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2017 DIGILAW 333 (GAU)

Jannat Rahman (Mustt. ) v. Amjad Ali

2017-03-16

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : Prasanta Kumar Deka, J. 1. Heard Mr. AB Choudhury, learned senior counsel, assisted by Mr. H. Haque, learned counsel, appearing on behalf of the appellants/defendants. Also heard Mr. A. Alom, learned counsel, appearing on behalf of the respondents/plaintiffs. 2. The present appellants are the defendants in Title Suit No. 126/2002 filed by the respondents/plaintiffs in the court of the learned Civil Judge (Junior Division), No. 1, Barpeta. The case of the plaintiffs/respondents is that they along with proforma defendants are the legal heirs/children of late Paran Khan, who died in the year 1975. Paran Khan had his dwelling house at Village Joti upon his land, measuring 2 (two) Bighas 1 (one) Katha 12 (twelve) lechas covered by Dag No. 94 (new)/47 (Old) under the Annual Patta under Barpeta Mouza, issued in his favour by the Government of Assam in the last Settlement Operation 1958-65. The plaintiffs/respondents and the proforma defendant were brought up in the said house over the said land. The said land measuring 2 Bighas 1 Katha 12 Lechas is the suit land and fully described in the schedule of the plaint. 3. Besides the suit land, Paran Khan had some other lands nearby the suit land which he used to possess by cultivating and by paying Touzi fines. The neighbours interfered with the peaceful possession and enjoyment of the land of Paran Khan since the time of settlement operation and as Paran Khan was alone and weak to resist the neighbours from possessing the land against which the Touzi fees was paid, the said encroachers possessed the suit land, which was agriculture in nature. Paran khan in order to maintain his family, shifted to the Village Dwerikuchi where his wife inherited some agricultural land in the year 1971 and also shifted his residence to the said land at Dewrikuchi from the suit land. Paran Khan died in the year, 1975. However, the name of late Paran Khan continued as the settlement holder of the suit land and the same was maintained in the record of rights by the Revenue Authority, but no Annual Patta was issued. 4. The suit land remained vacant since 1971 but the plaintiffs/respondents kept constant touch and vigil upon the suit land and paid land revenue regularly, the same being covered under Annual Patta. 4. The suit land remained vacant since 1971 but the plaintiffs/respondents kept constant touch and vigil upon the suit land and paid land revenue regularly, the same being covered under Annual Patta. On 8.4.2002 when the plaintiffs/respondents went to the office of the Mouzadar, Barpeta to pay the land revenue, they came to know that the suit land was mutated in the names of the defendants/appellants in the record of rights. On 10.4.2002, the plaintiffs/respondents applied for certified copy of draft Chitha of the suit land and obtained it on 24.4.2002 wherein the name of late Paran Khan remained as settlement holder. 5. The plaintiffs/respondents visited the suit land on 10.4.2002 and found that the defendants/appellants started construction of a house with wooden frame and C.I. sheet roof and another RCC house and one C.I. sheet Chali with wooden frame was constructed upon the said suit land. On enquiry, the plaintiffs/respondents came to know that the defendants/appellants entered into the suit land in the year 1997. Neither Paran Khan nor the plaintiffs/respondents or proforma defendant ever transferred the suit land in favour of the defendants/appellants or anybody else in any manner and the defendants/appellants fraudulently obtained mutation over the suit land in collusion with some of the Revenue officials. 6. It is the case of the plaintiffs/respondents that the mutation cannot confer any title to the defendants/appellants and cannot destroy the title of Paran Khan and the plaintiffs/respondents. The Government has not cancelled the Patta, issued in the name of said Paran Khan by issuing non renewal notices under the law. The title of the plaintiffs is clouded upon the suit land from the illegal activities of the defendants/appellants, as such the plaintiff filed the said suit praying for the relief for declaration of the right, title and interest over the suit land along with proforma defendant, the recovery of possession by evicting the defendants/appellants' mutation in place of Paran Khan is fraudulent, illegal and without conferring any right, title and interest in favour of the defendants/appellants, a precept to the revenue authority to cancel the said mutation over the suit land. It is pertinent to mention herein that the relief claimed by the plaintiffs/respondents are joint in nature against the original defendants No. 1, 2 and 3 namely, Musstt. Jannat Rahman, wife of Omar Ali, Moniruddin, son of late Ansar Sarkar and Md. It is pertinent to mention herein that the relief claimed by the plaintiffs/respondents are joint in nature against the original defendants No. 1, 2 and 3 namely, Musstt. Jannat Rahman, wife of Omar Ali, Moniruddin, son of late Ansar Sarkar and Md. Omar Ali, son of late Maharuddin respectively. 