Rita Smith vs Pauline Mazumdar

Mr. N. Chaudhury, J.—By filing this appeal understably under section 104 read with Order 43, Rule 1 (u) of the Code of Civil Procedure, the appellants have challenged the judgment and order dated 21.11.2014 whereby the Title Appeal No. 1/2007 was allowed by the learned District Judge, Sivasagar and matter was remanded to the learned trial court for fresh disposal. The learned first appellate court dismissed the trial court judgment and decree dated 28.08.2001 and issued direction to the learned trial court to give opportunity to the respondent No. 4 of the first appeal to submit a written statement in the suit as well as in the counter claim and thereafter to cross examine the witnesses and also to give her opportunity for adducing evidence.

A perusal of the order sheet shows that on 09.04.2015 this court passed an order under Order 41, Rule 5 of the Code of Civil Procedure staying operation of the impugned judgment and order and also observing that the appeal would be taken up for hearing at the admission stage. Accordingly, learned counsel appearing on both sides have pressed for taking up the matter for disposal.

The appellants of Title Appeal No. 1/2007, as plaintiffs, instituted Title Suit No. 3/1995 on 07.01.1995 in the Court of learned Civil Judge (Sr. Divn.) at Sivasagar stating that the property described in Schedule A to the plaint originally belonged to Mrs. T.F. Smith, wife of late Indu Mohan Smith, who on turn was the common ancestor of all the parties. It is stated that the common ancestor purchased land measuring 1 B 11 L covered by PP No. 774 (old) at Melachakar, Sibsagar for his second son, namely, Rulling Peter Smith but allowed his one son, namely, Malcom Simon Smith to live on the same land. Even Indu Mohan Smith himself lived in Schedule A land during his life time along with Malcom Simon Smith who is predecessor of the plaintiffs. Plaintiffs were borne and brought up in the house of Schedule A land. Although Rulling Peter Smith was the predecessor of the defendants, he was allowed a strip of land measuring 15 x 20 hands (Hat) from the Schedule A land for doing his business and thus the land was covered by Schedule C land. T.F. Smith made a Will on 12.04.1938 admitting possession of the plaintiffs in Schedule B land and thus except Schedule C land, the remaining land of Schedule A which is fully described in Schedule B land, remained in uninterrupted possession of the plaintiffs. They have got their own dwelling house with permanent structure as well as business house on the same and the defendants do not have any right, title and interest in respect thereto except possession over the Schedule C land. But when dispute arose between the parties in regard to title and possession, the plaintiffs instituted the suit for declaration of their right, title and interest along with proforma defendant No. 4 over the entire suit land on the basis of their long and uninterrupted possession.

On being summoned, the defendants No. 1, 2 and 3 appeared and submitted written statement denying the pleaded story of the plaintiffs. The defendants further disclosed in paragraph 7(i) of the written statement that the original owner late T.F. Smith gifted entire property described in Schedule A to the plaint to her second son Rulling Peter Smith by registered Gift Deed dated 01.07.1949 and thus he became absolute owner of the land. Accordingly, his name was duly mutated in the records of rights and a new patta has also been issued by the Government in his favour in course of re-settlement of operation. Rulling Peter Smith died in the year 1969 leaving behind the defendants as his legal heirs and this is how they are in possession of the Schedule A land. The defendants, therefore, prayed for a decree by way of a counter claim for eviction of the plaintiffs from the suit land. The plaintiffs submitted written statement denying the case of the counter claim and accordingly the learned trial court framed as many as 11 issues which are quoted below :-

Whether the suit is maintainable in law?

Whether there is cause of action for the suit?

Whether the plaintiffs have right to sue?

Whether the plaintiffs have any right, title and interest in the land of schedule ''B'' of the plaint?

Whether Late Thaira Florence Smith gifted the land of schedule ''A'' of the plaint to Late Rulling Peter Smith, the father of the defendants as contended by them in their W.S.? If so, whether the defendants are the absolute owner and full title holder of the land of schedule ''A'' of the plaint?

Whether the plaintiffs were in permissive occupation of about 2 Kathas of land of schedule ''A'' of the plaint as contended by the defendants?

Whether the defendants have their possession over a part of the land of schedule ''A'' as claimed by them in their W.S.?

Whether the plaintiffs after filing of the suit extended their possession over the vacant portion of the land of schedule ''A'' of the plaint?

Whether the plaintiffs are entitled to reliefs claimed in the suit?

Whether the defendants are entitled to Khas-possession of the land specifically shown in schedule of their W.S. cum counter claim?

To what reliefs the parties are entitled under law and equity?

