B.N. Singh Neelam, J.@mdashThis appeal is so preferred by Sri Deochand Sarda (Defendant No. 3 of T.S. No. 266/76) u/s 100 of the CPC being aggrieved by the judgment and decree dated 8.7.87 and 10.7.87 respectively passed by Assistant District Judge No. 2, Cachar at Silchar in Title Appeal No. 8/84 modifying the judgment dated 29.11.83 followed by decree of 22.12.83 passed by Sadar Munsiff No. 2, Cachar at Silchar in Title Suit No. 266/76
2. This appeal got admitted on 1.7.88, being satisfied that the case involves substantial question of law to be decided particularly formulated in as ground Nos. 2 & 8 of this memo of appeal granting liberty to the Appellant to place any other legal point emerging in course of hearing. Ground Nos. 2 &18 run as under:
GROUND No. 2
As to whether in view of the facts, the Munsiffs suit was clearly barred by limitation and the learned Court below had committed an error in not dismissing the Plaintiff suit on the ground of limitation ?
GROUND No. 18
As to whether in view of the decision of the Court in T.S. No. 43/51, the Plaintiffs suit bearing No. 266/76 was barred by principle of resjudicata?
However, in the course of argument over and above Ground Nos. 2 & 18, other ground so taken as Ground Nos. 6, 7, 9 & 13 were also taken into consideration.
3. It transpires that T.S. No. 266/76 was preferred by the Plaintiff, Life Insurance Corporation of India against Ramchandra Sarda & 26 others for declaration of tenancy right of the Plaintiff over 7.84 ch. of land covered by Dag Nos. 3545 of R.S. Patta No. 376 situated in Silchar detailed in the 2nd schedule of the plaint, ejecting the Defendants therefrom by removing their unauthorised construction. The suit was contested by principal Defendant Nos. 1 and 3. Defendants 15 to 26 were proforma Defendants. The learned Sadar Munsiff 2 had framed the following issued arising out of the pleadings of the parties:
1. Is there any cause of action to the suit ?
2. Is the suit maintainable in its present form?
3. Is the suit barred by limitation ?
4. Is the suit bad for defect of parties ?
5. Is the suit properly valued and stamped ?
6. Is the suit bad for estoppel, waiver and acquiescence ?
7. Is the suit land correctly described ?
8. Is the suit bad under Specific Relief Act ?
9. Is the suit barred by res judicata?
10. Whether the Plaintiff has got right, title and interest over the suit land ? Or whether the Defendants acquired right by adverse possession over the 2nd schedule land ? And
11. To what relief, if any the Plaintiff is entitled?
4. It also transpires that in course of T.S. 266/76 proceeding, the whole suit land was measured and surveyed by the Amin Commissioner at the instance of the learned Munsiff 2 and his report was proved marked as Ext.7. This Amin Commissioner had divided the suit lane into 4 strips marking them as A, B, C & D. Sketch map was also prepared marked as Ext. 10 and Ext. 7 & 10 are the part of the record. The details of the area of the subplots with its boundaries are shown therein while deciding Issue No. 11 the learned Sadar Munsiff No. 2 in T.S. No. 266/76 on 29.11.83 has held as under partly decreeing the suit in favour of this Plaintiff.
ISSUE No. 11 : In consideration of the decisions of the foregoing issues it is held that the Plaintiff is entitled to get decree for declaration of his title in respect of ''A'' and ''B'' plots of the suit land and for a decree for ejectmemt in respect of the ''B'' plot. As regards the land of ''C'' and ''D'' plots, he is not entitled to any relief. This issue is decided accordingly.
ORDER
The suit is partly decreed declaring the tenancy light of the Plaintiff in respect of the portions of the suit land marked as plot ''A'' and ''B'' in the Amin Commissioner report (Ext.7) and it is decreed for ejectment of the principal Defendants in respect of ''B'' plot by demolishing and removing the pucca structure existing on the northern side of it on contest against the Defendants No. 1 and 3 and ex parte against the rest. The suit for declaration of title and for ejectment in respect of land of plot C and D also for ejectment in respect of Plot ''A'' is dismissed. The report of Amin Commissioner marked Ext.7 will form part of the decree.
