Page 1 of 27

RSA No. 116 of 2014 Page 1

GAHC010008412014

2024:GAU-AS:12325

IN THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH )

RSA No. 116/2014

1. On the Death of Abdul Hamid (Ghari

Mistry) His Legal Heirs Represented By-

1.1 Abdul Matin,

S/o-Late Abdul Hamid (Ghari Mistry),

Village- Fancy Ali,

Jorhat Town,

P.S.-Jorhat,

District- Jorhat, Assam.

1.2 Abdul Waheb,

S/o-Late Abdul Hamid (Ghari Mistry),

Village- Fancy Ali,

Jorhat Town,

P.S.-Jorhat,

District- Jorhat, Assam.

1.3 Abdul Rauf,

S/o-Late Abdul Hamid (Ghari Mistry),

Village- Fancy Ali,

Jorhat Town,

P.S.-Jorhat,

District- Jorhat, Assam.

1.4 Abdul Rafik, Page 1 of 27

RSA No. 116 of 2014 Page 1

GAHC010008412014

2024:GAU-AS:12325

IN THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH )

RSA No. 116/2014

1. On the Death of Abdul Hamid (Ghari

Mistry) His Legal Heirs Represented By-

1.1 Abdul Matin,

S/o-Late Abdul Hamid (Ghari Mistry),

Village- Fancy Ali,

Jorhat Town,

P.S.-Jorhat,

District- Jorhat, Assam.

1.2 Abdul Waheb,

S/o-Late Abdul Hamid (Ghari Mistry),

Village- Fancy Ali,

Jorhat Town,

P.S.-Jorhat,

District- Jorhat, Assam.

1.3 Abdul Rauf,

S/o-Late Abdul Hamid (Ghari Mistry),

Village- Fancy Ali,

Jorhat Town,

P.S.-Jorhat,

District- Jorhat, Assam.

1.4 Abdul Rafik,

Page 2 of 27

RSA No. 116 of 2014 Page 2

S/o-Late Abdul Hamid (Ghari Mistry),

Village- Fancy Ali,

Jorhat Town,

P.S.-Jorhat,

District- Jorhat, Assam.

1.5 Rumena Begum,

W/o- Rahen Ali,

R/o-Rupnagar Jorhat,

P.S.-Jorhat, District- Jorhat, Assam.

1.6 Rukia Begum,

W/o- Md.Abdul Ali,

R/o-Rupnagar Jorhat,

P.S.-Jorhat, District- Jorhat, Assam.

1.7 Ruli Begum,

W/o- Md.Azad Ahmed,

Village-Rajabari,

P.O.-Jorhat,

P.S.-Jorhat, District- Jorhat, Assam.

…..Appellants

Versus-

1. Sri Ram Nagina Gupta,

S/o-Late Bundilal Gopta,

R/o-Near Railway Crossing, Fancy Ali,

Jorhat Town, P.S.-Jorhat, District- Jorhat, Assam.

2. Sri Kamala Nath Sarma@Kanak Nath Sarma,

S/o-Late Jagannath Sarma,

R/o-Near Railway Crossing, Fancy Ali,

Jorhat Town, P.S.-Jorhat, District- Jorhat, Assam.

.....Respondents

For Appellant(s) : Mr. J. Ahmed, Advocate.

Page 3 of 27

RSA No. 116 of 2014 Page 3

For Respondent(s) : Mr. A. Das, Advocate.

Date of judgment : 05.12.2024

BEFORE

HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA

JUDGMENT & ORDER (CA V)

1. Heard Mr. J. Ahmed, learned counsel for the appellants. Also

heard Mr. A. Das, learned counsel for the respondents.

2. This Regular Second Appeal has been filed under Section 100

of the Code of Civil Procedure, 1908, by the original appellant,

Abdul Hamid (Ghari Mistry), challenging the Judgment and Decree

dated 21.12.2013, passed in Title Appeal No. 05/2011 by the

learned Civil Judge, Jorhat. By the said judgment, the appeal

preferred by the appellants was dismissed, and the Judgment and

Decree dated 28.02.2011, passed by the learned Munsiff No. 2,

Jorhat, in Title Suit No. 15/2007, was upheld.

