High Court
Case Details
CO 1/2003 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the defendant No.1 and proforma defendant No.10 in Title Suit No. 74/1994 is directed against the judgment and decree dated 14th May, 2002 passed by the learned District Judge, Cachar at Silchar in Title Appeal No.17/2000, par tly upholding the judgment and decree dated 7th August, 2000 (decree drawn on 25 th August, 2000) passed by the learned Civil Judge (Senior Division) No.1, Cacha r at Silchar in the aforesaid suit. By the aforesaid judgment and decree, the T rial Court decreed the suit of the plaintiff declaring the right, title and inte rest, partition and eviction of the defendants therefrom. The appellate Court, however, while upholding the decree declaring the right, title and interest of t he plaintiff and eviction of the defendants has set aside the preliminary decree passed for partition on the ground that all the co-sharers are not parties to t he suit. Cross Objection No.1/2003 has been filed by the plaintiff, in so far a s it relates to setting aside the decree passed by the Trial Court for partition . [2] The respondent as plaintiff instituted the aforesaid suit for de claration of right, title and interest in respect of the land measuring 8 Kathas 11 Chataks 13 Gondas 1 Kora and 1 Kranti described in 1st Schedule to the plain t and for passing a preliminary decree for partition and also for eviction of th e defendant Nos.1 to 4 from the land measuring 5 Kathas, described in 2nd Schedu le to the plaint, which is part of the 1st Schedule land. The pleaded case of t he plaintiff is that one Lakhi Chakraborty was the owner in respect of 1 Bigha 6 Katha 3 Chataks of land, after whose death the property devolved on his 3(three ) sons, namely, Labanya Kr. Chakraborty, Lokesh Chakraborty and Lokendra Kr. Cha kraborty in equal shares. It has also been pleaded that there was a family arra ngement amongst the 3(three) brothers, which was reduced to writing on 22nd May, 1948 (Exhibit-31) and by virtue of such mutual family arrangement, land measuri ng 8 Kathas 11 Chataks 13 Gondas 1 Kora and 1 Kranti fell in the share of each o f the 3(three) brothers, namely, Labanya, Lokesh and Lokendra. According to the plaintiff, Lokendra leased out share of the land to one Sashi Mohan Sarma on 26 th May, 1955, on condition of payment of annual rent, who, in turn on 29th March , 1968 sold the leasehold right to the plaintiff vide Exhibit-6 registered deed. It is also the pleaded case of the plaintiff that Lokendra subsequently on 15t h May, 1978 executed a registered deed of sale transferring the title over the p roperty in favour of the plaintiff vide Exhibit-10, which was registered on 21st May, 1978. According to the plaintiff, by virtue of such purchase, he became t he owner in respect of the land measuring 8 Kathas 11 Chataks 13 Gondas 1 Kora a nd 1 Kranti (1st Schedule to the plaint), which land fell in the share of Lokend ra. It is also the pleaded case of the plaintiff that in the year 1980, the def endant Nos.1 to 4 approached the plaintiff for shelter and accordingly, the plai ntiff allowed them to stay over the 2nd Schedule land on condition that they hav e to vacate the land as and when demanded. The plaintiff further pleaded that t here was some dispute between the defendants and the plaintiff and though the pl aintiff requested the defendants to vacate the land on 15th October, 1986, they refused to do so, for which the suit has been instituted. [3]
Legal Reasoning
The defendant Nos.1, 2, 4 and proforma defendant No.10 contested the suit by filling their respective written statements. The defendant No.4 in the written statement has pleaded that Labanya, one of the brothers of Lokesh a nd Lokendra, executed a lease in favour of one Jaladhar Debnath in respect of 3 Kathas 8 Chataks of land on 26th October, 1951, who occupied the said land by co nstructing the dwelling house and who, on 10th June, 1961 sold the jote right in favour of Harinanda Choudhury, the father of the defendant No.4 with a specific boundary. According to the defendant No.4, Harinanda Choudhury and his brother Sadananda Choudhury, thereafter, purchased the ownership right in respect of th e said 3 Kathas 8 Chataks of land from the legal heir of Labanya Kr. Chakraborty , namely, Priya Gopal, and accordingly got their names mutated in the revenue re cords. It has also been pleaded that Sadananda Choudhury, thereafter, allowed t he defendant No.1 to stay over the land fell in his share and the defendant Nos. 2 and 3 have been living with the defendant No.1. [4] The defendant No.2 in his written statement filed has denied the averments made by the plaintiff in the plaint. The defendant No.1 and the prof orma defendant No.10, who filed the present appeal in their written statement co ntended that the defendant No.1 was allowed by the father of the defendant No.4, namely, Harinanda Choudhury, and his brother Sadananda Choudhury, who is the fa ther of the proforma defendant No.10, to occupy the plot of land and hence, they are possessing the land by making permanent construction within 5(five) years a nd as such protected under Section 60 of the Easement Act. [5] med the following issues for determination:- The Trial Court on the basis of the pleadings of the parties fra 1) 2) Is there any cause of action? Is the suit maintainable? 