From the above discussion, it is found
that a co-sharer alone can bring action for
declaration of title and recovery of possession
against the trespassers for the benefit of the co-
sharers and as such the suit cannot be held to be
bad for non-joinder of all the co-sharers. Because, a
decree passed in favour of one of the co-sharers,
against the trespasser, does not take away the right
of the other co-sharers in respect of their joint
property. Rather, such action, initiated by the co-
sharer, is for the benefit of all the co-sharers and the
decree
protects the right, title and interest of all
the joint owners in respect of the joint property,
until such property is partitioned amongst the
share holders.
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND,
MIZORAM AND ARUNACHAL PRADESH)
R.S.A. NO.140/2002
Shri Puspendra Hazarika,
-Versus –
Shri Gajen Hazarika
BEFORE
HON’BLE MR. JUSTICE C R SARMA
Date of Judgment : 06.09.2013.
RSA No.140/2002
Heard
Mr.
A.
Choudhury,
learned
counsel, appearing for the appellants/ defendants.
None represented the respondent/ plaintiff.
[2]
This appeal is directed against the
judgment and decree, dated 04.06.2002, passed by
the learned Civil Judge (Senior Division), Nagaon,
in Title Appeal No. 04/2001, whereby the learned
Civil Judge (Senior Division), Nagaon set aside the
judgment and decree, dated 19.12.2000, passed by
the Civil Judge (Junior Division) No. 1, Nagaon in
Title Suit No. 137/1997.
[3]
The respondent, as plaintiff, claiming to
be owner of a plot of land, measuring 1 (one) Bigha
2 (two) Khatas, as mentioned in the schedule “A” to
the plaint, instituted T.S. No. 137/1997 before the
Civil Judge (Junior Division), Nagaon, seeking
declaration of right, title and interest, in respect of
the “A” schedule land, khas possession in respect
of
“B”
Schedule
land
and
confirmation
of
possession in respect of Schedule “C” land.
Schedule “A” land includes the land described in
Schedules “B” and “C”.
[4]
The plaintiff’s case, in brief, may be
stated as follows:-
A plot of land measuring 1 (one) Bigha and 2
(two) Khatas, as described in Schedule “A” is his
ancestral property and after the death of his father,
he alongwith his brother namely, Biren Hazarika
(since deceased) and their mother Smti Gunamai
Hazarika inherited, owned and possessed the entire
suit
land.
The
appellant
i.e.
the
Principal
Defendant, in 1995 trespassed into a plot of land,
measuring 1 (one) Bigha 1 (one) Khata i.e. the “B”
Schedule land and illegally occupied the same. The
remaining 1 (one) Khata i.e. the “C” schedule land
having a family Namghar (i.e. temple) therein, is in
the possession of the plaintiff.
Despite repeated
requests, made by the plaintiffs, the said defendant
refused to vacate the land and denied the right, title
and interest of the plaintiff. Hence, the plaintiff
instituted the said suit, seeking relief as indicated
above.
[5]
The plaintiff, besides making some of the
co-pattadars, as profroma defendants, added the
son of his brother late Biren Hazarika, as profroma
defendant No. 8 and the legal heir of his mother,
Gunamai Hazarika, as profroma defendant No. 9.
RSA No.140/2002
Page 3 of 24
However, he did not seek any relief against the said
profroma defendants. None except the Principal
defendants
proceeded
contested
exparte
the
against
suit,
all
therefore,
the
it
profroma
defendants.
[6]
The principal defendants contested the
plaintiff’s claim by filing written statement. Their
plea was that the suit land, measuring 1(one) Bigha
1 (one) Khata 15 1⁄2 (fifteen half) lechas, out of “A”
Schedule land, though inherited by the plaintiff
and his brother Biren Hazarika, they, by executing
an unregistered sale deed (Kachha deed), on
15.5.1996, transferred the suit land in favour of the
defendant No. 1 and his brother Shri Hiren
Hazarika (since deceased) and accordingly, after
taking possession of the same, the defendant No. 1
and his said brother have been enjoying the suit
land from the said date of purchase. The
defendants also stated, in the written statement,
that, despite giving assurance, the said vendors i.e.
the plaintiff and his brother failed to execute
registered sale deed. The contesting defendants
also averred that there was no cause of action for
the suit, that the suit was barred by law of
limitation, that the suit was bad for non-joinder and
mis joinder of necessary parties and concealment of
material facts. The contesting defendants further
contended that their possession was adverse to the
interest of the plaintiffs.
