High Court · 2012

was filed by the respondents as plaintiffs.

3. land as per schedule given in the plaint, which is as under :- (i) 1 Bigha 6 Kathas 13 Chataks out of 2 Bighas 13 Kathas 10 Chataks covered The suit was for imperfect partition of the plaintiffs share of by Dag Nos. 568 and 703 of 2nd R.S. Patta No.138; (ii) hataks covered by Dag Nos.570 and 571 of 2nd R.S. Patta No.139; 3 Bighas 7 Kathas 10 Chataks and 10 Gondas out of 4 Bighas 14 Kathas 1 C (iii) 569 of 2nd R.S. Patta No.140; 11 Kathas 3 Chataks out of 1 Bigha 2 Kathas 6 Chataks covered by Dag No. Thus, total share of plaintiffs land measuring 5 Bighas 5 Kathas 10 Chataks and 10 Gondas covered by the aforesaid Dag Nos. and Patta Nos. of mouza- Kanchanpur Part-1, Pargana Saraspur in the then district of Cachar is the suit land.

4. Case projected by the plaintiffs was that the three pattas menti oned above were originally part of R.S. Patta No.76. During the 2nd survey for r e-settlement, seven pattas were carved out of the original R.S. Patta No.76. The said original R.S. Patta No.76 covered a total area of land measuring 16 Bighas 12 Kathas 11 Chataks. Initially, one Naior Mia was the owner of R.S. Patta No.7 6. On his death, his two sons, namely, Asad Ali and Masad Ali @ Masar Ali inheri ted the entire land. Said Asad Ali and Masad Ali by various registered sale deed s transferred and delivered possession of various parcels of land out of the lan d covered by R.S. Patta No.76 to various persons, including one Habib Ali Laskar , the predecessor-in-interest of the plaintiffs. By executing a registered sale deed dated 30-03-1933, said Asad Ali and Masad Ali sold a plot of land measuring 18 Bighas 4 Kathas 4 Chataks pertaining to Dag No.634 out of land covered by th e original R.S. Patta No.76 to Habib Ali Laskar. Similarly, Asad Ali and Masad A li also sold a plot of land out of land covered by aforesaid R.S. Patta No.76 to one Sonahar Ali Mazumdar, who in turn sold some land to Habib Ali Laskar. Subse quently, the two of them transferred various other plots of land in favour of Ha bib Ali Laskar besides other persons. Plaintiffs and others became owners of the land purchased by their predecessor-in-interest from Asad Ali and Masad Ali fro m out of the original 2nd R.S. Patta No.76, which were given new patta numbers s ubsequently.

5. Plaintiffs stated in the plaint that they had been enjoying poss ession of their interest in the three pattas involved in the suit without any pa rtition with their co-holders of the pattas. Plaintiffs requested the co-holders for partition but they did not show any interest in the matter. Thereafter, pla intiffs filed Perfect Partition Case Nos. 11, 12 and 13 of 1978-79 before the Co llector, Hailakandi. By orders dated 08-01-1979, the partition cases were dismis sed because the revenue paid by the plaintiffs per patta was less than Rs.5/-. F ollowing dismissal of the partition cases, the suit was filed.

6. The suit was contested by the defendants by filing written state ment. It was contended that none of the purchasers of land from Asad Ali and Mas ad Ali ever enjoyed possession of the purchased land, which included the predece ssor-in-interest of the plaintiffs Habib Ali Laskar. It was stated that the plai ntiffs could not take over possession of the land which they claimed were purcha sed by their predecessor-in-interest.

7. The suit was dismissed on contest by the learned trial Court. Ag grieved, the plaintiffs preferred appeal before the lower appellate Court, which was registered as Title Appeal No.10/1986. The learned lower appellate Court by the Judgment and Decree dated 14-05-1987 also dismissed the appeal.

8. The plaintiffs thereafter filed second appeal before this Court, which was registered as Second Appeal No.134/1987. By the Judgment and Order da ted 31-12-1995, this Court setaside the appellate judgment and remanded the case to the learned lower appellate Court for a fresh decision.

9. On remand, the learned lower appellate Court heard Title Appeal No.10/1986 afresh and by the Judgment and Decree dated 18-08-1999 allowed the ap peal on contest. The Judgment and Decree of the learned trial Court was setaside and decree drawn up for partition of the suit land as prayed for by the plainti ffs.

10. peal.

11. Being aggrieved, the defendants have filed the present second ap This Court by order dated 05-01-2000, admitted the appeal on the following substantial questions of law :- (cid:28) 1. Whether the learned Court of Appeal below committed manifest error of law i n passing the impugned Decree when Civil Court’s jurisdiction was barred to clai ms of persons to imperfect partition, except in cases in which ’Perfect partitio n’ could not be claimed from and has been refused by the Revenue Authority on th e ground that the result of such partition would be to form a separate estate li able for an annual amount of revenue less than 5/- (five) Rupees?

