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2014 Supreme(Gau) 336
IN THE HIGH COURT OF GAUHATI
C.R. Sarma, J.
Sri Harendra Ojha – Appellants
Vs.
Sri Suresh Choudhury and Others – Respondent
Civil Revision Petition No. 150 and 159/2013
Decided On: 11.04.2014
For Appellant/Petitioner/Plaintiff:Mr. G.N. Sahewalla, Senior Advocate, Md. Aslam, Mr. J. Kataky and Mr. P. Deka, Advocates
For Respondents/Defendant:Mr. G.P. Bhowmik, Mr. S.S. Roy and Mr. M. Mahanta, Advocates
Headnote:
Civil Procedure Code, 1908 - Order VI and VIII - Rule 9 and 17 - Revision petitions – Challenged – Suit for declaration of right, title, interest and for recovery of khas possession by removing defendants in respect of suit land - Forcefully and illegally occupied suit land - Counter claim for adjudication - By impugned orders learned Munsiff, Margherita rejected prayers, made by petitioners for accepting their counter claims in T.S. and T.S - Predecessor in interest of respondents in both cases instituted Title Suit against Shri Harendra Ojha and Shri Kaushal Singh, (i.e. petitioner in CRP No. 159/2013), seeking a decree for declaration of right, title, interest and for recovery of khas possession by removing defendants aforesaid, in respect of suit land, on ground that the defendants forcefully occupied the same - Held, It is not a case that defendant has brought new pleadings by proposed counter claim, rather averments, made in their earlier written statements, have been reiterated in form of counter claims - In view of amending plaint in 2010 and filing of counter claims in the same year itself, it can t be concluded that defendants, with an ulterior motive, attempted to prolong the proceedings - Rather acceptance of the counter claims, for adjudication with the present suits, will facilitate to resolve dispute raised by parties in same proceeding – Court opinion that learned Munsiff ought to have allowed petitions seeking permission to file counter claims and accept counter claim for adjudication, subject to cost etc - Petition allowed.
C.R. Sarma, J.
1. The order, dated 11.02.2013, passed by the learned Munsiff, Margherita in Title Suit No. 17/2007 is in challenged in Civil Revision Petition No. 150/2013 aforesaid and the order, dated 11.02.2013, passed by the learned Munsiff, Margherita in Misc. (J.) Case No. 12/2010 (in TS No. 16/2007) is in challenged in Civil Revision Petition No. 159/2013.
2. By both the impugned orders aforesaid, the learned Munsiff refused to accept the counter claims filed by the respective defendants (present petitioners), in the said title suits.
3. I have heard Mr. G.N. Sahewalla, learned senior counsel, assisted by Md. Aslam, learned counsel, appearing for the petitioners/defendants in both the revision petitions. Also heard Mr. G.P. Bhowmik, learned counsel, appearing for the respondents/plaintiffs in both the cases.
4. By the impugned orders, aforesaid, the learned Munsiff, Margherita rejected the prayers, made by the petitioners for accepting their counter claims in T.S. No. 16/2007 (Misc. (J.) Case No. 12/2010) and T.S. No. 17/2007 (Petition No. 593/2010).
5. As both the revision petitions, represented by the same set of lawyers, involve same question of law based on identical facts, for the sake of convenience and as agreed to by the leaned counsel, appearing for both the parties, I propose to dispose of both the revision petitions aforesaid by this common order.
6. The predecessor in interest of the respondents in both the cases instituted Title Suit No. 16/2007 against Shri Harendra Ojha (i.e. the petitioner in C.R.P. No. 150/2013) and Shri Kaushal Singh, (i.e. the petitioner in CRP No. 159/2013), seeking a decree for declaration of right, title, interest and for recovery of khas possession by removing the defendants aforesaid, in respect of the suit land, on the ground that the defendants forcefully occupied the same. Subsequently, the plaintiffs, by filing amendment petitions, amended the plaint in T.S. No. 16 of 2007 and the plaint in T.S. No. 17 of 2007 on 08.02.2010 and brought on record the challenge to the Sale Deeds No. 2192/1984 and No. 408 of 1979, alleged to be executed by the plaintiffs in respect of the suit land in favour of the defendants.
7. The defendants, by filing their respective written statements, denied the allegations, made by the plaintiffs. The defendants, in the said suits, claimed that they were possessing the suit land (for 35 years in T.S. No. 16/2007 and 20 years in T.S. No. 17/2007, by constructing residential house and raising vegetables and trees etc. thereon. The said defendants further averred that the plaintiff, being an influential person, illegally obtained the Patta in respect of the suit land also and that the defendants' predecessor-in-interest had purchased the suit land from the father of the plaintiff by registered Sale Deeds No. 2192/1984 and No. 408 of 1979 and thus they acquired title and right over the suit land.
8. The defendants further denied the plaintiff's allegations that they had forcefully and illegally occupied the suit land.
9. After filing the said written statement, on 04.05.2010 i.e. after amendment of the plaint, on 08.02.2010, the defendants, in both the suits, filed counter claims reiterating the claims made in their written statements and thus, by claiming that the suit land was possessed by them for 35 years (by the defendant in T.S. No. 16 of 2007) and 20 years by the defendant (in T.S. No. 17/2007), pleaded that they obtained title in respect of the suit land by virtue of purchase vide sale deeds and that the plaintiff, suppressing the fact regarding possession of the defendant and the sale of the suit land in favour of the defendants, had fraudulently obtained mutation in respect of the entire suit land.
10. In view of the above, the defendant, by way of counter claims, prayed for decree for declaration of their right, title and confirmation of possession, interest on the basis of the Sale Deed Nos. 2192/1984 and 408 of 1979 and long, uninterrupted, open a
