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Judgment
[1] Heard Mr. S. Bhattacharji, learned counsel appearing for the appellants. None appears for the respondent despite due notice from this Court.
[2] This is an appeal under Section 100 of the CPC arising from the judgment dated 22.02.2011 delivered in T.A. No. 19 of 2010 by the District Judge, North Tripura, Kailashahar (as he then was). The said judgment affirmed the judgment dated 27.09.2010 delivered in T.S. 46 of 2009 by the Civil Judge, Sr. Division, North Tripura, Kailashahar and as consequence thereof the first appeal being T.A. 19 of 2010 was dismissed. Challenging the first appellate judgment the appellants have raised several grounds in this appeal.
[2] But for purpose of hearing, this Court had framed the following substantial questions of law by the order dated 01.02.2012:
"Whether the respondent-plaintiff is barred from filing subsequent suit i.e. T.S. No. 46 of 2009 as the earlier suit i.e. T.S. No. 43 of 2008 for the same subject matter, according to the appellant, had been dismissed on default?"
The appellants were given liberty to raise any other substantial question of law which might be required for just decision of the second appeal.
[3] Mr. S. Bhattacharji, learned counsel appearing for the appellants did not press for any other substantial question of law and as a result, no other substantial questions of law is required to be considered by this court.
[4] On 06.08.2016 this Court had passed the following order:
"A specific order was passed on previous occasion that there shall be no more adjournment but still it appears that the learned counsel are not ready to argue the case.
This is quite shocking.
List it on 11.11.2016. It made clear that if there is no representation on behalf of the appellants on that day for arguing the matter the appeal will be dismissed and in case there is no representation on behalf of the respondent, the argument of the appellants will be heard and the appeal will be decided."
[5] Despite that, on 11.11.2016, 10.02.2017, 10.04.2017, 13.04.2017, 19.04.2017 and 05.05.2017 the appeal was listed but for various reasons the appellants could not be heard. When the appeal was taken up for hearing today, none appears for the respondents and the matter was taken up after calling out several times. Even, there was not mention for adjourning the matter from the respondents. The sole respondent filed the suit being T.S. 46 of 2009 against the appellant, the defendants in the suit.
[6] There is no dispute that the suit has been described in the schedule of the plaint, the suit land was formerly the government land and the sole respondent got allotment of the suit land by allotment order dated 20.10.1984. According to the plaintiff-respondent, he was under possession of the entire A- Schedule land by planting tress etc. On 17.08.2008, the appellants made an unsuccessful bid to dispossess the respondent from the land as described in the Schedule-B in the plaint. The respondent thereafter filed the said suit being T.S. 43 of 2008 in the Court of Civil Judge, Sr. Division, North Tripura (as he then was).
[7] The suit was filed for perpetual injunction. On 14.10.2009, the suit being T.S. 43 of 2008 was dismissed for non- prosecution. During pendency of T.S. No. 43 of 2008, the appellants, according to the plaintiff, entered illegally in the possession of the Schedule-B land and as consequence thereof, a fresh suit being T.S. 46 of 2009 has been filed for declaration of title and recovery of the possession.
[8] The appellants filed the written statement. In the written statement filed in T.S. 46 of 2009, the appellants herein contended that they were inducted in that land by Sukumar Chandra Nag, Paresh Chandra Nag, Haripada Nag and Satyendra Chandra Nag etc. by executing an un-registered deed. In the previous Khatian pertaining to the suit land, those persons were shown as un-authorized possessors.
[9] The defendants, the appellants herein, pressed that the suit was not maintainable as the suit was barred by preclusion under Order-IX Rule-9 of the CPC. The former suit being T. S. 43 of 2008 was dismissed for non-prosecution on 24.10.2009 was between the same parties and in respect of the same land and substantially on the same subject matter.
[10] The appellants as the defendants contended in the written statement that the respondent never possessed the suit land and the allotment order was the result of fraud and deception. It was further contended in the written statement that the respondent's son Gopal Nag along with others caused the criminal trespass and injured the wife of the appellant No. 1. Following that incident, a police case being Kumarghat P.S. Case No. 75 of 2008 was registered under Section 324 of the IPC. After trial, the son of the respondent was convicted and sentenced by the trial court under Section 324 of the IPC.
[11] This Court does not find any relevance in the said instance so far the controversy that is fallen for adjudication in the suit is concerned. Be that as it may, the following issues were framed by the trial court for adjudicating the disputes raised in the pleadings:
(i) Is the suit maintainable in its present form?
(ii) Is there any cause of action for this suit?
(iii) Is the plaintiff entitled to get the decree declaring his right, title and interest in the suit land?
(iv) Is the plaintiff entitled to get recovery of vacant possession of the suit land after removal of all obstructions made by the defendants on the suit land?
(v) Are the parties entitled to get any relief/costs?