Plaintiffs examined 6 witnesses whereas the defendants examined 3 witnesses. Both sides adduced documentary evidence. While plaintiffs exhibited the Will as Ext. 1, the defendants exhibited the registered gift deed as Ext. J. It is to be mentioned here that Ext. 1 Will was never probated as the testatrix during her life time disposed of the Will property by way of gift deed in favour of her second son late Rulling Peter Smith. The learned trial court, after considering the materials available on record, by his judgment and decree on 28.08.2001, dismissed the suit of the plaintiffs and decreed the counter claim of the defendants on the basis of the Ext. J gift deed.

The plaintiffs challenged the aforesaid judgment and decree of the learned trial court before this court by preferring RFA No. 3/2002. However, due to enhancement of pecuniary jurisdiction of the learned District Judge, the appeal was thereafter transferred to the learned District Judge, Sibsagar whereupon it was numbered as Title Appeal No. 1/2007. The respondent No. 1 of the present appeal who was the proforma defendant No. 4 in the suit and no claim was made by the plaintiffs against her. She filed an application during pendency of the T.A. No. 1/2007 vide Misc.(J) Case No. 50/2010 praying for her transposition as plaintiff which, however, was rejected by the learned District Judge and CRP No. 44/2012 preferred there against before this court also subsequently failed. The respondent No. 4 thereafter filed a review petition being Review Petition No. 23/2012 and it was also dismissed. It has been brought to the notice of this court vide MC No. 1036/2015 that proforma defendant No. 4 (Pauline Mazumdar) after having failed to get transposed, as appellant, filed an independent appeal being Title Appeal No. 1/2012 accompanied by an application under section 5 of the Limitation Act. This application was numbered as Misc.(J) Case No. 33/2012. The learned first appellate court dismissed the same by his judgment and order dated 30.04.2012. The proforma defendant No. 4 thereafter approached this court by Civil Revision No. 163/2012 and this court rejected the revision petition on 09.05.2012. The proforma defendant No. 4 was not deterred by the dismissal of her revision petition by this court and approached the Hon''ble Supreme Court vide SLP No. 22301/2012. The SLP was ultimately dismissed on withdrawal and thus the order passed by the learned District Judge refusing to entertain the appeal filed by the proforma defendant No. 4 attained finality.

Be that as it may, the learned first appellate court after hearing the parties at length, passed the impugned judgment and order on 21.11.2014 thereby refusing to enter into merit. The learned first appellate court set aside the judgment of learned trial court holding that no notice was served on proforma defendant No. 4 and accordingly directed the learned trial court to give opportunity to her to file written statement against the plaint as well as the counter claim and also to adduce evidence, if necessary. This judgment and order dated 21.11.2014 has been called in question in the present appeal. This appeal ought to have been registered under Order 43, Rule 1 (u) but inadvertently the same was registered as second appeal. Be that as it may, this shall be considered to be an S.A.O. and accordingly shall be re-numbered and consequently there shall be no necessity of framing of decree on the basis of the present judgment.

I have heard Mr. GN Sahewalla, learned senior counsel assisted by Ms. B Sarma for the appellants and Mr. PP Baruah, learned counsel for the respondents No. 3, 5 and 6. None appears for the other respondents although services on respondents appears to have been accepted by this court earlier.

Mr. GN Sahewalla, learned senior counsel, appearing on behalf of the appellants, submits that the proforma defendant No. 4 was all along staying with the plaintiff No. 4 and this is specifically stated in paragraph 34 of the plaint. Paragraph 34 of the plaint is quoted below:-

"34. That the defdt. No. 4 Mrs. Polin Mazumdar is a sister of the plaintiffs and is living with plaintiffs No. 4 and she has no adverse interest, against the plaintiff and as such she is made a proforma defendant."

