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1990 Supreme(Gau) 17
GAUHATI HIGH COURT
R.K.Manisana Singh, J.
Durga Devi (Died and Legal RPS) -Appellant
Versus
Panna Devi -Respondent
Misc.Appeal No. 6 of 1980, Second Appeal No. 36 of 1980 and Civil Revision No. 32 of 1980
Decided On : 19-01-1990
R.L.Yadav, N.M.Lahiri, N.C.Das, J.P.Bhattacharjee, J.N.Sharma, A.C.Sharma
The appellate court has jurisdiction under Order 41, Rule 33, Code of Civil Procedure to rectify an error in the judgment and decree of the lower court, even if the lower court has not passed any decree or made any order which ought in law to have been passed or made, although the respondent has not appealed or filed cross-objection.
Headnote:
HINDU LAW - MITAKSHARA SCHOOL - GIFT - ORAL GIFT - VALIDITY - SECTION 123, TRANSFER OF PROPERTY ACT - ADVERSE POSSESSION - TENANCY - DEFAULT IN PAYMENT OF RENT - EVICTION - NOTICE UNDER SECTION 106, TRANSFER OF PROPERTY ACT - BONA FIDE REQUIREMENT - ORDER OF REMAND - APPEALABILITY - JURISDICTION OF APPELLATE COURT UNDER ORDER 41, RULE 33, CODE OF CIVIL PROCEDURE.
Fact of the Case:
Senehiram died in 1949 leaving his widow Krishni and three sons, namely Mannalal, Sawarmal and Sitaram and his four daughters, namely Patia, Rampiyari, Radha and Durga. Mannalal died in 1954 leaving his widow Panna aod three sons, namely Radheshyam, Ramgopal and Motilal, and four daughters, namely Geeta, Ridhia, Chanda and Puspa. Senehiram's widow Krishni died in 1962. Naurangrai is the husband of Durga. Parties are governed by the Mitakshara School of Hindu law.
Finding of the Court:
1. Oral gift of the suit premises to Durga by her father Senehiram in 1948 was not proved as per section 123, Transfer of Property Act. 2. Durga's right was not perfected by adverse possession as there was no overt act indicating assertion of hostile title. 3. Naurangrai was a tenant of the suit premises and was in default of payment of rent. 4. Notice under section 106, Transfer of Property Act is not required for determination of lease by forfeiture for the eviction of tenant under any State Rent Control Act. 5. The suit premises were not bona fide required by the plaintiffs. 6. The order of remand was not justified and was set aside under Order 41, Rule 33, Code of Civil Procedure.
Issues: 1. Whether the oral gift of the suit premises to Durga by her father Senehiram in 1948 was valid. 2. Whether Durga's right was perfected by adverse possession. 3. Whether Naurangrai was a tenant of the suit premises and was in default of payment of rent. 4. Whether notice under section 106, Transfer of Property Act is required for determination of lease by forfeiture for the eviction of tenant under any State Rent Control Act. 5. Whether the suit premises were bona fide required by the plaintiffs. 6. Whether the order of remand was justified.
Ratio Decidendi: 1. An oral gift of immovable property is not valid under section 123, Transfer of Property Act. 2. Adverse possession requires an overt act indicating assertion of hostile title, which was not present in this case. 3. Tenancy and default in payment of rent were established by the evidence on record. 4. Notice under section 106, Transfer of Property Act is not required for determination of lease by forfeiture for the eviction of tenant under any State Rent Control Act. 5. Bona fide requirement of the suit premises was not proved by the plaintiffs. 6. The order of remand was not justified as the lower appellate court had not passed a decree which ought in law to have been passed.
Final Decision: The appeals and revision petition were dismissed. The suit filed by Panna and others was decreed and the suit filed by Naurangrai and his wife was dismissed.
2. Facts, — One Senehiram died in the year 1949 leaving his widow Krishni and three sons, namely Mannalal, Sawarmal and Sitaram and his four daughters, namely Patia, Rampiyari, Radha and Durga. Mannalal died in the year 1954 leaving his widow Panna aod three sons, namely Radheshyam, Ramgopal and Motilal, and four daughters, namely Geeta, Ridhia, Chanda and Puspa. Senehiram's widow Krishni died in 1962. Naurangrai is the husband of Durga. Parties are governed by the Mitakshara School of Hindu law.
Panna and Radheshyam instituted Title Suit No. 21 of 69/35 of 1972 in the Court of the Assistant District Judge, Gauhati against Naurangrai, husband of Durga, and others for eviction of Naurangrai from the suit premises under Holding No. 20 of Ward No. 6 of Gauhati Municipal Corporation and arrears of rent, etc. Their case is as follows. The suit premises were coparcenary properties of the Hindu joint family firm, M/s Jainarain Senehiram. Naurangrai has been a tenant under the firm at a monthly rent of Rs.300/- with effect from July 1950. By a registered deed of partition dated 13.2.67 between the coparceners, the suit premises were allotted to them as their share and, therefore, they are the full owners of the suit premises. After the partition, Naurangrai, was allowed to remain as tenant of Panna and Radheshyam under an agreement that he would remain as such upto March 1967 till a new agreement was made. But Naurangrai has defaulted to pay the rent since December 1967 and he has also made unauthorised construction and alteration. That apart, the suit premises are bona-fide requirei for their own use.
Durga and her husband Naurangrai filed counter suit being Title Suit No. 92 of 60/40 of 1972 against Panna, Radheshyam and others in the Court of the Assistant District Judge (II) Gauhati for declaration of her right and titles to the suit premises and for confirmation of possession, etc. Their case is that in the year 1948 they came from Pakistan (now Bangladesh) to Gaubati as was desired by Senehiram. Senehiram, who died in the year 1949, was the owner of the suit premises. On their arrival at Gauhati, during his life time, Senehiram made an oral gift of the suit premises to his daughter Durga in the year 1948 with delivery of possession out of love and affection. Since then Durga and her husband have been in possession of the suit premises as their own perfecting thereby their right by adverse possession. Naurangrai has never been a tenant of anybody in respect of the suit premises. (It may be noted here that Durga died during the pendency of the Suit and her legal representatives have been made parties to the Suit).
3. The suits were jointly tried by the Assistant District Judge (II) Gauhati, The trial Court by a common judgment dismissed the Title Suit No 21 of 69/35 of 1972 instituted by Panna and Radheshyam and decreed Title Suit No. 92 of 69/40 of 1972 filed by Durga and her husband Naurangrai in their favour. Being aggrieved by the decrees of the trial Court, Panna and Radheshyam filed two separate appeals, namely Title Appeal Nos. 8 and 9 of 1976, in the Court of the District Judg3, Gauhati. The lower appellate Court allowed the appeals and dismissed the suit filed by Durga and her husband and made an order of remand in respect of the suit filed by Panna and Radheshyam to the trial Court for determination on the question formulated in its judgment. Hence these appeals and revision.
4. The revision petition (Civil Revision No. 32 of 1980) has been filed doubting whether an appeal shall lie or not from such an order of remand. The question which therefore arises for consideration is whether an order of remand is appealable. O 43, R 1 (u) provides that an appeal shall lie from "an order under Rule 23 A of O