7. The defendant/appellant Nos. 1 and 3 filed their joint written statement contesting the claim of the plaintiffs/respondents. It was pleaded that there was no cause of action for the suit, that the suit was barred by limitation. It was further pleaded that Paran Khan transferred the suit land in the year 1991 to one Dambaru Ojah and another one Jatin Ojah by Kuchha deed and later on transferred the suit land to the defendants/appellants in the year 1993 and thereafter the name was accordingly mutated in the year 1993 itself. The plaintiffs/respondents had no right to use of occupation of the suit land and the proforma defendant had the knowledge about the sale and possession of the suit land by Paran Khan to Dambaru Ojah and Jatin Ojah in the year 1971. Accordingly, they prayed for dismissal of the suit. 8. During the pendency of the suit, defendant No. 2 Muniruddin died on 14.01.2003 and as apparent from the order sheet of Title Suit No. 126/2002 on 30.1.2003, the counsel appearing on behalf of the defendants filed a petition No. 7/2003 informing the court about the death of Munir Uddin. However, the plaintiffs/respondents failed to substitute the deceased defendant No. 2, Munir Uddin by his legal heirs. Vide order dated 24.4.2003, passed by the trial court, the suit proceeded ex-parte against the defendant No. 2 deceased, Muniruddin. 9. On the basis of the pleading of the parties, the trial court framed the following issues : "1. Whether there is cause of action for the suit? 2. Whether the suit is barred by the law of Limitation? 3. Whether the suit is bad for non-joinder of the parties? 4. Whether the plaintiffs and proforma defendant have right, title, interest over the suit land? 5. Whether the defendants in the year 1997 occupied the suit land illegally? 6. Whether the mutation of defendants in place of the predecessors-in-interest of plaintiffs was fraudulent and illegal and inoperative in the eyes of law? 7. Whether the plaintiffs are entitled to get a decree as prayed for? 8. 5. Whether the defendants in the year 1997 occupied the suit land illegally? 6. Whether the mutation of defendants in place of the predecessors-in-interest of plaintiffs was fraudulent and illegal and inoperative in the eyes of law? 7. Whether the plaintiffs are entitled to get a decree as prayed for? 8. What other relief or reliefs the parties are entitled to?" 10. The parties to the suit adduced respective evidences by producing their witnesses and trial court after hearing the parties vide judgment and decree dated 25.5.2004 dismissed the suit. While deciding the issue No. 3, the trial court held that the suit is abated against the deceased defendant No. 2 and as the reliefs are inseparable the whole suit was abated and as such the trial court held that the suit was bad for non-joinder of the necessary parties inasmuch as the said defendant No. 2 was not substituted by his legal heirs. 11. Being aggrieved by the said judgment and decree dated 25.5.2004, the plaintiffs/respondents preferred Title Appeal No. 23/2004 in the court of the learned Civil Judge (Senior Division), Barpeta. The first appellate court vide judgment and decree dated 7.12.2004 allowed the appeal by reversing the findings of the trial court. 12. The defendants/appellants preferred this second appeal challenging the judgment and decree dated 7.12.2004, passed by the learned Civil Judge (Senior Division), Barpeta in Title Appeal No. 23/2004. The said second appeal was admitted by this court on 28.3.2005 by formulating the following substantial question of law: "1. Whether the learned appellate court was correct in holding that the suit was not barred by limitation though the admitted fact is that the plaintiffs/respondents, not being in possession since 1971, filed the suit on 9.9.2002 after a gap of twelve years? 2. Whether the findings of the appellate court is perverse in holding that the plaintiffs/respondents have acquired right, title and interest over the suit land though the same was owned and possessed by the defendants/appellants since 1993 having purchased the suit land from the persons who are in possession during the relevant time? 3. Any other substantial question of law so emerging in course of hearing shall also be taken into consideration with the permission of the court." 13. It is pertinent to mention herein that the present second appeal has been preferred by the original defendant Nos. 3. Any other substantial question of law so emerging in course of hearing shall also be taken into consideration with the permission of the court." 13. It is pertinent to mention herein that the present second appeal has been preferred by the original defendant Nos. 1 and 3, as the appellant No. 1 and 3 and one of the daughters of the deceased defendant No. 2, Moniruddin as the appellant No. 2. At the time of hearing the learned counsel appearing on behalf of the appellants pressed for formulating another substantial questions of law with regard to the abatement of the suit. Accordingly, this court was satisfied to formulate the 3rd substantial question of law as follows: "3. Whether in the suit the prayer of the plaintiffs/respondents being for a joint decree against the original defendants No. 1 to 3 abated for non substitution of the deceased defendant No. 2 Munir Uddin by his legal heirs? 14. Let us discuss the substantial question of law: Substantial question of Law No. 1: "Whether the learned appellate court was correct in holding that the suit was not barred by limitation though the admitted fact is that the plaintiffs/respondents, not being in possession since 1971, filed the suit on 9.9.2002 after a gap of twelve years?" 