Mazrul Islam Borbhuyan vs Yacub Ciddikie and Others

N. Surjamani Singh, J.—In this appeal, the Appellant/Plaintiff has challenged validity of the judgment and order dated 30.9.1991 passed by the learned Addl. District Judge, Shillong in T.C.A. No. 9(H) 89 and also, the judgment and decree dated 20.11.1989 and 6.12.1989 respectively, passed by the learned Munsiff, Shillong in T.S. No. 14(H) 89.

The facts of the case in a short compass are as follows:

The present Appellant as Plaintiff instituted a suit for declaration and permanent injunction as against the Defendants/Respondents before the Trial Court, coupled with a prayer for a decree of declaration that the Defendants have got no right, title or interest whatsoever over the suit land including the 6 ft. wide approach path leading therefrom to Bivar Road belonging to the Appellant/Plaintiff and also, for restraining the Defendants, their agents, associates or any other persons from entering into the land of the Plaintiff and from setting up any pillars, fencing or other obstructions and gates there on and/or over or and across the approach path. According to the Plaintiff/Appellant, his late father, B.U. Borbhuyan was the absolute owner of a plot of land being No. 49(1) situate at Bivar Road, Shillong, covered by Patta No. 14 dated 30.7.1970 issued by the Deputy Commissioner, Khashi and Jayantia Hills, Shillong, and after his death the said land has devolved upon his legal heirs and that, their names had been mutated in the related land records.

It is also the case of the Plaintiff/Appellant that the Deputy Commissioner concerned, while according permission for purchase of the said plot of land, had specificity indicated that a 6 ft. wide footpath shall have to be provided to the predecessor of the Appellant/Plaintiff exclusively for their use for the purpose of ingress or egress of the holding and, this 6 ft. wide footpath have along been used peacefully and uninterruptedly by the Appellants''s family members, but, surprisingly the Defendant/Respondents, on 21.7.1989 started obstruction and blockade of the said footpath thus making an attempt to construct RCC pillar at the entrance of the footpath at Bivar Road by engaging a large number of labourers. The Defendants filed the written statement. The Defendant No. 1 mainly contested the suit of the Plaintiff by contending that the deceased father of the Plaintiff/Appellant or any of his heirs have not, or had at any time any land or right over the land or footpath leading and joining to the Bivar Road.

It is also the case of the Defendants No. 1 that the Deputy Commissioner concerned never granted any permission for purchase of any land or 6ft wide footpath leading to Bivar Road to and in favour of the Plaintiff/Appellant''s father (now deceased). It is also asserted by the Defendant No. 1 that the suit is barred by Limitation; there is no cause of action for the suit and the suit is also bad for non joinder and mis-joinder of necessary parties.

On the other hand, the Defendant No. 2 admitted the ownership and right of use over the said path by the Plaintiff''s deceased father during his lifetime. The Defendant No. 2 also highlighted the fact in her written statement that the dispute can be set at rest by a perusal of the related Sale Deeds of 1966 and 1970 which clearly defined the land sold and transferred to the Plaintiff and Defendant No. 2. But, the Defendant No. 2 made a prayer in her written statement that the Trial Court may be graciously pleased to consider her statement and decide the dispute in the suit on the basis of the documents, i.e. Sale deeds and other relevant documents in the interest of justice to all concerned.

