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Kharga Bahadur Gurung and Others Vs. Nirmal Gurung - Court Judgment

LegalCrystal Citation
CourtSikkim High Court
Decided On
Case NumberRFA No. 10 of 2013
AppellantKharga Bahadur Gurung and Others
RespondentNirmal Gurung
sunil kumar sinha, c.j. 1. this appeal is directed against the judgment and decree dated 30.03.2013 passed by the district judge, special division-ii, east sikkim at gangtok in title suit no. 13 of 2012. 2. by the impugned judgment and decree, the suit filed by the plaintiff has been decreed, therefore, the defendants have filed this appeal. 3. brief facts necessary for the decision of this appeal are as under: - 3.1 bhaktay gurung, was having two sons, namely, ganja bahadur gurung and nirmal gurung (plaintiff). bhaktay gurung died in the year 1965 and ganja bahadur gurung died in the year 1977. defendants 1 to 8 are sons of late ganja bahadur gurung and defendant no. 9 is his second wife. defendant no. 6, jiwan gurung, died during the pendency of the suit and was substituted by.....

Sunil Kumar Sinha, C.J.

1. This Appeal is directed against the Judgment and Decree dated 30.03.2013 passed by the District Judge, Special Division-II, East Sikkim at Gangtok in Title Suit No. 13 of 2012.

2. By the impugned Judgment and Decree, the suit filed by the Plaintiff has been decreed, therefore, the Defendants have filed this Appeal.

3. Brief facts necessary for the decision of this Appeal are as under: -

3.1 Bhaktay Gurung, was having two sons, namely, Ganja Bahadur Gurung and Nirmal Gurung (Plaintiff). Bhaktay Gurung died in the year 1965 and Ganja Bahadur Gurung died in the year 1977. Defendants 1 to 8 are sons of late Ganja Bahadur Gurung and Defendant No. 9 is his second wife. Defendant No. 6, Jiwan Gurung, died during the pendency of the suit and was substituted by Defendants 6, 10 and 11. Bhaktay Gurung was the absolute owner of the suit lands described in Schedule A of the plaint.

3.2 Eight sons of Ganja Bahadur Gurung, who were Defendants 1 to 8 herein, had filed an earlier Civil Suit No. 65 of 1997 against Nirmal Gurung, Respondent/Plaintiff herein and one Dr. Pema T. Bhutia for declaration, partition, injunction and cancellation of Gift Deed dated 17.09.1996 executed by Nirmal Gurung (Plaintiff) in favour of Dr. Pema T. Bhutia. The subject matter of both the suits were one and the same as described in Schedule A to the plaint of the instant suit. Defendants claimed in the earlier Civil Suit that they had equal half right title and interest in the landed properties of Schedule A, therefore, a declaration to this effect be made and the lands of Schedule A be partitioned between them and Plaintiff, Nirmal Gurung, who was Defendant No. 1 in the said suit, by metes and bounds and the lands under Gift Deed dated 17.09.1996 be adjusted in the share of Plaintiff.

3.3 In the earlier Civil Suit, i.e. Civil Suit No. 65 of 1997, the Plaintiff herein, denied the claims of the Defendants and pleaded that on 19.07.1971, a previous Civil Suit was filed before the District Judge, East Sikkim at Gangtok by Bir Bhadra Gurung and Damber Singh Gurung, sons of late Jabray Gurung against the Plaintiff herein, Nirmal Gurung and his brother Ganja Bahadur Gurung for declaration of title and possession of the lands in question. This suit was later on numbered as Civil Suit No. 23 of 1976 and was finally dismissed on 12.09.1977. In the said Civil Suit, Ganja Bahadur Gurung, late father of the Defendants herein, was Defendant No. 1. He withdrew from the said suit as he had already received his share in the properties, in cash, from his father in the year 1959. A document dated 19.01.1959 was also executed by him wherein he stated that whatever share he had to receive has been fully received by him and he has no claim whatsoever in the self acquired property of his father Bhaktay Bahadur Gurung. The Plaintiff herein, thus, claimed that after dismissal of Civil Suit No. 23 of 1976 he alone become the owner of the lands of Schedule A and came in absolute possession since 1978.

