Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 897 (GAU)

Sudhanya Bala Dhar v. Chabi Dutta Choudhury

2015-07-23

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. G.P. Bhowmik, learned Senior Counsel for the appellant. Also heard Mr. N. Dhar, learned counsel for the respondents. 2. The plaintiff, as the appellant, has filed the second appeal against the judgment and decree dated 30.09.2004, passed by the learned Civil Judge (Senior Division), Karimganj in Title Appeal No. 52/2003, dismissing the appeal and upholding the judgment and decree dated 12.05.2003, passed by the learned Civil Judge (Junior Division) No. 1, Karimganj, in Title Suit No. 2/1990 whereby the suit of the plaintiff was dismissed on the ground of being barred by res-judicata. 3. This second appeal was admitted to be heard by an order passed on 10.08.2005 on the following substantial questions of law: “(i) Whether the proceeding of T.S. 2/90 is barred under the principle of res-judicata when the suit property of the instant suit and that of former suit i.e. T.S. 84/64 are different? (ii) Whether the Learned Courts below were justified in holding that the instant suit is barred by res-judicata without framing any issue to that effect and without giving any opportunity to the plaintiff to adduce evidence on this issue? (iii) Whether a survey commission report without being subjected to cross-examination due to death of the survey commissioner concerned has got any evidentiary value? (iv) Whether a wrong decision on the point of law operates as res-judicata?” 4. From the aforesaid substantial questions of law, it is clear that at the time of consideration of the appeal under Order XLI Rule 11 of the Code of Civil Procedure, 1908, submission was advanced that the Amin Commissioner appointed was not subjected to cross-examination due to his death, and therefore, his report does not have any evidentiary value. 5. Mr. G.P. Bhowmik, learned Senior Counsel for the appellant has submitted that the aforesaid substantial question of law No. (iii) came to be formulated on the basis of incorrect instructions as the materials on record demonstrate that the Amin Commissioner was examined as Court Witness No. 1 and he was also subjected to cross-examination. In view of the above, Mr. Bhowmik submits that he will not be urging substantial question of law No. (iii). 6. With regard to the substantial question Nos. In view of the above, Mr. Bhowmik submits that he will not be urging substantial question of law No. (iii). 6. With regard to the substantial question Nos. (i), (ii) and (iv), all of which revolve around basically on the finding recorded by the learned Courts below dismissing the suit on the ground of res-judicata, it is emphatically argued by Mr. Bhowmik that the plaintiff was not given any opportunity to address on the issue of res-judicata and without framing any issue, the suit was taken up for disposal. It is submitted by him that the learned Courts below could not have decided the suit in the manner as it has been done, and furthermore, the finding recorded that the suit land in the instant case was also subject matter in Title Suit No. 84/1964, instituted by one Sudha Rani Dey against the vendor of the present plaintiff, namely, Upendra Chandra Das, wherein present plaintiff was also arrayed as defendant No. 2, is perverse. According to him, the suit land measuring 2 cubits x 76 cubits, which is described in the second schedule in the plaint, is distinct and separate from the suit land involved in Title Suit No. 84/1964. Accordingly, he submits that the appeal be allowed by remanding the matter to the learned Trial Court to frame an issue in respect of res-judicata and to give opportunity to the parties to lead evidence. 7. Mr. N. Dhar, learned counsel for the respondents has submitted that an Amin Commissioner was appointed and he had submitted a report on 30.06.1992 categorical recording that the suit land is part of the decreetal land of Title Suit No. 84/1964 and that the defendants are not in possession of excess land beyond the decreetal land which came to be possessed by the predecessor of the defendants. He had submitted that the Amin Commissioner was examined as Court Witness No. 1 and his finding that defendants are not in possession of excess land beyond the decreetal land in Title Suit No. 84/1964 was not challenged. In his evidence, the Amin Commissioner had exhibited his report as Exhibit – C(1) alongwith copies of sketch maps as Exhibits – C(2), C(3) and C(4). 8. In his evidence, the Amin Commissioner had exhibited his report as Exhibit – C(1) alongwith copies of sketch maps as Exhibits – C(2), C(3) and C(4). 8. It is submitted that the report of the Amin Commissioner was accepted by the learned Trial Court on 12.01.1993 after hearing the parties and the said order dated 12.01.1993 was challenged by the plaintiff before this Court by filing a revision application, registered as Civil Revision Petition No. 196/1993, which, however, was withdrawn as not pressed on 13.12.1993. It is submitted that suit was dismissed for default on a couple of occasions and when the suit was restored on 21.08.2002, after the same was dismissed for default on 06.05.2002, the present defendants, as petitioners, had approached this Court challenging the said order of restoration of the suit and complaining of undue delay in disposal of the Title Suit No. 2/1990, and the said petition was registered as Civil Revision Petition No. 339/2002. It is submitted that while disposing of the said revision petition, by an order dated 12.11.2002, liberty was granted to the petitioners, i.e. the defendants in the suit, to raise the question of maintainability of the suit on the ground of res-judicata before the learned Trial Court. Thereafter, the petitioners (the defendants in the suit) filed a petition on 29.11.2002 to frame a preliminary issue as to whether the suit is barred on the ground of res-judicata. An issue was also framed on 12.03.2003 to the effect as to whether the suit is barred by res-judicata. Date of hearing was accordingly fixed and the counsel were also heard on 22.04.2003, and thereafter, the impugned order was passed by the learned Trial Court holding the suit to be barred by res-judicata. The learned counsel submits that no prayer was made by the plaintiff for adducing any evidence on the preliminary issue framed. The learned counsel, accordingly, submits that there is no merit in this appeal and the appeal deserves to be dismissed. 