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2019 DIGILAW 744 (GAU)

Elothung Kithan v. Yankhosao Erui

2019-06-13

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. 1. This regular first appeal is directed against the judgment and decree dated 05.04.2016 passed by the learned District Judge, Wokha, Nagaland in T.S. No. 1/2013. 2. The plaintiff/appellant filed the suit (TS 1/2013) for declaration of title and other consequential reliefs. The case of the plaintiff was that the plaintiff and defendants belong to Kithan Clan. There was an earlier round of litigation between the plaintiff and defendants in respect of the present suit land, wherein, both the parties made rival claim of title over the suit land. The village court decided the suit in favour of the defendants. Against the decision of the village court, the plaintiff preferred an appeal before the Wokha Customary Court and the customary court upheld and confirmed the decision of the village court and thereby dismissed the appeal. Aggrieved by the decision of the customary court, the plaintiff preferred an appeal before the ADC (J), Wokha. The present defendants also filed an appeal before this court and this court while setting aside the impugned judgments passed by the village council as well as customary court, directed to file a fresh suit. Pursuant to the direction of this court, the present defendants filed TS. No. 3/1996 before the Court of ADC(J), Wokha. However, the said suit was withdrawn by the defendants without any leave to file fresh suit. After withdrawal of the Title Suit No. 3/1996 filed by the defendant in the year 2005, there was no further proceeding. 3. It was stated in the plaint that late Hakao Kithan, father of the present plaintiff sold a plot of land measuring 30 x 15 sq.ft. to proforma defendant No. 8, Yanajamo Khuvung, on 15.01.1991 for a consideration of Rs. 15,000/-. However, the defendants later on, claimed the said plot of land, which was sold by the father of the plaintiff, to be their own land and obtained Rs. 50,000/- from the proforma defendant No. 8 forcibly and resold the said land on 10.06.2013. By another Sale Deed dated 25.05.2013 executed by the Wokha Village 'B' Khel Echungmongrui Clan forcibly sold a plot of land measuring 30 X 35 sq. ft. to Sri Tsenjamo Tsopoe (proforma defendant No. 9). 50,000/- from the proforma defendant No. 8 forcibly and resold the said land on 10.06.2013. By another Sale Deed dated 25.05.2013 executed by the Wokha Village 'B' Khel Echungmongrui Clan forcibly sold a plot of land measuring 30 X 35 sq. ft. to Sri Tsenjamo Tsopoe (proforma defendant No. 9). It was stated that the said land sold by Sale Deed dated 25.05.2013 was also a part of the suit land and as such, the plaintiff was entitled to get the aforementioned sale proceed. By Sale Deed dated 10.06.2013 executed by Wokha Village 'B' Khel Echungmongrui Clan forcibly sold another plot of land measuring 25 X 12 sq. ft. to Shri Nongothung Ezung (proforma defendant No. 10) located between PWD Office Road and Local Ground Road Wokha Town at a cost of Rs. 15,000/-. The land covered by the aforementioned sale deed dated 10.6.2013 was also a part of the suit land and the plaintiff was entitled to get the sale value of the said suit land. It was also stated that by another sale deed dated 18.11.1993, a plot of land was sold by the father of the present plaintiff late Hakao Kithan and one Sri Nchanimo Kithan representing the Kithan Clan to the proforma defendant No. 7, Sri Y. Ekyimo Ezung. 4. On 30.05.2013, the defendant No. 1, Sri Yamosao Erui forcibly cut a plot of land measuring 15 X 12 sq. ft. and put a fencing, which was removed by the plaintiff on 31.05.2013. However, the defendant No. 6 threatened to destroy the construction and dispossess the Kithan Clan from the said land. The suit land has been described in paragraph-19(a) of the plaint as under: "The suit land is bounded on the Eastern side in a small nullah coming up on the Western side is PWD Store and from there the Soil Department Office and PWD Office. And from Southern side a small nullah near Late Renbomo's building and from there after crossing the main road, DCs Office, Police Station and upto the entire Hill area that is up to the Hill was the Western side." 5. The defendant by filing written statement raised various legal pleas pertaining to maintainability, non-joinder of necessary party, bar of limitation, lack of cause of action etc. The defendant by filing written statement raised various legal pleas pertaining to maintainability, non-joinder of necessary party, bar of limitation, lack of cause of action etc. It was further stated that the suit land has not been properly described, inasmuch as, except giving a boundary, the quantum of suit land has not been mentioned in the plaint. The defendants denied the claim of the plaintiff that the defendants also belong to the Kithan Clan. It has been stated that the suit land belongs to the defendant and their predecessor and the plaintiff has no title over the suit land. 6. On the basis of the above pleadings, learned trial court framed the following issues: "1. Whether the suit is bad for non joinder of necessary parties? 