Gauhati High Court

Jugal Kumar Saikia vs Sanjib Das And 3 Ors on 26 April, 2022

                                                                      Page No.# 1/7

GAHC010174972021




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

                          Case No. : RSA/110/2021

         JUGAL KUMAR SAIKIA
         S/O- LATE KAMAL CHANDRA SAIKIA, R/O- H/NO. 318, FLAT NO. 193, M.T.
         ROAD, HATIGHAR CHARALI, P.O. ZOO ROAD, P.S. GITA NAGAR,
         GUWAHATI-781024, DIST.- KAMRUP(M), ASSAM



         VERSUS

         SANJIB DAS AND 3 ORS.
         S/O- SRI UMESH CH. DAS, R/O- LACHIT NAGAR, BYE LANE NO. 8,
         GUWAHATI-7, KAMRUP(M), ASSAM

         2:ANANDA CHANDRA DAS
          S/O- LATE AKAN CHANDRA DAS
          R/O- VILL.- JAPORIGOG
          JANA-PATH
          GUWAHATI-781024
          DIST.- KAMRUP(M)
         ASSAM

         3:SMTI. KANIKA DEKA
         W/O- LATE KAMESWAR DEKA
          R/O- JAPORIGOG
          JANA-PATH
          GUWAHATI-781024
          KAMRUP(M)
         ASSAM

         4:SUJIT SUTRADHAR
          S/O- SRI SUBHAS SUTRADHAR
          R/O- NEW GUWAHATI RAILWAY COLONY
          BAMUNIMAIDAM
          GUWAHATI-21
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             DIST.- KAMRUP(M)
             ASSA

Advocate for the Petitioner   : MR. P P DAS

Advocate for the Respondent : MR. J DEKA

BEFORE HON'BLE MR. JUSTICE HITESH KUMAR SARMA

26-04-2022

Heard Mr. P.P. Das, learned counsel for the appellant. Also heard Mr. S. Sarma, learned counsel for the respondents.

This second appeal has been preferred by the appellant against the judgment and decree dated 9.6.2021 passed by the learned District Judge, Kamrup (Metro), Guwahati in Title Appeal No.29 of 2016, affirming the judgment and decree dated 17.8.2016 passed by the learned Civil Judge No.3, Kamrup (M), Guwahati, in Title Suit No.139/2009, by which the counter claim of Defendant No.1/appellant was dismissed.

The Respondents No.1 and 2, as plaintiffs, filed Title Suit No.139 of 2009 in the Court of learned Civil Judge No.3, Kamrup (M), Guwahati against the present appellant and other proforma Respondent praying for, inter alia, a decree for declaration of right, title, interest and for confirmation of possession of Respondent No.1 over the suit Schedule-A land and same relief to Respondent No.2 over Schedule-B suit land. They also prayed for a decree for declaration that the Sale Deed No.3595 dated 2.8.1990 (Ext.A) is not binding upon the respondents-plaintiffs.

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The appellant, as defendant, appeared and contested the aforesaid suit by filing written statement and also filed a counter claim seeking a declaration of his right, title, interest and possession over the 2 Kathas of land out of the suit land and for recovery of possession thereof.

The respondents-plaintiffs contested the counter claim of the appellant-defendant and filed written statement claiming that the appellant-defendant had no possession and his vendors never challenged the sale deed of the respondents in respect of the suit land.

On conclusion of hearing of the aforesaid suit i.e. Title Suit No.139/2009, the learned Court below dismissed the counter claim of the appellant-defendant and decreed the suit of the respondents-plaintiffs No.1 and 2.

It has been averred and submitted by the learned counsel for the appellant that challenging the aforesaid judgment and decree dated 17.08.2016, passed in Title Suit No.139 of 2009, the appellant defendant filed Title Appeal No.29/2016 before the First Appellate Court i.e. the Court of District Judge, Kamrup (Metro). However, the learned Appellate Court of District Judge, vide judgment and decree dated 9.6.2021, affirmed the judgment and decree dated 17.8.2016, in favour of the plaintiffs-respondents and also dismissed the counter claim of the appellant-defendant. Learned counsel for the appellant has further submitted that the appellant preferred this Second Appeal on the grounds specifically mentioned under the head "Grounds" in the appeal memo. He has further submitted that there was no discussion about the merit of the counter claim in the judgment of the First Appellate Court and, according Page No.# 4/7

to him, the counter claim ought to have been allowed.

