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2015 DIGILAW 239 (GAU)

ROHINI SAIKIA v. BIPLAB BASAK

2015-02-27

MANOJIT BHUYAN

body2015
ORDER (ORAL) Heard Mr. A. Choudhury, learned counsel for the appellants. Also heard Mr. M.K. Choudhury, learned senior counsel appearing for the respondent, assisted by Mr. A. Barkataki, Advocate. 2. The appellants in this appeal were the defendants in Title Suit No. 109 of 2000. The said suit was brought about by the respondent Sri Biplab Basak praying for execution and the registration of the sale deed and delivery of possession in respect of the suit land. The plaintiff and the defendants had entered into an agreement, duly registered, on 26.11.1999 where under the defendants agreed to sell a plot of land measuring 1 katha (more or less) as described in the schedule to the plaint. The cause of action arose when the defendants backtracked on the agreement. The appellants / defendants who had contested the suit took the plea the two other members of the family i.e. Ghaneshyam Saikia and Rupam Saikia, being the co-pattadar of the suit land and not having been impleaded as party defendant, therefore the suit was bad on account of non-joinder of necessary parties. Mention be made that in the said written statement filed by the defendants no averment has been made with regard to the suit land not having been partitioned amongst the family members. The Trial Court upon the pleadings and evidence on record decreed the suit to the extent that the plaintiff would be entitled to Rs. 20,000/- by way of costs. In so far as the respondent/plaintiff’s prayer for execution and registration of sale deed and for delivery of possession was concerned, the same were negated. 3. The plaintiff/respondent herein being aggrieved filed Title Appeal No. 41/2006 and the primary points for determination was with regard to whether the suit was bad for non-joinder of necessary parties and whether or not the land agreed to be sold to the plaintiff have been partitioned amongst the family members or not. 3. The plaintiff/respondent herein being aggrieved filed Title Appeal No. 41/2006 and the primary points for determination was with regard to whether the suit was bad for non-joinder of necessary parties and whether or not the land agreed to be sold to the plaintiff have been partitioned amongst the family members or not. The first appellate Court upon appreciation of the pleadings of record and taking into consideration the evidence of PW2 i.e. Nripen Saikia (step brother of the defendants); DW2 i.e. Smti Rohini Saikia (mother of the defendants); DW1 i.e. Anil Saikia (one of the defendants) and DW3 i.e. Ghanashyam Saikia (another step brother of the defendants) arrived at the conclusive finding that the suit land is a property which is mutually partitioned amongst the family members and in fact the Exts.-5,6,7 & 8, being the various sale deeds, would go to show that Ghanyashyam Saikia, the step brother of the defendants and the legal heir of the predecessor-in-interest, had sold his share of the property inherited from Late Mohat Ram Saikia. The testimony of the aforesaid prosecution witness and defence witnesses strikes a consistent note to the effect that the property left behind by their father Late Mohat Ram Saikia had been mutually partitioned amongst the members of the family and what was intended to be sold to the plaintiff was the share which fell amongst the defendants only. Upon such consideration the first appellate Court was also of the view that the suit was not bad for non-joinder of necessary parties. The judgment and decree of the trial Court was accordingly set aside and the plaintiff’s prayer for granting a decree for execution and registration of a sale deed in respect of the suit land alongwith delivery of possession by payment of the balance amount of Rs. 1 lakh was granted. The said title appeal was allowed vide judgment and decree dated 15.07.2008. 4. On second appeal before this Court, which was admitted for hearing vide order dated 08.02.2010, two substantial questions of law was formulated, being “i. Whether decree for specific performance can be granted where the suit property is joint and consent of co-sharers have not been obtained. ii. Whether decree of specific performance can be granted without specifying the area of the suit land and without making co-pattadars as parties in the suit.” 5. ii. Whether decree of specific performance can be granted without specifying the area of the suit land and without making co-pattadars as parties in the suit.” 5. In so far as the first substantial question of law as to whether decree for specific performance can be granted where the suit property is joint and consent of co-sharers has not been obtained, this Court is of the opinion that the evidence on record, as alluded above, do not go to show that the suit property is a joint property. To reiterate the deposition of PW2, DW1, DW2 and DW3 makes it wholly apparent that the property in question had been mutually partitioned amongst the members of the family and what was intended to be sold to the plaintiff was not any part of the joint property. The said question being a question of fact which has been duly appreciated by the first appellate Court, therefore the same do not involve a question that requires to be decided in this appeal. In other words, the said question does not involve a substantial question of law. 6. In so far as the second substantial question of law so formulated, as to whether the decree of specific performance can be granted without specifying the area of the suit land and without making co-pattadar as parties in the suit, this Court is of the opinion that the area of the suit which had been described as 1 katha (more or less) is the description as extracted from Ext.-1 which is the sale agreement. In this respect Mr. A. Choudhury relies upon the provision of Section 22 of the Specific Relief Act, 1963 to say that relief has to be specifically claimed and since the area of the suit land has not been specifically described, therefore it is hit by Section 22 sub section (2) of the Specific Relief Act. The inherent fallacy in the argument of Mr. A. Choudhury is apparent from the wording in sub section (2) itself. It is not a case that relief had not been specifically claimed. The relief as sought for in the suit was specifically claimed for execution and registration of the sale deed and delivery of possession of the suit land in question. A. Choudhury is apparent from the wording in sub section (2) itself. It is not a case that relief had not been specifically claimed. The relief as sought for in the suit was specifically claimed for execution and registration of the sale deed and delivery of possession of the suit land in question. In so far as the issue on non-impleadment of co-pattadars is concerned, the first appellate Court have duly answered the said issue by finding that the property left behind by Mohat Ram Saikia had been duly partitioned amongst the family members and what was intended to be sold is the share of the defendants. In that view of the matter, the said second question so formulated also do not involve a substantial question of law. 7. The existence of substantial question of law being sine qua non for exercise of jurisdiction under Section 100 of the Code of Civil Procedure, this Court is of the opinion that this appeal does not involve any substantial question of law. Accordingly, the second appeal stands dismissed, however without any order as to costs.