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RSA 35/2005

IN THE GAUHATI HIGH COURT

(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

Case No: RSA 35/2005

1. Shri Dhirendra Namasudra,

S/o late Rajani Namasudra,

2. Shri Nagendra Namasudra,

S/o late Rajani Namasudra,

- Both are residents of Chibitabichia part – V,

Ph – Chatla

Dist. – Cachar.

3. Smti. Kalpana Roy,

W/o Shri Ananta Roy,

D/o Late Rajani Namasudra of

Chibilabichia part – IV,

Ph – Chatla, Dist. – Cachar.

…… Appellants

-Versus-

On the death of Sonamoni Namasudra @ Kala Sona, his legal

heirs -

1(a). Shri Sukumar Roy,

1(b). Shri Santi Kumar Roy

1(c). Shri Ranjan Roy

1(d). Shri Sanjay Roy,

All are sons of Late Sonamani Namasudra,

All are residents of Chibitabichia, Ph. – Chatla,

1(e). Smti. Rupa Roy

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W/o Shri Khoka Roy of Chamorkona, Ph. – Chatla

1(f). Smti. Sumati Roy,

W/o Bhogyeswar Roy of Chibitabichia part – V, Ph. Chatla,

On the death of Jaba Roy, D/o Late Sonamani Roy, her

legal heirs-

1(g). Struck off

1(h). Struck off

On the death of Sarmila Roy, D/o Late Sonamani Roy, her

legal heirs –

1(i) Shri Chandan Roy

1(j). Shri Arun Roy

1(k). Shri Barun Roy

1(l). Shri Tarun Roy,

All are sons of Late Sarmila Roy,

1(n). Smti. Ruma Roy,

1(o). Smti. Sujana Roy,

Both are daughters of Late Sarmila Roy,

- All are residents of Murgitilla, Ph – Chatla, Dist. – Cachar.

2. Smti. Abala Namasudra,

W/o Shri Sailesh Namasudra

D/o Late Bharat Namasudra of Mallikchar Bilaipur, Ph. –

Chatla,

3. Sanat Namasudra

S/o Sonamoni Namasudra @ Dhola Sona

4. Khagendra Namasudra Sona,

Chibitabichia V, Ph. - Chatla

5. Sukhendra Namasudra,

Resident of Chibitabichia Part V, Ph – Chatla, Dist. - Cachar

6. Monai Namasudra

W/o Kalamoni Namasudra,

Padmarpur Polarpar

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P.S. Algapur, Dist. Hailakandi

7. Smti. Konai Namasudra

W/o Late Harendra Namasudra

Chibitabichia V, Ph - Chatla

8. Smti. Unai Namasudra

W/o Nripendra Namasudra

9. Smti. Sunuka Namasudra,

W/o Sonamoni Namasudra

Chibitabichia V, Ph- Chatla, Dist. Cachar.

All respondents are residents of Dist. – Cachar, Assam.

....... Respondents

-BEFORE-

HON’BLE MR. JUSTICE N. CHAUDHURY

For the Appellant : Ms. Bijita Sarma

Advocate

For the Respondent : None appears

Date of Hearing : 10.06.2016

Date of delivery of

Judgment and Order : 10.06.2016

JUDGMENT AND ORDER (ORAL)

This second appeal has been preferred by the plaintiffs challenging the

concurrent findings of the two learned courts below. Plaintiffs’ suit for declaration

of right, title and interest and for preliminary decree of partition was dismissed

by the learned trial court on the point of limitation and an appeal preferred there-

against was dismissed by the learned first appellate court upholding the findings

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of the learned trial court. Aggrieved, the plaintiffs have approached this court

challenging the concurrent findings of the learned courts below.

