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2022 DIGILAW 161 (TRI)

Narayan Choudhury v. Sanjit Choudhury

2022-03-28

T.AMARNATH GOUD

body2022
JUDGMENT 1. This is an appeal filed challenging the appellate decree in Title Appeal No.45 of 2015 passed by the learned Additional District Judge (Court No.2), West Tripura, Agartala on 27.07.2016 2. The facts of the case, in brief, are that the respondents herein as plaintiffs filed the suit for partition of the property described in the schedule of the plaint. It is the undisputed fact that the suit land was jointly purchased by Nil Mohan Choudhury and Ranga Mohan Choudhury, both were sons of Hara Sundar Choudhury comprising 50 % share each recorded in Khatian No.671, under Mouja-Ghaniamara, under Bishalgarh Tahashil Kachari. Out of the two original owners, Ranga Mohan Choudhury died on 15.05.1991 leaving the above-named plaintiff-respondents. Subsequently, Nil Mohan Choudhary also died leaving behind the defendant-appellants as his legal heirs. In the meantime, defendant-appellant No.3 sold 40 satak of land by a sale deed, and 38 satak of land was sold orally to the plaintiff-respondent No.1. Thereafter, the plaintiff-respondents herein several times requested the defendant-appellants for partition of joint property. In that regard, a village-level meeting was held for resolving the dispute. Application was also filed before the O/C Bishalgarh P.S. Later on, a joint meeting was held on 11.07.2010 but the defendant-appellants denied the assurance of partition given by them in the meeting. 3. Aggrieved thereby, the plaintiff-respondents in Title Suit (P) 132 of 2010 prayed for a preliminary decree of partition of the suit property according to the entitlement keeping in mind the sold out land by the defendant-appellants herein. The plaintiff-respondents herein further sought for appointment of Survey Commission for affecting the partition in terms of the preliminary decree. They also sought for a decree of declaration of the sale deeds executed by defendant-appellants No.1 and 2 in favour of the defendant-appellant No.3 of land measuring 40 to 38 satak. 4. Defendant-appellants No.1 and 2 filed their written statement jointly denying the entire allegation made by the plaintiff-respondents herein against them. Defendant-Appellant No.3, Smti Niyati Laskar contested the suit by filing a written statement that she purchase the land by a registered sale deed vide No.1-168 dated 08.01.1985 for land measuring 78 satak from Nil Mohan Choudhury, Ranga Mohan Choudhury, and Kalpada Dey with consideration money of Rs.5,000/- and finally published khatain vide No.634 was also published in her name and so she was not a necessary party in the suit. She further stated that after purchase, she is producing all seasonal crops on the land in question and prayed before the Court to strike out her name from the roll of defendants after dismissal. 5. Remaining respondents in that Title suit did not file any written statement. 6. Based on the pleadings of both the parties to the suit, the learned Court below also framed the following issues:- '(1) Is the suit maintainable in its present form and nature? (2) Were the suit properties originally belonged to Nil Mohan Choudhury and Ranga Mohan Choudhury, the predecessors in interest of the plaintiff and the defendants of this suit? (3) Are the sale deeds executed by the defendants No.1 and 2 in favour of the defendant No.3 in respect of land measuring 40 and 28 sataks were illegal and laible to be declared as void? (4) Are the plaintiff entitled to get decree as prayed for? (5) What other relief/reliefs the parties to the suit are entitled to get?' 7. The plaintiffs' side has examined two witnesses namely, Sri Sanjit Choudhury and Sri Madhusudan Barman, and some documents were submitted to substantiate the claim of the appellants. 8. On the other hand, the defendants' side examined four witnesses and also proved some documents. 9. Based on the pleadings and evidence on record produced by both the parties, learned Civil Judge, Senior Division (Court No.2) West Tripura, Agartala passed the impugned judgment and decree dated 18.08.2015 in TS(P) 132 of 2010 dismissing the suit for a basic defect of non-joinder of party and also for not bring all the joint properties in one hotchpot. 10. Being aggrieved and dissatisfied, with the impugned judgment and decree passed by the learned Trial Court, plaintiffs therein preferred T.A No.45 of 2015 in the Court of learned Addl. District Judge(Court No.2) West Tripura, Agartala on the ground that the learned Trial Court below failed to appreciate the pleadings and evidence on record properly and did not consider the evidence of the plaintiffs therein in proper perspective and thereby arrived at a wrong finding. 