High Court
Case Details
RSA 59/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the defendant No.1 is directed against the judgment and decree da ted 16th August, 2010 passed by the learned Additional District Judge (FTC), Bar peta in Title Appeal No.14/2007, allowing the appeal preferred by the successors -in-interest of the original plaintiff, by setting aside the judgment and decree dated 13th March, 2007 passed by the learned Civil Judge, Barpeta in Title Suit No.12/2005, whereby and whereunder the plaintiff’s suit was initially dismissed .
Legal Reasoning
[2] The predecessor-in-interest of the present respondents, namely, Ghriten Sarma, instituted the aforesaid suit praying for declaration of right, t itle and interest in respect of 1/4th of the total land measuring 13 Bighas 4 Ka thas 5 Lechas, morefully described in Schedules-A, B, C and D to the plaint and also for recovery of khas possession contending inter alia that the suit land wa s the ancestral property of the original plaintiff, the defendant Nos.1, 2 and 3 , who are the brothers and who have inherited the said property in equal shares after the death of their father Dhireswar Sharma. It has further been pleaded t hat the defendant Nos.1, 2 and 3 have deprived the plaintiff from his share for which he has to institute the suit for declaration of right, title and interest as aforesaid. [3] The suit of the plaintiff has been contested by the defendant No .1, namely, Aswini Sharma, the present appellant, by filing written statement co ntending inter alia that he is possessing the land openly and adversely to the i nterest of the other owners and the plaintiff has no right, title and interest o ver the 1/4th share of the suit property. The defendant No.1, however, has admi tted in the written statement that the suit land originally belonged to their fa ther, Dhireswar, and after his death the property devolved on the plaintiff and 3(three) others, including the defendant No.1. [4] The defendant No.6, who has purchased 16 Lechas of land in Sched ule-B from the defendant No.1, in the written statement has pleaded that he acqu ired right, title and interest in respect of 16 Lechas of land by virtue of sale by the defendant No.1 by registered instrument. The defendant Nos.9, 10 and 11 have also filed their written statement contending inter alia that out of the t otal land 13 Bighas 4 Kathas 5 Lehas, they purchased 1 Bigha 10 Kathas of land a nd hence, they became the owner in respect of the said land. [5] e following issues for determination:- Based on the pleadings of the parties, the trial Court framed th (cid:28)1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the plaintiffs are entitled for declaration of their right, title, i nterest and for recovery of khas possession over the suit land? 4. Whether the plaintiffs are entitled for a decreed as prayed for? (cid:29) [6] The trial Court, upon appreciation of the evidence on record, bo th oral and documentary, dismissed the suit of the plaintiff by holding that the re is no cause of action for filing the suit and that since the defendant No.1, defendant No.2(a) and his mother sold certain land in favour of the defendant No .6 and defendant Nos.9, 10 and 11, respectively, the plaintiff cannot get the de cree as prayed for without challenging the said sale deed. It has also been hel d that the plaintiff could not prove the right, title and interest in respect of the suit land by adducing any cogent evidence. The plea taken by the defendant No.1 in the written statement that he is possessing the land openly and adverse ly to the interest of the other owners has also been accepted. [7] .2 and 3 have expired and their legal heirs were brought on record. During pendency of the suit, the plaintiff and the defendant Nos [8] The legal heirs of the original plaintiff, who are the responden ts in the present appeal, being aggrieved by the aforesaid judgment and decree p assed by the trial Court, preferred the aforesaid appeal, which has been allowed by setting aside the judgment and decree passed by the trial Court by holding t hat there was cause of action for filing the suit and that the defendant No.1 be ing the co-owner, his possession being the possession on behalf of the other co- owners cannot be termed as adverse to the interest of the other co-owners. The question whether the plaintiff is entitled to the relief claimed in the absence of the challenge to the sale deeds executed by the defendant No.1 and the defend ant No.2(a) and his mother in favour of the defendant No.6 and defendant Nos.9, 10 and 11, respectively, however, has not been gone into. Hence, the present app eal.