3.4 In the above background and further in the light of the findings that Ganja Bahadur Gurung had relinquished his rights in the lands of Schedule A in lieu of the cash amount received by him, Civil Suit No. 65 of 1997 filed by the Defendants herein (except Defendant No. 9) was dismissed on 31.03.2001. It was held that the Defendants herein were not the co-owners of the properties of Schedule-A and they had no right title or interest in the said scheduled lands.

3.5 Against the Judgment and Decree dated 31.03.2001 passed in Civil Suit No. 65 of 1997, the Defendants then filed Civil First Appeal No. 05 of 2001. The said Appeal was also dismissed on 26.03.2002 and the Judgment and Decree passed in Civil Suit No. 65 of 1997 was confirmed. The Defendants then filed Regular Second Appeal No. 01 of 2002 in the High Court but the same was also dismissed on 02.07.2002 and the Special Leave Petition No. 18600 of 2002 filed by the Defendants against the above order of dismissal was also dismissed by the Supreme Court on 30.09.2002.

3.6 After dismissal of the SLP in the Supreme Court, the Plaintiff herein filed the instant suit for recovery of khas possession of the suit property described in Schedule-B of the plaint, which is part and parcel of Schedule-A lands, bearing Plot No. 492, area 3.51 acres, after removal of temporary structure on it. The Plaintiff also claimed damages of Rs.10,000.00 against unlawful occupation of the suit property by the Defendants till the filing of the suit and further a preliminary decree for future damages from the date of the suit till recovery of the possession @ Rs.500/- per month.

3.7 In the instant suit, the Plaintiff, inter alia, pleaded that he had granted the Defendants oral permission and/or licence to enjoy the possession of the land of Schedule-B for their survival. The Defendants were his licensees. Defendant No. 9, however, was running a canteen in a temporary structure over a portion of the said land. According to the Plaintiff, by a notice dated 24.09.2004, he had revoked the license and/or permission to hold possession, but even after service of notice and revocation of licence the land was not vacated by the Defendants, therefore, he prayed that the land of Schedule B should be vacated and the suit should be decreed for the above reliefs.

3.8 The suit was contested by all the Defendants by filing their joint written statement denying all the contents of the plaint. They mainly contended that the suit filed by the Plaintiff was barred by limitation; it was liable to be dismissed on account of non-joinder of necessary party; the lands of Schedule-A were their ancestral property in which they had share; so far as land of Schedule-B is concerned, they had perfected their title by way of adverse possession. The Defendants also made counter claim in the written statement and prayed for following reliefs: -

a) A decree declaring that the defendants no. 1 to 8 have their right, title and interest over the schedule A land and the same is liable to be partitioned in two equal share and the defendants are entitled for one share.

b) A preliminary decree for partition of schedule A land in two equal shares by duly appointing the amin commissioner and handing over one share of property to the defendants.

c) A decree for correction of record of right with respect to the properties of each parties, i.e. plaintiff and the defendants and a decree for mutation thereof.

d) A decree for cancellation of record of right recorded in the name of the plaintiff.

e) Any other relief or reliefs for which the defendants are entitled to.

3.9 Learned trial Court framed various issues and after recording evidence of the parties, decreed the suit in part and directed that the Plaintiff shall take over the khas possession of the suit property described in the Schedule-B of the plaint after removing the Defendants and the temporary structure standing thereon; the Plaintiff shall also be entitled to realize the future damages @ Rs.500/- per month from the date of filing of the suit till recovery of possession. The counter claim filed by the Defendants was dismissed. Hence this Appeal.