2. Two sons and a daughter of late Rajani Namasudra, as plaintiffs,

instituted title suit No. 65/1992 in the court of learned Munsiff No. 1 at Silchar

against legal heirs of Nayan Namasudra, Bharat Namasudra and Sonamoni

Namasudra praying for a decree of declaration of their right, title and interest to

the extent of 1B 6K 10Ch in the suit patta measuring 2B 13K 4Ch and also

preliminary decree of partition of the suit patta followed by a final decree along

with injunction etc. The case of the plaintiffs is that C.S. Patta No. 18 of Mouza

Chibitabichia under Pargana Chatla in the district of Cachar was originally issued

in the name of two persons, namely, Lob Chonga and Gagan Chonga. However,

in the patta without there being any reason, names of Churamoni Namasudra

and Nayan Namasudra were mentioned. The aforesaid patta comprised of five

dags namely, dag No. 61, 62, 66, 79 and 80. The aforesaid 4 dags of C.S. Patta

No. 18 were resurveyed as R.S. Patta No. 29 with only one dag, namely, dag No.

107 in the name of Rajani Namasudra, Churamoni Namasudra, Nayan

Namasudra and Harmohan Namasudra. This is because Lob Chonga died in the

mean time and was survived by his son Rajani Namasudra and Gagon Chonga

was survived by his son Harmohan Namasudra. Name of Churamoni Namasudra

appeared in the R.S. Patta No. 29 as it existed in C.S. Patta No. 18. Harmohan

Namasudra being the son of Gagan Namasudra was entitled to only 1B 6K 10Ch

being half of the entire patta measuring 2B 13K 4Ch but he sold 1B 15K 8Ch in

favour of one Gunomoni Namasudra way back in the year 1926 which was

excess than his entitlement. Gunomoni on turn sold this 1B 15K 8Ch to Nayan

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Namasudra and Bharat Namasudra. These two persons, namely, Nayan

Namasudra and Bharat Namasudra thus became joint owner of 1B 6K 10Ch only

although the sale deed executed in their favour contained recital as to 1B 15K

8Ch. The R.S. Patta No. 29 was re-surveyed during second settlement operation

as second R.S. Patta No. 43 in the name of Rajani Namasudra, Nayan

Namasudra, Nira Namasudrani, Nirmala Namasudrani and Abala Namasudrani.

Names of Nira Namasudrani, Nirmala Namasudrani and Abala Namasudrani were

mentioned in second R.S. Patta No. 43 being the legal heirs of Bharat Namasudra

who along with Nayan Namasudra had inherited land from Gunomoni Namasudra

being the original share of Harmohan Namasudra, the son of Gagan Namasudra.

Rajani Namasudra approached the other co-pattadars for partition of the patta

but they declined for which he instituted Perfect Partition Case No. 14 of 1991-92

before the Collector, Cachar District asking for a separate patta in his name with

respect to his title in the patta. The Collector dropped the PP case on 30.01.1992

on the ground that the annual revenue of the patta was less than Rs. 5/-. After

dismissal of the PP case, Rajani Namasudra died leaving behind the plaintiffs as

his legal heirs and this is why they being the plaintiffs instituted suit for

declaration of their right, title and interest to the suit patta as legal heirs of Lob

Chonga. Plaintiffs claimed that Lob Chonga and Gagan Chonga jointly owned 2B

13K 4Ch of land in C.S. Patta No. 18 and each of them was owner of 1B 6K 10Ch

of land in the suit Patta only. Rajani Namasudra being the sole legal heir of Lob

Chonga inherited 1B 6K 10Ch and this devolved on the plaintiffs jointly. The

remaining 1B 6K 10Ch owned by Gagan Chonga devolved on his son Harmohan

Namasudra and so although he had purportedly sold 1B 15K 8Ch which is 8K

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14Ch more than his entitlement did not devolve on the vendee Gunomoni

