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2020 DIGILAW 94 (GAU)

On The Death Of Buren Ch Bora v. Balik Debi

2020-01-28

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT Achintya Malla Bujor Barua, J. - Heard Mr. P. Kalita, learned senior counsel for the appellants and Mr. B.D Deka, learned counsel for the respondents. 2. The predecessor-in-interest of the substituted appellants herein instituted Title Suit 63/2000 in the Court of learned Civil Judge Junior Division No.1, Guwahati inter-alia praying as follows:- wxyz (i) A decree for declaration of right, title and interest in favour of the plaintiff in respect of the suit land; zyxw wxyz (ii) A decree for recovery of arrear rent of Rs.195.00 from the defendants in favour of the plaintiff; zyxw wxyz (iii) A decree of interest on Rs.195.00 at the rate of Rs.15 1/2 % from 1-11-96 till the date of recovery; zyxw wxyz (iv) A decree of khas possession in favour of the plaintiff by evicting the defendants from the suit land; zyxw wxyz (v) Cost of the suit; zyxw wxyz (vi) Any other relief and or reliefs the plaintiff is entitled to. zyxw 3. In paragraph-1 of the plaint, a plea had been taken that the plaintiffs are the absolute owner of the land measuring 4B-2K-13L covered by Dag No.1921 of K.P Patta No.439 of village Changsari Mauza Sila Sinduri Ghopa in the district of Kamrup. In paragraph 2 and 4 of the plaint, plea had been taken that an agreement of 20.11.1992 and a further agreement of 01.11.1996 for another ''Tin Chali'' room was entered between the plaintiffs and the defendant No.1, by which the defendant was allowed to occupy a part of the land of the plaintiffs against payment of certain rent, but from 01.11.1996 when the rent was not paid, the suit was instituted. 4. The prayers No.1 and 4 in the plaint pertain to declaration of right, title and interest of the plaintiffs over the suit land and for recovery of khas possession whereas the prayers No. 2 and 3 pertain to recovery of arrear rent and interest thereon. 5. The defendants in paragraph 18(d) of the written statement took the plea that about 3K-13L under the suit land were in their possession and the Patta stood in the name of Buren Chandra Bora i.e. the predecessor-in-interest of the present substituted plaintiffs. 5. The defendants in paragraph 18(d) of the written statement took the plea that about 3K-13L under the suit land were in their possession and the Patta stood in the name of Buren Chandra Bora i.e. the predecessor-in-interest of the present substituted plaintiffs. Stating so, a plea of adverse possession was taken by the plaintiffs along with a counter claim for a declaration of their right, title and interest over the schedule land by virtue of adverse possession for more than 12 years. The trial Court while proceeding in the matter, amongst others, had framed several issues, including the issue whether the defendants have right, title and interest over the suit land by virtue of adverse possession of more than 12 years or whether the plaintiffs have right, title and interest over it. 6. The trial Court by its judgment dated 09.06.2005 in TS 63/2000 dismissed the suit of the plaintiffs and also dismissed the counter claim of the defendants. On an appeal being carried by both the parties being TA 62/2005 i.e. by the successor-in-interest of the original plaintiff and TA 52/2005 by the defendants, the learned appellate Court by its judgment dated 15.10.2007 had dismissed both the appeals. 7. Consequent thereto, the suit instituted by the plaintiffs, amongst others, for declaration of right, title and interest over the suit land as well as for arrear rent etc stood dismissed and on the other hand the counter claim of the defendants for right, title and interest by virtue of adverse possession also stood dismissed. No appeal had been preferred by the defendants against the rejection of the counter claim and as such the rejection of the counter claim for right, title and interest over the suit land by virtue of adverse possession had attained its finality. 8. The present regular second appeal is preferred by the plaintiffs against the concurrent judgment by which their suits for right, title and interest over the suit land as well as for recovery of arrear rent and recovery of khas possession of the suit land were dismissed. In the circumstance, for the purpose of this appeal based on the contentions raised by the appellants, we ignore the other issues that were framed and deal with the issue whether the plaintiffs have right, title and interest over the suit land. In the circumstance, for the purpose of this appeal based on the contentions raised by the appellants, we ignore the other issues that were framed and deal with the issue whether the plaintiffs have right, title and interest over the suit land. As regards the issue whether the defendants have right, title and interest over the suit land by virtue of adverse possession, the issue no longer be required to be decided as the concurrent judgments of the trial Court and the appellate Court has resulted in the finality where such claim stood dismissed. 