High Court
Case Details
RSA 125/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY The appellant, who is the defendant No.1 in Title Suit No.153/1996, has filed the present appeal against the judgment and decree dated 30.05.2002 passed by the learned Civil Judge (Sr. Division) No.2, Cachar at Silchar, in Title App eal No.8/2001, whereby and whereunder the appeal preferred by the present respon dents/ plaintiffs has been allowed by setting aside the judgment and decree date d 30.11.2000 (decree drawn on 08.12.2000) passed by the learned Civil Judge (Jr. Division) No.1, Cachar at Silchar in the aforesaid suit. By the said judgment a nd decree the Trial Court earlier dismissed the suit of the plaintiffs. 2.
Legal Reasoning
The plaintiffs/respondents instituted the suit for declaration that they have the preferential right of purchase of 1/6th share of the properties descri bed in Schedule-II land, in view of the provisions contained in Section 22 of th e Hindu Succession Act, apart from the prayer for passing a decree directing exe cution of the registered deed of sale in their favour, contending inter alia tha t the Schedule-I land originally belonged to Jogamaya Das, the mother of the pla intiffs and the proforma defendant No.2, by right of purchase on 27.09.1978 (Ext .-1), which property was inherited by the plaintiffs and the proforma defendant No.2 being the heirs and they were in joint possession in equal shares. Accordin g to the plaintiffs, during the lifetime Jogamaya let out different rooms in the road side house including the room measuring 7 ft. X 8 ft. to the defendant No. 1 and after the death of Jogamaya the plaintiffs realized the rent from all the tenants including the defendant No.1, who, however, from the month of June, 1996 refused to pay the rent on the plea that he purchased 5 chataks of land and the houses standing thereon from the proforma defendant No.2 by a registered instru ment dated 18.06.1996 (Ext.-2). According to the plaintiffs there was no partiti on of the land amongst the plaintffs and the proforma defendant No.2 and they ha ve also the preferential right of claim under Section 22 of the Hindu Succession Act. The suit of the plaintiffs has been contested by the defendant No.1 by f 3. iling written statement contending inter alia that there was amicable partition of the land between the plaintiffs and the proforma defendant No.2, after the de ath of their mother Jogamaya, and the land described in Schedule-II fell in the share of proforma defendant No.2, which he has sold to the defendant No.1 vide r egistered instrument dated 18.06.1996 (Ext.-2), by virtue of which the defendant No.1 became the absolute owner in respect of Schedule-II land. 4. On the basis of the pleadings of the parties, the Trial Court framed the following issues for determination:- Is there any cause of action for the suit? Is the suit maintainable in its present form and manner? Whether the plaintiffs have their preferential right to get the reconvey (i) (ii) (iii) ance of the suit premises described in Schedule-II? (iv) Whether the defendant No.1 ever occupy the suit premises as monthly tena nt under the plaintiffs after the death of original landlord Jogamaya Das and ha d refused payment of monthly rent from the month of June, 1996 onward? Whether the any amicable family partition/ arrangement was made among th (v) e heirs and successors or late Jogamaya Das in respect of her land described in Schedule-I after her death and proforma defendant No.2 got the suit premises des cribed in Schedule-II as his share which subsequently sold to defendant No.2 leg ally? (vi) Whether the defendant No.1 acquired valid right, title and interest over the suit premises? (vii) (viii) Whether the plaintiffs are entitled to get decree as prayed for? To what relief/reliefs, the parties are entitled? 5. The Trial Court upon appreciation of the evidence adduced by the parties dismissed the suit of the plaintiffs by holding that there was partition of the land between the plaintiffs and the proforma defendant No.2, after the death of their predecessor-in-interest Jogamaya and the land described in Schedule-II fe ll in the share of proforma defendant No.2, who why registered instrument dated 18.06.1996 (Ext.-2) sold the land in favour of the defendant No.1. It has also b een held by the Trial Court that the defendant No.1 was a tenant under the profo rma defendant No.2, after the death of Jogamaya, who go the said property by ami cable partition. The Court below, therefore, has also held that the defendant No .1 by such purchase acquired the right, title and interest over the Schedule-II property. Being aggrieved, the plaintiffs/respondents preferred Title Appeal No.8/ 6. 