3. It is pertinent to mention that during the pendency of this

second appeal, the appellant, Abdul Hamid, passed away. By order

dated 24.02.2023, the legal heirs of the appellant, namely, 1. Abdul

Matin, 2. Abdul Waheb, 3. Abdul Rauf, 4. Abdul Rafik, 5. Rumena

Begum, 6. Rukia Begum, and 7. Ruli Begum, were substituted in his

place.

Page 4 of 27

RSA No. 116 of 2014 Page 4

4. The facts relevant for consideration of the instant second

appeal, in brief, are as follows:

(i) That the respondent No. 1 in this appeal, namely,

Ram Nagina Gupta, had filed a Title Suit (TS-58/1987

which was renumbered as T.S.-177 /1994 and thereafter

as T.S.- 15 /2007) for declaration of his right, title and

interest and for cancellation of sale deed and for

recovery of khas possession of the suit land measuring

01 Katha, 04 Lechas of land covered by Periodic Patta

No.268, Dag No. 3617 of Block No. 1, Jorhat Town,

which has been fully described in the schedule A to the

plaint filed by the plaintiff. The claim of the plaintiff

before the Trial Court was that the defendant No. 6,

namely, Biren Khound, had sold the suit land to the

respondents/plaintiff on 30.11.1978 by executing a

registered sale deed No. 9295 dated 30.11.1978. It was

also averred in the plaint that the defendant No. 1,

namely, Abdul Hamid @ Ghari Mistry (the original

appellant in this case) was in wrongful possession of the

suit land at the time when the sale deed was executed

and hence, the plaintiff could not take over the

possession of the suit land after execution of the sale

deed. The defendant Nos. 1 and 2 in the said suit,

namely, Abdul Hamid and Alauddin Hakim (Kabiraj) filed

Page 5 of 27

RSA No. 116 of 2014 Page 5

a joint written statement wherein, they took a plea of

adverse position by stating that they were in possession

of the suit land since a long time. It was also stated in

the written statement that defendant No. 2 came to

occupy a part of the suit land as allowed by the

defendant No. 1. On the basis of the pleadings of the

parties, the Trial Court framed following issues: -

i. Whether the plaintiff has any cause of

action for the suit?

ii. Whether the suit is barred by limitation?

iii. Whether the suit is hit by the principles of

estoppel and/or waiver?

iv. Whether the suit land is also subject

matter of Title Suit No. 66/1994?

v. Whether the suit is maintainable in law in

view of the counter-claim taken by the

plaintiff in Title Suit No. 66/1994?

vi. Whether the proforma defendant No. 6

was the absolute owner of the suit land

and whether he had the right to sell the

suit land to the plaintiff?

vii. Whether the defendant No. 1 acquired the

title by adverse possession?

Page 6 of 27

RSA No. 116 of 2014 Page 6

viii. Whether the plaintiff is entitled to reliefs as

prayed for?

ix. To what reliefs the parties are entitled to?

5. It is pertinent to mention herein that the Title Suit No.

177/1994, was transferred by the learned District Judge, Jorhat to

the Court of learned Munsiff No. 2, Jorhat and on its transfer, the

suit was re-numbered as Title Suit No. 15/2007. Thereafter, by

Judgment dated 16.07.2007, the learned Munsiff No. 2 decreed the

suit. The predecessor-in-interest of the present appellants filed an

appeal against the said Judgment before the Court of learned

Assistant District Judge, which was registered as Title Appeal No.

18/2007. The Appellate Court remanded the suit back to the Trial

Court for fresh disposal after framing two additional issues. The two

additional issues which were framed were as follows: -

1) Whether the plaintiff has acquired

right, title and interest over the suit land vide

sale deed No. 9295/1978 dated 30.11.1978?

2) Whether the sale deed No.

4484/1978 dated 29.12.1978 and the

rectification deed No. 100/80 dated 14.01.1980

executed by defendant No. 6 in favour of the

defendant Nos. 3, 4 and 5 are void, illegal and

liable to be cancelled?

Page 7 of 27

RSA No. 116 of 2014 Page 7

6. Thereafter, the learned Munsiff No. 2, Jorhat heard the suit

afresh and passed the Judgment, on 28.02.2011, again decreeing

the suit.

7. Being aggrieved by the Judgment and Decree dated

28.02.2011, the predecessor-in-interest of the present appellants

again preferred an appeal before the Court of learned Civil Judge,

Jorhat which was registered as Title Appeal No. 05/2011. The said

appeal was dismissed by Judgment dated 21.12.2013 affirming the

Judgment and Decree passed by the Trial Court.

