Smti Takari Yadav Wife and 4 Ors. Vs Pradeep Kumar Verma and Ors.

S/O LATE MUNESWAR SHAH ONE OF THE ORIGINAL PLAINTIFF NO. 1/PROFORMA RESPONDENT ALL ARE RESIDENT OF KHALIDHAMARI ARE RESIDENT OF GRAHAMBAZAR OF DIBRUGARH TOWN DIST. DIBRUGARH ASSAM PIN-786001

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16:ON THE DEATH OF RAM GOVIND YADAV HIS LEGAL HEIRS SHANTI DEVI DAU NALIAPOOL DIBRUGARH P.O. and DIST. DIBRUGARH PIN-78600

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For the Appellant(s) : Mr. S.K. Ghosh, Advocate

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For the Respondent(s) : Mr. A.C. Sarma, Sr. Advocate

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Mr. G. Bharadwaj, Advocate

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Date of Hearing : 04.03.2025

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Date of Judgment : 04.03.2025

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. S.K. Ghosh, the learned counsel appearing on behalf of the appellants. Mr. A.C. Sarma, the learned Senior Counsel assisted by Mr. G. Bharadwaj, the learned counsel appears on behalf of the respondents.

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This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, ”the Code”) challenging the judgment and decree dated 30.04.2012 passed by the learned Civil Judge, Dibrugarh (hereinafter referred to as, “the learned First Appellate Court”) in Title Appeal No. 02/2003 whereby the appeal was allowed, thereby setting aside the judgment and decree dated 09.12.2002 passed by the learned Civil Judge (Junior Division) No. 1, Dibrugarh (hereinafter referred to as, “the learned Trial Court”) in Title Suit No. 26/1995.

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It is seen that the learned Coordinate Bench of this Court vide an order dated 09.10.2012 admitted the instant appeal by formulating 3 (three) substantial questions of law which are reproduced herein under:

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“(i) Whether the suit of the plaintiffs is barred under Section 53 A of the Transfer of Property Act, 1882?

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(ii) Whether the suit of the plaintiff is barred under Order IX Rule 9 of the CPC?

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(iii) Whether the suit of the plaintiffs is barred by limitation?”

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At the outset, it is relevant to take note of that the present appeal is not at the instance of the defendant No. 7 i.e. one Ram Govind Yadav (since deceased) or his legal representatives. The instant appeal has been filed by the defendant No. 1. This aspect assumes importance as would be seen at the later stages of the instant judgment.

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The question which arises in the instant appeal, as to whether, the 3 (three) substantial questions of law so formulated by the learned Coordinate Bench of this Court vide the order dated 09.10.2012 are involved in the instant appeal. For deciding the same, this Court finds it relevant to take note of the brief facts which led to the filing of the instant appeal.

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The plaintiff No. 10 admittedly is an unregistered body and there is no denial to the fact that the plaintiff No. 10 is constituted by the citizens of Grahambazar in particular of the Dibrugarh Town. As the plaintiff No. 10 is an unregistered body, the plaintiff Nos. 1 to 9 claiming themselves to be the Executive Committee of the plaintiff No. 10 had instituted the said suit which was initially registered and numbered as Title Suit No. 9/1990. Taking into

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account that the plaintiff No. 10 is an unregistered body at the time of filing of the suit, an application was filed under Order I Rule 8 of the Code which was registered as petition No. 733/1990 seeking permission to institute the suit against the defendants as well as all other persons interested in the plaintiff No. 10 i.e. the Grahambazaar Puja Committee. The learned Trial Court vide an order dated 02.08.1990 allowed the said application filed under Order I Rule 8 of the Code and the plaintiffs were directed for publishing the notice of the suit in the Daily ‘Janambhumi’ newspaper which was duly done. Therefore, the suit was a suit in the representative capacity.

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The case of the plaintiffs in the said suit is that a plot of land admeasuring 3 Kathas 15 ½ Lechas covered by Dag Nos. 436 and 437 part and included in Periodic Patta No. 3 of Grahambazar of Mouza Dibrugarh Town was purchased in the name of the plaintiff No. 10 from its vendors vide the registered deed of sale bearing deed No. 328 of 1968 dated 09.02.1968. On the said suit land, the plaintiff No. 10 which was a committee continued to perform the pujas and other functions till the year 1986. However, subsequently the defendant Nos. 1 and 7, as alleged in the plaint, with a mala fide object of taking control over the suit land started using a part of the said suit land for stacking hay for the cattle on temporary basis and also constructed a temporary shed. The members of the plaintiff No. 10 at that relevant point of time did not find the actions of the said defendants objectionable. However, in the year 1986 the defendant Nos. 1 and 7 by violating the confidence reposed upon them by the committee started causing obstruction to the committee in the performance of the pujas on the land. In view of the obstruction caused by the defendant Nos. 1 and 7 and further to perpetuate their illegalities, the defendant No. 1 in collusion with the defendant No. 7 started a case under Section 145 of the Cr.P.C. and got the said

