Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 713 (GAU)

Nagen Chandra Das v. Abhijit Deb

2017-06-01

PRASANTA KUMAR DEKA

body2017
JUDGMENT & ORDER : Prasanta Kumar Deka, J. Heard Mr. S P Roy, learned counsel appearing on behalf of the appellants. Also heard Mr. S Ali, learned counsel representing the respondents. 2. The present appellants are the defendants in Title Suit No. 62/2001(old)/Title Suit No. 1067/2006 (new). The respondents are the plaintiffs. The plaintiffs/respondents filed the said suit for declaration of their right, title and interest over the suit land, recovery of possession, injunction both prohibitory and mandatory in permanent nature. Lt. Sindhu Bhusan Deb was the uncle of the plaintiffs/respondents and was the owner and predecessor of the suit property, described in Schedule-A of the plaint. Said Sindhu died on 05.10.2000 leaving his nephew and niece i.e. the plaintiffs/respondents. It is the claim of the said plaintiffs/respondents that they are entitled to the suit land as they are cognate and agnate of the said deceased Sindhu Bhusan Deb. In the plaint, the genealogical relation derived from the common ancestor of deceased Sindhu Bhusan Deb is pleaded. The plaintiffs/respondents took care of the deceased uncle and used to look after him and if necessity arose, he was hospitalized and they maintained a healthy family relation with the said uncle. It is pertinent to mention here that the said Sindhu Bhusan Deb was unmarried and was enjoying the suit property as one of the inheritors from its original owner. After the death of Sindhu Bhusan Deb, the plaintiffs/respondents visited his house and found it unlocked where after it came to their knowledge that the defendant/respondent Nos.1 to 5 locked the said house and the almirah, consisting the title documents of the suit land was kept under the custody of the defendant No. 5, who is the police officer of the Udalbakra Police Outpost, under Basistha PS. Though the plaintiffs/appellants moved to the said defendant No. 5 but, they were unsuccessful in bringing back to their custody the said almirah and the title document of the suit land. Being aggrieved, they preferred the suit claiming recovery of possession and permanent injunction over the said property with a prayer for mandatory injunction directing the defendant No. 5 to hand over the said almirah back to the plaintiffs/respondents. 3. The defendants/appellants No. 1 to 4 contested the suit by denying the claim of the plaintiffs/respondents to be cognate/agnate of Lt. Being aggrieved, they preferred the suit claiming recovery of possession and permanent injunction over the said property with a prayer for mandatory injunction directing the defendant No. 5 to hand over the said almirah back to the plaintiffs/respondents. 3. The defendants/appellants No. 1 to 4 contested the suit by denying the claim of the plaintiffs/respondents to be cognate/agnate of Lt. Sindhu Bhusan Deb thereby raising the defence that the said plaintiffs/respondents in order to grab the suit property has filed the suit. The defendant/respondent No. 5, is a trust represented by its managing trustees who was impleaded later on, at the instance of the learned trial court. The said defendant/appellant No. 5 filed its written statement claiming that the physical possession of the suit property is under the said trust. It was also pleaded that in a meeting held on 11.01.1998, Lt. Sindhu Bhusan Deb publicly offered and dedicated the suit property in the name of Vivekananda Vidyapith High School at Udalbakra for its use and for other work on the suit land. After the death of Sindhu Bhusan Deb, the said trust was formed vide Registered Deed No. 3792 dated 06.10.2000. It is also pleaded, as the plaintiffs/respondents are not family members of Lt. Sindhu Bhusan Deb they are not entitled for the claim they made in the suit. 4. As aforesaid, the defendant/respondent No. 5 was impleaded as per the direction of the trial court and as a result there was no amendment introduced in the plaint of the plaintiffs/respondents. Upon the pleadings of the parties to the suit, the following issues were framed by the trial court. "(i). Whether the suit is barred by limitation? (ii). Whether the suit is property valued & proper court fees has been paid thereof? (iii). Whether the suit is maintainable? (iv). Whether the plaintiffs are the legal heirs of Late Sindhu Bhusan Deb? (v). Whether the plaintiffs have got any right, title