9. For the purpose of the issue whether the plaintiffs have right, title and interest over the suit land, we have taken note of that while deciding the issue No.4, the learned trial Court took note that the plaintiff relied upon Exhibit-2 Jamabandi and Exhibit-3 land revenue receipt to substantiate their title over the land, but no material was produced whether the suit land was inherited or acquired property of the predecessor-in-interest of the substituted plaintiffs. Accordingly, the claim of right, title and interest of the plaintiffs over the suit land stood rejected. The learned appellate Court also in its judgment dated 15.10.2007 while dealing with the issue No.4 as regards the right, title and interest over the suit land of the plaintiffs, took the view that apart from Exhibit-2 Jamabandi and Exhibit-3 land revenue receipt, the plaintiffs had not come up with any further evidence as to how they came to be the owner of the suit land. Accordingly, the claim of right, title and interest of the plaintiffs stood rejected. 10. On appeal, the plaintiffs take the stand that in paragraph 18(d) of the written statement, while asserting on their claim for right, title and interest by virtue of adverse possession, the defendants admitted the ownership of the plaintiffs over the suit land. Although the claim for adverse possession was rejected, but the admission of the defendants as regards the ownership of the land by the plaintiffs still stands. Further, the DW-1, who was the defendant in his evidence in chief, had reiterated the admission made in the written statement as regards the ownership of the suit land by the plaintiffs and gave further evidence to substantiate his claim of adverse possession, which again has been reiterated in cross examination. Further, the DW-1, who was the defendant in his evidence in chief, had reiterated the admission made in the written statement as regards the ownership of the suit land by the plaintiffs and gave further evidence to substantiate his claim of adverse possession, which again has been reiterated in cross examination. In the circumstance, the substantial question raised in this regular second appeal is whether the pleadings of the defendants as regards admission of the ownership of the suit land by the plaintiffs and further its admissions in the evidence of DW-1 would be a relevant material on record for either of the Courts to have been given a consideration for the purpose of deciding the issue whether the plaintiffs have right, title and interest over the suit land. In other words, the question would be as to whether the two Courts by ignoring that part of the materials on record as regards the title of the plaintiffs and without giving a due consideration to it, could have required the plaintiffs to prove their right, title and interest through other materials and in the absence thereof form an opinion against the plaintiffs. Considering the nature of the question raised in the second appeal apart from the relevant materials discussed above, the other materials would not be relevant for our purpose. 11. Order XII Rule 6 of CPC provides as follows:- wxyz "Judgment on admissions.- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. zyxw wxyz (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced." zyxw 12. zyxw wxyz (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced." zyxw 12. Order XII Rule 6 of CPC makes it implicit that where admissions of fact have been made either in pleading or otherwise, whether orally or in writing, the Court at any stage of the suit, either on the application of any party or on its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit having regard to the admissions. A reading of Order XII Rule 6 of CPC shows that there is a jurisdiction vested in the Court at any stage of the proceeding, which also have to be understood to also include a proceeding in the appellate stage that a judgment may be passed based on the admission of fact either in the pleading or otherwise, whether orally or in writing. 13. In the instant case, as already noted above, the defendants in their pleadings in paragraph 18(d) of the written statement had made an admission of the title of the plaintiffs over the land, which again finds place in the evidence in chief and cross examination of the DW-1. In other words, the aspect of an admission by the defendants as regards the title of the plaintiffs over the suit land finds place both in the pleadings as well as in the evidence of the defendants. 