High Court
Case Details
RSA 54/2000 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal by the defendants is directed against the judgment and decre e dated 16.12.1999 passed by the learned Civil Judge (Sr. Division), Nalbari, in Title Appeal No.16/1999, dismissing the appeal preferred by the defendants by a ffirming the judgment and decree dated 20.08.1998 passed by the learned Civil Ju dge (Jr. Division) No.2, Nalbari, in Title Suit No.27/1990, by which the suit of the plaintiffs has been decreed. 2. The predecessor-in-interest of the present respondents along with the pr esent respondents instituted Title Suit No.27/1990, against the present appellan ts as main defendants, praying for declaration of their right, title and interes t over the suit land measuring 4 bighas, more fully described in the schedule to the plaint, and also for recovery of khas possession by evicting the defendants therefrom, contending inter alia that the land measuring 8 bighas was purchased by the father of the plaintiff Nos.2 to 4 and the proforma defendant No.10 join tly vide sale deed dated 02.07.1964 (Ext.-1) and the land measuring 5 bighas was purchased by the plaintiff Nos.2 to 4 jointly vide sale deed dated 02.02.1974 ( Ext.-2) and they became the owners by virtue of such purchase. According to the plaintiffs, out of the land measuring 8 bighas purchased vide sale deed dated 02 .07.1964 (Ext.-1) 4 bighas of land fell in the share of the father of the plaint iff Nos.2 to 4 and the remaining 4 bighas in the share of proforma defendant No. 10 and thus the plaintiff Nos.2, 3 and 4 became the owners of the land measuring 9 bighas covered by Dag Nos.373 and 375 of Patta Nos.115 and 16. It is also the pleaded case of the plaintiffs that on 18.01.1987 the defendants trespassed int o the land belonging to the plaintiffs and consequently they have been disposses sed from 4 bighas of land, described in schedule to the plaint, for which they h ave to file the suit for declaration of their right, title and interest and reco very of khas possession. During pendency of the suit, the original plaintiff No. 1, namely, Syed Taimuz Ali, has expired and in his place, pursuant to the order dated 29.04.1994 Mustt. Raya Bibi was substituted, who also subsequently died le aving behind the plaintiff Nos.2, 3 and 4 as the heirs. The names of Syed Taimuz Ali and Mustt. Raya Bibi, however, were not strike out from the array of the pl aintiffs, despite the death and substitution.
Legal Reasoning
3. The defendants contested the suit by filing joint written statement, con tending inter alia that the they have no claim over the land covered by Dag Nos. 373 and 375 of Patta Nos.115 and 16 as described in the schedule to the plaint, but the plaintiffs with a view to grab the land belonging to them, has given the description of the suit land making inclusion of the land covered by Dag No.317 , which they have purchased from the original owner, namely, Khadeja Bibi. The d efendants, therefore, pleaded that while they have no objection in passing a dec ree in favour of the plaintiffs in respect of the land covered by Dag Nos.373 an d 375 of Patta Nos.115 and 16, no decree, however, can be passed in respect of t he land described in the schedule to the plaint, the same having included the la nd covered by Dag No.317, belonging to them. The proforma defendant No.10, who a long with the father of the plaintiff Nos.2, 3 and 4 purchased 8 bighas of land vide sale deed dated 02.07.1964 (Ext.-1), however, has not contested the suit of the plaintiffs. Based on the pleadings of the parties, the Trial Court framed the follow 4. ing issues for determination:- (i) (ii) (iii) (iv) Whether there is any cause of action for the suit? Whether the suit is maintainable in the present form? Whether the suit is time barred? Whether the suit land falls under Patta Nos.115 and 16 (New Patta No.16) corresponding to Dag No.375 and 373, respectively as claimed by the plaintiffs? Whether the suit land falls in the Patta No.95 Dag No.317 as alleged by Whether the suit land now falls in the river Ghogra as alleged by the de Whether the plaintiffs have right, title and interest over the suit land (v) the defendants? (vi) fendants? (vii) ? (viii) Whether the plaintiffs are entitled to get khas possession as claimed by the plaintiffs? (ix) To any other relief/reliefs to which the plaintiffs are entitled to? 5. The Trial Court upon appreciation of the evidence adduced by the parties , both oral and documentary, decreed the suit of the plaintiffs declaring their right, title and interest and also for recovery of khas possession by holding th at the land as described in schedule to the plaint is covered by Dag Nos.373 and 375 of Patta Nos.115 and 16 and not covered by Dag No.317 as claimed by the def endants. Such finding has been based on the Survey Commission’s report (Ext.-W) and also the evidence of the Survey Commissioner (CW-1), apart from the evidence adduced by the parties. 6. Being aggrieved the defendants preferred the aforesaid appeal, which has also been dismissed by affirming the judgment and decree passed by the Trial Co urt and hence the present appeal. This appeal was admitted for hearing vide order dated 17.05.2000 on the Whether the dead person has any claim like the living persons, the plain 7. following 3(three) substantial questions of law:- (cid:28)(i) tiff No.1 died during the pendency of the suit and his wife was ordered to be su bstituted vide order dated 29/4/94 but the wife of the plaintiff was not substit uted by deleting the name of the plaintiff No.1 further the wife of the plaintif f No.1 died during the pendency of the suit and the name of deceased plaintiff N o.1 is still appearing in the judgment and decree? (ii) Whether joint purchaser has any right to the suit? Here in this case Mus lim Ali who is stated to be a joint purchaser of land vide Ext.-1 was necessary party to the suit, but he was not made a party to the suit. (iii) Whether the suit filed by the plaintiff is maintainable in the present f orm in view of the admission of title and possession of contesting defendants by the plaintiff without seeking a decree for partition. During the survey carried out by the Survey Commissioner, CW-1, it was ascertained that Dag No.317 (New P atta No.95) does not cover the aforesaid land and on the face of a positive find ing that the plaintiff had no possession over the suit land and the defendants c ould not deliver any possession to the plaintiff over the suit land as the parti tion has not taken place. (cid:29) 8.
