Dismissed

Sri Bhaskar Baishya v. Smti. Usha Rani Baishya and 3 Ors.

Gauhati HC6 Feb 2020I.A.(Civil)/3425/2019

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed an application seeking to condone a 24-day delay in filing a regular first appeal. The court rejected arguments based on limitation exceptions, finding earlier proceedings were not prosecuted in good faith, and upheld the civil court's power to reject a plaint that claims rights over benami property.

What did the court decide?

The interlocutory application (IA(Civil) 3425/2019) for condoning delay in filing the Regular First Appeal stands dismissed.

Sri Bhaskar Baishya Vs Smti. Usha Rani Baishya and 3 Ors. — Property and Title | Gauhati HC (2020)

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GAHC010228342019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : I.A.(Civil) 3425/2019

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1:SRI BHASKAR BAISHYA S/O- LATE HANGSHA NATH BAISHYA, H/NO. 8, SAMANNAY PATH, CHRISTIAN BASTI, DISPUR, P.O. GUWAHATI- 781005, DIST.- KAMRUP(M), ASSAM.

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VERSUS

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1:SMTI. USHA RANI BAISHYA AND 3 ORS. W/O- LATE HANGSHA NATH BAISHYA, H/NO.8, SAMANNAY PATH, CHRISTIAN BASTI, DISPUR, P.O. GUWAHATI- 781005, ASSAM.

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2:SRI PRANAB JYOTI BAISHYA S/O- LATE HANGSHA NATH BAISHYA FLATNO. A-1083 DLF WESTERN HEIGHTS AKSHAYANAGAR P.O. BANGALURU- 560068 KARNATAKA. 3:SRI HEMANATA KUMAR BAISHYA S/O- LATE HANGSHA NATH BAISHYA H/NO. 72 SENDURI ALI PATH ZOO ROAD NABIN NAGAR P.O. GUWAHATI- 781032 DIST.- KAMRUP(M) ASSAM 4:SMTI. SABITA PATGIRI W/O- SRI AMIYA KUMAR PATGIRI H/NO. 24 BYE LANE NO. 1 LAKHIMI NAGAR NAMGHAR PATH

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P.S. HATHIGAON P.O. GUWAHATI- 781019 DIST.- KAMRUP(M) ASSAM

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Advocate for the Petitioner : MR. N DHAR Advocate for the Respondent : MR. S SARMA

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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Date : 06-02-2020

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JUDGMENT & ORDER (ORAL)

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Heard Mr. N. Dhar, learned counsel for the applicant/appellant and Mr. S Sarma, learned counsel for the opposite party No.1/respondent.

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The plaintiff in Title Suit No.23/2018 instituted in the Court of the learned Civil Judge No.3, Kamrup (M), Guwahati is related to the defendants in the manner that the defendant No.1 is the mother of the plaintiff, the defendant No.2 and 3 are the brothers of the plaintiff and the defendant No.4 is the sister of the plaintiff. In paragraph 2 of the plaint, the plaintiff took the plea that the father of the plaintiff Hansha Nath Baishya, who died on 04.10.2017 leaving behind the plaintiff and the defendants had in the year 1992 purchased a plot of land measuring 2K of Dag No.1101 K.P Patta No.108 of revenue village Betkuchi, Mauza Beltola in the district of Kamrup (Metro) in the name of his wife being the defendant No.1. The further plea taken was that the purchase was made for the benefit of his wife and the children, which also includes the plaintiff. It was pleaded that the defendant No.1 is a house wife and as such has no income of her own to purchase the plot of land. Thereafter, it was pleaded as follows:-

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“The defendant No.1 is mere a Benamidar of the said land. As such defendant No.1 is not the absolute owner of aforesaid land. The defendant No.1 is a co-owner/co-sharer along with other legal heirs and representatives of plaintiff’s father, Late Hansha Nath Baishya. By virtue of land purchase, the defendant No.1 is not the absolute owner of said 2 kathas of land.”