14. In view of the provisions of Order XII Rule 6 CPC, such admissions by the defendants cannot be wholly ignored either by the trial Court or by the first appellate Court and require the plaintiffs to adduce any further or other evidence that may be available to them to prove their title. 14. In view of the provisions of Order XII Rule 6 CPC, such admissions by the defendants cannot be wholly ignored either by the trial Court or by the first appellate Court and require the plaintiffs to adduce any further or other evidence that may be available to them to prove their title. In view of the provisions of Order XII Rule 6 CPC, which can be invoked either on an application by any party or by the Court on its own motion, we are of the view that it was incumbent upon both the trial Court as well as the first appellate Court to at least give a consideration whether the admission made by the defendants in paragraph 18(d) of the written statement as well as in the evidence of DW-1 was sufficient enough to pass a judgment on the question of title claimed by the plaintiffs or whether such admission on its own would be insufficient and require the plaintiffs to bring any further evidence that may be available to them to prove their title. In the absence of a due consideration been given by both the Courts, we are of the view that a jurisdiction vested in the Court under Order XII Rule 6 CPC had not been duly exercised. Further, without exercising the jurisdiction vested upon the Court as regards sufficiency or inadequacy of the admission to pass a judgment the Court had required the appellant to bring any further material to prove their title. 15. Further, without exercising the jurisdiction vested upon the Court as regards sufficiency or inadequacy of the admission to pass a judgment the Court had required the appellant to bring any further material to prove their title. 15. In view of the aforesaid conclusion, we answer the substantial question of law in favour of the plaintiffs by setting aside the part of the judgment dated 09.06.2005 in TS 63/2000 of the learned Civil Judge, Junior Division No.2, Guwahati whereby the suit of the plaintiffs was dismissed by retaining the part of the judgment by which the counter claim was dismissed and also the judgment dated 15.10.2007 of the learned Civil Judge No.2, Kamrup Guwahati in TA 62/2005 and remand the matter back to the learned Civil Judge, Junior Division No.2 (presently to be read as Munsiff No.2, Kamrup, Guwahati) for a due consideration whether the admission made in paragraph 18 (d) of the written statement and in the evidence of DW-1 as regards the title of the plaintiffs would entail a judgment by the Court as regards the question of title of the plaintiffs or the Court would be of a view that such admission would be insufficient for the purpose and require the plaintiffs to bring any further evidence. If the admissions are held to be inadequate, reasons thereof be also stated. For the purpose, if the plaintiffs are allowed to bring in any further evidence to prove their title, the defendants would also be entitled to bring in evidence to counter the same. In doing so, the learned trial Court shall also be guided by the provisions of the proviso to Section 58 of the Indian Evidence Act, 1872. It is clarified that allowing the appeal against the same common judgment, would not be construed that the common judgment in respect of TA No.52/2007 had also been interfered, meaning thereby that the part of the judgment in respect of TA 52/2007 remained un-interfered. 16. As it is a suit of the year 2000, we require the learned Munsiff to give a final consideration to the matter within a period of three months from the date of appearance of the parties. The learned District Judge, Kamrup (Metro) shall decide upon as to before which given Munsiff the matter would now be listed. 16. As it is a suit of the year 2000, we require the learned Munsiff to give a final consideration to the matter within a period of three months from the date of appearance of the parties. The learned District Judge, Kamrup (Metro) shall decide upon as to before which given Munsiff the matter would now be listed. The respective parties before the next date fixed shall obtain the information from the office of the learned District Judge, Kamrup (M) as to where the matter upon being remanded back would be listed and taken up. As agreed, the parties shall appear before the Court of learned Munsiff No.2, Kamrup (M) on 28.02.2020. 17. Appeal stands partly allowed. 18. Send back the LCR immediately.