High Court
Case Details
RFA 18/2004 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL) This appeal, by the successors-in-interest of the original defendant, namely, Bo dhendra Nath Bora, is directed against the judgment and decree dated 29th Novemb er, 2003 passed by the learned Additional District Judge, Jorhat in Title Suit N o.1/1996, whereby and whereunder the preliminary decree has been passed for part ition of the suit property in equal part and to put the plaintiff into possessio n of one part of the suit property.
Legal Reasoning
[2] The present respondents, who are the successors-in-interest of D eviram Bora, brother of the original defendant, Bodhendra Nath Bora, filed the s uit for passing a preliminary decree for partition of the land and the house sta nding thereon, as described in Schedule-A to the plaint, and also for effecting partition and for delivery of possession of their share, contending inter alia t hat though their predecessor-in-interest instituted Title Suit No.18/1971 (which was renumbered, on transfer, as Title Suit No.9/1973), for declaration of right and title over the suit house as well as for declaration of his leasehold right over the suit land, apart from eviction of the predecessor-in-interest of the p resent appellants, Bodhendra Nath Bora, and the suit was decreed by the trial Co urt, the same, however, was reversed vide judgment and decree dated 22nd Septemb er, 1988 passed by the High Court in First Appeal No.49/1975 preferred by Bodhen dra Nath Bora, declaring that both Deviram Bora and Bodhendra Nath Bora, who are brothers, have joint leasehold right over the suit land and also the house cons tructed thereon. It has also been pleaded that though it has been declared that both Deviram Bora and Bodhendra Nath Bora have right over the suit property in equal shares, as the predecessor-in-interest of the present appellants did not g ive up possession of half of the suit land and the house constructed thereon, de spite the demand made, suit has been instituted for partition. [3] The suit was contested by the predecessor-in-interest of the pre sent appellants by filing written statement contending inter alia that the suit is bad for non-joinder of necessary parties, namely, Garamur Satra, owner of the land and also the State of Assam, the land being acquired, in the meantime, und er the provisions of the Assam State Acquisition of Land Belonging to Religious or Charitable Institution of Public Nature Act, 1969 (in short (cid:28)1969 Act (cid:29)). It has also been pleaded that the land being not revenue paying estate, no decree for partition, in view of Section 54 of the CPC can be passed. The further plea ded case of the defendant is that on the High Court in the judgment dated 22nd S eptember, 1988 passed in First Appeal No.49/1975 did not ascertain the extent of share in the leasehold right of Deviram Bora and Bodhendra Nath Bora, the trial Court ought not to have decreed the suit in respect of half share. [4] he following issues for determination, apart from an additional issue:- (cid:28)(1) Whether there is any cause of action for the suit? The trial Court, based on the pleadings of the parties, framed t (2) Whether the suit is bad for non-joinder of necessary parties? (3) Whether the suit is barred by res-judicata? (4) Whether the suit is maintainable in its present form and in manner? (5) Whether the plaintiffs are entitled to get half share of the suit property a nd they are entitled to get the partition and delivery of possession as prayed f or? (6) To what relief or reliefs, the parties are entitled? Additional Issue: (1) Whether the suit land is acquired by the Govt. with effect from 14.04.1970? (cid:29) [5] Both the parties have examined 1(one) witness each, besides prov ing a number of documents to prove their respective claim. The witness was exam ined by the respective parties. [6] The trial Court has decided the additional issue relating to the claim of the defendant that the land has been acquired by the Government with e ffect from 14th April, 1970, in favour of the plaintiff, apart from other issues , namely, non-joinder of necessary party, res-judicata, cause of action and main tainability and decreed the suit by passing a preliminary decree. Hence, the pr esent appeal.
