RSA 188/2006 BEFORE HON’BLE MR. JUSTICE BP KATAKEY 1. The appellant, as plaintiff instituted Title Suit No. 10/2001 in the court of the learned Civil Judge, (Senior Division), Morigaon (now Civil Ju dge) against the present respondents as defendants, praying for a decree declari ng that the constitution of the adhoc committee of Dahali Makaria Bhogdaba Habi Gram Sabha (NGO) with the defendant Nos. 1 to 13 vide resolution No. 2 adopted i n the general meeting held on 18.4.2001 and the approval accorded by the defenda nt No. 14 (respondent No. 13 herein), as illegal, void, arbitrary and without ju risdiction and also declaring that the plaintiff society is the legally constitu ted society, apart from praying for a decree for permanent injunction, alleging inter alia that Dahali Makaria Bhogdaba Habi Gram Sabha, which is a registered s ociety under the Societies Registration Act, 1860, was initially constituted wit h forty-three members in the year 1978; that though the plaintiff who is the fo under President of the said Gram Sabha was again elected as such in the general meeting held on 19.4.2001, which was approved by the Registrar of Societies in 2 001, some of the members who have been removed from the society, with ulterior m otive held a meeting on 18.4.2001 and constituted an adhoc committee on that dat e which was approved by the defendant No. 14 in the suit. 2. The defendant Nos. 1 to 13 though, filed the written statement, no written statement, however, has been filed by the defendant No. 14. The stand of the defendant No. 1 to 13 in the written statement is that the suit is not m aintainable having not instituted as required under Order 1 Rule 8 of the CPC an d also under the provision of the Assam Gramdan Act, 1961. The further stand in the written statement is that as the plaintiff was involved in corruption and ma lfunction of the society, a general meeting was held on 18.4.2001 wherein the ad hoc committee has been constituted under the provisions of Section 18 of the Ass am Gramdan Act, which has been duly approved by the defendant No. 14. 3. On the basis of the pleadings of the parties, the learned court below framed the following issues:- (1) Whether there is any cause of action for the suit? (2) Whether the suit is maintainable in its present form? (3) Whether the plaintiff alone has the right to institute the suit of represent ative character? (4) Whether NGO (Non-Govt. Organisation) and Gramsabha are two different organiz ations and if so, for and on behalf of which organization, the plaintiff has ins tituted the suit? (5) Whether the constitution of Ad-hoc Managing Committee of Dahali Makaria Bhog dabahabi Gram Sabha with defts. No. 1 to 13 by resolution No. 2 adopted in the a lleged General Meeting held on 18.4.2001 and approval accorded by the deft No. 1 4 are illegal? (6) Whether the plaintiff’s society is legally constituted? (7) To what relief, if any, the parties are entitled to? 4. The plaintiff/appellant in support of his case has examined four witnesses and exhibited 13 documents being Ext. 1 to 13. The defendant Nos. 1 t o 13 also examined one witness and exhibited four documents being Ext. A to D. 5. The learned trial court upon appreciation of the evidences on re cord vide judgment and decree dated 20.12.2005 dismissed the suit of the plainti ff/appellant by holding that the suit of the plaintiff is not maintainable in vi ew of noncompliance of the provision contained in Order 1 Rule 8 of the CPC and also on the ground that such a suit is not maintainable in view of the provision contained in the Assam Gramdan Act, 1961, as, such a suit is to be instituted b efore the Gramdan Adalat. The suit of the plaintiff has also been dismissed on t he ground that though the defendants have produced and proved the proceeding dat ed 18.4.2001 whereby an adhoc body has been constituted (Ext. B), the same has n ot been produced and proved by the plaintiff. 6. Being aggrieved, the plaintiff/appellant preferred Title Appeal No. 1/2006 before the learned District Judge, Morigaon, which has also been dism issed by the learned first appellate court by concurring with the finding record ed by the learned court below, however, reversing the finding of the learned tri al court relating to the maintainability of the suit on the ground of noncomplia nce of the provision of Order 1 Rule 8 of the CPC, as the suit instituted by the President of registered society is found to be maintainable under Section 6 of the Societies Registration Act, 1860 and such permission to institute the suit i n representative character was granted by the trial court subsequently. 7. The learned appellate court placing reliance on the evidence of the plaintiff’s witness No. 4, Bipin Chandra Bordoloi, has also recorded the fin ding that Dahali Makaria Bhogdaba Habi Gram Sabha and Dahali Makaria Bhogdaba Ha bi Gram Sabha (NGO) are two different bodies of which the plaintiff is the Presi dent. 8. The appeal has been admitted for hearing vide order dated 13.12. 2006 on the following substantial questions of law:- 1. Whether in the instant suit the provisions of Assam Gramdan Act, 1961 are app licable to a Society registered under the Societies Registration Act, 1960? 