The Trial Court has recorded a clear finding that though the
plaintiff has claimed that the land covered by Patta No.15 originally
belonged to Faguna, his father, the plaintiff, however, could not prove
the same. It has also been held that the land covered by Patta No.15,
part of which is described in Schedule-B to the plaint, belonged to
Jadab, one of the sons of Faguna. The said finding has not been
disturbed by the First Appellate Court and in fact has been affirmed.
The plaintiff though claimed that the land covered by Patta No.15
belonged to Faguna and in support of which the plaintiff examined the
Latmandal as PW-4, he, however, could not prove that the land covered
by Patta No.15 originally belonged to Faguna and hence the plaintiff
being one of the sons is entitled to 1/7th share of the land left by
Faguna. The plaintiff also in the plaint never pleaded that though the
land covered by Patta No.15 belonged to Jadab, another son of Faguna,
since he has thrown the said land to the common stock of the
coparcenary, it forms the coparcenary property and as such the plaintiff
is entitled to a share. In the absence of any such pleading and also in
the absence of any evidence led to that effect by the plaintiff, the First
Appellate Court ought not to have held that though the land covered by
Patta No.15 belonged to Jadab, the same, however, forms the
coparcenary property as the said property was thrown into the common
stock of the coparcenary and hence the plaintiff is entitled to a share as
claimed by him, which is described in Schedule-B to the plaint. The First
Appellate Court, in fact, has allowed the appeal by making out a case
which has neither been pleaded by the plaintiff nor by the defendants
and no amount of evidence was also led in that respect.
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
RSA No. 106 of 2003
Smt. Mailata Talukdar,
-Versus-
Sri Joy Kanta Talukdar,
BEFORE
THE HON’BLE MR. JUSTICE B.P. KATAKEY
Date of Judgment & Order : 26th February, 2014
Citation;AIR 2014(NOC)526 Gauhati
This appeal by the defendant Nos.1 to 9 is directed against
the judgment and decree dated 05.04.2003 passed by the learned Civil
Judge (Sr. Division), Barpeta, in Title Appeal No.10/2002, allowing the
appeal by setting aside the judgment and decree dated 26.06.2002
passed by the learned Civil Judge (Jr. Division), Barpeta, in Title Suit
No.99/1997,
whereby
and
whereunder
the
suit
of
the
plaintiff/respondent No.1 was initially dismissed.
2.
The respondent No.1 as plaintiff instituted the aforesaid suit
for partition of the land measuring 57 bighas 3 kathas 0 lecha described
in Schedule-A to the plaint and declaration of right, title and interest in
respect of 9 bighas 3 kathas 13 lechas of land covered by Dag No.202
of K.P. Patta No.15 (Schedule-B), which is part of the Schedule-A land
as his share being 1/7th of the Schedule-A land, contending inter alia
that Schedule-A land apart from other annual patta land originally
belonged to Faguna, who died in the year 1926 and had 7(seven) sons
including the plaintiff, the predecessor-in-interest of the defendant
Nos.1 to 7, namely, Madhab Talukdar, defendant No.8 Madan Talukdar,
defendant No.9 Prankrishna Talukdar, predecessor-in-interest of the
proforma
defendant
Nos.1
to
8,
namely,
Girish
Ch.
Talukdar,
predecessor-in-interest of the proforma defendant Nos.9 to 13, namely,
Satish Ch. Talukdar and the predecessor-in-interest of the proforma
defendant Nos.14 to 20, namely, Jadab Talukdar. It has also been
pleaded that the land belonging to Faguna was partitioned amongst the
6(six) sons by the family settlement dated 15.04.1960 (Ext.-2), leaving
aside Satish Talukdar, another brother of the plaintiff, as he was settled
in Kolkata and not interested in the ancestral property and by virtue of
such partition the land described in Schedule-B fell in the share of the
plaintiff, which he earlier enjoyed through Girish Ch. Talukdar,
predecessor-in-interest of the proforma defendant Nos.1 to 8. The
further pleaded case is that the plaintiff when claimed his right, title and
interest in respect of the Schedule-B land, which property he got by
virtue of the partition, the same having been denied by the defendant
Nos.1 to 9, he has to brought the suit for declaration as aforesaid and
also for recovery of khas possession.