15. Mr. AB Choudhury, learned senior counsel submits that the plaintiffs/respondents admitted in their pleadings that they left the suit land in the year 1971 and since then they had no possession over the same. It is their further pleadings that they were keeping constant vigil over the suit land, paid the revenue regularly. PW 1 in his evidence-in-chief deposed that on 8.4.1992 when he went to the office of the Mouzadar, he was shocked to know that the defendants/appellants obtained mutation in place of Paran Khan over the suit land. In the course of examination, the said PW 1 admitted that after leaving the suit land in the year 1971, many persons occupied the suit land. The plaintiffs/respondents had the knowledge of the mutation of the defendants/appellants in the year 1992 and occupation of the suit land by other persons in the year 1971 and the instant suit was filed only on 9.9.2002. Hence, it is clear that the plaintiffs came up with the suit after passage of the limitation period of three years since the mutation by the defendants/appellants and 12 years of illegal occupation. Hence, it is clear that the plaintiffs came up with the suit after passage of the limitation period of three years since the mutation by the defendants/appellants and 12 years of illegal occupation. Under such circumstances, the plaintiffs/respondents having full knowledge of possession of suit land by other persons including the defendants/appellants and they failed to file the suit within the period of limitation under Article 64 of the Limitation Act 1963. 16. Mr. Choudhury further submits that the trial court has affirmed the issue that the suit is barred by the law of Limitation. However, the first appellate court on the basis of the wrong presumption and assumption came to the findings that the suit is governed by Article 65 of the Limitation Act 1963 and held that the suit is not barred by law of Limitation. So, Mr. Choudhury submits that finding of the first appellate court is liable to be set aside and the substantial question of law is to be decided in favour of the appellants. 17. Mr. Alam on the other hand supported the findings of the first appellate court on the ground that PW 1 failed to depose in his evidence that the defendants/appellants possessed the suit land since 1971, rather from the evidence of DW 1 it is seen that they purchased the suit land from Dambaru Ojah and Jatin Ojah by Kuchha deed in the year 1993 and since then they are possessing the suit land which fact is supported by DW 2 and 3. As the suit was filed on 9.9.2002 and the same being covered under Article 65 of the Limitation Act, 1963 which prescribed the period of 12 years from the date of possession of the defendants becoming adverse to the plaintiffs, the suit is well within the period of limitation and under such circumstances the substantial question of law is to be decided in the negative. 18. 18. Considered the submission of both the learned counsels and perused the findings of both the courts below, the trial court while deciding the issue No. 2 held that PW 2 i.e. the plaintiff No. 2 came to know on 8.4.1992 that the name of the defendants/appellants were mutated over the suit land and it was well within the knowledge of the plaintiffs/respondents that after Paran Khan left the suit land in the year 1971, many persons occupied the same including Karam Ali, Makbul and Helim. So, the trial court held that the plaintiffs/respondents had the knowledge of mutation of names of the defendants/appellants in the year 1992 and the occupation of land by others in the year 1971 and the suit was filed only on 9.9.2002 i.e. much beyond the period of 12 years as prescribed under Article 65 of the Limitation Act, 1963 and accordingly the suit was barred by limitation. 19. In contrary to the decision of the trial court in issue No. 2, the first appellate court decided the issue No. 2 in favour of the plaintiffs/respondents by considering the cross examination of the PW 1 wherein the first appellate court held that there was no averment/deposition in his evidence that the defendants/appellants possessed the suit land since 1971. It is the evidence of the defendants/appellants side that they purchased the suit land from Dambaru Oja and Jatin Oja in the year 1993 and since then they are in possession of the suit land. The suit was filed on 9.9.2002 and the same is well within the prescribed period of 12 years under Article 65 of the Limitation Act, 1963 and as such the suit is not barred by Limitation. 