MONORANJAN SUTRADHAR Vs. SUBHASINI SHILL

JUDGEMENT

(1.) This is appeal filed by the defendant/appellant against the order dated 2.7.1996, passed by the learned District Judge, West Tripura, Agartala, iri Title Appeal No.l of 1996 under Order XLI Rule 23 remanding the case to the trial Court for fresh trial.

(2.) The appeal has arisen on the following facts and circumstances; The predecessor of the plaintiffs/respondents, Sukumar Shil, instituted Title Suit No. 189/84 before the Court to Sadar Munsiff (presently described as Civil Judge, Junior Division No.1), Agartala, Tripura West, for a decree for declaration of title, confirmation of possession over the suit land, perpetual injunction against the defendant restraining him from entering into suit land. The plaintiff also sought for a declaration that the sale deed No 1-2053 dated 9.3.1981 alleged to be executed by Haradhan Sutradhar in favour of the defendant as illegal, fraudulent, collusive, mala fide, void and not binding upon the plaintiff. The plaintiff pleaded that he purchased the "A" Scheduled land measuring ten dhurs from the original owners, i.e., from Banka Behari Sutradhar Chowdhury and others, and possessor of the suit land described in Schedule A by a registered Sale Deed dated 22.6.1973 on consideration, obtained possession of the land on the same date and since then the plaintiff was possessing the said land without any interruption from any quarter. The plaintiff also averred that he purchased the land with specific boundary and the measurement of the land increased to three Karas, which were in exclusive possession of the plaintiff since June, 197 3. The defendant created a registered Sale Deed in his favour purportedly executed by one Haradhan Sutradhar on 9-3-1981 in respect of the same land. The plaintiff also purchased three Gandas and one Kara of land mentioned in Schedule B, situated in the eastern side of A Scheduled land, from Chand Mia and others. The defendant filed its written statement in the Court denying and disputing the claim of the plaintiff. The defendant pleaded specifically that the suit land in C.S. plot No. 7490 was purchased by the defendant from Haradhan Sutradhar, who purchased the same from Banka Behari Sutradhar Chowdhury and Rameshwar Sutradhar Chowdhury, who sold the same out of their share on partition of the properties amongst four co-owner brothers. The defendant took delivery of the possession of the suit land in C.S. Plot No. 7490 as per C S. Plot and boundaries mentioned in his title deed and got the purchased land mutated in his name in Khatian No. 27779. At the time of mutation, area of the said purchased land of defendant and physically measured and found to be '03' acre within the boundary. The defendant claimed to be the absolute owner in possession of '03' acre of land in C.S. Plot No. 6490 and he was continuously possessing the said land. The defendant claimed that the filled earth in the suit land for raising the land and also got the plan approved by Municipality for construction of house. The defendant also averred that the plaintiff purchased 10 (ten) Dhurs of land in C.S. plot No. 7490 in the extreme Southern portion from the Co-owners, viz., Banka Behari Sutradhar Chowdhury, Shri Surendra Chandra Sutradhar Chowdhury. Shri Birendra Chandra Sutradhar Chowdhury and Shri Mreshwar Sturadhar Chowdhury. The Schedule A land comprising C.S. Plot No. 7490 is exclusively owned and possessed by defendant and the plaintiff did never purchase any portion of C.S. Plot No. 7490. The defendant, in addition, also set up by way of counter claim against the claim of the plaintiff under Rule 6A of Order VIII of CPC. The defendant accordingly sought for a declaration that the defendant was the owner in rayati-right of the land described in the Schedule, confirmation of his possession and for perpetual injunction restraining the plaintiff/opposite party, his agents from entering into the suit land. The counter claim was initially valued at Rs. 25 under Section 7(iv)(c) of the Court Fees Act by the defendant. The plaintiff filed its written statement against the counter claim, which was subsequently registered and numbered as Title Suit No. 75/95. The learned Trial Court took up both the cases together and framed the following issues .

(3.) Mr. K.A. Bhowmik, learned senior counsel appearing on behalf of the appellant/defendant, raised serious objection as to the legality and propriety of the action of the learned appellate Court in setting aside the valid decree obtained by the defendant. The learned senior Counsel appearing on behalf of the defendant/appellant has submitted that at no point of time, was the question of pecuniary jurisdiction of the learned Munsiff ever raised including that in the appellate forum, in deciding Title Suit No. 189/84. The learned appellate Court did not find any error in the judgment and order of the learned trial Court so far the Title Suit No. 189/84 was concerned. On the own showing that learned appellate Court, the counter claim (Title Suit No. 75/95) which was valued at Rs. 11,000 after amendment, exceeded only the pecuniary limits of jurisdiction of the learned Munsif and, therefore, the learned appellate Court was not justified in setting aside the judgment and decree passed by the learned trial Court in Title Suit No. 189/84 and remanding the same to be decided afresh on the question of jurisdiction, submitted Mr. Bhowmik, the learned senior counsel for the appellant. Mr. A.K. Bhowmik, the learned counsel for the appellant, thereafter submitted that the learned appellate Court of first instance fell into serious error in setting aside the judgment and decree passed in Title Suit No.75/95 (the counter claim) on the alleged ground of pecuniary jurisdiction on mere defect of irregularity in the proceeding which did not affect the merits of the case or jurisdiction of the Court. Mr. Bhowmik, the learned senior counsel, submitted that a decree lawfully obtained by a party after a long drawn trial, was/is not to be set at naught on mere technicality. He further submitted that the question of pecuniary jurisdiction was never seriously at issue before the trial Court. That in the written statement filed against the counter claim, the plaintiffs not doubt averred that the suit land would be valued at more than Rs. 5,000 and as such, the learned trial Court had not jurisdiction to try the counter claim. That there was not issue as such and after allowing the trial to proceed without raising any serious objection, the plaintiff was precluded from raising the issue of pecuniary jurisdiction on his failure to take the said issue at earliest possible opportunity. Lastly Mr. Bowmik, the learned senior counsel appearing on behalf of the defendant/appellant, submitted that the learned trial Court had the inherent jurisdiction to try the suit. At any rate, in the absence of any failure of justice, the learned appellate Court was not justified in setting aside the judgment and decree of the learned trial Court and remanding the same to the trial Court. Mr. Bhowmik, in support of his contention referred to a Single Bench decision of the Gauhati High Court in on the death of Mazid Ali, plaintiff, his legal heirs Mustt. Maimuna Begaum and Others v. Lakshman Rabidas.