5. It further comes in light that Defendant No. 3 Sri Deochand Sarda who is also the Appellant here preferred 1st appeal bearing T.A. No. 8/84 before the Asstt. District Judge No. 2, Cachar Silchar challenging that part of the judgment so passed in T.S. No. 266/76 granting partial relief to the Plaintiff. Particularly the Appellant in 1st appeal urged that Issue Nos. 3, 5 & 10 so decided by the learned Munsiff was against the facts and circumstances and the set principle of law and hence the learned Munsiff had erred in granting though partially the relief sought for by the Plaintiff. The Plaintiff according to the Appellant was not entitled to get the decree for the declaration of his title in respect of A & B strip of plots and a decree for ejectment in respect of ''B'' plot. No appeal was so preferred by the Munsiff but the 1st Appellate Court After hearing the parties held that Munsiff was entitled to a decree for declaration of his title over A, B, C and D plot of the suit land and also for a decree of ejectment of the contesting Defendants from B, C & D plots. The first appeal so preferred by the Defendant No. 3 was dismissed vide judgment passed on 8.7.87 in T.A. 8/84 also first appellate Court declaring the Plaintiffs right, title and interest over A, B, C & D plots of the suit land and passing also a decree for ejectment in respect of B, C & D plots. With this modification the judgment of the Court of the Ist instance so passed in T.S. No. 266/76 dated 29.11.83 got affirmed. The operative portion of the judgment passed in T.A. No. 8/84 runs as under:
In the result, the appeal is dismissed on contest without cost. The suit for declaration of the Plaintiff''s right, title and interest over A, B, C & D plots of the suit land and for a decree for ejectment in respect of B, C and D plots stand decreed. With the above modification the impugned judgment and decree of the learned lower Court are hereby affirmed.
Sd/-R.K. Sutradhar
8.7.87
Asstt. Dist. Judge 2
Cachar, Silchar.
6. The case of the Plaintiff/Respondents in nutshell is that:
The original owner of SK 13 ch. of land described in the first schedule to the plaint was Raishahib Naba Kr. Das (since deceased), the predecessor of the proforma Defendant Nos. 15 to 26. The suit land described in the 2nd schedule to the plaint is very much a part of the first schedule land. Naba Kumar Das leased out the first schedule land to the sylhet Industrial Bank Ltd. for a period of 27 years with a renewal Clause commencing from the first day of Baisaka 1345 B.S. under a bilateral deed of lease dated 5.12.38 at an annual rent of Rs. 400/-. The Sylhet Industrial Bank Ltd. after obtaining possession in pursuance of said lease constructed its office building on the eastern part/page 31 part of the said lease hold land as its own, costs and expenses keeping the westerns portion (II schedule land i.e. the suit land) vacant. Subsequently the Sylhet Industrial Bank Ltd. got itself amalgamated with Mahalaxmi Bank Ltd. by an order dated 25.6.47 of the High Court of judicature at Fort William in Bengal, in its original civil jurisdiction under the provisions of the Indian Companies Act as a result of which the right, title and interest of all the properties including the land and the two storied building mentioned in the first schedule to the plaint of Sylhet Industrial Bank Ltd. got vested to the said Mahalaxmi Bank Ltd. Being thus tenant in the land of the first schedule and owner of the building thereon sold the same to the Aryya Insurance Co. Ltd. by a sale deed dated 23.2.48 and delivered possession thereof. After nationalisation of the insurance companies in India by operation of the Life Insurance Corporation Act, 1956 the Aryya Insurance Co. Ltd. was merged with its all assets including the land and building thereon, described in the first schedule with the Plaintiff, the L.I.C. of India. Thus, the Plaintiff became tenant in the said land and owner of the building thereon.