2. Whether the State is a necessary party? 3. Whether the area of the suit land has been mentioned and whether the suit is undervalued and proper ad-volarem court fee been paid? 4. Whether the suit is maintainable in its present form and manner? 5. Whether there is cause of action for the suit? 6. Whether the suit is barred by limitation, waiver and acquiescence? 7. Whether the plaintiff has locus standi to institute the instant suit? 8. Whether withdrawal of a suit automatically confers title/ownership to the defendant? 9. Whether the plaintiff can claim ownership by relying on an alleged unregistered sale deeds dated 15.01.1991 and 18.11.1993 which was made from the back of the defendants and whether the same is legal and valid? 10. Whether the prayer of the plaintiff if he succeeds, can be executed, and if not executable, whether the suit is bad in law and not maintainable? 11. Whether the present suit was filed in the Wokha village Council and decided the case in favour of the present defendants? 12. Whether the decision of the Wokha village council went for appeal before the Wokha customary court and the decision of Wokha customary court was challenged before the then ADC (J) Wokha? 13. whether the decision of the ADC(J) Wokha was referred by the present plaintiff before the Hon'ble High Court Kohima and the said High Court Kohima set aside the order passed by the ADC(J) Wokha and a direction to file afresh suit? 14. Whether the present plaintiff filed written statement in detail? 15. Whether both the parties adduced evidence? 16. 13. whether the decision of the ADC(J) Wokha was referred by the present plaintiff before the Hon'ble High Court Kohima and the said High Court Kohima set aside the order passed by the ADC(J) Wokha and a direction to file afresh suit? 14. Whether the present plaintiff filed written statement in detail? 15. Whether both the parties adduced evidence? 16. Whether the Hon'ble ADC(J) directed both parties to file written argument? 17. Whether the present plaintiff filed written statement? 18. Whether the present defendant failed to file written argument? 19. Whether the present defendants filed Misc. Application under XXIII Rule 1 of the CPC for leave of the Hon'ble Court for absolute withdrawal of the T.S. 03/96? 20. Whether the present defendant was allowed the present defendants to withdraw of the T.S. 03/96 with the direction to pay Rs. 5000/- And prohibited from filing afresh suit to the same land in question in T.S. 03/96. 21. Whether a portion of land measuring 30 X 15 sq. ft. of 15.01.1991 for a sum of Rs. 15,000/- to Mr. Yanajamo Khuvung and the said land was once again claimed as ancestral land and forced the said Ranjamao Khuvung by the defendants at Rs. 50,000/- without any reason? 22. Whether the present defendant forcible sold a land measuring 30 X 35 sq. ft. to Tsenjamao Tsope which is part and parcel of the suit and at Rs. 45,000/- on 25.05.13? 23. Whether the present defendants sold a part and parcel of the present suit land measuring 25 X 12 sq. ft. illegally to Shri Nongothung Ezungon 10.06.13 at Rs. 15,000/- illegally? 24. Whether the present plaintiff has sold a part and parcel of the suit land on 18.11.93 was sold by Lt. Hakao Kithan and Shri Nianyimo Kithan at Rs. 25,000/- and same plot of land have been illegally sold by the defendants at Rs. 45,000/- on 10.06.13 by force? 25. Whether Sri Yamosao E-Rui forcibly cut the suti land about 15 X 12 sq. ft. and as such the plaintiff went and remove the fencing on 31.05.13 and impleaded as defendant No. 6? 26. Whether the suit land is bounded on the Eastern side in a small nullah coming up on the Western side in PWD office. And from southern side a small nullah near Lt. ft. and as such the plaintiff went and remove the fencing on 31.05.13 and impleaded as defendant No. 6? 26. Whether the suit land is bounded on the Eastern side in a small nullah coming up on the Western side in PWD office. And from southern side a small nullah near Lt. Renbomo building and from there after crossing the main road, D.C. Office, Police Station and up to the entire Hill area that is up to the hill was the Western side? 27. Whether the title of the suit land is entitle with the plaintiff? 28. Whether direction to the defendant 1 to 6 to repay to the plaintiff a sum of Rs. 1,50,000/- will be appropriate." 7. Both the parties examined one witness each and after hearing the parties, learned trial court dismissed the suit by the impugned judgment. Aggrieved, the plaintiff preferred the instant appeal. 8. Learned counsel Mr. A. Zhimoni for the appellant and learned Sr. Counsel Mr. R. Iralu, for the respondent were heard. 