[7]
Upon the pleading of both the parties,
the learned trail Judge framed the following issues:
“(1) Whether the plaintiff has any
cause of action?
(2) Whether the suit is maintainable
in its present form?
(3) Whether the suit is bad for non-
joinder and mis-joinder of necessary
parties?
(4)
principle
Is the suit barred by the
of
waiver,
estoppel
and
acquiescence?
(5) Is the suit liable to fail for want
of jurisdiction?
(6) Has the plaintiff any title to the
land in suit?
(7) Is the suit barred by limitation?
(8) Is
the
story
of
plaintiff’s
possession and dispossession true?
(9) Is the plaintiff entitled to any
relief as prayed for?
(10) To what relief, if any, is the
plaintiff entitled?”
[8]
In order to prove his case, the plaintiff
examined 2 (two) witnesses as PW No. 1 and PW
No. 2 and exhibited a land revenue paying receipt
and certified copy of the Jamabandi. The contesting
defendants also examined 2 (two) witnesses and
exhibited an un-registered sale deed, land revenue
paying receipt and certified copy of the order,
passed in MR Case No.660/1996.
[9]
Having heard the learned counsel for
both the parties and considering the evidence, on
record, the leaned Civil Judge (Junior Division),
Nagaon, while holding that there was cause of
action for the suit observed that, (1) the legal heirs
of late Biren Hazarika and late Hiren Hazarika not
being impleaded as necessary parties, the suit was
bad for non-joinder of necessary parties, (2) that
the plaintiff, having only one-half share in the suit,
land, cannot claim the entire suit land and as such
the suit was hit by the principle of estoppel, (3) that
the suit was bad for want of jurisdiction. Of course,
the trial Judge held that the suit was not hit by the
law of adverse possession and law of limitation.
[10]
With the above findings, the trial court
held that the plaintiff was not entitled to get any
relief as prayed for and accordingly dismissed the
suit.
[11]
Aggrieved by the said judgment and
decree, the plaintiff, as appellant, preferred an
appeal, under Section 96 read with Order XLI Rules
1 and 2 of the CPC, before the learned Civil Judge
(Senior
Division),
Nagaon.
The
appeal
was
registered as Title Appeal No. 4 of 2001. The First
appellate court, while reversing the judgment and
decree, passed by the learned Civil Judge (Junior
Division), Nagaon, allowed the appeal declaring
right, title and interest of the plaintiff over the suit
land and directed the defendants to vacate the suit
land.
[12]
Dissatisfied with the said judgment and
decree, passed by the learned Civil Judge (Senior
Division), Nagaon, the contesting defendants, as
appellants, have come up with this appeal on the
following amongst other grounds:-
(1)
that the suit was bad for non-
joinder of the co-pattadars,
(2) that the suit was bad for waiver,
estoppel and acquiescence,
(3)
that the suit, filed after 22 years
of dispossession, was not maintainable,
(4)
that courts below eared in law
by not considering the claim of the
appellants/defendants with regard to
adverse possession in respect of the land
as mentioned in the schedule “B” of the
plaint.
[13]
The appeal has been admitted on the
following substantial questions of law:-
(1)
Whether the first appellate
court erred in law by reversing the
original decree passed by the trial court
or not?
(2) Whether the first appellate court
complied with the mandatory provisions
of law as laid down under Order 41 Rule
31 CPC, while passing the impugned
judgment and decree or not?
(3)
Whether
the
suit
is
maintainable?
(4)
Whether the co-pattadars of
the suit properties are necessary parties
in the suit nor not.
[14]
Though, the sole respondent/ plaintiff,
after receipt of the notice, had entered appearance
through the engaged counsel, none represented
him at the time of hearing. I have heard Mr. A.
