Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 56 (GAU)

Rupjan Begum And Oors v. Minabala Das

2020-01-20

MIR ALFAZ ALI

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. A Sattar, learned counsel for the appellant and Mr. DP Chaliha, learned counsel for the respondent Nos.3, 5 and 7. 2. This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Nagaon in Title Appeal No.8/2002. 3. This second appeal was admitted to be heard on the following two substantial questions of law: wxyz 1. Whether the judgment and decree passed by the trial Court and affirmed by the appellate court as regards partition of the suit property and for confirmation of possession is in violation of the provisions of Order 20 Rule 18 CPC? zyxw wxyz 2. Whether the findings of the court below are perverse for non consideration of the documentary evidence led by the defendants? zyxw 4. The facts leading to the present second appeal may be stated thus:- the land measuring 3 katha, 18 lechas covered by Dag No.1963 and Patta No.88 and land measuring 1 katha, 2 lechas covered by Dag No.1962 and Periodic Patta No.715 total land being 1 bigha in both the dags originally belong to Mofruj, Ayesha, Idrish, Nureja, Sahida Khatun and Ilias, all of them having equal share (1/6th ) Mofruj died leaving behind his wife Ayesha Bibi, son Yunus and daughter Tabiban Nessa. Ayesha Bibi made a gift of her share of land in favour of her son Yunus and accordingly, Yunus has been possessing the said land. Yunus died leaving behind his wife, two sons and three daughters who inherited the property left by Yunus. Ilias Ali, son of Yunus was not heard of for the last 35 years, who was presumed to be dead and his share of land also devolved upon the two daughters and wife of Yunus being proforma defendant Nos. 2, 3 & 7. The proforma defendant Nos.2 & 3 became the owner of the said land as well as houses standing thereon by right of inheritance as well by their own right title and interest. Proforma defendant No.2 Nureja Khatun sold 10 and 508/1152 lechas of land and 257/1152 shares in the house standing on Dag No.1912 by registered sale deed on 05.01.1980. Thereafter on 04.07.1980 Proforma defendant No.3 Sahida also sold 10 & 508/1152 lechas of land and 257/1152 share in the house over Dag No.1912 to the plaintiff by registered sale deed. Proforma defendant No.2 Nureja Khatun sold 10 and 508/1152 lechas of land and 257/1152 shares in the house standing on Dag No.1912 by registered sale deed on 05.01.1980. Thereafter on 04.07.1980 Proforma defendant No.3 Sahida also sold 10 & 508/1152 lechas of land and 257/1152 share in the house over Dag No.1912 to the plaintiff by registered sale deed. There were certain mistakes in the sale deed executed on 04.07.1980 which were corrected later on by a rectification deed. The plaintiff thus being the owner of the said land and the share of house as stated above, when applied for mutation of his name, the defendant raised objection, alleging that the plaintiff did not have any right title interest and therefore, the plaintiff filed the suit for declaration of his right title and interest and confirmation of possession. The defendant No.1 contested the suit by filing a written statement. Besides taking legal plea of non joinder of necessary parties for not impleading Ilias Ali, stating that he was still alive, denied the execution of sale deed by Proforma Defendant Nos.2 & 3. The defendant No.1 also challenged the identity of the suit land stating that the suit land has not been described properly in the plaint. 5. The pleaded case of the defendant No.1 was that the total land measuring one bigha of the suit dag and patta originally belonged to six persons namely, Morfuj, idrish, Illias, Ayesha, Shahida and Nureja, having equal shares (1/6th). After death of Mofruj, his share devolved upon his wife Ayesha, son Yunus and daughter Tabiban Nessa. Ayesha made a gift (Hiba-Bil-Raj) of her share in favour of Yunus. Yunus had two wives. Through, his first wife Mariam Nessa, he had two sons namely, Idrish Ali and Ilias Ali and three daughters Sahida, Nureja and Saifun Nessa. The other wife of Yunus was Rufan Nessa, (defendant No.8). Tabibun Nessa transferred her share in the ancestral land and house in favour of her son Abdul Gani, who had been possessing the said land. Yunus during his life time gifted the land measuring 1 katha 2-5/6 lessa from dag No.1912 and PP No.8 and land measuring 7 1/3 lecha out of Dag No.1916 and PP No.715 in favour of his wife Rufan Nessa (defendant No.8) and Rufan Nessa gifted the said land along with other properties to defendant No.1. Yunus during his life time gifted the land measuring 1 katha 2-5/6 lessa from dag No.1912 and PP No.8 and land measuring 7 1/3 lecha out of Dag No.1916 and PP No.715 in favour of his wife Rufan Nessa (defendant No.8) and Rufan Nessa gifted the said land along with other properties to defendant No.1. The plaintiff No.2 was tenant under the defendant No.1 in respect of a suit land and plaintiff No.1 was inducted in the said premise as sub tenant by plaintiff No.2 and as such, they have no title over the suit property. Defendant No.1 also denied the execution of the sale deed by proforma defendant No.2 & 3. The proforma defendant No.2, 3 & 7 supported the claim of the plaintiffs. Proforma defendant No.7, however, pleaded that she has been possessing her share in the suit Dag and Patta. 