Mr. Sarma, learned counsel for the respondents-plaintiffs has referred to the appeal memo of the Title Appeal no.29/2016 filed by the appellant- defendant before the learned District Judge, Kamrup (Metro) and has submitted that said appeal was valued at Rs.4,40,000/- for the purpose of jurisdiction of the Court and, accordingly, ad-valorem Court fee of Rs.4,547/- was paid thereon as per valuation of the original suit by the plaintiffs-respondents. Learned counsel for the respondents-plaintiffs have specifically submitted that the counter claim was valued at Rs.4 lakhs and to prefer an appeal against the counter claim also, the same ought to have been valued and court fee was supposed to be paid accordingly. Since the same has not been done, it is submitted, the appeal before the learned District Judge, Kamrup (Metro) being Title Appeal No.29/2016 was not against dismissal of the counter claim, rather, against the decree in favour of the plaintiffs-respondents in the suit filed by them.

On perusal of the judgment of the learned First Appellate Court, it appears that the decision therein in respect of the suit as well as the counter claim of the appellant-defendant. It also appears from the said judgment itself that the appellant-defendant had taken the plea that his counter claim was dismissed without considering the pleadings and evidence of the witnesses of both the parties. Such materials clearly reveal that the decree of dismissal of the counter claim was also subjected to challenge in the appeal before the District Judge along with the decree in the suit of the plaintiffs-respondents. The position appearing from the record is that the appeal was not valued so far the counter claim was Page No.# 5/7

concerned and no court fee was paid accordingly. However, this issue was not raised and discussed in the judgment of the learned Appellate Court.

Learned counsel for the respondents-plaintiffs has submitted that in view of the provisions of Order 7, Rule 11(c) of the Code of Civil Procedure, the appeal ought to have been rejected due to improper valuation and non-furnishing of the requsite court fee. However, as provided in the said provision, it does not appear that ay order was passed requiring the appellant-defendant to supply the requisite court fee stamp within the time fixed and, therefore, in the considered view of this Court, the provisions of Section 11(c) is not applicable in the instant case.

Learned counsel for the respondent has submitted, referring to Order 41, Rule 33 CPC, that the Appellate Court shall have the power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although appeal may not have been filed against such decrees. Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred Page No.# 6/7

has omitted or refused to make such order.

However, learned counsel for the respondents-plaintiffs has submitted that this provision is in respect of the first appeal only and is not relevant for a second appeal. We have already noticed that in the first appeal also, a decree of dismissal of the counter claim was subjected to challenge and decision thereon was also rendered and therefore, it cannot be said that the dismissal decree in the counter claim was not subjected to challenge in the first appeal before the Court of District Judge, Kamrup (Metro). Of- course, this is a fact appearing from the materials on record that the appeal against the dismissal decree of the counter claim was not valued and court fee was not paid. It has also been brought to the notice of the Court that the second appeal against the judgment and decree in respect of the suit of the plaintiffs-respondents in RSA No.107/2021 has been admitted by this Court.

In view of such position, in the considered view of this Court, subject to decision on the question with regard to the effect of non-valuation and non-payment of Court fee in respect of the counter-claim, the second appeal is admitted on the following substantial questions of law :

(i) Whether both the learned Courts below rightly passed the decree by dismissing the Counter Claim of the appellant in respect of right, title, interest over the Schedule-A land where the Respondent No.1 admitting the right, title, interest of the Appellant over the Schedule-A prayed to withdraw his claim from the suit where the Respondent No.2 did not have any interest over the Schedule-A land ?

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(ii) Whether impugned judgment and decree passed by both the learned Courts below dismissing the Counter Claim of the Appellant was correct and valid where the Appellant claimed his right, title, interest and possession over 2 Kathas of land out of the Schedule-A & B land on basis of Ext.A Sale Deed executed by the sons of late Pratap Chandra Chakraborty ?