2. Whether there was any scope for partition of the properties as claimed by the plaintiffs in the suit, when plaintiffs and defendants who were Mohammedans and governed by Mohammedan Law, are holding their properties in severalty pursuant to the division of their properties between Asad Ali and Masad Ali, the predeces sor-in-interest of the plaintiffs and the defendants respectively? (cid:29)

12. Heard Mr. A.R. Banerjee learned Senior Counsel assisted by Ms. B . Choudhury, learned Counsel for the appellants as well as Mr. G.N.Sahewalla, le arned Senior Counsel assisted by Md. Aslam, learned Counsel for the respondents.

13. Learned Senior Counsel for the appellants referring to the provi sions of sections 96, 97 and 98 of the Assam Land and Revenue Regulation, 1886 ( 1886 Regulation) submits that filing of suit for imperfect partition was barred as application for partition is required to be presented to the concerned Deputy Commissioner, specifying the area of the estate, applicant’s interest therein a nd the names of other proprietors or land holders. He submits that there must be specific prayer for separate allotment but in the plaint, there is no such pray er. Therefore, there cannot be any partition as prayed for by the plaintiffs. In support of his submission, learned Counsel has referred to the decision of the Calcutta High Court in the case of Bhajahari and others -Vs- Abdul Karim Shaikh and others reported in AIR 1988 Calcutta 421. He further submits that maintainab ility of the suit is the core issue which goes to the root of the case and, ther efore, though this issue was not raised, argued or adjudicated upon in both the Courts below, the same should now be considered. In support of his submission, h e has relied upon a decision of the Hon’ble Supreme Court in the case of Hero Vi noth (Minor) -Vs- Seshammal reported in (2006) 5 SCC 545.

14. Learned Senior Counsel for the respondents on the other hand sub mits that no substantial question of law arises out of the judgment in appeal an d, therefore, the second appeal is not maintainable. Referring to exhibits- 21, 22 and 23, he submits that in view of dismissal of the partition cases by the Co llector, the suit was clearly maintainable. He, therefore, prays for dismissal o f the appeal.

15. The submissions made have been considered.

16. Partition of revenue paying estates may be either perfect or imp erfect. According to Section 96 of the 1886 Regulation, (cid:28)perfect partition (cid:29) mean s division of a revenue paying estate into two or more such estates, each separa tely liable for the revenue assessed thereon. (cid:28)Imperfect Partition (cid:29) has been def ined to mean division of a revenue paying estate into two or more portions joint ly liable for the revenue assessed on the entire estate. As per Section 98, ever y application for perfect partition shall be in writing and shall be presented t o the concerned Deputy Commissioner. Such application shall specify the area of the estate, the applicant’s interest therein and the names of the other propriet ors or land holders.

17. m Board of Revenue under section 147 of the 1886 Regulation. Appeal lies from an order of the Deputy Commissioner to the Assa

18. Section 154 of the 1886 Regulation specifies the matters which a re exempted from cognizance of Civil Court. In so far claims of persons to imper fect partition is concerned, except in cases in which a perfect partition could not be claimed and has been refused by the revenue authorities on the ground tha t the result of such partition would be to form a separate estate liable for an annual amount of revenue less than Rs.5/-, the jurisdiction of the Civil Court i s expressly barred.

19. Having noticed the above, let us now come to the facts of the pr esent case. Exhibits- 21, 22 and 23 are the certified copies of orders dated 08- 01-1979 of PP Case Nos.11, 12 and 13 of 1978-1979 filed by the plaintiffs before the Deputy Commissioner, Hailakandi, which were admitted as exhibits in the sui t on 27-05-1982 without objection. The plaintiffs had filed the above cases for partition of the su 20. it land before the Deputy Commissioner but those were dismissed on 08-01-1979 on the ground that the revenue of each land was less than Rs.5/-. Therefore, the b ar of filing civil suit in case of claims to imperfect partition under section 1 54 of the 1886 Regulation would not be applicable in the present case. The order s of the Deputy Commissioner were exhibited in the suit and produced as document ary evidence. Though the plaintiffs did not adduce oral evidence on the question of maintainability of the suit, the same in any case, stood obviated because of production of documentary evidence as noticed above.

21. nable. 22. n, which were also examined in detail by the learned lower appellate Court. Accordingly, this Court is of the view that the suit was maintai The learned trial Court had framed seven issues for consideratio

23. On the issue as to whether there was any cause of action for the suit, learned Court below held that the plaint disclosed accrual of cause of ac tion for the suit on 08-01-1979 when the claim of the plaintiffs for getting par tition of the suit land was rejected by the Deputy Commissioner, Hailakandi in P P Case Nos. 11, 12 and 13 of 1978-79.