and interest over the suit properties? (vi). Whether the plaintiffs are entitled to get custody of iron box belonging to Late Sindhu Bhusan Deb? (vii). Whether the plaintiffs are entitled to get the decree as prayed for? (viii). To what, relief/reliefs the parties are entitled to?" 5. Both the parties adduced evidence, both oral and documentary. The learned trial court after hearing the parties dismissed the suit by deciding the issue Nos. 7 and 8 against the plaintiffs/respondents. (vii). Whether the plaintiffs are entitled to get the decree as prayed for? (viii). To what, relief/reliefs the parties are entitled to?" 5. Both the parties adduced evidence, both oral and documentary. The learned trial court after hearing the parties dismissed the suit by deciding the issue Nos. 7 and 8 against the plaintiffs/respondents. It is submitted that there was deficit court fee while filing the suit and as such the learned trial court, though decided the principal issues in favour of the plaintiffs/respondents however, owing to the said deficit court fee the suit was dismissed. 6. The plaintiffs/respondents thereafter preferred Title Appeal No. 54/2007 in the court of learned Civil Judge No. 2 at Guwahati. The said appeal was registered as Title Appeal No. 54/2007 and in the said appeal the present defendants/appellants filed a cross objection under Order 41, Rule 22 of the CPC. The learned First Appellate Court vide its judgment and decree dated 23.12.2008 allowed the appeal thereby setting aside the findings in issue No. 7 and 8. 7. Being aggrieved, the defendants/appellants preferred the present second appeal by challenging the judgment and decree passed by the First Appellate Court. This second appeal was admitted on 30.11.2009 on the following substantial questions of law. "1. Whether the impugned judgment is perverse for not deciding the cross objection of the appellants? 2. Whether the impugned judgment is bad for not deciding the suit as per the provisions of the Hindu Succession Act 1956 for not giving any finding regarding inheritance as Agnates/Cognates?" 8. Mr. S P Roy, learned counsel appearing on behalf of the appellants submits that the judgment and decree passed by both the courts below are perverse. It is submitted that there was no whisper in the plaint as to the manner in which the plaintiffs/respondents are entitled to inherit the suit property, inasmuch as, the plaintiffs/respondents even failed to prove their relation by cogent evidence. There is no reflection in the judgment and decree of both the courts below on what basis the plaintiffs/respondents are entitled for inheritance of the suit property. It is further submitted that the defendant No. 5 is the Police Officer and he is a Public Officer within the ambit and scope of section 80 of the CPC. There is no reflection in the judgment and decree of both the courts below on what basis the plaintiffs/respondents are entitled for inheritance of the suit property. It is further submitted that the defendant No. 5 is the Police Officer and he is a Public Officer within the ambit and scope of section 80 of the CPC. In such a situation the plaintiffs/respondents ought to have issued notice under section 80 of the CPC or ought to have prayed for waiver of the said notice, but even then, the courts below failed to take note of the said fact and decreed the suit in favour of the plaintiffs/respondents. Mr. Roy submits that non compliance of the provisions under section 80 CPC itself mandate that the suit in such a situation cannot be proceeded and a duty is cast upon the said court below to return the plaint till compliance of the provisions under section 80 CPC. In support of his submission Mr. Roy relies (i) Satyadhyan Ghosal And Others v. Sm. Deorajin Debi And Another reported in AIR 1960 SC 1960 (ii) State of Andhra Pradesh v. Gundu Gola Venkata Suryanarayana Garu reported in AIR 1965 SC 11 . Citing the ratio laid down in the said decisions, Mr. Roy submits that the continuation of the suit by the trial court on the face of specific pleadings in the written statement taken up by the defendants/appellants is itself bad in law. 9. Mr. Roy submits that the defendants/appellants No. 1 to 4 in their written statement specifically denied their possession over the suit land and thereafter the learned trial court directed the plaintiffs/respondents to implead the present respondent No. 5 as the defendant No. 6 in the said suit. On two occasions the