High Court
Case Details
RSA 140/2002 BEFORE HON’BLE MR. JUSTICE C.R. SARMA Heard Mr. A. Choudhury, learned counsel, appearing for the appellants/ defendant s. None represented the respondent/ plaintiff. [2] This appeal is directed against the judgment and decree, dated 0 4.06.2002, passed by the learned Civil Judge (Senior Division), Nagaon, in Title Appeal No. 04/2001, whereby the learned Civil Judge (Senior Division), Nagaon s et aside the judgment and decree, dated 19.12.2000, passed by the Civil Judge (J unior Division) No. 1, Nagaon in Title Suit No. 137/1997. The plaintiff’s case, in brief, may be stated as follows:- [3] The respondent, as plaintiff, claiming to be owner of a plot of land, measuring 1 (one) Bigha 2 (two) Khatas, as mentioned in the schedule (cid:28)A (cid:29) t o the plaint, instituted T.S. No. 137/1997 before the Civil Judge (Junior Divis ion), Nagaon, seeking declaration of right, title and interest, in respect of th e (cid:28)A (cid:29) schedule land, khas possession in respect of (cid:28)B (cid:29) Schedule land and confirm ation of possession in respect of Schedule (cid:28)C (cid:29) land. Schedule (cid:28)A (cid:29) land includes the land described in Schedules (cid:28)B (cid:29) and (cid:28)C (cid:29). [4] A plot of land measuring 1 (one) Bigha and 2 (two) Khatas, as described in Sche dule (cid:28)A (cid:29) is his ancestral property and after the death of his father, he alongwi th his brother namely, Biren Hazarika (since deceased) and their mother Smti Gun amai Hazarika inherited, owned and possessed the entire suit land. The appellant i.e. the Principal Defendant, in 1995 trespassed into a plot of land, measuring 1 (one) Bigha 1 (one) Khata i.e. the (cid:28)B (cid:29) Schedule land and illegally occupied t he same. The remaining 1 (one) Khata i.e. the (cid:28)C (cid:29) schedule land having a family Namghar (i.e. temple) therein, is in the possession of the plaintiff. Despite r epeated requests, made by the plaintiffs, the said defendant refused to vacate t he land and denied the right, title and interest of the plaintiff. Hence, the pl aintiff instituted the said suit, seeking relief as indicated above. The plaintiff, besides making some of the co-pattadars, as profr [5] oma defendants, added the son of his brother late Biren Hazarika, as profroma de fendant No. 8 and the legal heir of his mother, Gunamai Hazarika, as profroma de fendant No. 9. However, he did not seek any relief against the said profroma de fendants. None except the Principal defendants contested the suit, therefore, it proceeded exparte against all the profroma defendants. [6] The principal defendants contested the plaintiff’s claim by fili ng written statement. Their plea was that the suit land, measuring 1(one) Bigha 1 (one) Khata 15 ‰ (fifteen half) lechas, out of (cid:28)A (cid:29) Schedule land, though inher ited by the plaintiff and his brother Biren Hazarika, they, by executing an unre gistered sale deed (Kachha deed), on 15.5.1996, transferred the suit land in fav our of the defendant No. 1 and his brother Shri Hiren Hazarika (since deceased) and accordingly, after taking possession of the same, the defendant No. 1 and hi s said brother have been enjoying the suit land from the said date of purchase. The defendants also stated, in the written statement, that, despite giving assur ance, the said vendors i.e. the plaintiff and his brother failed to execute regi stered sale deed. The contesting defendants also averred that there was no cause of action for the suit, that the suit was barred by law of limitation, that the suit was bad for non-joinder and mis joinder of necessary parties and concealme nt of material facts. The contesting defendants further contended that their po ssession was adverse to the interest of the plaintiffs. [7] ramed the following issues:
Legal Reasoning
Upon the pleading of both the parties, the learned trail Judge f (cid:28)(1) Whether the plaintiff has any cause of action? (2) Whether the suit is maintainable in its present form? (3) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? (4) iescence? Is the suit barred by the principle of waiver, estoppel and acqu (5) Is the suit liable to fail for want of jurisdiction? (6) Has the plaintiff any title to the land in suit? (7) (8) (9) Is the plaintiff entitled to any relief as prayed for? To what relief, if any, is the plaintiff entitled? (cid:29) (10) Is the suit barred by limitation? Is the story of plaintiff’s possession and dispossession true? [8] In order to prove his case, the plaintiff examined 2 (two) witne sses as PW No. 1 and PW No. 2 and exhibited a land revenue paying receipt and ce rtified copy of the Jamabandi. The contesting defendants also examined 2 (two) w itnesses and exhibited an un-registered sale deed, land revenue paying receipt a nd certified copy of the order, passed in MR Case No.660/1996. Having heard the learned counsel for both the parties and consid [9] ering the evidence, on record, the leaned Civil Judge (Junior Division), Nagaon, while holding that there was cause of action