2. Whether the learned Courts below committed illegality in not considering the evidentiary value of the Ext. B as was not produced or proved by the plaintiff? 8. I have heard Mr. CK Sarmah Baruah, learned senior counsel for th e appellant and Mr. DC Mahanta, learned senior counsel appearing on behalf of th e respondent Nos. 1 to 12. None appears for the respondent No. 13. 9. Mr. Sarma Baruah, the learned senior counsel, relating to the 1s t substantial question of law formulated by this Court by the aforesaid order, h as submitted that the learned courts below have held the suit of the plaintiff i s not maintainable in view of the provision, contained in Assam Gramdan Act, 196 1, as under the provision of the said Act such a dispute is to be decided by the Gram Sabha Adalat constituted under Section 18 of the said Act, though the prov ision of the said Act is not applicable in the instant case as it is not the cas e of the defendants that either the Gramdan village as required under Section 5 or the Gram Sabha as required under Section 9 of the Act has been constituted by the State Govt. by issuing notification in the official gazette. According to M r. Sarma Baruah the plaintiff society is a society registered under the Societie s Registration Act, 1860 and not a Gram Sabha established and constituted under the provision of Assam Gramdan Act, 1961, therefore, both the learned courts bel ow have committed illegality in dismissing the suit of the plaintiff by holding that the suit is not maintainable. 10. Relating to the 2nd substantial question of law formulated it ha s been submitted by Mr. Sarma Baruah that the whole approach of the learned cour ts below in dismissing the suit on the ground that the resolution dated 18.4.200 1, validity of which has been questioned in the suit, has not been produced and proved by the plaintiff, though the said proceeding has been proved by the defen dant as Ext. B. It has further been submitted by the learned senior counsel that the finding recorded by the learned first appellate court that Dahali Makaria B hogdaba Habi Gram Sabha and Dahali Makaria Bhogdaba Habi Gram Sabha (NGO) are tw o different bodies is not based on evidence on record particularly the evidence of PW 4. According to the learned senior counsel, the learned first appellate co urt being the final court on facts is required to marshal the entire evidence on record, both oral and documentary, which has not been done in the instant case. Mr. Sarma Baruah further submits that both the courts below having held the sui t of the plaintiff as not maintainable on the grounds stated above, did not go i nto the aspect as to whether the constitution of the adhoc committee in the proc eeding held on 18.4.2001 is illegal and hence after answering the substantial qu estion as formulated by this Court the matter may be remanded to the learned fir st appellate court for deciding the appeal afresh. 11. Mr. DC Mahanta, learned senior counsel appearing on behalf of th e respondent Nos. 1 to 12, on the contrary has submitted that though it is not c orrect to say that the documents produced and proved by the defendant could not be looked into by the learned courts below and also could not be relied upon for passing the decree in favour of the plaintiff, the plaintiff in the instant cas e has failed to adduce any evidence to demonstrate that the constitution of the adhoc committee in the proceeding dated 18.4.2001 is void and illegal so as to g et the decree as prayed for. 12. It has further been submitted by Mr. Mahanta that both the court s below have recorded a concurrent finding of fact that Dahali Makaria Bhogdaba Habi Gram Sabha and Dahali Makaria Bhogdaba Habi Gram Sabha (NGO) are two differ ent bodies and such finding of fact cannot be disturbed in second appeal when th e plaintiff/appellant has failed to demonstrate before this Court as to how such a finding is perverse being not based on the evidence on record. 13. I have considered the submissions of the learned counsel for the parties and perused materials available on record. 14. The appellant as noticed above, filed the suit for declaration t hat the constitution of the adhoc committee of Dahali Makaria Bhogdaba Habi Gram Sabha (NGO) in the meeting held on 18.4.2001 as well as the approval accorded b y the defendant No. 14 (respondent No. 13 herein) as illegal, void, arbitrary an d without jurisdiction and also for declaration that the plaintiff’s society is legally constituted society. 15. The case of the defendants (respondents herein) is that such an adhoc committee has been constituted on 18.4.2001 under the provisions of the As sam Gramdan Act, which has been duly approved by the defendant No. 14 (responden t No. 13 herein) as required under the provision of the said Act. That apart, th e plea of maintainability of the suit, having not complied with the provision of Order 1 Rule 8 of the CPC and also in view of the provision contained under Ass am Gramdan Act, 1961, has also been taken up in the written statement. 