Namasudra and so Nayan Namasudra and Bharat Namasudra also inherited only

1B 6K 10Ch jointly and so, the defendants are entitled to 1B 6K 10Ch jointly in all

irrespective of whether there were transactions among them. This suit for

declaration and partition was contested by the defendants by filing written

statement. Defendants No. 1 to 5 filed a common written statement whereas

defendants No. 7, 8 and 9 filed a separate written statement, however, adopting

the pleadings of defendants No. 1 to 5. The defendants No. 1 to 5 denied the

case of the plaintiff and in paragraph 24 of their written statement set out their

own facts. According to the defendants, Lobram died issueless and after his

death his widow remarried one Darparam Namasudra and Rajani Namasudra was

thereafter born to the widow of Lobram through Darparam Namasudra and so he

not being the biological son of Lobram did not inherit his share at all. However,

the defendants took an alternative stand in paragraph 24 (C) by saying that the

plaintiffs could at best claim 4K 7Ch of land in the suit patta on proof of paternity

of Rajani Namasudra. The defendants thus were ready to acquiesce the title of

the plaintiffs only to the extent of 4K 7Ch of land. However, in paragraph 24(C)

nothing has been stated as to why Lob Namasudra was entitled to only 4K 7Ch of

land and not of 1B 6K 10Ch being the half of the C.S. Patta No. 18 measuring 2B

13K 4Ch. The defendants prayed that suit of the plaintiffs is barred by limitation

and so it is liable to be dismissed. The defendants No. 7, 8 and 9 adopted the

same argument of the other defendants.

3. The learned trial court framed following 6 issues from the pleadings of

both sides:-

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4. In course of trial, plaintiff examined 2 witnesses and adduced 4

documents. Ext. 1 is the certified copy of Jamabandi of second R.S. Patta No. 43.

Ext. 2 is the certified copy of Jamabandi of R.S. Patta No. 29. Ext. 3 is the

certified copy of C.S. Patta No. 18 and Ext. 4 is the certified copy of order dated

30.01.1992 passed by the Collector, Cachar at Silchar rejecting PP Case No.

14/1991-92. All these exhibits were admitted into evidence without there being

any objection. The defendants side also examined 2 witnesses on their part and

adduced one document being Ext. A, which is registered sale deed dated

27.01.2006 and the same was under objection. Ext. A(1) is the certified copy of

the same Ext. A but it was accepted into evidence without objection.

5. After perusal of the evidence on record along with pleadings of the

parties and after hearing the learned counsel for both sides, the learned trial

court held that the suit was not barred under the provisions of Assam Land and

Revenue Regulation and accordingly issue No. 4 was decided in favour of the

plaintiffs. Issues No. 3 and 5 were considered together which are in regard to bar

of limitation and claim of right, title and interest of the plaintiffs in the suit dag

and patta to the extent of 1B 6K 10Ch. Considering the oral evidence of PW 1

Nagendra Namasudra (plaintiff No. 2) and that of Nandalal Namasudra, an

independent witness, the learned trial court held that Nayan Namasudra and

Bharat Namasudra had acquired right, title and interest to the suit patta vide Ext.

A. There was mutation on 21.08.1907 in favour of Nayan Namasudra, and Nayan

Namasudra and Bharat Namasudra purchased 1B 15K 8Ch from Gunomoni

Namasudra vide Ext. A. This purchase was done on 29.10.1926 through

registered deed and Gunomoni Namasudra on turn purchased it from Harmohan

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Namasudra. The learned trial court held that even before purchase vide Ext. A,

the predecessors of the defendants had interest on the suit patta which is

revealed in Ext. 3, the C.S. Patta No. 18 but the plaintiffs did not make any

endeavour to get Ext. A adjudged illegal or Ext. 3 nullified and so till these two

documents remained in existence, plaintiffs are estopped of making claim of half

of C.S. Patta No. 18. In so doing, the learned trial court, however, has not made

any observation as to whether Rajani Namasudra was not the son of Lob Chonga

and/or whether Rajani Namasudra had not inherited any property whatsoever

with respect to the suit land. But since Ext. A was executed in the year 1926 and

Ext. 3 was of the year 1907, the learned trial court was of the view that claim of

the plaintiffs or 50% of C.S. Patta No. 18 was barred by limitation and so,

plaintiffs are not entitled to make a prayer for declaration of their right, title and

interest or for partition of their suit property. These two issues accordingly

decided against the plaintiffs and thereupon the suit was held to be not

maintainable by deciding issue No. 2 in favour of the defendants and against the

plaintiffs. Consequently, the entire suit was dismissed by judgment and decree

dated 29.11.1995.

