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2015 DIGILAW 768 (GAU)

Jaladhar Sarmah v. Kumud Ch. Sarma Bordoloi

2015-06-18

A.K.GOSWAMI

body2015
ORDER : Heard Mr. Sheeladitya, learned counsel for the appellant. None has appeared for the respondents despite the names of the counsel being shown in the Cause-List. 2. This Second Appeal is directed against the judgment and decree dated 27.09.2001, passed by the learned Civil Judge (Senior Division), No. 1, at Guwahati, in Title Appeal No. 14/1994 reversing the judgment and decree dated 25.01.1994, passed by the learned Munsiff No. 2, at Guwahati, in Title Suit No. 97/1991. 3. By an order dated 15.06.2005, this Second Appeal was admitted to be heard on the following substantial questions of law: “1. Whether the land in a joint Patta can be transferred by one of the Pattadars without there being partition amongst themselves showing specific area in favour of the transferor. 2. Whether burden lies on the plaintiff/appellant to prove that the impugned deed of sale is not genuine or the burden lies to the defendant/respondent when the document is claimed to be genuine by him and whether the learned appellate Judge committed any illegality in shifting the burden to the appellant.” 4. At the very outset, Mr. Sheeladitya has submitted that he will not be pressing substantial question No. 2. 5. The case set out in the plaint is that the plaintiff and his elder brother, Bangshidhar, who died issueless on 02.08.1989, were sons of Gangadhar Sarmah. Gangadhar died in the year 1947. Gangadhar had four brothers. 6. It is averred that Schedule-A land was the ancestral property of Gangadhar Sarmah and his brothers, and Schedule-B land, measuring 1 Bigha 4 Katha 14 Lecha in various Dags of K.P. Patta No. 220 and 2 Katha 14 Lecha in various Dags of K.P. Patta No. 106, totaling 2 Bigha 2 Katha 8 Lecha fell in the share of Gangadhar and that the plaintiff and Bangshidhar were entitled to equal shares. No partition had taken place in between the plaintiff and Bangshidhar and, after the death of Bangshidhar, the plaintiff filed two mutation cases in respect of the two Pattas, which, however, were rejected by an order dated 28.01.1990 on the ground that Bangshidhar had sold away land vide registered sale deed No. 7256 dated 22.09.1983, and the plaintiff was directed to approach the civil court. The sale was made to the defendant No. 1, who happens to be the son of sister of both the plaintiff and Bangshidhar. The sale was made to the defendant No. 1, who happens to be the son of sister of both the plaintiff and Bangshidhar. It was pleaded that because of poverty, defendant No. 1 was given shelter by the plaintiff in his house and, taking advantage of the absence of the plaintiff, the defendant conspired and manufactured the sale deed in question. The sale deed contains Dag Nos. 730 and 731 of Patta No. 220, whereas there is no such Dag numbers in Patta No. 220. Schedule-C of the plaint contains description of the schedule of the sale deed. Defendant No. 1 also had filed mutation cases and the plaintiff filed objection to the same. The plaintiff, accordingly, filed the suit for declaration of right, title, interest and recovery of possession in Schedule-B land; for setting aside the order dated 28.02.1990 passed in the mutation cases; for setting aside the order of mutation, if any, granted to the defendant No. 1 and for declaration that the sale deed dated 22.09.1983 is collusive and forged and not operative, etc. 7. The defendant No. 1 filed written statement stating that mutation was granted to him rejecting the objection of the plaintiff and that Bangshidhar Sarmah was the absolute owner and possessor of the land sold through sale deed dated 22.09.1983. It was pleaded that the sale deed was not collusive or forged as contended by the plaintiff and, out of necessity, Bangshidhar had sold the land to him. 8. The learned trial court framed the following issues: “1. Whether the suit is maintainable in its present form? 2. Whether there is any cause of action for the suit? 3. Whether the suit is based by limitation? 4. Whether the plaintiff has got right, title and interest over the suit land? 5. Whether sale deed No. 7256/83 dated 12.09.83 is collusive and forged and is binding upon the plaintiff? 6. Whether this sale deed conferred right, title, interest over the suit land to this defendants? 7. Whether defendant No. 1 is to be removed from ‘B’ schedule land and khas possession is to be given to the plaintiff? 8. Any other relief seems fit and proper to the plaintiff?” 9. The plaintiff examined 4 witnesses and the defendants examined 3 witnesses. Both sides also exhibited certain documents. 10. 7. Whether defendant No. 1 is to be removed from ‘B’ schedule land and khas possession is to be given to the plaintiff? 8. Any other relief seems fit and proper to the plaintiff?” 9. The plaintiff examined 4 witnesses and the defendants examined 3 witnesses. Both sides also exhibited certain documents. 