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2015 DIGILAW 138 (GAU)

Basistha Sharma v. Markanda Moni Singh

2015-02-06

SUMAN SHYAM

body2015
JUDGMENT : Suman Shyam, J. 1. This Second appeal is directed against the judgment and decree dated 19.05.2009 passed by the learned Civil Judge, No. 1, Cachar, Silchar in Title Appeal No. 28/2006 allowing the appeal by reversing the judgment and decree dated 07.06.2006 passed by the learned Munsiff No. 1, Cachar, Silchar in Title Appeal No. 125/2006 dismissing the plaintiff's suit. 2. The brief facts of the case as is apparent from the pleadings is that a plot of land measuring 1 bigha 13 kathas 4 chataks of 2nd R.S. Patta No. 241 of Dag No. 738 appertaining to Mouza-Dudhpatil Part-VI in the district of Cachar, originally belonged to late Kunja Behari Singha. Kunja Bihari Singha died, leaving behind 3(three) sons and 6(six) daughters. The three sons of Kunja Behari Singh sold the suit land measuring 1 bigha 13 kathas 14 chataks to one Nanda Lal Singha by means of registered sale deed dated 17.05.1943. Thereafter, the aforesaid plot of land was again purchased back by the 3(three) brothers by means of registered deed of sale dated 18.08.1982 from Nanda Lal Singha. The 3(three) brothers are Krishna Prasad Singha, Chaitanya Prasad Singha and the plaintiff, all of whom are the sons of Kunja Behari Singha. 3. It is the case of the plaintiff that after purchase of the land by means of registered deed of sale dated 18.08.1982, all the 3(three) brothers lived in the suit land by constructing residential houses thereupon. However, the elder brother of the plaintiff viz., Krishna Prasad Singha died unmarried. Later on, Chaitanya Prasad Singha had also died unmarried, as a result of which, the plaintiff being the sole legal heirs of his two brothers had become the absolute owner of the suit land. It is the case of the plaintiff that later on, the sisters of the plaintiff had also died. The defendant is the son of the youngest sister, namely, Tombi Devi. The plaintiff and his brothers had brought the defendant and allowed him to stay in the suit property so as to permit him to complete his education, the expenses of which were also borne by the plaintiff and his brothers. The defendant completed his education and got a job in AIR. On being asked to vacate the suit land, the defendants refused to do so although he was the permissive occupier in respect of the suit land. The defendant completed his education and got a job in AIR. On being asked to vacate the suit land, the defendants refused to do so although he was the permissive occupier in respect of the suit land. As such, the plaintiff has filed the suit land praying for declaration of his right, title and interest over the suit land for recovery of khas possession by evicting the defendants and by demolishing all unauthorized construction; permanent injunction and all other consequential reliefs. 4. The sole defendant had contested the plaintiff suit by filing the written statement, wherein, he took the plea that there was no cause of action for the suit and that the suit was also bad for non-joinder of necessary parties, namely the legal heirs of the sisters, their surviving sons and daughters. The defendant No. 1 categorically denied the claim of the plaintiff that he being the sole surviving legal heir had become the owner of the entire suit land. 5. On the basis of the pleadings of the parties, learned trial Court framed as many as 6(six) issues, which are as follows:- "(1) Is there any cause of action for the suit? (2) Is the suit maintainable in the present form? (3) Whether the suit is bad for non-joinder of necessary parties. (4) Whether the plaintiff has right, title and interest over the suit land? (5) Whether the defendant is a licencee under the plaintiff over the suit land? (6) To what relief, if any, the plaintiff is entitled to?" The issue No. 3 and 4 were the key issues in the factual matrix of the case. 6. Upon hearing the learned counsel for the parties and also considering the materials on record, the learned trial Court decided the issue in favour of the plaintiffs/respondents by holding that the suit was not bad for non-joinder of parties. However, as regards issue No. 4, the learned trial Court held that the plaintiff may have the right, title and interest in the property but he has failed to prove that such title and interest extends over the entire suit land to the exclusion of the other legal heirs of his deceased brothers. Having held so, the issue No. 5 was decided against the plaintiff and accordingly the suit was dismissed with cost. 7. Having held so, the issue No. 5 was decided against the plaintiff and accordingly the suit was dismissed with cost. 7. Being aggrieved by the judgment and decree dated 07.06.2006, passed by the learned Civil Judge No. 1, Cachar, Silchar, the plaintiff as appellant had preferred Title Appeal No. 28/2006 in the Court of learned Civil Judge No. 1, Cachar. After hearing the parties and considering the materials on record, the learned Civil Judge, Senior Division No. 1, Cachar had allowed the Title Appeal filed by the plaintiff as appellant and thereby, decreeing the suit of the plaintiff by deciding the issue Nos. 3, 4 and 5 in favour of the plaintiff. The learned First Appellate Court decided the issue No. 3 in favour of the plaintiff inter-alia holding that the defendant has failed to aver in his written statement as to who are the persons who have not been impleaded as necessary parties to the suit. It was further held that since the plaintiff has claimed his title over the property by way of right of purchase made along with his two brothers and since the suit is for ejectment of the defendant who is a licensee, hence, the suit was not bad for non-joinder of necessary parties. The learned First Appellate Court decided the issue Nos. 4 and 5 in favour of the plaintiff by reversing the findings and decisions of the trial Court without recording any cogent reason for doing so. The learned First Appellate Court did not at all deal with the question as to how the plaintiff could be entitled to share in the property of his two brothers to the exclusion of the claim of the other surviving heirs of the said deceased person. 