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2015 DIGILAW 597 (GAU)

Roshema Begum @ Hazarik v. Amir Hussain

2015-05-19

A.K.GOSWAMI

body2015
Order Heard Ms. P. Bhattacharya, learned counsel for the appellant. None appears for the plaintiff-respondent No. 1 as well as for pro forma respondent No. 2. Mr. D. Choudhury, learned counsel appears for pro forma respondent No. 3. 2. This Second Appeal is preferred against the judgment and decree dated 19.07.2004 passed by the learned Civil Judge (Senior Division), Jorhat, in Title Appeal No. 19/02, dismissing the appeal of the present appellant and upholding the judgment and decree dated 02.05.2001 passed by the learned Civil Judge, Junior Division No. 1, Jorhat, in Title Suit No. 23/2000, decreeing the suit of the plaintiff. 3. This appeal was admitted to be heard vide order dated 13.10.2004 on the following substantial question of law:- “Whether the compromise decree between the brothers can deprive the defendant from claiming the right of inheritance when she was not a party to the compromise?” 4. In order to understand the significance of the above-referred substantial question of law, it is necessary to traverse a little back into the past. One Jainul Hussain, admittedly left behind the appellant, pro forma respondent Nos. 2 and 3 as his daughter and sons, respectively. There was some question mark with regard to the parentage of the plaintiff of the suit. In fact, the pro forma respondent No. 1 had filed a suit, registered as T.S. No. 57/96, in the Court of the learned Munsiff No. 1, at Jorhat, praying for a declaration that the present plaintiff, not being the son of Jainul Hussain and Musst. Mazirun Nessa, cannot claim the share of land measuring 5½ Lecha and also that the plaintiff had acquired no manner of right of inheritance in respect of the land described in Schedule-A to the plaint. Schedule-A refers to a plot of land measuring 16½ Lecha, which is also incidentally identified in the present suit filed by the plaintiff as Schedule-A. 5. The present appellant was arrayed in Title Suit No. 57/96 as pro forma respondent No. 3. Averments were made in the said suit that the present appellant was a daughter of Late Jainul Hussain. The present appellant did not contest the said suit. In fact, going by the pleadings, no relief was sought against the present appellant. 6. The present appellant was arrayed in Title Suit No. 57/96 as pro forma respondent No. 3. Averments were made in the said suit that the present appellant was a daughter of Late Jainul Hussain. The present appellant did not contest the said suit. In fact, going by the pleadings, no relief was sought against the present appellant. 6. The aforesaid suit came to be decreed on compromise vide an order passed on 21.07.98 on the basis of a compromise petition filed by the plaintiff of Title Suit No. 57/96 and the defendant No. 1 (plaintiff of Title Suit No. 23/2000). The compromise petition reads as follows:- “IN THE COURT OF THE CIVIL JUDGE (JR. DIVISION) NO. 1, JORHAT. Dated Jorhat the 21st July, 1998. Atul Hussain - Plaintiff Vs Amirul Hussain - Defendant For both the plaintiff and the defendant No. 1. Most respectively sheweth: 1. That the parties to the present suit have agreed to share the entire area of the land measuring 16.5 Lechas covered by Dag No. 430/1110, P.P. No. 9/465, Block No. 5 of Jorhat town, Assam, situated by the side of T.R. Phukan Path, in 3 (three) equal shares. The defendant No. 1 shall possess 1/3 of the total land on the Eastern side of the said land and the defendant further denounces hereby any claim whatsoever in respect of the residue of the land as described herein-above by extinguishing the same. It is, therefore, humbly prayed that a compromise decree please be drawn up in the light of the statements made herein-above. AND For this act etc. etc. VERIFICATION What are stated in the foregoing paragraphs are true to our knowledge, belief and information and in verification whereof we have put our signatures on this 21st day of July, 1998 at Jorhat. Sd/- Nurul Hussain Sd/- Atul Hussain Sd/- Amir Hussain” 7. However, it appears that the plaintiff of Title Suit No. 57/96 and the defendant No. 1 and pro forma defendant No. 2 had signed in the said petition. By the said compromise, 16½ Lecha of land left behind by Jainul Hussain was divided into three equal shares with the stipulation that the defendant No. 1 of the said suit (plaintiff of the present suit) shall possess 1/3rd of the total land on the eastern side. The compromise petition was made a part of the decree. By the said compromise, 16½ Lecha of land left behind by Jainul Hussain was divided into three equal shares with the stipulation that the defendant No. 1 of the said suit (plaintiff of the present suit) shall possess 1/3rd of the total land on the eastern side. The compromise petition was made a part of the decree. Subsequently, the defendant No. 1 of the said suit (T.S. No. 57/96) filed the present suit praying for a declaration that he has got right, title and interest over the suit room, measuring 10’X13’ described in Schedule-C, which stands on a plot of land measuring 5½ Lecha, which is described in Schedule-B, and for eviction of the defendant No. 1 from the suit room. In the suit, the plaintiff of Title Suit No. 57/96 was arrayed as pro forma defendant No. 2 and the other brother of the appellant was arrayed as pro forma defendant No. 3. It is pleaded in the plaint that the plaintiff had acquired his absolute title over 1/3rd share of the land left behind by Jainul Hussain in the eastern side, which is a part of Schedule-B. It was pleaded that the defendant No. 1 was continuing possession in the said room, which, as per the compromise decree, fell in his exclusive share and the plaintiff allowed her to continue to run her business therefrom. 