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Judgment
Heard Mr. SK Talukdar, learned counsel for the appellants as well as Mr. Giasuddin, learned counsel for the respondents.
The respondent plaintiffs have preferred the Title Suit No. 58 of 2002 in the Court of learned Civil Judge, Jr. Division at Tezpur, amongst others, claiming for a declaration of their exclusive right to occupy the suit land as its burial ground with a consequential relief of recovery of khas possession by evicting the appellant defendants with a further prayer for a decree of permanent injunction restraining and prohibiting the appellant defendants and their men, agents and associates from erecting any further structure on the suit land and from disturbing the exclusive and peaceful use and enjoyment of the land by the respondent plaintiffs.
A reading of the schedule of the suit land provided in the plaint goes to show that it pertains to a land measuring more or less 2 katha out of 2 bighas 4 kathas 12 lechas of Sarkari land reserved for Roman Catholic Kabbarkhana, covered under Dag No.314/2664 (Old) 851/861 (New) of Tezpur Town (2nd part) at Lalmati, Mouza: Mahabhairab, District-Sonitpur.
Before going further, we have put a question to the learned counsel for the respondent plaintiffs as to whether there is any provision under the Assam Land and Revenue Regulation Act providing for land being reserved for amongst other, Roman Catholic Kabbarkhana or be that as it may, for any other private use. The fair answer given is 'no' and we are also of the view that there is no such provision in the Assam Land and Revenue Regulation and therefore, the mentioning of the suit land in the schedule would have to be read that under the Land Revenue Regulation, there cannot be any government land reserved for Roman Catholic Kabbarkhana.
Be that as it may, we understand that if the suit land mentioned in the schedule is a Government land, a question definitely would arise as to whether the respondent plaintiffs are entitled to a declaration that they have an exclusive right to occupy the suit as it is a burial ground with consequential relief. Any such declaration that they have an exclusive right to occupy the land would virtually amount to a declaration in favour of the respondent plaintiffs for a settlement of the land in question in their favour, which according to us would be beyond the jurisdiction of civil court to so declare.
The exclusive right to occupy any government land can only be provided by the land revenue authorities by following the due procedure of law and it cannot be a matter for a declaration by a civil court. But having said so, we take into consideration also the other prayer made in the plaint as regards recovery of khas possession of the suit land in favour of the respondent plaintiffs, which according to them had been encroached upon by the appellant defendants.
In the written statement, the appellant defendants had taken the stand that the suit is barred by limitation and secondly, the defendant appellants are in possession of the suit land and were using the same for the purpose of a temple of Sri Sri Durga and Sri Sri Kali by constructing a structure having a pucca floor with wooden post and CI sheet roof along with some other structures which are used for the purposes incidental to a temple and further that the suit land had been in their possession for the last 30/31 years. Although several other stands had been taken by the respondent plaintiffs in their plaint and by the appellant defendants in their written statement, but for the purpose of adjudication of the issues involved in the present appeal, we are of the view that all such submissions need not be taken on record for the purpose of the present order. The written statement was admittedly filed in the year 2003 and therefore, the stand that the appellant defendants were in possession of the land for a period which would be 30/31 years prior to the year 2003.
Be that as it may, in the Judgment and Order, dated 30.08.2008 in Title Suit No.58 of 2002, the learned Munsiff, Tezpur while deciding the Issue No.4 had arrived at its conclusion that "I find that the Defendant Mandir performed Puja since the year 1984 over the suit land and the defendants are in possession of the suit land since 1984. Plaintiff filed this suit in the year 2002 i.e. after 17 years of plaintiff's dispossession from the suit land. As per provision of Article 64 of the limitation Act the limitation period is 12 years. Hence I have nothing to hesitated to hold that the plaintiff has not filed this suit within limitation period and as such the suit is barred by law of limitation as per provision of Article 64 of the limitation Act. Accordingly this issue is decided in affirmative and against the plaintiff."