3) Is the suit barred by limitation? 4) 5) 6) lations? 7) nd? Is the suit bad for estoppel, waiver and acquiescence? Is the suit bad for defect of parties? Is the suit barred under the provisions of the Assam Land & Revenue Regu Whether the plaintiff has got right, title and interest over the suit la 8) Whether the defendant no.1 was a license under the plaintiff in respect of the second schedule land within schedule 1 of the plaintiff and constructed t emporary house to live in with defendant nos.2 and 3? Whether the defendant nos.1, 2, 3 and 4 are liable to be evicted therefr 9) om by demolishing their house and the plaintiff is entitled to get khas possessi on of the schedule II land as mentioned above? 10) Whether the plaintiff is entitled to any relief? [6] The plaintiff in order to prove his case examined 3(three) witne sses and exhibited 34(thirty-four) documents. The defendant Nos.1 and 10 also e xamined 9(nine) witnesses and proved 22(twenty-two) documents. [7] The Trial Court upon appreciation of the evidence on record has decreed the suit of the plaintiff for partition and also for declaration of righ t, title and interest in respect of 1st Schedule land apart from recovery of kha s possession by evicting the defendants from 2nd Schedule land. Being aggrieved , the defendant No.1 and the proforma defendant No.10 preferred Title Appeal No. 17/2000 before the learned District Judge, Cachar at Silchar, which has been par tly allowed, as noticed above. Hence, the present appeal by the defendant No.1 and the proforma defendant No.10. [8] er, 2002 on the 2(two) following substantial questions of law:- The appeal was admitted for hearing vide order dated 22nd Novemb Whether the learned lower courts were justified in admitting the two unr (cid:28)1. egistered ’Swaranlipis’ (exhibits 31 and 32) into evidence for declaration of th e right, title and interest of the plaintiff over the Schedule 2 land inasmuch a s the same being reduced into writing was a document of title forming the founda tion of the plaintiff’s claim and required registration under section 17 of the Registration Act, 1908. 2. Whether, the learned lower Appellate Court, having arrived at a finding that defendant No.1 has right in respect of 3K 8Ch of lands, was justified in ho lding that such right would be available to him in respect of the land of anothe r Co-Sharers, when the Swaranlips were unregistered and each co sharers was hold ing jointly with the other. (cid:29) [9] During pendency of the present appeal, the appellant/ defendant No.1 died and in his place the present appellant No.1(i) to 1(vii) have been sub stituted vide order dated 26th February, 2013 passed in Misc. Case No.2441/2012.
Legal Reasoning
[10] I have heard Mr. B.C. Das, learned senior counsel for the appell ants and Mr. S.K. Ghosh, learned counsel appearing for the respondent/plaintiff. [11] Referring to the substantial questions of law formulated and als o Exhibit-31 Swarnalipi, it has been submitted by Mr. Das, learned senior counse l for the appellants that since the said document (Exhibit-31) creates right in favour of Lokendra in respect of 8 Kathas 11 Chataks 13 Gondas 1 Kora and 1 Kran ti of land, described in 1st Schedule to the plaint, the said document is compul sorily registerable under Section 17 of the Indian Registration Act and since th e said document is admittedly an unregistered document, Lokendra cannot acquire any right, title and interest in respect of the 1st Schedule land and consequent ly the plaintiff by virtue of the sale deed dated 15th May, 1978 (Exhbit-10) can not acquire right, title and interest over any specific portion of land left by Lakhi Chakraborty. According to the learned senior counsel, Exhibit-31 being a family arrangement in writing amongst the 3(three) brothers with the purpose of using the writing as a proof of what they have arranged, the said document requi res registration under Section 17 of the Registration Act, as by such family arr angement, title in respect of each of the brothers have been declared for future . The learned senior counsel, therefore, submits that as the Exhibit-31 is an u nregistered document, all the 3(three) brothers, namely, Labanya, Lokesh and Lok endra, will have right over the entire property and hence the plaintiff, at the most, by virtue of the sale deed dated 15th May, 1978 (Exhibit-10) would be enti tled a decree for joint possession alongwith the other co-owners, namely, Labany a and Lokesh. It