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2016 DIGILAW 329 (GAU)

Dhaneswari Baruah v. Dambarudhar Baruah

2016-04-28

N.CHAUDHURY

body2016
JUDGMENT : 1. Order dated 04.10.2010 passed by learned Munsiff No.2, Tezpur in Misc.(J) Case No. 122/2010 allowing an application under Order VI Rule 17 of the Code of Civil Procedure for amendment of counter-claim of the opposite party herein have been called in question in the present application under Article 227 of the Constitution of India. 2. The petitioners herein as plaintiffs instituted Title Suit No.9/2010 in the court of learned Sadar Munsiff at Tezpur for declaration of their right, title and interest over half share of land measuring 2 Bigha 2 Katha 9 Lechas covered by Dag No.967, 959, 954, 974 and 969 pertaining to periodic patta No.59(old)/61(new) of Saikia Chuburi, Dekargaon in the district of Sonitpur. It is the case of the plaintiffs that the aforesaid suit land was originally owned by one Late Khargeswar Baruah. Khargeswar Baruah died leaving behind his two sons, namely, Ganesh Baruah and Lakhiram Baruah. Ganesh Baruah died leading behind the plaintiffs as his legal heirs and Lakhiram Baruah died leaving behind the defendant Sri Dambarudhar Baruah as his sole legal heir. The defendant in the meantime had also instituted a Title Suit No.84/2009 in the court of learned Munsiff at Tezpur praying for declaration of his exclusive right, title and interest with respect to his entire ancestral property and also prayed for injunction. The plaintiffs having appeared therein contested the suit as well as the injunction petition. The learned court after hearing the parties ordered to maintain status quo with respect to the suit property during pendency of the suit. It is stated that the suit is at the evidence stage. The defendant having claimed exclusive right, title and interest with respect to half of the ancestral property in the aforesaid suit the plaintiffs made a similar prayer in the present suit for declaration of their right, title and interest with respect to 2 bigha 2 katha 9 lechas of land which is part of the entire ancestral property. 3. Having received summons the sole defendant appeared and filed written statement as well as counter-claim. In the counter-claim the defendant stated that the plaintiffs had, in the meantime, sold various plots of land to different persons and thus exceeded their title. 3. Having received summons the sole defendant appeared and filed written statement as well as counter-claim. In the counter-claim the defendant stated that the plaintiffs had, in the meantime, sold various plots of land to different persons and thus exceeded their title. The counter-claimant, therefore, made a prayer for determining the respective shares of the parties with respect to the entire ancestral land and for partition of the Schedule-A & B properties mentioned in the counter-claim. The prayer was made in the counter-claim for drawing a preliminary decree and for delivering vacant possession of the land falling in the share of the counter-claimant. After the plaintiffs filed written statement against the counter-claim it came to light that the plaintiffs had appointed a constituted attorney and through him various sales were made. Under such circumstances the counter-claimant filed an application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure for impleading Sri Satyajit Swargiary, the aforesaid constituted attorney, and other 10 persons who had purchased land from Schedule-A of the counter-claim. A prayer has also been made that the sale of property made to the transferees by constituted attorney of the plaintiffs if found in excess of the share of the plaintiffs, in that event, the sale deed in respect thereto are to be adjudged illegal, inoperative etc. The said sale deeds are described in Schedule-C to the amendment petition. It is to be noted here that at the time when the amendment application was filed the suit was at the initial stage and no issues were framed and so trial had not commenced. 4. The plaintiffs filed a written objection against the amendment petition, inter alia, on the ground that since the plaintiffs made a limited prayer for declaration of their right, title and interest over half share of the suit land with consequential relief of partition and separate possession by passing preliminary decree by meats and bounds and for passing final decree in terms of the provision of Section 54 and Order XX Rule 18 of the CPC, there was no question of filing of the counter-claim. The learned trial court after considering the amendment petition and the objection filed thereto passed the order dated 04.10.2010 allowing the amendment. The learned trial court after considering the amendment petition and the objection filed thereto passed the order dated 04.10.2010 allowing the amendment. In so doing the learned trial court observed that the words ‘any right or claim in respect of a cause of action accruing to the defendant’ cannot be confined to the claim made in the plaint itself. An application under Order VIII Rule 6A of the CPC is in the nature of cross suit so as to enable the court to pronounce a final judgment in the same suit and even if a suit is dismissed for default a counter-claim may be proceeded with under Order VIII Rule 6D of the CPC. The objection raised by the plaintiffs for confining consideration within the schedule described in the plaint, therefore, was not accepted by the learned trial court and accordingly finding that proposed amendments are necessary for proper adjudication of the matter in dispute the amendment was allowed. This order has been challenged in the present revision petition. 5. I have heard Mr. G. Choudhury, learned counsel for the petitioners and Mr. P. Sundi, learned counsel for the opposite party. I have also perused the materials available on record to find out the correctness or otherwise of the order under challenge. 