IN THE GAUHATI HIGH COURT ( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH ) RSA No. 73 of 2004

Transcription

1 IN THE GAUHATI HIGH COURT ( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH ) RSA No. 73 of ) On the death of Sri Tileswar Medhi, Appellant No.1- his legal heirsi) Smt Jamini Medhi, ii) Sri Dharmendra Medhi, iii) Smti Parul Medhi, iv) Smti Swapna Medhi. 2) Smti Ghana Kanti Medhi, Daughter of Late Tarapada Medhi, All are resident of Village Manaha Nasatra, Mouza- Manaha, District- Morigaon, Assam. -Versus-.. Appellants. 1. Smti. Bulu Medhi Phukan, Wife of Late Narendra Nath Medhi, 2. Sri Rinku Medhi, Son of Late Narendra Medhi 3. Sri Jewel Medhi, Son of Late Narendra Medhi, 4. Smti. Maina Medhi, Daughter of Late Narendra Medhi No. 1 to 4 all are residents of Village- Kamour, District- Nagaon, Assam. 5. Sri Lalit Chandra Medhi, Son of Late Deba Medhi. 6. Sri Putul Ch. Medhi, Son of Late Deba Medhi. RSA No.73 of 2004 Page 1 of 11

2 7. Smti. Babul Medhi, Wife of Sri Rajen Medhi. 8. Hatul Medhi, Son of Rajen Medhi, 9. Kanak Ch. Medhi, Son of Somnath Medhi. 10. B.M. Prathamik Bidyalaya, represented by Sri Dimbeswar Medhi, Son of Late Navia Medhi, Secretary of B.M. Prathamik Bidyalaya. 12. Mohan Deka, President of B.M. Prathamik Bidyalaya, Village Monaha Nasatra, Mouza Manah, District- Morigaon, Assam.. Respondents. 13. On the death of respondent No.13 his legal heirs, a) Smti Sabha Medhi (wife), b) Sri Pranal Medhi, (Son) c) Sri Nripen Medhi (Son) d) Sri Sarat Medhi (Son) e) Sri Mukut Medhi (Son) f) Sri Mantu Medhi (Son) g) Smti Bhanu Medhi (Daughter) h) Smti Ranju Medhi (Daughter) 14. On the death of respondent No.14 his legal heirs a) Smti Padumi Medhi (Wife) b) Sri Nareswar Medhi (Son) c) Sri Nabajyoti Medhi (Son) d) Smti. Mridula Medhi (Daughter) e) Smti Rekha Medhi (Daughter) f) Sri Tuttul Medhi (son) 15. On the death of respondent No.15, his legal heris a) Smti Kusum Medhi (Wife) b) Smti Darsana Medhi (Daughter) RSA No.73 of 2004 Page 2 of 11

3 16. Sri Anil Ch. Medhi, Son of Ram Das Medhi. 17. Sri Biddut Medhi, Son of Prafulla Medhi. 18. Sri Manash Medhi, Son of Prafulla Medhi. 19. Kulu Medhi, Son of Prafulla Medhi. 20. Smti Jogali Medhi, Daughter of Prafulla Medhi. 21. Smti Jonti Medhi, Daughter of Pudu Medhi. 22. Smti Sakuntala Medhi, Daughter of Pudu Medhi. 23. On the death of respondent No.23 her legal heirs- a) Maneka Medhi (wife of Deba Medhi) 24. Smti Dipti Medhi, Daughter of Debi Medhi. 25. Sri Keshab Ch. Medhi, Son of Rajen Medhi. 26. Smti Niru Medhi, Daughter of Rajen Medhi. Respondents No. 13 to 26 all are the residents of Village : Manaha Na-Sattra, Mouza- Manaha, District: Morigaon, Assam. Proforma- respondents. RSA No.73 of 2004 Page 3 of 11