8. Being aggrieved by the judgment of the First Appellate Court,

the present Regular Second Appeal has been preferred by the

predecessor-in-interest of the present appellants before this Court.

9. It is pertinent to mention herein that in respect of the same

suit land, which was the subject-matter of Title Suit No. 15/2007,

the defendant Nos. 3, 4 and 5 of Title Suit No. 15/2007 have

preferred a Title Suit earlier before the Court of Assistant District

Judge, Jorhat. It was initially registered as Title Suit No. 75/1983

and subsequently re-numbered as Title Suit No. 66/1994 before the

Court of learned Assistant District Judge, Jorhat.

10. In the said suit, the predecessor-in-interest of the present

appellants was arrayed as defendant No. 1 and Alauddin Hakim was

made defendant No. 2 and the respondent No. 1 of the present

appeal, namely, Ram Nagina Gupta was made as proforma

Page 8 of 27

RSA No. 116 of 2014 Page 8

defendant No. 5(he should have been numbered as defendant No. 6

as M/s Gopal Krishna Tea Estate was made as defendant No. 5).

The said suit was dismissed on 29.03.2005.

11. Being aggrieved by the order of the dismissal the plaintiffs of

the said suit, namely, 1. Bhawrilal Kundalia, 2. Bhikram Chand

Kundalia and 3. Rajkumar Kundalia preferred an appeal which was

registered as Title Appeal No. 19/2005. The said appeal was also

dismissed on 08.08.2006, whereby the Judgment dated 29.03.2005,

passed in Title Suit No. 66/1994, was upheld.

12. It is pertinent to mention herein that the earlier suit, i.e., Title

Suit No. 66/1994 was filed by three plaintiffs, namely, Bhawrilal

Kundalia, Bhikram Chand Kundalia and Rajkumar Kundalia claiming

right, title and interest over the suit land on the basis of a sale deed

which was executed in their favour by one Biren Khound on

27.12.1978 bearing sale deed No. 4484/1978 dated 27.12.1978 in

respect of 01 Katha 14 Lechas of land covered by Dag No. 3686 of

periodic patta No. 268, which was more fully described in the

schedule to the plaint.

13. The schedule of the land mentioned in the said sale deed was

rectified later on by Sri Biren Khound by executing a deed of

rectification on 14.01.1980, whereby the area of land mentioned in

the sale deed No. 4484/1978 was rectified from 01 Katha 14 Lechas

Page 9 of 27

RSA No. 116 of 2014 Page 9

to 01 Katha 04 Lechas and the Dag No. was rectified from 3686 to

3617.

14. In this Regular Second Appeal, after perusal of the memo of

appeal as well as other materials on record, this Court, by order

dated 23.05.2014, had formulated following substantial questions of

law: -

1) Whether in view of withdrawal of

Title Suit No. 30/1980 while a counter-claim

remained on record, the subsequent suit of the

plaintiff was barred?

2) Whether the suit of the plaintiff had

abated in view of the abatement of suit as

against the defendant No. 2?

3) Whether the learned Courts below

committed error in declaring title of the plaintiff

over the suit land?

15. The substantial question of law No. 1 formulated hereinabove

is reformulated again as hereunder: -

“Whether in view of dismissal of Title

Suit No. 75/1983 which was re-numbered as

Title Suit No. 66/1994, wherein a counter-

claim filed by the present respondent,

namely, Ram Nagina Gupta remained on

Page 10 of 27

RSA No. 116 of 2014 Page 10

record, the subsequent suit by the

respondent/plaintiff namely, Ram Nagina

Gupta was barred?”

16. Mr. J. Ahmed, the learned counsel for the appellants has

submitted that on perusal of the written statement filed by the

proforma defendant No.6, namely, Ram Nagina Gupta (present

respondent) in Title Suit No. 66/1994, it would appear that along

with the written statement, he also filed a counter-claim praying for

declaring that the proforma defendant, namely, Ram Nagina Gupta

is entitled to khas possession over the suit land after evicting

defendant No. 1, Abdul Hamid and defendant No. 2, namely,

Alauddin Hakim on the basis of his right, title and interest over the

said land. He has submitted that though by Judgment dated

29.03.2005, the Title Suit No. 66/1994 was dismissed, however, no

order was passed with regard to the counter-claim filed by the

present respondent, namely, Ram Nagina Gupta.