for the suit observed that, (1) th e legal heirs of late Biren Hazarika and late Hiren Hazarika not being impleaded as necessary parties, the suit was bad for non-joinder of necessary parties, ( 2) that the plaintiff, having only one-half share in the suit, land, cannot clai m the entire suit land and as such the suit was hit by the principle of estoppel , (3) that the suit was bad for want of jurisdiction. Of course, the trial Judg e held that the suit was not hit by the law of adverse possession and law of lim itation. [10] With the above findings, the trial court held that the plaintiff was not entitled to get any relief as prayed for and accordingly dismissed the suit. [11] Aggrieved by the said judgment and decree, the plaintiff, as app ellant, preferred an appeal, under Section 96 read with Order XLI Rules 1 and 2 of the CPC, before the learned Civil Judge (Senior Division), Nagaon. The appeal was registered as Title Appeal No. 4 of 2001. The First appellate court, while reversing the judgment and decree, passed by the learned Civil Judge (Junior Div ision), Nagaon, allowed the appeal declaring right, title and interest of the pl aintiff over the suit land and directed the defendants to vacate the suit land. [12] Dissatisfied with the said judgment and decree, passed by the le arned Civil Judge (Senior Division), Nagaon, the contesting defendants, as appel lants, have come up with this appeal on the following amongst other grounds:- (1) that the suit was bad for non-joinder of the co-pattadars, (2) that the suit was bad for waiver, estoppel and acquiescence, (3) that the suit, filed after 22 years of dispossession, was not ma intainable, (4) that courts below eared in law by not considering the claim of the appel lants/defendants with regard to adverse possession in respect of the land as men tioned in the schedule (cid:28)B (cid:29) of the plaint. [13] ons of law:- The appeal has been admitted on the following substantial questi (1) Whether the first appellate court erred in law by reversing the original decree passed by the trial court or not? (2) Whether the first appellate court complied with the mandatory provis ions of law as laid down under Order 41 Rule 31 CPC, while passing the impugned judgment and decree or not? (3) (4) Whether the suit is maintainable? Whether the co-pattadars of the suit properties are necessary pa rties in the suit nor not.
Legal Reasoning
[14] Though, the sole respondent/ plaintiff, after receipt of the not ice, had entered appearance through the engaged counsel, none represented him at the time of hearing. I have heard Mr. A. Choudhury, learned counsel, appearing on behalf of the appellants and perused the record. The learned counsel, appearing for the appellants, taking this c [15] ourt through the impugned judgment and decree, passed by the first appellate cou rt, has submitted that the learned Civil Judge (Senior Division) committed error and illegality, in the eye of law, by reversing the judgment and decree, passed by the trial court, despite the fact that all the co-owners were not made party . It is also submitted that the learned trial Judge rightly dismissed the suit fo r non-joinder of the necessary parties i.e. all the legal heirs of late Biren Ha zarika, who was one of the co-sharers and was survived by three widows one son ( i.e. the profroma defendant No. 8) and the legal heirs of late Hiren Hazarka, in whose favour also the unregistered sale deed was executed by the plaintiff and his said brother. It is further submitted that the plaintiff i.e. sole respondent, being one of th e co-owners is not entitled to get decree declaring right title and interest in respect of the entire suit land, which was inherited by the plaintiff and his br other, late Biren Hazarika from their predecessor-in-interest and as such the fi rst appellant court committed gross illegality and error by declaring right, tit le and interest in favour of the plaintiff. It is also submitted that the learned Civil Judge (Senior Division) committed er ror by failing to discuss and decide all the issues, as required by Order XLI Ru le 31 of the CPC. [16] It is further submitted that the defendants have been possessing the suit land since 1976, on the basis of an unregistered sale deed and as such the suit, for recovery of possession of suit land after 22 years, was not maint ainable and that the courts below committed error by failing to consider the cla im of the appellant, regarding adverse possession. [17] Having heard the learned counsel for appellants and carefully pe rusing the pleadings, the impugned judgment and decree, passed by the appellate court and also the judgment and decree, passed by the trial court, in order to appreciate the correctness of the impugned judgment and decree, I feel it approp riate to peruse and examine the evidence, on record, and I do so. [18] Admittedly, the suit land, originally, belonged to late Durga Ha zarika, i.e. the predecessor-in-interest of the plaintiff and his brother Biren Hazarika and after the death of their said