4 BEFORE HON BLE MR. JUSTICE N. CHAUDHURY For the Petitioner : Mr. A. C. Sarma, Advocate. For the respondents: Mr. Z. Mukit, Advocate. Date of hearing : Date of judgment : JUDGMENT AND ORDER (ORAL) This second appeal has been preferred by the plaintiffs challenging the concurrent findings of both the courts below in regard to the prayer of the plaintiffs for declaration of the right, title and interest and recovery of khas possession over a plot of land measuring 2 Bigha 8 Lechas covered by Dag No. 716 of periodic patta No.50 of Monaha Kissam &, Mouza in the District of Morigaon. The learned Trial Court by judgment and decree dated in Title Suit No. 8 of 2001 dismissed the suit holding that the plaintiffs failed to prove right, title and interest with respect to the suit land and also their possession over the same was not proved. As against the said judgment plaintiffs preferred Title Appeal No. 20 of 2003 before the learned Civil Judge (Senior Division) No.1, Morigaon, and the said appeal was also dismissed on Against these said 2 (two) judgments, the present second appeal has been preferred. [2] The plaintiffs Tileshwar Medhi & Ghana Kanti Medhi are two sons of Late Tarapada Medhi, who on turn was one of the 7 sons of Bhutiram Medhi. The plaintiffs pleaded that land measuring 2 Bigha 8 Lechas covered by Dag No. 716 of Periodic Patta No. 50 under Monaha RSA No.73 of 2004 Page 4 of 11

5 Kissam & Mouza in the district of Morigaon fell in the share of Tarapada Medhi on amicable partition. The suit land is described in the Schedule-A to the plaint. According to the plaintiffs, their grandfather Late Bhutiram Medhi originally owned and possessed land measuring 4 Bigha 3 Katha 8 Lechas covered by Dag No. 351 of Periodic Patta No.33 as per settlement operation of and after his death his legal heirs got the land amicably partitioned consequent to which suit land measuring 2 Bigha 8 Lechas, more particularly described in Schedule-A to the plaint, fell in the share of the plaintiffs father Tarapada Medhi. Further case of the plaintiffs was that subsequently the defendants entering into collusion among themselves had shown a false partition which did really never happen and on the basis of the same the plaintiffs were dispossessed in the year The defendants fraudulently made transfer of the land in favour of defendants No. 6 & 7. The plaintiffs, therefore, prayed not only for declaration of their right, title and interest over the suit land with a decree for recovery of possession but also for further declaration that the partition claimed by the defendants so as to grab the Schedule-A land was illegal, inoperative and fraudulent. [3] On being summoned, the defendants appeared and submitted written statement. In their written statements, defendants admitted that the suit land originally belonged to one Bhutiram Medhi and have also admitted that there was amicable partition but they disputed the statement that the suit land fell in the share of the plaintiffs after partition. According to the defendants, the suit land originally fell in the share of Naren Medhi who obtained mutation in his favour and subsequently in the year 1990 he transferred the suit land to other defendants for establishing a school i.e. B.M. Prathamik Bidyalaya in the name of Bhutiram Medhi and also in favour of Kanak Ch. Medhi, the defendant No.6. According to the defendants, the records of rights bear testimony to the fact that the partition claimed by them is RSA No.73 of 2004 Page 5 of 11

6 correct and that suit land never fell in the share of the plaintiffs father Late Tarapada Medhi. [4] On the basis of the aforesaid rival contention, the learned trial court framed as many as 7 issues which were subsequently recast and reframed. Those issues are quoted below: i ) Whether there is any cause of action of the suit? ii) Whether the suit is maintainable in the present form? iii) Whether the plaintiffs has right, title and interest over the suit land through right of inheritance? iv) Whether the suit land fell into the share of the plaintiff s father Tarapad Medhi at the time of amicable partition? possession? v) Whether the plaintiffs are entitled to get the decree for khas vi) Whether the plaintiffs entitled to get the relief as prayed for? vii) To what relief/ reliefs the parties are entitled to? [5] In course of trial plaintiffs examined as many as 3 witnesses including the plaintiff No.1 and exhibited 9 documents, whereas the defendant examined 3 witnesses who are defendant No.2, defendant No. 6 & defendant No.9. The defendant exhibited 3 documents as Exhibits- Ka, Kha & Ga. [6] After hearing the learned counsel for the parties and on perusal of the materials available on record, the learned Trial Court passed judgment on By the said judgment the learned Trial Court took up issue No.4 as first issue which is in regard to the claim of the plaintiffs that suit land had fallen in the share of their father Late Tarapada Medhi. Consequent to amicable partition among the legal heirs of Bhutiram Medhi in deciding the issue No.4, the learned Trial Court considered the exhibits relied on by the parties and came to finding that name of Narendra Nath Medhi, defendant RSA No.73 of 2004 Page 6 of 11