17. The learned counsel for the appellants has submitted that as

the subject-matter of the suit in the Title Suit No. 66/1994 as well

as Title Suit No. 15/2007 were same, the subsequent suit, i.e. Title

Suit No. 15/2007 was barred by Res Sub judice as provided under

Section 10 of the Code of Civil Procedure, 1908 and hence in the

subsequent suit, i.e. in Title Suit No. 15/2007 decree could not have

been passed in favour of the present respondent, namely, Ram

Nagina Gupta.

Page 11 of 27

RSA No. 116 of 2014 Page 11

18. On the other hand, the learned counsel for the respondents

has submitted that though in the written statement filed by the

present respondents in Title Suit No. 66/1994, he had prayed for

delivery of khas possession in his favour by evicting defendant Nos.

1 and 2 on the basis of his right, title and interest over the suit land,

however, the said written statement was never treated by the Trial

Court as a counter-claim.

19. The learned counsel for the respondents has also submitted

that under Order VIII Rule 6A, the defendant in a suit may file a

counter-claim against the claim of the plaintiff, however, same may

not be done against any of the defendants. He has also submitted

that in case of a counter-claim filed under Order VIII Rule 6A, same

shall have to be treated as a plaint for all purpose and same is

governed by the rules which are applicable to plaint. He further

submits that in the said title suit the present respondents as

proforma defendants while filing the written statement never filed

any court fee for the counter-claim and hence, he submits that the

written statement filed by the present respondents in Title Suit No.

66/1994 may not be treated as a counter-claim, therefore, he

submits that the bar of Section 10 of the Code of Civil Procedure

may not be applicable in this case.

20. The learned counsel for the respondents has also submitted

that on perusal of the case record of Title Suit No. 66/1994, it

Page 12 of 27

RSA No. 116 of 2014 Page 12

becomes clear that when the written statement was filed by the

present respondents, the next date of the said suit was fixed on

10.08.1984. The order sheet does not mention anything about the

counter-claim and the written statement submitted by the present

respondents was referred to as written statement and next date

was fixed for framing of issues. He also submits that had it been

treated as a counter-claim, the next date would have been fixed for

filing of written statement against counter-claim by the plaintiff side.

He also submits that from the entire record of Title Suit No.

66/1994, nowhere it is mentioned that the written statement filed

by the present respondents in the said suit was treated as a

counter-claim at any point of time for any purpose.

21. Regarding the second substantial question of law formulated

by this Court as to whether the suit of the plaintiff had abated in

view of the abatement of suit against defendant No. 2, it is

submitted by learned counsel for the appellants that as the

respondent/plaintiff was the neighbour of the defendant No. 2,

namely, Alauddin Hakim, who had expired during the pendency of

the suit, the said fact is supposed to be known to him, it was the

duty of the respondent/plaintiff to substitute the legal

representative of defendant No. 2, and by not doing so, the suit got

abated not only against defendant No. 2, but as a whole.

22. In support of his submission, learned counsel for the

appellants has cited following rulings:-

Page 13 of 27

RSA No. 116 of 2014 Page 13

i. “Delhi Development Authority Vs. Diwan Chand Anand

And Others,” reported in “(2022)10 SCC 428;”

ii. “Sunkara Lakshminarasamma (Dead) By Legal

Representatives Vs. Sagi Subba Raju And Others”

reported in “(2019) 11SCC 787;”

iii. “T.Gnanavel Vs. T.S.Kanagaraj And Another” reported

in “(2009)14 SCC 294;”

iv. ”Budh Ram And Others Vs. Bansi And Others” reported

in “(2010)11 SCC 476.”

23. On the other hand, learned counsel for the respondents has

submitted that both the defendant No. 1 and defendant No. 2 of

the Title Suit No. 15/2007 were represented by the same Advocate

and it was the statutory duty of the said counsel, under Order 22

Rule 10A of the Code of Civil Procedure, to inform the Trial Court

regarding the death of defendant No. 2, however, same was not

done by the engaged counsel.

24. It is also submitted by the learned counsel for the

respondents that question of abatement on the death of defendant

No. 2 has been raised for the first time in this second appeal.