Choudhury, learned counsel, appearing on behalf
of the appellants and perused the record.
[15]
The learned counsel, appearing for the
appellants, taking this court through the impugned
judgment and decree, passed by the first appellate
court, has submitted that the learned Civil Judge
(Senior Division) committed error and illegality, in
the eye of law, by reversing the judgment and
decree, passed by the trial court, despite the fact
that all the co-owners were not made party.
It is also submitted that the learned trial
Judge rightly dismissed the suit for non-joinder of
the necessary parties i.e. all the legal heirs of late
Biren Hazarika, who was one of the co-sharers and
was survived by three widows one son (i.e. the
profroma defendant No. 8) and the legal heirs of
late Hiren Hazarka, in whose favour also the
unregistered sale deed was executed by the
plaintiff and his said brother.
It is further submitted that the plaintiff i.e. sole
respondent, being one of the co-owners is not
entitled to get decree declaring right title and
interest in respect of the entire suit land, which was
inherited by the plaintiff and his brother, late Biren
Hazarika from their predecessor-in-interest and as
such the first appellant court committed gross
illegality and error by declaring right, title and
interest in favour of the plaintiff.
It is also submitted that the learned Civil
Judge (Senior Division) committed error by failing
to discuss and decide all the issues, as required by
Order XLI Rule 31 of the CPC.
[16]
It
is
further
submitted
that
the
defendants have been possessing the suit land since
1976, on the basis of an unregistered sale deed and
as such the suit, for recovery of possession of suit
land after 22 years, was not maintainable and that
the courts below committed error by failing to
consider the claim of the appellant, regarding
adverse possession.
[17]
Having heard the learned counsel for
appellants and carefully perusing the pleadings,
the impugned judgment and decree, passed by the
appellate court and also the judgment and decree,
passed by the trial court, in order to appreciate the
correctness of the impugned judgment and decree,
I feel it appropriate to peruse and examine the
evidence, on record, and I do so.
[18]
Admittedly, the suit land, originally,
belonged
to
late
Durga
Hazarika,
i.e.
the
predecessor-in-interest of the plaintiff and his
brother Biren Hazarika and after the death of their
said predecessor-in-interest, the names of the
plaintiff and his brother Biren Hazarkia, both sons
of late Durga Prasad Hazarkai and their mother
Smti Gunamai Hazarika i.e. the widow of Durga
Prasad Hazarika, were mutated, in the revenue
record, in place of Durga Prasad Hazarika. Ext. No.
2 i.e. the Jamabandi of the suit land, exhibited by
the
plaintiff,
supports
the
said
contention.
Therefore, the plaintiff alongwith his said brother
and their mother inherited the suit land after the
death of his father. Undisputedly, the said legal
heirs of Durga Prasad Hazarika became the owner/
title holders of the suit land. According to the
plaintiff, after the death of his father, he was
possessing the suit land till 1995 and on, or about
08.12.1995, the defendants trespassed illegally
occupied 1 (one) Bigha 1 (one) khata out of the suit
land i.e. the “B” Schedule land and by refusing to
vacate the suit land denied the right and title of the
plaintiff in respect of the suit land. Though, the
plaintiff did not seek any relief in respect of co-
sharers, he impleaded some of the c--pattadars i.e.
the son of his brother, Biren Hazarika and the legal
heir of his mother Smti Gunamai Hazarika as
Profroma Defendant Nos. 5, 6, 7, 8 and 9.
Subsequently, the name of respondent No. 7 was
stuck off. None of the said profroma respondents
contested the suit and as such the suit proceeded
exparte. That apart, the plaintiff in his evidence,
given as PW No. 1, stated that his brother was
entitled to one half share in the schedule land. This
admission made by the plaintiff, protects all rights
and benefit of the other co-sharers, which accrued
to them in respect of the suit land, as co-sharers.
[19]
The claim of the defendants is that the
defendant No. 1 and one of his brother late Hiren
Hazarika purchased the suit land in 1997 by an un-
registered sale deed i.e., Ext. No. “Kha”, executed
by plaintiff and his brother Biren Hazarika, after
receiving consideration money of Rs. 4,000/- and
that they have been in possession of the suit land
since then.
