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2015 DIGILAW 712 (GAU)

Rahizuddin and Ors. v. Ahela Bewa and Ors.

2015-06-09

SUMAN SHYAM

body2015
Suman Shyam, J. 1. Heard Mr. H. Das, learned counsel for the appellants. Also heard Mr. C. Baruah, learned Senior Counsel assisted by Mr. D. Baruah, learned counsel representing the respondents. This Second Appeal has been filed challenging the judgment and order dated 28.06.2005 passed by the learned Civil Judge (Senior Division), Goalpara in Title Suit No. 9/2005 affirming the judgment and order dated 03.03.2005 passed in Title Suit No. 5/1997 by the learned Civil Judge (Junior Division) No. 1, Goalpara dismissing the suit filed by the plaintiff/appellant holding the same to have abated against the defendants. 2. The brief factual background leading to filing of this appeal is that the appellant had filed Title Suit No. 5/1997 seeking partition and declaration of separate possession in respect of the ancestral property measuring 38B-8K-15 dhurs, thereby, claiming that the plaintiff is entitled to her share of 11B-10K-8 dhurs. In the said suit, Naushad Ali Mondal and Motbhan Bewa were impleaded as defendant Nos. 3 and 4 although the said two persons had died prior to institution of the suit. The defendants contested the suit by filing their written statement, inter alia, questioning the maintainability of the suit on various grounds besides denying the fact that the plaintiff had right, title and interest over the land claimed by her. 3. Based on the pleadings of the parties, the learned trial Court had framed six issues in the Title Suit on the basis of which the parties to the proceeding had adduced evidence before the trial Court. Thereafter, the learned trial Court, on evaluation of the evidence on record, had decreed the suit filed by the plaintiff/appellant on 31.03.2004. 4. Being aggrieved by the judgment and decree passed by the learned trial Court in Title Suit No. 5/1997 the contesting defendants preferred Title Appeal before the Court of learned Civil Judge (Senior Division), Goalpara on the grounds mentioned in the memorandum of appeal. The appeal filed by the defendants against the judgment and decree dated 31.03.2004 was allowed by the First Appellate Court by setting aside the judgment and decree under appeal and thereafter, the matter was remanded back to the trial Court for a fresh disposal on merits after framing additional issues. The appeal filed by the defendants against the judgment and decree dated 31.03.2004 was allowed by the First Appellate Court by setting aside the judgment and decree under appeal and thereafter, the matter was remanded back to the trial Court for a fresh disposal on merits after framing additional issues. On remand, while the matter was pending for disposal before the trial Court, the plaintiff had filed a petition bearing No. 1232/04 dated 28.12.2004 for substitution of the legal heirs of defendant No. 3. It appears that the said petition was filed by the learned counsel for the plaintiff/appellant being oblivious of the order dated 11.12.1997 by means of which the trial Court had already struck off the names of the defendant Nos. 3 and 4 based on a petition filed by the plaintiffs informing the Court that the said persons were dead as on the date of filing the Title Suit. 5. The defendants/respondents filed their objection against the said petition submitted on behalf of the plaintiff. Thereafter, by the order dated 03.03.2005 passed in Title Suit No. 5/1997 the learned trial Court had rejected the application for substitution filed by the plaintiff on 28.12.2004, inter alia, holding that since the suit of the plaintiff was one for partition, hence, the legal heirs of the defendant Nos. 3 and 4 were necessary parties. However, since there was a delay in filing petition for substitution of their legal heirs, hence, the suit has already abated as against the said defendant Nos. 3 and 4 by operation of law. Accordingly, the suit filed by the plaintiff was dismissed as having been abated. 6. Being aggrieved by the aforesaid order dated 03.03.2005, it appears that, the plaintiff as appellant had preferred an appeal under Order XLIII Rule l(k)of the CPC. However, the said appeal appears to have been registered as a regular Title Appeal bearing No. 9/2005 in the Court of the learned Civil Judge (Senior Division), Goalpara. Upon hearing the learned counsels for the parties, Title Appeal No. 9/2005 was dismissed by the learned Civil Judge (Senior Division), Goalpara by affirming the order dated 03.03.2005 passed by the learned trial Court dismissing the suit of the plaintiff holding the same is abated due to non-substitution of the legal heirs of defendant Nos. 3 and 4. 7. Upon hearing the learned counsels for the parties, Title Appeal No. 9/2005 was dismissed by the learned Civil Judge (Senior Division), Goalpara by affirming the order dated 03.03.2005 passed by the learned trial Court dismissing the suit of the plaintiff holding the same is abated due to non-substitution of the legal heirs of defendant Nos. 3 and 4. 7. Being aggrieved by the judgment and order dated 28.06.2005 passed in Title Appeal No. 9/2005 the plaintiff as appellant had approached this Court by filing the instant Second Appeal which was admitted to formal hearing by framing the following two substantial questions of law:- "(i) Whether the learned Court below is right in dismissing the suit of the plaintiff by holding that the entire suit has abated for not bringing the legal heirs of the deceased defendant Nos. 3 and 4 on record? (ii) Whether the right of the plaintiff to bring the legal heirs of the deceased defendant Nos. 3 and 4 on record under Order 1 Rules 9 and 10 of the CPC extinguished for not filing the application under Order 22 Rule 4 of the CPC in timer?" 