High Court · 2012

N. Choudhury, learned counsel appearing for the respondents. The appellant, who is the defendant No.1 in Title Suit No.53/2005, by th e present appeal has challenged the judgment and decree dated 21.09.2011 passed by the learned District Judge, Jorhat in Title Appeal No.6/2010, whereby and whe reunder the appeal preferred by the present respondents/plaintiffs was allowed. The respondents herein as plaintiffs instituted the aforesaid suit for d eclaration of their right, title and interest in respect of the land measuring 2 kathas 15‰ lechas covered by periodic patta No.215(new) 85(old) in Dag No.2903/ 4774 in Block No.2 of Jorhat town, more fully described in Schedule-B to the pla int and possession. In the alternative, prayer was made, to pass a preliminary d ecree in respect of the shares of the plaintiffs and all the defendants to Sched ule-A land, which includes the Schedule-B, contending inter alia that the land m easuring 2 bighas 1 katha 3 lechas belonged to Tankeswar Chaliha, which property was inherited by his wife and 4(four) brothers and 2(two) sisters, namely, Muku l Chaliha (defendant No.1), Mridul Chaliha (plaintiffs’ father), Chiranjit Chali ha (predecessor-in-interest of defendant Nos.5 to 7), Nakul Chaliha (predecessor -in-interest of defendant Nos.2 to 4), Labonya Hazarika (defendant No.8) and Lil awati Bhuyan (defendant No.9). According to the plaintiffs after the death of Mr idul Chaliha, they inherited the share of Mridul Chaliha in the said property me asuring 2 kathas 15‰ lechas after the same was partitioned amongst the sons and daughters of Tankeswar Chaliha. The further case of the plaintiffs is that thoug h the defendant No.1 is in possession of the land together with the houses stand ing thereon, he did not allow the plaintiffs to possess the part of the land of Schedule-A and stay in the house, which necessitated filing of the suit with the prayer as noticed above. The suit was contested by all the defendants by filing their respective written statements taking the similar pleas. While admitting that after the deat h of Tankeswar Chaliha and his wife, the land measuring 2 bighas 1 katha 3 lecha s described in Schedule-A devolved on 4(four) brothers and 2(two) sisters, inclu ding Mridul Chaliha, the plaintiffs’ father, it has, however been pleaded that t here was no partition effected as contended by the plaintiffs. It has also been pleaded that the share of the rent in respect of the houses let out and situated over the suit land is being regularly paid to the plaintiffs. The learned Trial Court, on the basis of the pleadings of the parties, f ramed the following issues for determination:- Issue No.1: Issue No.2: Issue No.3: Whether the plaintiff has any cause of action? Whether the suit is maintainable in the present form? To what share the parties are entitled to the property mentioned in Schedule-A of the plaint? Whether the ancestral property was partitioned amicably between Issue No.4: the plaintiff and the defendants occupied their respective shares? Issue No.5: uished his share in the ancestral property? Issue No.6: uit land? Issue No.7: Whether the plaintiffs are entitled to the relief claimed and to what relief the parties are entitled to? The learned Trial Court upon appreciation of the evidences on record and after hearing both the parties, partly decreed the suit of the plaintiffs by ho lding that the plaintiffs are legally entitled to a decree of 1/6th part of the Schedule-A property. The learned Trial Court, however, did not allow the claim o f khas possession of the share and permanent injunction as well as the partition . Being aggrieved the plaintiffs/respondents preferred Title Appeal No.6/2010, w hich has been allowed by the learned First Appellate Court directing the partiti Whether late Mridul Chaliha during lifetime of his mother relinq Whether the defendant No.1 illegally closed the passage to the s on of the land by issuing the preliminary decree. The said appeal was contested only by the defendant No.1/appellant herein and not by the other defendants. The defendant No.1 hence filed the present appeal. It has been contended by Mr. M.K. Choudhury, learned Sr. counsel for the appellant that since the plaintiffs’ father resided in Guwahati and the plainti ffs desire to sale the property to an outsider, the learned Court below ought to have made an attempt to settle the dispute between the parties by directing the plaintiffs to sale the property to the defendant No.1, if they wish to do so, w hen the plaintiffs’ right over the 1/6th part of the Schedule-A land is not in d ispute. Mr. N. Choudhury, learned counsel for the respondents/plaintiffs, on the other hand, has submitted that the plaintiffs do not intend to sale the propert y and want to retain the same. It appears from the pleadings in the plaint as well as in the written st atement filed by the defendants that it is not in dispute that the land measurin g 2 bighas 1 katha 3 lechas described in Schedule-A originally belonged to Tanke swar Chaliha, on whose death the property devolved on his widow and 4(four) brot hers and 2(two) sisters, as named above and thereafter on the death of the widow of Tankeswar Chaliha the property devolved on the aforesaid brothers and sister s. Hence all the 6(six) heirs will have equal shares over the land measuring 2 b ighas 1 katha 3 lechas i.e. 1/6th shares. The plaintiffs being the daughters wil l inherit the share of Mridul Chaliha in the said property. Those facts are not in dispute. Though the plaintiffs in the suit claimed that there was an amicable par tition amongst the 4(four) brothers and 2(two) sisters and the land described in Schedule-B fell in the share of Mridul Chaliha (plaintiffs’ father), such plea was not accepted by both the learned Courts below. No appeal has also been filed by the plaintiffs challenging such finding of the learned Courts below. Since it is not in dispute that Mridul Chaliha has 1/6th share in the la nd measuring 2 bighas 1 katha 3 lechas described in Schedule-A land, the plainti ffs being the heirs of Mridul Chaliha will acquire right, title and interest in respect of the said share in the property in Schedule-A land. The learned First Appellate Court, therefore, has rightly passed the preliminary decree for partit ion, which requires no interference in second appeal. In view of the aforesaid discussion, I do not find involvement of any su bstantial question of law to admit the appeal and hence the appeal stands dismis sed. No cost. It is, however, open to the plaintiffs, if they so desire, to sale their share in favour of the defendant No.1.