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2017 DIGILAW 1465 (GAU)

Abdul Rajak Choudhury v. Moinul Haque Choudhury

2017-11-22

PRASANTA KUMAR DEKA

body2017
JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Ms. B. Devi, learned counsel appearing for the appellants/defendants and Mr. SK Ghosh, learned counsel, appearing for the respondents/plaintiffs. The present appellants are the defendants in T.S. No. 9/2003 in the court of the learned Civil Judge (Junior Division), No. 1, Hailakandi, which was filed by the present plaintiffs/respondents. The case of the plaintiffs/respondents is that the plaintiffs and the proforma defendant No. 111 in T.S. No. 9/03 instituted T.S. No. 97/1970 in the court of the learned Munsiff, Hailakandi against the present defendants/appellants with a prayer for declaration of the right, title and interest and khas possession in respect of the suit land in dispute in T.S. No. 9/2003. During the pendency of the suit the proforma defendant No. 111 sold out his share of interest to the plaintiff/respondent Nos. 1 and 2. The said T.S. No. 97/1970 was decreed by the learned trial court and on appeal the said decree was confirmed by the first appellate court. Second Appeal No. 110/78 was preferred before this court wherein the judgment and decree passed by the trial court in T.S. No. 97/70 and affirmed by the first appellate court was upheld by this court with a modification declaring the right, title and interest over the suit land in favour of the present plaintiffs/respondents with a further direction that the possession of the plaintiffs/respondents are ejmali (joint) alongwith other co-pattadars (co-owners) including the defendants/appellants in the said T.S. No. 97/70. 2. The plaintiffs/appellants got the said decree executed vide execution case No. 13/99. Later on the plaintiffs/respondents applied for partition of the decretal land before the Collector, Hailakandi vide Misc. case No. 5/2002 which was rejected. Thereafter the present T.S. No. 9/03 was filed by the present plaintiffs/respondents for partition of the suit land. 3. Amongst the various defendants in TS No. 9/03, the defendant Nos. 1 to 44 contested the suit by filing a joint written statement. case No. 5/2002 which was rejected. Thereafter the present T.S. No. 9/03 was filed by the present plaintiffs/respondents for partition of the suit land. 3. Amongst the various defendants in TS No. 9/03, the defendant Nos. 1 to 44 contested the suit by filing a joint written statement. In the said written statement, it was pleaded that the suit was barred under the principles of res-judicata and further pleading that the predecessor-in- interests of the present defendants/appellants purchased an area of 4 Bigha 13 Kathas 15 Chataks 10 Gandas of land in the suit Patta and Dag including the suit land on 12.6.1970 from one Siratun Bibi, a relative of the plaintiffs/respondents and they have been possessing the same for the last 33 years with the knowledge of the plaintiffs/respondents. The defendants/appellants admitted that the plaintiffs/respondents obtained the decree in respect of the suit land in TS No. 97/70 and the second appeal No. 110/1978 without admitting possession of the plaintiffs/respondents over the suit land. In fact, in the said Second Appeal No. 110/78 the High Court held that instead of relief of recovery of khas possession by the plaintiffs/respondents, their joint possession was declared alongwith the defendants/appellants. There being no possession of the plaintiffs/respondents over the suit land for the prescribed period of 12 years and that too after passing of the judgment and decree by the High Court on 2.3.1989, the suit was barred by limitation and as such the defendants/appellants sought for dismissal of the suit On the basis of the pleadings, following issues were framed. (1) Is there any cause of action for this suit? (2) Whether the suit is barred by the Principles of res-judicata? (3) Whether the suit is barred by law of limitation? (4) Whether the plaintiffs have any title over the suit land? (5) Whether the plaintiffs are entitled to a decree/relief(s) as prayed for? 4. The plaintiff/respondent No. 1 examined himself as the sole witness as PW 1 and also exhibited various exhibits in support of the case. On the other hand, the defendants/appellants did not adduce any evidence. The trial court decreed the suit in favour of the plaintiffs/respondents vide judgment and decree dated 20.2.2004. The learned trial court while deciding issue No. 5 had gone through the certified copy of the judgment and decree dated 28.2.1973, passed by the learned Munsiff, Hailakandi in T.S. 97/70 as referred hereinabove. The trial court decreed the suit in favour of the plaintiffs/respondents vide judgment and decree dated 20.2.2004. The learned trial court while deciding issue No. 5 had gone through the certified copy of the judgment and decree dated 28.2.1973, passed by the learned Munsiff, Hailakandi in T.S. 97/70 as referred hereinabove. Going through the findings of the said judgment and decree passed in T.S. No. 97/70, the learned trial court accepted the findings of the learned Munsiff in T.S. No. 97/1970 to the extent that the vendor of the predecessor in interests of the present defendants/appellants, Siratun Bibi purchased 4 Bighas 1 Khatas 2 Chataks 5 Gondas of land in Dag No. 629 and 630 and 12 Kathas 13 Chataks and 5 Gondas of land in the eastern portion of Dag No. 471 and held that the said findings were not interfered even by the High Court in Second Appeal No. 110/78. 