2001, which has been allowed by the First Appellate Court vide judgment and decr ee dated 30.05.2002, reversing the finding recorded by the Trial Court. Hence th e present appeal. This appeal was admitted for hearing vide order dated 04.10.2002 on the 7. follow substantial questions of law:- (cid:28)(i) Whether the first appellate Court was justified to disturb the decree of dismissal of the suit based upon Section 22 of the Hindu Succession Act, claimi ng preferential right even when no prayer in plaint for cancellation of the sale deed in favour of the defendant No.1 was made? (ii) Whether it was open for the first appellate Court to discard the rent re ceipts produced and exhibited by the defendant No.1 on the ground that those wer e produced after the filing of the case, since the time to file the documents co mes only after the case is filed and the rent receipts could not have been produ ced earlier? Further more when the plaintiff No.1 in evidence clearly admitted t hat he has no documents to show receipt of rent after the death of his mother fr om the defendant No.1? (iii) Whether in face of clear evidence and admitted position that after execu tion of the sale deed in favour of the defendant No.1 and also the delivery of p ossession to him, it was open for the first appellate Court to apply the provisi ons of Section 22 of Hindu Succession Act to reverse the decree of dismissal of preferential rights, of co-sharers under the said provision? (cid:29)
Legal Reasoning
8. I have heard Mr. R.K. Jain, learned counsel for the appellant. None appe ars for the respondents despite reflecting the names of the learned counsel appe aring for the respondents in the cause list. 9. It has been submitted by Mr. Jain, learned counsel for the appellant tha t the First Appellate Court has reversed the finding recorded by the Trial Court on the Issue Nos.2, 3, 4, 5 and 6, without discussing the entire evidence on re cord, apart from the evidence relating to the partition of the land amongst the heirs of Jogamaya after her death and also without considering applicability of Section 22 of the Hindu Succession Act. It has been submitted that the First App ellate Court being the final Court on facts is duty bound to discuss all the evi dence on record, which is more so required when the judgment and decree passed b y the Trial Court is set aside. Mr. Jain, therefore, submits that the judgment a nd decree passed by the First Appellate Court for deciding the same afresh on th e basis of the evidence already adduced by the parties. 10. Mr. Jain, the learned counsel for the appellant referring to the petitio n filed under Order 41 Rule 32 read with Section 151 of the Civil Procedure Code , which has been registered and numbered as Misc. Case No.1256/2012, praying for taking the judicial notice of the subsequent event occurred during pendency of the present appeal, has submitted that the respondent Nos.4 and 5, namely, Smt. Bijoy Rani Das and Smt. Moni Rani Das, daughters of late Jogamaya Das, sold out their respective shares in the suit land measuring 5 chataks each, totaling 10 c hataks, by registered instrument dated 05.10.2005 in favour of the respondent No .1 Bhanu Das. It has also been submitted that the respondent No.2 Khokan Das has also sold out his share of the land measuring 5 chataks by a registered deed of sale dated 11.08.2006 in favour of Biswajit Roy, who is not a party to the pres ent proceeding. It has also been submitted that in the aforesaid sale deeds exec uted, the partition in fact has been admitted by vendors. The learned counsel su bmits that the subsequent event may be taken note of in deciding the appeal, in view of the provisions contained in Order 41 Rule 33 CPC. I have considered the submissions advanced by the learned counsel for th 11. e appellant and also perused the judgments and decrees passed by the Courts belo w, apart from the aforesaid miscellaneous application filed. 12. As noticed above, the Trial Court upon consideration of all the relevant evidence on record dismissed the suit of the plaintiffs, which, however, has be en set aside by the First Appellate Court by the impugned judgment and decree da ted 30.05.2002 passed in Title Appeal No.8/2001. The judgment passed by the Firs t Appellate Court reveals that no evidence relating to the claim of partition of the land amongst the heirs of Jogamaya, as led by the parties, have been discus sed by the First Appellate Court. The First Appellate Court also did not conside r the applicability of Section 22 of the Hindu Succession Act while decreeing th e suit of the plaintiffs by setting aside the judgment and decree passed by the Trial Court. 13. The First Appellate Court being the final Court on facts is duty bound t o discuss all the evidence on record adduced by the parties, more so, when the j udgment and decree passed by the Trial Court is disturbed, which has not been do ne in the instant case. 14. In view of the above, the judgment and decree dated 30.05.2002 passed by the First Appellate Court is set aside. The appeal is remitted to the First App ellate Court for deciding the same afresh, on the basis of the evidence on recor d. The First Appellate Court while deciding the said appeal shall also take into consideration the aforesaid subsequent events as pleaded by the present appella nt in Misc. Case No.1256/2012. The First Appellate Court shall decide the appeal within a period of 3(three) months from the date of appearance of the parties a s fixed by this Court by this order. The parties are directed to appear before t he First Appellate Court on 10.04.2013. 15. The Registry is directed to send down the records forthwith to the First Appellate Court so as to reach the said Court on or before 08.04.2013. 16. The appeal is accordingly allowed as indicated above. No cost.