4. Mr. B. Sharma, learned Senior Counsel for the Appellants- Defendants, firstly contended that the suit filed by the Respondent-Plaintiff was barred by limitation and the Appellants- Defendants had perfected their title by way of adverse possession. According to him, the Appellants-Defendants were in actual physical possession of the suit land of Schedule-B since the year 1977, whereas, the suit was filed by the Plaintiff on 16.02.2005, therefore, it was hopelessly time barred. He contended that mere pendency of litigation between the parties does not prevent running of limitation and cited decisions in Des Raj and Others vs. Bhagat Ram (deceased by LRs) and Others : AIR 200 SC (Supp) 512; P.T. Munichikkanna Reddy and Others vs. Revamma and Others : AIR 2007 SC 1753; and Khatri Hotels Private Ltd. and Another vs. Union of India and Another : AIR 2011 SC 3590.

5. Per contra, Mr. Sudipto Mazumdar, learned counsel appearing on behalf of Respondent, argued that the Appellants-Defendants always took a plea of they being the co-sharers in joint possession over the entire properties of Schedule-A which also includes the property of Schedule-B; they never expressed intension to show their possession as hostile to the knowledge of the Respondent-Plaintiff; they expressed their intension for the first time while filing the written statement in the instant suit, therefore, their possession cannot be said to be adverse to the interest of the Plaintiff. He also argued that apart from the above, the Plaintiff on his own will had given the property of Schedule-B for use and occupation to the Defendants, thus, the nature of possession held by them was permissive.

6. In Des Raj (supra), it was held that mere assertion of title by itself may not be sufficient unless the Plaintiff proves animus possidendi. There two suits were filed earlier for partition where the Defendants Appellants claimed themselves to be co-owners of the Plaintiff. However, the Plaintiff therein, had asserted hostile title claiming ownership in himself. The claim of hostile title by the Plaintiff over the suit land was thus known to the Appellants. The Appellants allowed the suits to be dismissed after consuming a lot of time. It was held that the pendency of a suit, as is well settled, does not stop running of limitation and the starting point of limitation would be from the date of asserting hostile title and claiming ownership in the property and pendency of the suits will not make any difference.

7. In P.T. Munichikkanna Reddy (supra), principles relating to adverse possession were discussed. It was held that adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor s positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of their lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property.

8. In Khatri Hotels Private Ltd. (supra), it was held that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues and successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued. The above proposition was laid down while dealing with Article 58 of the Limitation Act, 1963.

9. I have no doubt about the propositions laid down in the Judgments cited by Mr. Sharma. It is true and a settled legal position that pendency of the suits filed earlier does not stop running of limitation if it has begun to run from a particular date.

10. Therefore, the question would be that from which date, in the instant case, the period of limitation shall begun to run for the purpose of perfecting title of the Appellants-Defendants by way of adverse possession?

11. The Appellants-Defendants, right from the year 1997 when they filed the earlier Civil Suit, took the plea that they were the joint owners of the suit properties along with Respondent- Plaintiff to the extent of share in it, which plea they continued to press upto the Supreme Court where their SLP was dismissed on 30.09.2002. Thus, in fact, it is an admission of the Appellants- Defendants from which they had never resiled at any point of time during the pendency of their litigation which went upto the Supreme Court. However, they raised the plea of adverse possession for the first time by filing their written statement in the instant suit on 18.08.2005. Averments relating to adverse possession of the Appellants-Defendants vide paragraph 16 (h) of the written statement are as follows: -

(h) That the above schedule B land is in exclusive possession of these defendants and their father right from the year 1965 when Bhaktey Gurung went to Nepal along with plaintiff. Since 1965 father of these defendants and after his death these defendants are exclusively possessing the suit land till this date as such even otherwise also these defendants have perfected right, title and interest over the schedule B land in terms of adverse possession. .

12. The Appellants-Defendants, thus, being the co-sharers as per their claim since the previous litigations, i.e. as per their own admission, cannot succeed in claiming absolute title on the suit land by adverse possession, unless it is established by evidence that there had been an occasion of ouster of the Respondent-Plaintiff.

