Research › Browse › Judgment

Gauhati High Court · body

1989 DIGILAW 195 (GAU)

Kamewari Saikia v. Sankarlal Sarkar

1989-09-25

S.HAQUE

body1989
This Second Appeal has arisen against the judgment and decree dated -21.U1983 passed by the .District Ju4ge, Gauhati in Title Appeal No.-3 of-1982 reversing the judgment and decree, of the Assistant District Judge No. 1, Gauhati in.. Title Suit No. 9/1977. The defendant No. 2 of the suit has preferred this Second Appeal. 2 Admitted facts are- that the respondent plaintiff and Smti Gunanti Sarlcar are adopted son and widow respectively of late Manohar Sarkar alias Mahendra Sarkar; both plaintiff and Gunanti were jointly possessing and enjoying the properties left by late Manohar Sarkar; subsequently, on 23.8.1954 plaintiff Sankarlal Sarkar and Smti Gunanti Sarkar entered into a deed of agreement/settlement whereby the respective, share of j their properties had been specified for their absolute enjoyment separately and-Ext. I is the said family settlement deed and this settlement deed Ext. I was. held to be valid even by a judicial decision in Title Suit No. 32 of 1955 in the Court of Subordinate Judge. L. A. D. at Gauhati. 3. Smti Gunanti Sarkar (Defendant No.I ) executed a gift deed dated 27.7.1976 in favour of Smti Kameswari Saikia (defendant No. 2) where by the properties described in the schedule of the plaint were gifted away to Kameswari Saikia. So, Sankarlal Sarkar had filed the suit alleging that defendant No. I had no right title and interest over the suit property to gift away because the said property is within the share of the plaintiff according to the settlement Ext. I dated 23.8.1954; and prayed for declaration of right, title and interest over the suit property and for declaration of cancellation of the girt deed No. 3361 dated 27.7.1977 and further declaration that the defendant No. I Smti Gunanti Sarkar had no right to gift the suit property by executing deed of gift in favour of defendant No. 2 Smti Kameswari Saikia. 4. The defendant No. I Smti Gunanti Sarkar filed written statement dated 1.4.1978 admitting and supporting claim of the plaintiff whereas the defendant No. 2 Kameswari Saikia contested the suit. 4. The defendant No. I Smti Gunanti Sarkar filed written statement dated 1.4.1978 admitting and supporting claim of the plaintiff whereas the defendant No. 2 Kameswari Saikia contested the suit. The defence pleading was that the property 2 K-7 Lessa with house thereon, being northern portion of Dag No. 128 and 132 of Patta No. 17 of village-Goreswar, Mouza Betna belonged to Gunanti Sarkar and that she gifted it by registered gift deed to her and that she accepted the gift and got mutation over the property vide order dated 18.5.1977 in Mutation Case No. N. K. 36/76-77 of the Court of S. D. C. Rangia, and that the S. D. C. held that the suit property was not subject matter of the Ekrar Nama (agreement . 5. The trial Court dismissed the suit, but the appellate Court reversed the judgment and decreed the suit of the plaintiff. The District Judge on scrutiny of the agreement Ext. I and the gift de-d Ext. 'Ka' found that the property described in Ext. 'Ka' was included in the agreem­ent Ext. I and was in the exclusive s .are of the plaintiff and originally belonged to 'late Manohar Sarkar. Accordingly, the suit was decreed by reversing the judgment/ decree of the trial Court. 6. The defendant No. 2 Smt. Kameswari Saikia has preferred this Second Appeal. The only substantial question of law formulated on 3.10.1983 is whether the appellate Court committed error in decreeing the suit without arriving at the finding that the suit land was included in the agreement Ext. I. 7. It is clear from the judgment of the 1st appellate Court that the Court had carefully examined the Ext. I agreement and the Ext 'Ka' gift deed and arrived at the finding that the suit land (land of the gift deed) was included in the Ext. I as exclusive property of the plaintiff and that gift of the defendant No. I Gunanti Sarkar of the suit property was invalid and that the plaintiff, has right, title and interest over the suit property and accordingly, they first appellate Court decreed the suit. The appellate Court's findings on all facts are conclusive. However, for further satisfaction both the documents Ext. I agreement and Ext. 'Ka' gilt deed available in the original record have been Jooked into and it is found that all findings of the first appellate Court are wholly correct. The appellate Court's findings on all facts are conclusive. However, for further satisfaction both the documents Ext. I agreement and Ext. 'Ka' gilt deed available in the original record have been Jooked into and it is found that all findings of the first appellate Court are wholly correct. The plaintiff has right, title and interest over the suit property ; the defendant No. I had no right to gift the suit property and the gift deed No. 3362 dated 27.7.1977 was void and rightly cancelled by the decree in the suit. There is nothing to interfere with the judgment and decree passed by the first appellate Court in Title Suit No. 9 of 1977 of the Court of Asstt. District Judge, Gauhati. 