3.
The plaintiff’s suit has been contested by the defendant
Nos.1 to 9 by filing joint written statement, contending inter alia that
the land covered by Dag No.178, 199 and 202 of periodic Patta No.15
was not the land belonging to Faguna and was the self-acquired land of
Jadab in whose favour the patta was issued by the Revenue Authority,
though the plaintiff has included the said land in Schedule-A to the
plaint claiming to be of Faguna. According to the defendants, since the
said land did not belong to Faguna, the plaintiff cannot claim the right,
title and interest in respect of the Schedule-B land, which is covered by
Dag No.202 of periodic patta No.15, as the heir of Faguna. The further
pleaded case of the defendants is that Ext.-2 document dated
15.04.1960 does not include the land covered by periodic patta No.15.
4.
Based on the pleadings of the parties, the Trial Court
framed the following issues for determination:-
(i) Whether there is cause of action for the suit?
(ii) Whether the suit is maintainable in its present form?
(iii) Whether the suit is under valued and plaint is under
stamped?
(iv) Whether the suit is barred by law of limitation?
(v) Whether the plaintiff has right, title and interest over
the suit land?
(vi)
Whether the plaintiff is entitled to get a decree for
possession over the 1/7th share of the Schedule-A
land?
(vii) Whether the plaintiff is entitled to get a decree for
partition along with precept to the revenue authority
to issue separate patta?
(viii) Whether the land measuring 31B 3K covered by patta
No.15
described in the
Schedule-A
land
is
not
ancestral property as alleged by the defendant?
(ix)
Whether the share from the land measuring 26B
covered by periodic patta No.162 was sold and
consideration money of plaintiff’s share was given to
the plaintiff?
(x)
Whether the plaintiff is entitled to a decree as prayed
for?
(xi)
To what other relief or reliefs, if any, the plaintiff is
entitled to?
5.
The Trial Court upon appreciation of the evidence on record
dismissed the suit of the plaintiff by holding that the plaintiff could not
prove that the land described in Schedule-B to the plaint originally
belonged to Faguna. The Trial Court has also recorded the finding that
the land, as is evident from the evidence adduced by the plaintiff,
belonged to Jadab and as such the plaintiff being the son of Faguna
cannot claim the right, title, interest and recovery of khas possession in
respect of Schedule-B land by inheritance. The Trial Court has further
held that the plaintiff also could not prove due execution of Ext.-2 dated
15.04.1960.
6.
Being aggrieved, the plaintiff preferred the aforesaid appeal,
which has been allowed by the First Appellate Court by the impugned
judgment and decree by holding that the plaintiff is entitled to
declaration of right, title and interest in respect of Schedule-B land, as
the land covered by patta No.15 was the coparcenary property thrown
into the common stock, though the said land belonged to Jadab. Hence
the present appeal.
7.
The appeal was admitted for hearing vide order dated
09.09.2003 on the following substantial questions of law:-
“(i)
Whether the learned lower Appellate Court mis-
interpreted the meaning and scope of coparcenary
property under the Dayabhaga system of Hindu Law
and illegally reversed the judgment of the learned
Trial Court?
(ii)
Whether the learned lower Appellate Court mis-
interpreted the document, Ext.-2, holding it to be a
partition deed amongst the co-sharer in the absence
of signatures of all the co-sharers and illegally
reversed the judgment of the Trial Court?
(iii)
Whether the learned lower Appellate Court erred in
law in holding the land in KP Patta No.15 to be a joint
property and illegally passed the impugned judgment?
(iv)
Whether the finding of the learned lower Appellate
Court is perverse?
(v)
Whether the statement of PW-1, attorney of the
plaintiff can be taken into consideration on the failure
of the plaintiff to examine himself as a witness?