predecessor-in-interest, the names of the plaintiff and his brother Biren Hazarkia, both sons of late Durga Prasad Ha zarkai and their mother Smti Gunamai Hazarika i.e. the widow of Durga Prasad Haz arika, were mutated, in the revenue record, in place of Durga Prasad Hazarika. E xt. No. 2 i.e. the Jamabandi of the suit land, exhibited by the plaintiff, suppo rts the said contention. Therefore, the plaintiff alongwith his said brother an d their mother inherited the suit land after the death of his father. Undisputed ly, the said legal heirs of Durga Prasad Hazarika became the owner/ title holder s of the suit land. According to the plaintiff, after the death of his father, h e was possessing the suit land till 1995 and on, or about 08.12.1995, the defend ants trespassed illegally occupied 1 (one) Bigha 1 (one) khata out of the suit l and i.e. the (cid:28)B (cid:29) Schedule land and by refusing to vacate the suit land denied th e right and title of the plaintiff in respect of the suit land. Though, the plai ntiff did not seek any relief in respect of co-sharers, he impleaded some of the c--pattadars i.e. the son of his brother, Biren Hazarika and the legal heir of his mother Smti Gunamai Hazarika as Profroma Defendant Nos. 5, 6, 7, 8 and 9. Su bsequently, the name of respondent No. 7 was stuck off. None of the said profro ma respondents contested the suit and as such the suit proceeded exparte. That a part, the plaintiff in his evidence, given as PW No. 1, stated that his brother was entitled to one half share in the schedule land. This admission made by the plaintiff, protects all rights and benefit of the other co-sharers, which accrue d to them in respect of the suit land, as co-sharers. [19] The claim of the defendants is that the defendant No. 1 and one of his brother late Hiren Hazarika purchased the suit land in 1997 by an un-regi stered sale deed i.e., Ext. No. (cid:28)Kha (cid:29), executed by plaintiff and his brother Bir en Hazarika, after receiving consideration money of Rs. 4,000/- and that they ha ve been in possession of the suit land since then. Though, the plaintiff’s brot her Biren Hazarika i.e. one of the co-owners, died leaving three wives, three da ughters and one son (profroma Defendant No. 8), the plaintiff made his brother’s son as profroma defendant No. 8 and failed to implead other legal heirs of Bire n Hazarkia as defendants. However, the plaintiff impleaded the legal heirs of hi s mother, Smti Gunamai Hazarika, as indicated above and the said legal heirs of Biren Hazariaka and Gunamai Hazarika failed to contest the plaintiff’s claim. Th ere is no dispute that his brother Biren Hazarika is entitled to one half share in the suit land. Thus, it is admitted position that the plaintiff, though not t he absolute owner, is one of the co-owners of the suit land and as such he has r ight and title in each and every part of the suit land. Another plea of the Defendant No.1 is that the suit land was purchased by him al ongwith his brother Hiren Hazarika and as such the legal heirs of Hiren Hazarika (since deceased) were also necessary parties to the suit. The trial court held that, the legal heirs of Biren Hazarika, not being made co -plaintiffs, the suit was bad for non-joinder of necessary parties. [20] It has also been held by the trial court that the plaintiff, in view of his silence in the plaint, regarding his brother’s share, was stopped fr om claiming the whole suit land. While rejecting the plea regarding adverse poss ession, as raised by the defendants, the trial court held that the plaintiff, ha ving right, title and interest and possession over one half portion of the suit land, cannot claim that the defendants dispossessed him from the entire suit lan d. The learned trial Judge also came to the findings that there was no evidence that the defendants were in possession of the suit land since 1976 and that the defendants had right over the suit land. However, at the concluding part of the judgment, the learned trail Judge held that, in view of the discussion made in I ssue Nos. 3, 4 and 5, the suit was not maintainable and as such the plaintiff wa s not entitled to get any relief, as claimed for. The Issue Nos. 3, 4 and 5 rel ates to, non-joinder and mis-joinder of necessary party, bar by the principles o f estoppel, waiver, acquiescence and the question regarding jurisdiction of the trial court. [21] From the evidence, on record, as adduced by both the parties, it is found that it stood established that the plaintiff was one of the co-sharers i.e. joint owners. It is not the case that none of the other co-sharers were im pleaded as parties. The son of Biren Hazarika, who was one of the co-sharers, ha s been impleaded as profroma Defendant No. 8 and the heir of another co-owner na mely, Smti Gunamai Hazarika (widow) has also been impleaded as profroma Defendan t No.9. None of the said co-sharers have challenged the plaintiff’s claim. [22] The plaintiff, in the present case, has sought relief against th e defendants, alleging that defendants, being trespassers, have been