24. pellate Court held as under :- (cid:28)10 & & & & & & &. I have perused the entire legal evidence on record and it appears to On the issue of maintainability and limitation, learned lower ap me there is no such cogent evidence before the Court to show that the defendant /respondent have acquired title by virtue of adverse possession. D.W.1 stated th at the father of the plaintiff No.1 tried to take possession of the suit land an d attempted to take possession of his purchased land about 30-32 years ago from the defendant Nos.43 and 45 but failed to take possession of his purchased land. But the defendant / respondent however did not examine the said defendant Nos.4 3 and 45 to prove the said fact. The defendant examined one Hillal Uddin Laskar the son of Kutub Ali who deposed that about 25 years ago Habib Ali (plaintiffs p redecessor) tried to take possession of the suit land but failed. From the recor d it appears that at the time of giving evidence the age of the said witness was 29 so at the time of alleged taking forceful possession of the land by Habib Al i his age was about 4 years, who was at that time quite a minor boy.

11. From the facts, circumstances and the evidence on record it appears that the respondent / defendant failed to prove the plea of adverse possession by adduci ng any cogent and convincing evidence. Accordingly I hold that the instant suit for the plaintiff / appellant is not barred by law of limitation and the suit is maintainable in the present form. In my view the learned Lower Court was wrong in holding that the suit is barred by the law of limitation and the suit is not maintainable in the present form. Accordingly both the issues have been decided in favour of the plaintiff. (cid:29)

25. On the issue of proper identification of the suit land and conse quential non-impleadment of necessary parties, the decision of the learned lower appellate Court is as under :- (cid:28)13 & & & & &. I have perused the entire legal evidence on record and the document so filed by the parties. It has already been decided in issue No.2 that for non in clusion of other pattas Patta No.138/139/140 to the suit of the plaintiff can no t be held not maintainable. As the plaintiffs have asked for a limited relief wi th respect to Patta No.138, 139 and 140 only when a larger relief is available h e however incurs the penalty in sub-rule (3) order 2 and he has debarred from se eking relief for the other pattas by instituting subsequent suits but the suit s o filed in the trial Court cannot be barred. It appears that the plaintiff given particular in the schedule of the plaint and during trial the PW 2 Md. Sajidul Haque Laskar deed writer. PW3 Abdul Mannan and PW 4 Sonahar Ali deed writer have also proved the execution of all sale deeds who were not at all cross examined by the defendant side. The land as described in the schedule of the plaint coupl ed with the land described in the schedule of the sale deeds clearly shows the s uit land covered by patta Nos. 138, 139, 140. Accordingly I hold that the learne d lower court has wrongly in holding that the plaintiffs have failed to traced o ut the suit land properly. (cid:29)

26. Regarding the issue as to the right, title and interest of the p laintiffs over the suit land in view of the plea of adverse possession taken by the defendants, learned lower appellate Court held as under :- (cid:28)14 & & & & &. In this suit the defendant have not challenged the execution of the sa le deed but their plea is that the predecessor of the plaintiff did not get the possession of his purchased land as such they acquired title by virtue of advers e possession. So it is for the defendant / respondent to prove that they have ac quired title by adverse possession. Therefore it was initially onus of the respo ndent / defendant to prove their possession for more than the statutory period. I have gone through the entire evidence adduced by the defendant witnesses and I found no evidence with regard to the possession of the defendant being exclusiv e upon and with a hostile enimous for more than the statutory period and I found that the defendant / respondent failed to prove how and when adverse possession commenced and what was the nature of adverse possession. So I constrained to ho ld that the learned lower Court was wrong by holding that the plaintiffs have no right, title and interest over the suit land. (cid:29)

27. In view of above, learned lower appellate Court held that the pl aintiffs were entitled to the reliefs as prayed for in the suit and, therefore, ordered drawing up of a preliminary decree for imperfect partition of the suit l and.

28. This Court is in agreement with the view expressed by the learne d lower appellate Court. Defendants having not challenged the sale of the suit l and, plea of adverse possession was not available to the defendants as co-sharer . As a matter of fact, plea of adverse possession was negatived by the learned C ourt below. This is a finding of fact arrived at by the learned lower appellate Court on due consideration of the materials on record. This Court finds no good ground to disturb such a finding of fact of the learned lower appellate Court.

29. The decision of the Calcutta High Court in the case of Bhajahari (supra) would not be applicable to the present case as the contextual facts of the present case are clearly distinguishable from the facts of Bhajahari. In so far the decision of the Hon’ble Supreme Court in the case of Hero Vinoth (supra) is concerned, there cannot be any dispute on the finding as to what is a subst To be (cid:28)substantial (cid:29) a question of law must be debatable, not previously antial question of law, which is quoted hereunder :- (cid:28)23. settled by law of the land or a binding precedent, and must have a material bear ing on the decision of the case, if answered either way, insofar as the rights o f the parties before it are concerned. To be a question of law (cid:28)involving in the case (cid:29) there must be first a foundation for it laid in the pleadings and the que stion should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and pr oper decision of the case. An entirely new point raised for the first time befor e the High Court is not a question involved in the case unless it goes to the ro of of the matter. It will, therefore, depend on the facts and circumstance of ea ch case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judici ous balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santo sh Hazari v. Purushottam Tiwari.)

30. However, as has already been noticed and discussed above, this C ourt is of the considered view that no substantial question of law arises for co nsideration in this appeal. Accordingly, the second appeal stands dismissed but without any order as to cost.