The court ruled that objections to maintainability must be raised in pleadings; failure to do so precludes their consideration at the appellate stage.

JUDGMENT :

(Devashis Baruah, J.)

Heard Mr. K. R. Patgiri, the learned counsel appearing on behalf of the appellant.

2. This is an application filed under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) challenging the judgment and decree dated 13.09.2024 passed by the learned Court of the Civil Judge (Senior Division), Lakhimpur, North Lakhimpur in Title Appeal No.9/2023 whereby the judgment and decree dated 24.08.2023 passed by the learned Munsiff No.1, North Lakhimpur in Title Suit No.29/2022 was affirmed.

3. The instant Appeal is taken up at the stage of Order XLI Rule 11 of the Code for deciding as to whether any substantial question of law is involved in the instant Appeal.

4. Mr. K. R. Patgiri, the learned counsel appearing on behalf of the appellant submitted that in the Memo of Appeal, three substantial questions of law have been proposed and are involved in the instant Appeal. For the sake of convenience, the three proposed substantial questions of law are reproduced herein under:-

(I) Whether the Civil Court adjudicate the matter when the matter is pending for declaration of the legality and validity of the mutation order before the Revenue Authority under Regulation No-154 of Assam Land Regulation, 1886?

(II) Whether the Civil Court declared the action of the Revenue Authority as illegal and canceling the mutation order passed in favaur of the defendant without made the revenue Authorities as party defendant?

(III) Whether the Civil Court can declare the mutation order passed by the Circle officer as illegal without recalling the case record of the mutation case and without proving the same by the custodian?

5. From a perusal of the three substantial questions of law which have been proposed, it transpires that the appellant herein wants to assail the judgment and decree passed by the learned Trial Court as well as the learned First Appellate Court solely on the ground that the Civil Court did not have the jurisdiction in view of the bar contained under Section 154 of the Assam Land and Revenue Regulation, 1886.

6. This Court has duly taken note of the pleadings in the suit and from the written statement so filed by the appellant, nowhere it shows that any ground has been taken as regards the maintainability of the suit in view of the bar contained under Section 154 of the Assam Land and Revenue Regulation, 1886. Under such circumstances, the substantial questions of law which have been proposed is based upon an objection to the maintainability of the suit for the first time taken before this Second Appellate Court. It is the opinion of this Court that as the substantial questions of law so proposed have no edifice in the pleadings of the defendant and for which there has been no issues, the said substantial questions of law so proposed do not arise in the instant Appeal.

7. Accordingly, the instant Appeal stands dismissed.

8. However, taking into account the facts involved, this Court is not inclined to impose any costs.