illegally o ccupying the suit land since 1995. The suit has been brought by one of the co-ow ners against the trespassers, in respect of a plot of land owned by all co-sha rers including the plaintiff. Now, the question is whether the suit, claiming right, title, interest and posse ssion by one of the co-sharers, without making all the co-sharers, is maintainab le against a trespasser and whether the legal heirs of late Hiren Hazarika were also necessary parties. [23] In the present case, the defendants, though claimed that they ha d purchased the suit land by an unregistered sale deed (Ext. (cid:28)Ka (cid:29)) in 1976, fail ed to prove, by adducing sufficient legal evidence, that the suit land was trans ferred and that the possession was delivered to them in 1976. Except producing a n un-registered sale deed (Ext. (cid:28)Ka (cid:29), alleged to be executed by the plaintiff an d his brother namely, Biren Hazarika, the defendants failed to prove the executi on of the same as required by law. The trial court also, in deciding the issue N o. 7 in favour of the plaintiff, rightly held that the defendant failed to estab lish his title over the suit land and that the long possession was not sufficien t to confer right by way of adverse possession and that the suit was not hit by the principal of adverse possession and law of Limitation. The first appellate c ourt has also concurred with the said view and upheld the said findings. Therefore, as the transfer of land in favour of defendant No. 1 and late Hiren Hazarika has not been proved and as the plaintiff has also not sought any relief against late Hiren Hazarka or his heirs, the legal heirs of late Hiren Hazarika are not necessary party. As rightly held by the trial court plaintiff and his brother Bir [24] en Hazarika were joint owners and the plaintiff was not absolute owner, in respe ct of the suit land. The question regarding possession, being a matter of facts, both the courts have disbelieved the defendant’s plea of possession since 1976 for want of any subst antive evidence. The Gaonbura of the village, deposing as PW No. 2 supported the plaintiff’s plea that he was dispossessed by the defendant in 1995. DW No. 2, who stated that the defendant No. 1 occupied the suit land for 20/22 years, failed to properly identify the suit land by giving its boundary. Hence, it cannot be believed that he had any idea or knowledge about the possess ion of the land. As discussed above, both the courts below disbelieved the defend ants’ plea that they have been in possession of the suit land since 1976. The sa id findings regarding possession, based on evidence, on record, as indicated abo ve, needs no interference by this court, in exercise its jurisdiction in second appeal. [25] In view of failure of the contesting defendants to establish the plea of purchase of the suit land as well as acquiring right, on the basis of a dverse possession, or in any lawful manner, their status, in respect of the suit land, was not better than that of trespassers. [26] In the case of Smti Kanta Goel -Vs.- B.P. Pathak & others, repo rted in AIR 1977 SC 1599, the question, whether a co-heir of deceased landlord c an sue for 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 Cou rt observed that co-heirs constituted, the body of landlords and, by consent, im plicit or otherwise, of the plurality of landlords one of them representing them all 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 f ractional owner of the property. [27] In the case of A. Viswanatha Pillai -Vs.- Special Tahsildar, rep orted in AIR 1991 SC 1966, the Supreme Court has observed that one of the co-own ers can file a suit and recover property against stranger and the decree would e nsure 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 property was not his own. The Supreme Court has further observed that a co-ow ner owns several parts of the composite property along with others and it can no t be said that he is only a part owner or fractional owner in the property. As o bserved by the Supreme Court, the said position will undergo a change only when partition takes place and division is affected by metes and bounds. [28] In the case of Pal Singh -Vs.- Sunder Singh (dead) by Lrs. , rep orted in AIR 1989 SC 758, the Supreme Court referred to the ratio held in the ca se of Kanta Goel (supra), wherein the Supreme court followed the decision in Sri Ram Pasricha V. Jaganath (AIR 1976 SC 2335) and held that when other co-owners did not object to the eviction, one of the co-owners could maintain an action fo r eviction even in the absence of other co-owners. In the case of Pal Singh (S upra), the Supreme Court observed that an eviction suit, even in absence of othe r co-owner would be maintainable. [29] bjection to the action initiated by the plaintiff. In the case at hand also the other co-owners did not raise any o The plaintiff has made it clear that he is entitled to one half share and the legal heirs of Biren Hazarika are entitled to remaining one half s hare in the suit land. Therefore, he has