5. It came to the finding that the present contesting defendants/appellants cannot claim any right over the land of Dag No. 471 more than the extent of the share of their vendor, Siratun Bibi specifying the said extent of land in Dag No. 471 to be 12 Kathas 13 Chataks 5 Gondas on the eastern portion of the Dag No. 471. It was also held that the defendants/appellants would have their remaining 4 Bigha 1 Kama 2 Chatak 5 Gandas of land covered by Dag Nos. 629 and 630. The learned trial court further held that the plaintiffs/respondents are entitled to get partition of the share of 2 Bighas 6 Khata 4 Chatak 10 Gandas of land of the suit schedule land in the light of the said observation made in the earlier T.S. No. 97/1970. The learned trial court decided Issue No. 5 in favour of the plaintiffs/respondents thereby holding that they are entitled to get preliminary decree for partition in respect of the share of the land including khas possession of the separate share of the land as per the final decree. 6. The defendants/appellants being aggrieved by the said judgment and decree of the trial court preferred Title Appeal No. 14/2004 in the court of the learned Civil Judge (Senior Divn.) at Hailakandi. The first appellate court vide its judgment and decree dated 30.11.2004 dismissed the same whereafter the present second appeal was preferred by the defendants/appellants. 6. The defendants/appellants being aggrieved by the said judgment and decree of the trial court preferred Title Appeal No. 14/2004 in the court of the learned Civil Judge (Senior Divn.) at Hailakandi. The first appellate court vide its judgment and decree dated 30.11.2004 dismissed the same whereafter the present second appeal was preferred by the defendants/appellants. The said second appeal was admitted on 5.10.2005 on the following substantial question of law:- "1. Whether the decree passed by the learned courts below allowing the partition amongst the plaintiffs/respondents only over the suit schedule land is in conformity with the judgment and decree passed by the Hon'ble High Court in SA No. 110/78 dated 2.3.1989 arising out of T.S. No. 97/70 declaring joint/ejmali possession over the suit schedule land alongwith other co-pattadars modifying the decree of khas possession of the plaintiffs/respondents? 2. Whether the preliminary decree of partition over the entire suit schedule land in favour of the respondents/plaintiffs is as per law?" 7. Ms. Devi, learned counsel for the appellants submits that the suit was admittedly for partition of the suit land to the share entitled by the plaintiffs/respondents. The courts below while deciding the Issue No. 5 had discussed the entitlement of share of land by the parties to the suit and the same being a suit for partition a duty was cast upon the courts below at least to frame the core issue as to whether the plaintiffs are entitled for partition and if so to what extent. In addition to that an additional issue ought to have been framed as to whether the defendants/appellants to the suit are also entitled to their respective extent of the share over the suit land. The courts below having not framed any such issue, to that effect, the judgment and the decree passed by the courts below are not in conformity with the law. 8. It is submitted that while discussing the various issues in the suit which culminated in the declaration of the joint/ejmali possession of the plaintiffs/respondents with the defendants/appellants and for partition, the courts below ought to have decided as to what extent of share of land the defendants/appellants are entitled out of the various dag numbers more specifically the disputed Dag No. 471. Having not declared the right, title and interest, or the share of the defendants/appellants preliminary decree so drawn up by the courts below is against the law. Summing up as above, Ms. Devi submits that the substantial question of law is to be decided in favour of the plaintiff by allowing the second appeal. 9. Mr. S.K. Ghosh strenuously submits that there is no illegality or any error in the judgment and order passed by the courts below. The entitlement of the suit land as the share of the plaintiffs/respondents were affirmed by all the courts including this court in the Second Appeal No. 110/1978 and there is no dispute with regard to the share of the plaintiffs/respondents. As the share is determined, the plaintiffs are entitled to the decree for partition. Similarly the learned court below had discussed with regard to the entitlement of the share of the defendants/appellants. However, Mr. Ghosh fairly submits that the judgment and decree ought to have declared the shares of both the parties to the suit inasmuch as there are specific findings to that effect by both the courts below. Accordingly there is no illegality on the findings given by the courts below and the second appeal is