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The specific pleading was that the defendant No.1 is a mere Benamidar of the suit land and as such is not the absolute owner of the land. Thereupon pleadings are made that

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the defendant No.1 is a co-owner and co-sharer along with the other legal heirs and representatives of the father of the plaintiff. However, based upon such purchase of the land in the name of the defendant No.1, the revenue authorities issued separate Patta in the name of the defendant No.1 in respect of 1K-15L of land.

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Further pleading of the plaintiff as stated in paragraph 5 of the plaint iss that for the purpose of construction of a G+2 building over the schedule land to be constructed by the plaintiff, the defendant No.1 by swearing an affidavit (NOC) on 27.01.2014 had allowed the plaintiff to construct the RCC building by giving a no objection from her and other family members towards such construction by the plaintiff. According to the plaintiff, in such manner, he had constructed the RCC building and thereafter rented it out to some tenants and the rent in liu of such tenancy was paid to the defendant No.1. A specific plea was taken in paragraph 12 of the plaint that on 14.12.2017, the defendant No.2 came to the suit premises and threatened the tenants of the plaintiff by asking them to vacate their respective tenanted premises on or before 30.12.2017 or else they would forcibly be evicted therefrom. On the basis of such pleadings, the Title Suit 23/2018 was instituted with the following prayers:-

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“(A) A decree declaring the right, title interest and possession of the plaintiff to the effect that he plaintiff is entitled to use and enjoy the suit premises as described in Schedule B below, as the plaintiff with due and valid permission/NOC given by the defendant No.1 as well as other defendants the plaintiff constructed G+2 RCC building over the suit premises and that the main defendants have no right or authority to raise objection in any manner whatsoever in using and enjoying the suit premises as described in the Schedule B appended herein below.

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(B) A decree of permanent injunction may be passed against the main defendants, their agents and employees from interfering and disturbing the plaintiff in using and enjoying the suit premises, as described in Schedule-B below and further restraining the main defendants from causing any damage to the existing building and interfering with the peaceful possession of the plaintiff over the

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suit premises as described in the Schedule-B below.

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(D) Any other relief or reliefs to which the plaintiff is entitled to under law and equity.”

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In course of the proceeding in the title Suit, the defendants entered appearance, submitted their written statement along with the documents to be relied upon. When we examine the prayer made in the plaint, it is noticeable that the plaintiff had sought for a decree declaring a right, title, interest and possession to the effect that the plaintiff is entitled to use and enjoy the suit premises as described in Schedule B to the plaint i.e. the first and second floor of the G+2 RCC building. Further prayer was for a decree of permanent injunction against the defendants restraining them from interfering and disturbing the plaintiff from using and enjoying the schedule B suit premises.

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Apart from the written statement, the defendant No.1 had also filed petition No.1829/18 under Order VII rule 11(a) and (d) read with Section 151 of CPC for the rejection of the plaint, which was registered as Misc (J) Case No.378/2018. The learned Civil Judge No.3, Kamrup (M) in Misc(J) Case No.378/2018 by the order dated 06.08.2018 arrived at a satisfaction that the pleadings in paragraph 2 of the plaint, to the extent that the defendant No.1 is a Benamidar in respect of the Schedule-A land over which the Schedule B RCC premises was constructed, would render the suit instituted by the plaintiff to be not maintainable under Section 45 of the Prohibition of Benami Property Transactions Act, 1988 (as amended from time to time) [in short Act of 1988]. By arriving at its conclusion that the suit would be not maintainable under Section 45 of the Act of 1988, the Misc (J) Case No.378/2018 of the defendant No.1 under Order VII Rule 11(a) and (d) read with Section 151 of CPC was allowed.

