High Court · 2012

This appeal by the plaintiffs in Title Suit No. 42/2002 is directed against the judgment and decree dated 17.12.2008 passed by the learned Civil Judge, Sonitpur at Tezpur in Title Appeal No. 35/2007 whereby and whereunder the appeal preferr ed by the plaintiffs was dismissed by upholding the judgment and decree dated 23 .11.2007 passed by the learned Munsiff No. 1. Tezpur in Title Suit No. 42/2002. The appellants as plaintiffs instituted the aforesaid suit for declaration of ri ght, title and interest in respect of 3 kathas 3 lechas of land, more fully desc ribed in the schedule to the plaint, contending inter alia that originally the l and measuring 1 bigha 1 katha 6 lechas belonged to Mahidhar Sut and Smt. Luhuri Sut, who are the brother and sister, which was mutually partitioned between them , as a result of which 3 kathas 3 lechas fell in the share of Mahidhar Sut, whic h is the suit land. The further pleaded case of the plaintiffs is that after the death of Mahidhar Sut the property devolved on Khireswar Das and Sidheswar Das. Sidheswar Das died leaving behind the plaintiffs as the heirs and since Khiresw ar Das died unmarried the entire land fell in the share of Mahidhar Sut i.e. 3 k athas 3 lechas devolved on the plaintiffs. The further case of the plaintiffs in the plaint is that though the defendant Nos. 1 and 2 initially on 19.2.2001 mad e an attempt to occupy the suit land without any success, however, on 3.8.2002 t he defendant Nos. 1 and 2 entered into the suit land and dispossessed the plaint iffs therefrom. The plaintiffs therefore filed the suit for declaration of right , title and interest in respect of 3 kathas 3 lechas of land. The defendants filed the written statement contending inter alia that the land m easuring 1 bigha 1 katha 6 lechas originally belonged to three persons namely Be tha Sut, Amar Sut and Betu Sut. It has also been pleaded that Betha Sut during h is lifetime relinquished his right over the property in favour of the Luhuri Sut who was the daughter of Amar Sut. Betu Sut also according to the defendants rel inquished his right over his share of the property in favour of Luhuri Sut and h ence Luhuri Sut became the owner in respect of 1 bigha 1 katha 6 lechas of land and the defendant Nos. 3, 9 and 10 being the heirs of Luhuri Sut inherited the p roperty after the death of Luhuri Sut. In the written statement it has also been pleaded that Mahidhar Sut the predecessor-in-interest was the son of Bethai Sut but he did not inherit any property as Bethai Sut during his lifetime relinquis hed his share in favour of Luhuri Sut. An alternative plea of adverse possession was also taken. That apart the plea of non joinder of necessary parties namely 3 daughters of Sidheswar Das and sisters of the plaintiff Nos. 2 and 3 were take n in para 3 of the written statement. The learned trial court on the basis of the pleadings of the parties framed the following issued for consideration and decision: (cid:28)1. Whether there is any cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is bad for non joinder of Smti. Putuli Borah, Ila Bora and B ulu Das, all the daughters of late Sidheswar Das and mis joinder of defendant No . 2 and 8 in the suit? 4. Whether the suit is barred by limitation? 5. Whether the suit is barred u/s 34 of the Specific Relief Act? 6. Whether the suit is properly valued and proper court fee has been paid thereo n? And whether if the suit valued properly, this court has jurisdiction to try t he suit? 7. Whether the suit bad for suppression of material facts? 8. Whether the plaintiffs are entitled for a declaration of their right, title a nd interest over the suit land? 9. Whether the plaintiff is entitled to a decree as prayed for? 10. Whether the defendant is entitled to a decree as prayed for? 11. To what other relief/reliefs the parties are entitled to? (cid:29) The learned trial court upon appreciation of the evidences on record, both oral and documentary, answered the issue Nos. 1, 2, 4 and 5 in favour of the plaintif fs and the issue Nos. 3 and 6 to 10 against the plaintiffs. The issue relating t o the non joinder of necessary parties i.e. issue No. 3 was decided against the plaintiffs holding that the suit is bad for non joinder of Putuli Borah, Ela Bor ah and Bulu Das the daughters of late Sidheswar Das, the suit being for declarat ion of right, title and interest in respect of 3 kathas 3 lechas, cannot be decr eed in favour of the plaintiffs where plaintiffs’ sisters have also share in the property left behind by Sidheswar Das. Being aggrieved the plaintiffs preferred Title Appeal No. 35/3007 in the court o f the learned Civil Judge, Sonitpur at Tezpur. The defendants also filed cross o bjection against the finding recorded by the trial court against issue Nos. 1, 2 , 4 and 5. The learned first appellate court upholding the finding recorded by the trial co urt against the issue Nos. 1, 2, 4 and 5 had rejected the cross objection filed by the defendants and also upheld the finding recorded by the trial court in res pect of the other issues which were decided against the plaintiffs. The learned first appellate court against the issue No. 3 has held that the suit of the plai ntiffs for declaration of right, title and interest in respect of 3 kathas 3 lec has is bad for non joinder of necessary parties namely, the daughters of Sidhesw ar who have also the share in the said property. Hence the present appeal. During pendency of the appeal the plaintiff No. 1 Smt. Kamaleswari Das expired a nd in her place Putuli Borah, Ela Bora and Bulu Das the daughters of