High Court
Case Details
RSA 169/2009 BEFOR THE HON’BLE MR. JUSTICE C.R. SARMA Heard Mr. B.K. Purkayastha, learned Counsel, appearing for the appellant. None h as appeared for the respondents. This appeal is directed against the judgment a nd decree, dated 28.08.2009, passed by the learned Civil Judge, Morigaon, in Tit le Appeal No. 11/2009, whereby the first appellate Court, while upholding the ju dgment and decree, dated 30.01.2009, passed by the learned Munsiff No. 1, Moriga on, in Title Suit No. 30/2008, dismissed the first appeal, preferred by the appe llant. (2) Aggrieved by the judgment and decree, passed by the learned Civil Judge,
Legal Reasoning
the principal defendant, as appellant, has come up with this second appeal. (3) The principal respondents, as plaintiffs, instituted the said title suit against the principal defendant, i.e. the present appellant, seeking a decree f or declaration of right, title, interest, confirmation of possession and deliver y of khas possession in respect of the suit land. (4) According to the plaintiffs, a plot of land measuring 1B-2K-10L out of 3 B-0K-2L, as described in the Schedule ’A’ to the plaint was purchased by the pre decessor-in-interest of the plaintiffs and the proforma defendant No. 5 (here re spondent No. 7) from its lawful owner. After the death of their predecessor-in-interest, namely, late Nilakanta Hira, t he plaintiffs and the proforma defendant No. 5 (respondent No. 7) legal heirs of late Nilakanta Hira were enjoying the said land, after obtaining mutation by wa y of inheritance. On 21.05.2008, the principal defendant, along with some other persons, entered and forcefully occupied 2 Kathas of land (i.e. the ’C’ Schedul e land) out of the ’A-Schedule’ land. Aggrieved by the said action, on the part of the principal defendant, the plaintiffs instituted the title suit seeking a decree for declaration of right, title and interest in respect of ’A-Schedule’ l and, confirmation of possession in respect of ’B-Schedule’ land (i.e. the land l eft with the plaintiffs) and recovery of khas possession in respect of ’C-Schedu le’ land. Plaintiffs raised no claim against the proforma defendants. (5) Notices being issued, the principal defendant and proforma defendant No. 5 appeared and prayed for time to file written statement. None of the other pro forma defendants appeared, in response to the notices, received by them. However , the principal defendant and the proforma defendant No. 5 also failed to contes t the petitioners’ claim by filing their written statement and accordingly, the suit proceeded exparte. (6) The plaintiff No. 1, in support of their claim, submitted her evidence b y filing an affidavit. Despite giving opportunity, the defendants aforesaid fail ed to cross-examine PW-1 and adduce evidence. In fact, they did not contest the plaintiffs’ claim. Considering the pleadings and the evidence, given by the plai ntiff No. 1, the learned Munsiff No. 1, Morigaon decreed the suit declaring righ t, title and interest in favour of the plaintiffs and directed the principal def endant to deliver vacant possession of ’C-Schedule’ land. (7) Aggrieved by the judgment and decree, passed by the learned Munsiff, Mo rigaon, the principal defendant, as appellant, preferred a first appeal before t he learned Civil Judge, Morigaon. The grounds, taken by the appellant, before th e learned Civil Judge, were that the land purchased by the principal defendant w as included, by the plaintiffs, in the suit land and that the learned trial Judg e committed error by awarding the decree in respect of the land, purchased by th e principal defendant. Another ground taken by the appellant was that, though he had entrusted his engaged Counsel with all the relevant documents to contest an d file written statement in the trial Court, the engaged Counsel failed to appea r and submit written statement, on behalf of the defendant, resulting the expart e decree. Therefore, it has been contended that the appellant should not suffer for the fault and negligence, on the part of the engaged Counsel. (8) The appeal was contested by the principal respondents, i.e. plaintiffs. The learned Civil Judge, Morigaon, by the impugned judgment and decree, dismiss ed the appeal for want of merit and upheld the judgment and decree, passed by th e learned Munsiff, Morigaon. (9) ipal defendant, as appellant has come with this second appeal. Dissatisfied with the judgment and decree of the Courts below, the princ (10) ons of law were framed: At the time of admission of the appeal, the following substantial questi Whether the learned courts below were justified in declaring the right, (cid:28) 1. title and interest of the plaintiffs only over the whole suit land when admitted ly the plaintiffs were the joint owners and possessor of the suit land along wit h the proforma defendant No. 5 Sri Joyram Hira? Whether the learned First Appellate Court below was