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2025 DIGILAW 1090 (GAU)

Mina Saikia v. Tripti Saikia

2025-06-23

DEVASHIS BARUAH

body2025
JUDGMENT : DEVASHIS BARUAH, J. Heard Mr. Sheeladitya, the learned counsel appearing on behalf of the appellants and Mr. N. Choudhury, the learned counsel who appears on behalf of the respondent. 2. The instant Appeal has been filed challenging the judgment and decree dated 09.10.2013 passed by the learned Court of the Civil Judge, Nagaon (hereinafter referred to as ‘the learned First Appellate Court’) thereby interfering with the judgment and decree of the learned Court of the Munsiff No.1, Nagaon (hereinafter referred to as ‘the learned Trial Court’) dated 23.03.2012 passed in Title Suit No.69/2005 whereby the suit filed by the plaintiff was decreed. 3. It is seen from the records that the learned Coordinate Bench of this Court vide the order dated 14.02.2014 admitted the instant Appeal by formulating two substantial questions of law which reads as under:- I) Whether the learned lower appellate Court erred in law to declare the title of the plaintiff on the basis of admitted exhibited documents? II) Whether the learned lower appellate Court erred in law in reversing the findings of the trial Court without considering the reasons basing on which the trial Court’s decree was passed? 4. The question arises as to whether the two substantial questions of law are involved in the instant Appeal. This Court in this regard had duly heard Mr. Sheeladitya, the learned counsel appearing on behalf of the appellants as well as Mr. N. Choudhury, the learned counsel appearing on behalf of the respondent. 5. For ascertaining as to whether the two substantial questions of law so formulated are involved in the instant Appeal, this Court finds it relevant to take note of the brief facts which led to the fling of the instant Appeal. 6. For the sake of convenience, the parties herein are referred to in the same status as they were before the learned Trial Court. 7. From the admitted facts amongst the parties it is apparent that Kon Koch was the owner of a plot of land admeasuring 32 bighas 2 kathas 8 / lechas in Patta No.88 covered by Dag 3 Nos.304, 305 & 308. The said Kon Koch expired in the year 1962 leaving behind his wife Renu Saikia, two sons, namely, Rana Saikia and Tilak Saiki and two daughters, namely, Rina Saikia and the defendant Mina Saikia. The said Kon Koch expired in the year 1962 leaving behind his wife Renu Saikia, two sons, namely, Rana Saikia and Tilak Saiki and two daughters, namely, Rina Saikia and the defendant Mina Saikia. The admitted facts further would show that Rina Saikia and Rana Saikia expired immediately after the death of Kon Koch leaving behind no heirs. Tilak Saikia married the plaintiff No.1 in the year 1981 and out of their wedlock, the plaintiff No.2 was born. Thereupon, Tilak Saikia expired in the year 1985. 8. From the above facts, it is therefore clear that the land which Late Kon Koch inherited devolved upon his wife Late Renu Saikia, his son, Late Tilak Saikia and his daughter, the defendant No.1. After the death of Tilak Saikia, his share devolved upon the plaintiff No.1 and plaintiff No.2. It is further relevant to take note of that the mother-in-law of the plaintiff No.1 expired in the year 1999, and therefore, by virtue of Section 15 of the Hindu Succession Act, 1956, her right in respect to her share devolved upon the defendant No.1 in one part and the plaintiff Nos.1 & 2 in the other. Accordingly, the plaintiff No.1 being deprived of her rights in respect to the suit property as described in the Schedule to the plaint had filed a suit being Title Suit No.69/2005 seeking declaration of her right, title and interest in respect to the suit land more specifically described in Schedule-A to the plaint; for a preliminary degree for partition; a decree for delivery of khas possession of the suit land along with the Assam Type house standing thereon by ejecting the defendants with their tenants and put the plaintiffs into possession; a precept be issued to the Revenue Department for partition of the plaintiff’s share over the suit land and for permanent injunction. 9. The defendant Nos.1 & 2 who are the daughter of Late Kon Koch and her husband jointly filed a written statement claiming right over the entire suit land on the ground that Late Tilak Saikia did not have cordial relationship with the mother, left his parental house about 35 years back and settled at Amolapatty, Nagaon and his mother Late Renu Saikia who worked in the Health Department purchased a plot of land in Amolapatty and constructed a house and gave the said property to Tilak Saikia and their mother Renu Saikia. During her lifetime, Late Renu Saikia as per the defendants made it clear that Tilak Saikia would have no claim over the suit Patta land and the RCC building standing on the suit land constructed by her and her husband as well as the Assam Type house constructed by her. It was therefore averred that the plaintiffs have no claim over the land in the suit patta. It was further pleaded that Renu Saikia gifted 2 kathas of land from the suit Dag No.308, P.P. No.88 with the standing houses by a registered Gift Deed No.4323/91 dated 22.11.1991. 10. On the basis of the pleadings, the learned Trial Court framed as many as seven issues. The issues so framed being relevant are reproduced herein below:- 1. Whether there is any cause of action for the suit? 2. Whether the suit is hit by principles of waiver, estoppel and acquiescence? 