Sidheswar D as were substituted as Deben Das and Mahidhar Das the other two sons of Kamalesw ari Das are already on record as plaintiff/appellant Nos. 2 and 3. I have heard Mr. Khetri, learned senior counsel for the appellants as well as Mr . Banerjee, learned senior counsel for the respondents. Mr. Khetri, learned senior counsel for the appellants submits that since the def endants have taken the plea of adverse possession apart from the claim that they became the owner of the entire land measuring 1 bigha 1 katha 6 lechas, unless these issues are first decided the suit of the plaintiffs cannot be dismissed on the ground of non joinder of necessary parties, namely the daughters of Sidhesw ar Das. It has, therefore, been submitted that the suit ought not to have been d ismissed for non joinder of necessary parties. In fact, according to the learned senior counsel, the defect of parties has been removed by substitution of the n ames of the three daughters in the second appeal after the death of the appellan t No. 1 Kamaleswari Das. Mr. Banerjee, learned senior counsel on the other hand has submitted that since the plaintiffs instituted the suit for declaration of right, title and interest in respect of 3 kathas 3 lechas claiming that they have inherited the said prope rty after the death of Sidheswar Das, the daughters of Sidheswar Das are necessa ry parties, and though the plea of non joinder of necessary party was specifical ly taken in the written statement filed by the defendants, the plaintiffs did no t take any steps for impleading the daughters of Sidheswar Das as parties in the suit, who have also acquired right over the suit land by inheritance. As such b oth the courts below have rightly dismissed the suit. It is evident from the judgments and decrees passed by the learned courts below that the plaintiffs instituted the suit for declaration of right, title and inte rest and recovery of khas possession of the land measuring 3 kathas 3 lechas con tending that the suit land after mutual partition fell in the share of Mahidhar Sut and after his death devolved on Sidheswar Das as Khireswar Das, another son of Mahidhar dies issueless. The suit property, thereafter, devolved on the plain tiffs after the death of Sidheswar Das. In the written statement filed more part icularly in para 3 thereof the defendants have taken a specific plea that the su it is bad for non joinder of necessary parties namely Putuli Borah, Ela Bora and Bulu Das, the daughters of Sidheswar Das and the plaintiff No. 1 and the sister s of plaintiff Nos. 2 and 3. PW 1 in his evidence has also admitted that Putuli Borah, Ela Bora and Bulu Das, daughters of Sidheswar Das, have also, after the d eath of Sidheswar Das, right over the suit land. Order 1 Rule 9 of the CPC provides that no suit shall be defeated by reason of t he misjoinder or nonjoinder of parties, and the Court may in every suit deal wit h the matter in controversy so far as regards the rights and interests of the pa rties. Proviso thereto, however, stipulates that nothing in this rule shall appl y to non joinder of a necessary parties. In a suit for declaration of right, title and interest filed by the plaintiffs c laiming right over the property by right of inheritance all the heir are necessa ry parties and no declaration of right, title and interest can be decreed in the absence of any of the heir as it would deprive the other heirs of the property. In the instant case, the daughters of Sidheswar Das were not add ed as party though they are the necessary parties in the suit, they also having acquired right over the property, along with the plaintiffs, after the death of Sidheswar Das. The plaintiffs even did not take any steps for their impleadment as parties in the suit despite taking specific plea in the written statement fil ed by the defendants that the suit is bad for non joinder of necessary parties n amely the three daughters of Sidheswar Das. The contention of the learned senior counsel for the appellants that the learned courts below ought not to have dismissed the suit for non joinder of necessary parties without first deciding the question of adverse possession or the right o f the defendants to occupy the land as claimed in the written statement, cannot be accepted as the plaintiffs have to prove their own case and the suit of the p laintiffs being for declaration of right, title and interest, the same cannot be decreed in the absence of necessary parties namely the daughters of Sidheswar D as. The other contention of the learned senior counsel that the defect for non j oinder of necessary parties stands removed on substitution of the names of the d aughters of plaintiff/appellant No. 1 in second appellate stage, after the death of plaintiff No. 1 cannot also be accepted, they having not been impleaded as p arty in the suit. That apart it also appears that vide order dated 7.12.2011 it has been held that the appeal stands abated as against the respondent Nos. 3 and 4 who were the de fendant Nos. 3 and 4 in the suit and against whom the decree was prayed for, for not bringing the legal heirs of the said respondents on record. Since the decre e for declaration of right, title and interest was prayed for against all the de fendants, including the defendant Nos. 3 and 4, and for recovery of possession i n respect of the suit land, abatement of the appeal against those defendants res ults in the abatement of the entire appeal against the other defendants also. In view of the above, the appeal stands dismissed there being no substantial que stion of law involved. No cost.