The learned Trial Court, by its order dated 20.11.1989 passed in T.S. 14(H) 89 disposed of the suit by holding that the Defendant No. 1 has no legal right to construct and to interfere with the use and occupation of the Plaintiff to that 6" wide footpath in dispute as the suit property is still in the name of Defendant No. 2, thus, decreeing the suit on admission the Defendant No. 2 and declaring that the Plaintiff is entitled to his prayer for a decree that 6" wide footpath also to be used commonly by both Plaintiff alongwith Defendant No. 2 and restraining the Defendants, specially the Defendant No. 1 his agents associates, etc. from blocking and interfering with the free passage of the Plaintiff through the said footpath to his landed property and premises with a decree dated 6.12.1989. Being aggrieved by the impugned judgment and decree passed by the learned trial Court, the Appellant/Plaintiff preferred an appeal under T.C.A. No. 9(H) 89 before the first appellate Court. The said appeal was decided by the learned Addl District Judge, Shillong, on 30.9.91 thus, setting aside the impugned judgment and decree passed by the trial Court and remanding the case to the trial Court for reconsideration of the matter in accordance with the due procedure of law. The learned first appellate Court also directed the learned trial Court that the trial of the case shall be proceeded by following the procedure as expeditiously as possible and the trial Court shall also take into consideration the petition of substitution of legal representatives of the deceased Defendant/Respondent No. 2. Being dissatisfied with the impugned judgment and order dated 30.9.91 passed by the first appellate Court in T.C.A. No. 9 (H) 89, the Appellant/Plaintiff preferred this appeal.

At the hearing, Ms. A. Paul, learned Counsel appearing for the Appellant/Plaintiff submitted that the first appellate Court erred both in law as well as in fact in as much as the learned Courts below failed to appreciate the 6 ft. wide footpath leading to Bivar Road exclusively belong to the Appellant/Plaintiff which have also been admitted by the Defendant/Respondent No. 2 in her pleadings. It is also contended by Ms. Paul that, instead of decreeing the suit and declaring that the said 6 ft. wide footpath belongs to Plaintiff/Appellant exclusively, and over which the Defendants/Respondents have no right, title or interest both the learned Courts below treated the said footpath as 6" wide footpath.

It is also argued by Ms. Paul learned Counsel that, the learned trial Court decreed the suit not in terms of the claims of the Plaintiff/Appellants made in the plaint nor in terms of admission made by the Defendant No. 2 in her written statement. Drawing my attention to the provisions of law laid down under order XII Rule 6 of Code of Civil Procedure, Ms. Paul contended that for passing or rendering a judgment on admission of the party, either tendering or recording of evidence are not required and, as such, the impugned judgment and order of the first Appellant Court is bad in law and that the same is liable to be set aside. The learned trial Court ought to have decreed the suit in terms of the claims and the relief sought for by the Plaintiff/Appellant and also, on the basis of the admission made by the Defendant No. 2, but, these important aspects and existing facts had been ignored by both the learned Courts below, Ms. Paul Argued.

At the hearing, Mr. H.S. Thangkhiew learned Counsel for the Respondents, submitted that there is no illegality or infirmity in the impugned judgment and order of the learned first appellate Court and, as such, no interference of it is called for. The learned Counsel further argued, that the learned trial Court completely lost sight of the related provisions of law while deciding and decreeing the suit and, as such, the learned first appellate Court rightly set aside the judgment and decree of the learned trial Court.

Now, this Court is to examine and see as to whether the learned first appellate Court had acted illegally or with material irregularity in exercise of its jurisdiction while passing the impugned judgment and order.

It is an admitted position, that the Defendants filed written statement on 10.8.1989 after due service of summons as required under Rule 1 and 5 of order V CPC in the instant case as per specific order of 10.8.89 passed by the learned trial Court, but, on perusal of the written statement of Defendant No. 2 it has been revealed that the written statement was submitted her on 18.11.1989. But, by virtue of an order dated 20.11.89 (Impugned order passed by the trial Court), it has been revealed that the Defendant No. 2 filed her written statement on that day, i.e. 20.11.89 for which the learned first appellate Court expressed his astonishment under his related judgment and order.

As per provisions of law laid down under Rule 1 of Order XIV Code of Civil Procedure, issues arise when material proposition of fact or law is affirmed by one party and denied by the other and such proposition of the parties shall form the subject of distinct issue, may be issues of fact or issues of law. Rules (5) of Order XIV lays down, that:

At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and (after examination under Rule 2 of Order X and after hearing the parties or their pleaders) ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

As per provisions of law laid down, under Rule 1(6) of Order XIV Code of Civil Procedure, the Court do not require to frame and record issues where the Defendant at the first hearing of the suit makes no defence. It is an enshrined principle of law that, a case may be disposed of on a preliminary issues as laid down under Rule 2 of Order XIV CPC and if the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law relating to :- (a) the jurisdiction of the Court or (b) a bar to the suit created by any law for the time being in forced by postponing the settlement of the other issues until after that issue of law has been determined, and it may by that issue first.