6. On the basis of the above pleadings, learned trial Court framed the following issues: wxyz "1) Whether there is any cause of action for the suit? zyxw wxyz 2) Whether the suit is maintainable in law in its present form? zyxw wxyz 3) Whether the suit is bad for non-joinder of necessary parties? zyxw wxyz 4) Whether the vendors of the plaintiffs had saleable right, title and interest over the suit land? zyxw wxyz 5) Whether legal presumption with regard to the death of Illias, one of the co-pattadars can be drawn? zyxw wxyz 6) Whether vendors of the plaintiffs have already transferred their share in suit patta to proforma defendant Nos 4, 5 and 6? zyxw wxyz 7) Whether the plaintiffs have right, title and interest over the suit land? zyxw wxyz 8) To what relief the plaintiffs are entitled?" zyxw 7. Both the parties adduced evidence. After hearing the parties, learned trial court decreed the suit whereby declared the right title and interest of the plaintiffs over the suit land and also confirmed their possession. Learned trial Court also passed a decree for partition of the suit property. Aggrieved, the defendant preferred the appeal which also stood dismissed. Hence the present second appeal. 8. I have heard and considered the submission made by the learned counsel for the appellant Mr. Sattar and Mr. DP Chaliha, learned counsel for the respondent. 9. Learned trial Court also passed a decree for partition of the suit property. Aggrieved, the defendant preferred the appeal which also stood dismissed. Hence the present second appeal. 8. I have heard and considered the submission made by the learned counsel for the appellant Mr. Sattar and Mr. DP Chaliha, learned counsel for the respondent. 9. The learned counsel for the appellant contended that the plaintiff filed the suit for declaration of right title and interest and confirmation of possession over the suit property described in Schedule Ka, Kha and Ga of the plaint, though, admittedly the suit proprety was joint property. The learned First Appellate Court besides passing the decree declaring excusive right title and interest and confirmation of possession of the plaintiffs also passed a decree for partition of the suit land described in Schedule Ka & Kha, though, the plaintiffs never made any prayer for partition of the suit land described in Schedule Ka & Kha and thereby fell in grave error of law and facts, submits Mr. Sattar. Contention of Mr. Chaliha is that the plaintiff purchased the suit property by registered sale deed and the title of the plaintiff''s vendor was never disputed and therefore there was no wrong in declaring title of the plaintiff. 10. Evidently as per the pleadings total land measuring 1 bigha covered by Dag No.1962 and periodic patta No.88 as well as Dag No.1966 and PP No.715 originally belonged to six persons who were joint pattadars and the plaintiff claimed to have purchased the respective share of some of the pattadars and their legal heirs. As per the pleadings, the plaintiffs claimed to have purchased 1 127/144 share of land out of the total land of 1 bigha and 127/144 share in the house standing on Dag No.1912. Apparently in the schedule of the plaint the plaintiff has not even given the specific boundary of the suit land over which the plaintiff has claimed exclusive title. The admitted position as appeared from the pleadings of the plaintiff themselves was that the total land measuring 1 bigha covered by Periodic Patta No.175 and Dag No.88 and Patta No.715 and Dag No.1966 were owned by six persons which was evidently never partitioned. As per the pleadings of the plaintiff, they have purchased the individual share of the legal heirs of Mirajul and some other co-sharers. As per the pleadings of the plaintiff, they have purchased the individual share of the legal heirs of Mirajul and some other co-sharers. Thus admittedly the plaintiff did not purchase the entire property of 1 bigha of the land. As per pleaded case of the plaintiffs, they purchased only 127/144 share in the house on dag No. 1992 and the land measuring 1 127/144 katha, from two of the co-sharer. 