Though, the plaintiff’s brother Biren
Hazarika i.e. one of the co-owners, died leaving
three
wives,
three
daughters
and
one
son
(profroma Defendant No. 8), the plaintiff made his
brother’s son as profroma defendant No. 8 and
failed to implead other legal heirs of Biren
Hazarkia as defendants. However, the plaintiff
impleaded the legal heirs of his mother, Smti
Gunamai Hazarika, as indicated above and the said
legal heirs of Biren Hazariaka and Gunamai
Hazarika failed to contest the plaintiff’s claim.
There is no dispute that his brother Biren Hazarika
is entitled to one half share in the suit land. Thus, it
is admitted position that the plaintiff, though not
the absolute owner, is one of the co-owners of the
suit land and as such he has right and title in each
and every part of the suit land.
Another plea of the Defendant No.1 is that the
suit land was purchased by him alongwith his
brother Hiren Hazarika and as such the legal heirs
of Hiren Hazarika (since deceased) were also
necessary parties to the suit.
The trial court held that, the legal heirs of
Biren Hazarika, not being made co-plaintiffs, the
suit was bad for non-joinder of necessary parties.
[20]
It has also been held by the trial court
that the plaintiff, in view of his silence in the plaint,
regarding his brother’s share, was stopped from
claiming the whole suit land. While rejecting the
plea regarding adverse possession, as raised by the
defendants, the trial court held that the plaintiff,
having right, title and interest and possession over
one half portion of the suit land, cannot claim that
the defendants dispossessed him from the entire
suit land. The learned trial Judge also came to the
findings that there was no evidence that the
defendants were in possession of the suit land since
1976 and that the defendants had right over the suit
land. However, at the concluding part of the
judgment, the learned trail Judge held that, in view
of the discussion made in Issue Nos. 3, 4 and 5, the
suit was not maintainable and as such the plaintiff
was not entitled to get any relief, as claimed for.
The Issue Nos. 3, 4 and 5 relates to, non-joinder and
mis-joinder of necessary party, bar by the principles
of estoppel, waiver, acquiescence and the question
regarding jurisdiction of the trial court.
[21]
From
the
evidence,
on
record,
as
adduced by both the parties, it is found that it stood
established that the plaintiff was one of the co-
sharers i.e. joint owners. It is not the case that none
of the other co-sharers were impleaded as parties.
The son of Biren Hazarika, who was one of the co-
sharers,
has
been
impleaded
as
profroma
Defendant No. 8 and the heir of another co-owner
namely, Smti Gunamai Hazarika (widow) has also
been impleaded as profroma Defendant No.9. None
of the said co-sharers have challenged the plaintiff’s
claim.
[22]
The plaintiff, in the present case, has
sought relief against the defendants, alleging that
defendants, being trespassers, have been illegally
occupying the suit land since 1995. The suit has
been brought by one of the co-owners against the
trespassers, in respect of a plot of land owned by
all co-sharers including the plaintiff.
Now, the question is whether the suit,
claiming right, title, interest and possession by one
of the co-sharers, without making all the co-sharers,
is maintainable against a trespasser and whether
the legal heirs of late Hiren Hazarika were also
necessary parties.
[23]
In the present case, the defendants,
though claimed that they had purchased the suit
land by an unregistered sale deed (Ext. “Ka”) in
1976, failed to prove, by adducing sufficient legal
evidence, that the suit land was transferred and
that the possession was delivered to them in 1976.
Except producing an un-registered sale deed (Ext.
“Ka”, alleged to be executed by the plaintiff and his
brother namely, Biren Hazarika, the defendants
failed to prove the execution of the same as
required by law. The trial court also, in deciding
the issue No. 7 in favour of the plaintiff, rightly
held that the defendant failed to establish his title
over the suit land and that the long possession was
not sufficient to confer right by way of adverse
possession and that the suit was not hit by the
principal of adverse possession and law of
Limitation. The first appellate court has also
concurred with the said view and upheld the said
findings.