8. Being aggrieved by the judgment and decree dated 19.05.2009, the defendant as appellant has preferred the second appeal which was admitted to be heard on the following substantial questions of law:- "(1) Whether the findings of the learned First Appellate Court are perverse for non-consideration and mis-appreciation of the pleadings and evidence on record? 8. Being aggrieved by the judgment and decree dated 19.05.2009, the defendant as appellant has preferred the second appeal which was admitted to be heard on the following substantial questions of law:- "(1) Whether the findings of the learned First Appellate Court are perverse for non-consideration and mis-appreciation of the pleadings and evidence on record? (2) Whether the plaintiff had successfully discharged the burden of proving the defendant to be a licensee and a permissive occupier of the suit land who is liable to be evicted, without leading any corroborative evidence, including exhibiting any supporting document in that regard, on the face of clear denial by the defendant, who claims co-ownership of the suit land by right of inheritance from his mother Joya Devi @ Tombi Devi? (3) Whether non-compliance of the provisions of Section 136 of the India Evidence Act, 1872 debars the admissibility of document Exhibit-2 (Sale Deed dated 18.08.1982) on the fact of the defendant's denial thereof?" 9. Mr. G.N. Sahewalla, learned senior counsel for the appellants submits that the First Appellate Court reversed the findings in respect of issue Nos. 4 and 5, in a most perfunctory manner, without considering the vital legal aspect or citing any cogent reason for doing so. Mr. Sahewall submits that the plaintiff suit land was jointly purchased by all three brothers. Therefore, on the death of the two brothers, there can be no doubt that the plaintiff would have title and interest in respect of 1/3 of the suit land. However, as regards the remaining 2/3, the plaintiff being in equal footing as that of the other sisters and/or their surviving legal heirs. He would be entitled to at best 1/7 of the share and no further. The said aspect of the matter cannot be gone into unless a suit for partition is filed by impleading all the surviving legal heirs, which has not been done in the present case. Mr. Sahewalla, therefore, submits that the First Appellate Court committed manifest illegality in decreeing the suit filed by the plaintiff by completely ignoring such pertinent legal issues. 10. Per-contra Mr. Mr. Sahewalla, therefore, submits that the First Appellate Court committed manifest illegality in decreeing the suit filed by the plaintiff by completely ignoring such pertinent legal issues. 10. Per-contra Mr. A. Choudhury, learned counsel for the respondent/plaintiff submits that the claim of the plaintiff is on the basis of purchase of the suit land by means of registered deed of sale made on 18.08.1982 and as such, the sisters or the legal heirs cannot maintain any claim in respect to the suit land after the death of the elder brothers of the plaintiff. In that view of the matter, he submits that there is no illegality or infirmity in the judgment and decision rendered by the learned Civil Judge No. 1, Cachar in Title Appeal No. 28/2006 warranting any interference by this Court. 11. I have considered the rival contentions made by the parties and have also perused the records. From the written statement filed by the defendants, it can be seen that the appellant/defendant has categorically denied the assertion made by the plaintiff respondent that he was the sole surviving legal heir of the two deceased brothers, and, therefore became the exclusive owner of the suit land after their death. The appellant defendant has categorically raised objection as to non-joinder of necessary parties by indicating the names of such parties in the body of the written statement. In paragraph 15 a, b and c, the defendant has given a detailed picture of the legal heirs, who would be entitled to share in the property claimed by the plaintiff for the sake of convenience. The pleadings contained in paragraph 15, (a), (b) and (c) are quoted herein below: "(a) Late Kunja Behari Singh, had six daughters besides those named in para 2 of the plaint, he had got two other daughters and they are Deshumati Devi who died about 9 or 10 years back at Imphal, leaving her sons and daughters. Kunja Behari Singh had got another daughter named Ekashini Devi who died in the year 1997 at Udharbond leaving two sons Bijoy Singh and Lakhi Kanta Singh. The plaintiff does not make mention of the name of their mother Ngoubi Devi who survived her husband as one of the legal heirs of the properties of the deceased. It is not a fact that their mother Ngoubi Devi died earlier as alleged in para 2 of the plaint. The plaintiff does not make mention of the name of their mother Ngoubi Devi who survived her husband as one of the legal heirs of the properties of the deceased. It is not a fact that their mother Ngoubi Devi died earlier as alleged in para 2 of the plaint. Ngoubi Devi died after the Hindu Succession Act, 1956 came into force. It is not admitted that three sons of Kunja Behari Singh were