Research › Search › Judgment

Gauhati High Court · body

2024 DIGILAW 702 (GAU)

Gobinda Baishya v. Julekha Bibi

2024-05-16

DEVASHIS BARUAH

body2024
JUDGMENT : Heard Mr. B. K. Bhagawati, the learned counsel appearing on behalf of the Appellants. 2. This is an appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure, 1908 challenging the order dated 11.06.2010 passed in Title Appeal No.6/2010 by the Court of the learned Civil Judge No.2, Kamrup (M) at Guwahati whereby the suit was remanded back to the learned Trial Court and was directed to decide the suit afresh by framing an additional issue as to whether the Appellants in the said appeal acquired any title over the suit land by virtue of the Sale Deed executed in their favour by Shri Phatik Chandra Lahkar. 3. For deciding as to whether the learned First Appellate Court had exercised the jurisdiction of remanding the suit inconformity with the provisions of Order XLI Rule 23A or whether the order dated 11.06.2010 is contrary to the provisions of Order XLI Rule 24 of the Code, this Court finds it relevant to take briefly the facts involved which led to the filing of the instant proceedings. 4. The Respondents herein as plaintiffs had filed a suit being Title Suit No.22/2007 seeking a declaration of their possessory right over the suit land; to pass a decree declaring issuance of K.P. Patta No.58 of village Dakshin Sitara under Panduri Mouza in the name of the Defendant Nos. 1 and 2 as unlawful, ineffective and null and void; to pass a decree confirming the possession of the plaintiffs over the suit land and for permanent injunction etc. It is relevant to take note of that the schedule land pertains to 1 Bigha covered by Dag No.70(old) of yearly periodic patta No.8/ New K.P. Patta No.58 of village Dakshin Sitara under Panduri Mouza. 5. The entire case of the plaintiffs is that the plaintiffs have been residing in the suit land since 25.01.2005 which was purchased from one Shri Phatik Chandra Lahkar through a kacha Sale Deed dated 21.05.2005 and the registered deed could not be executed as the land was annual patta land. It was stated that the land in Annual Patta No.8 containing Dag No.70 originally belonged to the Defendant Nos. 1 and 2 who are the Appellants herein and subsequently the Defendant Nos. It was stated that the land in Annual Patta No.8 containing Dag No.70 originally belonged to the Defendant Nos. 1 and 2 who are the Appellants herein and subsequently the Defendant Nos. 1 and 2 transferred the suit land to one Shri Phatik Chandra Lahkar and thereupon the said Shri Phatik Chandra Lahkar transferred the suit land to the Plaintiff No.6 as well as the predecessor-in-interest of the Plaintiff Nos. 1 to 5 on 25.01.2005 vide the unregistered Deed of Sale dated 25.01.2005. It was also stated that the Defendant Nos. 1 and 2 transferred 2 Bighas of land of the Periodic Patta No.8 of Dag No.70 to the Defendant Nos. 3 and 4. 6. The entire cause of action for the suit was on 20.04.2007 when the Defendant Nos. 3 and 4 accompanied with their father forcefully entered into the suit land broke the entrance path of the Plaintiffs standing over the suit land. It was stated that the Defendant Nos. 3 and 4 and their father claimed that they had purchased the whole land of Dag No.70 from the Defendant Nos. 1 and 2 through the registered Sale Deed and so the Plaintiffs were compelled to file the suit. It is the further case of the Plaintiffs that the conversion of the annual patta in favour of the Defendant No.1 and 2 and the sale made by the Defendant Nos. 1 and 2 to the Defendant Nos. 3 and 4 was absolutely illegal and as such the said suit was filed seeking the reliefs as aforementioned. 7. The Defendant Nos. 1 to 4 filed a written statement and a counter claim was also filed by the Defendant Nos. 1 and 2 denying the entire case of the Plaintiffs and claiming inter alia that Shri Phatik Chandra Lahkar had no right, title and interest to transfer the schedule land in favour of the Plaintiffs. It was mentioned that the Defendant Nos. 1 and 2 was issued the periodic patta and some area of the land after the issuance of the periodic patta was transferred to the Defendant Nos. 3 and 4. However, the suit land was not transferred to the defendant Nos. 3 and 4. On the basis of the counter claim, the Defendant Nos. 1 and 2 was issued the periodic patta and some area of the land after the issuance of the periodic patta was transferred to the Defendant Nos. 3 and 4. However, the suit land was not transferred to the defendant Nos. 3 and 4. On the basis of the counter claim, the Defendant Nos. 1 and 2 sought for declaration of their right, title and interest over the suit land; seeking eviction by recovery of khas possession of the suit land from the plaintiffs as well as for permanent injunction. The plaintiffs filed their written statement to the said counter claim. 