Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 626 (GAU)

Indra Hazarika v. Mahendra Nath

2019-05-20

PRASANTA KUMAR DEKA

body2019
JUDGMENT : 1. Heard Mr. L. K. Borah, learned counsel for the appellant. 2. Judgment and Decree dated 14.10.2015 passed in Title Appeal No. 2 of 2014 by the learned Civil Judge, Darrang, Mangaldoi is under challenge in this second appeal. The appellant herein as the plaintiff filed the suit against the present defendants respondents for declaration of his right, title, interest and recovery of possession and injunction. The basis of claim of the plaintiff appellant is that he purchased the suit land by way of registered sale deed from two of the co-owners of the total patta land covering 10 bighas and odd. After possession was delivered by the vendors the defendants respondents dispossessed him from the land purchased. The defendants respondents filed their joint written statement thereby raising the plea that unless and until the total land covered by suit patta is formally partitioned by metes and bound between the heirs of Dhaneswar Nath and Jogeswar Nath, the plaintiffs suit is not maintainable. Amongst various issues, whether the suit is maintainable and the plaintiff appellant is entitled for declaration of right, title and interest and possession over the Ga schedule land were framed. Ga schedule land covers the suit land from which the plaintiff appellant claimed to have been dispossessed by the defendants respondents. The learned trial court decreed the suit holding the said two issues in favour of the plaintiff appellant. The defendants respondents being aggrieved filed Title Appeal No.2/2014 and the appeal was allowed dismissing the suit of the plaintiff appellant by holding as follows: "13. Although the registered sale deed executed in favour of the plaintiff by proforma defendant No.5 and 6 was legally acceptable the plaintiff did not have exclusive possession over the suit land. Accordingly, it cannot be said that the defendants dispossessed him from the suit land as alleged. Moreover, from the above cited case, the Honble Supreme Court observed that in such a situation the plaintiff ought to have prayed for formal partition of the patta land and after the partition the plaintiff could have claimed his possession by virtue of the registered sale deed executed in his favour. The suit filed by the plaintiff does not show any prayer for formal partition of the patta land. As such, in view of the above, the suit filed by the plaintiff cannot be maintained. The suit filed by the plaintiff does not show any prayer for formal partition of the patta land. As such, in view of the above, the suit filed by the plaintiff cannot be maintained. Accordingly, it is found that there legal ground for which the judgment and order passed by the learned trial Court needs to be interfered with. 14. From the discussion made above, I found that the impugned judgment and decree passed by the learned court below is not sustainable in law. 15. In the result, the appeal is allowed ex-parte without cost. The impugned judgment and decree passed by the learned trial court is set aside." 3. Thereafter the plaintiff appellant is before this court by filing this second appeal. Mr. Borah submits that the court below more specifically first appellate court was wrong in interpreting the provision u/s 44 of the Transfer of Property Act inasmuch as there is no bar in selling the share of a co-sharer of a joint property and the purchaser as the right to possess to the extent of the sharer who sold the land. 4. I have considered the submission of Mr.Bora. This is a case wherein the plaintiff appellant has sought for his relief of declaration of right, title and interest and recovery of possession of a particular land described in the Ga schedule land of the plaintiff. The plaintiff appellant though pleaded that there was an oral partition between the two brothers, the original pattadars Dhaneswar Nath and Jogeswar Nath but failed to prove the said oral partition by bringing the relevant land record. On the other hand, the copy of the records of rights (Jamabandi) shows that both Dhaneswar Nath and Jogeswar Nath as the co-owners of the total land covered by said suit patta No. 116 of village Pota Pukhuri. If we look back Section 44 of T. P. Act it specifically stipulates that there is no bar in selling the share of a co- owner to a purchaser but the purchaser is entitled only to the share of the vendor co-owner with a right for partition of the said share. Similar is the situation before this court. If we look back Section 44 of T. P. Act it specifically stipulates that there is no bar in selling the share of a co- owner to a purchaser but the purchaser is entitled only to the share of the vendor co-owner with a right for partition of the said share. Similar is the situation before this court. The plaintiff appellant purchased the land from co-sharer and the other co-sharers dispossessed him from the land described in the suit land but filed the suit without seeking the relief for partition of the land purchased by the plaintiff appellant from two of the co-sharers. The first appellate court held that the sale deed executed in favour of the plaintiff appellant are lawfully acceptable but at the same time the plaintiff also did not have exclusive possession for the suit land and it cannot be said that the defendants respondents dispossessed him from the suit land. The said finding in my opinion is proper and the submission of Mr. Borah cannot be accepted. Without seeking for partition the purchaser cannot claim himself to be the absolute owner of the plot of land he purchased from the co-sharers in view of the stipulation under Section 44 of the Transfer of Property Act. Needless to say the plaintiff appellant has right, title and interest to the extent of the share of the vendors who were the co-sharers alongwith the defendants respondents and the right to claim partition still survives on the plaintiff appellant. 5. Accordingly, this second appeal is devoid of substantial questions of law and same stands dismissed at this admission stage.