From the aforesaid finding arrived at by the learned Munsiff, we have to understand that the conclusion so arrived was that the respondent plaintiffs were in possession of the suit land since the year 1984, if it is so, the respondent plaintiffs had instituted the suit after 17 years of their dispossession and the period of limitation for the purpose being 12 years, the suit is barred by limitation as per the provisions of Article 64 of the Limitation Act.
By splitting the two findings arrived at by the learned Munsiff, the first being the respondent plaintiffs being in possession of the suit land since the year 1984 and the second being that the suit was instituted after 17 years of their dispossession, we take note of that the two separate findings were arrived at, although the second finding may be consequential and dependent upon the first finding. By the Judgment, dated 30.08.2008, the suit was dismissed, amongst others on the ground of it being barred by limitation against which, an appeal was filed by the respondent plaintiffs before the learned Civil Judge, Tezpur, which was registered as Title Appeal No. 31 of 2008.
In the appeal, Ground No. 8 that was taken is as follows:
"For that when there is no evidence on record to prove the possession of the Respondents-Defendants in the suit land since 1984 the learned Court below wrongly held that the Defendants-Respondents are in possession of the suit land since 1984 at the time of deciding issues No.4."
When we read the Ground No. 8, it is apparent that the said ground pertains to the first finding of the learned Munsiff as indicated above. As regards the defendant appellants having been dispossessed by the respondent plaintiffs in the year 1984, a ground was taken in the appeal that there was no evidence on record to prove that the respondent plaintiffs were in possession of the suit land since the year 1984 or in other words that the dispossession had taken place in the year 1984.
As we have already expressed our view that the second finding as regards the suit being barred by limitation is consequential upon the first finding, therefore, any decision by the appellate Court as to when the dispossession had taken place may have its direct implication even on the second finding that the suit was barred by limitation. But however, no separate ground had been taken in the appeal that the conclusion arrived at as regards the suit being barred by limitation is either bad in law or in facts.
In premises of the Ground No. 8 being taken in the appeal, we are of the view that it was incumbent upon the appellate court to arrive at its own finding as to whether there was any evidence on record to prove that the respondent plaintiffs were in possession of the suit land since 1984, which again in other words would also mean as to whether the dispossession of the respondent plaintiffs had taken place in the year 1984.
By the Judgment and Order, dated 08.04.2010, the learned Civil Judge, Sonitpur-Tezpur had given a final consideration to the Title Appeal No.31 of 2008. In paragraph 8 of its judgment, the learned appellate court had recorded a submission of the learned counsel appearing for the respondent plaintiffs that the learned trial court ought not to have held that the suit of the respondent plaintiffs is time barred as the defendant appellants have failed to prove their adverse possession over the suit land.
We are of the view that the such submission on behalf of the respondent plaintiffs would not be of any relevance, inasmuch, as no ground was taken in the appeal as regards the finding of the learned trial court in respect of the suit being barred by limitation. But again upon going through the judgment of the appellate court, we do not find any finding being arrived at as regards the question of the suit being barred by limitation. The learned appellate court by referring to several judgments to various questions of law, more particularly, with regard to framing of issues, arrived at its conclusion that there was no denial by the appellant defendants in their written statement that the suit land was reserved for burial ground for the Roman Catholic Christian Community. Accordingly, the learned appellate court framed an additional issue which is as follows:
"Whether the defendants encroached over 2 kathas of land out of the 2 bighas 4 kathas 12 lessas of land under New Dag No.861 of Tezpur town settled with Roman Catholic Churches for the purpose of burial ground during the month of July, 2000?