Therefore, as the transfer of land in favour of
defendant No. 1 and late Hiren Hazarika has not
been proved and as the plaintiff has also not sought
any relief against late Hiren Hazarka or his heirs,
the legal heirs of late Hiren Hazarika are not
necessary party.
[24]
As rightly held by the trial court plaintiff
and his brother Biren Hazarika were joint owners
and the plaintiff was not absolute owner, in respect
of the suit land.
The question regarding possession, being a
matter of facts, both the courts have disbelieved the
defendant’s plea of possession since 1976 for want
of any substantive evidence. The Gaonbura of the
village, deposing as PW No. 2 supported the
plaintiff’s plea that he was dispossessed by the
defendant in 1995.
DW No. 2, who stated that the defendant No.
1 occupied the suit land for 20/22 years, failed to
properly identify the suit land by giving its
boundary. Hence, it cannot be believed that he had
any idea or knowledge about the possession of the
land.
As discussed above, both the courts
below disbelieved the defendants’ plea that they
have been in possession of the suit land since 1976.
The said findings regarding possession, based on
evidence, on record, as indicated above, needs no
interference by this court, in exercise its jurisdiction
in second appeal.
[25]
In view of failure of the contesting
defendants to establish the plea of purchase of the
suit land as well as acquiring right, on the basis of
adverse possession, or in any lawful manner, their
status, in respect of the suit land, was not better
than that of trespassers.
[26]
In the case of Smti
Kanta Goel –Vs.-
B.P. Pathak & others, reported in AIR 1977 SC
1599, the question, whether a co-heir of deceased
landlord can sue for eviction in absence of the other
co-heirs came up for decision before Hon’ble
Supreme Court. In deciding the question in
affirmative, the Supreme Court observed that co-
heirs constituted, the body of landlords and, by
consent, implicit or otherwise, of the plurality of
landlords one of them representing them all was
collecting rent and as such he was entitled to
institute the suit. The Supreme Court also observed
that a co-owner owns every part of the composite
property along with others and it can not be said
that he is only a part owner or fractional owner of
the property.
[27]
In the case of A. Viswanatha Pillai –Vs.-
Special Tahsildar, reported in AIR 1991 SC 1966,
the Supreme Court has observed that one of the co-
owners can file a suit and recover property against
stranger and the decree would ensure to all the co-
owners and that no co-owner has a definite right,
title and interest in any particular item or a portion
thereof. It has also been observed, in the said case,
that a co-owner is as much an owner of the entire
property as a sole owner of the property and that it
is not correct to show that a co-owner’s property
was not his own. The Supreme Court has further
observed that a co-owner owns several parts of the
composite property along with others and it can
not be said that he is only a part owner or fractional
owner in the property. As observed by the
Supreme Court, the said position will undergo a
change only when partition takes place and
division is affected by metes and bounds.
[28]
In the case of Pal Singh –Vs.- Sunder
Singh (dead) by Lrs. , reported in AIR 1989 SC 758,
the Supreme Court referred to the ratio held in the
case of Kanta Goel (supra), wherein the Supreme
court followed the decision in Sri Ram Pasricha V.
Jaganath (AIR 1976 SC 2335) and held that when
other co-owners did not object to the eviction, one
of the co-owners could maintain an action for
eviction even in the absence of other co-owners. In
the case of Pal Singh (Supra), the Supreme Court
observed that an eviction suit, even in absence of
other co-owner would be maintainable.
[29]
In the case at hand also the other co-
owners did not raise any objection to the action
initiated by the plaintiff.
The plaintiff has made it clear that he is
entitled to one half share and the legal heirs of
Biren Hazarika are entitled to remaining one half
share in the suit land. Therefore, he has not
denied/ disputed the right of the other co-sharers.
Even the son of late Biren Hazarika (profroma
defendant No. 8) and the legal heirs of Smti
Gunamai Hazarika, who are also co-pattadars, have
not challenged the plaintiff’s claim.