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Against the order dated 06.08.2018 in Misc (J) Case No.378/2018, the appellant initially preferred a revision under Section 115 of the CPC before this Court which was registered as CRP 154/2018. The said revision petition was filed on 03.10.2018. Subsequently, by an order dated 18.02.2019, the CRP 154/2018 was withdrawn by taking the plea that a revision would not maintainable against an order passed under Order VII rule 11

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of the CPC. During the pendency of CRP 154/2018, which was withdrawn by the order dated 18.02.2019, the appellant filed an appeal against the same order dated 06.08.2018, which was registered as FAO SL No.1129/2019. The FAO Sl No.1129/2019 was also subsequently withdrawn by the appellant as per the order dated 09.09.2019. Thereafter, the present regular first appeal was filed bearing RFA Sl No.13840/2019. Along with the regular first appeal being so filed, IA(Civil) 3425/2019 was filed for condoning a delay of 24 days in filing the accompanying RFA Sl No.13840/2019. The IA(Civil) 3425/2019 is being presented for a consideration by the Court by the applicant/appellant for condoning a delay of 24 days as stated in the interlocutory application.

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Mr. S. Sarma, learned counsel for the defendant No.1 submits that ordinarily a delay of 24 days would not have been objected for it to have been condoned, but considering the conduct of the applicant/appellant and also considering the facts and circumstances leading to the filing of the IA(civil) 3425/2019, an objection is being raised.

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In paragraph 9 of the interlocutory application for condoning the delay, an explanation is provided as to how the applicant/appellant arrived at their conclusion that the delay in filing the accompanying RFA would be 24 days, which is extracted below:-

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“1) Date of the impugned order passed in = 6.8.2018 Title Suit No.23 of 2018 by the learned Court below 2) The appeal filed before this Hon’ble Court = 16.9.2019 ________________________________________________________ Total Delay = 405 days Limitation period (-) = 90 days --------------------315 days Time taken for furnishing (-) = 14 days The certified copy by the -------------------Learned Court below 301 days Time taken for prosecuting (-) 277 days CRP?FAO erroneously to be Deducted under section 14 of The Limitation Act. Delay after the deduction under the law --------------Total= 24 days” 10. A reading of paragraph 9 providing for the explanation in arriving at the delay of 24

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days shows that the 277 days that had passed by during the pendency of the CRP and the first appeal order that were filed by the applicant/appellant would not be counted towards the delay in preferring the accompanying first appeal.

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It is also taken note of that in paragraph 5 of the interlocutory application for condoning the delay, a stand was taken that the CRP 154/2018 was filed by the applicant/appellant erroneously due to wrong advice of the set of learned counsel, who had earlier appeared for the applicant/appellant. In paragraph 7 it had been stated that the earlier set of learned counsel, who had appeared for the applicant/appellant thereafter again erroneously filed an appeal, which was referred as FAO Sl No.1129/2019.

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It is further taken note of that in paragraph 4 of the interlocutory application for condoning the delay, a stand has been taken that by the order dated 06.08.2018, the learned Civil Judge No.3, Kamrup(M), Guwahati erroneously held that the suit filed by the applicant/appellant is barred under Section 45 of the Act of 1988 and as such it was incorrect to exercise powers under Order VII Rule 11 of the CPC to reject the plaint, which had resulted in failure of justice. Paragraph 4 is extracted as under:-

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“4. That the learned Civil Judge No.3, Kamrup (M) district, Guwahati thereafter, without proper appreciation of the facts and circumstances of the case as per the impugned order dated 6.8.2018 passed in the case was pleased to reject the plaint filed in the above suit erroneously holding that the suit filed by the petitioner/appellant is barred by law under section 45 of the Prohibition of Benami Property Transactions act, 1988, and so also under section 9 of the Code of Civil Procedure although the powers under Order 7 Rule 11 of the Code of Civil Procedure cannot be exercised for rejection of the plaint filed in the above suit merely as because of the few inconsistent pleas made in the plaint filed in the above suit by the petitioner/plaintiff, which has resulted in the failures of justice in the case.”

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Again in paragraph 11, a specific stand has been taken that under facts and circumstances stated therein, meaning thereby the facts and circumstances stated amongst other in paragraphs 4, 5 and 7 of the application, the court may be pleased to condone the delay of 24 days.