3. Whether the suit is barred by Limitation? 4. Whether the suit is hit by non-joinder of necessary parties? 5. Whether the plaintiffs have any right to claim any share in the suit land? 6. Whether the plaintiffs are entitled to a decree as prayed for? 7. To what relief/reliefs parties are entitled under law, equity and justice? 11. On behalf of the plaintiffs, three witnesses were examined and eight documents were exhibited. On behalf of the defendants, only one witness was examined but no document was exhibited. The learned Trial Court decided the Issue Nos.1 to 4 in favour of the plaintiffs, but decided the Nos.5 & 6 against the plaintiffs, and accordingly, dismissed the suit. 12. It is very pertinent to take note of the observations made by the learned Trial Court while deciding the Issue No.5 whereby it was held that the plaintiffs could not prove right to claim any share in the suit land. The reasons so assigned therein were that as the defenders were in possession over the suit land, the plaintiff No.1 had no right over to claim any share in the said suit land. 13. Being aggrieved, the plaintiffs preferred an Appeal which was registered and numbered as Title Appeal No.15/2012. The reasons so assigned therein were that as the defenders were in possession over the suit land, the plaintiff No.1 had no right over to claim any share in the said suit land. 13. Being aggrieved, the plaintiffs preferred an Appeal which was registered and numbered as Title Appeal No.15/2012. The learned First Appellate Court after taking into account the grounds of objection, the pleaded cases of the parties, the submissions so made by the parties and after framing the Points for Determination, interfered with the judgment and decree passed by the learned Trial Court and held that the plaintiffs were entitled for a share in the suit Dag and Patta of 1 bigha 12 katha 14.893 lechas out of total 3 bihgas 2 kathas 8 / lechas 3 covered by Dag Nos.304, 305 & 308 of PP No.88. Accordingly, the learned First Appellate Court decreed the suit in favour of the plaintiffs and a precept was directed to be issued by the learned Trial Court for partition of the suit land and possession of the plaintiffs’ share over the land would be delivered after partition and separate Patta. Being aggrieved, the present Appeal has been preferred. 14. In the backdrop of the above, let this Court now consider the two substantial questions of law which have been formulated as to whether they are involved in the instant Appeal. The first substantial question of law pertains to as to whether the learned First Appellate Court erred in law to declare the title of the plaintiff on the basis of admitted exhibited documents. 15. This Court has perused the judgment passed by the learned First Appellate Court, and more particularly, the discussion on the basis of the evidence so adduced. From a perusal of the said, it appears to this Court that there is no perversity on the findings of facts so arrived at by the learned First Appellate Court. Considering that there is no perversity, the first substantial question of law so formulated is not involved in the instant Appeal. Further to that, the learned counsel for the appellants could not show what admitted exhibited documents on the basis of which the plaintiffs were not entitled to declaration of their share over the suit land. 16. Considering that there is no perversity, the first substantial question of law so formulated is not involved in the instant Appeal. Further to that, the learned counsel for the appellants could not show what admitted exhibited documents on the basis of which the plaintiffs were not entitled to declaration of their share over the suit land. 16. The second substantial question of law pertains to as to whether the learned First Appellate Court erred in law in reversing the findings of the learned Trial Court without considering the reasons basing on which the Trial Court’s decree was passed. In the opinion of this Court, with due respect, the substantial question of law cannot under any circumstances be said to be a substantial question of law which arises or involved in the present second Appeal. 17. Be that as it may, this Court has duly perused the discussion so made by the learned Trial Court whereby the plaintiffs’ rights over the suit land have been discarded merely on the basis that the defendants were in possession of the suit land. It is a well settled principle of law that the possession of a co-owner is always regarded as a possession of all the co-owners. Under such circumstances, the reasons so assigned by the learned Trial Court while deciding the Issue No.5 was completely erroneous. On the other hand, the judgment so passed by the learned First Appellate Court duly discusses the evidence on record and has arrived at the finding of facts which under no circumstances can be said to be perverse. 18. Considering the above, this Court is of the opinion that the two substantial questions of law so formulated are not involved in the instant Appeal. 19. This Court further finds it relevant to observe that there is no further substantial question of law which arises in the instant Appeal. 20. Accordingly, the Appeal is devoid of any merits for which the same stands dismissed with costs quantified at Rs.11,000/- for the present proceedings and further the appellants shall be entitled to costs throughout the proceedings. 21. Return the LCR.