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land attached and thereupon the defendant Nos. 1 and 7 most illegally took the entire land to their possession and they put bamboo fencing on the boundaries thereof, and constructed some thatched roofed houses. It was also mentioned in the plaint that in the month of September, 1986 the defendant Nos. 3, 4, 5 and 6 filed a suit joining the plaintiff No. 10 against the defendant Nos. 1 and 7 in respect to a plot of land admeasuring 55 ft. X 36 ft. over the suit land for declaration that the said land is the property of the plaintiff No. 10 and also for injunction, the said suit was registered as Title Suit No. 78/1986.

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The defendant No. 1 contested the said suit by filing a written statement and when the suit was at the stage of evidence on 07.10.1988 on account of the plaintiffs therein did not take any steps, the learned Trial Court dismissed the suit for default.

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Be that as it may, in view of the illegalities being committed by the defendants and the collusive design by which the defendant Nos. 1 and 7 wanted to grab the property of the plaintiff No. 10, the present suit was filed seeking declaration of right, title and interest of the plaintiffs including the members of the plaintiff No. 10 over the suit land; for khas possession of the suit land by breaking and removing the houses and structures standing thereon, by evicting the defendants and their servants and dependents there from.

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It is noticed that pursuant to filing of the said suit, the defendant Nos. 1 and 7 contested the said proceedings by filing separate written statements. A perusal of both the written statements filed by the defendant Nos. 1 and 7 would show that their stand is that the defendant No. 7 had paid the amount for the purchase of the suit land in favour of the plaintiff No. 10, but the suit land

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was wrongly registered in the name of the plaintiff No. 10 in view of certain illegality being committed by one Sajidur Rahman, the attorney of the owners. Pursuant to the deed of sale being executed, the defendant Nos. 1 and 7 had objected to the said deed of sale being executed and in order to cover up the subterfuge on 18.10.1968, the trustees of the plaintiff No. 10 issued a receipt of Rs. 10,650/- as loan from the defendant No. 7 and entered into an agreement with the defendant No. 7.

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At this stage, it is relevant to take note of that the deed of agreement as mentioned in the written statement filed by the defendant Nos. 1 and 7 have been exhibited as Exhibit (Kha) wherein the defendant No. 1 have been shown as a trustee who had executed the said document along with others in favour of the defendant No. 7. It is further pertinent to mention that in both the written statements filed by the defendant Nos. 1 and 7, it has been categorically mentioned that the agreement dated 18.10.1968 had automatically lapsed with no legal consequences. This aspect would be relevant while this Court takes up the substantial questions of law for decision. It is the further case of both the defendants Nos. 1 and 7 in their written statement that a suit was filed by the plaintiff No. 10 through its Secretary and some of the trustees i.e. Title Suit No. 78/1986 and the said suit was dismissed for default and as such, the plaintiff No. 10 had no title over the suit land and also can never claim title and possession over the suit land.

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On the basis of the pleadings, the learned Trial Court framed as many as 9 (nine) issues which are reproduced herein under:

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“1. Whether the plaintiffs have right to sue?

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Whether the suit is barred and Article 64 of limitation Act?

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Whether the suit is barred under section 11 of CPC?

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Whether the sale deed executed on the name of plaintiff No. 10 by the attorney of the owner of the land acted in collusion with some trustees of the plaintiff No. 10 by false representation?

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Whether defendant N. 7 has been in occupation of the suit land from 18.10.68 in his own right, title, and interest of the suit land?

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Whether plaintiffs had possession of the suit land and defendant No. 1 and 7 dispossessed them under the manner as stated in the plaint?

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Whether the suit is maintainable?

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Whether plaintiffs are entitled to declaration of right, title and interest over the suit land and or delivery of khas possession as prayed for?

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What reliefs if any the parties are entitled?”

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On behalf of the plaintiffs 4(four) witnesses were adduced and 12 (twelve) documents were exhibited. On behalf of the defendants 6 (six) witnesses were adduced and various documents were exhibited.

