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2019 DIGILAW 260 (GAU)

Basanti Devi v. Fulki Choudhury

2019-02-26

PRASANTA KUMAR DEKA

body2019
ORDER : PRASANTA KUMAR DEKA, J. 1. Heard Ms. R. Choudhury, the learned counsel for the petitioner. Also heard Mr. S.K. Ghosh, the learned counsel for the respondents. 2. The present petitioner is the plaintiff in Title Suit No. 116/1985 in the Court of learned Munsiff at Dhubri. The suit was filed against the present respondent. It is pleaded in the plaint that land measuring 1 Katha covered by Khatian No. 352 of Gauripur Town, 4th part under P.S. Dhubri stands in the name of the plaintiff/petitioner which is the suit land. The defendant/respondent requested the plaintiff/petitioner to allow him to stay in the suit land temporarily by constructing houses thereon and the plaintiff/petitioner gave the permission to the defendant/respondent to possess the same temporarily with condition to vacate the land when required by the plaintiff/petitioner. It was further allowed that the defendant/respondent would stay by constructing houses thereon. After about 5 years of such possession by the defendant/respondent, the plaintiff/petitioner asked him to vacate the suit land as per terms of the agreement. The defendant/respondent though agreed to vacate the land but the possession continued for another 10/11 years. On 08.11.1984, the plaintiff/petitioner asked for vacating the suit land and there was a dispute. On the basis of the said cause of action, the plaintiff/petitioner filed the suit for the following reliefs:- "(a) to pass decree for delivery of khass possession by declaring right, title of the land mentioned in schedule 'A' by evicting the defendant therefrom. (b) to pass a decree for delivery of khass possession of the below schedule land by demolishing the houses and evicting the defendant therefrom. (c) to pass a decree for the cost of the suit and any other relief to which the plaintiff is entitled for to." 3. The predecessor-in-interest of the present petitioners was the plaintiff in Title Suit No. 116/1985 and the predecessor-in-interest of the defendants/respondents was also the defendant. The expression "plaintiff/petitioner" and "defendant/respondent" hereinbelow shall indicate the predecessors of both the parties to this petition only. 4. The defendant/respondent filed his written statement and after denial of the pleadings in the plaint took specific stand that there was no question of vacating the suit land by the defendant/respondent as he was possessing the suit land on his own right openly and adversely for more than 45 years since his birth. 4. The defendant/respondent filed his written statement and after denial of the pleadings in the plaint took specific stand that there was no question of vacating the suit land by the defendant/respondent as he was possessing the suit land on his own right openly and adversely for more than 45 years since his birth. It is also stated in the written statement that the land of the plaintiff/petitioner is a different one and not the suit land is concerned. The defendant/respondent had all along been in possession which the plaintiff/petitioner never possessed at any time. On the basis of the said pleadings, the learned trial court framed the following issues:- "(1) Whether the suit is maintainable? (2) Is there any cause of action? (3) Whether the suit is barred by limitation? (4) Whether the suit is barred by adverse possession? (5) Whether the plaintiff has right, title and interest over the suit land? (6) Whether the plaintiff is entitled to got a decree as prayed for? (7) To what relief, if any, the parties are entitled?" 5. The learned trial court dismissed the suit and the same was affirmed by the first appellate court. Being aggrieved the plaintiff/petitioner preferred second appeal, RSA No. 120/1999 against the judgment and decree passed in Title Appeal No. 38/1987 by the learned Civil Judge, Senior Division, Dhubri. The second appeal was admitted on the following substantial questions of law:- "(1) Whether title can be acquired by adverse possession by the defendant, when he claims title by inheritance on land? (2) Whether in the absence of a counter claim relief of declaration of title can be granted to the defendant?" 6. Vide the judgment dated 16.08.2004 the second appeal was allowed. While allowing the second appeal it was held as follows:- "9. Reading of the evidence of PW-1 and DW-1 presents a totally different story. There is no whisper in the evidence that the respondent defendant had been occupying the suit land without acknowledging the superior title of the appellants plaintiffs. One of the basic ingredients of adverse possession, in my considered opinion is therefore, missing in the instant case. Ext-Cha and Ja, the revenue paying receipts for the suit land on which the reliance has been placed by the respondent defendant ex facie indicates that the revenue was paid for the year 1979-80, 1981-82 by the respondent defendant on behalf of the appellants plaintiffs. Ext-Cha and Ja, the revenue paying receipts for the suit land on which the reliance has been placed by the respondent defendant ex facie indicates that the revenue was paid for the year 1979-80, 1981-82 by the respondent defendant on behalf of the appellants plaintiffs. This is sufficient to establish that till that point of time, the respondent defendant had acknowledged the appellants plaintiff's title in the suit land. The suit having been filed in the year 1985, it is beyond one's comprehension as to how the same could be dismissed on the ground of being barred by limitation. In my view, the learned courts below have misdirected themselves on the fundamental principles of law relating the adverse possession. 