8. In the first week of 2000, the defendant No. 1 was asked to vacate the suit room. However, instead of vacating the same, she brought some materials on 14.05.2000 and, thereafter, renovated the floor without the consent of the plaintiff and she was taking further steps to alter the nature and character of the suit room. This prompted the plaintiff to file the suit. 9. The stand taken by the appellant in the written statement was that she had been possessing the suit land with the house prior to her marriage on her own right by establishing an embroidery institution. In paragraph 3, it was mentioned that she had admitted the averments made in paragraphs 1 and 2. In paragraph 1, the plaintiff had stated that he, alongwith defendant Nos. 2 and 3, are the sons of Late Jainul Hussain and that the defendant No. 1 was the only daughter of Late Jainul Hussain. In paragraph 3, it was mentioned that she had admitted the averments made in paragraphs 1 and 2. In paragraph 1, the plaintiff had stated that he, alongwith defendant Nos. 2 and 3, are the sons of Late Jainul Hussain and that the defendant No. 1 was the only daughter of Late Jainul Hussain. In subsequent paragraphs, however, the appellant had stated that the plaintiff was not the son of Late Jainul Hussain and he cannot claim any right, title and possession of the disputed land and properties. It was also pleaded that she was not a party to the compromise decree and she possessed the house as her own property. It was also stated that the plaintiff, along with the other defendants, had surreptitiously, without her knowledge and consent got their names mutated in the revenue records and she was taking steps to get the name of the plaintiff deleted from the revenue records. 10. On the basis of the pleadings, learned trial Court framed the following issues:- “(i) Whether there is any cause of action in the suit? (ii) Whether the suit is maintainable in law as well as in facts? (iii) Whether the defendant, Roshema Begum, is a permissible occupier of the suit property? (iv) Whether the plaintiff is son of Late Jainul Hussain? (v) To what relief/reliefs the parties are entitled?” 11. During trial, the plaintiff examined two witnesses and the defendant No. 1/appellant also examined two witnesses. Both the sides exhibited certain documents. The learned trial Court, apart from holding that the plaintiff was son of Jainul Hussain, also held that the plaintiff had been occupying the property of Late Jainul Hussain on the strength of the compromise decree passed in Title Suit No. 57/96; that the defendant No. 1 (appellant herein) intentionally did not contest the Title Suit No. 57/96; that she had never claimed that she is also entitled to a share of the property left behind by her deceased father and that she had never challenged the compromise arrived at in Title Suit No. 57/96. The appellant was held to be a trespasser to the suit property and decree was accordingly granted as prayed for. 12. The appeal preferred by the defendant No. 1/appellant also came to be dismissed by the lower appellate court. The appellant was held to be a trespasser to the suit property and decree was accordingly granted as prayed for. 12. The appeal preferred by the defendant No. 1/appellant also came to be dismissed by the lower appellate court. The learned lower appellate court observed that the entire suit revolved around the question as to whether the claim of the appellant of her right over the disputed land/room has a valid ground ? The learned lower appellate court recorded that there is no evidence to the effect that she had been running her business in the said property since before her marriage, as stated in the written statement, and held that the defendant No. 1 was a permissible occupier. It was also held that the defendant No. 1 had no reason not to take part in the proceeding of Title Suit No. 57/96. 13. The defendant No. 1, as DW1, had deposed that she had opened up a tailoring shop much before her marriage in the year 1977 and she was still continuing to impart training in her said tailoring shop. It has also come out in her evidence that even after her marriage she was continuing to impart embroidery training in her said tailoring shop. She had stated that at the time of the death of her father she was about 1½ year old. 14. That the appellant was a daughter of Jainul Hussain is an admitted position and, she being a daughter of Jainul, is certainly entitled to a share in the property. It is in this circumstance the question arises as to whether on the basis of a purported compromise effected between the plaintiff of Title Suit No. 57/96 and the defendants therein excluding the present appellant, the present appellant could be divested off her share of the property. It is not a question of the appellant not demanding her share, but the question is whether the appellant could have been legitimately deprived of her share in the property of her father. Title Suit No. 57/96 was not filed against pro forma defendant No. 3. The learned courts below had taken exception to the fact that the appellant had not participated in the proceeding and, therefore, held that the plaintiff in Title Suit No. 23/2000 would derive right, title and interest on the basis of the compromise decree passed in Title Suit No. 57/96. The learned courts below had taken exception to the fact that the appellant had not participated in the proceeding and, therefore, held that the plaintiff in Title Suit No. 23/2000 would derive right, title and interest on the basis of the compromise decree passed in Title Suit No. 57/96. The reasoning is totally fallacious. The subject-matter of Title Suit No. 57/96 was entirely different. There was no judgment on merit. Admittedly, the appellant was not a signatory to the compromise petition. By a purported compromise effected by and between certain parties, third-party rights cannot be affected when such third party is not a party to the compromise. On the strength of such compromise decree, the appellant could not have been divested off her share in the property when in law, the appellant is entitled to some share in the property left behind by her father Jainul Hussain. Any such compromise arrived at between the parties will not bind the appellant as she has not denounced her share in the property. The learned courts below had entirely misdirected in addressing the issue in the right perspective. 15. When in the plaint itself (T.S. No. 23/2000), the plaintiff, in paragraph 7, stated that the defendant No. 1 had been continuing in possession of the suit room since before the aforesaid compromise decree, where is the question of the appellant taking permission from the plaintiff after the compromise decree was effected. Admittedly, the plaintiff did not claim any right, title and interest in respect of the Schedule-C prior to the compromise decree and, therefore, on the face of it, the question of taking permission from the plaintiff to allow the defendant No. 1 to continue her business could not have arisen at all. 16. In view of the above, I am of the opinion that the impugned judgments of the learned courts below cannot be sustained. Resultantly, the impugned judgments and decrees are set aside and quashed. The substantial question of law is answered in favour of the appellant. 17. The appeal is allowed. No cost. 18. The Registry will send back the LCR.