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Kailash Chandra Mohanto and ors. Vs. Rajkishore Mohanto and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 20 of 1963
Judge
Reported inAIR1965Ori108
ActsCode of Civil Procedure (CPC) , 1908 - Order 2, Rule 3 - Order 41, Rule 24; Court-fees Act, 1870 - Sections 12 and 17
AppellantKailash Chandra Mohanto and ors.
RespondentRajkishore Mohanto and ors.
Appellant AdvocateS.K. Ray, Adv.
Respondent AdvocateR.C. Misra, Adv.
DispositionAppeal dismissed
Cases ReferredDasarathe Meshy v. Joy Chand
Excerpt:
.....new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it was also contended in defence that the suit is bad for misjoinder of causesof action. 99 and the plaintiffs having failed to elect, the suit is not maintainable; that the plaintiffs failed to prove possession within 12 years. the learned lower appellate court reversed the decision of the trial court and decreed the suit of the plaintiffs on the finding that the plaintiffs proved their subsisting title and possession within 12 years and that the defendants failed to prove adverse possession as alleged. 99--they would proceed with, the suit is bad for misjoinder of causes of action and this defect is fatal. expressed the opinion that..........99 appertaining to the same khata and for recovery of possession. 2. the plaintiffs' case is this: suit plots nos. 94 and 99 belonged to the plaintiffs and defendant no. 9. defendant no. 9 filed a title suit being title suit no. 49/76 of 1949 against the plaintiffs for partition of lands including suit plots nos. 94 and 99. in the final decree passed on compromise between the parties in the said partition suit, plot no. 94 was allotted to the share of defendant no. 9 and plot no. 99 was allotted to the share of the plaintiffs. after the allotment both parties possessed the lands which fell to their respective shares. it is said that subsequently there was an exchange of these plots between the parties, namely that the plaintiffs got suit plot no. 94 from defendant no. 9 in exchange for.....
Judgment:

S. Barman, J.

1. Defendants 1 to 9 are the appellants. The suit out of which this appeal arises was filed by the plaintiffs for declaration of their title to plot No. 94 in Khata No. 22 or alternatively to plot No. 99 appertaining to the same khata and for recovery of possession.

2. The plaintiffs' case is this: Suit plots Nos. 94 and 99 belonged to the plaintiffs and defendant No. 9. Defendant No. 9 filed a title suit being title suit No. 49/76 of 1949 against the plaintiffs for partition of lands including suit plots Nos. 94 and 99. In the final decree passed on compromise between the parties in the said partition suit, plot No. 94 was allotted to the share of defendant No. 9 and plot No. 99 was allotted to the share of the plaintiffs. After the allotment both parties possessed the lands which fell to their respective shares. It is said that subsequently there was an exchange of these plots between the parties, namely that the plaintiffs got suit plot No. 94 from defendant No. 9 in exchange for their plot No. 99. On March 20, 1956, defendant No. 9 sold away suit plot No. 94 to defendant No. 1 by a registered sale-deed Ex. B. When defendant No. 1 attempted to take possession of plot No. 94, he was resisted by the plaintiffs. Thereafter there were proceedings under Section 143, Criminal Procedure Code which ended in favour of defendant No. 1 who got delivery of possession of plot No. 94.

The order by which defendant No. 1 wasgiven possession by the Magistrate was passed onOctober 14, 1957. It is said that the plaintiffswere dispossessed in November 4, 1957. Thereafteron January 16, 1959 the plaintiffs filed this suitfor declaration of their title and recovery of possession over plot No. 94 which the plaintiffs allegedto have got by oral exchange from defendant No. 9.In case the story of exchange is disbelieved theplaintiffs also claimed an alternative relief for declaration of title to and recovery of possession of plotNo. 99 which was allotted to them by the finaldecree in the said partition suit. Defendants Nos. 1to 8 are purchasers of the suit lands from defendant No. 9. In defence defendants Nos. 1 to 8appeared; defendant No. 9 did not appear. Thedefence was this: Defendants Nos. 1 to 8 claim theirtitle to suit plot No. 94 by virtue of their purchasefrom defendant No. 9. They denied the story ofexchange as alleged by the plaintiffs. As regardsplaintiffs' claim to suit plot No. 99 the defence isthat the defendants have been in possession forthe statutory period and thus acquired title byadverse possession. It was also contended in defence that the suit is bad for misjoinder of causesof action.

3. The trial Court dismissed the plaintiffs' suit on the finding that the suit suffers from the defect of misjoinder of causes of action in that the plaintiffs were put on election to sue either for plot No. 94 or plot No. 99 and the plaintiffs having failed to elect, the suit is not maintainable; the story of exchange of the plots is not true; that the plaintiffs failed to prove possession within 12 years. The learned trial Court did not deal with the question of adverse possession. The plaintiffs appealed. The findings of the trial Court on the question of exchange were not challenged before lower appellate Court. The appeal before him was argued in respect of the alternative relief claimed by the plaintiffs for declaration of title to and recovery of possession of plot No. 99 which was allotted to mem under the final decree in the said partition suit T. S. 40/76 of 1949. The appeal was thus confined to plot No. 99 alone. The learned lower appellate Court reversed the decision of the trial Court and decreed the suit of the plaintiffs on the finding that the plaintiffs proved their subsisting title and possession within 12 years and that the defendants failed to prove adverse possession as alleged. Hence this second appeal.