Legal Reasoning
[9] llant and Mr. P.P. Baruah, learned counsel appearing for the respondents. I have heard Mr. K.P. Sarma, learned senior counsel for the appe [10] Mr. Sarma, learned senior counsel appearing for the appellant su bmits that the appellate Court being the final Court on facts is required to go into all the evidence and decide all the issues on which the trial Court has pas sed the judgment, more so when it is a judgment of reversal. It has also been s ubmitted that since the suit of the plaintiff was dismissed, amongst other, on t he ground that no relief can be granted in the absence of the challenge made to the aforesaid sale deeds, the first appellate Court was obliged to go into that question, before setting aside the judgment and decree passed by the trial Court and decreeing the suit of the plaintiff. The learned counsel, therefore, submi ts that the substantial question of law may accordingly be formulated. [11] Per contra, Mr. Baruah, learned counsel appearing for the respon dents submits that since the quantum of land transferred by the defendant Nos.1 and 2(a) and his mother to the defendant No.6 and defendant Nos.9, 10 and 11, re spectively, is not beyond the shares of defendant Nos.1 and 2 out of the total l and measuring 13 Bighas 4 Kathas 5 Lechas, the trial Court ought not to have dis missed the suit of the plaintiff on the ground that the aforesaid sale deeds hav e not been challenged. It has been submitted that since all the co-owners of a joint family property has a right to transfer the un-partitioned land, subject t o the limit of his share, such sales are not required to be challenged and the c o-owner who sold any land, would be entitled to his share of the property less t he quantum of land transferred. The learned counsel, therefore, submits that th e first appellate Court, though has not gone into the said aspect of the matter, having regard to the aforesaid position, no substantial question of law is invo lved in the present appeal. [12] I have considered the submissions advanced by the learned cou nsel appearing for the parties and also perused the judgments and decrees passed by the Courts below. The reasons for dismissal of the suit and allowing the ap peal have already been noticed in this judgment. The defendant No.1/appellant being the co-owner of un-partitione [13] d joint family property cannot claim adverse possession as his possession is on behalf of the other co-owners. The trial Court, therefore, was wrong in observi ng that the defendant No.1 would have the right, title and interest as because h e is openly and adversely possessing the land, which is admittedly joint family property inherited by the plaintiff and three brothers, namely, defendant Nos.1, 2 and 3 on the death of their common ancestor, i.e. their father, Dhireswar. T he trial Court, having regard to the claim of partition and their being no dispu te that Dhireswar died leaving behind four sons, who have inherited the suit pro perty in equal proportion, was not correct in holding that there is no cause of action for the suit. The appellate Court, therefore, has rightly set aside the j udgment and decree passed by the trial Court by holding that there is cause of a ction for the suit and the defendant No.1 cannot be held to be adversely possess ing the land and he is possessing the property on behalf of the other co-owners, namely, plaintiff and the defendant Nos.2 and 3, who are his brothers. [14] It is, however, evident from the judgment passed by the first ap pellate Court that another ground on which the suit of the plaintiff was dismiss ed, i.e. that the sale deeds executed by the defendant No.1, defendant No.2(a) a nd his mother in favour of the defendant No.6 and defendant Nos.9 to 11, respect ively, have not been challenged, has not been gone into by the first appellate C ourt. It is evident from the record and also the judgments passed by the Courts below that the defendant No.1 sold 16 Lechas of land in favour of defendant Nos .6, and defendant Nos.2(a) and his mother, who are the successors-in-interest of the defendant No.2, sold 1 Bigha 10 Lechas of land in favour of defendant Nos.9 to 11, out of total 13 Bighas 4 Kathas 5 Lechas of land. The quantum of land t ransferred by them in faovur of the defendant No.6 and defendant Nos.9, 10 and 1 1 being not beyond the land fell in the share of the defendant Nos.1 and 2, the plaintiff need not challenge those sale deeds, as all the co-owners have right, title and interest over the un-partitioned land and subject to limit of their sh are, they can transfer their interest. The trial court, therefore, was wrong in dismissing the suit of the plaintiff on that count.
Decision
[15] In view of the above, I do not find involvement of any substanti al question of law so as to admit the appeal and hence, the appeal stands dismis sed. [16] [17] hout. Interim order passed earlier stands vacated. The parties, however, are directed to bear their own cost throug