The second schedule land (suit land) is the western most portion of the first schedule land. It was kept vacant and there was and is safety tank of the sanitary installation of the building. The principal Defendants have their dwelling houses and shops on their land of R.S. Dag Nos. 3547 and 3548 on the adjacent south of the first schedule land. They have their passage towards Janiganj Road on the east. Tulapatty Road of Silchar town passes by the adjacent north of the first schedule land. Some time in the month of December 1969/page 4/the principal Defendants encroached upon the second schedule land (i.e. the suit land) and constructed a pucca gate on the northern side therein despite protest of the Plaintiff and thereby compelled the Plaintiff to bring this suit.
7. As detailed by the learned Ist Appellate Court in para 5 of the impugned judgment the stand of the contesting Defendant figuring here as Appellant was that there was no cause of action for the suit; that the suit was bad for defect of parties; that it is barred by limitation and bad for waiver, estoppel and acquiescence; that the suit was not properly valued and stamped; that the suit land is not correctly described, that the suit was bad under the Specific Relief Act and that it was barred by res judicata. Their further case is that the Plaintiff has no right, title and interest over the suit land as no relationship of landlord and tenant exists between the proforma Defendants, the owners of the suit land, and the Plaintiff. The Plaintiff had no possession at any time over the suit land. The story of possession of the Plaintiff over the suit land and his subsequent dispossession therefrom on or about 1969 and 1970 or at any time is entirely false and connected one. The principal Defendants have been possession the suit land, described in the schedule II to the plaint as their trade frontage and passage of ingross and engross from their residence and shop house appertaining to R.S. Dag No. 3547 and 3548 from time immemorial by constructing a pucca gate on the northern side thereof (i.e. of the suit land). While the properties of the principal Defendants Nos. 1 to 4 and of Mirlidhar Sarda, the predecessor of principal Defendant Nos. 5 to 14 were joint, Murlidhar Sarda as karta of joint family filed T.S. No. 43 of 1951 against the Aryya Insurance Co. Ltd., the predecessor of the Plaintiff of the present suit claiming/right of easement over the suit land. The suit ended with a compromise decree which declared right of easement of Murlidhar Sarda over a part 31/2 ft. in breadth of the suit land towards adjoining building. Said decree allowed the predecessor of the present Plaintiff to construct a stair case on and from the remaining part of the suit land leading to the first floor of the building on the east like a bridge handing at a height of 71/2ft over the space in respect of which the right of way of Murlidhar Sarda was declared. But the Plaintiff neither came: to occupy the part of the suit land on which the was allowed to construct the stair case nor he constructed the said stair case. As a result Murlidhar Sarda continued and after him the principal Defendants are continuing to possess the sntire suit land as before. In fact Murlidhar Sarda had and after him the principal Defendants have easement right over the entire suit land. Murlidhar Sarda though at the intervention of Sasindra Mohon Deb, the then Chairman of Silchar Municipal Board agreed to give up his claim of easement right from a portion of the suit land but the Plaintiff failed to take over possession there of and as a result, the suit land has all along been in enjoyment and possession of the principal Defendants. Umesh Chandra Dey was tenant in the land of R.S. Dag No. 3544 and on a easternmost part measuring 2 ch. of the suit land under the predecessor of the proforma Defendants. He had a tea stall thereon. He transferred his right of tenancy over the said land by way of sale to the contesting Defendant No. 3 by a registered kabala in 1961 and since then the contesting Defendant No. 3 has been continuously possessing the said western most portion of the suit land denying right, title and interest of the Plaintiff therein. The Plaintiff got possession only of the land occupied by the building known as Aryya Insurance building and not over an inch beyond it. The answering Defendant acquired easement/right over a portion of the suit land measuring 31/2 ft from east to west and whole length from north to south and in the remaining portion they acquired right by adverse possession and in view of above facts and circumstances the Plaintiff is not entitled to get any relief and hence his suit was liable to be dismissed".