20. The defendants/appellants pleaded that Poran Khan transferred the suit land in the year 1971 to Dambaru Oja and Jatin Oja by Kuchha deed, who transferred the suit land to the defendants in the year 1993 wherein the names of the defendants were mutated in the year 1993 and since then they have been possessing the suit land and the said fact of possession was well within the knowledge of the proforma defendants, who are the family members of the plaintiffs/respondents. It is also pleaded that the plaintiffs/respondents had no right and occupation over the said land. The relief prayed for by the plaintiffs/respondents is against the defendants/appellants. It is also pleaded that the plaintiffs/respondents had no right and occupation over the said land. The relief prayed for by the plaintiffs/respondents is against the defendants/appellants. The defence of the defendants/appellants is not adverse possession rather it is their case that the suit land was transferred to Dambaru Oja and another wherefrom they purchased the same in the 1993 and obtained possession of the same to the knowledge of the proforma defendants. Under such circumstances, the question of dispossession of the plaintiffs/respondents by the defendants/appellants does not arise, the suit is based on the settlement right of the plaintiff/respondents and as such article 65 of the Limitation Act 1963 will govern the suit. There is no plea with respect to adverse possession against the plaintiffs/respondents by the defendants/appellants. Under such circumstances, considering the pleadings of the defendants/appellants that they purchased the same in the 1993 and have been possessing the same since then and the suit having been filed on 9.9.2002 the same is well within the period of 12 years even if it is presumed that the possession started adverse from the entry of the appellants/defendants name over the suit land on the basis of the Kuchha sale deed as aforesaid. Further discontinuance of possession as pleaded by the plaintiff since 1971 cannot be considered as done by the trial court holding the suit to be governed by Article 64 of the Limitation Act, 1963 inasmuch as discontinuance of possession by the plaintiff in a suit was considered in Article 142 of the Limitation Act, 1908 which has been replaced by the present Article 64 which has within the ambit and scope only the situation when the plaintiff while in possession was dispossessed. Accordingly, this substantial question of law is decided against the appellants/defendants. Substantial Question No. 3:- "Whether the prayer of the plaintiffs/respondents which being for a joint decree against the original defendant No. 1 abated for non substitution of the deceased defendant No. 2 Munir Uddin by his legal heirs?" 21. Mr. Accordingly, this substantial question of law is decided against the appellants/defendants. Substantial Question No. 3:- "Whether the prayer of the plaintiffs/respondents which being for a joint decree against the original defendant No. 1 abated for non substitution of the deceased defendant No. 2 Munir Uddin by his legal heirs?" 21. Mr. AB Choudhury, learned senior counsel submits that the trial court discussing the Issue No. 3 held that the death of Moniruddin (defendant No. 2) is admitted one and he being not substituted by his legal heirs, the right to sue of the plaintiffs/respondents does not survive and as such as the decree prayed for by the plaintiffs/respondents is a joint one against all the defendants, under such circumstances, the whole suit had abated. Mr. Choudhury further submits that the trial court came to the finding that the plaintiffs/respondents owing to their laches and negligence allowed the suit to abate inasmuch the defendants' side brought to the notice of the plaintiffs/respondents by filing petition before the trial court about the death of the defendant No. 2 Moniruddin. On the other hand, the first appellate court came to the finding that as apparent from the order dated 24.4.2003 of the trial court owing to non-taking of steps by the defendant No. 2, the matter was directed to be proceeded ex-parte against the defendant No. 2 and the court has the jurisdiction to exempt the plaintiffs/respondents from substitution of the deceased defendant No. 2 by his legal heirs under Order 22, Rule 4 (4) of the CPC when the deceased defendant No. 2 had not filed written statement. Holding such, the first appellate court had reversed the finding of the trial court in Issue No. 3. 22. Mr. Choudhury, learned senior counsel submits that the first appellate court misconstrued the provisions of Order 22, Rule 4 (4) of the CPC and as such the finding of the first appellate court is wrong inasmuch as the suit abated prior to the passing of ex-parte order against the deceased defendant No. 2 and the substantial question of law be decided in the affirmative. 23. Mr. Alam, learned counsel, appearing on behalf of the respondents submits that as the trial court allowed the matter to proceed ex-parte against the deceased defendant No. 2, no fault/laches and negligence be attributed to the plaintiff/respondents in not bringing the legal heirs of the deceased Moniruddin. 23. Mr. Alam, learned counsel, appearing on behalf of the respondents submits that as the trial court allowed the matter to proceed ex-parte against the deceased defendant No. 2, no fault/laches and negligence be attributed to the plaintiff/respondents in not bringing the legal heirs of the deceased Moniruddin. The first appellate court has rightly decided the issue accordingly on the basis of the facts and circumstances of the present case in hand, the suit cannot be treated to be abated as a whole and as such the finding of the first appellate court was correct. 