8. On the basis of the above, the learned Trial Court framed as many as 7 (seven) issues of which issue Nos. 1 to 4 related to the suit and issue Nos. 5 to 7 related to the counter claim. On behalf of the Plaintiffs as many as 6 persons had adduced oral evidence and on behalf of the Defendants, 3 persons have adduced oral evidence. On behalf of the Plaintiffs, various documentary evidence were placed which were marked as Exhibit-1 to Exhibit-8. The Defendants exhibited various documents marked as Exhibit-A to Exhibit-C. The learned Trial Court on the basis of the evidence on record, dismissed the suit vide a judgment and decree dated 23.11.2009 and decreed the counter claim. Being aggrieved, an appeal was preferred by one of the Plaintiffs which was registered and numbered as Title Appeal No.06/2010. The learned First Appellate Court vide the impugned order dated 11.06.2010 has remanded the suit by setting aside the judgment and decree dated 23.11.2009 with a further direction to give due opportunity to both the parties to adduce evidence. It is under such circumstances, the instant appeal has been filed. 9. Mr. B. K. Bhagawati, the learned counsel appearing on behalf of the Appellants submitted that the perusal of the impugned order dated 11.06.2010 would clearly show the total non-application of mind inasmuch as the learned First Appellate Court did not consider that the evidence was already there on record on the basis of which the appeal could have been disposed of. Referring to Paragraph Nos. 14 and 15 of the impugned order, he submitted that there is no reason also assigned by the learned First Appellate Court as to why the case is required to be remanded. Referring to Paragraph Nos. 14 and 15 of the impugned order, he submitted that there is no reason also assigned by the learned First Appellate Court as to why the case is required to be remanded. The framing of the additional issue was not at all necessary taking into account Issue No.3 is inclusive of the said issue. He therefore submitted that this is a fit case where the impugned order requires to be interfered with. 10. None has appeared on behalf of the Respondents on call. 11. This Court had duly perused both the oral as well as the documentary evidence on record. In addition to that, if this Court takes note of the order passed by the learned First Appellate Court, there is no reason as to why the case was required to be remanded back to the learned Trial Court or the requirement for framing an additional issue, more so when the Issue No.3 categorically relates as to whether the Plaintiffs are entitled to the declaration of the possessory right on the basis of the unregistered Deed of Sale executed by Late Phatik Chandra Lahkar. In addition to that, this Court also finds the impugned order to be contrary to the provisions of Order XLI Rule 24 of the Code. Consequently, this Court therefore sets aside the impugned order dated 11.06.2010 passed by the learned First Appellate Court in Title Appeal No.06/2010 and further directs the learned First Appellate Court i.e. the Court of the Civil Judge No.2, Kamrup (M) at Guwahati for deciding the said appeal within a time frame taking into account that the appeal is of the year 2010. 12. Mr. B. K. Bhagawati, the learned counsel appearing for the Appellants submitted that the suit land in question is a land now falling within the jurisdiction of the learned District Judge, Kamrup (R), Amingaon. This Court is of the opinion that it would not be proper on the part of this Court to transfer the suit in exercise of powers under Order XLIII Rule 1(u) of the Code. This Court is of the opinion that it would not be proper on the part of this Court to transfer the suit in exercise of powers under Order XLIII Rule 1(u) of the Code. However this Court duly observes and directs the Court of the learned Civil Judge No.2, Kamrup (M) at Guwahati as well as the learned District Judge, Kamrup (M) at Guwahati that in the circumstance, the dispute does not fall within their jurisdiction, the appeal as well as all records connected therewith be transmitted to the Court of the learned District Judge, Kamrup (R) at Amingaon so that the appeal can be assigned by the learned District Judge, Kamrup (R) to the appropriate Court. 13. This Court directs the Appellants herein to appear before the learned First Appellate Court i.e. the Court of the learned Civil Judge No.2, Kamrup (M) at Guwahati on 08.07.2024. 14. The Registry is directed to forthwith transmit the records and if necessary, employ the services of a special messenger so that the LCR along with the copy of the instant order be transmitted to the learned Court of the Civil Judge No.2, Kamrup (M) at Guwahati. 15. With above observations and directions, the instant appeal stands disposed of.