11. On the other hand, the counsel appearing for defendant No.1 therein contended that the learned Trial Court has rightly considered the pleadings and evidence on record and passed the judgment and decree rightly which warrant no interference. 12. 11. On the other hand, the counsel appearing for defendant No.1 therein contended that the learned Trial Court has rightly considered the pleadings and evidence on record and passed the judgment and decree rightly which warrant no interference. 12. The learned First Appellate Court formed the following points for proper adjudication of that appeal:- '(A) Whether the trial Court was justified in dismissing the prayer of the appellant; (B) Whether the appeal has any merit?' 13. On the appeal, the learned appellate Court found the finding on non-joinder baseless as it is on record that by an amendment, all the left out legal representatives of the owner were made parties. Thus the defects were removed. Concerning the allegation of all the properties not brought in one hotchpot and thus hitting the provision of Order II Rule 2 C.P.C. was also explained to have no legal foundation as it does not bar the suit filed it only debars the plaintiffs from filing fresh suit on properties left out. 14. The lower Appellate Court allowed the appeal and decreed the suit in the following terms:- '(i) The plaintiffs and defendants No.4 to 6 are entitled to get one sixth share from the 50% of the suit property and the defendants No.1 to 3 and 7 to 13 are entitled to get remaining 50% share of the suit property equally. (ii) The plaintiff and defendants are at liberty to make partition of their share on the suit properly mention in the schedule of the plaint by mates and bounds in terms of preliminary decree within a period of three months. In the event of failure to make partition of the suit property, the parties to this suit are liberty to approach in the Trial Court for making partition of the suit property by mates and bound by appointing Survey Commissioner; (iii) The parties shall bear the cost of the suit of their own.' 15. Being aggrieved by the judgment and orders of the learned Appellate Court, the appellants herein preferred this appeal and prayed for the following reliefs:- 'i) Call for the records; and ii) after hearing parties, and being satisfied set aside the appellate decee, dismissing the suit of the respondents here. iii) pass order as to cost and any other orders as may be considered proper for ends of justice.' 16. iii) pass order as to cost and any other orders as may be considered proper for ends of justice.' 16. While admitting the appeal, the learned Court framed the following substantial question of law:- 'Whether the judgment and decree passed by the trial court and affirmed by the appellate court is vitiated for non-appreciation of the pleadings and evidence on record in respect of partition of the suit land by way of family arrangement made prior to 1981?' 17. Heard Mrs. P. Dhar, learned counsel appearing for the appellants as well as Mr. P. Datta, learned counsel, and Mr. J. Majumder, learned counsel appearing for the respondents. 18. The main point argued by Mrs. P. Dhar, learned counsel appearing for the appellants is on the point that they are defendants in the suit before the Trial Court and the suit has been dismissed on the ground for:- 1) Non-joinder of proper party; 2) Non-inclusion of all properties in the partition suit. 19. In so far as the substantial question of law is concerned, the learned counsel appearing for the appellants again reiterated the contentions in support of the Trial Court order and prayed to allow the instant RSA and set aside the impugned order passed in the appeal by the lower appellate court. 20. To the said contention, Mr. P. Datta, learned counsel appearing for the plaintiff-respondents herein submitted that the Trial Court having ordered the implead application and bringing all parties on record and after due satisfaction with regard to the inclusion of the properties with metes and bounds, the Court below has erred in dealing with the same and passed an order erroneously. Whereas in the appeal, the appellate Court has appreciated with regard to the joining of all parties as well as dealt with their respective shares and also the properties which are the subject matter of the partition suit. According, respective shares have been fixed and a decree has been passed for allowing the appeal. 21. After hearing both the parties and perusing the evidence on record, this Court finds no merit in the instant second appeal. Accordingly, the same is dismissed confirming the order passed by the lower appellate court dated 27.07.2016 and as a sequel, miscellaneous applications pending, if any, shall stand closed. Send down the LCRs.