plaintiffs/respondents defaulted in impleading the said defendant No. 6 and the court suo moto thereafter, impleaded the defendant No. 6 and allowed them to file the written statement. On the other hand, in order to nullify the defence with regard to non maintainability of the suit for non compliance of the provisions under section 80 CPC, the plaintiffs/respondents filed petition No. 1003/2005 with a prayer to strike out the name of the defendant No. 5. The defendant/appellant Nos. On the other hand, in order to nullify the defence with regard to non maintainability of the suit for non compliance of the provisions under section 80 CPC, the plaintiffs/respondents filed petition No. 1003/2005 with a prayer to strike out the name of the defendant No. 5. The defendant/appellant Nos. 1 to 4 preferred an application under Order 7, Rule 11(d), which was registered as Petition No. 3004/2005 with a prayer to reject the plaint owing to non-compliance of the provisions of section 80 CPC. The learned trial court vide order dated 01.10.2005 dismissed the petition under Order 7, Rule 11(d) and by the same order allowed the petition of the plaintiffs/respondents permitting striking out of the name of defendant No. 5. However, the plaintiffs/respondents did not claim any relief specifically against the defendant/respondent No. 5 who was impleaded as defendant No. 6 by the court, by way of amending the plaint and introducing the relief against the defendant/appellant No. 5(defendant No. 6 in Title Suit). The learned court below without considering the said submission raised in the first appeal through the cross objection, allowed the appeal preferred by the plaintiffs/respondents by granting relief against the respondent/defendant No. 5. 10. Mr. Roy taking this court through the oral evidence of the plaintiff/respondent's side submits that the witnesses of the plaintiff side specifically mentioned that Sindhu Bhusan Deb and the predecessor in interest of the plaintiffs/respondents were step brothers and in such a situation the question of cognate/agnate does not come into picture at all. It was further submitted that as required under Order 31, Rule 2 of the CPC, the members of the trust i.e. the trustees were not made parties to the suit and on that count also the suit is not maintainable. Finally, Mr. Roy submits that though such objections were raised before the first Appellate Court, but in clear violation to the provisions under Order 41, Rule 31 of the CPC, the learned First Appellate Court never even examined the major issues, rather after recording the facts of both the parties simply allowed the appeal causing prejudice to the present appellant/defendants. Accordingly, Mr. Roy submits that though two substantial questions of law are formulated it is sufficient to decide the question No. 1 and remand the matter to decide the appeal afresh. 11. Mr. Accordingly, Mr. Roy submits that though two substantial questions of law are formulated it is sufficient to decide the question No. 1 and remand the matter to decide the appeal afresh. 11. Mr. S Ali, learned counsel appearing on behalf of the respondents submits that the suit of the plaintiffs/respondents is basically a suit against the defendant/appellant Nos.1 to 4, against whom the declaration is sought for by the plaintiffs/respondents. No principal relief was claimed against the defendant No. 6 and it is the court in exercising its jurisdiction under Order 1 Sub Rule 2 CPC impleaded the said defendant/appellant No. 5(defendant No. 6 in Title Suit). By the said provision, it is apparent that the court may at any stage of the proceeding and that too without any application from either of the parties to the suit has the power and jurisdiction to add or strike out any parties to the suit which the court deems fit for passing necessary and appropriate orders to have its effectiveness in proper adjudication of the dispute between the parties to the suit. In the present suit in hand, the Court while invoking the said jurisdiction has done no wrong at all and on the basis of the said impleadment of the defendant No. 6, the learned court below has rightly passed the judgment and in such a situation the submission made by the learned counsel for the appellant has no force at all. 12. It is further submitted by Mr. Ali that the reliefs prayed for by the plaintiffs/respondents are severable and not a joint one. It can be segregated and attributed to the defendants impleaded in the suit. In