Legal Reasoning
I have heard Mr. J. Ahmed, learned counsel for the appellants/defendants and Mr. U.K. Das, learned counsel appearing for the respondents/plaintiffs. 9. Mr. Ahmed, the learned counsel appearing for the appellants, referring t o the substantial questions of law formulated, has submitted that since it is ap parent from the materials available on record that the name of the plaintiff No. 1 still exist, whose name has not been strike out from the array of the plaintif fs despite substitution, the decree passed by the Courts below is a nullity as d ecree has been passed in the name of a dead person. It has also been submitted t hat since admittedly the father of the plaintiff Nos.2, 3 and 4 purchased the la nd jointly with the proforma defendant No.10, vide sale deed dated 02.07.1964 (E xt.-1), apart from the land purchased by the plaintiff Nos.2, 3 and 4 vide sale deed dated 02.02.1974 (Ext.-2) jointly, there being no evidence relating to the partition of the land amongst the co-pattadars, the suit itself is not maintaina ble. It has also been submitted that in any case the plaintiffs, even if they ha ve the right, title and interest over the suit land, are not entitled to the dec ree for recovery of khas possession, in the absence of any partition. 10. The learned counsel further submits that the suit of the plaintiffs bein g not maintainable, in the absence of all other pattadars as party, the Courts b elow ought not to have decreed the suit of the plaintiffs and ought to have dism issed the same as not maintainable. That apart, the learned counsel referring to the deposition of CW-1 and Ext.-W, i.e. Survey Commission’s report, has submitt ed that the plaintiffs could not conclusively prove that the land as described i n the schedule to the plaint is the land covered by Dag Nos.373 and 375 of Patta Nos.115 and 16 and on the other hand, it appears from the materials available o n record that the land in fact is covered by Dag No.317 belonging to the defenda nts and hence the Courts below ought not to have decreed the suit of the plainti ffs in respect of the land as described in the schedule. The learned counsel sub mits that unless a fresh survey is conducted to find out as to whether the land as described in the schedule to the plaint falls within Dag Nos.373 and 375, the suit of the plaintiffs cannot be decreed. On the other hand, Mr. Das, the learned counsel appearing for the respon 11. dents/plaintiffs, submits that it is evident from the records of Title Suit that on the death of the original plaintiff No.1 Syed Taimuz Ali, his wife Mustt. Ra ya Bibi was substituted vide order dated 29.04.1994, whose name has accordingly been recorded, who however has also expired during pendency of the suit leaving behind the plaintiff Nos.2, 3 and 4. The learned counsel submits that striking o ut the names of the deceased plaintiffs being the ministerial act of the Registr y of the Court, the decree passed by the Courts below cannot held to be a nullit y, only for the reason that the names of the persons, who are dead, have not bee n struck off, though the substitution was allowed. 12. Relating to the 2nd and 3rd substantial questions of law formulated, the learned counsel submits that the defendants in the written statement have never taken the plea of non-joinder of necessary parties and also that the plaintiffs are not entitled to a decree because there was no partition amongst the co-owne rs. It has also been submitted that the plaintiffs’ claim being that the father of the plaintiff Nos.2, 3 and 4 and the proforma defendant No.10 jointly purchas ed the part of the suit land on 02.07.1964 by a registered instrument, apart fro m another land purchased by the plaintiff Nos.2, 3 and 4 vide sale deed dated 02 .02.1974, the necessary party in the suit is the proforma defendant No.10, who h as already been impleaded and who has not contested the suit of the plaintiffs. It has also been submitted that for the same reason the other co-pattadars are n ot necessary parties. The learned counsel further submits that it is the pleaded case of the plaintiffs, who has also adduced evidence in that regard, that ther e was partition in respect of the land purchased vide sale deed dated 02.07.1964 (Ext.-1) between the father of the plaintiff Nos.2, 3 and 4 and the proforma de fendant No.10 and the father of the plaintiff Nos.2, 3 and 4 was put into posses sion in respect of 4 bighas of land out of the total land measuring 8 bighas joi ntly purchased by them. 13. With regard to the submissions advanced by the learned counsel appearing for the appellants that there is no conclusive proof that the land as described in the schedule to the plaint is not covered by Dag Nos.373 and 375, it has bee n submitted by the learned counsel that both the Courts below have recorded the concluded finding of facts, based on the evidence adduced by the parties and als o the sketch map (Ext.