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2009 DIGILAW 143 (JK)

Tashi Largial v. Sonam Tsomo

2009-04-02

SUNIL HALI

body2009
1. Appellants and respondent claim to be the legal heirs of one Mapan Paldan. Mapan Paldan had married two real sisters namely Diskit Yongdole and Chunzin. The respondent is the daughter of first wife namely Yongdole whereas appellants are children from second wife namely Chumzin. The dispute relates to the land under Khewat No.54 measuring 42 kanals 5 marlas and Khasra No. 2183 measuring 6 kanals situated at Chemday Tehsil Leh, which was owned by Mapam Paldan. The appellants claim to be the joint owner in possession of the property left by said Mapam Paldan with the respondent. On being denied the right to own and possess the aforementioned property, they filed a suit for partition by metes and bounds before the Sub Judge, Leh. 2. The claim came to be resisted by the respondent on the ground that the property having been mutated in the name of respondent, the appellants were not entitled to any share and secondly they had no right to claim the property as they were not legitimate heirs of Mapam Paldan . It was however, contended that they were given small share by oral sale of some portion of the property. During the trial, the appellants filed an application for seeking permission to place two documents namely Permanent Resident Certificate and Voter List on record to prove the paternity of Appellant No. 1 and the deceased mother of Appellant No. 2 with Mapam Paldan. The trial court dismissed the application on 6-9-2000 and dismissed the suit also on 25-11-2000. 3. An appeal was preferred against the aforementioned order before Dis- trict Judge, Leh, who vide his order dated 25-6-2003 dismissed the appeal. It is under these circumstances, the present appeal has been preferred. The substan- tial questions of law have been framed by the appellants. The said substantial questions of law formulated by the appellants were adopted as substantial questions of law by this court vide order dated 15-4-2004. 4. I have heard the learned counsel for the parties. 5. Both the courts below decided the case of the appellants on the following grounds: a) That the appellants had failed to prove their paternity with Mapam Paldans and as such were not entitled to any property as co-sharers. 4. I have heard the learned counsel for the parties. 5. Both the courts below decided the case of the appellants on the following grounds: a) That the appellants had failed to prove their paternity with Mapam Paldans and as such were not entitled to any property as co-sharers. b) That by virtue of oral sale deed, some property was purchased by the appellants from the respondent which stands reflected in the revenue record as EXPA & EXPC. It cannot be said that they were co-sharers with respondent. c) That the said suit was barred by limitation. d) That the plea of the appellants seeking permission to place on record two documents i.e. voter list and permanent resident certificate having been rejected by the trial court, could not be questioned by them in the appeal once they have failed to file the revision against the said order. 6. The appellants had during the course of trial before the court below, filed an application seeking permission to place on record the voter list and the permanent resident certificate. The said plea of the appellants was rejected by the trial court on 6-6-2002. Admittedly, no revision was filed questioning the said order. The appellate court while taking note of this fact, has admitted that proof of these two documents would have bearing on the out come of the case but since the appellants have failed to question this order, it has assumed finality. While examining the merits of this finding, it is important to refer section 105 of the CPC, the same is quoted hereinbelow: 105. Other orders 1) Save as otherwise expressly provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objections in the memorandum of appeal. 2) Notwithstanding anything contained in sub section(1),where any party aggrieved by an order of remand from which an appeal lies does not appeal there from, he shall thereafter be precluded from disputing its correctness." 7. 2) Notwithstanding anything contained in sub section(1),where any party aggrieved by an order of remand from which an appeal lies does not appeal there from, he shall thereafter be precluded from disputing its correctness." 7. Section 105 of the CPC reveals that once the decree is challenged by way of an appeal, all orders which are irregularly or improperly decided can be assailed in the final appeal particularly when they affect of deciding the contro- versy in the case. The appellate court could consider this view by exercising power under Order 55, Rule 27 and 28 CPC by either framing additional issue or directing its remand to the trial court to return finding on the said issue. The appellate court was wrong in this assumption. Since the appellants have failed to question this order in revision, the same cannot be agitated by them in the present appeal. After having recorded the finding that the documents would have indeed helped a lot to throw light upon the paternity of the appellants but having failed to challenge the same in the revision petition, they cannot assail the same in the appeal. The finding is further cemented by the fact that no purpose would have been served by ordering remand of the case, as the case of the appellants was barred by limitation. 8. I hold that the finding of the appellate court on this count is legally misplaced for the reasons stated supra. The finding still could be challenged in an appeal even if it was not challenged in revision petition, as provided by section 105 of CPC. The finding on such issue would reveal core controversy in the suit. The appellants need not to challenge this order in revision petition. They could still do this while filing the same in the appeal. 9. On the question of limitation, the trial court has stated that the appellants had purchased some land from the respondent by oral sale deed as reflected in EXPA and EXPC. It is rightly contended by the learned counsel for the appel- lants that oral sale deed is not recognized under law and any entry made in the revenue record will have no relevance. It is rightly contended by the learned counsel for the appel- lants that oral sale deed is not recognized under law and any entry made in the revenue record will have no relevance. As a matter of fact, the claim of the appellants has been found to be belated on the ground that the said oral sale deed has been recorded in the year 1971, which according to the court below, was the date when the respondent refused claim of the appellant as co-sharer. No relevance could have been placed by the court below on the basis of sale deed, which was oral. To say that the appellants™ claim in the property was denied in 1971 when they alleged that the oral sale deed cannot be accepted. 10. The other contention raised by the appellants is that the suit is time barred. Appellants claimed partition of property by metes and bounds which is a partition simplicitor but a partition in essence because co-sharers cannot be allowed to plead possession adverse to the other co-sharers . There is commu- nity of interest and unity of possession among all the members of the joint family or a coparcenery and every coparcener is entitled to joint possession. The mere fact that one coparcener is in possession or in possession of a small share does not mean that he has been ousted because a person in possession is deemed to be in possession for and on behalf of all the coparceners / co sharers as in the present case. So, the appellants cannot be denied their right to seek partition of the property. A clear finding is recorded, as to whether they appellants are children of Mapam Paldan. In this respect, two documents filed by the appel- lants before the trial court, are required to be proved by leading evidence. The finding on these issues will determine the right of the appellants to claim the property as co-sharers. 11. The appeal is accordingly allowed to the extent hereinabove and I remand back the case to the appellate court for recording finding on the issue, as to whether the appellants are legal heirs of Mapam Paldam after taking two documents on record and framing issues. The learned Judge will allow the parties to lead evidence in this respect.