7 No.1, exists in the records of rights since settlement operation which is evidenced by entry of his name in the records of rights as the original pattadar. Subsequently, the names of defendants No. 6 & 7 were mutated in place of original pattadar Naren Medhi in the year On this observation and in the absence of any written memorandum of the settlement for amicable partition among the legal heirs of Bhutiram Medhi, the learned Court was of the considered opinion that the plaintiffs failed to give any plausible explanation as to how, his predecessor could be owner in possession of the suit land when it is apparent that defendant No.1 is the recorded pattadar since As per entries made in the records of rights suit land fell in the share of Naren Medhi. On these considerations the learned Trial Court held that the plaintiffs did not have any right, title and interest over the suit land. Moreover according to the learned Trial Court, the plaintiffs could not prove possession over the Schedule-A land and as such the question of recovery of possession also did not arise. Be that as it may, along with the said issue the learned Trial Court while deciding the issue of maintainability of the suit, made an observation that the suit is barred under Section 154 of the Assam Land and Revenue Regulation, 1886, inasmuch as the entries in the records of rights have been challenged in the suit. [7] Against the aforesaid judgment of the learned Trial Court, plaintiffs approached the learned Civil Judge (Senior Division) No.1 by preferring an appeal. The appeal was numbered as Title Appeal No. 20 of The learned First Appellate Court after hearing the learned counsel for the parties was of the view that the issue No.4 was the principal issue which was really the bone of contention between the parties and accordingly, without going for determining any point for determination as is required under the provision of Order XLI Rule 31 proceeded to decide the appeal issue wise. Issue No.4 was taken up first and all the materials particularly Exhibit.1, Exhibit- Ka and RSA No.73 of 2004 Page 7 of 11

8 other exhibits adduced by the parties were duly considered. The learned First Appellate Court was of the view that the plaintiffs could not prove the said issue in their favour. Consequently, it was held by the learned First Appellate Court that the land described in the Schedule-A of the plaint fell in the share of Naren Medhi i.e. defendant No.1 and not in favour of Tarapada Medhi, the predecessors in interest of the plaintiffs. The learned First Appellate Court did not feel necessity to discuss the other issues and dismissed the appeal by his judgment dated in view of findings in issue No.4. [8] Plaintiffs preferred second appeal against both the aforesaid judgments. This Court while admitting the second appeal on framed the following 2 (two) issues and the same are reproduced below: i) Whether the suit is barred under Section 154 of the Assam Land and Revenue Regulation? ii) Whether the judgment of the lower Appellate Court is bad for not framing the points for determination as provided under Order 41 Rule 31 of the Code of Civil Procedure? [9] I have heard Mr. A.C. Sarma, learned counsel for the appellants and Mr. Z. Mukit, learned counsel for the respondents. [10] According to the learned counsel for the appellants the plaintiffs filed the suit for declaration of right, title and interest and not for declaration that any endorsement made in the records of rights are erroneous or illegal and as such the findings of the learned Trial Court that the suit is barred by Section 154 of the Assam Land and Revenue Regulation, 1886, is erroneous. According to the learned counsel for the appellants, the Appellate Court failed to take into RSA No.73 of 2004 Page 8 of 11

