Manipur High Court
Mst. Memcha Bibi vs Md. Abdul Motim Choudhury on 23 August, 2024
Author: A. Guneshwar Sharma
Bench: A. Guneshwar Sharma
Item No. 9-10
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
RSA No. 3 of 2021 with
MC(RSA) No. 22 of 2024
Mst. Memcha Bibi
.....Appellant/s
- Versus -
Md. Abdul Motim Choudhury
.... Respondent/s
BEFORE
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
Order
23.08.2024
[1] Present Mr. Kh. Santa, learned counsel for the appellant
and Mr. NG. Somorjit, learned counsel for the respondent.
[2] Heard the learned counsel for the parties on the
substantial questions of law.
[3] The appellant herein has instituted a suit being O.S. No.
34/35 of 2014 before the Civil Judge (Senior Division), Imphal East
praying for declaration of title and eviction. Whereas, the respondent
herein who is a defendant has also filed counter claim for eviction of
the appellant/plaintiff herein on the plea that he is the owner of the suit
land.
[4] Vide judgment and decree dated 25.11.2019, the Ld.
Civil Judge (Senior Division), Imphal East dismissed the suit filed by
the petitioner herein holding that the defendant is the owner of the suit
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land and the plaintiff could not prove their position over the suit land.
The plaintiff/appellant herein did not prefer any appeal against the
judgment and decree passed by the Ld. Trial Court rejecting his suit.
However, the respondent/defendant filed an appeal before the Ld.
District Judge, Imphal East being First Civil Appeal Case No. 9 of 2020
and vide order dated 30.04.2021, the appeal was partly allowed by the
Ld. District Judge, Imphal East by evicting the appellant/plaintiff from
the suit land.
[5] Being aggrieved by the order dated 30.04.2021, the
plaintiff approached this Court by second appeal under Section 100 of
CPC. In the memo of appeal, the appellant/plaintiff raised the following
questions as substantial questions of law involved in the present
second appeal under Section 100 of CPC. Para 3 is reproduced as
such:
"3. That, the substantial question of law involved in the
Second Civil Appeal as follows:
a) Whether the Appellate Court didn't remand the
case under order XLI Rule 23 - A of CPC as to
why the Appellate Court didn't remand or refer
the issue to the Ld. Trial Court for deciding the
issues?
b) Whether the proposition with regard to adverse
possession is not discuss by the Trial Court as
to why the Appellate Court didn't remand the
Trial Court for deciding the issues?
c) Whether the preposition of law observed by the
Ld. Appellate Court below amounts to
interference with the free judicial exercise?"
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[6] Mr. Kh. Santa, learned counsel for the appellant/plaintiff,
submits that the First Appellate Court ought to remand the case to the
Trial Court for adjudication by framing issue on adverse possession.
[7] Mr. NG. Somorjit, learned counsel for the
respondent/defendant, submits that since the appellant/plaintiff has not
preferred any appeal against the decree dismissing his suit, the finding
of the Ld. Trial Court has attained finality and the question of adverse
possession amounts to challenging the decree of the Trial Court in
Second Appeal without preferring any First Appeal and as such, the
same plea cannot be taken in Second Appeal.
[8] This Court has considered the submissions made at the
bar and perused the materials on record.
[9] This Court agrees the submissions of Mr. NG. Somorjit,
learned counsel for the respondent/defendant, that the purported
question of law cannot be considered Second Appeal as it amounts to
challenge the finding of the Original Court while dismissing the civil suit
without finding any appeal against. However, this Court is of the opinion
that the only issue involved in the present appeal is whether the
appellant/plaintiff is liable to be evicted from the suit land or not as held
by the First Trial Court.
[10] Accordingly, the following substantial question of law is
framed as to whether the First Appellate Court was right in directing the
appellant/plaintiff to be evicted from the suit land. The appeal is
admitted on this ground.
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[11] Since paper book is already prepared, list this case on
19.09.2024 for hearing.
JUDGE
Kh. Joshua Maring
KH. Digitally signed
by KH. JOSHUA
JOSHUA MARING
Date: 2024.08.27
MARING 17:04:37 +05'30'
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