6. Aggrieved, the plaintiffs preferred title appeal No. 6/1996 in the court of

learned Civil Judge (Sr. Divn.) No. 2, Cachar at Silchar. The learned first

appellate court having heard the parties and on perusal of the materials available

on record, could not find fault with the findings of the learned trial court. No

point for determination was framed as required under Order XLI Rule 31 of the

Code of Civil Procedure merely. Merely discussing the observations made by the

learned trial court in each of the issues, the learned first appellate court failing

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the same line and held that suit of the plaintiffs is barred by limitation and

accordingly the decree of dismissal passed by the learned trial court was upheld

by first appellate judgment and decree dated 29.09.2004. These two judgments

and decrees have been called in question in the present second appeal by the

unsuccessful plaintiffs.

7. This court while admitting the second appeal on 08.04.2005 framed the

following sole substantial question of law:-

“Whether the learned courts below erred in law in holding that the

suit is not maintainable under provision of Order XX Rule 18 of the

Code of Civil Procedure?”

8. I have heard Ms. Bijita Sarma on behalf of the appellants. Although

names of three learned counsel are dinstinctly displayed in the cause list, no one

turned up when the matter was taken up for hearing yesterday as well as today.

The appeal was heard for the entire second half yesterday and the hearing

resume today again but the learned counsel for the respondents remained away.

Even no one came forward asking for adjournment. Under such circumstances,

the appeal is taken up ex parte. I have gone through the pleadings of the

parties, the depositions of the witnesses of both sides and the documents

adduced by them.

9. Ms. B Sarma, learned counsel for the appellants, made the following

arguments:-

i) that the plaintiffs were not aware about sale made by Harmohan

Namasudra to Gunomoni Namasudra and by Gunomoni Namasudra in

favour Nayan Namasudra and Bharat Namasudra in time. They later on

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came to know about the same and hence the delay in filing the suit. She

has not argued as to whether the question of limitation would arise in a

case of a partition and declaration.

ii) that the defendants having raised entitlement of Rajani

Namasudra to the suit patta on the ground that he was son of widow of

Lob Chonga did not lead any evidence and the learned courts below have

neither arrived at the finding that Rajani Namasudra was not son of Lob

Chonga nor did the learned courts below arrive at any decision to the

effect that plaintiffs did not have any title whatsoever with respect to the

suit land. According to her, if plaintiffs are entitled to at least some title

that should have been ascertained and her entitlement for partition ought

to have been considered by the learned courts below. The judgments and

decrees passed by the learned courts below, therefore, are vitiated for

non consideration of the relevant materials and accordingly, the same are

liable to be set aside with appropriate direction to the learned courts

below.

10. As observed above in the absence of the learned counsel for the

respondents for the two consecutive days, I have myself gone through the

pleadings of both sides, the evidence led by them both oral and documentary

and tried to find out the purported case of the defendants as made out by them

so that no injustice is caused to either side.