10. In the above view of the matter, I am constrained to hold that the impugned judgment and decree is vitiated by a manifest illegality rendering it unsustainable in law. The appeal has merit and it, therefore, allowed. The impugned judgment and decree is set aside. No costs. Let the decree be prepared in terms of the above." 7. In pursuance of the said judgment passed in the second appeal, a decree was drawn up by the Hon'ble second appellate court which is reproduced hereinbelow:- "In the Gauhati High Court (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) (Appellate Civil Jurisdiction) RSA 120/99 Appeal from Appellate decree No. 120/1999 Appeal preferred on the 31st day of July 1999 Against the Judgment and decree dated 10th February 1999 in Title Appeal No. 38/87 passed by the court of Civil Judge (Sr. Division), Dhubri in upholding the judgment and decree dated 14th of May 1987 passed by Munsiff No. 1, Dhubri in Title Suit No. 116/85. 1. Miss Basanti Devi 2. Sri Radheshyam Choudhury 3. Sri Phalak Dhari Choudhury Sons and daughter of late Hiralal Goria Resident of Gauripur Town, Ward No. 4, Dist-Dhubri, Assam ...Appellant/Plaintiff Vs. Sripat Goria Son of late Subhag Goria R/o. Ward No. 4, Gauripur town, Dist-Dhubri ...Respondent/Defendant Appeal valued for purpose of jurisdiction at Rupees 1000/- upon the hearing of the appeal in a single Bench. Before The Hon'ble Mr. Justice A. Roy One of the judge(s) of this court on the 16th day of August 2004 It is ordered and decreed that the appeal be and the same is allowed. Before The Hon'ble Mr. Justice A. Roy One of the judge(s) of this court on the 16th day of August 2004 It is ordered and decreed that the appeal be and the same is allowed. The impugned judgment and decree dated 10.02.99 passed by the Civil Judge (Sr. Division) Dhubri in Title Appeal No. 38/87 is set aside. There is no order as to costs. Dated this Sixteenth day of August in the year two thousand four. Sd/- Asstt. Registrar (Judl) 29.11.04 Gauhati High Court, Guwahati." 8. The decree holder/petitioner thereafter, filed a petition before the trial court in order to prepare an appropriate decree as per the relief made in the plaint of Title Suit No. 116/1985. The trial court accordingly prepared the decree declaring the title of the plaintiff and for evicting the defendant therefrom in order to give khas possession of the plaintiff over the decreetal land alongwith the relief of demolishing the houses of the defendant over the decreetal land and cost. After preparation of the decree the judgment debtor respondent filed an application under Section 47 of the Code of Civil Procedure (CPC) objecting to the drawal of the decree by the trial court. The said petition was dismissed vide order dated 06.06.2011 passed arising out of Misc. (J) Case No. 02/2011 in Title Execution No. 24/2005 in the court of learned Munsiff No. 1 at Dhubri. 9. Being aggrieved by the said dismissal order under Section 47, the judgment debtor/respondent filed a revision petition, CRP No. 225/2011 before this Court. The said revision petition was disposed of on 21.07.2017 granting the liberty to the present decree holder/petitioner to approach the Hon'ble Gauhati High Court under Section 152 of the CPC. The operative portion of the said order dated 21.07.2017 is reproduced herein-below:- "11. Considering the above and following the observation laid down by the Hon'ble Supreme Court in the case of Laxmi Ram Bhuyan (supra) this Civil Revision Petition is allowed by setting aside and quash the order dated 06.06.2011 passed by the learned Munsiff No. 1, Dhubri in Misc. The operative portion of the said order dated 21.07.2017 is reproduced herein-below:- "11. Considering the above and following the observation laid down by the Hon'ble Supreme Court in the case of Laxmi Ram Bhuyan (supra) this Civil Revision Petition is allowed by setting aside and quash the order dated 06.06.2011 passed by the learned Munsiff No. 1, Dhubri in Misc. (J) Case No. 2/2011 arising out of the Title Execution Case No. 24 of 2005 in rejecting the petition under Section 47 of the C.P.C. preferred by the petitioners in said Title Execution Case No. 24/2005 pending before the learned Munsiff No. 1, Dhubri, as well as the impugned decree dated 13.05.2005 prepared by the learned Civil Judge, Junior Division, Dhubri, granting liberty to the respondents/decree holders of RSA No. 120 of 1999 to move this Court under Section 152 C.P.C. seeking appropriate rectification in the judgment dated 16.08.2004 passed in said RSA No. 120 of 1999 so as to clearly specify the extent and manner of relief to which, in the opinion of the High Court, the successful party entitled consistently with the intention expressed in the said judgment dated 16.8.2004. 