25. The learned counsel for the respondent has also submitted

that in the case in hand, the defendant No. 2, apart from filing a

joint written statement with defendant No. 1 has not taken any

steps to contest the suit. He has also submitted that the decree in

Page 14 of 27

RSA No. 116 of 2014 Page 14

question is not indivisible, as it may be executed against defendant

No. 1 (the predecessor-in-interest of the present appellants). This is

because it was defendant No. 1 who claimed possession of the suit

land and who asserted having acquired title over it by way of

adverse possession. He has submitted that in this case, even if the

suit is treated to have been abated against defendant No. 2, it

would have no effect to the relief granted to the respondent/plaintiff

by the Court against the defendant No. 1(predecessor-in-interest of

the present appellants).

26. In support of his submissions, the learned counsel for the

petitioner has cited following rulings:-

i. “Shivshankara and another Vs. H.P. Vedavyasa Char”

reported in “AIR 2023 SC 1780;”

ii. “Deepak Tandon And Another Vs. Rajesh Kumar

Gupata” reported in “(2019)5 SCC 537;”

iii. “S. Amarjit Singh Kalra (Dead), Ram Vs. Smt. Pramod

Gupta (Dead) By L.Rs. & Ors.” reported in ‘‘(2003) 3

SCC 272.”

27. As regards the third question of law formulated in this appeal

as to whether the Courts below committed error in declaring the

title of plaintiff over the suit land, the learned counsel for the

appellants has submitted that the Trial Court as well as First

Appellate Court have failed to take into consideration the evidence

regarding the fact that the predecessor-in-interest of the present

Page 15 of 27

RSA No. 116 of 2014 Page 15

appellants was in possession of the suit land and as such, at the

time of execution of alleged sale deed by defendant No. 6 in favour

of the present respondents/plaintiff there was no delivery of

possession to the respondents/plaintiffs.

28. It is also submitted by the learned counsel for the appellants

that the fact of long standing and continuous adverse possession

over the suit land by the predecessor-in-interest of the appellants

was also overlooked by the Trial Court as well as by the First

Appellate Court.

29. On the other hand, Mr. A. Das, learned counsel for the

respondents has submitted that the courts below have rightly held

that the Respondent No. 1 to be having the right, title and interest

over the suit land. He submits that the ownership over the suit land

was validly conveyed to the Respondent No. 1 by his vendor from

whom he had purchased the same.

30. It is submitted by the learned counsel for the respondent No.

1 that the predecessor-in-interest of the present appellant, namely,

Abdul Hamid @ Ghari Mistry as well as the defendant No. 2 of the

suit, namely, Alauddin Hakim never filed any counter-claim in the

plaint filed by the respondent No. 1 neither they had challenged the

sale deed No. 9295/78 dated 30.11.1978 by which the title of the

suit land was conveyed to the respondent No. 1. He has also

submitted that the Courts below had not committed any error in

Page 16 of 27

RSA No. 116 of 2014 Page 16

deciding the Title Suit No. 15/2007 and Title Appeal No. 05/2011

and therefore, he submits that this appeal is liable to be dismissed.

31. Mr. J. Ahmed, learned counsel for the appellants has also

submitted that though in the memo of appeal the appellants had

stated a substantial question of law regarding adverse possession,

same was not formulated by this Court at the time of hearing under

Order 41 Rule 11 of the Code of Civil Procedure, 1908. He submits

that this Court has power to formulate substantial question of law

even later on if it is satisfied that the case involves such a

substantial question of law. He, therefore, prays for formulating the

following additional substantial question of law: -

“Whether the suit filed by the plaintiff is

barred by limitation and the defendant Nos. 1

and 2 have acquired possessory right, title and

interest over the suit land by way of adverse

possession?”

32. On the other hand, Mr. A. Das, learned counsel for the

respondent has submitted that the additional question proposed by

the learned counsel for the appellants involves question of fact and

has already been answered by the Trial Court while deciding issue

No. 7 in the Title Suit, as well as by the First Appellate Court. Both

the Court gave concurrent finding on the said issue to the effect

that the suit is not barred by limitation and the predecessor in

Page 17 of 27

RSA No. 116 of 2014 Page 17

interest of the present appellants have no right, title and interest by

adverse possession.

33. Learned counsel for the respondents has also submitted that

in paragraph No. 23 of the judgment of the First Appellate Court in

Title Appeal No. 05/2011, it gave a contrary view to the effect that

the predecessor-in-interest of the present appellants was in

permissive possession of the suit land and therefore, the question of

adverse possession does not arise.