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Mr. N. Dhar, learned counsel for the applicant raises the contention that under Section 14 of the Limitation Act of 1963, the period of 277 days as regards the earlier CRP 154/2019 and FAO Sl No. 1129/2019 ought not be taken into consideration towards computing the delay in preferring the application and the said time is required to be excluded. If the periods of 277 days are excluded, the resultant delay would be 24 days which according to the applicant is required to be condoned.

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Mr.S. Sarma, learned counsel for the defendant No.1 had strongly objected to the delay being condoned and for the purpose had brought on record the particulars of filing and disposal of CRP 154/2018 and FAO Sl No.1129/2019. By referring to such materials, Mr. Sarma contends that the appellant had made an incorrect statement in paragraph 7 of the application for condoning the delay by stating that the FAO Sl No.1129/2019 was filed after the withdrawal of the CRP 154/2018. Mr. Sarma refers to the two orders of withdrawal passed by this Court in CRP 154/2018 and FAO Sl No.1129/2019 and states that the date of filing of the CRP 154/2018 was 03.10.2018 and it was withdrawn on 18.02.2019 whereas the FAO Sl No.1129/2019 was filed on 28.01.2019 and it was withdrawn on 09.09.2019. In other words, when the FAO Sl No.1129/2019 was filed, the CRP 154/2018 was still pending. Accordingly, it could not have been that the FAO Sl No.1129/2019 was filed after withdrawal of the CRP 154/2018. Although certain other aspects as regards the conduct of the appellant/applicant had also been urged upon, but for the purpose of our adjudication we do not go into such aspects that has been highlighted. But at the same time, we also take note of one of the contentions of Mr. S Sarma, learned counsel for the defendant No.1 that although FAO SL No.1129/2019 was registered as a first appeal order which would be proceeding under the provisions of Order XLIII Rule 1 CPC, but the cause title of the memo of appeal in FAO Sl No.1129/2019 would show that the appeal was in fact under Order XLI rule 1 CPC read with Section 96 of CPC. Accordingly, it is the contention that if the appeal was filed under Order XLI Rule 1 read with Section 96 CPC, its registration ought to have been as a regular first appeal and not as a first appeal order. Accordingly, a contention is raised that if a regular first appeal as discernible from the cause title of memo of appeal was filed earlier, a subsequent regular first appeal without obtaining any leave would not be maintainable under the principles of res-judicata.

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Apart from deciding the matter as to whether the delay in filing the accompanying RFA Sl No.13840/19 is required to be condoned for the reasons shown for the delay, we have also taken note of that a condonation of the delay is also sought on the basis of the averments made in the paragraph 4 of the interlocutory application. In paragraph 4 of the interlocutory application, a specific stand has been taken by the applicant/ appellant that the rejection of the plaint by the learned Civil Judge No.3, Kamrup (M) in the order dated 08.06.2019 in Misc (J) Case No.378/2018 under Order VII Rule 11 CPC was made erroneously by arriving at a conclusion that the suit was barred under Section 45 of the Act of 1988. In other words, a reference to a prima-facie case being made out by the applicant/appellant against the order of the learned Civil Judge No.3, Kamrup (M) is also sought to be relied upon to be a ground for condoning the delay.

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In order to substantiate the contention of the applicant/appellant on the prima-facie case being made out against the order of the learned Civil Judge No.3, Kamrup (M) dated 08.06.2019, Mr. N. Dhar, learned counsel for the applicant/appellant contends that a reading of the plaint in TS 23/2018 would go to show that the plaintiff had not claimed for any right, title and interest over the property on the basis of a claim that the schedule properties are Benami properties of the defendant No.1. Mr. Dhar, learned counsel specifically refers to paragraph 12 of the plaint to contend that the dominant purpose of the suit was against the threat of dispossession of the plaintiff from the schedule property by forcibly seeking to evict him. The cause of action of a threat to forcibly evict him from the schedule properties would be a sufficient cause of action for the title suit to be maintainable.

