THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh) RSA No.

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1 THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh) RSA No. 172/2000 Smt. Ranamaya Chetri, W/O late Chandra Bahadur Chetri, resident of Guwalapathar village, Mouja-Abhoipur, Sub-Division Charaideo, Sonari, Dist.-Sivasagar (Assam). Appellant. -Versus- 1. Sri Purna Urang, S/O late Sama Urang. 2. Sri Upen Urang, S/O late Sama Urang. 3. Smt. Kaduri Urang, W/O late Sama Urang. All are residents of Naphuk Gaon, PO-Sufrai, Mouja-Abhoipur, Sub-Division Charaideo, Sonari, District-Sivasagar, Assam. Respondents. Advocate(s) for the Appellants : Mr. R.P. Kakati, Mr. T. Das. Advocate(s) for the Respondents : Mr. P.K. Baruah, Mr. A. Dasgupta, Mr. U.C. Bhattacharyya. BEFORE THE HON BLE MR. JUSTICE B.P. KATAKEY Date of Hearing : Date of Judgment & Order :

2 2 JUDGMENT AND ORDER (ORAL) This appeal by the defendant is directed against the judgment and decree dated passed by the learned Civil Judge (Senior Division), Sivasagar, in Title Appeal No.2/1997, dismissing the appeal preferred by her and affirming the judgment and decree dated (decree signed on ) passed in Title Suit No.2/1990 by the learned Civil Judge (Junior Division), Charaideo, Sonari, decreeing the suit of the plaintiffs. 2. The respondent Nos.1, 2 and 3, the successors-in-interest of Sama Urang and the respondent No.4 (since deceased) instituted Title Suit No.2/1990 in the Court of the learned Civil Judge (Junior Division), Charaideo, Sonari, against the present appellant as defendant claiming right, title and interest as well as recovery of khas possession over a plot of land measuring 6 bighas 0 katha 9 lechas covered by Dag No.58 of kheraj periodic patta No.33 of village No.4 Goalapathar under Abhoipur Mouja, fully described in the schedule to the plaint and also for declaration that the ryati khatian issued in favour of the present appellant in respect of the said land is illegal, invalid and not binding on the plaintiffs, contending inter alia that the suit land originally belonged to the father of late Sama Urang and Sri Sunuka Urang and after his death, they inherited the property. It has further been contended in the plaint that after the death of the original owner Rangta

3 3 Urang, an application for mutation of the names of the plaintiffs was filed and accordingly their names were mutated in respect of the said land, however, on they came to know that the suit land has been mutated in the name of the defendant No.1/appellant and she claims that she got a ryati khatian in respect of the suit land though according to the plaintiffs no tenancy was either created by their predecessors-in-interest or by them. 3. The suit was contested by the appellant by filing written statement contending inter alia that the suit land has been possessing by her as tenant under the original owner, namely, Rangta Urang since the year 1965, on the basis of which the ryati khatian was issued by the Revenue Authority in respect of the entire suit land and she continued to possess the land even after the death of original owner Rangta Urang. It has further been contended that the plaintiffs thereafter sold the land in her favour on payment of Rs.6,000/- by putting their signatures in the chitha and accordingly her name was mutated in the revenue record in the year On the basis of the pleadings of the parties, the learned Trial Court framed the following issues for decisions:- 1. Is there any cause of action? 2. Is the suit maintainable in its present form? 3. Is the suit barred by limitation?

4 4 4. Whether the suit is properly valued and proper court fee has been paid? 5. Is the suit bad for mis-joinder a proforma-defendant as a party in this suit? 6. Whether the principal defendant got khatian patta in respect of the suit land? 7. Whether the plaintiffs have right, title and interest over the suit land? 8. Whether the plaintiffs are entitled to get the decree as prayed for? 9. To what relief or reliefs the parties are entitled to? Additional Issues: 10. Whether there was relationship or tenant and landlord in between defendant No.1 and Rangta Urang, the late father of the plaintiffs Sooma Urang and Sunuka Urang in respect of the suit land? 11. Whether ryati khatian issued to the defendant No.1 in respect of the suit land under Rangta Urang illegal, void and inoperative against the plaintiffs? 12. Whether the plaintiffs Sooma Urang and Sunuka Urang ultimately on sold the suit land to the defendant No.1 putting their signatures on chitha and thereby a valid title passed to the defendant No.1? 5. The learned Trial Court upon appreciation of the evidences on record as adduced by the parties decreed the suit of the plaintiffs vide judgment dated by declaring the right, title and interest of the plaintiffs over the suit land and also by declaring that the ryati khatian issued in favour of the present appellant, who is the defendant

