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2019 Supreme(Gau) 390
IN THE HIGH COURT OF GAUHATI
Suman Shyam, J.
Bhabesh Ch Rabha And Another - Appellants
Vs.
Dhanu Bhanga Anchalik Unnayan Samity And Others - Respondents
Regular Second Appeal No. 53 of 2013
Decided On : 25-06-2019
A.C. Sarma, Adv., H. Das, Adv.
An unregistered society cannot sue nor can it be sued in a court of law, and a suit in a representative capacity can only be instituted with the permission of the court.
Headnote:
unregistered society - right, title and interest over the suit property - Transfer of Property Act, Section 123; Order I Rule 8 CPC
Fact of the Case:
The suit was filed by an unregistered society and its office bearers seeking declaration of right, title and interest over a plot of land. The defendants contested the suit, questioning its maintainability and the possession of the suit land.
Finding of the Court:
The court found that the suit filed by the unregistered society was not maintainable in the eye of law. It held that an unregistered society cannot sue nor can it be sued in a court of law. The court also noted that the suit filed in a representative capacity lacked the necessary permission of the court.
Issues: The main issues were the maintainability of the suit filed by the unregistered society and its office bearers, and the possession of the suit land.
Ratio Decidendi: The court held that an unregistered society cannot sue as a plaintiff and that a suit in a representative capacity can only be instituted with the permission of the court.
Final Decision: The appeal was allowed, the impugned judgment and decree were set aside, and the plaintiffs' suit was dismissed. The court allowed the possibility of the office bearers of the plaintiff to institute appropriate proceedings in representative capacity, by obtaining leave of the court in accordance with law.
JUDGMENT :
Suman Shyam, J.
Heard Mr. A.C. Sarma, learned Sr. counsel appearing for the appellants. Also heard Mr. H. Das, learned counsel representing respondent Nos. 1, 2 and 3. None has appeared for the respondent No. 4.
2. This second appeal has been preferred against the concurrent judgment and decree dated 29-11-2012 passed by the learned District Judge, Goalpara in Title Appeal No. 01/2011 affirming the decree dated 06-10-2010 passed by the learned Civil Judge, Goalpara in Title Suit No. 09/2007.
3. The suit was jointly instituted by the respondent Nos. 1, 2 and 3 as plaintiffs. The plaintiff No. 1, viz. Dhanu Bhanga Anchalik Unnayan Samity is an unregistered society and the plaintiff Nos. 2 and 3 are the president and the secretary, respectively, of the said society. The suit of the plaintiffs was for declaration of right, title and interest of the plaintiff No. 1 over a plot of land measuring 1 katha covered by Patta No. 508 (new)/521 (old) of P.P. No. 234 situated under village Madang Part- 2, Rangjuli Circle, P.S. Dhupdhara in the district of Goalpara. According to the plaintiffs, the suit land originally belonged to the proforma defendant/respondent No. 4 herein who had gifted the same to the plaintiff No. 1 by means of a registered deed of gift (Exhibit-6). But the defendant Nos. 1 and 2, who did not have any right, title or interest over the said plot of land had started filling up earth over the suit land with the sole intent of depriving the people of the locality living in 42 villages.
4. The suit of the plaintiff was contested by the defendants/appellant Nos. 1 and 2 by filing written statement, inter alia, questioning the maintainability of the suit. Based on the pleadings of the parties, the learned Trial Court had framed the following issues:
(1) Whether there is cause of action for the suit?
(2) Whether the suit is maintainable in present form and manner?
(3) Whether the plaintiffs have paid proper ad-valorem Court fee for having no possession over the suit land?
(4) Whether the Plaintiff No. 1 has been possessing the suit land continuously for last 17 years for the interest of the public comprising 42 villagers?
(5) Whether the defendants have right, title to and possession over the suit land?
(6) Whether the plaintiffs are entitled to relief’s as claimed for?
(7) To what other relief or relief's the parties are entitled to?
5. It appears that the suit land was an annual patta land which was subsequently converted into periodic patta and was recorded in the name of the respondent No. 4. Pursuant to the execution of the gift deed, the revenue record has been corrected and the name of the plaintiff No. 1 had been recorded as pattadar in respect of the suit land. A perusal of the plaint goes to show that the plaintiffs have not mentioned in the plaint about the execution of the gift deed (Exhibit-6) by the proforma defendant No. 4 in favour of the plaintiff No. 1. However, during trial, the aforesaid gift deed was adduced in evidence, based on which, the learned Trial Court had decreed the suit in favour of the plaintiffs. In the appeal preferred by the defendants being Title Appeal No. 01/2011, the learned District Judge has also affirmed the decree dated 06-10-2010 passed by the Civil Judge, Goalpara in Title Suit No. 09/2007.
6. While admitting the appeal, the following substantial questions of law were framed by this Court:
(1) Whether annual patta holder can transfer by way of gift the right, title and interest of the land before converted it to a periodic patta?
(2) Whether Jamabandi/record of rights are the prima-facie proof of title? And
(3) Whether Gift Deed (Exht.6) was executed and registered in accordance with Section 123 of Transfer of Property Act?
7. Subsequently, by the order dated 19-02-2019, two more additional substantial questions of law have been framed by this Court, which are as follows:
(4) Whether the finding of issue No. 2 by the courts below is proper inasmuch as plaintiff/respondent, Anchalik Unnaya