11. Learned First Appellate Court held that since the co-sharer of a unpartitioned property could sale the land to the extent of their share, the sale deed in favour of the plaintiff could not be faulted. There is no quarrel with regard to the legal proposition laid down in Section 44 of the Transfer of Property Act that a co-sharerr is competent to sale the un-partitioned property to the extent of his share and the transferee of the cosharer acquires joint title along with the other co-sharers. Section 44 of the Transfer of Property Act also provides that a stranger cannot seek joint possession of a residential house along with co-sharer and only relief of the stranger, who purchased the share of a co-sharer in joint house, is to seek partition. Admittedly the plaintiff purchased 127/144 share of the house and land measuring 1 katha out of 1 bigha by two sale deeds. Admittedly the plaintiff did not purchase the land by specific boundary and as per the pleadings, the plaintiff purchased the respective undivided share in the joint property from some of the co-sharer. This being the position, unless a partition is affected as per law, the Court cannot confirm the separate possession of any portion of the joint property nor can the court declare exclusive title in favour of any of the co-sharer or the person deriving title from the co-sharer by right of purchase or otherwise. 12. In the instant case, evidently the plaintiff did not describe the land purchased by him specifically with boundaries. The boundary given in the suit land was of the total land measuring one bigha. This being the position, without partition amongst the co-sharers, the learned Appellate Court could not have passed a decree of confirmation of possession or exclusive title of the plaintiffs when admittedly there was no partition. The boundary given in the suit land was of the total land measuring one bigha. This being the position, without partition amongst the co-sharers, the learned Appellate Court could not have passed a decree of confirmation of possession or exclusive title of the plaintiffs when admittedly there was no partition. Even in suit for partition, the Civil Court can only declare the extent of share of the respective parties and the partition is to be affected by the revenue or other appropriate authorities in terms of section 54 read with Order 20 Rule 18 CPC. In a partition suit Court is required to pass a preliminary decree declaring the share of each of the cosharer and after the partition is effected by allotment of share by the revenue of other appropriate authorities as per preliminary decree, final decree is required to be passed. 13. In the present case though, the suit was not filed for partition, learned court directed for partition of a portion of the property described in schedule Ka and Kha, without even declaring the extent of share of each co-sharer in the joint property. It is also not clear from the decree whether it was final decree or preliminary decree. Learned Appellate Court without appreciating the matter, that admittedly there was no partition, nor share of the plaintiff was allotted, upheld the decree of the learned trial court, whereby learned trial Court declared the exclusive title and possession of the plaintiff over the suit land, which was admittedly a joint property and also passed a decree for confirmation of possession which was beyond the jurisdiction of both the Courts below in absence of partition being affected. Interestingly decree of partition was also passed in respect of a portion of land, without there being any pleadings of the party, which is also apparently beyond the jurisdiction of the court for the simple reason, that court cannot pass a decree beyond the pleading. 14. In view of the above position, learned counsel for both the sides agreed that the matter be remanded back to the learned Appellate Court for deciding the matter afresh. 14. In view of the above position, learned counsel for both the sides agreed that the matter be remanded back to the learned Appellate Court for deciding the matter afresh. When from the pleadings of the parties and the materials and evidences brought on record, it was admitted position that there was no partition, learned trial court ought not to have passed a decree for exclusive title and confirmation of possession, without partition nor the court could pass a decree for partition without the pleading. 15. In view of what has been stated herein before, the judgment and decree passed by the learned First Appellate Court is set-aside. Let the matter be remanded back to the learned first appellate Court for fresh disposal in the light of the observation made herein before. 16. Send down the LCR along with a copy of this judgment.