34. I have considered the submission made by the learned

counsel for the appellants as well as learned counsel for the

respondents and have perused the materials on record of the First

Appellate Court as well as the Trial Court, which were requisitioned

in connection with this second appeal.

35. Let, us examine the first substantial question of law

formulated in this appeal as to whether in view of the dismissal of

Title Suit No. 75/1983 which was re-numbered as Title Suit No.

66/1994, where a counter-claim which was filed by the present

respondent, namely, Ram Nagina Gupta remained on record, the

subsequent suit by the respondent/plaintiff namely, Ram Nagina

Gupta was barred.

36. It is pertinent to note that in Title Suit No. 66/1994, Ram

Nagina Gupta was arrayed as proforma defendant No. 5 and the

Page 18 of 27

RSA No. 116 of 2014 Page 18

predecessor-in-interest of present appellants, namely, Abdul Hamid

@ Ghari Mistry was arrayed as defendant No. 1 in the said suit.

37. Now, the question is as to whether in a suit a defendant may

file counter-claim against co-defendant. The question also arise as

to whether this question may be regarded as a substantial question

of law in this case.

38. In this regard the observation made by the Supreme Court of

India in the case of “Kondiba Dagadu Kadam Vs. Savitribai Sopan

Gujar and others” reported in “(1999) 3 SCC 722” is relevant and

same is quoted herein below:-

4. It has been noticed time and again that

without insisting for the statement of such a

substantial question of law in the memorandum of

appeal and formulating the same at the time of

admission, the High Courts have been issuing

notices and generally deciding the second appeals

without adhering to the procedure prescribed

under Section 100 of the Code of Civil Procedure.

It has further been found in a number of cases

that no efforts are made to distinguish between a

question of law and a substantial question of law.

In exercise of the powers under this section the

findings of fact of the first appellate court are

found to have been disturbed. It has to be kept in

mind that the right of appeal is neither a natural

nor an inherent right attached to the litigation.

Being a substantive statutory right, it has to be

regulated in accordance with law in force at the

relevant time. The conditions mentioned in the

section must be strictly fulfilled before a second

Page 19 of 27

RSA No. 116 of 2014 Page 19

appeal can be maintained and no court has the

power to add to or enlarge those grounds. The

second appeal cannot be decided on merely

equitable grounds. The concurrent findings of

facts howsoever erroneous cannot be disturbed

by the High Court in exercise of the powers under

this section. The substantial question of law has

to be distinguished from a substantial question of

fact. This Court in Sir Chunilal V. Mehta and Sons

Ltd. v. Century Spg. & Mfg. Co. Ltd. [AIR 1962 SC

1314 : 1962 Supp (3) SCR 549 : 65 Bom LR 267]

held that:

“The proper test for determining whether a

question of law raised in the case is substantial

would, in our opinion, be whether it is of general

public importance or whether it directly and

substantially affects the rights of the parties and

if so whether it is either an open question in the

sense that it is not finally settled by this Court or

by the Privy Council or by the Federal Court or is

not free from difficulty or calls for discussion of

alternative views. If the question is settled by the

highest court or the general principles to be

applied in determining the question are well

settled and there is a mere question of applying

those principles or that the plea raised is palpably

absurd the question would not be a substantial

question of law.”

39. For the sake of convenience Order 8 Rule 6A of the Code of

Civil Procedure, 1908 is also quoted herein below: -

“Counter-claim by defendant. [Inserted by the

Code of Civil Procedure (Amendment) Act, 1976,

Section 72 (w.e.f. 1.2.1977).]-

Page 20 of 27

RSA No. 116 of 2014 Page 20

(1)A defendant in a suit may, in addition to

his right of pleading a set-off under rule 6, set

up, by way of counter-claim against the claim of

the plaintiff, any right or claim in respect of a

cause of action accruing to the defendant

against the plaintiff either before or after the

filing of the suit but before the defendant has

delivered his defence or before the time limited

for delivering his defence has expired, whether

such counter-claim is in the nature of a claim for

damages or not : Provided that such counter-

claim shall not exceed the pecuniary limits of the

jurisdiction of the Court.

(2)Such counter-claim shall have the same

effect as a cross-suit so as to enable the Court to

pronounce a final judgment in the same suit,

both on the original claim and on the counter-

claim.

(3)The plaintiff shall be at liberty to file a

written statement in answer to the counter-

claim of the defendant within such period as may

be fixed by the Court.

(4)The counter-claim shall be treated as a

plaint and governed by the rules applicable to

plaints.”