8. Mr. H. Das, learned counsel for the appellant, submits that the learned Courts below have committed manifest illegality in dismissing the suit filed by the plaintiff holding the same as having abated due to non-substitution of the legal heirs of defendant Nos. 3 and 4 by ignoring the fact that the names of the defendant Nos. 3 and 4 had been struck off from the record on 11.12.1997 on the ground that the said two persons were not alive even on the date on which the suit was filed. Mr. Das submits that the names of the defendant Nos. 3 and 4 had been included in the plaint due to an error committed by the learned counsel engaged by the plaintiff who failed to take note of the instructions given by the plaintiff clearly indicating that these two persons were already dead. 9. He further submits that even the defendants were aware of the fact that the said two persons impleaded as defendant Nos. 3 and 4 were not alive on the date of filing the suit. However, they had never raised any objection before the trial Court on such account. 9. He further submits that even the defendants were aware of the fact that the said two persons impleaded as defendant Nos. 3 and 4 were not alive on the date of filing the suit. However, they had never raised any objection before the trial Court on such account. There was no issue framed by the learned trial Court so as to go into that aspect of the matter. It was at a very belated stage i.e. before the First Appellate Court in the first round of appeal that the defendants had raised an objection as regards the non-substitution of the legal heirs of defendant Nos. 3 and 4. He further submits that the learned Court below misconstructed the principles of law governing the substitution of the legal heirs of deceased plaintiffs and/or defendants and thereby erroneously dismissed the suit filed by the plaintiff only on the ground that the same stood abated. 10. Mr. C. Baruah, learned Senior Counsel representing the respondents, submits in all fairness that since the defendant Nos. 3 and 4 had been impleaded erroneously by ignoring the fact that the said persons were not even alive on the date on which the suit was filed, hence, the provisions of Order XXII Rule 4 of the CPC may not have any application in the facts and circumstances of the case. He, however, submits that what impact the non-joinder of the legal heirs of the said deceased persons would have on the outcome of the suit is a matter that will have to be gone into and the contesting defendants would firmly press that issue against the plaintiff seeking a dismissal of the Title Suit on such count alone. 11. I have considered the submissions made by and on behalf of the parties. From a perusal of the records it appears that Naushad Ali Mondal and Motbhan Bewa were not alive on the date on which the suit was filed by the plaintiff. Order XXII Rule 2 CPC provides for the procedure for substitution of legal heirs in the event of death of one of several plaintiffs and/or defendants. In the instant case since the aforesaid "defendant Nos. Order XXII Rule 2 CPC provides for the procedure for substitution of legal heirs in the event of death of one of several plaintiffs and/or defendants. In the instant case since the aforesaid "defendant Nos. 3 and 4" were not alive on the date on which the suit was filed hence they cannot be treated as defendants in the suit within the meaning of Order XXII Rule 2 read with Rule 4 of the CPC. That apart, the names of the said defendants had already been deleted from the records on 11.12.1997 without any objection being raised by the defendants. In that view of the matter, there was no question of substitution of the legal heirs of defendant Nos. 3 and 4 by invoking the provisions of Order XXII Rule 4 CPC in the facts and circumstances of the present case. The present could at best be a case for impleadment of the heirs of Noushad Ali Mondal and Motbhan Bewa as necessary parties to the suit. Hence, question of abatement of the suit on the ground mentioned by the lower Appellate Court does not arise at all. 12. There can be no doubt about the fact that in a suit for partition, all the co-sharers are necessary parties and in their absence no decree for partition and declaration of separate possession can be passed in respect of an ejmali property. However, in the instant case whether the plaintiffs suit is bad for non-joinder of necessary parties or not is a matter to be decided by the learned trial Court in course of trial by framing proper issue. From a perusal of the record it appears that no such issue had been framed by the learned trial Court. The aforesaid aspect of the matter would also go to show that the said objection had not been raised by the defendant before the learned trial Court. 13. Be that as it may, in view of what has been discussed in the foregoing paragraphs, it is held that since the other defendants were added as parties to the suit who had surviving interest in the suit property, hence, the plaintiff's suit could not have been held to have abated merely on account of the fact that the plaintiff had failed to substitute the legal heirs of defendant Nos. 3 and 4 within the prescribed period of time. 3 and 4 within the prescribed period of time. As has been already held herein before, the provisions of Order XXII Rule 4 would not be applicable in case of legal heirs of Naushad Ali Mondal and Motbhan Bewa since they cannot be termed as defendants to the suit As such the judgment and order passed by the learned First Appellate Court holding that the plaintiff's suit has abated on account of non-substitution of legal heirs of defendant Nos. 3 and 4 is not sustainable in the eye of law and as such the same is hereby set aside. 14. Since the suit filed by the plaintiff had been dismissed on a technical ground holding the same to have abated without addressing any of the issues on merit, hence, the matter stands remanded back to the trial Court for a fresh disposal of the suit by deciding each of the issues on merit. In the process, it would also be open to the parties to approach the learned trial Court to frame an additional issue as to non-joinder of necessary parties and in the event any such issue is framed the same would be decided by the trial Court on merits bearing in mind the provisions of law in Order I Rule 9 and 10 of the CPC. With the above directions, this Second Appeal stands allowed to the extent indicated herein before. Parties to appear before the learned trial Court on 13.07.2015. Having regard to the facts and circumstances of the case, there would be no order as to cost. Registry to transmit the records expeditiously.