9. Learned counsel for the appellant submits that the suit land belongs to the Kithan Clan, to which plaintiff belong and some portion of the suit land were sold by the defendants illegally, though the defendants do not have any right, title over the same. The further contention of the learned counsel was that the defendant also resold the portion of the suit land, which were earlier sold by the father of the plaintiff and another clan member, representing the plaintiff's clan, and as such, the plaintiff is entitled to recover the price of the land, which was illegally obtained by the defendants from the purchasers (proforma defendants). 10. Par contra, submission of the learned Sr. Counsel for the respondent Mr. R. Iralu was that the plaintiff has no title over the suit land nor necessary parties were impleaded and the suit was also not filed by the Clan of the plaintiff, which according to the plaintiff is the owner of the suit land and the suit land has also not been described properly, so as to identify the same and therefore, the learned trial court rightly dismissed the suit, as no decree could have been passed on the basis of the pleadings and evidence of the plaintiff. 11. 11. Perusal of the impugned judgment reveals that though, as many as 28 issues were framed, learned trial court dismissed the suit on the basis of its finding on the issue of maintainability and non-joinder of necessary parties. 12. While deciding the suit, learned trial court observed as under: "Having answered each issue, this court has come to the conclusion that the present suit is not maintainable in its present form for non-joinder of necessary party i.e. the Government as directed by the Hon'ble High Court, and noncompliance of Order-1 Rule-8. The present suit is accordingly dismissed." 13. The learned trial court also observed, that when the suit itself was not maintainable and effective decree could not be passed in the present form of the suit, discussions and decisions on the issue of title was futile and therefore, learned trial court left the issue relating to title of the plaintiff undecided. Learned counsel for the appellant submits, that the suit having been filed for declaration of title, the core issue of the suit related to the title of the plaintiff, which has been left undecided by the learned trial court and as such, the suit should be remanded to the learned trial court for a fresh disposal. 14. There is no gainsaying, that when the learned trial court has framed multiple issues and did not decide to dispose of the suit on preliminary issue, learned trial court ought to have decided all the issues as per the mandate of Order 14 Rule 2 CPC, which provides that notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2) pronounce judgment on all the issues. Sub-rule 2 of Order 14, Rule 2 provides, that when suit involves both issues of law and of fact and the court is of the opinion that the suit or any part thereof can be disposed of on an issue of law only, it may try the suit on such legal issue as preliminary issue. In the instant case, the suit was not decided on preliminary issue, and as such, learned trial court ought to have decided all the issues. In the instant case, the suit was not decided on preliminary issue, and as such, learned trial court ought to have decided all the issues. That apart, the present suit being based on title, and the plaintiff having sought for declaration of his title with consequential relief’s, the issue of title of the plaintiff was the core issue for deciding the fate of the suit. Though, some legal issues pertaining to maintainability or non-joinder of necessary party and also pertaining to frame of the suit have been raised, learned trial court ought not to have left out the issue of title, even after coming to the findings against the plaintiff on the issue of maintainability as well as non-joinder of necessary party is concerned. 15. Learned trial court decided the issue of non-joinder of necessary party against the plaintiff, holding that Government was a necessary party in the present suit, and as such no effective decree could have been passed in absence of the Government. It is the trite law, that a necessary party and a proper party to a suit are not the same thing. Order 1 Rule 9 CPC provides that no suit shall be defeated for the reasons of non-joinder or mis-joinder of party. However, if a party is considered to be a necessary party and likely to be affected by the decree, the court cannot pass an effective decree in absence of such necessary party. It is well settled that a necessary party is one, in absence of whom, the suit cannot be decided adequately and properly and an elaborate discussion on this point is not considered necessary. It is to be borne in mind, that whether a party is necessary or only a proper party, has to be decided in the context of the particular suit or the lis. Only because a party was considered to be a necessary party in some earlier litigation