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2012 Supreme(Gau) 790
IN THE HIGH COURT OF GAUHATI
Brojendra Prasad Katakey, J.
Smti Hareswari Hazowari, W/o late Mahat Hazowari and Sri Himu Hazowari, Son of late Mahat Hazowari, Both are Residents of Dudhnoi, P.O. Dudhnoi, Dist. Goalpara, Assam - Appellants
Vs.
Sri Madan Rabha, S/o late Sani Ram Rabha and Ors. - Respondent
RSA No. 52/2002
Decided On: 26.06.2012
For Appellant/Petitioner/Plaintiff:Mr. S. Sarma, Mr. A.N. Choudhury, Mr. R. Islam, Mr. R. Dey and Mr. J. Deka, Advocates
For Respondents/Defendant:Mr. H.K. Deka and Mr. H. Nath, Advocates
The central legal point established in the judgment is the correct application of the Limitation Act to a suit for declaration of right, title, and interest, emphasizing the distinction between possession-based claims and title-based claims.
Headnote:
Limitation Act - Declaration of Right, Title and Interest - Article 64, Article 65 - The court remitted the case to the first appellate court for deciding the appeal afresh based on the issues framed, as the trial court has not recorded any finding against the issue Nos. 3 and 4. The appeal shall be decided on the basis of the evidences available on record.
Fact of the Case:
The plaintiffs filed a suit for declaration of right, title, and interest over a plot of land. The defendants contested the suit, denying the plaintiffs' title and claiming adverse possession. The trial court dismissed the suit as barred by limitation, without addressing the claim of the plaintiffs for declaration of right, title, and interest or the nature of the suit land.
Finding of the Court:
The court found that the trial court and the first appellate court erred in applying Article 64 of the Limitation Act, as the suit was for declaration of right, title, and interest, and not for possession based on previous possession. The court remitted the case to the first appellate court for a fresh decision based on the issues framed and the evidence on record.
Issues: The issues included whether there was a cause of action, whether the suit was barred by limitation, whether the plaintiffs had right, title, and interest over the land, and whether the suit land was khas or patta land of the plaintiffs.
Ratio Decidendi: The court held that the suit for declaration of right, title, and interest fell under Article 65 of the Limitation Act, and not Article 64. It emphasized the importance of addressing the issues related to the plaintiffs' right, title, and interest, as well as the nature of the suit land.
Final Decision: The appeal was allowed, and the case was remitted to the first appellate court for a fresh decision based on the issues framed and the evidence on record.
Hon'ble Mr. Justice B.P. Katakey
1. This appeal by the plaintiffs is directed against the judgment and decree dated 28.9.2001 passed by the learned Civil Judge, (Senior Division), Goalpara in Title Appeal No. 2/2001 dismissing the appeal preferred by the plaintiffs/appellants by upholding the judgment and decree dated 30.10.2000 passed by the learned Civil Judge (Junior Division), No. 1, Goalpara in Title Suit No. 31/1995. The appellants, as plaintiffs, instituted the suit for declaration of right, title and interest over the plot of land measuring 10 lechas under Dag No. 172/520 of village Thekesu Part I under Dudhnoi Circle, contending inter alia that the plaintiff Nos. 1 and 2 are the owner of 4 bighas 1 kathas of land covered by Dag No. 172/520, out of which 17 lechas of land was transferred to one Madan Lal Todi, leaving 4 bighas 0 kathas 3 lechas in the name of the plaintiffs, in respect of which land the plaintiff No. 2's name was also mutated in the last settlement operation along with the plaintiff No. 1 being the owners of the land. It is also the pleaded case of the plaintiffs that out of 4 bighas 0 kathas 3 lechas of land, the defendant in the middle of 1993 trespassed into 10 lechas of land and despite the protest of the plaintiff No. 2 started construction of houses thereby clouding the title of the plaintiff for which the suit has been filed for declaration of right, title and interest and for recovery of khas possession by demolishing the structures thereon and by evicting the defendants.
2. The suit was contested by the defendants by filing a joint written statement denying the title of the plaintiffs and also taking the plea that the suit is barred by limitation. It has also been pleaded that the defendants are possessing the suit land for 30-35 years by constructing houses thereon and their right over the land has ripen by prescription of law i.e. by right of adverse possession.
3. The trial court on the basis of the pleadings framed the following issues for determination :
1. Whether there is any cause of action to the suit.
2. Whether the suit is barred by law of limitation.
3. Whether the plaintiffs have right, title and interest over the suit, Dag No. 172/520.
4. Whether the suit land is the khas land or patta land of the plaintiffs?"
5. To what reliefs the plaintiffs are entitled to.
4. The trial court on the basis of the evidences on record, both oral and documentary, dismissed the suit filed the plaintiffs by holding that the suit of the plaintiffs is barred by limitation, the same having not been brought within 12 years as required under Article 64 of the Limitation Act. The trial court, however, has not recorded any finding relating to the claim of the plaintiffs for declaration of right, title and interest over the suit land. No finding has also been recorded against the issue No. 4 i.e. whether the suit land is a Govt. khas land or patta land of the plaintiffs.
5. Being aggrieved the plaintiffs preferred Title Appeal No. 2/2001 in the court of the learned Civil Judge (Senior Division) which has also been dismissed as aforesaid, vide judgment and decree dated 28.9.2001. The first appellate court has held that the suit of the plaintiffs is barred by time in view of Article 64 of the Limitation Act. The first appellate court, however, did not record any finding relating to the claim of the plaintiff for declaration of right, title and interest (issue No. 3) and whether the land is a Govt. khas land as pleaded by the defendants or patta land belonging to the plaintiffs as pleaded by the plaintiffs in their respective pleadings (issue No. 4). Hence the present appeal.
6. The appeal was admitted for hearing vide order dated 18.6.2002 on the following substantial question of law:
1. Whether the suit was barred by limitation and whether Article 64 of the Limitation Act was applicable as held by the courts below.
7. I have heard Mr. J Deka, learned counsel for the appellants as well as Mr. B Deka, learned couns