8. Heard Mr. B.C. Das, the learned Counsel for the Appellant and Mr. B.R. Dey the learned Counsel for the Respondent.
9. At the very out set Mr. Das the learned Counsel submitted that over and above the substantial question of law formulated for consideration at the time of admission of this Second Appeal, other important questions involved for consideration are as to whether after the expiry of the lease in question which could not be renewed, the said lease subsisted by holding over or under the Assam Non Agricultural Urban Area Tenancy Act, 1955 and also as to whether Defendants are entitled to take the plea of right of easement and any right by adverse possession and also as to whether Plaintiff not preferring any appeal or cross appeal against the judgment and decree passed in T.S. No. 266/76, could have been granted relief by the 1st appellate Court relating to C & D plots by reversing the findings of the Court of the first instance.
10. It is also submitted by Mr. Das the learned Counsel for the Appellant/Defendant No. 3 that the Plaintiff has no right and interest over the suit land, no relationship of landlord and tenant existed between, the Plaintiff and proforma Defendants and the Plaintiff has no possession over the suit land. The schedule II land as claimed is possessed by the principal Defendants and used as Defendants trade frontage, passage of ingross and engross for their residential and shop house in R.S. Dag Nos. 3547 and 3548 from time immemorial by constructing a pucca gate on the northern side thereof. Furthermore as the karta of the family Murlidhar Sarda filed T.S. No. 43/51 against Aryya Insurance Co. Ltd. the predecessor of Plaintiff claiming right of easement over 3 1/2 ft land in breadth towards adjoining building. Right of way to the Plaintiff of T.S. 43/51 was declared on the remaining part, the predecessor of the present Plaintiff was allowed to construct stair case leading to the 1st floor of the building towards east but stair case was never constructed by the other side and Murlidhar Sarda continued and contesting Defendants shifted into Sri Murlidhar Sarda''s show for this part of land also. Then in the western most part of R.S. Dag No. 3544 measuring 2 chs of land, one Umesh Chandra Dey was a tenant under the predecessor of proforma Defendants who had tea stall thereon and he sold his right through registered sale deed in 1961 to the contesting Defendant No. 3 (Appellant here). It is also brought in notice by Mr. Das the learned Counsel that plot A & B together was subject matter of T.S. 43/51, plot C as submitted is under wall of the house in which previously Umesh Ch. Dey ran tea stall and plot D is severed from the rest of the land i.e. A & B which was the positions were in 1951 when T.S. 43/51 was filed. The possession of the said tea stall and the said premises got transferred to the contesting Defendant No. 3 in 1961 who is in continuing possession for more than was 12 years.
11. In respect of plot C & D, the finding of the 1st appellate Court is vehemently assailed by the learned Court representing the Appellant and submitted that the learned 1st appellate Court has committed error in reversing the finding of learned Munsiff 2 so passed in T.S. No. 266/76.