13. It is well settled that in case of a co-sharer, mere possession on a joint property cannot make out a case of ouster of a co-sharer for the claim of perfection of title by adverse possession.

14. As per Article 65 of the Indian Limitation Act, 1963, a suit for possession of an immovable property or any interest therein based on title, as in the instant suit, has to be filed within a period of 12 (twelve) years and the limitation shall begin to run from the date when the possession of the defendant becomes adverse to the plaintiff. In a suit based on title even if dispossession is also alleged, the defendant can succeed only if he proves that his possession has become adverse to the plaintiff beyond 12 (twelve) years of the filing of the suit.

15. Animus possidendi is an essential ingredient of adverse possession. Unless the person possessing the land has a requisite animus and an element of possession being adverse is there, the period for adverse possession does not commence.

16. In the instant case, the Appellants-Defendants throughout admitted that they were the co-sharers of the suit - property along with the Respondent-Plaintiff and they raised the plea of adverse possession for the first time when they filed their written statement on 18.08.2005. Thus, Article 65 will apply and the period for claiming adverse possession shall begin to run from 18.08.2005 when the Appellants-Defendants raised the above plea for the first time. The above position has also been highlighted by the Supreme Court in Des Raj (supra), relied by learned Counsel for the Appellants-Defendants, in which it was laid down that if a hostile title was asserted at any point of time, then the period of limitation shall begin to run from the said date and time and pendency of litigations between the parties would never stop the running of limitation. In the instant case, as I have already said, upto the Supreme Court the Appellants-Defendants claimed themselves to be the co-sharers and they raised the plea of adverse possession for the first time in the instant suit on 18.08.2005. Thus, the instant suit filed by the Respondent-Plaintiff on 16.06.2005 was neither barred by limitation nor the Appellants-Defendants had perfected their title by way of adverse possession.

17. Mr. Sharma has next contended that the first wife of late Ganja Bahadur Gurung, namely Kamala Gurung, was a necessary party and the suit was liable to be dismissed on account of her non-joinder. Mr. Sudipto Mazumdar, however, has contended that it comes nowhere in the case record that Kamala Gurung had ever been in possession of the suit property. The Respondent-Plaintiff had filed the suit for possession and damages, therefore, the persons who in fact were enjoying actual physical possession of the suit property of Schedule-B alone were necessary parties.

18. The above objection was dealt with by the trial Court under discussion on issue No. 3. The trial Court, relying on the decision of Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay and Others : (1992) 2 SCC 524, has recorded a finding that Kamala Gurung was not a necessary party. In the said decision, the Supreme Court has held that A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the questions involved in the proceeding.

19. If we look into the plaint of earlier Civil Suit (CS No. 65 of 1997) filed by the Appellants-Defendants, it would be evident that Kamala Gurung was never made a party in the said Civil Suit. The Appellants-Defendants claimed therein that they alone were having equal right and interest in the properties of Schedule-A which was liable for partition between them and the Plaintiff. So far as possession over the lands of Schedule-A is concerned, of which the land of Schedule-B also is a part, the Appellants-Defendants alone claimed their joint possession and it was never brought on record by them that Kamala Gurung was also holding possession over the lands of Schedule-A along with them. The contention of Mr. Sharma that Kamala Gurung was a necessary party, is also liable to be rejected on the pleadings of the Appellants-Defendants in their written statement in this suit vide paragraph 16 (h) (quoted supra) in which they clearly admitted that the land of Schedule-B was in exclusive possession of these Appellants-Defendants and their father right from the year 1965, when Bhaktay Gurung went to Nepal along with Respondent-Plaintiff and they never asserted about possession of Kamala Gurung.

