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2018 DIGILAW 1010 (GAU)

Khukan Debnath v. Gopal Biswas

2018-07-10

KALYAN RAI SURANA

body2018
JUDGMENT AND ORDER : 1. Heard Mr. A.C. Sarma, learned senior counsel assisted by Mr. G. Bharadwaj, learned counsel appearing for the appellant as well as Mr. A.K. Sahewalla, learned counsel appearing for the respondents No. 1, 2 (a), 2(b), 2(c), 2(e), 2(f). 2. By this appeal under Section 100 CPC, the appellant has challenged the judgment and decree dated 06.05.2017 passed by the learned Civil Judge, Nagaon in Title Appeal No. 24/2015, thereby affirming the judgment and decree dated 03.07.2015 passed by the learned Munsiff No. 2, Nagaon in Title Suit No. 54/2009, thereby dismissing the suit filed by the appellant/plaintiff. 3. The appellant’s case in brief is that the appellant had purchased 4 kathas 14 lechas (4K-14L) land covered by Dag No. 377 of P.P. No. 52 of Rupahi Town Kissam under Khatual Mouza in the district of Nagaon (Assam) which was purchased vide Registered Sale-Deed No. 4111/05 dated 22.12.2005 from (i) Sri Banku Das, (ii) Sri Sanku Das, (iii) Sri Raju Das, (iv) Smt. Sumi Das and (v) Smt. Champa Das, all legal heirs of Late Priyalal Das. The said sale-deed was registered on 23.12.2005. It is projected that the appellant had being in occupation of purchased land lying before the execution of sale-deed and there are several residential houses constructed by the appellant. It is further projected that in the southeast corner of the said land, the father of the respondent No. 1 had occupied 14 lechas of land and houses with the permission of the appellant and he was allowed to reside therein. In the year 2006 without any rent with a condition to vacate the house as and when demanded. However, in order to defraud and deprived the appellant from the 14 lechas of land, the father of the respondent No. 1, by a conspiracy created a fraudulent Sale-Deed No. 2399/07 showing that the respondent No. 1 had purchased 14 lechas of said suit land from one Md. Karim Bapari. The said Sale-Deed was executed on 26.10.2007 and registered on 02.11.2007. The stands of the appellant was that the father of the respondent No. 1, who is shown as pattadar No. 3 in respect of the suit patta had died thirty years back and therefore, the Sale-Deed No. 2399/07 was fraudulent and collusive. Karim Bapari. The said Sale-Deed was executed on 26.10.2007 and registered on 02.11.2007. The stands of the appellant was that the father of the respondent No. 1, who is shown as pattadar No. 3 in respect of the suit patta had died thirty years back and therefore, the Sale-Deed No. 2399/07 was fraudulent and collusive. It was stated that in the month of August, 2008, the appellant had requested the respondent No. 1 to vacate the suit land but he had refused to do so, claiming to have purchased the suit land from Karim Bepari in the year 2007. Therefore, the appellant had filed Title Suit No. 147/2008 before the learned trial Court. The following prayers were made in the plaint:- (a) A Decree be passed for Declaration of right, title & title, & interest of the plaintiff in respect of the Schedule ”A” land and house. (b) A decree be passed for delivery khas possession by evicting the defendants and their family members from the suit land and put the plaintiff into the possession of Schedule “A” land and house. (c) A Decree for permanent injunction against the Principal defendants, their servants, Attorney not to disturb the peaceful possession of the plaintiff over the Schedule “A” land, and after put the plaintiff into possession by the decree for declaration of right, title and interest over the schedule “A” land. (d) All costs of the suit be decreed in favour of the Plaintiff and against the Principal defendants. (e) To what relief/reliefs parties are entitled under the law, equity and justice and such relief/reliefs also may be granted to the plaintiff. 4. The respondent No. 1 denied the allegations made in the plaint by filing his written statement and has stated that the he was the original owner of the suit land which was under his possession and the land was mutated in his name. Further, projected that the neither the house owner of the property or his legal representatives have challenged the Sale-Deed. It was further stated that 14 lechas of land claimed by the appellant in the suit was without any right, title or interest thereon. Therefore, the respondent No. 1 prayed for dismissal of the suit. 5. On the basis of pleadings, the learned trial Court had framed the following four issues for trial:- 1. Whether the suit is maintainable. 2. It was further stated that 14 lechas of land claimed by the appellant in the suit was without any right, title or interest thereon. Therefore, the respondent No. 1 prayed for dismissal of the suit. 5. On the basis of pleadings, the learned trial Court had framed the following four issues for trial:- 1. Whether the suit is maintainable. 2. Whether the plaintiff has right, title and interest over the “A” schedule suit land and house? 3. Whether the defendants occupies the “A” schedule suit property as a permissive occupier and refuse to vacate the suit property in spite of demands made by the plaintiff to vacate the same? 4. To what relief, if any, the parties are entitled? 6. The learned trial Court took up issue No. 1 i.e. whether the suit is maintainable first. In this regard, the learned trial Court held that the respondent had refused to vacate the suit premises on 18.08.2018 on the basis of certified copy of Deed No. 2399/07, as such, as on 27.11.2008, when previously instituted T.S. 147/2008 was filed, it was open to the appellant to seek to both reliefs in one suit i.e. for cancelling the said sale-deed as well as for recovery of the possession of suit property. Hence, it was held that the present suit was barred by principle of Order II Rule 2 CPC, as such, the issue was decided in the negative and in light of the said finding, the issues No. 2, 3 and 4 were also decided in the negative and the suit was dismissed. 