Page No.# 1/5 vs Smt Ashobala Roy And 8 Ors
2021 Latest Caselaw 2433 Gua

                                                                    Page No.# 1/5

GAHC010209872018




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

                            Case No. : RSA/312/2018

         DURAHATI GAON PANCHAYAT AND ANR
         REPRESENTED BY ITS SECY., R/O VILL. DURAHATI, P.S. AND DIST.
         DHUBRI, ASSAM, PIN 783324

         2: THE PRESIDENT
          DURAHATI GAON PANCHAYAT
          R/O VILL. DURAHATI
          P.S. AND DIST. DHUBRI
         ASSAM
          PIN 78332

         VERSUS

         SMT ASHOBALA ROY AND 8 ORS
         W/O LATE MONDAL CHANDRA ROY, R/O VILL. NOWYERCHAR, P.S.
         GOLAKGANJ, DIST. DHUBRI, ASSAM, PIN 783334

         2:SMT. MENEKA BALA ROY
         W/O NITYANANDA ROY
          R/O VILL. GASPARA
          P.S. AND DIST. DHUBRI
         ASSAM
          PIN 783324

         3:THE STATE OF ASSAM

          REPRESENTED BY THE DEPUTY COMMISSIONER
          DHUBRI
          DIST. DHUBRI
          ASSAM
          PIN 783301

         4:ROBINDRA LIBRAYA CUM CLUB
         VILL. DURAHATI
                                                               Page No.# 2/5

             P.S. AND DIST. DHUBRI
             ASSAM
             PIN 783324
             REPRESENTED BY ITS SECY. NAZRUL HOQUE PRODHANI
             S/O GOLAP UDDIN PRODHANI
             R/O VILL. BHELAKOBA
             P.S. AND DIST. DHUBRI
             ASSAM
             PIN 783324

            5:ABDUL JALIL SK
             S/O AKBAR ALI SK
             R/O VILL. DURAHATI
             P.S. AND DIST. DHUBRI
            ASSAM
             PIN 783324

            6:ABDUL SAMAD AHMED
             S/O LATE KHARIAT ULLAH AHMED
             R/O VILL. BHELAKOBA
             P.S. AND DIST. DHUBRI
            ASSAM
             PIN 783324

            7:ABDUR RAHIM SK.
             S/O LATE SAHABUDDIN SK
             R/O VILL. DURAHATI
             P.S. AND DIST. DHUBRI
            ASSAM
             PIN 783324

            8:ALEP UDDIN SK
             S/O LATE ISAM UDDIN SK
             R/O VILL.DURAHATI
             P.S. AND DIST. DHUBRI
            ASSAM
             PIN 78332

Advocate for the Petitioner   : MR. A C SARMA

Advocate for the Respondent : MS. R CHOUDHURY (R1, R2)

Page No.# 3/5

BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER 06.10.2021

Heard the learned senior counsel Mr. A. C. Sarma, appearing for the appellant. Also heard Ms. R. Choudhury, learned counsel appearing for the respondents.

2. This is a Regular Second Appeal under Section 100 of the Code of Civil Procedure challenging the judgment passed by the Civil Judge, Dhubri in Title Appeal No. 36/2017 arising out of the Judgment and Decree passed by the Munsiff No. 1, Dhubri, in Title Suit No. 428/2014.

3. The present respondents filed a suit against the appellants stating the following facts:-

The predecessor of the present respondents was late Mondol Ch. Roy, who died in the year 1994 and he was in possession of land measuring 1 Bigha 2 Kathas under Dag No. 122 (old)/ 278 (new), 13 Lechas under Dag No. 137 (old)/189 (new) and 1 Bigha 3 Kathas 10 Lechas of land covered by Patta No. 116 (old)/102 (new) in village Durahati under Dhubri Revenue Circle. During his lifetime, late Mondol Ch. Roy sold 1 Bigha 1 Katha 5 Lechas of land from Dag No. 144 (old)/286 (new) to Mahendra Nath Roy. After the death of Mondol Ch. Roy, his legal heirs inherited his lands. The legal heirs of late Mondol Ch. Roy are his wife, daughter and three sons, namely, Rajani Kanta Roy, Naren Ch. Roy and Karen Ch. Roy. It is stated in the plaint that Karen Ch. Roy died about three years prior to filing of the suit. The other two sons were not made parties in the suit because they were said to be Psychiatrics patients.

4. The said suit was filed by the wife and the daughter of late Mondol Ch. Roy. They pleaded that the present appellants had encroached upon the said land. Therefore, they prayed for a decree of declaration of their right, title and interest over the suit land as well as the recovery of the vacant possession.

5. The present appellants being the defendants in the suit below contested the case by filing a written statement. There they pleaded that late Mondol Ch. Roy had gifted 2 Kathas 10 Lechas of land to them by executing a registered Gift Deed No. 6045 dated 01.06.1970 to the precedent of Durahati Gaon Panchayat. After gifting 2 Kathas 10 Lechas of land late Mondol Ch. Roy had only 1 Bigha 1 Katha land in his possession. Thereafter, late Mondol Ch. Roy sold 1 Bigha 1 Katha 5 Lechas of land to Mahendra Nath Roy, though Mondol Ch. Roy had in his possession only 1 Bigha 1 Katha of land. Therefore, the appellants pleaded that Mahendra Nath Roy or his legal heirs should have been impleaded in the suit.