justified in dismiss 2. ing the appeal without deciding the grounds raised before the Court particularly the ground that the suit land was a purchased land of the appellant? (cid:29) Mr. B.K. Purkayastha, learned Counsel, appearing for the appellant, has (11) submitted that the appellant had purchased the ’C-Schedule’ land, from its lawfu l owner and that he has been possessing the same since the date of purchase. The learned Counsel, for the appellant, further submitted that the proforma defenda nt No. 5, i.e. the respondent No. 7, being one of the heirs of the predecessor-i n-interest, was a co-owner and the Courts below committed error by granting the decree in favour of the plaintiffs, without determining the share of the said c o-owner i.e. the proforma defendant No. 5. In view of the above, it is submitted that the judgment and decree, passed by the Courts below, can not be maintained , inasmuch as the plaintiffs were not entitled to get the entire suit land. (12) Having heard the learned Counsel, appearing for the appellant and consid ering the materials, on-record, more particularly, the pleadings of the plaintif fs and the evidence, given by PW-1, i.e. Plaintiff No. 1, it is found that the p laintiffs prayed for a decree declaring right, title, interest, confirmation of possession and recovery of khas possession, as heirs of Nilakanta Hira, in respe ct of the suit land, as described in the Schedules to the plaint. Admittedly, Nilakanta Hira, predecessor-in-interest of the plaintiffs and profor ma defendant No. 5, purchased the entire ’A-Schedule’ land i.e. 1B-2K-10L from i ts lawful owner. The plaintiffs, in their pleadings, clearly stated that, after the death of Nilakanta Hira, the plaintiffs and proforma defendant No. 5 inherit ed the property and were possessing the suit land by mutating their names, in pl ace of Nilakanta Hira. The plaintiff No. 1 also, in her evidence, given as PW-1, stated that the suit land was inherited by the plaintiffs and proforma defendan t No. 5 and that their names were entered in the jamabandi. She has exhibited th e certified copy of the Jamabandi and the land revenue paying receipt as ’Exhibi t Nos. 1 & 2’ respectively. (13) From the said jamabandi, it appears that the name of Nilakanta Hira was mutated in respect of 1B-2K-10L of land covered by PP No. 680 and subsequently, after the death of Nilakanta Hira, the names of plaintiffs and proforma defendan t No. 5 were mutated in place of Nilakanta Hira. From the above, it stood estab lished that, after the death of Nilakanta Hira, the plaintiffs and the defendant No. 5, being heirs of Nilakanta Hira, became co-owners in respect of the suit l and, i.e. land owned by Nilakanta Hira. (14) Admittedly, Nilakanta Hira died leaving the plaintiff No. 1 as his widow and the plaintiffs No. 2 & 3 and also the proforma defendant No. 5 as his sons. The said widow of Nilakanta Hira and two of his three sons instituted the suit, as plaintiffs. They, admitting the proforma defendant No. 5 as one of the co-sh arers, added him as proforma defendant, instead of adding him as one of the plai ntiffs. From record, it appears that the said proforma defendant No. 5, despite receiving notice, did not contest the claim of the plaintiffs. The plaintiffs al so have not sought any relief against proforma defendant No. 5. It is the pleade d case of the plaintiffs that the principal defendant has been occupying the ’C- Schedule’ land as trespasser. Therefore, they have sought relief against the sai d trespasser. Now the question is whether a co-sharer of a joint property can bring action aga inst a trespasser, without partition. (15) In the case of Smti Kanta Goel -Vs.- B.P. Pathak & others, reported in A IR 1977 SC 1599, the question, whether a co-heir of deceased landlord can sue fo r eviction in absence of the other co-heirs came up for decision before Hon’ble Supreme Court. In deciding the question in affirmative, the Supreme Court observ ed that the co-heirs constituted the body of landlords and , by consent, implici t or otherwise , of the plurality of landlords, one of them representing them a ll was collecting rent, and as such he was entitled to institute the suit. The Supreme Court also observed that a co-owner owns every part of the composite pro perty along with others and it can not be said that he is only a part owner or fractional owner of the property. (16) In the case of A. Viswanatha Pillai -Vs.- Special Tahsildar, reported in AIR 1991 SC 1966, the Supreme Court has observed that one of the co-owners can file a suit and recover property against stranger and the decree would ensure to all the co-owners and that no co-owner has a definite right, title and interest in any particular item or a portion thereof. It has also been observed, in the said case, that a co-owner is as much an owner of the entire property as a sole owner of the property and that it is not correct to show that a co-owner’s prope rty was not his own. The Supreme Court has further observed that a co-owner owns several parts of the composite property along with others and it can not be sai d that he is only a part owner or fractional owner in the property. As observed by the Supreme Court, the said position will undergo a change only when partiti on takes place and division is affected by metes and bounds. (17)
