by holding day to day hearing of the case. Parties to appear before the First Appellate Court on 03-08-2015. No order as to cost. Registry to send back the record as expeditiously as possible.