has also been submitted that the defendant No.1 could prove by adducing evidence and exhibiting the Exhibit-E gift deed that the 2(two) sons o f Harinanda Choudhury, namely, Prabhakar Nath Choudhury and Dibakar Nath Choudhr y, gifted land measuring 3 Kathas 8 Lechas to the defendant No.1, who got the sa id property from the successor-in-interest of Labanya by virtue of Exhibit-O sal e deed dated 5th October, 1968. The learned senior counsel, therefore, submits that in the absence of any proof relating to the partition and when the first a ppellate Court has refused to pass the decree for partition, the first appellate Court ought to have declared the joint possession of the plaintiff as well as t he defendant No.1. Per contra, Mr. Ghosh, learned counsel appearing for the respond [12] ent/plaintiff has submitted that it is apparent from Exhibit-31, Swarnalipi, tha t it is nothing but the memorandum of what had been agreed to between the partie s, without creating any right other than the right, which they already have acqu ired after the death of Lakhi Chakraborty. It has also been submitted that by th e said documents what the 3(three) brothers have done is division of the propert y already made in equal shares and as such, it does not create any title in favo ur of anyone, so as to require registration under the provisions of that Act. T he learned counsel further submits that since the plaintiff could prove the init ial purchase of the leasehold right from the lessee Sashi Mohan Sarma vide Exhib it-6 deed dated 29th June, 1968 and subsequent purchase of the ownership right f rom Lokendra vide registered sale deed dated 15th May, 1978, the learned Court b elow has rightly passed the judgment and decree declaring right, title and inter est in respect of the 1st Schedule land, which, by virtue of the family settleme nt fell in the share of Lokendra. The learned counsel further submits that the first appellate Court ought not to have set aside the decree passed for partitio n as all the co-sharers were initially parties to the suit, but where names were , however, subsequently been struck off. I have considered the submissions advanced by the learned counse [13] l appearing for the parties and also perused the judgments and decrees passed by the Courts below, apart from the other materials available on record. It is not in dispute that the land measuring 1 Bigha 6 Kathas 3 [14] Chataks covered by dag No.76 of Patta No.103 originally belonged to Lakhi Chakra borty, on whose death his 3(three) sons, namely, Labanya, Lokesh and Lokendra in herited the said property in equal shares. By Exhibit-31 Swarnalipi, the 3(thre e) brothers have reduced in writing in the form of a memorandum about their fami ly settlement on distribution of the property in equal shares, each getting 8 Ka thas 11 Chataks 13 Gondas 1 Kora and 1 Kranti of land. Perusal of Exhibit-31 re veals that by the said document, no right has been created in favour of anyone i n respect of the land more than his share in the property being the legal heir o f Lakhi Chakraborty. Such document, therefore, is the memorandum indicating wha t had been agreed to between the parties without creating any right in excess of their respective shares as all of them have equal shares in the property left b y Lakhi Chakraborty. The said document, therefore, is not compulsorily register able under the Registration Act. It also appears that the plaintiff could prove by executing the registered deed dated 29th June, 1968 (Exhibit-6) that he has purchased the leasehold right from Sashi Mohan Sarma, who was a tenant under Lok endra in respect of the entire land descried in Schedule-1. The plaintiff has a lso proved the sale deed dated 15th May, 1978 (Exhibit-10) by which Lokendra sol d the ownership right in respect of the 1st Schedule land in his favour. By vir tue of such purchase, the plaintiff, therefore, stepped into the shoes of Lokend ra and became the owner in respect of the land described in 1st Schedule. It al so appears from Exhibit-E deed of gift, based on which the defendant No.1 claims title over 3 Kathas 8 Chataks of land, with the boundary given in the said docu ment, which tallies with the boundary given by the defendant No.4 in the pleadin g, that there was mutual family settlement amongst the brothers, i.e. Labanya, L okesh and Lokendra, with specific boundary. [15] Since the plaintiff himself has claimed that there was family ar rangement and mutual partition amongst the 3(three) brothers with specific bound ary, no illegality has been committed in refusing to pass a decree for partition , more so, when all the co-sharers are not parties to the suit. [16] In view of the aforesaid discussion, I do not find any merit in the appeal as well as in the cross objection and hence, the same are dismissed. [17] [18] The parties are directed to bear their own costs. Registry is directed to send down the records.