8. Learned counsel Mr. R. K. Jain for the respondent-plaintiff submits that during pendency of the suit the defendant No. 2 Sniti Kameswari Saikia entered into the possession of the suit property and this being a subsequent event, the Court bad the power and jurisdiction to grant relief for recovery of possession to the plaintiff to avoid multiplicity of litigation considering the facts of the case and in view of the subsequent event, it is considered to fee an exceptional situation in which full justice and relief can be given to the plaintiff to avoid multiplicity of suit relying on the settled prin­ciple of law laid down in the case Rameshwar and others vs. Jot Ram and others reported in A 1 R 1976 SC 49 (at para 9). This principle is followed in many cases by different High Courts. In the case Dhaniraiji Vrajlalji vs. Vahuji Maharaj Chaodraprabba reported in AIR1971 Gujrat 188 it was held that events happening after the suit can be taken notice by the Court in proper cases in order to shorten further litigation, avoid unnecessary expenditure and to do complete justice between the parties. In the case M/s Nagji Vallabhaji & Co. vs. M/s. Meghji Vijpar reported in A J R 1987 Bombay 142 it was held that it is the duly to the Court to take notice of the events subsequent to filing of suit and would decree according to subsequent events. In the case M/s Nagji Vallabhaji & Co. vs. M/s. Meghji Vijpar reported in A J R 1987 Bombay 142 it was held that it is the duly to the Court to take notice of the events subsequent to filing of suit and would decree according to subsequent events. In another recent case Smti Neelawwa vs. Smti Shivawwa reported in AIR 1989 Karoataka 45 it was held that -'where in a suit for declaration of title and for injunction restraining defendant from alienating suit property there was no specific prayer made by the plaintiff seeking partition and separate possession of her share in the suit land a preliminary decree for partition and separate possession of the share of the plaintiff can be passed. Once it is declared that the plaintiff is entitled to a half share in the suit land, the necessary consequence of it is to divide the suit land and give he half share, as all the persons entitled to a share in the suit land are parties to the suit, in a suit of this nature the relief for partition must be deemed to have been prayed for in the suit. It is also relevant to notice that the relief of the partition and separate possession follows from the same cause of action which forms the basis for such a suit. Denial of such a relief would only lead to another suit. Multiplicity of proceeding should normally be avoided as the same tends to delay justice. In the facts and circumstances of the case the relief of partition and separate possession becomes a consequential relief. Moreover, in the instant case the plaintiff had not also lost her right in the suit property because the suit was filed within 12 years from the date the property devolved upon her or the succession opened. Therefore, even if a separate suit was to be filed for partition, the defendant would not have any substantial defence. Therefore, no prejudice would be caused to the defendant if a preliminary decree for partition and separate possession is passed in the suit itself." Relying on these settled principles of law with regard to relief under the provision of Order 7 Rule 1C. Therefore, no prejudice would be caused to the defendant if a preliminary decree for partition and separate possession is passed in the suit itself." Relying on these settled principles of law with regard to relief under the provision of Order 7 Rule 1C. P. C., the title of the plaintiff has been declared in the suit, the void gift deed in favour of Smti kameswari Saikia has been cancelled, and the suit for title and other consequential relief that could be sought for in the suit was filed in time, and eve a in a separate suit for recovery of possession the defendant No. 2 Kameswari Saikia would not have substantial defence; and so, no prejudice would be caused to the defendant No. 2-appellant if a decree of delivery of possession is granted in favour of the plaintiff-respondent in the instant suit itself. Accordingly, a decree for recovery of possession of the suit property by ousting the defendant No. 2 Kameswari Saikia therefrom has now been granted to be added with the other reliefs already granted by the first appellate Court in the suit T. S. No. 9 of 1977 of the Court of Assistant District Judge No. 1, Gauhati. 9. It is the duty of the Court to take notice of events subsequent to the filing of the suit and would decree according to subsequent events, in a proper suit to avoid multiplicity of suit for the same subject matter between the same contesting parties and to save unnecessary expenditure to the parties and time of the Court and to do complete justice between the parties. This can be done effectively at the appellate stage also. 10. This second appeal is dismissed. No order is made as to the costs.