12. Mr. Das the learned Counsel also submitted that the suit land falls within the urban area and as such the provision of TA.I.R. 1981 SC 1550 Smti Shanti Das v. Amal Kr. Banerjee. Particularly its para 5 is referred. (2)
13. Mr. Das further submits that there is no pleading anywhere from Plaintiff side as his continuing as tenant by holding over or statutory tenant and any finding to this effect in favour of the Plaintiff/Respondent is vehemently opposed. In this connection on behalf of the present Appellant two of the reported cases are banked upon and they are
14. It is further urged on behalf of the Appellant that a person remaining in occupation after the expiry of the tenancy is known as statutory tenant but not as a tenan at all. He has merely a protection of statute of not being evicted so long he performs the condit ions of tenancy and he has no interest thereafter i.e. he may enjoy the status of immovability but cant claim to have any lease hold internist in the property. Hence in the instant case as submitted that the Plaintiff may have protection against his landlord but can''t claim to have this point lease hold interest in the property. On Sri Das the learned Counsel for the Appellant has referred to some of the reported cases :
15. On behalf of the Appellant it is also submitted that on no account the Plaintiff can thus claim tenancy right in full and the case laws
16. Mr. Das learned Counsel for the Appellant further submitted that the suit of the Plaintiff for declaration of his tenancy over plots ''C ''D'' by ejecting the Defendants is bared by the law of limitation because of the Defendants purchasing the same in 1961 from Umesh Chandra Dey, the tea stall owner and coming in continuous possession since then. In this connection a reported case is referred
17. The Respondent/Plaintiff, it is pointed out by Mr. Das the learned Counsel for the Appellant, had not preferred any appeal against the judgment and decree passed in T.S. 266/76 in the instant case. It is the contesting Defendant who had preferred appeal (T.A. 8/94) particularly in respect of Plot ''B'' and the Defendant was protected in respect of plots ''A, C & D'' by the judgment and decree of the trial Court. After appearance in T.A.8/84 even no cross appeal was so preferred by the Plaintiff/Respondent but surprisingly enough the Ist appellate Court reversed the judgment and decree of the trial Court granting relief to the non-appealing Plaintiff/Respondent in respect of plots ''C ''D''. It is averred in this connection that the provisions of Order 41 Rule 33 CPC has to be read with Order 41 Rule 22 Code of Civil Procedure, Order 41 Rule 22 enables Respondent to file cross objection or cross appeal in respect of finding made against him but if he has to challenge the decree or part of the decree, he has to file appeal against the decree sought to be set aside i.e. non appealing Respondent can not expect getting decree in his favour. True it is that the appellate Court has power under Order 41 Rule 33 CPC but relief to the Respondent not preferring the appeal, the original decree of the Court of the Ist instance can only be interferred to the extent that while adjusting the rights of the Appellant, it seems, necessary to grant some relief to the non appealing Respondent. The same is permissible but the original decree can''t be re opened in favour of the Plaintiff when appeal is not preferred and hence the appellate Court insuch circumstance has restricted powers only. Party can''t avoid a decree against him unless appeal or cross appeal is preferred by such party and in such case interference with the original decree is only allowed to the extent of adjustment of the rights of the parties. Hence such powers can''t be exercised while dismissing the appeal which has so been done arbitrarily in the present case and this manifest error so committed by the 1st appellate Court can well be seen. The Respondent in such appeal when not filing a separate appeal can utmost canvass the correctness of finding against him but the Respondent cannot challenge the decree against which no appeal or cross objection is preferred by him and this aspect has been overlooked totally by the appellate Court in the instant case. In support of this contention on behalf of the Appellant some of the reported cases are banked upon and they are (1)
18. On these grounds hence the prayer is that this 2nd appeal so preferred is liable to be allowed.
19. Mr. B.R. Dey, the learned Counsel for the Respondent, on the other hand, in nutshell has submitted that the T.S. 266/76 was preferred by the Respondent Plaintiff for his declaration of lease hold right over schedule 11 land detailed in the plaint and also for the ejectment of the principal Defendants therefrom by removal of their unauthorised structures.
20. Giving the birds eye view of the Plaintiff/Respondent''s case, Mr. Dey the learned Counsel has submitted that the original owner Rai Sahib Naba Kumar Das ( Predecessor of proforma Defendants) leased out schedule 1 land to Sylhet Industrial Bank Ltd. for 27 years w.e.f. Ist Baisakh 1345 B.S with renewal clause at the annual rental and the Bank after getting possession within 5 yrs. time constructed building in the eastern part of it. The said Band subsequently merged with Mahalaxmi Bank Ltd. (in 1947) which was in 1948 transferred to Aryya Insurance Co. Ltd. and after nationalisation of the Insurance business by the L.I.C., the same got transferred to the Plaintiff (L.I.C.) schedule 11 of the plaint happened to be western portion of schedule 1 land and some time in 1969, the principal Defendants encroached into schedule 11 and by making construction gate etc. The Plaintiffs case is detailed in para 6 of the judgment which need not be repeated.