5 5 No.1 in the suit as illegal, invalid and not binding on the plaintiffs. A decree for recovery of khas possession has also been passed by the learned Trial Court. 6. Being aggrieved the appellant/defendant No.1 preferred Title Appeal No.2/1997 before the learned First Appellate Court, who vide judgment dated dismissed the appeal of the defendant No.1 by affirming the judgment and decree passed by the learned Trial Court. Hence the present appeal. 7. The appeal has been admitted for hearing vide order dated on the following substantial question of law:- Whether the Civil Court can exercise its jurisdiction to entertain the matter relating to occupancy tenant covered by Assam (Temporarily settled Areas) Tenancy Rules, 1972? 8. During pendency of the appeal before this Court, the respondent No.4, Sunuka Urang, who was the plaintiff No.2 in Title Suit No.2/1990, had expired. The appellant, however, did not take any steps for bringing the legal heirs of the said respondent on record of the present appeal and as such this Court vide order dated has dismissed the appeal in so far as the respondent No.4 is concerned, as abated. However, liberty was granted to the appellant to file the application for substitution of the legal heirs together with the

6 6 application for setting aside abatement and for condonation of delay. The appellant, however, did not avail such liberty granted by this Court and no such application for bringing the legal heirs of the respondent No.4 on record has been filed. 9. Before deciding the substantial question of law that has been framed at the time of admission of the appeal, the question which arises for consideration and decision by this Court is whether in view of the abatement of the appeal as against the respondent No.4/plaintiff No.2, the entire appeal preferred by the appellant has abated? 10. I have heard Mr. R.P. Kakati, the learned counsel for the appellant and Mr. A. Dasgupta, the learned counsel appearing for the respondent Nos.1, 2 and It has been contended by Mr. Kakati, the learned counsel for the appellant that as the appellant never challenged the title of the plaintiffs and it is the contention of the appellant that she being a tenant under the plaintiffs, the ryati khatian was issued in her name by the Revenue Authority under the provisions of Assam (Temporarily Settled Areas) Tenancy Act, 1971, abatement of the appeal as against the plaintiff No.2 would not amount to abatement of the entire appeal preferred by the appellant.

7 7 12. Mr. Dasgupta, the learned counsel for the respondent Nos.1, 2 and 3, on the other hand has submitted that since the decree passed by the learned Courts below is not severable and the joint decree in favour of all the plaintiffs, abatement of the appeal against the plaintiff No.2 renders the entire appeal of the appellant abated, when the decree passed in favour of the plaintiff No.2 has attained finality and if the present appeal is allowed and the decree in favour of the appellant is passed, there would be two conflicting decrees in respect of the subject matter of the suit, when it is nobody s case that the plaintiffs were possessing the respective definite shares over the suit land. The learned counsel, therefore, submits that the present appeal deserves to be dismissed on that count alone. 13. It appears from the judgments and decrees passed by the learned Courts below that the suit of the plaintiffs for declaration of right, title and interest and recovery of khas possession has been decreed. A further decree has also been passed declaring the ryati khatian issued in favour of the present appellant as illegal, invalid, inoperative and not binding on the plaintiffs. It is not the case of the plaintiffs and also not the findings of the learned Courts below that the plaintiffs were possessing definite share of the suit land and on the other hand the plaintiffs prayed for the joint decree of right, title, interest and recovery of khas possession. That apart, the ryati khatian, which has been declared as illegal, invalid, inoperative and not binding

8 8 on the plaintiffs was in respect of the entire suit land. The decree passed by the learned Courts below is, therefore, a joint decree, which cannot be severed. 14. Order 22 Rule 4(1) of the Code of Civil Procedure provides that when one or two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Sub-rule (3) of Rule 4 of the CPC provides when within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. Rule 11 of Order 22 provides that the provision of Order 22 shall also apply to appeals and the word plaintiff appears in Order 22 shall include an appellant and the word defendant a respondent, and the word suit an appeal. 15. In the present case, the plaintiff No.2, Sunuka Urang, in whose favour a joint decree was passed by the learned Courts below, as noticed above, died during the pendency of the present appeal. The legal heirs of the said plaintiff having not been brought on record by the appellant, the appeal in so far as the said plaintiff is concerned, stands abated. To decide the question as to whether the entire appeal of the

9 9 appellant has abated, for not substituting the legal heirs of the respondent No.4/plaintiff No.2, the Court is to apply 3(three) tests, namely, (a) when the success of the appeal may lead to the court s coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it would lead to the court s passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed. If any of these conditions is satisfied, the entire appeal stands abated. 16. In the case in hand, as noticed above, the decree which was passed in favour of the plaintiffs is a joint decree and as such is not severable. The decree in so far as the respondent No.4/plaintiff No.2 has attained its finality, as the appeal stands abated for not bringing the legal heirs of the said plaintiff on record. In the event, the present appeal is allowed as against the present respondent Nos.1, 2 and 3, who were the plaintiff Nos.1(Ka) to 1(Ga), there would be a conflicting decree, in respect of the same subject matter of the suit and which would be contradictory to the decree which has already attained finality, in so far

10 10 as the plaintiff No.2 is concerned. That being the position, the entire appeal preferred by the present appellant, has abated for not bringing the legal heirs of the respondent No.4/plaintiff No.2 on record. 17. The appeal is, therefore, dismissed. No costs. 18. The Registry is directed to send down the records. Roy JUDGE