40. A bare perusal of the above statutory provision would reveal

that the counter-claim by the defendant may be directed against the

claim of the plaintiff only. Counter-claim by the defendant solely

Page 21 of 27

RSA No. 116 of 2014 Page 21

against the co-defendant is not maintainable under the aforesaid

provision. The statutory provision in this regard is crystal clear and

there is no ambiguity calling for any other interpretation of the said

provision. As a counter-claim by a defendant against another

defendant in the suit is not maintainable, this court is of considered

opinion that the Trial Court as well as the First Appellate Court have

rightly ignored the counter-claim filed by the proforma defendant

No. 5 against the defendant No. 1 in the Title Suit No. 66/1994

while deciding the said suit.

41. As the statutory law applicable under the facts and

circumstances of the present case which is provided for in the Order

8 Rule 6A is unambiguous, hence, the question No. 1 formulated by

this Court does not involve any substantial question of law and the

Trial Court as well as first Appellate Court has correctly applied the

settled law by ignoring the counter-claim filed by the proforma

defendant No. 5 against the defendant No. 1 in Title Suit No.

66/1994. Thus, the Title suit No.15/2007 is not barred by Section 10

of the Code of Civil Procedure, 1908.

42. Let us now, examine the second substantial question of law

formulated by this Court as to whether the suit of the plaintiff (Title

Suit No. 15/2007) has abated as a whole in view of the abatement

of suit against defendant No. 2.

Page 22 of 27

RSA No. 116 of 2014 Page 22

43. Though, the appellants have taken the plea that the

defendant No. 2 had expired during the pendency of Title Suit No.

15/2007, however, on perusal of the case records, it appears that

though the defendant No. 1 and defendant No. 2 filed a joint

written statement in the said suit and though both were

represented by a common Advocate, the fact of the death of

defendant No. 2 was not brought to the notice of the Trial Court

which was required under Order 22 Rule 10 A of the Code of Civil

Procedure, 1908.

44. It also appears that the plea of death of defendant No. 2 has

been raised for the first time in this second appeal. Moreover, apart

from making a statement regarding the death of defendant No. 2,

no date of the death or materials/evidence regarding the death of

the defendant No. 2 has been brought on record by anyone.

Therefore, there is no evidence on record to conclusively arrive at a

finding of death of defendant No. 2 during the pendency of the Title

Suit No. 15/2007.

45. Even if assuming that the defendant No. 2 has expired, the

question which is relevant here is as to whether the title suit would

abate against him only or as a whole. I have gone through the

ruling cited by the learned counsel for the appellants as well as

learned counsel for the respondents in this regard.

Page 23 of 27

RSA No. 116 of 2014 Page 23

46. The observations made by the Supreme Court of India in

Budh Ram And Others (supra) is relevant in this regard and same is

quoted herein below:-

“17. Therefore, the law on the issue stands

crystallised to the effect that as to whether non-

substitution of LRs of the respondent-defendants

would abate the appeal in toto or only qua the

deceased respondent-defendants, depends upon

the facts and circumstances of an individual case.

Where each one of the parties has an independent

and distinct right of his own, not interdependent

upon one or the other, nor the parties have

conflicting interests inter se, the appeal may

abate only qua the deceased respondent.

However, in case, there is a possibility that the

court may pass a decree contradictory to the

decree in favour of the deceased party, the appeal

would abate in toto for the simple reason that the

appeal is a continuity of suit and the law does not

permit two contradictory decrees on the same

subject-matter in the same suit. Thus, whether

the judgment/decree passed in the proceedings

vis-à-vis remaining parties would suffer the vice

of being a contradictory or inconsistent decree is

the relevant test.”

47. Thus, the test in this regard is whether each one of the

parties has independent and distinct right of his own and not

Page 24 of 27

RSA No. 116 of 2014 Page 24

interdependent upon one or other, nor the parties have conflicting

interest inter se , the appeal may abate only qua the deceased

respondent.

48. In the instant case, though a joint written statement was filed

by the defendant Nos. 1 and 2 in this case in the Title Suit No.