21. Mr. Dey the learned Counsel first of all submitted that though appeal or cross objection was not preferred by the Plaintiff, Respondent in this case but even then while disposing of T.A.8/84, so preferred by contesting Defendants, the Ist appellate Court was within insist limit granting relief to the Plaintiff/Respondents. It is in this background argued that the sweep of the power of Order 41 Rule 33 is wide enough to determine any question not only between the Appellant and Respondent but even between the corRespondents. Further more it is pointed out that an appeal is the continuation of a suit and the tenants are protected and in this connection
22. Summing up, thus the learned Counsel for the Respondent/Plaintiff has submitted that there is no merit in this 2nd appeal so preferred by the Appellant Defendants and hence the same be dismissed.
23. After hearing both the sides learned Counsels, substantial question of law, involved in this matter broadly are as to whether lease in favour of the Plaintiff subsisted because of its non renewal either by holding over or under Assam Non Agricultural Urban Area Tenancy Act, 1955 and furthermore as to whether the Defendant (contesting) can take plea and advantage of right of easement and adverse possession. Adverse possession being mixed question of law and fact also comes within the ambit for consideration in this 2nd appeal. Also as to whether the Plaintiffs T.S.226/76 was time barred or barred by the principle of res judicata in the background of the decision in T.S.43/51 and also whether the Ist appellate Court has committed error in granting relief to the Plaintiff (Respondents) when the appeal was dismissed so preferred by contesting Defendant and the Plaintiff not preferring any appeal or filing any cross objection after appearing in T.A. No. 8/84.
24. Let us first start with the question raised relating the provisions of Order 41 Rule 33 of the CPC which has to be read with Order 41 Rule 22 Code of Civil Procedure.
In the instant case the first appeal (T.A. 8/84) is dismissed by the appellate Court by declaring right, title and interest of the Plaintiff (Respondent) over plot Nos. A, B, C, & D also passing a decree for ejectment of the Defendant Appellant from plot Nos. B, C, and D. The sub plots A, B, C, D were curved out by the Amin Commissioner so appointed by the learned Munsiff 2 in T.S. No. 266/76 marked as Ext. 10 and the Amin''s report as Ext.7. This is also admitted by the Appellant that the L.I.C. has stepped into the shop Sylhet Industrial Bank Ltd. having right to sue but a person can''t transfer a better title than what he has. This is admitted that T.A. No. 8/84 got preferred by the contesting Defendant against the judgment and decree passed in T.S. No. 266/76 and the Plaintiff/Respondent had not preferred any appeal or cross objection after appearing in T.A. No. 8/84.
25. It will be pertinent as to quote a reported case
Para 22. ...The rule is undoubtedly expressed in terms which are wide but it has to be applied with discretion and to cases where interference in favour of the Appellant necessities interference also with a decree which has by acceptance or acquiescence became final so as to enable the Court to adjust the rights of the parties, wherein an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the Appellant it is necessary to grant relief to a person who has not appealed, the power conferred under Order 41 Rule 33 CPC properly be invoked. The rule however does not confer an unrestricted right to reopen decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from.
26. It further transpires that in a reported case AIR 1979 Gau 7 (Kalicharan Raj Bangshi v. R.P. Raj Bangshi), the Court has relied upon the decision arrived at in
27. In the instant case, the Court of the Ist instance in T.S. 266/76 had decreed the suit partly in favour of the Plaintiff only declaring tenancy right of the Plaintiff over A B plots as per Amin report Ext. 7 though ejectment was allowed in respect of B plot by removing pucca structure existing in the northern side of it and the suit was dismissed for declaration of title and ejectment so preferred by the Plaintiff over ''C'' & D'' plots.
