High Court
Case Details
RSA 104/2013 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
The appellants herein, who are the defendants in TS No.302/2008, have filed the present appeal challenging the judgment and decree dated 29.9.2012 passed by the learned Civil Judge, Barpeta in Title Appeal No.54/2011 affirming the judgment and decree dated 1.9.2011 passed by the learned Munsiff No.1, Barpeta in TS No.3 02/2008. 2. The respondent Nos.1 and 2 herein instituted the aforesaid suit in the c ourt of learned Munsiff No.1, Barpeta against the appellants as well as the resp ondent Nos.3 to 10 for declaration of joint right, title and interest over the s chedule land and also for partition contending inter alia that the land measuri ng 14 Bighas 4 Kathas 9 Lechas described in Schedule ’A’ to the plaint, apart fr om the land measuring 9 Bighas 3 Kathas 5 Lechas described in Schedule ’C’ to th e plaint, originally belong to their father Late Debar Ali Akand. 3. It has further been pleaded that out of 10 Kathas 5 Lechas of land (Sche dule ’C’ property), land measuring 1 Bigha was donated by their father to his so n Motiur Rahman on condition that he will have no claim over the remaining land measuring 9 Bighas 3 Kathas 5 Lechas. It has also been contended that neither Ma tiur nor his legal heirs have claimed any land described in Schedule ’C’ land. F urther pleaded case of the plaintiffs is that land measuring 3 Bighas 14 Lechas, described in Schedule ’B’ to the plaint fell in the share of Debar Alil Akand a nd land measuring 4 Bigha and 1 Bigha 2 Kathas 14 Lechas described in Schedule ’ E’ also fell in the share of Debar Ali Akand. The plaintiffs claimed right, titl e and interest over the said Schedule ’A’, ’C’, ’D’ and ’E’ land to the extent a s shown in Schedule ’A-1’, ’C-1’, ’D-1’ and ’E-1’, by the right of inheritance. 4. The defendants contested the suit by filing written statements contendin g inter alia that they have purchased the land for Rs.40,000/- and got delivery of possession over it and hence, they have acquired right, title and interest ov er the land measuring 3 Bighas 1 Katha 4 Lechas, which fell in the share of the plaintiffs. It has also been pleaded in that written statement that father of th e plaintiffs on 2.8.1976 sold 8 Bighas 4 Kathas of land to his six sons barring Motiur Rahman by Katcha sale deed for consideration of money and delivered the p ossession and hence the plaintiffs are not entitled to the decree as prayed for. The trial Court on the basis of the pleadings of the parties framed the 5. following issues for determination;- (cid:28)1. 2. terest over the Schedule (cid:28)A (cid:29), (cid:28)D (cid:29) and (cid:28)E (cid:29) land of the plaint? Whether there is cause of action for the suit? Whether the plaintiffs and the defendants have joint right, title and in 3. Whether the plaintiffs and the defendant No.2 to 7 have joint right, title and interest over the Schedule ’C’ land of the plaint? Whether the plaintiffs have right, title and interest over the Schedule 4. A(1), C(1), D(1) and E(1) land of the plaint? 5. ? 6. To what other relief or reliefs the parties are entitled for? (cid:29) Whether the plaintiffs are entitled for decree as prayed for in the suit The trial Court upon appreciation of the evidence adduced by the parties decreed the suit of the plaintiffs. Being aggrieved, the present appellants preferred t he aforesaid title appeal which has also been dismissed and hence, the present a ppeal. 6.
Legal Reasoning
Heard Mr. M Dutta, learned counsel appearing for the appellants. 7. It has been submitted by Mr. Dutta, learned counsel for the appellants t hat since the land in question has already been sold by Debar Ali Akand during h is life time in favour of his six sons, daughters of Debar Ali cannot claim any right over the suit land by the right of inheritance and seek partition. Mr. Dut ta, therefore, submits that learned courts below ought to have dismissed the sui t of the plaintiffs. It has also been submitted that since the plaintiffs have n ot claimed any definite share over the suit property, learned courts below ought not to have passed the decree declaring their right and partition. 8. It appears from the findings recorded by the court below as well as the pleadings in the written statements that there is no dispute that the plaintiffs are the daughters of late Debar Ali Akand. It is also not in dispute that plain tiffs are entitled to share under the Mohammedan Law and accordingly, the suit o f the plaintiffs have been decreed to the extent of their share to which they ar e entitled to. The defendants though set up the plea that Debar Ali had sold the suit land in favour of their six brothers, they, however, could not prove the s ale. It also appears from the stand taken by the defendants in the written state ments that two sale deeds were not registered, by virtue of which the defendants claimed right over the suit property by right of purchase. The defendants havin g failed to substantiate their plea and there being no dispute that the plaintif fs being the daughters of late Debar Ali Akand, they would be entitled to their share over the suit property in accordance with the Mohammedan Law, no illegalit y has been committed by the learned courts below in decreeing the suit. Learned courts below, however, ought to have passed the order drawing the preliminary de cree of partition, which is to be effected by the provision contained in Order 2 0 Rule 18 of the CPC. Learned courts below, therefore, are directed to effect th e partition by following the said provision of law. 9. The appeal is, therefore, dismissed being devoid of any merit. No cost.