Md. Saijuddin And 2 Ors vs State Of Assam And 4 Ors

Heard Mr. M.U. Mahmud, learned counsel appearing for the appellant. Also heard Mr. PS Deka, learned counsel for respondent Nos.1, 2 & 3 and Mr. MA Seikh, learned counsel appearing for the respondent Nos.4 & 5.

This is an appeal under Section 100 of the Code of Civil Procedure, 1908 (for short “the code”) directed against the judgment and decree dated 28.11.2014, passed in Title Appeal No.9/2012 by the Court of the learned Civil Judge, Goalpara, whereby, the judgment and decree passed by the learned Munsiff No.1, Goalpara in Title Suit No.2/2005 dated 22.05.2019 was set aside.

This Court vide an order dated 11.03.2013 framed the following substantial questions of law:

“Whether the judgment and decree passed by the lower Appellate Court is vitiated being in contravention of Order XLI Rule 31 CPC on account of fact that the Appellate Court below passed the judgment or reversal without recording any independent finding on the material issue No.5 relating to the entitlement of the plaintiff as to the relief prayed for in the suit?”

For the purpose of appreciating as to whether the said substantial question of law arises or is involved in the instant appeal, it would be relevant to take note of the brief facts of the instant case.

The appellants herein as plaintiffs had instituted a suit seeking right title and interest and possession over a plot of land described in the Schedule A & B to the plaint (for short referred to as “the suit land”). Further to that, the plaintiffs also sought for a declaration that the plaintiffs are the owners of the suit land and the defendant Nos.4 & 5, their servants and agents are restrained from entering into the suit land. Another relief was sought for to the effect that the declaration that the Annual Kacha Patta issued in the names of the defendant Nos.4 & 5 with regard to the suit land are illegal.

The claim of the plaintiffs in the said suit is that the plaintiffs father late Kashem Ali Mandal was holding 2 Bighas 16 kathas and 18 dhuras of land at village Haripur Karaikhawa, Circle Balijana under Touzi No.56 pertaining to Dag No.30 & 31 of Khatian No.82. It is the claim of the plaintiffs that the plaintiffs have been possessing the said land from long time past since the death of their father late Kashem Ali Mandal and used to pay the land revenue regularly. The said land has been described at Schedule A to the plaint. As regards the Schedule B land which is a plot of land measuring 16 Bigha, 3 katha, 15 lechas of Touzi No.1, it has alleged that it belonged to one late Sambaru Ram Das. Out of the said holding, land measuring 2 bighas, 10 kathas according to the zamindary system used to be possessed by Late Kashem Ali Mandal, the father of the plaintiff for the last 60/65 years and after the death of Kashem Ali Mandal, the plaintiffs have been possessing the said land as before and have acquired the right and title by virtue of adverse possession.

It has been also alleged in the plaint that in the last survey and Settlement Operation, the suit land which comprised of the Schedule A & B land, were recorded in the name of the plaintiffs and the entry was made in the Chitha Book. It has been further alleged that the defendant Nos.4 & 5 in collusion with the employees of Balijana Circle Officer had illegally managed to obtain Annual Kacha Patta in their names with regard to the suit land. It is under such circumstances that the said suit was filed claiming right title and interest and conformation of possession along with permanent injunction as well for declaration that the Annual Kacha Patta issued in the name of the defendant Nos.4 & 5 was illegal. The said suit was registered and numbered as Title Suit No.2/05.

The defendant Nos.1, 2 & 3 filed their written statement. In their written statement they have alleged that the suit was not maintenable in its present form. It was further alleged that there was no description of Schedule A & Schedule B land in the plaint, though the plaintiffs claimed for land as under Schedule A & Schedule B. It was further stated that there is no such land pertaining to Touzi No.56 Dag No.30-31 at village Haripur Karaikhawa under Balijana Circle. The record reveals that the plot of land measuring 1 bigha, 2 katha, 0 lecha has been recorded in the name of Abdul Barek Mondal and Md. Karop Ali Mondal, both sons of Jubbar Ali Mondal in village Haripur Karaikhawa covered by Dag No.407 and 168 of Miyadi Patta No.63 after the death of Late Kashem Ali Mondal.

