High Court
Case Details
RSA 39/2001 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the successors-in-interest of the original plaintiff, namely, Smt i. Gita Rani Bose, is directed against the judgment and decree dated 12th Decemb er, 2000 passed by the learned Civil Judge (Senior Division), Sonitpur at Tezpur in Title Appeal No.4/1993, partly allowing the appeal preferred by the original plaintiff by setting aside the judgment and decree dated 9th December, 1992 (de cree drawn on 15th December, 1992) passed by the learned Munsiff, Biswanath Char iali in Title Suit No.13/1988, whereby and whereunder the suit of the plaintiff was initially dismissed.
Legal Reasoning
[2] Smti. Gita Rani Bose, the predecessor-in-interest of the present appella nts, instituted the aforesaid suit for declaration of right, title and interest in respect of 15 Lechas of land morefully described in Schedule to the plaint an d also for recovery of khas possession by evicting the predecessor-in-interest o f the present respondents, namely, Santi Ranjan Parbat, contending inter alia th at the defendant on 3rd August, 1981 transferred his right, title and interest i n respect of the suit land in favour of the plaintiff and that is how the plaint iff has acquired right, title and interest over the land. It has also been plea ded that as the defendant subsequently dispossessed the plaintiff from 15 Lechas of land, the suit has to be filed for declaration of right, title and interest based on purchase and also for recovery of khas possession. [3] The defendant contested the suit by filing written statement contending inter alia that the land measuring 1 Katha 10 Lechas, which includes the suit la nd, originally belonged to Monoranjan Parbat, after whose death, it devolved on the three heirs, namely, the widow of Monoranjan Parbat and his two sons, namely , Santi Ranjan Parbat (defendant) and Kanti Ranjan Parbat. It has also been con tended that out of 1 Katha 10 Lechas of land, 15 Lechas of land was gifted by Mo noranjan in favour of his brother, Narayan Parbat by a registered deed in the ye ar 1979 (Exhibit-1) and hence, the three heirs of Monoranjan have the right over the remaining 15 Lechas of land. [4] ing issues for determination:- Based on the pleadings of the parties, the trial Court framed the follow (cid:28)1. Whether the Suit is maintainable? 2. 3. 4. 5. 6. nd? 7. 8. Is there any cause of action? Whether the Suit is bared by limitation? Whether the Suit is under stamped and under valued? Whether the Suit is bad for non-joinder of necessary parties? Whether the plaintiff has any right, title and interest over the Suit La Whether the defendant is liable to be evicted from the Suit Land? Whether the plaintiff is entitled to get the decree as prayed? (cid:29) [5] The trial Court, upon appreciation of the evidence on record, dismissed the suit of the plaintiff by holding that Monoranjan Parbat during his lifetime had gifted 15 Lechas of land vide Exhibit-1 gift deed in favour of his brother, Narayan Parbat, out of the total land 1 Katha 10 Lechas and hence, Manoranjan ha d only 15 Lechas of land, which the three heirs have inherited in equal shares. It has also been held that Santi Ranjan Parbat did not have right, title and in terest in respect of entire 15 Lechas of land and hence, by virtue of the Exhibi t-1 sale deed dated 3rd August, 1981 no right, title and interest can be passed to the plaintiff. [6] Being aggrieved, the plaintiff filed the aforesaid appeal, which has bee n partly allowed by decreeing the suit of the plaintiff to the extent of 5 Lecha s of land, being the share of Santi Ranjan Parbat out of 15 Lechas of land. No decree for recovery of khas possession has been filed since the suit has not bee n filed for partition. Hence, the present appeal. [7] The appeal was admitted for hearing vide order dated 8th August, 2003 on the following substantial questions of law:- (cid:28)1) ellant-respondent in part by misleading and misinterpreting Ext. 1 & 2? Whether the learned court below erred in dismissing the suit of the app 2) Whether the learned court below erred in law in not passing the decree f or khas possession after declaring right, title and interest of the appellant-pl aintiff over a part of the suit land? (cid:29)
Legal Reasoning
[8] Mr. S.K. Goswami, learned counsel for the appellants submits that since the plaintiff could prove the sale dated 3rd August, 1981 executed by the defend ant in her favour, the appellate Court ought to have decreed the suit of the pla intiff in its entirety. It has been submitted that the appellate Court has misre ad and misinterpreted the Exhibit-1 sale deed dated 3rd August, 1981, though it is evident therefrom that the defendant has sold 15 Lechas of land in favour of the plaintiff vide Exhibit-1 sale deed dated 3rd August, 1981. [9] I have considered the submissions advanced by the learned counsel appear ing for the appellants and also perused the judgments and decrees passed by both the Courts below. [10] It is evident from the judgment passed by the first appellate Court that the defendant could prove that out of 1 Katha 10 Lechas of land belonging to Mo noranjan Parbat, 15 Lechas of land was gifted to his brother Narayan Parbat in t he year 1979 vide Exhibit-1 gift deed (It appears that the Court below has marke d the documents exhibited by the plaintiff as well as by the defendant in the sa me numerical number). Hence, only 15 Lechas of land left to Monoranjan Parbat. It is also evident from the finding of fact recorded by the Courts below that M onoranjan has three heirs, namely, his wife and two sons, namely, Santi Ranjan P arbat (defendant) and Kanti Ranjan Parbat, who have inherited the remaining land measuring 15 Lechas in equal proportion. Though the defendant Santi Ranjan Par bat sold 15 Lechas of land in favour of the plaintiff vide sale deed dated 3rd A ugust, 1981 (Exhibit-1), no right, title and interest in respect of 15 Lechas of land can be transferred in favour of the plaintiff, Santi Ranjan having right o nly in respect of 5 Lechas of land. Hence, the first appellate Court has rightl y decreed the suit of the plaintiff in respect of 5 Lechas of land only, which w as the share of Santi Ranjan Parbat, the defendant. [11] That apart, it is not being the case of the plaintiff that there was par tition and the plaintiff having not prayed for partition, the first appellate Co urt has rightly declared joint possession of the plaintiff alongwith the widow o f Monoranjan and Kanti Ranjan Parbat, without passing a decree for recovery of k has possession. The plaintiffs in order to get possession have to institute a su it for partition. [12]
Decision
In view of the above, I do not find any merit in the appeal to interfere with the judgment and decree passed by the first appellate Court. [13] [14] The appeal is, therefore, dismissed. No costs. The Registry is directed to send down the records.