such a situation, the suit as a whole cannot be held to be non maintainable owing to non compliance of the provisions under section 80 CPC. Further, it is submitted that right to take the plea of non maintainability of the suit lies on the person for whom and/or for whose benefit section 80 CPC has been stipulated. Apparently in the present suit in hand, no such plea has been taken by the defendant No. 5 i.e. the Police Officer, rather it is the plea taken by the parties who are not at all affected owing to non compliance of the provisions of the CPC. In order to buttress his submission, Mr. Apparently in the present suit in hand, no such plea has been taken by the defendant No. 5 i.e. the Police Officer, rather it is the plea taken by the parties who are not at all affected owing to non compliance of the provisions of the CPC. In order to buttress his submission, Mr. Ali relies (i) Boyini Kanganna v. Pedini Ram Lingam Subudhi reported in AIR 1948 Patna 117 (ii) Kanakku Karthiyan Pillai Narayani Pillai & Ors v. Neelcanta Pillai Raman Pillan & Another reported in AIR 1969 Kerala 280 (iii) Ishtiyaq Hussain Abbas Hussain v. Zafrul Islam Afzal Hussain & Ors. reported in 1969 Allahabad 161. Citing the ratio laid down in the said decisions, Mr. Ali submits that the suit is maintainable and under no circumstances it is hit under the provisions of section 80 CPC. 13. Referring to Section 3(a) and 3(c) of the Hindu Succession Act, 1966, Mr. Ali submits that Baikuntho Nath Deb and Bela Rani Deb were the son and daughter respectively from the common ancestor. Akshya Kr. Deb is the son of Bela Rani Deb, who is the sister of Baikuntho Nath Deb. The plaintiffs/respondents are the sons and daughters of said Akshya Kumar Deb. On the other hand, Baikuntha Nath Deb is the brother of Krishnadhan Deb, Binod Behari Deb and Sindhu Bhusan Deb. On the other hand Krishna, Binod and Sindhu Bhusan Deb were the sons of Baikuntha Nath Deb. The said Sindhu Bhusan Deb on the death of his unmarried brothers, inherited the suit property from one of his brothers. Accordingly, the plaintiffs/respondents are cognates inasmuch as, the said Sindhu Bhusan Deb and the present plaintiffs/respondents are related by blood. In the present case in hand, the plaintiffs/respondents are related to Lt. Sindhu Bhusan Deb through their grandmother Bela Rani Deb. Mr. Ali submits that in order to disprove this familial relation, no rebuttal evidence is on record and in such a situation the findings of the court below, so far the manner of inheritance of the suit property by the plaintiffs/respondents are concerned, it is clear from the findings of the courts below. 14. Mr. Ali further submits that the trust deed, exhibit-16, was executed on 16.10.2000 and Sindhu Bhusan Deb died on 05.10.2000. 14. Mr. Ali further submits that the trust deed, exhibit-16, was executed on 16.10.2000 and Sindhu Bhusan Deb died on 05.10.2000. The said deed was executed by persons who are total strangers to the suit land (trust property) and the said trust so formed, cannot claim any benefit from the suit property. Relying Section 7 of the Indian Trust Act, 1882, Mr. Ali submits that a trust may be created by a person competent to contract. The competency to contract with respect to the suit property lies on none other than an owner, who has the right to enter into an agreement with respect to the suit property and no stranger can claim that right and form a trust by including the said property in the Trust Deed. As the executants of the trust deed does not qualify to the qualifications prescribed under Section 7 of the Indian Trust Act, 1882 it is quite apparent that the trust itself is a void one within the ambit and scope of the Indian Trust Act, 1882. 15. Coming to Order 41, Rule 31 of the CPC, Mr. Ali submits that instead of remanding to the First Appellate Court for deciding the appeal and the cross objection afresh, the second appellate court has wide jurisdiction under section 103 of the CPC, as the required materials in order to decide this second appeal are very much on record and the evidence, which are on record, are sufficient enough to determine the issues between the parties. With the said submission, Mr. Ali submits that this second appeal is liable to be dismissed. 