7. The said judgment was taken up in the appellate and the learned first appellate Court upon appreciating the pleadings as well as the judgments passed by the learned trial Court held that although the two cause of action was different, yet the appellant had not taken any leave of the Court to file separate suit in respect of the reliefs available to him. It was further held that in the present suit, it was alleged by the appellant that the respondent No. 1 had refused to vacate the suit house on 18.08.2008 and such leave could have been sought for in the previous instituted T.S. 147/08, which was for cancellation of the sale-deed and for declaration of right, title and interest of the appellant could have prayed for khas possession of the previously instituted suit and by holding that the cause of action for both the suit was same. The decision of the learned trial Court was affirmed by holding the suit will not be maintainable. In respect of issues No. 2, 3 and 4, the learned first appellate Court had arrived at finding that the boundaries of the suit land in both the sale-deeds i.e. Sale-deed No. 2399/07 (Ext. 1) and Sale-Deed No. 4111/08 (Ext. 2) were different and, as such, it was held that the appellant had not proved the right, title and interest in respect of the said land and hence, the point of determination – whether the impugned judgment and decree appealed against is substantial in law?, was decided against the appellant and the appeal was dismissed. 8. The learned senior counsel for the appellant has made his submissions by pressing the following substantial question of law:- 1. Whether the learned Courts below erred in law in dismissing the suit of the plaintiffs? 2. Whether the learned Courts below erred in interpreting Order II Rule 2 of the Code of Civil Procedure by holding that the suit is not maintainable? 3. Whether the learned Courts below erred in law in holding that the Exhibit 4 (Death Certificate) is inadmissible in Evidence? 4. Whether the learned lower appellate court misinterpreted Section 67 of Evidence Act relating to proof of Exhibit 2 (Sale-Deed)? 5. Whether the learned lower appellate court erred in law in holding that the defendants are not permissive occupier of the suit land? 6. Whether in any view of the matter the judgment and decree passed by the courts below are perverse and the same are liable to be set aside and quashed? 9. Of these said questions, the relevant question of law projected by the learned senior counsel for the appellant is the question No. 2 relating to the provisions of Order II Rule 2 CPC. 10. 9. Of these said questions, the relevant question of law projected by the learned senior counsel for the appellant is the question No. 2 relating to the provisions of Order II Rule 2 CPC. 10. Having heard the learned senior counsel for the appellant as well as the learned counsel for the appearing respondents, it is seen that the in the first suit being Title Suit No. 147/08, the prayer was made to cancel the Sale-Deed No. 2399/07 and for cancelling its registration. However, no prayer was made for eviction of the respondent No. 1 from the suit land and in the second suit being T.S. No. 54/09, the appellant had prayed for declaration of right, title and interest in respect of the suit land and house and also claimed delivery of khas possession by evicting the respondents and their family members. In this regard, it would be relevant to quote the provisions of Order II Rule 2 CPC. 2. Suit to include the whole claim: (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim - Where a plaintiff omits to sue in respect of, or internationally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. 11. It appears that the provisions of Order II Rule 2 CPC relates to reliefs which ought to have been claimed on the same cause of action but not claimed. In both the suits, the cause of action is said to have, inter-alia, arisen on 18.08.2008, being the day on which respondent No. 1 refused to vacate the suit land as well as on 04.09.2008 on the day when the certified copy of the Registered Sale-Deed No. 2399/07 was received by the appellant. In both the suits, the cause of action is said to have, inter-alia, arisen on 18.08.2008, being the day on which respondent No. 1 refused to vacate the suit land as well as on 04.09.2008 on the day when the certified copy of the Registered Sale-Deed No. 2399/07 was received by the appellant. Therefore, in the opinion of this Court, there is no infirmity in findings recorded by both the learned Courts below that the principle of Order II Rule 2 CPC was attracted in the present case, which is found to be apparently present from the reading of the provisions of Order II Rule 2(3) CPC. It appears to this Court that the provisions of Order II Rule 2 CPC is for ensuring that all reliefs in respect of same cause of action must be claimed in one suit. Moreover, in the present case, i.e. T.S. No. 147/2008 and T.S. No. 54/2009, both the suits have the genesis to the same transaction i.e., execution of Sale-Deed No. 2399/07. While the first suit is for cancellation of the said Sale-Deed, the prayer in the second suit is for decree of declaration of right, title and interest in the plaintiff which could amount to adjudication of the rights flowing to the respondent No. 1 from the said Sale-Deed. 12. Under the circumstances, as both the Court below had arrived at concurrent finding that the present suit i.e. T.S. No. 54/09 is barred by provisions of Order II Rule 2 CPC, this Court is of the opinion that no substantial question of law arises for admission of the present appeal and therefore, this appeal fails and the same stands dismissed. 13. There shall be no order as to cost of this appeal.