RSA 215/2005 BEFORE THE HON’BLE MR JUSTICE BP KATAKEY This appeal, by the plaintiff, is directed against the judgment and decree dated 13.3.2005 passed by the learned District Judge, Morigaon, in Title Appeal No. 5 /2004 affirming the judgment and decree dated 14.6.2004 passed by the learned Ci vil Judge (Senior Division) dismissing the suit of the plaintiff. The plaintiff instituted the Title Suit No. 14/2003 against the State of Assam; represented by the Chief Secretary to the Govt. of Assam, the Morigaon Town Comm ittee represented by the Executive Magistrate; the Deputy Commissioner, Morig aon; Ex-Vice Chairman and Ex-Chairman of Morigaon Town Committee; Sri Kiriti @ K irti Das and Sri Jitu Deka praying for a declaration that the order of allotment dated 11.12.1997 issued by Morigaon Town Committee in respect of plot (bheti) N o. 65(67 new) in favour of the defendant No. 6 Sri Kirity @ Kirti Das is illegal and for recovery of khas possession of the said plot (Bheti), contending inter alia that the said bheti was originally allotted to him by the town committee vi de order dated 1.3.89, thereafter on 7.9.89 and lastly on 12.10.93, which was th ough subsequently allowed to be occupied by the defendant No. 6 by the plaintiff , he being the distant relation of the plaintiff, the defendant No. 6 got the sa id plot (bheti) converted in his name by using certain blank papers carrying the signatures of the plaintiff and got the allotment in his favour on 11.12.1997. The plaintiff also filed an application praying for leave to institute the suit without serving notice under Section 80(I) of the CPC as well as under Section 3 26 of Assam Municipal Act. The said application was allowed by the learned trial court vide order dated 7.7.2003. The defendants contested the suit by filing written statements denying the claim of the plaintiff. In the written statement filed by the defendant No. 2, the Mo rigaon Town Committee, it has been contended that the suit is bad for want of no tice under Section 326 of the Assam Municipal Act apart from the notice under Se ction 80(I) of the CPC and that it is also barred by limitation, the suit having not been brought within three years from the date of issuance of the allotment by the Town Committee, in favour of the defendant No. 6. It has further been ple aded in the written statement that the notice for termination of allotment for v iolation of the terms and conditions of the allotment was also issued to the pla intiff, to which the plaintiff submitted his reply on 5.2.1997 and subsequently he relinquished his right over the said plot (bheti) in favour of the defendant No. 6 and consequently the said bheti was allotted in favour of the defendant No . 6 on 11.12.1997. The Deputy Commissioner, the defendant No. 3 in the written statement has also t aken the plea about the maintainability of the suit for want of notice. The defendant Nos. 6 and 7 have filed their joint written statement also contend ing that the suit of the plaintiff is not maintainable for want of notice under Section 80(I) of the CPC as well as under Section 326 of the Assam Municipal Act and is also barred by the law of limitation. It has further been pleaded in suc h written statement that the bheti was allotted by the defendant No. 2 rightly i n favour of defendant No. 6, after the plaintiff expressed his desire for allotm ent of the same in favour of the defendant No. 6, who also filed the affidavit f or transfer of the electricity connection in the name of the defendant No. 6. On the basis of the pleadings, the following issues were framed by the learned c ourt below: - 1. Whether there is any cause of action for the suit? 2. Whether suit is maintainable in its present form? 3. Whether the suit is bad for want of notice U/S 326 of the Assam Municipal Act and also U/S 80(1) CPC? 4. Whether the suit is barred by Municipal Act? 5. Whether the suit is barred by law of limitation? 6. Whether the allotment patta dated 11.12.1997 of the suit plot bheti No. 65(67 new) issued by the defendant No. 2 to the defendant No. 6 is illegal, void and arbitrary and liable to be set aside? 7. Whether the plaintiff is entitled to get a decree as prayed for? 8. To what relief the plaintiff is entitled to? The learned trial court upon appreciation of the evidences on record though answ ered the issues, as to whether the suit of the plaintiff is barred by limitation as well as relating to the maintainability of the suit for want of notice under Section 80(1) of the CPC as well as under Section 326 of the Municipal Act in f avour of the plaintiff, has, however, dismissed the suit of the plaintiff by dec iding the issue No. 6 against him and in favour of the defendants. Being aggrieved, the plaintiff preferred Title Appeal No. 5/2004 in the court of the learned District Judge, Morigaon which has also been dismissed. Hence the p resent appeal. I have heard Dr. Lal, learned counsel for the appellant, Ms T Goswami, learned c ounsel appearing for the respondent No. 1 who is the defendant No. 2 in the suit and Mr. Deka, learned counsel appearing for the respondent Nos. 2 and 3 who are the defendant Nos. 6 and 7 in the suit. In the appeal, the appellant however, did not implead the other defendants as pa rty though the Deputy Commissioner namely the defendant No. 3 contested the suit by filing the written statement. Dr. Lal, learned counsel for the appellant has submitted that two very vital iss ues i.e. as to whether the defendant No. 6 was the manager under the plaintiff a nd whether the defendant No. 6 had converted