between the same parties, cannot be a ratio in subsequent suit, irrespective of the nature of the lis and relief sought in the subsequent suit. In the present case, the plaintiff has filed the suit seeking declaration of his right, title over the suit land and also some other consequential relief’s in the form of recovery of money and injunction against the defendants. In the present case, the plaintiff has filed the suit seeking declaration of his right, title over the suit land and also some other consequential relief’s in the form of recovery of money and injunction against the defendants. The case of the plaintiff was that the father of the plaintiff was the owner of the suit land and the defendants illegally claimed title over the suit land.. Therefore, the dispute involved in the instant suit is apparently between the plaintiff and the defendants with regard to title over the suit land where both the parties made rival claim of title over the suit property. From the pleadings of the parties and the nature of controversy involved in the suit, the Government could by stretch of imagination, be held to have any interest in the suit property. However, learned trial court is found to have decided the issue of non-joinder of necessary party, solely on the ground that the High Court in earlier suit between the parties held the Government to be necessary party, without considering the issue and the nature of dispute involved in the present suit. Therefore, having regard to the nature of dispute and controversy in the suit, the Government could not be considered a necessary party in the instant suit, inasmuch as, the suit could be decided even in absence of the Government and as such, the findings of the learned trial court that the suit was not maintainable for not impleading the Government cannot be allowed to hold the field. 16. The learned trial court further held that since the property belonged to the Clan and not the individual property of the plaintiff, the suit ought to have been filed by the Clan or in case the plaintiff sought to file the suit on behalf of the clan member, the suit ought to have been filed as representative suit complying with the provision of Order-1 Rule 8 of the CPC. But, the plaintiff did not obtain any permission for filing the suit in representative capacity nor the notices were issued in terms of Order-1 Rule CPC. Therefore, the learned trial court held the suit to be not maintainable. But, the plaintiff did not obtain any permission for filing the suit in representative capacity nor the notices were issued in terms of Order-1 Rule CPC. Therefore, the learned trial court held the suit to be not maintainable. From the frame of the suit and the relief’s sought, it is apparent that the plaintiff has not filed the suit in representative capacity, rather, he filed the suit on the basis of his own title and sought for declaration of his title and other relief’s. When the suit was filed on the basis of the title of the plaintiff himself and prayed for declaration of his title over the suit land with consequential relief, there was no need for taking recourse to Order-1 Rule 8 CPC. It is however, quite a different aspect of the matter, whether the plaintiff has been able to establish his title, so as to entitle him to the relief sought for. Having said so, the question falls for consideration before this court in view of the submission of the learned counsel for the appellant as to whether the suit should be remanded to the learned trial court for a fresh disposal, inasmuch as, the issue of title has not been decided by the learned trial court, though an issue relating to title was framed. 17. It is pertinent to mention that this being a first appeal and the first appellate court being a court of law as well as of facts, the first appellate court is competent to decide all the issues, provided the evidence and materials are available on record, notwithstanding the fact, that some issues have not been decided by the learned trial court. Law does not mandate that in all circumstances, where trial court fails to decide some of the issues, suit has to be remanded for fresh trial or for decision of such issue. When the first appellate court is in a position to decide the appeal and the suit finally or for that matter, any issue left undecided by the trial court, is capable of decision on the basis of the evidence and materials on record, it is not imperative on the part of the first appellate court to remand the suit. The course of remand should be resorted to only when the first appellate court is not in a position to decide the suit. The course of remand should be resorted to only when the first appellate court is not in a position to decide the suit. When the issue has been framed and evidence adduced and appellate court is in a position to decide the suit or for that matter any particular issue left undecided by the trial court, the course of remand should be avoided. In my considered view, the issue of title being the principal issue, on which the fate of the suit is dependant, can very well be decided by this court on the basis of the evidence and materials brought on record and as such. I do not feel the necessity of remanding back the instant suit for a fresh disposal by the trial court. 