In this background the finding of the Ist appellate Court in T.A.8/84 while dismissing the appeal, declaring right, title and interest of Plaintiff/Respondent over plot Nos. A, B, C and D also passing decree for ejectment in respect of B, C & D plots when the Plaintiff had not preferred any appeal and had not filed any a cross objection, can''t be said to be justified in the background of the decision arrived at in clear terms on this issue as reported in
28. For deciding other substantial questions of law raised with that of the suit being barred by limitation and principles of res judicata, it will not be out of place to refer to the issues framed at the trial stage particularly Issue Nos. 3, 9 and 10. These issues, it is found are thoroughly discussed by the Court of the 1st instance and need not be repeated in detail. It also comes in light that those three issues framed mainly covered the other points so raised here for adjudication.
29. By looking into the record and in the background of the argument so advanced on behalf of the parties, in my considered opinion the suit so filed by the Plaintiff was very much maintainable u/s 34 of the Specific Relief Act, 1963. Exts. 1, 2, and 3 are also not disputed. The fact that the suit land is in western most part of the aforesaid lease hold land is also not disputed and Sulahnama Ext. A, the decree of T.S. No. 43 (Ext. B) are also looked into. The Defendant No. 3, the Appellant in Para 18 in his written statement has averred that he has right of easement over schedule II land but Murlidhar Sarda through whom the contesting Defendant claimed agreed, to give up their right to easement from a portion thereof. Right to easement over the portion of the schedule land also found support by Ext. B. The remaining land is claimed by the contesting Defendant on the basis of adverse possession. The house, premises and shop previously used as Tea Stall by one Sri Umesh Chandra Dey is sub-plots C and D as shown in the map. A & B plots were only the subject matter of dispute in T.S. No. 43/51. Adverse possession is claimed by the Appellant particularly over ''B and D''. plots, the possession of the Tea Stall and the premises are transferred to the Appellant in 1961 by Sri Umesh Ch. Dey and they form plots C & D and the Appellant and his vendor claimed coming in possession over the same for more than 20 years and suit 266/76 being preferred after the lapse of statutory period from the time of dispossession. Hence the Plaintiff claimed for title and ejectment of the Defendant-Appellant from Plot Nos. C & D are rightly found barred by limitation. As regards A and B land, the Plaintiff claimed encroachment and as detailed by the Defendant in 1969. Pucca gate put by the Defendant was found on the Northern plot of Part B covering the frontage of Plot ''A''. Annexure F it further transpires has rightly been not relied upon by the Court of the Ist instance. Defendants have had right of way over plot No. ''A'' even as per the Amin Report and finding so arrived at in T.S. No. 266/76. Plots C &D are in continuous possession of the Appellant since more than 12 years. Over ''B'' plot right on easement was not established by the contesting Defendant. The suit for ejectment over A'' plot is barred by res judicata.
30. In the instant case, facts of the case are required to be looked into to some extent for deciding the substantial question of law emerging because some of the matters to be decided is detailed, happened to be mixed question of fact and law. In the light of the argument advance and also in the background of reported cases cited on main issue, it can thus be safely concluded by arriving at a decision that while passing the judgment and decree in T.S. 266/76 by the learned Munsiff 2, he has dealt with at length assigning good and cogent reason for his granting no relief to Plaintiff for plots C & D. Also rightly holding that the Plaintiff though has title over Plot A'' land but decree off ejectment of Defendant cannot be passed and it is only with regard to B'' plot that title with that of to decree for ejectment in favour of the Plaintiff got passed.
31. It is also found that the Appellant''s claim in First Appeal 8/84 claiming title over plots A & B had no base and the Defendant-Appellant relating to B'' plot is rightly directed to remove the structures of the Northern side of it. The Ist Appellate Court in the background of the reported case
32. Consequently, this appeal succeeds, the judgment and decree passed by the learned Appellate Court in T.A. No. 8/84 which is under challenge are hereby set aside and judgment and decree passed in T.S. No. 266/76 dated 8.7.87 and 10.7.87 respectively by the learned Munsiff No. 2, Cachar, Silchar are hereby restored/revived. The parties shall bear their own costs. The L.C.R. so called for be sent back to the concerned at once.