(vi)
Whether the plaintiff having renounced the world by
taking sanyas is entitled to maintain the suit at all?”
8.
I have heard Mr. S.K. Ghosh, learned counsel for the
appellants/defendants and Mr. D.
Das, learned counsel for
the
respondent No.1/plaintiff. None appears for the other respondents.
9.
Referring to the pleadings in the plaint, it has been
submitted by the learned counsel appearing for the appellants that
since it is not the pleaded case of the plaintiff that though the land
covered by patta No.15, which forms part of Schedule-B land, belonged
to Jadab, one of the sons of Faguna, since the said land was thrown into
the common stock, it forms the coparcenary property under Dayabhaga
School of Hindu Law and as such the plaintiff is entitled to the decree in
respect of the Schedule-B land, the First Appellate Court ought not to
have held that the land covered by Patta No.15, which belonged to
Jadab, forms part of the coparcener’s property and as such the plaintiff
is entitled to a decree. The learned counsel further submits that the
First Appellate Court having not disturbed the finding recorded by the
Trial Court that the land covered by patta No.15 belonged to Jadab and
it did not belong to Faguna, ought not to have decreed the suit of the
plaintiff as the plaintiff is not entitled to such decree for partition based
on the claim of inheritance.
10.
The learned counsel appearing for the respondent No.1, on
the other hand, supporting the judgment and decree passed by the First
Appellate Court and also referring to the evidence of DW-1, namely,
Prankrishna Talukdar, defendant No.9, has submitted that it is evident
therefrom that though the land covered by Patta No.15 belonged to
Jadab, one of the sons of Faguna, it was thrown into the common stock
of the coparcenary and hence the First Appellate Court has rightly
decreed the suit of the plaintiff declaring his right, title and interest in
respect of the Schedule-B property.
11.
I have considered the submissions advanced by the learned
counsel for the parties.
12.
The
learned
counsel
appearing
for
the
parties
have
advanced their arguments on the substantial questions of law Nos.(i)
and (iii), contending inter alia that though as many as 6(six) substantial
questions of law were framed while admitting the appeal vide order
dated 09.09.2003, the aforesaid two substantial questions of law arise
in the present appeal and hence this judgment is confined to the
aforesaid two substantial questions of law only.
13.
The Trial Court has recorded a clear finding that though the
plaintiff has claimed that the land covered by Patta No.15 originally
belonged to Faguna, his father, the plaintiff, however, could not prove
the same. It has also been held that the land covered by Patta No.15,
part of which is described in Schedule-B to the plaint, belonged to
Jadab, one of the sons of Faguna. The said finding has not been
disturbed by the First Appellate Court and in fact has been affirmed.
The plaintiff though claimed that the land covered by Patta No.15
belonged to Faguna and in support of which the plaintiff examined the
Latmandal as PW-4, he, however, could not prove that the land covered
by Patta No.15 originally belonged to Faguna and hence the plaintiff
being one of the sons is entitled to 1/7th share of the land left by
Faguna. The plaintiff also in the plaint never pleaded that though the
land covered by Patta No.15 belonged to Jadab, another son of Faguna,
since he has thrown the said land to the common stock of the
coparcenary, it forms the coparcenary property and as such the plaintiff
is entitled to a share. In the absence of any such pleading and also in
the absence of any evidence led to that effect by the plaintiff, the First
Appellate Court ought not to have held that though the land covered by
Patta No.15 belonged to Jadab, the same, however, forms the
coparcenary property as the said property was thrown into the common
stock of the coparcenary and hence the plaintiff is entitled to a share as
claimed by him, which is described in Schedule-B to the plaint. The First
Appellate Court, in fact, has allowed the appeal by making out a case
which has neither been pleaded by the plaintiff nor by the defendants
and no amount of evidence was also led in that respect.
14.
In view of the aforesaid discussion, I am of the view that
the judgment and decree passed by the First Appellate Court needs to
be set aside, which I accordingly do.
15. The appeal is therefore allowed. No costs.
16. The Registry is directed to send down the records forthwith.
No comments:
Post a Comment