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In order to substantiate his contention, Mr. Dhar, learned counsel relies upon the pronouncement of the Supreme Court in Ramdaan (dead) Through LRS –vs- Urban Improvement Trust, reported in (2014) 8 SCC 902, wherein in paragraph 15, it had been held as under:-

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“In which case if the respondent desires to evict the appellant again, the same must be done in accordance with law by initiating appropriate proceedings. Until such process of eviction in accordance with law is initiated, the appellant’s possession of the suit scheduled property is required to be protected.”

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Further reliance has been placed on the pronouncement of the Supreme Court in Pratap Rai N Kothari –vs- John Braganza, reported in (1999) 4 SCC 403, wherein in paragraph 11 it had been held as under-

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“……….. the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to the due process of law.”

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By relying upon the aforesaid propositions of law, it is the contention of Mr. Dhar, learned counsel for the applicant/appellant that the defendants cannot evict the applicant/appellant from his possession over the schedule properties without following the due procedure of law and as such the attempt of the defendants to forcibly evict him would be contrary to law.

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Having given a consideration to the submissions made by Mr. N. Dhar, learned counsel for the applicant/appellant, we are required to examine as to the contents and purport of the pleadings made in the plaint in TS 23/2018. Paragraph 2 of the plaint clearly provides that the Schedule A suit land was purchased by the father of the plaintiff and the defendant No.2, 3 and 4, who was also the husband of defendant No.1, in the name of the defendant No.1 for the purpose of enjoyment of the plaintiff as well as all the defendants. Further, the defendant No.1 being a house wife, did not have any income of her own. Consequently, the Schedule A suit land was purchased in the name of the defendant No.1 as a benami holder.

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Having taken note of the said plea taken in paragraph 2 of the plaint, when we now look into the prayer made in the plaint, we find that the relief sought for by the plaintiff was for a declaration of right, title, interest and possession of the plaintiff to the extent that the plaintiff is entitled to use and enjoy the suit premises described in Schedule B. In other words, it is the claim of the plaintiff that he also has a title over the ownership of the Schedule A land by virtue of the purchase made by his father, where the land was purchased in the name of the defendant No.1, which was a benami transaction.

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In order to appreciate the said stand, we look into the statement and object of the

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Benami Act of 1988, which is amongst others that no suit, claim or action to enforce any right in respect of any property held benami shall lie and no defence based on any right in respect of any property held benami shall be allowed in any suit. Clause 2 of the statement and object of the Act of 1988 is as follows:-

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“(2) The Ordinance provided that no suit, claim or action to enforce any right in respect of any property held benami shall lie and no defence based on any right in respect of any property held benami shall be allowed in any suit, claim or action. It however, made two exceptions regarding property held by a coparcener in a Hindu undivided family for the benefit of the Coparceners and property held by a trustee or other person standing in a fiduciary capacity for the benefit of another person. It also repealed section 82 of the Indian Trusts Act, 1882, section 66 of the Code of Civil Procedure and section 281 A of the Income Tax Act, 1961.”

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By taking into account the statement and object of the Act of 1988, we find that the purpose of the Act was to bar any suit by any person to claim of any right over any property that may be held benami by another person. A reading of paragraph 2 of the plaint clearly shows that it is the plea of the plaintiff that the Schedule A property is being held benami by the defendant No.1, whereas going by the purpose for which the said property was purchased, it was for the enjoyment of all the legal heirs of the purchaser which also includes the plaintiff. In other words, the plaintiff apparently seeks to enforce a suit claim or action in respect of a right over a property which according to him has been held benami by the defendant No.1.

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In order to entertain prayer A of the plaint, there would be a requirement of the Court to arrive at an adjudication as regards the suit, claim or action by the plaintiff to enforce a right in respect of a property held benami. It being so, the provisions of Section 45 of the Act of 1988 would clearly be applicable that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter over which any of the authorities i.e. an adjudicating authority or an appellate tribunal is empowered by the Act of 1988, to determine and no consequent injunction in such proceeding be also granted by any Court.