20. Thus, it is clear from the pleadings of the Appellants-Defendants themselves that except them no one was in physical possession of the suit land of Schedule-B. The Respondent-Plaintiff had filed the instant suit for possession, therefore, the persons holding possession of the suit land of Schedule-B, i.e. Appellants-Defendants, were the only necessary parties, and this is not a case in which one can say that without impleading the first wife of Ganja Bahadur Gurung, no effective decree at all could have been passed. We may note here that though the second wife of Ganja Bahadur Gurung, namely Ran Maya Gurung (Appellant-Defendant No. 9) was not a party in the earlier Civil Suit (CS No. 65 of 1997), but as the Respondent- Plaintiff has pleaded that she was also in occupation of the land as well as the super structure of Schedule-B, which was also admitted by the Appellants-Defendants in their pleadings, she was joined as a Defendant.

21. In view of the above, the learned trial Court was fully justified in holding that Kamala Gurung was not a necessary party and the suit was not liable to be dismissed on account of her non-joinder.

22. Mr. Sharma has further contended that the suit was not properly valued, therefore, the plaint ought to have been rejected under Order VII Rule 11 CPC. According to him, the suit would have been valued on the market value of the property of Schedule-B, which was very high from the valuation put forth by the Plaintiff.

23. No doubt, a duty is cast on the trial Court to perform its obligations in rejecting the plaint hit by any of the infirmities under cls. (a) to (f) of Order VII Rule 11 CPC, which power can be exercised at any stage of the suit before conclusion of the trial, but before such rejection, the trial Court must be satisfied that the case of the Plaintiff was falling under any of the categories mentioned in the above clauses. Mr. Sharma has contended that the relief claimed was undervalued, therefore, the trial Court ought to have required the Plaintiff to correct the valuation and if it was not done within the time fixed the plaint would have been rejected.

24. The Court-fees Act, 1870 and the Suit Valuation Act, 1887 have not been extended to the State of Sikkim till now and here the matter of payment of court-fee is governed by the Sikkim Court Fees and Stamps on Documents Rules, 1928, which is protected by Article 371F of the Constitution. Thus, reliance cannot be placed on the provisions of the Court-fees Act, 1870 or the Suit Valuation Act, 1887. Rules 4 and 5 of the above Rules, 1928 as it existed on the date of its commencement on 01.08.1928 are extracted as under: -

(4) The system of paying court fees on civil suits viz. : one anna in a rupee as preliminary court fee and two anna in a rupee a final court fee is abolished. In future the whole of court fees shall be payable in advance before the suit is entertained and shall be charged at the rate of two annas in a rupee on the value of the claim put.

(5) In appeals, (Civil suits) the same court fee shall be charged as in the original court.

The said provisions and rates were also embodied in Schedule-A annexed to these Rules in tabular form.

25. Later on, by an amendment dated 10.04.2002, annas two in a rupee in Schedule-A was substituted by the words and figure 6 (six) percentum . Further, by an other amendment dated 22.10.2013 in Schedule-A, 6 (six) percentum was further substituted by the following rates:-

(i)Rs.1.00 to Rs.3.00 lakhs1 %
(ii)Rs.3.00 lakhs to Rs.6.00 lakhs1.25 %
(iii)Rs.6.00 lakhs to Rs.10.00 lakhs1.50 %
(iv)Rs.10.00 lakhs to Rs.15.00 lakhs1.75 %
(v)Rs.15.00 lakhs to Rs.25.00 lakhs2.00 %
(vi)Rs.25.00 lakhs to Rs.40.00 lakhs2.25 %
(vii)Rs.40.00 lakhs to Rs.60.00 lakhs2.50 %
(viii)Rs.60.00 lakhs to Rs.1 crore2.75 %
(ix)Rs.1 crore and above3.00 %

26. The instant suit was filed in the year 2005, therefore, the court-fees payable on the plaint in the Civil Suits or Civil Appeals was @ 6% on the value of the claim put. The Respondent-Plaintiff, accordingly, valued the claim at Rs.60,000/- and a court-fee of Rs.3,600/- was paid.