10. The learned trial Court held that there was no valid partition in respect of the suit land between the plaintiff and Bangshidhar. The sale deed was also held to be fraudulent and, therefore, not binding on the plaintiff. It was also held that the sale deed did not confer any right, title and interest on the defendant No. 1. 11. The learned Lower Appellate Court reversed the judgment of the learned Trial Court holding that there was partition of the properties in question and the sale deed is not fraudulent. The learned Lower Appellate also held on the basis of the sale deed, the defendant No. 1 has right, title and interest in the aforesaid land. 12. Mr. Sheeladitya has submitted that the positive case of the plaintiff is that the share of Gangadhar was 2 Bigha 2 Katha 8 Lecha. It is no doubt true, he submits, that there was a mis-statement in his cross-examination that the two brothers had inherited about 7 Bigha 3 Katha and odd land. Solely on the basis of the said statement and without adverting to Ext.-9 and 10, which are copies of Jamabandi in respect of periodic Patta Nos. 220 and 106, respectively, the learned Lower Appellate Court proceeded to assume that the said land was the share of Gangadhar and proceeded to make some calculations, which eventually led the learned Lower Appellate Court to arrive at a finding that Bangshidhar inherited 3 Bigha 4 Katha and that the sale deed transferring 2 Bigha 3 Katha 19 Lecha was valid. Learned counsel further submits that a bare perusal of Ext.-9 would demonstrate that periodic Patta No. 220 does not have Dag Nos. 730 and 731 though the sale deed purported to transfer land in the aforesaid Dags also. As against the specific case of the plaintiff that there was no partition, the defendant No. 1 pleaded that the land comprised in the sale deed was the exclusive property of the defendant. 730 and 731 though the sale deed purported to transfer land in the aforesaid Dags also. As against the specific case of the plaintiff that there was no partition, the defendant No. 1 pleaded that the land comprised in the sale deed was the exclusive property of the defendant. Learned counsel submits that without discussing any evidence of the defendant’s witnesses, basing on the evidence of the witness of the plaintiff, which, in no manner indicates any partition of the property left behind by Gangadhar in between the brothers, a finding is recorded that there was partition of the property. He further submits that it is an established proposition of law that without a partition, the co-owners of a property cannot transfer any specific area of the property, or any part of it, in favour of the transferee. Learned counsel also submits that, however, in the instant case, a thorough appreciation of the evidence adduced by the parties will have to be done in view of the infirmities in the judgment of the learned Lower Appellate Court, as pointed by him and, therefore, it is a fit case where this Court ought to remand this appeal to the learned Lower Appellate Court for disposal of the case in accordance with law. 13. I have considered the submissions of the learned counsel for the appellant and have perused the materials on record. 14. I find substance in the argument of Mr. Sheeladitya and consider it to be a fit case for remand. It is to be noted that the Learned Lower Appellate Court did not at all advert to Ext.-9 and Ext.-10. The entire calculations of the learned Lower Appellate Court were based on the statement of the plaintiff given in his cross-examination that the plaintiff and his brother inherited 7 Bigha 3 Katha and odd land. Such statement has to be considered along with rest of the evidence on record. With regard to the finding in respect of partition also, it appears that the evidence of the defendant was totally overlooked. As the matter is remanded to the learned Lower Appellate Court, it is considered not appropriate to make any further observations in this order. Such statement has to be considered along with rest of the evidence on record. With regard to the finding in respect of partition also, it appears that the evidence of the defendant was totally overlooked. As the matter is remanded to the learned Lower Appellate Court, it is considered not appropriate to make any further observations in this order. It is made clear that this Court has expressed no final opinion on any issue or in any aspect of the case and the learned Lower Appellate Court will decide the case on the basis of the pleadings and without being influenced by any observation made in this judgment. 15. The substantial question of law No. 1 is answered in terms of the above. The impugned judgment of the learned Lower Appellate Court is set aside and quashed. The case is remanded back to the learned Lower Appellate Court for disposal of the appeal in accordance with law. No cost. 16. Registry will send back the records forthwith.