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2015 Supreme(Gau) 294
IN THE HIGH COURT OF GAUHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
A.K. GOSWAMI, J.
Tuta Mia Laskar - Plaintiff/Appellant
Versus
Abdul Musabbir Ali Laskar & Ors. - Defendants/Respondents
RSA 73/2007
Decided on : 20.05.2015
Advocate Appeared:
For the appellant: Mr. A. Alam
For the respondents: Mr. M.H. Rajbarbhuiya
Headnote:
Civil Procedure Code,1908 – Orders 21 and 22 Rules 4 and 94/95 - Interest and recovery of khas possession of Schedule-2 land - Appeal is preferred by plaintiff/appellant against judgment and decree - Appellate court reversed issue relating to maintainability of suit - Noting that trial court had rejected petition for imp leading legal representatives of defendant and thereby holding that suit abated under Order 22 Rule 4 Civil Procedure Code as against him only - It was observed that as allegation of dispossession was against defendant cause of action against other defendants did not survive - It was also held that trial Court could not have decreed suit against a dead person - Held, It is to be noticed that in present appeal though suit against defendant had abated in trial Court itself his heirs are arrayed as parties in his place as his legal representatives - Legal representatives of defendant were not parties in first appeal - Therefore legal heirs of defendant could not have been legally brought in as respondents and they being arrayed as such is inconsequential - Trial court decreed suit against all defendants who had filed written statement totally ignoring fact that suit had abated according to trial Court itself against defendant - Consequently question whether abatement of suit as against defendant would result in abatement of suit as against other defendants was not even gone into - At any rate no decree could have been passed against defendant and suit ought to have been dismissed as against him - Appeal dismissed
This second appeal is preferred by the plaintiff/appellant against the judgment and decree dated 19.03.2007 passed by the learned District Judge, Hailakandi, in Title Appeal No. 13/2005 setting aside the judgment and decree dated 20.09.2005 passed by the learned Civil Judge, Senior Division, Hailakandi, in Title Suit No. 4/1998.
2. Vide an order dated 25.07.2007, this second appeal was admitted to be heard on the following substantial questions of law:-
“(i) Whether the learned Lower Appellate Court erred in holding that the appellant-plaintiff’s suit had abated as a whole on the death of the defendant No. 2 and non-substitution of his heirs and legal representatives?
(ii) Whether the learned Lower Appellate Court erred in dismissing the respondent-plaintiff’s suit on the ground of misdescription of the suit land by relying on a map when the same being taken in evidence in accordance with law?
(iii) Whether the learned Lower Appellate Court erred in law in holding against the title of the respondent-plaintiff in the face of the sale deed Ext.-1 and other corroborating evidence on records, oral or documentary?
(iv) Whether the learned Lower Appellate Court left out of consideration material pieces of evidence having a bearing on its ultimate conclusion?”
3. Subsequently, by an order dated 25.03.2015, one more substantial question of law was formulated, which is as follows:-
“Whether the learned lower appellate court erred in law in holding “Ext- C”, a certified copy of a sale-deed, which was objected to by the plaintiff, as admissible in evidence?”
4. The plaintiff No. 1 is the son and plaintiff Nos. 2 to 5 are daughters, respectively, of Late Arju Mia Laskar. The substratum of the plaint is that Arju Mia Laskar, by a registered Deed of Purchase dated 13.03.1953 and registered on 14.03.1953, purchased from Askor Mia Laskar and Haji Kala Mia Laskar, both sons of Kabir Mia Laskar, land measuring in total 14 Bighas 9 Chataks 10 Gondas in various Dags of various Pattas numbering 8 and since the date of purchase was peacefully possessing the same with other co-pattadars. It will be appropriate to state at this stage that Arju Mia Laskar, by the said Deed dated 13.03.1953, had purchased, amongst others, 2 Bighas 18 Kathas and 5 Chatak of land in Dag Nos. 279, 282, 281 and 132 of R.S. Patta No. 102 of Mouza Rangauti Part-I. Immediately thereafter, he executed a sale deed on 20.03.1953, which was registered on 24.03.1953, by which he sold 18 Kathas 5 Chataks of land of R.S. Patta No. 102 referred to above in favour of his daughter, Samsum Nahar Khatun, plaintiff No. 2 as well as 17 Kathas of Land, within Dag No. 104, of R.S. Patta No. 5 of Mouza Dhumkor Part-I and delivered possession to her. According to plaint version, R.S. Patta No. 102 was surveyed in 2nd R.S. Patta No. 50, 112 and 113. R.S. Dag No. 281 and 132 was surveyed in Dag Nos. 282 and 131, respectively, of 2nd R.S. Patta No. 50; R.S. Dag No. 279 was surveyed in Dag No. 280 of 2nd R.S. Patta No. 112 and R.S. Dag No. 282 was surveyed in Dag No. 283 of 2nd R.S. Patta No. 183. Though names of the vendors were mutated, Arju Mia Laskar inadvertently failed to mutate his name in R.S. Patta No. 102 though he was possessing 2 Bighas of land therein, with specific boundary, after having sold 18 Kathas 5 Chataks in favour of plaintiff No. 2 and was paying land revenue. None of the plaintiffs sold their right, title and interest in respect of Patta No. 102 (now 2nd R.S. Patta No. 50, 112, 113) and while plaintiff No. 1 had 1/3rd share, the plaintiff Nos. 2 to 5 had 1/6th share each in the properties left behind by Arju Mia Laskar. Schedule-2 is the suit land comprising 2 Bighas, stated to be within Dag No. 282 and 131 of R.S. Patta No. 50. Schedule-1 refers to land measuring 2 Bighas 18 Kathas 5 Chataks of R.S. Patta No. 102 (now 2nd R.S. Patta No. 50, 112, 113). The land of plaintiff No. 2, measuring 18 Kathas 5 Chataks, was to the west of Schedule-2 land. The suit came to be filed as p