not denied/ disputed the right of the o ther co-sharers. Even the son of late Biren Hazarika (profroma defendant No. 8) and the legal heirs of Smti Gunamai Hazarika, who are also co-pattadars, have no t challenged the plaintiff’s claim. [30] In view of the said ratio laid down by the Apex Court, it can be held that a suit by co-owner is maintainable against the trespasser, even witho ut determining the share of the other-co-sharer and also in the absence of other co-owners. Such relief granted in favour of the plaintiff, who is a co-owner wi ll not adversely affect the right and interest of the other co-owners. [31] The defendants have failed to establish their title or right to enjoy the suit land. A title holder’s right to enjoy the property cannot be deni ed by a trespasser, who holds the property without any authority. In view of above, I have no hesitation in holding that the first appellant court rightly concluded that the plaintiff was entitled to file the suit against the defendants, who were trespassers in respect of the suit land, for recovery of th e same for the benefit of all the co-sharers. Therefore, in the facts and circum stances of this case, as held by the first appellate court, the other co-sharers and pattadars are not necessary parties and as such, the suit brought by one of the co-sharers, against the trespassers, is maintainable. [32] From the impugned judgment and decree aforesaid, it is found tha t the first appellate court, reproduced all the issues, framed and decided by th e trial court and while reversing the judgment and decree passed by the learned trial court, the appellate court has discussed and given its findings with reaso ns in respect of all the issues, more particularly with regard to maintainabilit y of the suit for non-joinder of the co-sharers and the issue relating to advers e possession, which are the basic issues involved in the suit. It transpires that the first appellate court discussed and decided all the issue s, and thus complied with the requirement, prescribed by Order 41 Rule 31, CPC. [33] The trial court dismissed the suit holding that it was hit by th e principles of estoppel on the ground that the plaintiff did not mention, in th e plaint, about the share of his brother. Section 115 of the evidence, which pr ovides the provision of estoppel, reads as follows: (cid:28)Section 115 Estoppel -When one person has, by his declaration, act or omission, intentionally caused of permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative s, to deny the truth of that thing. (cid:29) From the evidence on record, there is nothing to show that the p [34] laintiff had in any manner declared, acted, omitted or permitted the defendants to believe a thing to be true and act upon such believe. Plaintiff’s failure to mention, in the plaint, that his brother was also entitled to one half share in the suit land does not attract the provision of Section 115 of the Evidence Act. Therefore, the trial Judge committed error by holding that the suit was hit by the principle of estoppel and as such, the first appellant court rightly reverse d the said decision of the trial court. From the above discussion, it is found that a co-sharer alone ca [35] n bring action for declaration of title and recovery of possession against the t respassers for the benefit of the co-sharers and as such the suit cannot be held to be bad for non-joinder of all the co-sharers. Because, a decree passed in f avour of one of the co-sharers, against the trespasser, does not take away the r ight of the other co-sharers in respect of their joint property. Rather, such ac tion, initiated by the co-sharer, is for the benefit of all the co-sharers and t he decree protects the right, title and interest of all the joint owners in re spect of the joint property, until such property is partitioned amongst the shar e holders. [36] In view of the above discussion, it is found that the plaintiff, as co-sharer, could establish his right, title and interest over the suit land and the defendants failed to substantiate their plea that they had acquired righ t to enjoy the suit land, on the basis of transfer and adverse possession. Therefore, the title of the plaintiff having been established and in the absenc e of any defect in the said title, he has been rightly held to be entitled to re cover the possession form the defendants. [37] In view of the above discussion, it is found that the suit was m aintainable and the first appellate court has committed no error by reversing th e decision of the trial court and thereby declaring plaintiff’s right, title, in terest and possession over the suit land, with direction to the principal defend ants to deliver vacant possession of the suit land.
Decision
[38] In view of the above discussion, while answering all the substan tial questions of law, in the manner as indicated above, I hold that there is no merit in this appeal, requiring interference with the impugned judgment and dec ree. [39] cord. Accordingly, the appeal is dismissed. Return the lower court re