9 consideration these aspects of the matter and as such fell into error of law. Learned counsel for the appellants submits that without deciding the question of maintainability of the suit, it was not open on the part of the learned First Appellate Court to enter into the merit of the case and accordingly, the appeal is liable to be allowed setting aside the aforesaid judgments of the learned Courts below. It is well settled principles of law that a suit for declaration of right, title and interest cannot be barred by Section 154 of the Assam Land and Revenue Regulation, 1886, as such the first substantial question of law framed by this Court is required to be decided in the negative holding that the suit of the plaintiffs was maintainable, the learned counsel for the appellants maintained. [11] Coming to the second substantial question of law the leaned counsel for the appellants, however, fairly submits that in view of the fact that the learned First Appellate Court proceeded to decide the appeal issue wise, there was substantial compliance of the provision of Order XLI Rule 31 and as such the learned counsel did not argue the same. [12] Per contra, Mr. Z. Mukit, learned counsel for the respondents would argue that even if the first substantial question of law is decided in favour of the appellants the end result does not change inasmuch as both the Courts have declared that the plaintiffs do not have right, title and interest with respect to the suit land. The dismissal of the suit at least on issues No.3 & 4 and affirmation thereof by the First Appellate Court cannot in any way be disturbed. According to Mr. Z. Mukit the two substantial questions of law framed by this Court at the time of admission of the second appeal are not material for the purpose of second appeal. The learned counsel for the respondents submits that the findings in regard to title having been given concurrently by both the Courts against the plaintiffs and RSA No.73 of 2004 Page 9 of 11

10 the said findings not having been challenged in any way before this Court, the second appeal is liable to be dismissed. [13] By Section 154 of the Assam Land and Revenue Regulation, 1886, some matters have been exempted from cognizance of Civil Court and it includes the matters in regard to preparation of records of rights. As many as 14 items have been mentioned under Section 154 giving an exhaustive list of the exempted items. The suit of the plaintiffs relates to declaration of right, title and interest which is neither included in Section 154 nor could it be so included. Section 9 CPC has vested Civil Courts to decide any suit of civil nature excepting the suit of which cognizance is barred specifically by a statute. So, except the items mentioned in various Clauses of Section 154 all other items shall be covered by Section 9 CPC. A civil court has been endowed with plenary power to entertain any suit of civil nature as long as the jurisdiction is not barred specifically by any statute. So, to confer jurisdiction of Civil Court, no other provision is necessary in view of provision under Section 9 CPC. Rather, ouster of jurisdiction of civil court can be done by a specific statutory provision only. Even if the jurisdiction of civil court is otherwise barred by any statute even thereafter when there is violation of the fundamental judicial Procedure and/ or provisions of the said Act and/ or the Principles of natural justice, a civil suit shall lie. The suit in hand is one for declaration of right, title and interest and the same, prima facie, does not come in any of the items mentioned under Section 154 of the Assam Land and Revenue Regulation. In that view of the matter the finding of the learned Trial Court that the suit is barred under Section 154 is erroneous. The first substantial question of law, therefore, is decided in the negative and in favour of the plaintiffs. [14] The second substantial question of law has not been pressed by the learned counsel for the appellants as has been stated above. The question then arises after having decided the first substantial RSA No.73 of 2004 Page 10 of 11

11 question of the law framed in the second appeal in favour of the appellants what would happen to the impugned judgments? This takes us to the findings of the learned Courts below which are referred to above. The learned Courts below have held that the plaintiffs have failed to prove their right, title and interest and possession over the Schedule-A to the plaint and this being the basic issue or the crux of the suit, the plaintiffs are not entitled to any relief. This is what has happened in the present case. Plaintiffs suit may be maintainable but the facts remain that the plaintiffs could not prove their right, title and interest. In that view of the matter although the substantial question No.1 of law is decided in favour of the appellants yet the findings of the learned courts below on merit. i.e. claim of plaintiffs as to right, title and interest over the Schedule-A are not interfered. Consequently, the said concurrent findings of fact and the decision that the plaintiffs are not entitled to relief are upheld. [15] Interim order, if there be any, shall stand automatically vacated. sumita JUDGE RSA No.73 of 2004 Page 11 of 11