18. As already mentioned, the plaintiff has filed the suit for declaration of title and other consequential relief’s and as such, the suit of the plaintiff is based on title. When a suit is based on title, no decree can be passed unless the plaintiff succeeds in establishing his title over the suit land and in such case, the plaintiff has to sand on his own leg and cannot depend upon the deficiency or weakness of the defendants. Although the plaintiff has filed the suit for declaration of his title, he has not come to the dock (witness box) to support his claim. The plaintiff has examined only one witness being PW-1, who happened to be the Gaonburha. The PW-1 stated in his evidence that the suit land belongs to the 'Kithan clan' and he represents the clan. In the plaint also, the plaintiff nowhere stated that he is the absolute owner of the suit land having exclusive title over the suit land by inheritance or otherwise. Only pleading in the plaint was that father of the plaintiff and another as member of the clan sold certain portion of the suit land on behalf of the clan and therefore he has filed the suit. Admitted position is that the suit land belongs to the 'Kithan clan' of which the plaintiff is also a member. When admittedly the suit land belongs to the clan, the plaintiff cannot have any exclusive title or he cannot seek for a declaration of his own title over the clan property. Admitted position is that the suit land belongs to the 'Kithan clan' of which the plaintiff is also a member. When admittedly the suit land belongs to the clan, the plaintiff cannot have any exclusive title or he cannot seek for a declaration of his own title over the clan property. Therefore, evidently and admittedly, the suit land is the property of the clan and not individual property of the plaintiff having exclusive right, title and interest therein. In fact, there is no specific pleading with regard to exclusive title of the plaintiff nor evidence was brought on record to establish the exclusive title of the plaintiff over the suit land. Even the plaintiff avoided the witness box. The sole witness examined by the plaintiff deposed in clear and unambiguous term that the suit property belongs to the clan. When there was no pleadings tracing out the exclusive title of the plaintiff, except making a prayer seeking declaration of title and admittedly the suit property to be of the clan, no decree declaring title of the plaintiff can be passed in absence of pleadings in a civil suit. 19. It is no doubt true, that the learned counsel for the respondent has pointed out that the suit land has not been properly described and is also not identifiable and as such, no decree could be passed on that count also. Learned counsel for the plaintiff, however, relying on a decision of this court in Dwaraka Prasad Agarwalla Vs. Legal Heirs of Nil Kamal Bezbaruah & Ors. reported in 2015 (2) GLT 1 submitted that any deficiency in the description of the land cannot be fatal for the suit, if the plaintiff is otherwise entitled to the decree over the suit land and such defect or deficiency in the description of the suit land is curable. Although the plaintiff has described the suit land by boundary in paragraph-19(a), but evidently and admittedly, some portion of the suit land was alienated by way of sale and therefore the entire suit land as described in paragraph-19(a) of the plaint by boundary could not be subject of the suit and no title could be claimed on those portion of the land which was admittedly alienated by way of sale. Be that as it may, the question remains is that the suit property is the property of the clan and not of the plaintiff and plaintiff has also not been able to establish that he was the exclusive owner of the suit land. When the plaintiff has sought to avoid the witness box to establish his claim of title over the suit land and the evidence brought on record clearly demonstrated that the suit land belongs to the Kithan clan and not to the plaintiff alone, the plaintiff cannot have exclusive title over such land and as such, the issue of title has to be decided against the plaintiff. The plaintiff having failed to establish exclusive right title over the suit properly, the suit of the plaintiff for declaration of his title is bound to fail. Therefore, the suit as well as the appeal deserves to be dismissed, though for the reasons different from the one on the basis of which the learned trial court dismissed the suit. 20. In view of the foregoing discussions, this appeal appears to be devoid of merit and accordingly dismissed. 21. Send down the LCR.