the signed blank paper executed by the plaintiff as the reply to the show cause notice issued by the defendant No. 2 as well as the affidavit, have not been framed though pleadings to that effect were made in the plaint and disputed by the defendants in the written statement filed, which has deprived the plaintiff from leading evidence in that regard. I t has further been submitted that the learned first appellate court ought not to have dismissed the appeal for want of notice under Section 326 of the Municipal Act as the learned trial court waived the service of such notice prior to insti tution of the suit. The learned counsel appearing for the respondents, who are the defendant Nos. 2, 6 and 7 in the suit, on the other hand supporting the judgment and decree passe d by the first appellate court has submitted that the suit of the plaintiff is b arred by time the same having not brought within three years from 11.12.1997 and the same is also not maintainable for want of notice under Section 326 of the M unicipal Act. It has further been submitted that since the plaintiff could not a dduce evidence relating to the renewal of the license last issued on 12.10.1993 which license is valid under the Municipal Act for a period of one year, the pla intiff has no right to bring the suit and challenge the subsequent allotment in favour of the defendant No. 6 (respondent No.2 herein). It appears from the judgment and decree passed by the learned first appellate co urt that the last renewal of the allotment in favour of the plaintiff was made o n 12.10.1993. It is not in dispute that the renewal is granted for one year. Tha t being the position, the plaintiff will have the right only up to 11.9.1994. It also appears from the evidence on record that the plaintiff did not file any ap plication seeking renewal of the license issued on 12.10.1993 though according t o Dr. Lal the plaintiff handed over certain signed papers to the defendant No. 6 for the purpose of filing requisite application for renewal of such license, bu t those were used for some other purposes, namely in giving the reply to the sho w cause notice issued by defendant No. 2 and in converting it to an affidavit. The contention of the learned counsel in that regard cannot be accepted in the a bsence of any evidence adduced by the plaintiff. The plaintiff has taken the ple a of handing over of certain signed blank papers to the defendant No. 6. Such pl ea has been rejected by the learned courts below, as no cogent and reliable evid ence was led. Such finding of fact cannot be disturbed in second appeal, there b eing no argument that such finding is perverse. It also appears from the judgment passed by the learned first appellate court th at the defendant No. 2 issued notice on 3.3.1997 for cancellation of the allotme nt made in favour of the plaintiff on the ground of violation of the terms and c onditions of such allotment and the plaintiff on 5.3.1997 submitted his reply. O n 21.3.1997 the plaintiff also submitted an application, which has been exhibite d as Ext. J to transfer the said bheti from his name to the name of the defendan t No. 6, which document has been proved by defendant No. 2. An affidavit dated 2 5.5.1997 was also found to have been filed by the plaintiff for transfer of the electricity connection in the bheti from the name of the plaintiff to the name o f the defendant No. 6. The story of the plaintiff that he came to know about the allotment of the said bheti (plot) in favour of the defendant No. 6 on 19.5.2003, therefore, has not b een believed by the learned first appellate court and consequently held that sui t of the plaintiff is barred by time. The finding of fact by the learned first a ppellate court cannot be disturbed. No perversity with regard to such finding co uld be brought to the notice of this court by the plaintiff/appellant. The contention relating to the non framing of issues, also need not detain this court, as it is a settled position of law that when the parties lead evidence on a question of fact even in the absence of a formal issue framed in that respect and when such question of fact have been gone into by the learned courts below, the judgment and decree passed by the learned courts below cannot be set aside on the ground of non framing of formal issues. In the instant case though the formal issues have not been framed the evidence h as been led by both parties and decision has been given by the learned courts be low on such questions of fact. Hence non framing of the formal issues cannot be the ground for interference with the judgment of the first appellate court. The suit for declaration that the allotment dated 11.12.1997 is illegal, void an d inoperative it required to be brought within three years and hence it ought to have been instituted on or before 10.12.2000. The suit has been filed on 5.7.2003 taking the plea that the plaintiff for the f irst time came to know about the existence of such an order on 19.5.2003. Such p lea, as discussed above, has rightly not been accepted by the learned first appe llate court. The suit of the plaintiff, therefore, has rightly been held as barr ed by time. In view of the aforesaid discussion, the question whether the issuance of notice under Section 326 of the Assam Municipal Act, can be waived by the court and wh ether suit of the plaintiff is not maintainable for want of notice, need not be gone into. For the aforesaid discussion, no substantial question of law is involved to admi t the present appeal and hence the appeal is dismissed. No cost.