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2018 DIGILAW 1192 (GAU)

Sachindra Das v. Anirudra Das

2018-08-13

SUMAN SHYAM

body2018
JUDGMENT : SUMAN SHYAM, J. 1. Heard Mr. B.K. Purkayastha, learned counsel for the appellant. None appears for the respondents, though served. 2. This second appeal is directed against the concurrent judgment and decree dated 28/03/2007 passed by the Court of learned Civil Judge No.1, Cachar, Silchar in Title Appeal No. 44/2005 affirming the judgment and decree dated 22/07/2005 passed by the Court of learned Civil Judge (Junior Division) No.2, Cachar, Silchar in Title Suit No. 148/2001, thereby decreeing the suit filed by the respondent as plaintiff. The appeal was admitted to be heard on the following substantial question of law :- "(1) Whether a decree for recovery of khas possession can be passed when the plaintiff did not pray for a decree for recovery of khas possession but has only prayed for a decree confirming his possession over the suit land?" 3. The brief facts of the case are these. The respondent as plaintiff had instituted Title Suit no. 148/2001 in the Court of Civil Judge (Junior Division) No. 2, Silchar, inter-alia, praying for a decree for declaration of title and for confirmation of possession over land measuring 2 Bighas covered by Dag No. 197 of 2nd R.S. Patta No. 75/32 of Mouza Rosekandi, Pargana Chatla, described in the Schedule II of the plaint, and for other consequential reliefs. The plaintiff claims to have purchased the suit land from the legal heirs of Rojoram Namasudra by means of a registered deed No.; 998 dated 02/07/1996, on payment of valuable consideration, where-after, he was put in possession of the land. 4. The appellant herein, who was impleaded as the defendant no. 3, had contested the suit by filing written statement but the suit proceeded ex-parte against the remaining defendants. The defendant no. 3 had taken various plea in the written statement questioning the maintainability of the suit besides claiming right over the suit land on the basis of purchase of Joth (tenancy) right by means of Ext-A. The defendant no. 3 had also denied plaintiff's possession over the suit land and on the contrary, had claimed to be in possession of the entire land. 5. Based on the pleadings of the parties, the following issues were framed :- "(i) Is there any cause of action for this suit? (2) Is the suit barred by limitation? (3) Is the suit properly value and stamped? 5. Based on the pleadings of the parties, the following issues were framed :- "(i) Is there any cause of action for this suit? (2) Is the suit barred by limitation? (3) Is the suit properly value and stamped? (4) Whether the plaintiff had any right, title interest and possession over the land described in Schedule -II of the plaint, which has been alleged to be an integral part and pared of the land, described in Schedule-I of the plaint? (5) Whether the defendant NO. 3 has any right over the suit Schedule-II land and whether he has been possessing the said land? (6) Whether the plaintiff is entitled to a decree or any other relief, as prayed for?" 6. During trial, both parties had led evidence in support of their respective cases. Upon appreciation of the evidence available on record, the learned trial Court had decided all the issues in favour of the plaintiff. However, while deciding the issue no. 6, the learned trial Court had also held that the plaintiff would be entitled to a decree of khas possession of the Schedule -II land which is the suit land, although no such decree was prayed for by the plaintiff. 7. Aggrieved by the judgment and decree dated 22/07/2005, the appellant had preferred Title Appeal No. 44/2005 which was dismissed by the learned Civil Judge No. 1, Cachar, Silchar by the judgment and decree dated 28/09/2007. Hence, this appeal. 8. Confining his arguments only to the substantial question of law framed in this appeal, Mr. Purkayastha contends that his client is not assailing the findings recorded by the Court below as regards the other issues framed in the suit. However, the grievance of the appellant is that although there was no relief prayed for by the respondent/plaintiff seeking a decree of recovery of khas possession of the suit land, the learned trial Court had unilaterally granted such a decree, thereby affected the right and interest of the appellant, who is in possession of the disputed land. Mr. Purkayastha submits that in the Title Appeal No. 44/2005, although a specific ground was taken by the appellant assailing the decree for recovery of khas possession, the learned lower appellate Court failed to consider the said ground while dismissing the appeal. 9. By referring to a decision of the Supreme Court rendered in the case of Om Prakash and others Vs. 9. By referring to a decision of the Supreme Court rendered in the case of Om Prakash and others Vs. Ram Kumar and others, (1991) 1 SCC 441 , Mr. Purkayastha submits that a relief not claimed in the suit cannot be granted by the Civil Court, more so, if it affects the rights of the interested parties. 10. Since the challenge made to the impugned decree is confined only to the question of validity of the decree for recovery of khas possession, a discussion involving excruciating details of the facts and circumstances of the case is not deemed necessary for a just decision of the controversy involved in this proceeding. Suffice it to say that in the suit filed by the plaintiff, there was no prayer for issuance of a decree for recovery of khas possession in respect of the suit land. On the contrary, the plaintiff has prayed for a decree of declaration of right, title and interest over the schedule II land along with the consequential decree of "Confirmation of possession" over the suit land. It is in such factual backdrop that the question of law urged in this appeal assumes great significance. 11. From a perusal of the judgment and order passed by the learned Trial Court, I find that having decided all the issues in favour of the plaintiff/respondent, the learned Trial Court had made the following observation in respect of issue No. 6. "Issue no. 6 In terms of the decisions in the above issues 4 and 5, the plaintiff is entitled to the decrees as prayed for in their plaint in addition to the decree of khas possession over schedule II of the suit land." 12. In the case of Om Prakash and others, the Supreme Court, while dealing with a question of similar nature, had the occasion to interprete Order 7 Rule 7 CPC and held that a party cannot be granted a relief which is not claimed if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute. 13. Order 7 Rule 7 of the CPC confers power on the Civil Court to grant relief as it may think just even if such a relief has not been specifically prayed for. 13. Order 7 Rule 7 of the CPC confers power on the Civil Court to grant relief as it may think just even if such a relief has not been specifically prayed for. Order 7 Rule 7 CPC reads as follows :- "7. Reliefs to be specifically stated : Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement." 14. What is to be noted herein that for invoking powers under Order 7, Rule 7 of the CPC, it would be necessary for the Court to take note of the facts and circumstances of the case and grant such reliefs which it may think to be just even if no such relief had been specifically asked for. However, while granting relief by exercising power under Order 7 Rule 7, it will be obligatory for the Court to record reasons for exercising such discretionary power. In the present case, as noted above, the learned trial Court has not recorded any reason as to why the relief of recovery of khas possession was granted to the plaintiff without the same being specifically prayed for in the suit. What would be of utmost significance in this case is that the plaintiff has prayed for a decree of confirmation of possession and, therefore, a decree for recovery of khas possession of the suit land would clearly contradict the basic case of the plaintiff as projected through his pleadings. By invoking the discretionary jurisdiction under Order 7, Rule 7, the learned Trial Court ought not to have granted a relief, which is contrary to the pleaded case, more so when such a relief would prejudicially affect the interest of the opposite party. It is not the case of the plaintiff that during the pendency of the suit, he has been dispossessed from the suit land. 15. It is not the case of the plaintiff that during the pendency of the suit, he has been dispossessed from the suit land. 15. For the reasons stated herein above, I am of the view that the impugned judgment and decree, to the extent the same grants the decree for recovery of khas possession of the suit land, is not sustainable in the eye of law and is hereby set aside. The remaining part of the decree pertaining to right, title and interest of the plaintiff over the suit land, however, remain undisturbed. The impugned decree stands modified to the extent indicated above. Decree be prepared accordingly. 16. With the above observations, the second appeal stands disposed of. Send back the LCR. Parties to bear their own cost.