High Court
Case Details
RSA 229/2012 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal by the plaintiffs is directed against the judgment and decree dated 7.7.2012 passed by the learned Civil Judge, Dibrugarh in Title Appeal No. 22/201 0, dismissing the appeal preferred by the present appellants by affirming the ju dgment and decree dated 4.6.2010 passed by the learned Munsiff in Title Suit No.
Legal Reasoning
15/2004, whereby and whereunder the plaintiffs’ suit has been dismissed. The plaintiffs instituted the suit for declaration of right, tit le and interest, as well as possession in respect of the land measuring 37 bigha s 15 lechas, more fully described in schedule A to the plaint and also for decla ration that partition proceeding No. 18/88-89 is illegal, void, ab initio and in operative in law, apart from perpetual injunction restraining the defendants fro m entering into the suit land, contending inter alia that the suit land original ly belonged to Tabita, who had one daughter and one son, namely, Magdoli and Jew el. According to the plaintiffs they are the successors in interest of Jewel, so n of Tabita, and that the defendants are not entitled to any share as Tabita dur ing her lifetime renounced Magdoli and deprived her from the property of Tabita. The suit has been contested by the defendants by filing written statement contending inter alia that they being successors in interest of Magdol i they cannot be deprived from the share of the land of Magdoli after the death of Tabita. The case as pleaded by the plaintiffs that Magdoli was renounced by T abita has also been denied. The suit was initially dismissed by the trial court vide judgmen t dated 10.11.2005, which, however, has been set aside by the first appellate co urt vide judgment dated 15.6.2009 passed in Title Appeal No. 54/2005 preferred b y the present appellants and remanded the suit for fresh trial framing the two i ssues, namely, (cid:28)(i) whether the suit was bad for nonjoinder of necessary parties and (ii) whether the defendants are entitled to make partition of the suit land ? (cid:29) : - On remand the trial court tried the suit on the following issues (cid:28)1. Whether there is cause of action in the suit? 2. Whether the suit is maintainable 3. Whether Magdoli Christian was renounced by her parents Tabita Christi in its present form? an and Silas Christian? 4. Whether the partition in respect of the suit land done by the Revenue Authority is not proper? 5. Whether defendants are entitled to make partition of the suit land? 6. Whether the suit is bad for non-joinder of necessary parties? 7. Whether the plaintiff is entitled to decree as prayed for? 8. Whether any other relief or reliefs the parties are entitled to? (cid:29) The trial court upon appreciation of the evidence on record dism issed the suit of the plaintiffs by holding that though the plaintiffs have clai med that Magdoli, daughter of Tabita, was renounced by her and as such not entit led to inherit any property left by Tabita, the same however, could not be prove d. Being aggrieved the plaintiffs preferred Title Appeal No. 22/2010 which has a lso been dismissed vide judgment dated 7.7.2012 concurring with the finding of t he trial court. Hence the present appeal.
Legal Reasoning
I have heard Mr. Sarma, learned counsel for the appellants and M r. Ahmed, learned counsel appearing for the respondents. The learned counsel for the appellant referring to the impugned judgment and decree passed by the first appellate court has submitted that the f inding recorded by the court that Magdoli was not renounced by Tabita being perv erse the first appellate court ought not to have affirmed the judgment and decre e passed by the trial court and ought to have allowed the appeal by dismissing t he suit of the plaintiffs. On the other hand the learned counsel appearing for the responde nts submits that the concurrent finding of fact has been recorded by both the co urts below to the effect that though the plaintiffs have pleaded that Magdoli wa s renounced by Tabita, the plaintiffs could not prove the same and hence the cou rts below have rightly passed the judgments and decrees as it is the case of the plaintiffs that Tabita had two children, namely Magdoli, daughter and Jewel, th e son, through whom the defendants and the plaintiffs respectively, have claimed their right over the property left by Tabita. I have considered the submission advanced by the learned counsel for the parties and also perused the judgments and decrees passed by the courts below. The plaintiffs have admitted that the suit land originally belon ged to Tabita, who had two children, namely Magdoli, daughter and Jewel, son. Th e plaintiffs are the successors-in-interest of Jewel and the defendants are the successors in interest of Magdoli. The plaintiffs have claimed that since Magdol i was renounced by Tabita, Magdoli would not inherit any property left by Tabita and hence entire property would be inherited by Jewel and consequently by the s uccessors in interest namely, the plaintiffs, after the death of Jewel. It appears from the judgments and decrees passed by the courts below that the plaintiffs though pleaded that Magdoli was renounced and thereby deprived her from inheritance, the plaintiffs, however, could not prove the same . Such finding of fact recorded by the trial court has been concurred by the fir st appellate court. Such concurrent finding of fact cannot be disturbed in secon d appeal in the absence of demonstration of any perversity in recording such fin ding. The appellants though have contended that there is perversity in recording such finding no perversity, however, could be brought to the notice of the cour t. In the absence of proof of renouncement by the plaintiffs Magdoli’s successor s in interest would have their share and the plaintiffs alone cannot claim to ha ve right in the property left by Tabita to the exclusion of the successors in in terest of Magdoli.
Decision
In view of the above, I do not find involvement of any substanti al question of law in the present appeal and hence the same is dismissed. No cos t.