The defendant Nos.4 and 5 have also filed their written statement wherein various preliminary objections were taken including that the suit was barred by limitations. It was the specific statement made in paragraph 8 of the written statement that the defendant Nos.4 and 5 got the kacha patta in regard to their land genuinely and perfectly. The kacha patta was issued against the land measuring 1 bigha 2 kathas covered by Dag No.407 (old)/168 (new) of Patta No.63 (new) to the defendant Nos.4 & 5 on 04.09.1997. It was also mentioned that the answering defendants have been the owners and possessors of the land measuring 1 bigha 2 kathas covered by Dag No.407 (old)/168 (new) of Patta No.63 situated at Haripur Karaikhawa for more than 40 years openly, continuously and as a result they have got the kacha patta issued by the authority concerned.

It further appears from the records that pursuant to the objections being taken as regard that there was no Schedule A and Schedule B land in the plaint, amendment was made to the plaint whereby Schedule A and B was inserted pursuant to the order dated 31.05.2006. Thereupon, an additional written statement was filed by the defendant Nos.4 & 5 wherein, it was stated that plaintiff’s father and the father of the answering defendants were two brothers but during their lifetime the father of the defendant Nos.4 & 5 had possessed the suit land exclusively and adversely. It was further mentioned that some years ago, the suit land was eroded by Bramhaputra River and after 4 or 5 years, it became island. During the said period both the father of the plaintiff and the answering defendant died one after another. Since the suit land became island, the answering defendants have been possessing the suit land for about 15 years exclusively. It was further mentioned that during the 1990-1991 settlement operation, Shyama Charan Das abandoned their title to the suit land and consented that the revenue records might be made against the name of the defendant Nos.4 & 5 as they had possessed the suit land for a long period. Accordingly the revenue records have been done in favour of the defendant Nos.4 & 5. It was also mentioned that the plaintiffs have no right, title, interest and possession over the suit land, for which the suit seeking declaration and injunction was not maintainable.

On the basis of the pleadings, the Trial Court framed as many as 7 (seven) issues on 25/07/2006. As the same are relevant for the purpose of the instant appeal, the same are quoted herein below.

(1) Whether there is a cause of action for the suit?

(2) Whether the suit is maintainable in its present form?

(3) Whether the suit is barred by limitation?

(4) Whether the plaintiffs are possessing the suit land and acquired right and title by virtue of adverse possession?

(5) Whether the defendants Nos.4 & 5 illegally obtained Annual Kacha patta?

(6) Whether the plaintiffs are entitled to get a decree of right, title and possession over the suit land?

(7) Whether the plaintiffs are entitled to any other relief in law and equity?

The records reveals that the plaintiffs have examined as many as 6 (six) witnesses besides exhibiting many documents and the defendants side adduced the evidence of only one witness and exhibited the document.

The learned Trial Court vide a judgment and decree dated 22.05.2012, decreed the suit in favour of the plaintiffs holding inter alia that the plaintiffs are entitled to a decree declaring their right, title and interest over the suit land. It was also decreed that the Annual Kacha Patta issued in favour of the Defendant Nos.4 & 5 was illegal. It was also decreed that the plaintiffs are entitled to the possession of the suit land by evicting the defendants their men, etc.

A perusal of the judgment and decree passed by the Trial court shocks the judicial conscience of this Court inasmuch as the most vital issue i.e., the issue no.4 is framed on 25.07.2006 was not at all taken up for consideration. The trial Court most surprisingly decided six issues though seven issues were framed and did not divide the most pertinent issue as to whether the plaintiffs acquired right and title over the suit land by virtue of adverse possession. The record further shows that the trial Court while deciding the issue No.5 & 6 which were originally issue Nos.6 & 7 have decided the said issue Nos.5 & 6 in just one line which is “evidence on record shows that the plaintiff was able to establish its case hence he is entitled to the relief prayed for.”

The defendant Nos. 4 & 5 being aggrieved and dissatisfied with the judgment and decree dated 22.05.2012 preferred an appeal before the Court of the learned Civil Judge at Goalpara, which was registered and numbered as Title Appeal No.9/2012.