-X), Survey Commission’s report (Ext.-W) and the evidence of CW-1, namely, the Survey Commissioner that the land described in the schedule to the plaint is indeed covered by Dag Nos.373 and 375 and not covered by Dag N o.317. According to the learned counsel such concluded finding of fact cannot be disturbed in second appeal, there being no perversity in recording such finding . 14. I have considered the submissions advanced by the learned counsel for th e parties and also perused the judgments and decrees passed by both the Courts b elow apart from the evidence adduced parties including the evidence of CW-1 and other documents exhibited including the Exts.-X and W. As noticed above, Syed Taimuz Ali was the plaintiff No.1 along with the 15. present respondents as plaintiff Nos.2, 3 and 4, who have instituted the aforesa id suit against the present appellants as defendants, apart from the proform def endant No.10, who has not been arrayed as party in the present appeal. The recor ds of the suit reveal that during pendency of the suit, the plaintiff No.1 Syed Taimuz Ali expired and on the basis of the application filed by the other plaint iffs, the name of Mustt. Raya Bibi, widow of Taimuz Ali, has been substituted pu rsuant to the order dated 29.04.1994 by the Court below. Mustt. Raya Bibi also e xpired during pendency of the suit leaving behind the plaintiff Nos.2, 3 and 4. Despite the death and the subsequent substitution, the names of Taimuz Ali and M ustt. Raya Bibi, however, have not been strike out from the array of the plainti ffs and their names still exist as plaintiffs. Striking out the names of the dea d persons, after passing of the order for substitution, is nothing but a ministe rial act of the Registry of the Court and for non-striking out the names of thos e dead persons, the plaintiffs cannot be allowed to suffer and it cannot be held that the decree has been passed in favour of a dead person and hence it is a nu llity, since their names were ordered to be strike out from the array of plainti ffs. This answers the first substantial question of law as formulated vide order dated 17.05.2000. 16. In so far as the substantial question Nos.2 and 3, the same do not exist in the present case as the defendants never pleaded in the written statement th at the suit land is either bad for non-joinder of necessary parties or no decree can be passed as the land is un-partitioned land. It also appears from the mate rials available on record, particularly the evidence of the plaintiffs, that out of 8 bighas of land purchased jointly by the father of the plaintiff Nos.2, 3 a nd 4 and the proforma defendant No.10 vide sale deed dated 02.07.1964 (Ext.-1) 4 bighas of land fell in the share of the father of the plaintiff Nos.2, 3 and 4, who was put into possession accordingly. There is, therefore, evidence on recor d and it is the case of the plaintiffs that there was amicable partition of the land between the father of the plaintiff Nos.2, 3 and 4 and the proforma defenda nt No.10, who has not contested the suit though he was a party defendant. That a part, the suit also cannot held to be not maintainable because of non-joinder of necessary parties, as the proforma defendant No.10, who has jointly purchased t he part of the suit land vide Ext.-1 sale deed dated 02.07.1964, has been implea ded as party, who, however, has not contested the suit. The other pattadars, who do not have claim in respect of the Dag Nos.373 and 375, are naturally not nece ssary party, more so when there is no plea taken by the defendants in the suit i n that regard. 17. The next contention, which requires consideration by the Court is whethe r the land described in the schedule to the plaint is covered by Dag Nos.373 and 375 of Patta No.115 and 16. Both the Courts below have recorded the finding of fact that the land as described in the schedule to the plaint did cover by Dag N os.373 and 375 and not covered by Dag No.317 as claimed by the defendants. Such concluded finding of fact cannot be disturbed in second appeal, unless of course the perversity in recording such finding is demonstrated. To satisfy myself abo ut the availability of evidence in that regard, I have perused the depositions o f witnesses, apart from the deposition of CW-1 and also the Ext.-W, Survey Commi ssioner’s report and Ext.-X, the sketch map, wherefrom it appears that there is clear evidence that the land described in the schedule to the plaint falls withi n Dag Nos.373 and 375 and not in Dag No.317. That being the position, the said c ontention of the learned counsel for the appellants also cannot be accepted. 18. In view of what has been discussed above, I do not find any merit in the appeal and hence the same is dismissed. 19. directed to send down the records forthwith. The parties are directed to bear their own cost throughout. Registry is