4. The points urged on behalf of the defendants appellants are these: The Amin's report us the said partition suit T. S. 49/76 of 1949 which was relied upon by the learned lower appellate Court is inadmissible in the absence of evidence of the Amin. The defence evidence was not considered by the learned lower appellate Court in giving the finding that the plaintiffs proved possession within 12 years. The learned lower appellate Court should not have given any finding on adverse possession because there was no finding by the trial Court on this point. The plaintiffs having refused to elect as to which of the causes of action--either for plot No. 94 or for plot No. 99--they would proceed with, the suit is bad for misjoinder of causes of action and this defect is fatal.

Lastly, if was also contended that the plaintiffs have not paid Court-fees as required under Section 17 of the Court-fees Act which provides that where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act. The defendants appellants' point is that though the causes of action with regard to plots Nos. 94 and 99 are different, the plaintiffs have paid Court-fee on one plot only.

5. All these points were successively repelled on behalf of the plaintiffs-respondents as hereunder discussed .

6. The Amin's report in Ex. 2 was in connection with a suit inter partes. The said partition suit T. S. 49/76 of 1949 was between the plaintiffs and defendant No. 9. Defendants Nos. 1 to 8 are successors in interest of defendant No. 9 who is also on record in this suit as a party. Defendant No. 1 who deposed as D. W. 1 was an attesting witness in the Amin's report. He admitted in his evidence that he knew of the partition suit between the plaintiffs and defendant No. 9 and he was cited as a witness for defendant No. 9 in that case. He further admitted that he was present when the Amin allotted the lands on the spot to the plaintiffs and defendant No. 9 and that he signed the Amin's report. Thus the document is amply proved and the defendants' contention that it is not admissible is untenable.

7. As regards the alleged non-consideration of the defence evidence in finding plaintiffs' possession the learned lower appellate Court had discussed all the material evidence as he thought relevant for deciding the point. He fully discussed the evidence of D. W. 2. The learned lower appellate Court came to the conclusion that this witness was no free from interestedness and that his evidence about the possession of defendant No. 1 in respect of the said plot No. 99 is too vague. As regards other witnesses, the learned District Judge on a consideration of the evidence of P. Ws. expressed the opinion that the defendants had miserably failed to establish their case of adverse possession over plot No. 99 and that they dispossessed the plaintiffs some time after their purchase of plot No. 94 from defendant No. 9. Therefore, it is not correct that the learned lower appellate Court did not consider the defence evidence.

8. Then, on the question of adverse possession the defendants pleaded that although the Patta in respect of plot No. 99 stands recorded in the name of the plaintiffs yet the defendants had acquired title by adverse possession of the same. On this pleading the trial Court should have framed an issue on adverse possession and given his finding therein. Even so, it was still open to the learned lower appellate Court to give his finding on the point when evidence is sufficient to give such finding by virtue of Order 41, Rule 24, Civil P. C. The learned lower appellate Court rightly found that the plea of adverse possession taken by the defence had not been established by any cogent evidence. He has fully discussed this aspect and given reasons for his finding which it is unnecessary to repeat herein.

9. On the point of misjoinder of causes of action, Order 2, Rule 3, Civil Procedure Code is a complete answer to the defendants' contention. It is open to the plaintiffs to unite in the same suit several causes of action against the same defendant. On this point the learned lower appellate Court's reasoning on which he found that the suit for two alternative reliefs in the present form is maintainable is correct. On the facts of the present case; there is no question of the plaintiffs' being put to election as contended. The plaintiff's claim was primarily based on an oral exchange of plot No. 94 with plot No. 99. Their alternative case was that in case the story of exchange was disbelieved then their title to plot No. 99 on the basis of the final decree in the partition suit may be declared and for recovery of possession accordingly. Thus the two reliefs claimed in the alternative are interlinked. The very fact, that the exchange of one plot for the other was in question shows that the suit arises out of the same set or circumstances in the context of which the rights of the parties had to be decided. In such a case there is no question of putting the plaintiffs on election to choose between the two reliefs. I am of opinion that here the suit for alternative reliefs is maintainable.

10. As regards the point on Court-fees, it was not canvassed before the trial Court nor before the lower appellate Court. With regard to such points on Court-fees considered generally, their Lordships of the Supreme Court in a recent decision in Rathnavarmaraja v. Smt. Vimla, AIR 1963 SC 1299 made it amply clear that whether proper Court-fee is paid on a plaint is primarily a question between the plaintiffs and the State: the defendant who may believe and even honestly, that proper Court-fee has not been paid by the plaintiff has still no right to move superior Courts by appeal or in revision against the order adjudicating payment of Court-fee payable on the plaint. The anxiety of the legislature to collect Court-fee due from the litigant is manifest from the provisions of the Court-fees Act but these provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit. In the present case, as regards the merits of the defendants point on Court-fee, it if well settled that where out of two reliefs one requires a higher Court-fee the Court-fee payable is on the relief requiring the higher Court-fee; Dasarathe Meshy v. Joy Chand, AIR 1925 Pat 193. Here the higher Court-fee had been paid. There is no illegality in the plaintiffs having paid Court-fee for one plot. That apart, having regard to the nature and structure of the suit and the reliefs claimed on the cause of action as discussed above, the defendants' contention on Court-fee has no merit at all.

11. In this, view of the case, the decision of the learned lower appellate Court is upheld. This appeal is dismissed with costs.


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