[30]
In view of the said ratio laid down by the
Apex Court, it can be held that a suit by co-owner is
maintainable against the trespasser, even without
determining the share of the other-co-sharer and
also in the absence of other co-owners. Such relief
granted in favour of the plaintiff, who is a co-owner
will not adversely affect the right and interest of the
other co-owners.
[31]
The defendants have failed to establish
their title or right to enjoy the suit land. A title
holder’s right to enjoy the property cannot be
denied by a trespasser, who holds the property
without any authority.
In view of above, I have no hesitation in
holding that the first appellant court rightly
concluded that the plaintiff was entitled to file the
suit against the defendants, who were trespassers
in respect of the suit land, for recovery of the same
for the benefit of all the co-sharers. Therefore, in the
facts and circumstances of this case, as held by the
first appellate court, the other co-sharers and
pattadars are not necessary parties and as such, the
suit brought by one of the co-sharers, against the
trespassers, is maintainable.
[32]
From
the
impugned
judgment
and
decree aforesaid, it is found that the first appellate
court, reproduced all the issues, framed and
decided by the trial court and while reversing the
judgment and decree passed by the learned trial
court, the appellate court has discussed and given
its findings with reasons in respect of all the issues,
more particularly with regard to maintainability of
the suit for non-joinder of the co-sharers and the
issue relating to adverse possession, which are the
basic issues involved in the suit.
It transpires that the first appellate court
discussed and decided all the issues, and thus
complied with the requirement, prescribed by
Order 41 Rule 31, CPC.
[33]
The trial court dismissed the suit holding
that it was hit by the principles of estoppel on the
ground that the plaintiff did not mention, in the
plaint, about the share of his brother. Section 115 of
the evidence, which provides the provision of
estoppel, reads as follows:
“Section 115 Estoppel –When one person has,
by his declaration, act or omission, intentionally
caused of permitted another person to believe a
thing to be true and to act upon such belief, neither
he nor his representative shall be allowed, in any
suit or proceeding between himself and such
person or his representatives, to deny the truth of
that thing.”
[34]
From the evidence on record, there is
nothing to show that the plaintiff had in any
manner declared, acted, omitted or permitted the
defendants to believe a thing to be true and act
upon such believe. Plaintiff’s failure to mention, in
the plaint, that his brother was also entitled to one
half share in the suit land does not attract the
provision of Section 115 of the Evidence Act.
Therefore, the trial Judge committed error by
holding that the suit was hit by the principle of
estoppel and as such, the first appellant court
rightly reversed the said decision of the trial court.
[35]
From the above discussion, it is found
that a co-sharer alone can bring action for
declaration of title and recovery of possession
against the trespassers for the benefit of the co-
sharers and as such the suit cannot be held to be
bad for non-joinder of all the co-sharers. Because, a
decree passed in favour of one of the co-sharers,
against the trespasser, does not take away the right
of the other co-sharers in respect of their joint
property. Rather, such action, initiated by the co-
sharer, is for the benefit of all the co-sharers and the
decree
protects the right, title and interest of all
the joint owners in respect of the joint property,
until such property is partitioned amongst the
share holders.
[36]
In view of the above discussion, it is
found that the plaintiff, as co-sharer, could
establish his right, title and interest over the suit
land and the defendants failed to substantiate their
plea that they had acquired right to enjoy the suit
land, on the basis of transfer and adverse
possession.
RSA No.140/2002
Page 23 of 24
Therefore, the title of the plaintiff having been
established and in the absence of any defect in the
said title, he has been rightly held to be entitled to
recover the possession form the defendants.
[37]
In view of the above discussion, it is
found that the suit was maintainable and the first
appellate court has committed no error by
reversing the decision of the trial court and thereby
declaring
plaintiff’s
right,
title,
interest
and
possession over the suit land, with direction to the
principal defendants to deliver vacant possession of
the suit land.
[38]
In view of the above discussion, while
answering all the substantial questions of law, in
the manner as indicated above, I hold that there is
no merit in this appeal, requiring interference with
the impugned judgment and decree.
[39]
Accordingly, the appeal is dismissed.
Return the lower court record.
J U DGE
Eam/
RSA No.140/2002
Page 24 of 24
No comments:
Post a Comment