We are unable to accept the procedure adopted by the learned appellate court as well as the conclusion arrived at in its Judgment dated 08.04.2010 to the extent that the additional issue framed is whether the appellant defendant had encroached upon the suit land which was settled with the Roman Catholic Christian Community for the purpose of burial ground during the month of July, 2000. If the suit itself had been dismissed on the ground of it being barred by limitation, such finding as regards the suit being barred by limitation being not interfered, we are of the view that there cannot be any further issue as regards whether the defendant appellants had encroached the suit land or not. Such issue can be framed and decided only when the suit is found to be maintainable in law and not when it is barred by limitation. Hence, without arriving at a conclusion that the finding of the learned trial court as regards the suit being barred by limitation is bad, the framing of an additional issue on facts as to whether there was any encroachment by the appellant defendant would not be sustainable both on law as well as on facts. Hence, to that extent we interfere with the Judgment dated 08.04.2010 of the learned Civil Judge, Sonitpur- Tezpur in Title Appeal No.31 of 2008. But at the same time, we also take note of that as there was a specific ground been taken , we are also of the view that it was incumbent upon the learned appellate court to take on board the said ground taken by the respondent plaintiffs and by framing an issue therein, it ought to have been decided.
Such a decision on the issue that can be relatable to Ground -No.8 would also be relevant inasmuch, as if there was no evidence on record to prove the possession of the appellant defendants of the suit land since 1984, the consequential finding that the suit is barred by limitation would also be incorrect and unsustainable.
But on the other hand, if the conclusion to be arrived at would be that there was adequate evidence on record to prove the possession of the appellant defendants of the suit land since 1984 which in other words would mean that the alleged dispossession had taken place in the year 1984, the consequential findings of the learned trial court that the suit is barred by limitation would remain sustainable and would not require any interference.
At the same time, we again clarify that the question whether the suit is barred by limitation does not entail an independent issue to be framed on it ,inasmuch, as no such ground was taken by the respondent plaintiff in the Title Appeal No.31 of 2008. Therefore, the said issue can neither be framed nor be independently decided based upon any other material on record or any other law. But at the same time, as the issue of limitation would be a consequence of the issue as to whether the appellant defendants had been possession of the suit land since 1984 or whether the alleged dispossession took place in the year 1984 and the question of possession from 1984 being a specific ground taken in the appeal which entails framing of an issue thereof, we are of the view that a decision on such issue would be a requirement in the appeal for a just and proper adjudication.
Accordingly, we set aside the Judgment dated 08.04.2019 of the learned Civil Judge, Sonitpur-Tezpur in Title Appeal No.31 of 2008. Having set aside the Judgment and order, we now remand the matter back to the learned Civil Judge, Sonitpur-Tezpur to frame an issue based upon Ground No.8 of the memo of appeal as to whether there is evidence on record as to whether the appellant defendants were in possession of the suit land from the year 1984 and based upon the existing materials available on record to decide the same. In the event, the issue is decided that there is no such evidence on record, consequential sustainability of the finding of the trial court that the suit is barred by limitation would also require re-consideration. But on the other hand, if the finding of the learned appellate court would be that there were evidences on record to show that the appellant defendants were in possession of the suit since 1984, no further adjudication on the question of the suit being barred by limitation would be required and the issue raised in Ground No.8 of the memo of appeal would stand answered as such. We further provide that apart from the aforesaid aspect as to deciding the issue based on the evidence available on record as to whether the appellant defendants were in possession of the suit land from the year 1984, the learned appellate court shall not venture into any other issue or any other aspect of the matter for its consideration. In terms of the above, the appeal stands allowed as indicated above.
It is clarified that the consequence of the Judgment dated 08.04.2010 of the learned Civil Judge, Sonitpur-Tezpur in Title Appeal No.31 of 2008 being interfered with, the Judgment and order, dated 30.08.2018 of the learned Munsiff in Title Suit No.58 of 2002 shall remain operative till such time, the learned appellate court arrives at its adjudication or till such time, learned appellate court takes it upon itself to pass any other order. The interim order, dated 19.07.2010 passed in Misc. Case No. 2162 of 2010 stands vacated.
Send back the LCR to the learned court below.