16. Considered the submissions of both the learned counsels, perused the judgment of the First Appellate Court. It is apparent that out of the total seven numbers of pages in the judgment passed by the appellate court, five pages consists of the contents of the plaint and the written statement of the parties and the rest are the submissions of the learned counsels who placed their argument before the First Appellate Court. The point for determination before the First Appellate Court is not recorded which goes to show that the First Appellate Court failed to digest the submissions of the learned counsels before it and record the point for determination for the said appeal. Not even a single issue has been discussed by appreciating the evidence on record. The point for determination before the First Appellate Court is not recorded which goes to show that the First Appellate Court failed to digest the submissions of the learned counsels before it and record the point for determination for the said appeal. Not even a single issue has been discussed by appreciating the evidence on record. The learned trial court discussed all the issues framed, but the First Appellate Court failed to discuss any of the issues and scrutinize the finding appreciating the evidence on record. In Santosh Hazari v. Purushottam Tiwari(Deceased) By LRS. reported in (2001) 3 SCC 179 , the Hon'ble Apex Court held that the judgment of the appellate court must reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for re-hearing both on questions of fact and law. Keeping the said ratio in view, if the First Appellate Court's judgment is considered, it is apparent that the said judgment failed to meet the standard so prescribed by the Apex Court. From the submissions of both the learned counsels, it is very much clear that the suit involves both questions of law and facts. The First Appellate Court as the final court of facts never entered into or made an endeavor to re-examine the findings against the issues of the learned trial court and such slackness on the part of the First Appellate Court is bound to cause irreparable losses to the litigants. The caution by the Hon'ble Supreme Court as to the manner in which the First Appellate Court should decide an appeal, is definitely in order to protect the interest of the litigants. 17. The manner of disposal of a first appeal under section 96 of the CPC, as prescribed by the Hon'ble Apex Court has a direct impact in the justice delivery system of the country. The manner of disposal has its solemnity but not a mere routine procedure, rather it needs mandatory compliance by a first appellate court. 18. The submission of Mr. The manner of disposal has its solemnity but not a mere routine procedure, rather it needs mandatory compliance by a first appellate court. 18. The submission of Mr. Ali with regard to the powers under section 103 of the CPC, the jurisdiction of the second appellate court cannot be invoked in the present appeal in hand. Because of the fact that the First Appellate Court failed to examine any of the issues so decided by the trial court. In such a situation sustainable facts has not come out in order to correct such sustainable facts by invoking section 103 of the CPC. A second appeal as per section 100 CPC requires involvement of a substantial question of law. But to be a substantial question of law, it must have its footing in the pleadings of the parties to the suit and from the sustainable facts, the substantial questions of law is to be formulated keeping in view the interest of the parties. Here the facts forming the pleadings of the parties have not yet attained its finality owing to non compliance of the manner in which the first appeal is to be decided and in such case this Court, as the second appellate court has no jurisdiction to enter into any evidence and decide any issues correctly within the parameters of section 103 of CPC. Accordingly the substantial question of law No. 1 is decided in favour of the appellants. 19. The judgment and decree passed by the First Appellate Court in Title Appeal No. 54/2007 is accordingly set aside and the appeal is remanded back to the First Appellate Court for deciding the same afresh and the parties to this appeal shall appear before the First Appellate Court on 22.06.2017. 20. The Registry is to send the LCR immediately and on the receipt of the said LCR, the First Appellate Court will dispose of the same within a period of three months from the receipt of the LCR considering the grounds taken by the parties to the appeal including the cross objection of the defendants/appellants herein. 21. Accordingly, this appeal is disposed of.