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Although a contention has also been raised that the defendants are seeking to forcibly

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evict the plaintiff from the suit premises, but a question would again remain whether merely by taking such plea in the plaint and raising a cause of action thereof would make the suit maintainable in the present form. In other words, as because a further plea had been taken leading to a separate cause of action as regards forceful eviction of the plaintiff from the suit premises, whether that by itself would make the suit maintainable by allowing the plaintiff to overcome the bar of Section 45 of the Act of 1988.

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For an answer to the said question, the provision of Order VII of the CPC itself makes it abundantly clear. Order-VII Rule-11 provides for the rejection of a plaint in cases where, amongst others, the suit appears from the statement in the plaint to be barred by any law and the effect of a rejection of a plaint under Order VII Rule 11 is provided under Order-VII Rule 13, which provides that the rejection of a plaint on any of the grounds mentioned in Rule 11 shall not on its own preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

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A conjoint reading of the provisions of Order VII Rule 11 and Order VII Rule 13 CPC would clearly show that if an additional cause of action is being pleaded in a plaint, which may entail an adjudication by a Civil Court, but in the same plaint a plea is also taken and the relief claimed which would be barred under the provision of any law, that by itself would not be a reason enough to entertain the plaint as a whole and decide the issues raised therein. From such conclusion, we do not accept the contention raised by Mr. N. Dhar, learned counsel for the applicant/appellant that by virtue of the alternative plea being taken as regards the cause of action of forceful eviction of the plaintiff, the learned trial Court ought not to have rejected the plaint under Order VII Rule 11 of CPC.

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We are not oblivious to the aspect that we are adjudicating an interlocutory application for condoning a delay of 24 days. As regards the reasons for the delay as raised in the interlocutory application for condoning the delay, such reasons cannot be accepted in view of the strong objection raised by Mr. S. Sarma in condoning the delay, more particularly the reason stated by the learned counsel as regards the conduct of the applicant as discussed hereinabove. At the same time, in paragraph 11 of the interlocutory application, the applicant/appellant takes the stand that in view of the averments made in paragraph-4 therein, the delay in filing the accompanying civil revision petition is to be condoned. The plea

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taken in paragraph 4 is that the learned Civil Judge No.3, Kamrup (M) had erroneously held that the plaint is liable to be rejected under Order-VII Rule-11 of CPC. Accordingly, the applicant/appellant also relies upon the prima-facie case sought to be made out in the accompanying civil revision petition to be also a ground for condoning the delay. In view of the conclusions arrived hereinabove that prima facie no infirmity is discernible in the order dated 08.06.2019 of the learned Civil Judge No.3, Kamrup (M), therefore, the prima-facie case being made out in the civil revision petition to be also a ground for condoning the delay is unacceptable.

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Further, with regard to the contention of Mr. N. Dhar, learned counsel for the applicant that the period of 277 days as regards the pendency of the earlier CRP 154/2018 and FAO Sl No.1129/2019 ought not to be taken into consideration for computing the delay in preferring the application in view of the provisions of Section 14 of the Limitation Act, 1963, we take note of that the power under Section 14 of the Limitation Act is a conditional power upon a satisfaction that the other civil proceedings was prosecuted in good faith in a court where either due to jurisdiction or any other cause of a like nature, was unable to entertain it.

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In the instant case, in view of the inconsistency pointed out by the learned counsel for the opposite party No.1 respondent as regards the conduct of the applicant while preferring the earlier petitions/appeal, we are not satisfied that the earlier proceedings were prosecuted in good faith in a court without jurisdiction. From the said point of view also we are not agreeable to condone the delay of 277 days, which was consumed while the proceedings in the form of CRP 154/2018 and FAO Sl No.1129/2019 was pending.

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For the reasons stated above, we do not fine any reason to condone the delay of 24/or 301 days in preferring the accompanying regular first appeal.

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Accordingly, the interlocutory application stands dismissed.

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JUDGE

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Comparing Assistant

Sri Bhaskar Baishya v. Smti. Usha Rani Baishya and 3 Ors.

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Sri Bhaskar Baishya v. Smti. Usha Rani Baishya and 3 Ors.

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