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The learned Trial Court while deciding the Issue No. 1 which pertains to, as to whether, the plaintiffs have a right to sue had categorically opined that the plaintiffs had duly complied with the order dated 02.08.1990 by which permission was granted by the learned Trial Court to institute the suit for the benefit of all persons interested in plaintiff No. 10 and further, the plaintiffs had also caused publication of notice in the newspaper Daily ‘Janambhumi’ which was exhibited as Exhibit 9 and 9 (1). In respect to the Issue No. 2, which is on the question of application of Article 64 of the Limitation Act, 1963 (for short,

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“the Act of 1963”), the learned Trial Court held that Article 64 of the First Schedule to the Act of 1963 would not apply, but Article 65 of the Act of 1963 would apply and further observe that the defendants have been able to prove their hostile animus and possession adverse to the knowledge of the plaintiff from 18.10.1969 and as such, as the suit was filed in the year 1990, the suit was barred by limitation. As regards to Issue No. 3, which pertains to, as to whether, the suit was barred under Section 11 of the Code, the learned Trial Court came to a finding that the suit was not maintainable in terms with Section 11 of the Code as well as under the provisions of Order II Rule 2 of the Code. As regards the Issue No. 4, the learned Trial Court came to an opinion that the sale deed was executed vide the attorney in the name of the Puja Committee acting in collusion with some members of the committee thereby concealing the real fact of payment of the consideration money for the suit land by the defendants. As regards the Issue No. 6, the learned Trial Court opined that the plaintiffs had failed to prove their possession over the suit land and as there was no possession of the plaintiff over the suit land, the question of dispossession of the plaintiff also did not arise. As regards to Issue No. 7, as to whether, the suit was maintainable, the learned Trial Court held that the suit was not maintainable in view of Order IX Rule 9 of the Code after the suit being Title Suit No. 78/1986 was dismissed for default. As regards the Issue Nos. 8 and 9, the learned Trial Court held that the plaintiffs are not entitled for the decree as prayed for.

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Being aggrieved, the plaintiffs filed an appeal before the learned First Appellate Court which was registered and numbered as Title Appeal No. 02/2003. The learned First Appellate Court decided the said appeal in favour of the plaintiffs by holding that the suit was maintainable; that the suit was not

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barred under the Act of 1963; that the suit was not barred under the provisions of Order IX Rule 9 of the Code; that the suit was not barred in terms with Order II Rule 2 of the Code; that the suit was not barred in view of Section 11 of the Code and further decreed the suit holding that the plaintiffs are entitled to the declaration of the right, title and interest of the suit land and delivery of khas possession in respect to the land as described in the Schedule to the plaint. It is against the said judgment and decree passed by the learned First Appellate Court dated 30.04.2012, the present appeal has been filed.

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This Court had duly heard the learned counsels appearing on behalf of the appellants as well as on behalf of the respondents. This Court has also perused the materials on record, including the LCR.

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In the backdrop of the above, let this Court now take up, as to whether, the said substantial questions of law so formulated by this Court are involved in the instant appeal. The first substantial question of law which was formulated is, as to whether, the suit of the plaintiffs is barred under Section 53A of the Transfer of Property Act, 1882 (for short, “the Act of 1882”). With due respect, this Court would like to observe that the above aspect under no circumstances can be said to be a substantial question of law involved in the present appeal inasmuch as to be a substantial question of law, the issue pertaining to Section 53A of the Act of 1882 has to have some roots in the pleadings as well as in the evidence. It was not the case of the defendant Nos. 1 and 7 that they claimed part performance of any agreement to bring the suit within Section 53A of the Act of 1882. Rather, it is seen from a perusal of the written statements filed by the defendant Nos. 1 and 7 both separately that it is the case of the said defendants that the agreement had automatically lapsed with all legal

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consequences. In addition to that, this Court further finds it relevant to take note of that Section 53A of the Act of 1882 could have been invoked at the behest of the defendant No. 7. However, the defendant No. 7 has not filed the instant appeal. The filing of the instant appeal and raising such a question of law as to be substantial at the behest of the defendant No. 1 in whose favour the agreement dated 18.10.1968 was not made, is totally misconceived.