Legal Reasoning
In the case of Pal Singh -Vs.- Sunder Singh (dead) by Lrs. , reported in AIR 1989 SC 758, the Supreme Court referred to the ratio held in the case of Ka nta Goel (supra) where in the Supreme court followed the decision in Sri Ram Pas richa -Vs.- Jaganath (AIR 1976 SC 2335) and held that when other co-owners did n ot object to the eviction, one of the co-owners could maintain an action for evi ction even in the absence of other co-owner. In the case of Pal Singh (supra), the Supreme Court observed that an eviction suit, even in the absence of other c o-owner would be maintainable. (18) Applying the said ration laid down by the Apex Court it is found that a suit by co-owner is maintainable against a trespasser, without determining the s hare of the other co-owner and also in the absence of the other co-owner(s), un less such other co-owner dispute the claim of the plaintiff (co-owner). The reli ef granted in favour of the plaintiff, i.e. one of the co-owners, will not adver sely affect the right and interest of the other co-owner. (19) Until a joint property is partitioned, all the co-owners have right, tit le and interest in respect of the entire property and anyone of the co-sharer ca n bring action against trespasser for the benefit of all the co-sharers, because all the co-owners have right, title and interest in each and every part of the joint property. Therefore, decree passed in favour of one or some of the co-owne rs, against the trespasser, does not take away the right of the other co-sharer , even if such co-sharers is not added as party, or impleaded as proforma defend ant. (20) Admittedly, in the present case, the principal respondents (plaintiff in the suit), instituted the suit as co-owner against the principal defendant clai ming him to be a trespasser. No relief has been sought against the other co-owne r, who has been added as proforma defendant no. 5. Of course, the plaintiffs fai led to add the remaining co-owners as party to the suit. However, the plaintiff has not denied the right, title and interest of the other co-owners. None of th e co-owners, more particularly, proforma defendant No. 5, raised any objection t o the reliefs claimed by the plaintiffs. Therefore, reliefs being claimed agains t a trespasser, in respect of a joint property, the decree granting the reliefs would certainly be beneficial to all the co-owners, because their right in respe ct of the joint property will stand protected, by such decree. (21) Therefore, the benefits arising out of the decree, sought by the plainti ffs, as legal heirs of Nilakanta Hira, will automatically accrue to the proforma defendant No. 5 also. In view of the above cited decisions and the ratio laid d own in the case of Pal Singh (supra) it can be held that the suit instituted by the plaintiffs, as co-owners, is maintainable. (22) The defendant (principal) could not produce any evidence to establish hi s right and title over the suit property. The plaintiffs, by adducing oral evide nce (PW-1) as well as documentary evidence (Ext. No. 1) have been able to establ ish their title over the suit land. Though the appellant contended before the First Appellate Court that he had pur chased 1B-2K-10L of land and that the plaintiff had included land, purchased by the defendant, in the schedule of the suit land, there is no material, on-recor d, in support of the said claim. Therefore, the plaintiffs’ plea that the suit l and was their ancestral property and that they along with the proforma defendant No. 5 were legal heirs of its owner remained uncontroverted. That apart, the pr incipal defendant, being a trespasser has no right to say that the suit, brought by some of the co-owners, is bad only on ground that one of the co-owner has be en added as proforma defendant instead of adding him as one of the plaintiffs. Having answered the substantial questions of law in the above manner, I (23) find no merit in this appeal requiring interference with the concurrent findings of the Courts below. (24) In view of the above discussion, I have no hesitation in holding that th e Courts below committed no error by declaring right, title and interest in favo ur of the plaintiffs, over the suit land and thereby directing the principal def endant to vacate the suit land. The decree passed in favour of the plaintiffs, b eing a decree made in favour of the co-owners, does not take away the right of t he other co-owner, i.e. defendant No. 5. (25)
Decision
The appeal is dismissed without cost. Return the LCR.