9. I have considered the submissions of the learned counsel for the parties and have perused the materials on records. 10. The suit of the plaintiff was initially dismissed for default on 11.07.1994. Prayer for restoration of the suit was rejected vide order dated 02.01.1996 in M.C. No. 139/1993. 9. I have considered the submissions of the learned counsel for the parties and have perused the materials on records. 10. The suit of the plaintiff was initially dismissed for default on 11.07.1994. Prayer for restoration of the suit was rejected vide order dated 02.01.1996 in M.C. No. 139/1993. However, in Misc Appeal No. 6/1996, by an order passed on 19.03.2002, the learned Civil Judge (Senior Division) No. 1, Karimganj restored the suit. The suit was dismissed for default within two months thereafter on 06.05.2002 and it again came to be restored by an order dated 21.08.2002. Civil Revision Petition No. 339/2002 was preferred against restoration of the suit vide order dated 21.08.2002. 11. This Court, while not interfering with the order of restoration in the revision, disposed of the Civil Revision Petition by order dated 12.11.2002 as follows: “Mr. N. Dhar, learned counsel for the petitioner submits that the primary thrust in the present application is in regard to the maintainability of Title Suit No. 2/90 pending in the Court of the Civil Judge (Junior Division) No. 1, Karimganj. The learned counsel has submitted that the suit is not maintainable as it is barred by res judicata as well as by provisions of Article 65 of the Limitation Act. The aforesaid question of maintainability has been raised by the revision petitioner in his written statement filed in the aforesaid suit. This court therefore does not consider it appropriate to exercise its revisional jurisdiction to decide the said question at this stage. It is open for the revision petitioner to raise the question of maintainability before the trial court. If the said question is raised before the trial the same shall be decided in accordance with law. The Revision petition stands disposed of with the aforesaid direction.” 12. At this stage, it will be relevant to state that the plaintiff had filed the suit stating that she had purchased 1 Powa 1 Jasti and 8 Pon of land from one Upendra Chandra Das vide registered Sale Deed dated 03.09.1964 in two contiguous dags. At the time of purchase, a title suit being Title Suit No. 84/1964 was pending between one Sudha Rani Dey and Upendra Chandra Das, wherein the plaintiff was also a defendant. At the time of purchase, a title suit being Title Suit No. 84/1964 was pending between one Sudha Rani Dey and Upendra Chandra Das, wherein the plaintiff was also a defendant. The said suit was decreed in favour of Sudha Rani Dey and according to the plaintiff, in execution of the decree, Sudha Rani Dey recovered khas possession of third schedule land of the present suit. Thereafter, the plaintiff had purchased 7 Jasti of land by a registered Sale Deed dated 03.06.1966 and she was also delivered possession. It is pleaded in the suit that the defendants had encroached upon the second schedule land measuring 76 cubits x 2 cubits on 07.11.1988. 13. The defendants are successors-in-interest of Swadesh Ranjan Dutta Choudhury, who purchased 1 Powa 1 Jasti 8 Pon 5 Gonda land including the suit land from Sudha Rani Dey. Sudha Rani Dey had purchased the said land from Upendra Chandra Das by a Sale Deed dated 26.12.1962. It was also stated that in Title Suit No. 84/1964, Sudha Rani Dey had recovered the encroached portion and in respect of the said land, the plaintiff had filed the suit on baseless allegations. 14. From the records, it is found that Amin Commissioner had submitted a report on 30.06.1992 and the said report was accepted by an order dated 12.01.1993. The said order was put to challenge in Civil Revision Petition No. 196/1993. However, the petition was not pressed on the ground that the pressing of the petition may jeopardize the interest of the petitioner therein in future. 15. As noticed earlier, the report of the Amin Commissioner was assailed at the time of consideration of the admission of the appeal under Order XLI Rule 11 of the Code of Civil Procedure, 1908 on the ground that the report was not tested under cross-examination as he had died in the meantime. Mr. Bhowmik had not urged the substantial question of law No. (iii) as the Amin Commissioner was duly cross-examined. Evidence of the Amin Commissioner goes to show that observations recorded by him in Exhibit – C(1) that the suit land is part of the decreetal land in Title Suit No. 84/1964 was not assailed. 16. It is also found from record that after disposal of Civil Revision Petition No. 339/2002 on 12.11.2002, preliminary issue was framed on 12.03.2003 on the basis of a petition filed by the defendants. 16. It is also found from record that after disposal of Civil Revision Petition No. 339/2002 on 12.11.2002, preliminary issue was framed on 12.03.2003 on the basis of a petition filed by the defendants. The preliminary issue reads as follows: “Whether the suit is barred by res-judicata?” 17. 31.03.2003 was the date fixed for hearing on the preliminary issue, and thereafter, on 02.04.2003, counsel for both the parties were heard on the preliminary issue. Therefore, the submission of Mr. Bhowmik that no preliminary issue was framed and that no opportunity was granted to the plaintiff are found to be without any substance. 18. In view of the above discussions, substantial questions of law are answered against the appellant and finding no merit in the appeal, the same is dismissed. No cost. 19. Registry will send back the records.