the owners and in possession of 1 Bigha 13 Kathas 4 Chataks of land as alleged in para 3 of the plaint. The three sons of Kunja Behari Singh did not execute any document any document respecting the suit property in favour of Nanda Lal Singh as alleged by registered sale deed executed on 17.05.43 or on any other date. After the demise of Kunja Behari Singh his two wives and daughters inherited the properties of their father. It is untrue statement that Nanda Lal Singh entered into the suit land within a definite boundary as alleged. It is not admitted that there was a reconveyance deed registered on 18.02.82. The title and interest of the two wives of Kunja Behari Singh remained on the suit property at the time of so called Nanada Lal Singh. Ngoubi Devi died long after the Hindu Succession Act came into force and Shanabi Devi another wife of Late Kunja Behari Singh died in 1970. The title and interest of the two wives of Late Kunja Behari remained on the suit property at the time of so called sale to Nanda Lal Singh. The mother of the plaintiff was Ngoubi Devi who died in 1969 and the second wife of Late Kunja Behari Singh died on 1970 who was the mother of Desumati Devi Ekashini Devi. (b) That the older brother of the plaintiff Krishna Prasad Singh died in the last part of the year 1881-82 without any issue and his property was inherited by his younger brother Chaitanya Prasad Singh and the plaintiff along with their sisters Tombi Devi @ Jaya Devi who was the mother of the answering defendant. Jamuna Devi, Deshumati Devi, Jubati Devi and Radha Devi and Ekashini Devi. (c) Chaitanya Prasad Singh was the second son of Kuja Behari Singh. He died bachelor about 7/8 years back. Jamuna Devi, Deshumati Devi, Jubati Devi and Radha Devi and Ekashini Devi. (c) Chaitanya Prasad Singh was the second son of Kuja Behari Singh. He died bachelor about 7/8 years back. His property was inherited by his sisters Radha Devi who was alive at that time along with Ekashini Devi having equal share with plaintiff. Radha Devi died in the year 2003 while residing permanently at suit property along with answering defendant. She left one son Raj Kumar Babul Singh. Jubati Devi died in the homestead of the suit land about 20/25 years back, she left no issue, her husband died earlier. Jamuna Devi died about 12/13 years back, after the demise of Krishna Prasad Singh. Jaya Devi @ Tombi Devi died in the year 1983, Deshumati Devi died 10 or 12 years back and Ekashi Devi died 5/6 years back. It is important to mention here that the properties inherited by the two widow wives of Late Kunja Behari Singh, who died many years after the Hindu Succession Act came into force got their life estate made absolute, whereby Jaya Devi, Jamuna Devi, Radha Devi, Deshumati Devi, Ekashini Devi, Jubati Devi along with their brother inherited the properties of their mother." Since the case of the plaintiff is for declaration of right, title, interest and for recovery of possession in respect of a plot of land admittedly owned jointly by the plaintiff and his two brothers, on the face of such categorical pleadings raised by the defendants, the plaintiff suit was not maintainable without impleading the legal heirs of the two deceased brothers. 12. The schedule of the Hindu Succession Act lays down the table of heirs that falls under class 1 and class II in case of Hindus. As per the said schedule, more particularly class II, (II), (3) and (4), the brother and the sister of a deceased person both stand on equal footing. As such after the death of Krishna Singha and Chaitanna Prasad Sinha, the share of this two deceased persons would have to be equally divided between the plaintiff and the six sisters and/or their legal heirs as per the provision of Hindu Succession Act, 1956. As such after the death of Krishna Singha and Chaitanna Prasad Sinha, the share of this two deceased persons would have to be equally divided between the plaintiff and the six sisters and/or their legal heirs as per the provision of Hindu Succession Act, 1956. For doing so, the property will have to be partitioned and it is only thereafter that any party can claim exclusive title over any part of the land as the said plot of land will remain ejmali holding, until the time there is partition of the property amongst co-sharers. 13. There can be no doubt about the fact that the plaintiff being one of the purchaser of the suit land would be entitled to his share in the property both as a purchaser as well as his share that would devolve upon him being the legal heir of the deceased, Krishna Prasad Singh and Chaitanna Prasad Singha. In the absence of determination of the share of the co-owners and the partition of the property, the co-sharers cannot claim exclusive title or possession in any part of the land. Such being the possession of the plaintiff suit was not maintainable in, so far as, declaration of exclusive title over the suit land was concerned nor could the suit have been decreed for recovery of possession prior to determination of his exclusive title over the portion of the land. 14. In that view of the matter, the judgment and decision of the learned First Appellate Court is not sustainable in the eye of law and liable to be interfered with. The question of law indicated hereinabove therefore, stands answered. Accordingly, the second appeal succeeds and is hereby allowed. It is made clear that it will be open to the co-sharers including the plaintiff to bring appropriate proceeding for partition and for consequential relief in accordance with law notwithstanding the dismissal of the present suit. Having regard to the facts and circumstances of the case, there would be no order as to cost. LCR be sent back.