12. With the aforesaid observation and direction, this civil revision petition stands allowed." 10. The present decree holders/petitioners filed the present petition under Section 152 read with Section 151 of the CPC for correction of the decree drawn on 16.08.2004. 11. Ms. Choudhury relying the case law in Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan & Ors., reported in (2003) 1 SCC 197 wherein the Hon'ble Apex Court in a similar situation opined that the successful party has no other option but to have recourse to Section 152 CPC which provides for clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission being corrected at any time by the court either on its own motion or on the application of any of the parties. Accordingly, it is the contention of the learned counsel for the petitioner that once the second appeal was allowed and a direction was given to draw up the decree as per the judgment of the Hon'ble second appellate court, the same amounts to the entitlement of the reliefs sought for by the plaintiff/petitioner in the suit and the same shall form the decree to be executed by the Executing Court. Accordingly, a direction is required to draw up the decree by this Hon'ble High Court as per the reliefs sought for in the plaint 12. The said submission of Ms. Choudhury is vehemently opposed by Mr. Ghosh. In order to buttress his submission Mr. Ghosh relies the case of Dwarka Das Vs. State of Madhya Pradesh & Ann, reported in AIR 1999 SC 1031 and submits that Section 152 of the CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. Once the judgment and decree is passed the Court or the Tribunal becomes functus officio and thus not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated under Section 152 CPC are of correcting only accidental omission or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 of the CPC for which the proper remedy for the aggrieved party is to file appeal or review application. 13. Relying Hari Prasad Bhuyan Vs. Durga Prasad Bhuyan & Ors., reported in (2008) 13 SCC 241 , Mr. Ghosh further submits that the drawal of the decree is not only obligation on the trial court but also on the appellate court. In the event of the suit having been decreed by the trial court and if the appellate court interferes with the judgment of the trial court, the judgment of the appellate court should precisely and specifically set out the reliefs granted and the modifications, if any, made in the original decree explicitly and with particularity and precision. Order 41 Rule 31 CPC casts an obligation on the author of the appellate judgment to state the points for determination, the decision thereon, the reasons for the decision and when the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Order 41 Rule 31 CPC casts an obligation on the author of the appellate judgment to state the points for determination, the decision thereon, the reasons for the decision and when the decree appealed from is reversed or varied, the relief to which the appellant is entitled. But in the present case, while disposing of the second appeal, the Hon'ble second appellate court failed to mention the relief/reliefs after reversal of the findings of the courts below and as such, if at all the decree holders are aggrieved owing to non-granting of the appropriate relief, they ought to have filed appeal in higher court or filed review application before the Court concerned. At this stage, this is an application under Section 152 C.P.C. which cannot be allowed inasmuch as it is barred by limitation under Article 137 of the Limitation Act, 1963. Further Mr. Ghosh relies State of Punjab Vs. Darshan Singh reported in (2004) 1 SCC 328 and submits that an unintentional correction of mistakes by the court can only be corrected and while correcting under Section 152 of the CPC it must be decided as to whether if the said correction is not carried out it would cast prejudice to the party. Submitting and referring the said decisions, it is the contention of Mr. Ghosh that the reliefs sought for in this application cannot be granted by this Court inasmuch as the Hon'ble second appellate court did not discuss the various issues which were discussed by the courts below and arrived at the findings thereon. 14. Ms. Choudhury pressing the benefit of Section 14 of the Limitation Act, 1963 submits that the petitioners were pursuing the matter before the trial court until it was corrected by the revisional court directing the petitioner to move the Hon'ble second appellate court by filing the application under Section 152 C.P.C. and as such the question of any bar under Article 137 of the Limitation Act does not arise. 15. I have considered the submissions of the learned counsel. There is no dispute that the plaintiff in the suit sought for declaration of his right, title and interest and recovery of khas possession of the suit land on the ground that the plaintiff permitted the defendant to possess the suit land as a permissive occupier. 