24. Considered the submission of the learned counsel for both the parties and findings of the both the courts below with respect to the Issue No. 3. Perused the records. From the record of Title Suit No. 126/02, it is apparent that vide order dated 9.9.2002 summons were directed to be issued by the trial court fixing 5.10.2002 for S.R. On 5.10.2002, the plaintiffs/respondents took steps for issuance of summons to the defendants/appellants fixing 22.11.2002. Thereafter on 22.11.2002 and 19.11.2002 the Presiding Officer was transferred and as such though defendants/appellants entered appearance but took time for filing their written statement and on 30.1.2003, the counsel appearing on behalf of the deceased defendant No. 2 Muniruddin, filed an application informing the court that the said defendant No. 2 died on 14.1.2003 purportedly as required under Order 22, Rule 10A of the CPC. Thereafter, vide order dated 24.4.2003, the matter was directed to be proceeded ex-parte against the deceased defendant No. 2. As referred to herein above that the decree prayed for by the plaintiff/respondents was for ejectment of all the defendants from the suit land and the same cannot be separated inasmuch as there was no pleadings in the plaint as to what extent the deceased defendant No. 2 was occupying the suit land and the plaintiff respondents have sought for recovery of possession by ejecting all the defendants from the suit land as a whole and accrual of cause of action of the plaintiffs/respondents are on the alleged act of dispossession by all the defendants. Under such circumstances, under the provision of Order 22, Rule 4 of the CPC, a duty was cast upon the plaintiffs/respondents to bring the legal heirs of the deceased defendant No. 2 on record by way of substitution. Under such circumstances, under the provision of Order 22, Rule 4 of the CPC, a duty was cast upon the plaintiffs/respondents to bring the legal heirs of the deceased defendant No. 2 on record by way of substitution. Considering the nature of the relief sought for by the plaintiff/respondents, it is very much apparent on the death of the said defendant No. 2 the right to sue of the plaintiffs/respondents against the defendant Nos. 1 and 3 does not survive. In addition to that, the trial court dismissed the suit on the ground of abatement and also non-joinder of the necessary parties i.e. the legal heirs of the deceased defendant Nos. 2. The first appellate court, knowing fully well about the death of the deceased defendant No. 2 allowed the appeal when the appellants/plaintiffs could not have brought the action for the necessary relief against those respondents, who are still before the court when the decree against the surviving respondents is totally ineffective i.e. to say it could not be successfully executed. 25. In the State of Punjab v. Nathuram reported in AIR 1962 SC 89 , the Hon'ble Apex Court held as follows: "The question whether a court can deal with such matter or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court. The test to determine this has been described in diverse form. The test to determine this has been described in diverse form. Courts will not proceed with in appeal (a) when the success of the appeal may lead to the court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's passing a decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b)when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say, it could not be successfully executed." 26. From the ratio of the said decision of the Hon'ble Apex Court, it is very much clear that as the decree prayed for by the plaintiffs/respondents was a joint one against all the defendants and the same cannot be separated so far the deceased defendant No. 2 is concerned, under such circumstances, the decree so passed by the first appellate court against the surviving respondents was totally ineffective inasmuch as the decree passed by the first appellate court could not be successfully executed. The presence of one of the legal heirs of the deceased defendant No. 2 herein this second appeal cannot revive the suit inasmuch as she was not substituted in order to protect the suit from being abated. 27. Under such circumstances, this substantial question of law is decided in the affirmative inasmuch as the suit has abated as a whole and the same cannot be by-passed merely on the basis of the order of ex-parte as referred to herein above, by the first appellate court considering the facts and circumstances of the present case in hand. Substantial question No. 2. "Whether the findings of the appellate court is perverse in holding that the plaintiffs/respondents have acquired right, title and interest over the suit land though the same was owned and possessed by the defendants/appellants since 1993 having purchased the suit land from the persons who are in possession during the relevant time?" 28. Substantial question No. 2. "Whether the findings of the appellate court is perverse in holding that the plaintiffs/respondents have acquired right, title and interest over the suit land though the same was owned and possessed by the defendants/appellants since 1993 having purchased the suit land from the persons who are in possession during the relevant time?" 28. In view of findings of the substantial question No. 3, this court feels it necessary that the same need not be replied as this second appeal succeeds whereby the impugned judgment and decree passed on 7.12.2004 by the first appellate court in Title appeal No. 23/2004 is set aside and this court accordingly upheld the judgment and decree dated 25.5.2004, passed by the learned court of Civil Judge (Junior Division) No. 1, Barpeta in Title Suit No. 126/02. Accordingly, this second appeal is allowed. No cost. Send back the LCR.