15/2007, however, it was specifically pleaded therein that it is the

defendant No. 1, who has been continuing his exclusive, continuous

and peaceful possession of the suit land by constructing his dwelling

houses thereon and as regards, defendant No. 2 is concerned, he

only occupied a part of the suit land as was allowed by defendant

No. 1. Hence, this Court is of opinion that as the defendant No. 1

had claimed to be in exclusive possession of the suit land, the death

of defendant No. 2 would not abate the whole suit. Even if the

defendant No. 2 has died, the decree may be executed against the

successors in interest of the defendant No.1. This substantial

question of law is accordingly decided.

49. Let us now, examine the third substantial question of law

formulated by this Court, i.e. whether the Courts below committed

error in declaring the title of the plaintiff over the suit land?

50. On a bare perusal of the aforesaid question, it appears that

the aforesaid question does not involve any question of law, rather

it calls for an enquiry regarding the fact whether the decision of the

Trial Court as well as First Appellate Court were right or not. To

Page 25 of 27

RSA No. 116 of 2014 Page 25

answer the above question, there shall have to be an examination

as to whether the evidence on record has been properly appreciated

by the Trial Court as well as First Appellate Court and whether there

is proper application of law to the finding of facts arrived at on the

basis of evidence on record. Such a detailed enquiry into facts is in

the considered opinion of this Court is not permissible at stage of

second appeal, unless there is a specific plea regarding perversity

by the Trial Court or by the First Appellate Court in arriving at its

conclusion.

51. We have seen that in the case of Kondiba Dagadu Kadam

(supra), the Apex Court has observed that the second appeal

cannot be decided on merely equitable grounds. The concurrent

finding of facts, howsoever erroneous, cannot be disturbed by High

Court in exercise of the powers under Section 100 of the Code of

Civil Procedure, 1908 and the substantial questions of law has to be

distinguished from substantial questions of facts.

52. In this case, no substantial questions of law as regards

perversity in arriving at the decisions by the Trial Court or the First

Appellate Court has been formulated. Neither anything has been

pleaded specifically from where it could be interfered that there is

any perversity on the part of either Trial Court or the First Appellate

Court in arriving at the decision. If the Court’s below have

considered the materials on record and have arrived at a finding,

merely because of the fact that the finding may be erroneous or

Page 26 of 27

RSA No. 116 of 2014 Page 26

that the higher Court may have a different view of the matter may

not be a ground for invoking jurisdiction under Section 100 of the

Code of Civil Procedure, 1908.

53. The additional substantial question of law proposed by the

learned counsel for the appellants as to whether the suit filed by the

plaintiff is barred by limitation and the defendant Nos. 1 and 2 have

acquired possessory right, title and interest over the suit land by

way of adverse possession also involves questions of facts and as

there is a categorical finding by the First Appellate Court in this

regard, wherein, it has held that the defendant No. 1 is a permissive

occupier over the suit land under the original owner of that land on

payment of rent. Moreover, there is evidence to this regard on

record. During cross-examination, the DW-2 has stated that his

father had taken the suit land on lease from the father of Birendra

Khound and Kanak Khound. The Trial Court also came to the finding

that the defendant No. 1(predecessor-in-interest of the present

appellants) also categorically admitted that his father was the lessee

under the original owner of the suit land and therefore, it is

admitted fact that the defendant No. 1 by stepping into the shoes of

his father also acquired the status of a lessee in respect of the suit

land and hence, the appellants was regarded as a permissive

occupier of the suit land and therefore his plea, regarding

acquisition of title by way of adverse possession was rightly rejected

by the Trial Court as well as by the First Appellate Court. Moreover,

Order downloaded on 24-12-2024 05:55:12 PMPage 27 of 27

RSA No. 116 of 2014 Page 27

as already stated hereinbefore, that this question involves an

enquiry into the findings of facts, which is not permissible in the

second appeal, unless it involves a substantial question of law. The

proposed additional question by the learned counsel for the

appellants has already been dealt with by the Trial Court as well as

by the First Appellate Court, would again involve appreciation of

facts and it does not involve any substantial questions of law.

Therefore, no additional substantial question, as proposed by

learned counsel for the appellants, is required to be formulated at

this stage in this second appeal.

54. For the reasons mentioned hereinabove, this Court does not

find any ground to interfere with the concurrent finding of the Trial

Court as well as First Appellate Court and therefore, refrain from

interfering with the judgment of the Trial Court as well as First

Appellate Court.

55. This regular second appeal is accordingly dismissed.

56. However, there shall be no order as to cost.

57. Send back the records of the Trial Court as well as First

Appellate Court, along with a copy of this judgment.

JUDGE

Comparing Assistant