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The second substantial question of law is, as to whether, the suit of the plaintiffs is barred under Order IX Rule 9 of the Code. A perusal of the provision of Order IX Rule 9 (1) of the Code would show that when a suit is wholly or partly dismissed under Rule 8 of Order IX, the plaintiff shall be precluded from bringing a fresh suit in respect to the same cause of action. This Court finds it very pertinent at this stage to take note of the plaint of Title Suit No. 78/1986 which was exhibited as Exhibit 12 by the plaintiffs. A perusal of the said plaint categorically reveals that the plaintiff Nos. 2, 3, 4 and 5 therein were the defendant Nos. 3, 4, 5 and 6 in the present suit along with the plaintiff No. 1 who is the plaintiff No. 10 in the instant suit. From a perusal of the said plaint, it is seen that it was categorically mentioned that the plaintiff No. 1 is a representative body of general public of Grahambazaar area of Dibrugarh town and is constituted by the Hindu people of the area who have felt in the observance of different pujas of Hindu faith. It was mentioned that the plaintiff's body has its Secretary, President and few members who are elected from the general public of the locality for a period of one year. There is no mention in the said plaint as to why, the plaintiff Nos. 2 to 5 were impleaded except in the cause title they have been shown as secretary and trustees. This Court further finds it relevant to take note of that the cause of action in the said suit was that on 01.10.1986, the defendant No. 1 who is the appellant herein, threatened to

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take forceful possession of the land by 12.10.1986 and prohibited the plaintiffs therein from putting any fencing around the suit land. It is under such circumstances, the suit was filed to restrain the defendant No. 1 from entering and taking forceful possession of the suit land by permanent injunctions and to declare the suit land to be the property of the plaintiff No. 1. It is further interesting to take note of that the Schedule of the suit land was mentioned to be an area admeasuring 30 ft. X 55 ft. In other words, the area of the said suit land in Title Suit No. 78/1986 was a small area of land compared to the suit land as mentioned in the present suit.

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This Court further takes note of that Order IX Rule 9(1) of the Code only bars the plaintiff to bring a fresh suit in respect to the same cause of action. However, the cause of action so stated in the present suit is completely different and in the instant suit, the plaintiff had sought for relief in respect to the entire plot of land. In addition to that, this Court further finds it very pertinent to observe that the plaintiff No. 1 in Title Suit No. 78/1986 is the plaintiff No. 10 of the present suit. Admittedly, the suit land in question was transferred vide the deed of sale in favour of the plaintiff No. 10 herein bearing deed No. 328 of 1968 dated 09.02.1968. The plaintiff No. 10 being an unregistered body could not have maintained the suit. It has been clearly mentioned in both the plaints of Title Suit No. 78/1986 as well as in the present suit that the plaintiff No. 1/plaintiff No. 10 respectively is an unregistered body and as such, the said plaintiff No. 10 herein could not have instituted the suit on its own. Further to that, the constitution of the said plaintiff No. 10 in the present suit comprises of the general public of Grahambazaar area observing Hindu faith. It is however very pertinent to mention that Title Suit No. 78/1986 was not filed in the representative capacity. Rather, it was filed by putting the name of the plaintiff

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No. 10 along with some trustees and the Secretary. On the other hand, the instant suit was filed by following the process in terms with Order I Rule 8 of the Code and after getting due permission from the learned Trial Court as observed above.

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Considering the above, it is the opinion of this Court that the dismissal of Title Suit No. 78/1986 for default would not have acted as a bar for the plaintiffs of the present suit to institute a fresh suit more so, in a representative capacity. It is the further opinion of this Court that the cause of action in both the suits was different. In view of the above, the second substantial question of law so formulated is not involved in the instant appeal.

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The third substantial question of law is, as to whether, the suit is barred by limitation. It would be seen from a perusal of both the written statements filed by the defendant Nos. 1 and 7 respectively that it is being claimed that the defendant No. 7 was in occupation of the suit land w.e.f. 18.10.1969 in his own right to the exclusion of the so called Puja committee or anybody. The learned First Appellate Court held that the plea of adverse possession could not have been taken on the ground that the claim of becoming the owner by way of mortgage and purchaser of the land and at the same time claiming adverse possession are self contradictory and self defeating. It is very pertinent to mention that though the claim of adverse possession was raised by the defendant No. 7 which was turned down by the learned First Appellate Court by the impugned judgment and decree dated 30.04.2012, the defendant No. 7 or his legal representatives did not file any appeal. The present substantial question of law as being adjudicated upon is taken at the behest of the defendant No. 1 who had no claim as regards adverse possession. Considering

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the above, the third substantial question of law so framed is not involved in the instant appeal.

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In view of the above, as no substantial questions of law are involved in the instant appeal, the instant appeal stands dismissed with cost quantified at Rs. 30,000/-. In addition to that, the plaintiffs shall be entitled to cost throughout the proceedings.

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The Registry shall sent back the LCR to the learned Courts below.

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JUDGE

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Comparing Assistant

Smti Takari Yadav Wife and 4 Ors. v. Pradeep Kumar Verma and Ors.

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Smti Takari Yadav Wife and 4 Ors. v. Pradeep Kumar Verma and Ors.

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