27. Thus, the law relating to payment of court-fee in the State of Sikkim simply was to pay 6% of the value of the claim put. How the value of the claim would be determined in different kind of suits or for different claims has not been defined at any place in these Rules. That is to say that the above Rules are completely silent about the manner of computation of the value of the claim . For example, if the suit is for declaration and injunction, how the relief would be valued is nowhere defined. Likewise, if the suit is for possession, it is also not defined as to how its valuation would be done. Thus, it is nowhere defined in the Rules that for a specific kind of claim , the valuation of the suit would be computed in which manner. A comprehensive provision using the words value of the claim put has been provided. Thus, the words deliberately used in the Rules value of the claim put cannot be taken as the value of subject matter , as contended by Mr. Sharma, and in absence of any Rule it cannot be held that the claim put forth by the Plaintiff was to be valued on the market value of the subject matter and it cannot be determined that the claim was undervalued and the plaint in suit was hit by cl. (b) of Rule 11 of Order VII CPC.

28. In Shyam Sunder Rasaily and Others vs. Madan Mohan Rasaily and Others : AIR 1994 Sikkim 14, this Court, referring to the above provisions, held that the word claim as taken in grammatical meaning will be the prayer of relief claimed in the plaint and further since the claim of the Plaintiff cannot be evaluated in terms of rupee, the Plaintiff was at liberty to put his own value for declaration and partition, as was claimed in the said matter. This Court, in the said Judgment, had also observed that it was high time the Government considers and takes steps to bring the laws of Sikkim at par with the other States in India and laws which are governing the rest of India should also be extended to the State of Sikkim so that nobody complains of any discrimination or a preferential treatment or otherwise . However, the position remains the same and the above gray area continues till date.

29. Since the Plaintiff has valued the suit on the value of the claim put forth by him, which does not appear to be in contravention of any Rule for the time being in force, the plaint was rightly not rejected and the suit was rightly not dismissed by the trial Court.

30. Mr. Sharma has lastly contended that the trial Court erred in law in dismissing the counter claim being barred by principles of res judicata.

31. A plain reading of Section 11 CPC would make it clear that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Various Explanations have also been given to make the provisions of Section 11 more clear.

32. In Swamy Atmananda and others vs. Sri Ramakrishna Tapovanam and others : (2005) 10 SCC 51, it was held that the object and purport of the principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute-book with a view to bring the litigation to an end so that the other side may not be put to harassment. The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment. The doctrine of res judicata is conceived not only in larger public interest which requires that all litigation must, sooner than later, come to an end but is also founded on equity, justice and good conscience.

33. In the earlier Civil Suit (CS No. 65/1997) the Appellants-Defendants herein (except Appellant-Defendant No. 6) had claimed a decree for declaration that they had equal right title and interests in the properties of Schedule-A; a decree directing the partition of the properties mentioned in Schedule-A by metes and bounds; and issuance of perpetual injunction restraining Defendant No. 1, Respondent-Plaintiff herein, or any other person claiming or acting under him, from disturbing the possession of the Appellants and many other reliefs. The main reliefs claimed by the Appellants in the earlier Civil Suit were exactly the same which they claimed vide their counter-claim in the instant suit. The counter-claim made by them in the instant suit has been quoted in paragraph 3.8 (supra). In earlier Civil Suit, the claim of the Appellants was examined by a competent court between the same parties and a finding was recorded that Ganja Bahadur Gurung had separated from his father during his life time after realizing some amount in lieu of his share in his father s property. This position remains undisturbed in First Appeal and Second Appeal and the SLP filed against the rejection of Second Appeal was dismissed by the Supreme Court. Thus, the question relating to the source of title allegedly derived by the Appellants in their successory rights attained finality between the parties in the previous Civil Suit filed for the same reliefs, which they claimed in their counter-claim. In such circumstances, the counter-claim made by the Appellants-Defendants in the instant suit on the same strength of their right and title, thus, was not maintainable on the principles of res judicata and the learned trial Court was fully justified in holding so.

34. The Appeal, therefore, is liable to be dismissed and is accordingly dismissed.

35. There shall be no orders as to cost.

36. A decree be drawn accordingly.

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