liable to be dismissed. Further the substantial question of law so formulated is question of facts against the concurrent findings which this court cannot enter into. 10. Considered the submissions of both the learned counsels. On perusal of the findings given by the courts below more specifically with regard to the issue No. 5, the courts below had given a conclusive finding with respect to the entitlement of share of land of the plaintiffs/respondents. While doing so, the learned trial court kept in mind the judgment and order passed by this court in Second Appeal No. 110/1978. Blending the said finding of the High Court alongwith the findings of the trial court in TS No. 97/70, the learned trial court clearly and explicitly had held that the defendants/appellants cannot claim any right over the land of Dag No. 471 more than the extent of the share of their vendors i.e. 12 Kathas 13 Lechas 5 gandas of land in the eastern side of the Dag No. 471. 11. 11. Order 20 Rule 18 of the Code of Civil Procedure, 1908 (CPC) stipulates that when the court passes a decree for partition of a property or for the separate possession of the share therein, the decree shall declare the rights of several parties interested in the property and shall direct such partition or separation to be made by the Collector. There is no doubt that the plaintiffs/respondents are entitled for the relief of partition of their land as claimed in the suit 12. The act of impleading the defendants/respondents as the necessary parties to the suit itself indicates that partition is to be effected, thereby separating the share of the land of the plaintiffs/respondents from that of the defendants/appellants, meaning thereby that both the parties are entitled and possessing the suit property jointly. The process of partition is the separation of the joint possession of the parties and confining the exclusive possession of the respective parties to the suit within a certain specified area. In other words, the process of partition between the parties to the suit is the shrinkage of possession of the parties to the suit from a larger area of joint possession of land to a definite area of land. If the shares of the parties to the suit are not declared, one party may have his share partitioned at the cost of the share of other party. Keeping that end in view and in order to do justice to the parties Order 20 Rule 18 of the CPC stipulates that declaration is to be made with regard to the shares of parties to the suit which is mandatory in nature. 13. In AIR 1981 Mad. 307 (SV Muthu v. Veerammal), it was held by the Madras High Court that if the defendants' rights have not been declared in the preliminary decree, the aggrieved party can challenge the decree in appeal or can apply for review. But once the preliminary decree contains a declaration as to the defendants' share, they can, even after passing of the preliminary decree, apply for and have their share partitioned on payment of court-fee etc., as may be necessary under the law. The said view as held by the Madras High Court is correct view in the opinion of this court. 14. The said view as held by the Madras High Court is correct view in the opinion of this court. 14. Here as already discussed, the learned courts below though decreed the suit of the plaintiffs/respondents, failed to take into consideration the findings of this court in Second Appeal No. 110/1978 whereby it was declared that the plaintiffs/respondents are entitled to hold possession of the suit land jointly with the defendants/respondents. It shows that the plaintiffs/respondents are co- sharers of the suit land with the defendants/appellants. There is a duty cast upon the courts below to declare the shares of both the parties inasmuch as both the parties have produced their respective documents claiming their respective shares in the earlier suit i.e. T.S. No. 97/1970 on the basis of which the learned courts below passed the judgment and decree in favour of the plaintiffs/respondents but without mentioning the specific share of the parties to the suit. From the discussion it is arrived that the courts below failed to pass the partition decree as per law which requires interference, as a result the substantial question of law Nos. 1 and 2 are decided in favour of the defendants/appellants. 15. Keeping in view the provisions of 103 of the Code of Civil Procedure, 1808, this court accordingly direct the trial court to draw up the preliminary decree thereby mentioning the share of the defendants/appellants as discussed by the courts below while deciding the Issue No. 5 i.e. the defendants/appellants are entitled to their share of land measuring 4 Bighas 1 Kama 2 Chatak 5 Gandas covered by Dag Nos. 629 and 630 and 12 Kathas 13 Chataks 5 Gondas of land covered by Dag No. 471 on the eastern side of the said Dag No. 471 without interfering the share already mentioned of the plaintiffs/respondents by the courts below in the said Dag Nos. 471. After the said correction in the preliminary decree precept be sent to the Collector, Hailakandi as required under Section 54 of the CPC 16. Accordingly, this second appeal is allowed to the extent mentioned hereinabove. Send back the LCR. No costs.