The First Appellate Court decided the said appeal issue wise as per the issues which were shown in the judgment passed by the trial court but again omitted to peruse the record to see that the crucial issue as to whether the plaintiffs have been able to prove their right title and interest over the suit land was not taken into consideration. The First Appellate Court held that the suit was not maintainable in absence of a prayer for recovery of possession as it was established on the basis of the evidence, that the plaintiffs were not in possession of the suit land and as such in absence of a reliefs for recovery of possession the suit was not maintainable. It was further held that the plaintiffs have failed to prove that the defendant Nos.4 & 5 have committed any illegality in inserting their names in the record of rights and as such, the appeal was allowed vide the judgment and decree dated 28.11.2014, whereby the suit was dismissed.

I have heard the learned counsel for the parties and given my anxious consideration to the matter.

The substantial question of law which have been framed by this Court is as to whether the judgment and decree passed by the lower Appellate Court is vitiated in view of the contravention of Order XLI Rule 31 of the Code on account of the fact that the Appellate Court below passed the judgment of reversal without recording a finding on the material issue No.5 relating to the entitlement of the plaintiff as the relief prayed for in the suit.

The said questions so farmed in the opinion of this Court is not a question of law which is involved in the instant appeal inasmuch as, the First Appellate Court had allowed the appeal thereby setting aside the judgment and decree passed by the trial Court and the same is in due compliance to the provisions of Order XLI Rule 31 CPC.

The learned counsel for the appellant submits that there is perversity in the findings of both the First Appellate Court and the trial Court inasmuch as, the issue No.4 which was framed on 25.07.2006 was not at all taken into consideration which was the most vital issue to decide as regards the right title and interest of the plaintiffs and this aspect of the matter has also not been taken into consideration by the First Appellate Court.

On the basis of their arguments and with the consent of learned counsel for both the appellant as well as the Respondents before this Court, a further substantial question of law is framed during the course of hearing which is, “Whether the judgment and decree passed by both the Courts below was perverse without taking into account the issue No.4 as was framed on 25.07.2006?”

I have heard the learned counsel for the parties on the said substantial question of law.

It appears from the records and more particularly from the stand of the plaintiff that the plaintiff on account of adverse possession has sought for right title and interest over the schedule land on the basis of adverse possession.

On the other hand, the defendant Nos.4 & 5 have also in their written statement claimed adverse possession over the said suit land and it is on the basis of the said pleadings the issue No.4 was framed which is “Whether the plaintiffs are possessing the suit land and acquired right and title by virtue of adverse possession?” But this particular issue have not been taken into consideration by the First Appellate Court as well as the Trial Court. The said issue is crucial for the purpose of proper adjudication of the suit inasmuch as, without the decision as to whether the plaintiffs have right title and interest over the suit land, the further issues so framed could not have been decided.

Consequently, therefore both judgments i.e., the judgment and decree dated 28.11.2014 as well as the judgment and decree dated 22.05.2012 passed by the Trial Court and the First Appellate Court are set aside and the case is remanded back to the Trial Court i.e., the Court of the Munsiff No.1 at Goalpara, whereby the Court below shall decide the suit in accordance with the issues as framed on 25.07.2006. Accordingly, the Second Appeal stands disposed of.

Before parting with the record, it is necessary to observe that the suit in question was filed in the year 2005. The Trial Court held on 25.07.2006 had framed seven issues. But on account of the carelessness of both the Trial Court and the First Appellate Court, the most crucial issue i.e. Issue No.4 as framed on 25.07.2006 was not at all taken up for consideration and the suit was initially decreed by the Trial Court without ascertaining whether the Plaintiffs had right and title over the suit land by adverse possession. The First Appellate Court had also not looked into the same while passing the impugned judgment and decree. A responsibility is cast upon both the Trial Court as well as the First Appellate Court by law. Order XIV Rule 2 of the Code imposes an obligation upon the Trial Court to decide all the issues. Similarly, Order XLI Rule 31 of the Code also cast an obligation upon the First Appellate Court being the last Court of facts to look into the judgment of the Trial Court as well as the records. Had both the Courts below exercised their obligation cast upon it by law in the manner in which it ought to have been done, this old pending litigation would not have further dragged as this Court in view of there being no decision on the Issue No.4 framed on 25.07.2006, is left with no option but to remand the matter back to the Trial Court to decide afresh as directed hereinabove.

The Registry is directed to send down the records forthwith to the Trial Court i.e., the Court of the Munsiff No.1, Goalpara.

The parties are directed to appear before the Court below on 27.06.2022.