[12] For supporting the respective cases, both the plaintiffs and the respondent led the evidence both oral and documentary. On appreciation of the evidence, the trial court delivered the judgment dated 27.09.2010 by decreeing the suit. The trial court had observed, inter alia, as under on the question of maintainability as raised by the defendants:
"Order-IX, Rule-9 OF the CPC precludes the plaintiff to bring fresh suit in respect of the same cause of action if the suit has been dismissed under Rule -8 of Order -IX. Under Order-IX, Rule-8 the suit shall be dismissed where the defendant appears and the plaintiff does not appear where the suit is called on for hearing. The order of dismissal passed on 24.10.2009 in T.S. 43 of 2008 in its spirit and nature appears to be passed not under Order-IX Rule-8. This said order only appears to be passed either under Order-IX, Rule-2 or Rule-3. Rule-4 of Order-IX provides that if the suit of plaintiff dismisses either under Rule-2 or 3, plaintiff may subject to the law of limitation bring a fresh suit or he may apply for an order to set the dismissal aside. Here in the case at hand I notice that plaintiff instead of applying for an orde3r to set the dismissal aside the order dated 24.10.2009 in T.S. 43 of 2008 has brought fresh suit i.e. the present suit, which evidently has no bar as per provision of Rule-4 of Order-IX of CPC. Apart from that had the suit (T.S. 43 of 2008) been dismissed under Rule-8 of Order-IX, yet I find that plaintiff is not barred to bring that suit as the cause of action of T.S. 43 of 2008 and the cause of action of this present suit apparently is not same. That, being the situation, I find that suit of the plaintiff is maintainable in its present form, resulting, this issue is decided against the defendants."
[13] Being aggrieved by the judgment dated 27.09.2010 delivered in T.S. 46 of 2009, the appellants herein, preferred the appeal under Section 96 read with Order-XLI of the CPC in the court of the District Judge, North Tripura, Kailashahar (as he then was) being T.A. 19 of 2010.
[14] The identical ground has taken in the appeal also. The said appeal was dismissed by the first appellate court by the judgment dated 22.02.2011 which is under challenge in this appeal. The first appellate court considered that ground and finally found no merit.
[15] That apart, it has been observed that if there is any violation of conditions of the allotment order, the Civil Court cannot extend its jurisdiction inasmuch as it is the competent authority, the District Collector or its delegate is supposed to adjudicate the violation or infringement of any condition. But there was no such challenge from the appellants. The first appellate court has clearly observed as under:
"From the evidence on record it is crystal clear that the appellants denied the right, title and interest of the respondent-plaintiff and also dispossessed the respondent-plaintiff from the suit property described in the B-scheduled land of the plaint measuring .15 acre of land. The claim of the appellants is on the basis of an unregistered deed. The unregistered deed describes the land of the khas khatian. The trespassers have no title over the land. They trespassed into the khas land without any authority. So, appellants-defendants acquired no right, title and interest on the suit land on the strength of the unregistered deed. They also did not claim any right against the Govt. by virtue of adverse possession. Though they had no title and possession, but they dispossessed the respondent-plaintiff forcefully, who got allotment from the competent authority, i.e. Collector. Therefore, the appellants' claim for setting aside the judgment and decree of the learned court below has no merit. After considering the evidence on record it is established that the issue are correctly answered by the learned court below and deserve no interference by this court of appeal. The grounds as put forward by the appellants-defendants have no leg to stand and the appeal is devoid of merit. However, at the time of execution of the decree suit land is to be identified by survey commission and on identification decree will be executed."
[16] Having observed thus, the decree for recovery of the khas possession in respect of the Schedule-B land has been affirmed and directed to be executed in the manner as indicated.
[17] Mr. Bhattacharji, learned counsel appearing for the appellants has fairly admitted that during the course of hearing of the first appeal, the appellants did not insist on the maintainability of the suit being barred by res-judicata.
[18] Mr. Bhattacharji, learned counsel has further submitted that when the former suit was dismissed for default as no steps was taken by the plaintiff, it cannot be held that the said order of dismissal was not an order passed under Order-IX, Rule-9 of the CPC. Even he has submitted that the allotment order was perverse inasmuch as the appellants were in possession over the allotted land, the schedule-A land in the plaint.
[19] Having heard the learned counsel appearing for the appellants this Court has found no infirmity in the concurrent finding as returned by the first appellate court in respect of the order of allotment. Similarly, this Court is unable to accept the submission of the appellants that the suit is barred the provisions of by Order-IX, Rule-9 of the CPC inasmuch as it is apparent on the face of the record is that the subsequent suit being T.S. 46 of 2009 has been instituted on a fresh cause of action, the dispossession from the suit land, whereas in the former suit being T.S. 43 of 2008 was instituted on apprehension of dispossession and hence, the relief was for perpetual injunction against the appellants. Hence, the trial court has rightly held that the suit cannot be declared as not maintainable in view of the preclusionary provision under Order-IX, Rule-9 of the CPC.
[21] Having observed thus, this Court does not find any merit in this appeal and accordingly, the same is dismissed. Draw the decree accordingly and thereafter send down the LCRs.