Order XV CPC lays down the provisions of law relating to the disposal of the suit at the first hearing. It is well settled that while deciding the suit at the first hearing, the Court is to see as to whether-

(l) parties are not at issue

(2) whether one of several Defendants not at issue or

(3) Parties are at issue.

By the expression, "first hearing" of the suit, the day of appearance of the Defendants fixed under Rules 1 and 5 of Order V of the Code is meant and in a case where summons had been issued for settlement of issues only, the date mentioned in the summons is the first date of hearing of the suit. Nowhere in the code, either expressly or impliedly it is provided that fresh summons has to be issued to the Defendant if he or she does not appear after service of summons on him/her for settlement of issues. In the instant case, summons have been duly served to all the Defendants and the Defendants have been duly represented by their lawyers and had entered appearance before the Court in connection with the instant case. Whether the parties are at issue or issues, the Court is to frame issues or issue or even a preliminary issue only on the basis of the available materials on record. If the Court is of the opinion that the case or any part thereof may be disposed of on a particular preliminary issue or, the Court is of the opinion that the disposal of issue is called for at first hearing, the Court is to follow in provision of law as enshrined under Order XIV, Order XV and Order XXXV Code of Civil Procedure.

In the instant case, the learned trial Court fixed 20.9.89 for issues and documents as per his order dated 29.8.89. After taking up the said case on some occasions and without filming issues, the learned trial Court passed the impugned judgment and order of 20.11.89 and preparing a decree on 6.12.1989.

As discussed above, the Defendant No. 1 contested the suit of the Plaintiff/Appellant. Though the Defendant No. 2 admitted the allegations and statements of the Plaintiff to some extent, the Defendant No. 2 made her pleading in the form of a prayer in her written statement that the learned trial Court may be graciously pleased to consider her statements and decide the dispute in the suit on the basis of the documents, i.e. Sale Deeds and other relevant documents in the interest of justice to all concerned. In other words, the trial Court is to decide the dispute on the basis of the documents i.e. Sale Deeds etc., as per pleading of the defendant No. 2. But, on perusal of the alleged documents filed by the Plaintiff. These all are photostat copies and not certified or original documents. On further perusal of the pleadings (Plaint and written Statements) of the parties, it has been revealed that these pleading of the parties form the subject of distinct issues of both issues of fact and issues of law and the parties are at variance on these material propositions of fact and of law, particularly, amongst the Plaintiff/Appellant and Defendant No. 1 and, as such, the parties are at issue on questions of law as well as of fact and as such, the learned trial Court ought not to have pronounced the judgment and, that the learned trial Court ought to have adjudicated the matter/dispute by framing issues for just determination of the real points in controversy between the parties.

For the reasons and discussions made above, I am of the view that the learned trial Court had completely mis-appreciated, rather misconceived the provisions of law laid down under Order V. Order XIV, Order XV and Order XXXV Rule 4 of the CPC while passing the impugned judgment and decree. In my considered view, the learned first collate Court rightly set aside the judgment and decree of the learned trial Court.

I have perused the impugned judgment and order dated 30.9.91 passed by the learned first appellate Court in T.C.A. No. 9(H) 89. I am of the view that the learned first appellate Court made a reason judgment and order and there is no infirmity or illegality in it.

In the result, the present appeal is devoid of merit and accordingly, it is dismissed thus, affirming the impugned judgment and order dated 30.9.91 passed by the learned first appellate Court in T.C.A. No. 9(H) 89, No cost.

The registry is directed to transmit the plated case records to the learned trial Court for early disposal of the case in accordance with law.