6. It appears that the plaintiffs and the defendant are legal heirs of a common ancestor Late Khargeswar Baruah. Khargeswar Baruah died leaving behind his two sons, namely, Ganesh Baruah and Lakhiram Baruah. Ganesh Baruah died leaving behind the plaintiffs as his legal heirs and Lakhiram Baruah died leaving behind the defendant as his sole legal heir and so both the parties are correct when they claim half of the ancestral property. The defendant by filing a separate suit for declaration of his right, title and interest based on right of inheritance from the common ancestor Khargeswar Baruah and so did the plaintiffs by instituting the latter suit. In the latter suit the plaintiffs did not include the whole of the ancestral property and restricted only to 2 bigha 2 katha 9 chattaks under five different dags. The prayer has been made for declaration of their right, title and interest and for partition of the aforesaid property under Order XX Rule 18 of the CPC. In the latter suit the plaintiffs did not include the whole of the ancestral property and restricted only to 2 bigha 2 katha 9 chattaks under five different dags. The prayer has been made for declaration of their right, title and interest and for partition of the aforesaid property under Order XX Rule 18 of the CPC. This provision, on the other hand, mandates that when a preliminary and final decree is passed in a partition suit, it is the duty of the court to ascertain the respective shares of the parties to the suit. This means that not only the share of the plaintiff or plaintiffs are to be ascertained but the court is duty-bound to ascertain the share of the defendant or defendants, as the case may be. The sole purpose is to adjudicate the respective share/shares of the co-pattadars/co-sharers of an unpartitioned property. The moment the plaintiff instituted the suit for partition of the ancestral property the court has the duty and obligation to decide the quantum of shares of all the legal heirs. This can be done only if the whole of the ancestral properties are brought under consideration. This is because prior to or in course of partition one or more co-sharers may transfer their shares either in part or in full and in that event this may have effect on the quantum of share of the co-sharers. It is, therefore, equally necessary to see as to what amount of land is transferred by which of the co-sharers and as to whether in making such transfer anybody has exceeded his share. This being the position, it is always necessary to bring the entire ancestral property into the hotchpotch for effective partition of the property and each of the co-sharers are to be brought in the picture. If all the parties and entire properties are brought under the hotchpotch, at that event, only a proper adjudication under Order XX Rule 18 of the CPC will be possible. Plaintiffs though instituted a suit for partition but not having brought the entire ancestral property into the picture, ultimately, did not pave way for a proper decision under Order XX Rule 18 of the CPC. 7. Plaintiffs though instituted a suit for partition but not having brought the entire ancestral property into the picture, ultimately, did not pave way for a proper decision under Order XX Rule 18 of the CPC. 7. When the defendant appeared and filed counter-claim and brought the entire property in picture under Schedule-A & B, in a sense it helped the plaintiffs to achieve their goal in getting a proper partition decree. Now that the entire property has come under consideration in view of Schedule-A and B of the counter-claim, the defendant made a prayer for impleading the transferees whom plaintiff transferred parts of the ancestral property from his share. By way of purchase these persons have also become co-sharers of the patta and so their presence in the suit is also equally necessary for the reasons discussed above. The learned trial court, therefore, was of the view that amendment for impleading these persons is necessary for proper adjudication of the matter in dispute. The suit instituted by the plaintiff is a partition suit on declaration of respective shares of the parties. After amendment of the counter-claim the nature and character of the suit has not changed. It has only fostered the objective of the partition suit by bringing entire ancestral properties and all the co-sharers in the hotchpotch and so the amendment allowed by the learned trial court cannot be said to have changed the nature and character of the suit in any way. The amendment is necessary for proper adjudication of the matter in dispute and it has not changed the nature and character in any way. The trial of the suit has not commenced and so there is no question of proving due diligence as on the date of filing the application for amendment in terms of the proviso to Order VI Rule 17 of the CPC. The learned trial court has considered the relevant aspects of the matter in passing the impugned order and did not commit any jurisdictional error whatsoever. The impugned order, therefore, cannot be interfered with. 8. At this stage, Mr. G. Choudhury, learned counsel for the petitioners, points out that Title Suit No.84/2009 instituted by the defendant also relates to declaration of right, title and interest with respect to the ancestral properties and so proceeding with the suit separately may result in contradictory decisions. The impugned order, therefore, cannot be interfered with. 8. At this stage, Mr. G. Choudhury, learned counsel for the petitioners, points out that Title Suit No.84/2009 instituted by the defendant also relates to declaration of right, title and interest with respect to the ancestral properties and so proceeding with the suit separately may result in contradictory decisions. He prays that both the suits should be tried together. The law in this regard has been settled by the Hon’ble Supreme Court in the case of State Bank of India vs. Rajan Chemicals reported in (2007) 1 SCC 97 . Prima facie, it appears that the submission of Mr. Choudhury in this regard has force. However, neither of the parties has made any prayer to the learned court below in respect thereto. The parties shall be at liberty to make prayer for analogous trial of both the suits and if such a prayer is made the learned trial court shall consider the same in terms of the law laid down in the case of Rajan Chemicals (supra). 9. The revision petition stands closed. No order as to cost. Interim order passed earlier stands automatically vacated.