6. It was pleaded that the land gifted by late Mondol Ch. Roy was exchanged with the land of a local club and after that, the Panchayat Office and its godown were constructed on the said land. They claimed that since then for more than 20 years they have been occupying the land.

7. On the basis of the pleadings of the parties, the trial Court framed the following 9 (nine) issues:

1. Whether the suit is maintainable?

2. Is there any cause of action for the suit?

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3. Whether the suit is barred by limitation?

4. Whether the suit is bad for non joinder of Rajani Kanta Roy, Naren Ch. Roy and Mahendra Ch. Roy?

5. Whether the predecessor of the plaintiffs Mandal Ch. Roy had gifted the land measuring 02K 10 L to the Durahati Gaon Panchayat, the defendant no. 6 by executing a registered Gift Deed No. 6045/1970?

6. Whether the defendant no. 1 came to the suit land as mutual arrangement with the defendant no. 6 to exchange the land between them?

7. Whether the plaintiffs have right, title and interest over the suit land?

8. Whether the plaintiffs are entitled to a decree for recovery of khas possession of the suit land?

9. To what other relief the plaintiff is entitled to?

8. During the trial of the case, the respondents examined three witnesses, namely, Nitya (Nanda) Roy, Paresh Roy and Anowar Hussain. The witnesses produced by the respondents were not cross- examined by the appellants nor they had examined any witnesses. Finally, on conclusion of trial, the suit of the respondents was decreed as prayed for.

9. Mr. Sarma has pointed out that the suit of the respondents is bad in law because of non-joinder of the sons of late Mondol Ch. Roy. Mr. Sarma has submitted that Order 32 Rules 1 to 14 of the Code of Civil Procedure provides the law pertaining to persons of unsound mind. There is no quarrel with the proposition of law that a person of unsound mind must be represented by the next friend or guardian.

10. The learned counsel Mr. Sarma objected to the fact that the trial Court relied upon a judgment of this Court that was delivered in Mofizuddin vs. Kahimai Hira and others, reported in 2014 (3) GLR 426 , to hold that non-joinder of the sons of late Mondol Ch. Roy was not bad in law. The trial Court held that a co-owner in respect of a land can file a suit for eviction of encroacher.

11. The learned counsel for the appellant further pleaded that the respondents though filed the suit never appeared in the witness box to adduce evidence rather they examining some other persons. According to Mr. Sarma, by failing to stand in the witness box for cross-examination by the present appellants, the present respondents proved that the case set up by them was not correct and true. Mr. Sarma has clarified that this is the reason why the present appellants did not cross-examined the witnesses and for the same reason appellants did not adduce any evidence.

12. Per contra, the learned counsel Ms. Choudhury simply supported the judgment of the trial Court and submitted that in the decree passed by the trial Court has already been executed and, therefore, on that ground the present appeal is not maintainable.

13. I have given my anxious consideration to the submissions made by the learned counsel for both the sides. At the outset, this Court is of the opinion that the execution of the trial Court decree does not act as a bar for entertaining a Regular Second Appeal pertaining to the aforesaid decree.

14. It is true that a co-owner in respect of a land can bring a suit for eviction of an encroacher but he is not entitled to file such a suit in a clandestine manner. In Mofizuddin (supra), the other co-owner were made proforma respondents. The learned trial Court has erroneously interpreted the judgment passed in Mofizuddin (supra).

15. Regarding non-joinder of the sons of late Mondol Ch. Roy the explanation given by the respondents is not correct. They should have been made parties in the suit because they also inherited Page No.# 5/5

the property of their father along with the two respondents. Order 32 Rule 15 of the Code of Civil Procedure lays down that the Rules 1 to 14 are applicable for persons of unsound mind. Both the sons could have been represented by their mother or sister. They were not made parties in the suit and, therefore, the suit is bad for non-joinder of necessary parties.

16. The respondents Ashobala Roy and Meneka Bala did not appear in the witness box to tender evidence in support of their case. It is a settled position of law that the witnesses who abstained from standing in the witness box, for cross-examination by the other side, means that the case set up by them is false.

17. The learned Civil Judge refused to condone the delay of 300 days in filing the first appeal. It is also a settled position of law while dealing with petitions under Section 5 of the Limitation Act, the Courts should not take a pedantic approach. A petitioner filing a petition under Section 5 of the Limitation Act always carries the risk of being denied justice. Therefore, the Courts should be conscious and sensitive towards litigants. This is an example where, on the ground of limitation, the present appellants were denied the opportunity of filing an appeal against a totally erroneous judgment.

18. The trial Court erroneously appreciated the legal provisions and arrived at an erroneous finding. In this way, this Court hereby answers all the seven substantial questions of law in affirmative.

19. The present Regular Second Appeal is allowed. Accordingly, the Judgment and Decree passed by Munsiff No. 1, Dhubri in Title Suit No. 428/2014 and the Judgment in Title Appeal No. 36/2017 are set aside.

20. LCR shall be returned.

JUDGE

Comparing Assistant