15. I have considered the submissions of the learned counsel. There is no dispute that the plaintiff in the suit sought for declaration of his right, title and interest and recovery of khas possession of the suit land on the ground that the plaintiff permitted the defendant to possess the suit land as a permissive occupier. There is also no dispute with regard to the defence plea that the defendant had been possessing the suit land in his own right openly and adversely for more than 45 years and as such the suit is barred by limitation. 16. The trial court framed the issues which are reproduced hereinabove. Keeping in view the case of the plaintiff and the defence taken by the defendant in the written statement let me look to the observations by the Hon'ble second appellate court while passing the judgment in the RSA No. 120/1999. The Hon'ble second appellate court took into consideration the reasoning for negating the claim for relief by the courts below of the plaintiff on the basis of permissive possession of the defendant on the ground that if the evidence adduced by the plaintiff was accepted, it would suggest that the defendant had come to the land when the plaintiff was 8 years old. Further it was observed that while the courts below came to the conclusion that the suit was barred by the adverse possession, it did not discuss any evidence to show that the defendant had in fact occupied the land for over 12 years continuously without acknowledging the plaintiff's title therein. It was finally held that from the evidence uninterrupted animus possession of the defendant was totally absent which missed the attention of the courts below. Finally the Hon'ble second appellate court held that after going through the evidence of PW-1 and DW-1 there was no whisper in the evidence that the defendant had been occupying the suit land without acknowledging the superior title of the plaintiff and one of the basic ingredients for adverse possession as per the opinion of the Hon'ble second appellate court was missing. Relying the Ext. "Cha" and "Jha" which are the Revenue Paying Receipts exhibited by the defendant for the year 1979-80 and 1981-82, the Hon'ble second appellate court held that the defendant paid the land revenue on behalf of the plaintiff. Relying the Ext. "Cha" and "Jha" which are the Revenue Paying Receipts exhibited by the defendant for the year 1979-80 and 1981-82, the Hon'ble second appellate court held that the defendant paid the land revenue on behalf of the plaintiff. This significant evidence was considered and the Hon'ble second appellate court held that it was sufficient to establish that the defendant had acknowledged the plaintiff's title in the suit land and as the suit was filed in the year 1985, it held that the suit could not be dismissed on the ground being barred by limitation. Accordingly, the Hon'ble second appellate court held that the impugned judgment and decree therein was vitiated with manifest illegality rendering unsustainable in law. It was further held that the appeal had merit and allowed with a direction to prepare the decree in terms of the findings of the Hon'ble second appellate court. 17. In my considered opinion, the Hon'ble second appellate court had examined the evidence on record, the pleadings of both the parties and finally came to the conclusion that the second appeal be allowed and the decree drawn up from the discussions made in the judgment. It is clear that the Hon'ble second appellate court while passing the judgment consciously directed a decree to be prepared on the basis of the findings. The said findings is directly related to the reliefs sought for, by the plaintiff inasmuch as the title of the plaintiff is also looked into by the Hon'ble second appellate court and the defence of adverse possession had also been looked into and came to a conscious finding thereby allowing the reliefs sought for, by the plaintiff. If the decree is allowed to be corrected as sought for in my opinion the same would not transgress the limit prescribed under Section 152 C.P.C. read with Section 151 C.P.C. as held by the Hon'ble Supreme Court in Dwarka Das Vs. State of Madhya Pradesh and another (supra). The Hon'ble second appellate court had drawn up a decree referred hereinabove but that decree was incorrect and as such it can very well corrected invoking the power under Section 152 C.P.C. as per the observation made by the Hon'ble Supreme Court in Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan & Ors. (supra). 18. The point of limitation raised by Mr. Ghosh cannot be accepted on the face of the submission of Ms. Hari Prasad Bhuyan & Ors. (supra). 18. The point of limitation raised by Mr. Ghosh cannot be accepted on the face of the submission of Ms. Choudhury in my considered view. 19. Accordingly, I have no hesitation to allow this petition thereby directing the Registry to correct the decree drawn by the Hon'ble second appellate court in RSA No. 120/1999 on the basis of the judgment passed on 16.08.2004 thereby decreeing the appeal and the reliefs sought for by the plaintiff in the plaint shall form part of the corrected decree. 20. Registry to take steps to that effect and after drawal of the decree the learned counsel shall accordingly verify and put their signatures affirming the correctness thereof. 21. This petition stands disposed of.