Legal Reasoning
[7] I have heard Mr. J. Sarma, learned counsel for the appellants. None appears for the respondents, though the names of the learned counsel appear ing for them are reflected in the cause list. [8] It has been contended by Mr. Sarma, learned counsel for the appe llants that since admittedly Garamur Satra is the landlord, the suit of the plai ntiff for partition of the leasehold right between the successors-in-interest of Deviram Bora and Bodhendra Nath Bora, is not maintainable, more so when the hou se was constructed by the landlord, Garamur Satra. Referring to Section 54 of t he CPC, it has also been submitted that as the decree for partition of the reven ue paying estate is to be affected by the collector, the trial Court ought not t o have passed the decree for partition, the land being not revenue paying estate . The learned counsel referring to Exhibit-D, the gazette notification, further submits that the land having been acquired under the provisions of the 1969 Act, the suit of the plaintiff is not maintainable on 2(two) grounds, namely, non-jo inder of the necessary party, i.e. the State of Assam, as well as on the ground that as the land vest on the Government, no decree in respect of the Government land can be passed. The learned counsel in support of his contention relating t o non-joinder of necessary parties, has placed reliance on a decision of this Co urt in Chuba Temsu Ao & Ors. -Vs- Nangponger & Ors. reported in AIR 1994 (Gau) 1 10 and of the Apex Court in Aliji Momonji & Co. -Vs- Lalji Mavji & Ors. reported in (1996) 5 SCC 379. [9] I have considered the submissions advanced by the learned counse l for the appellants. I have also perused the judgment and decree passed by the trial Court, apart from the evidence adduced by the parties and also the pleadin gs in the plaint and the written statement. The plaintiffs’ claim based on the judgment dated 22nd September [10] , 1988 passed in First Appeal No.49/1975. The said appeal arises out of Title S uit No.18/1971 (renumbered as Title Suit No.9/1973), which suit was instituted b y the predecessor-in-interest of the present plaintiffs, namely, Deviram Bora, f or declaration of his leasehold right over the suit land and for the eviction of the predecessor-in-interest of the present appellants, namely, Bodhendra Nath B ora. The trial Court though decreed the suit of the plaintiff by holding that D eviram Bora has the leasehold right over the land and as such, is entitled to th e decree, as prayed for, the same, however, has been interfered with by the High Court in First Appeal No.49/1975 preferred by the predecessor-in-interest of th e present appellants, vide the aforesaid judgment dated 22nd September, 1988. I t has been held by the High Court that both Deviram Bora and Bodhendra Nath Bora are the joint leaseholders of the suit land under Garamur Satra. In the said s uit, though Garamur Satra was a party defendant, the said decree passed has not been challenged by anyone, including by Garamur Satra. In the said suit, no ple a was also taken that the land in question has been acquired by the Government o f Assam under the provisions of the 1969 Act. The plea taken by the plaintiff t hat the house was constructed by him and also of the defendant that he construct ed the house, has also been rejected by the High Court by holding that the house in question belongs to both the plaintiff and the defendant. [11] As discussed above, Garamur Satra, the landlord, has never chall enged the finding recorded by the trial Court in Title Suit No.18/1971 (renumber ed as Title Suit No.9/1973) as well as of the High Court in First Appeal No.49/1 975 that both the plaintiff and the defendant in the said suit have joint leaseh old rights in respect of the land. The High Court has also found that both the plaintiff and the defendant in the said suit have constructed the house thereon. That being the position, in the absence of Garamur Satra as party defendant, t he decree for partition of the leasehold right in respect of the suit land and h ouse standing thereon can be passed. The contention of the appellants that the h ouse having been constructed by the landlord Garamur Satra and as such, the said
Decision
Satra is a necessary party, in view of the above, cannot be accepted. [12] This leads to the question as to whether the State of Assam is a necessary party. Admittedly, though the suit was instituted in the year 1971 a nd was decided by the trial Courts in the year 1975 as well as by the High Court in the year 1988, no plea to the effect that the land has been acquired under t he provisions of the 1969 Act has been taken by Bodhendra Nath Bora. No finding can also be recorded in that regard based on Exhibit-D document, the same being not an authenticated and complete document. Moreover admittedly appellants are still in possession of the suit land. Therefore, the suit filed by the plainti ff also cannot held to be not maintainable or hit by non-joinder of necessary pa rties. [13] The next question, which requires determination, is whether the suit of the plaintiff, in view of Section 54 of the CPC is maintainable. Sectio n 54 of the CPC laid down the manner in which the revenue paying estate is to be partitioned, after passing a decree by the civil Court. Order 20 Rule 18 CPC a lso lays down the manner of partition of the property or separate possession of the share therein in respect of the revenue paying estate and other land, which are not covered by Sub-Rule (1). Order 26 Rule 13 CPC provides for issuance of C ommission to make partition of immovable property where a preliminary decree for partition has been passed, in any case not provided for by Section 54. Section 54 CPC having laid down the manner of partition in respect of the revenue payin g estate, does not create any bar in civil Court to entertain a suit for partiti on in respect of the estate other than the revenue paying estate. Jurisdiction of the civil Court has to be excluded specifically, which has not been done. Tha t being the position, the plea taken by the defendants relating to the maintaina bility of the suit for partition also cannot be sustained. This leads to the question as to whether the trial Court was jus [14] tified in passing the decree for partition in respect of the half share of the s uit land. As discussed above, the High Court vide judgment and decree dated 22n d September, 1988 passed in First Appeal No.49/1975 has held that both the broth ers, namely, Deviram Bora and Bodhendra Nath Bora, are the joint owners, meaning thereby that they will have equal shares over the suit land and the houses stan ding thereon. That being the position, the trial Court has also rightly passed the decree for partition of the land in half of the share. [15] There is no dispute to the proposition of law laid down by the A pex Court in Aliji Momonji & Co. (supra) as well as by the High Court in Chuba T emsu Ao (supra). Naturally no decree can be passed in the absence of the necess ary party. I have already held that the suit is not bad for non-joinder of nece ssary party and hence, the ratio laid down in the said judgment is not applicabl e in the case in hand. [16] the appeal and hence, the same is dismissed. No costs. In view of the aforesaid discussion, I do not find any merit in [17] The Registry is directed to send down the records.