The plaintiffs did not make any prayer against the proforma defendant No. 4 and described her to be one of their sisters. From perusal of the plaint it appears that the basis on which the plaintiffs prayed for right, title and interest is inheritance accompanied by long and uninterrupted possession. The defendants, on the other hand, came forward with a different story and pleaded that original owner had executed a registered gift deed in favour of their predecessor and on his death in the year 1969, they inherited the property exclusively. They also obtained mutation in the revenue records. The learned trial court on the basis of preponderance of probability held that defendants did acquire right, title and interest with respect to the suit land on the basis of the aforesaid gift deed (Ext. J) and that plaintiffs did not acquire any right, title and interest either on the basis of inheritance or on the basis of long and continuous possession. The subsequent conduct of proforma defendant No. 4 is also noticeable. Initially she filed an application before the learned first appellate court to get her self transposed as an appellant which not having been allowed, she preferred an appeal by herself being T.A. No. 1/2012. Memo of this appeal was accompanied by an application under section 5 read with Order 41, Rule 3A of the Code of Civil Procedure but the learned first appellate court was not satisfied with the cause shown for not preferring the appeal earlier and accordingly dismissed the appeal. This dismissal of the appeal consequent to rejection of application praying for condonation resulted in merger of the judgment of the learned trial court with the subsequent order passed by the learned first appellate court in Misc.(J) Case No. 33/2012 and thus it became appealable before the High Court under section 100 of the Code of Civil Procedure. But the proforma defendant No. 4 appears to have preferred a revision before this court and the same was rejected on 09.05.2012 and thus the order passed by the learned first appellate court in T.A. 1/2012 attained finality. So, the claim of the proforma defendant No. 4 vis-a-vis the trial court judgment and decree has attained finality with the judgment of this court passed in aforesaid revision petition. Apart from that, it is stated in the aforesaid Misc. Case that subsequent to passing of the judgment and decree by the learned trial court, proforma defendant No. 4 appeared before the Executing court in Title Execution Case No. 4/2008 of the court of learned Civil Judge, Sibsagar through an application under section 47 read with Order 21, Rule 97 of the Code of Civil Procedure. It is stated at the bar that the said proceeding is pending. It is further stated that the said proforma defendant No. 4 has also instituted a separate suit being T.S. No. 16/2009 in the court of learned Civil Judge, Sibsagar along with a Misc.(J) Case No. 85/2009 praying for injunction and the same suit is pending.

Mr. GN Sahewalla, learned senior counsel appearing for the appellants, submits that aforesaid suit and the proceeding under Order 21, Rule 97 of the Code of Civil Procedure relates to 15 L of land covered by the suit, dag and patta within specific boundaries and he has instruction to forego his claim with respect to the property insofar as the present proceeding is concerned, subject, however, to the outcome of the T.S. 16/2009. Since the appellants have abandoned their claim with respect to the 15 L of land and the proforma defendant No. 4 also appears to have been litigating for the same 15 lechas of land before the competent court, under such circumstances proforma defendant No. 4, who is the respondent No. 1 herein cannot be said to be a necessary party for the purpose of the present appeal, more particularly, when her prayer for preferring a separate appeal as well as her transposition as appellant was refused by the learned court earlier. If it is found that the proforma defendant No. 4 is not a necessary party under the changed facts and circumstances, in that event, modifying the trial court judgment and decree for defect of parties or for non service of notice on proforma defendant No. 4 may tentamount to violation of section 99 of the Code of Civil Procedure.

The learned first appellate court apparenetly has refused to enter into the merit of the case and so there is no finding anywhere that the materials available on record are not sufficient to enable a proper adjudication of the appeal on merit. Under Order 41, Rule 24 of the Code of Civil Procedure, an appeal can be remanded only if the first appellate court is not in a position to decide the appeal on merit on the basis of the materials available on record. This being the pre-condition for exercising power under Order 41, Rule 24 or 25 of the Code of Civil Procedure, remand of the appeal by the first appellate court in the instant case, does not appear to be in compliance with the aforesaid provisions of law. Accordingly, the following substantial question of law is framed and the learned counsel of both sides are heard:-

Whether the learned first appellate court committed error in remanding the appeal to the trial court by setting aside the original judgment and decree?

The suit of the plaintiffs was dismissed by the learned trial court on being satisfied that the plaintiffs could not prove their right, title and interest with respect to the suit land. The basic claim of the plaintiffs was based on inheritance as well as long and continuous possession. However, in the whole body of the plaint there was no allegation against the proforma defendant No. 4. Even in paragraph 34 of the plaint it was stated that the proforma defendant No. 4 was jointly living with the plaintiff No. 4 and perhaps this is why the plaintiffs did not take any step for service of notice on this defendant. Subsequently proforma defendant No. 4 appears to have come to rescue of the plaintiffs by making prayer for her transposition as an appellant. She has also filed a proceeding under Order 21, Rule 97 of the Code of Civil Procedure apart from instituting a separate suit being T.S. No. 16/2009. The separate appeal preferred by her being T.A. No. 1/2012 ended in dismissal. Moreover, she is claiming to be in possession of 15 L of land under suit, dag and patta and the present appellants appear to have abandoned their claim against this part of the land for the purpose of the present proceeding and so the right, title and interest with respect to the aforesaid 15 L of land being the subject matter of the T.S. No. 16/2009 is expected to be decided in due course. Consequently, the proforma defendant No. 4 is neither affected nor can be aggrieved for the judgment and decree passed by the learned trial court for which the present appeal is pending. The learned first appellate court, under such circumstances, ought to have decided the appeal on merit considering the case of the appellants in T.A. No. 1/2007 and the respondents therein. The sole substantial question of law is, accordingly, decided in favour of the present appellants. The impugned judgment and order passed by the learned first appellate court remanding the matter to the trial court is hereby set aside and the matter is remitted to the learned first appellate court for deciding the appeal on merit keeping in view the observations made in the appeal.