16. The learned trial court though vide judgment dated 20.12.2005 de cided the issue relating to the maintainability of the suit, being issue No. 3, in negative and against the plaintiff/appellant on the ground of noncompliance o f Order 1 Rule 8 of the CPC, the learned first appellate court decided the said issue in favour of the plaintiff by holding that the suit instituted by the plai ntiff is maintainable as, such a suit can be brought by the President of a socie ty registered under Section 6 of the Societies Registration Act, 1860 and the pr ovision of Order 1 Rule 8 of the CPC has been complied with. The learned trial c ourt, however, by taking into account the provision of the Assam Gramdan Act, 19 61 has decided the issue Nos. 4 and 6 in negative and against the plaintiff/appe llant and has also decided the issue No. 5 against the plaintiff on the ground t hat the proceeding of the meeting dated 18.4.2001, the validity of which has bee n questioned by the plaintiff in the suit, has not been produced and the plainti ff/appellant cannot rely upon the said proceeding which has been produced and ex hibited by the defendants. The learned lower appellate court has concurred with the finding of the learned first appellate court in that regard. 17. The learned first appellate court has further held that Dahali M akaria Bhogdaba Habi Gram Sabha and Dahali Makaria Bhogdaba Habi Gram Sabha (NGO ) are two different bodies and the plaintiff/appellant in the plaint sought decl aration that Dahali Makaria Bhogdaba Habi Gram Sabha (NGO) is the legally consti tuted body and the proceeding dated 18.4.2001 constituting the adhoc committee i s illegal. The lower appellate court while recording such finding has, however, ignored the relief claimed in the plaint by the plaintiff/appellant and also the claim of the defendants that the adhoc committee was legally constituted on 18. 4.2001. 18. Both the learned courts below have proceeded with the case assum ing that the plaintiff Gram Sabha was constituted under the provision of the Ass am Gramdan Act, 1961, though it is the case of the plaintiff/appellant that it w as registered under the Societies Registration Act, 1860. The defendants though contended that the suit of the plaintiff is not maintainable, in view of the pro visions of the Assam Gramdan Act, 1961, such plea could not be substantiated by them by adducing any evidence. The learned courts below before proceeding with t he suit, by taking into account the provision of the Assam Gramdan Act, 1961, ha ve not recorded any finding whatsoever as to whether the plaintiff Gram Sabha ha s been established and constituted by issuing notification by the Govt. in the o fficial gazette as required under Section 9 of the 1961 Act and as to whether th e declaration under Section 5 thereof has been made by the Govt. in the official gazette. Unless such a finding is recorded and such notifications as required u nder Section 5 and 9 of the said Act are issued, the provision of the Gramdan Ac t cannot be made applicable in the suit in hand, as has been done by the learned courts below. 19. It also appears from the judgment and decree passed by the learn ed Courts below that the proceeding of the Gram Sabha dated 18.4.2001, proved by the defendant as Ext. D, has been refused to be considered in support of the pl aintiff/appellant on the ground that the same has not been produced and proved b y the plaintiff/appellant. The learned senior counsel appearing on behalf of the respondent has fairly submitted that the Court cannot refuse to take into consi deration a document in favour of the plaintiff, on the ground that the same was produced and proved by the defendant. The Court is required to decide the suit o n the basis of the oral and documentary evidence adduced by the parties. The cou rt cannot refuse to consider the document in favour of the plaintiff on the grou nd that such document has been produced and proved by the defendants and not by the plaintiff. 20. In the instant case, as noticed above, the Ext. B proceeding dat ed 18.4.2001 has been refused to be considered by the court in favour of the pla intiff on the ground that it was not produced and proved by the plaintiff appell ant. The learned court below did not go into the question as to whether the proc eeding dated 18.4.2001 constituting the adhoc committee is valid and legal. The learned appellate court has also not discussed the entire evidence on record, bo th oral and documentary, which it is bound to do being the final court on fact. 21. In view of the above, the judgments and decrees passed by the le arned courts below are set aside. The appeal is remitted to the learned first ap pellate court for deciding the appeal afresh upon hearing the learned counsel fo r the parties, within a period of two months from the date of receipt of the rec ords. It is also open to the parties to adduce additional evidence relating to t he continuance or otherwise of the adhoc committee constituted vide proceeding d ated 18.4.2001. Parties are directed to appear before the learned first appellan t court on ---.2.2009. 22. The second appeal accordingly stands allowed. However, keeping i n view the facts and circumstances of the case, the parties are directed to bear their own cost. Registry is directed to send down the entire records to the lea rned first appellate court forthwith so as to reach the said court before the af oresaid date fixed for appearance of parties.