11. It is to be noted here that the two sets of written statement submitted by

the defendants in the suit nowhere stated that original C.S. Patta No. 18 which

has been subsequently renumbered as R.S. Patta No. 29 and second R.S. Patta

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No. 43, were partitioned and the co-sharers have been enjoying their properties

according to their entitlements. In the absence of such a plea from the side of

the defendants and when plaintiffs have approached the court praying for right,

title and interest and for a preliminary decree of partition, it cannot be presumed

that the patta is not a joint patta. If the patta is a joint patta in that event, it is to

be seen whether plaintiffs have got any semblance of title in the joint patta i.e.

existing second R.S. Patta No. 43. It is the case of the plaintiffs that there were

two owners of the patta, namely, Lob Chonga and Gagan Chonga. Lob Chonga

died and Rajani Namasudra is the alleged son of Lob Chonga. Let us examine if

the un-established allegation of the defendants that Rajani Namasudra is not the

biological son of Lob Chonga is accepted, in that event, whether Rajani

Namasudra will be entitled to any share whatsoever or not. This matter did not

come up for consideration before the learned courts below and it does not

appear that any argument was made to that effect at all. There could have been

two ways. First, the allegation that Rajani Namasudra is not the biological son of

Lob Chonga is outright rejected by saying that defendants did not lead any

evidence to that effect. Secondly, it could have been said that in the event Rajani

Namasudra is the son of widow of Lob Chonga through one Darparam

Namasudra, in that event, whether Rajani Namasudra could claim any title of Lob

Chonga. It is not clear when did Lob Chonga die. Neither the plaintiffs nor did the

defendants disclosed the date of death of Lob Chonga. Supposing that Lob

Chonga died after 1956 after coming into force of the Hindu Succession Act,

1956 in that event, with the death of Lob Chonga his title in the joint patta i.e.

C.S. Patta No. 18 immediately devolved on his legal heirs. If Rajani Namasudra is

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the son of Lob Chonga then property would have devolved on Rajani Namasudra

and his mother. And if Lob Chonga is not in existence or not even the womb

of his mother at the time of death of Lob Chonga in that event, the widow of Lob

Chonga would have inherited his entire share. After coming into force of the

Hindu Succession Act, 1956, acquisition of title by widow is absolute. Even if she

married subsequently, she cannot be divested from her title and so in that event,

assuming that widow of Lob Chonga subsequently married Darparam Namasudra

and Rajani Namasudra was the son of that Darparam Namasudra to the widow

Lob Chonga in that event, Rajani Namasudra will not only inherit the property of

his biological father, Darparam Namasudra but he will also inherit the property of

Lob Chonga which was inherited by his mother being the widow of Lob Chonga.

These discussions have not found place in either of the two judgments of the

learned courts below. Either way plaintiffs have some title to the property. The

plaint is not happily drafted to contain all the material facts to establish

acquisition of title by Rajani Namasudra. In the absence of disclosure as to the

date of death of Lob Chonga, a difficulty has arisen. But at the same time it

cannot be lost sight of that the defect so existing in plaint regarding date of

death of Lob Chonga could not be used as opportunity by the defendants. The

defendants have raised a plea in the written statement that Rajani Namasudra

was borne to Darparam Namasudra after death of Lob Chonga and they have

also not stated that Lob Chonga died prior to 1956. In that event, widow of Lob

Chonga would have only limited share to the estate. They have not led any

evidence whatsoever to prove their allegation as to paternity of Rajani

Namasudra and rather, by recital made in paragraph 24(C) of the written

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statement, they sought to transfer the burden of proof to the plaintiffs. Such a

stand taken by the defendants is not acceptable. It is the defendants who have

taken the stand that Rajani Namasudra is not a son of Lob Chonga. Then burden

is on the defendants to prove the fact. Unless the same is proved, it is to be

accepted that Lob Chonga is the father of Rajani Namasudra and in that event

also title of Lob Chonga clearly devolved on Rajani Namasudra who on turn is the

predecessor-in-interest of the plaintiffs. In that event plaintiffs have title suit

patta. What would be the quantum of title of the plaintiffs is a question of law

and such a question can be decided by the judges on the basis of materials

available on record and by application of relevant law. The Hon’ble Supreme

Court in the case of Kidar Lall Seal and anr. vs. Hari Lall Seal reported in AIR

1952 SC 47 held in paragraph 41 that the method of computation is a matter of

law and it is for the judges to apply the law stated and to give plaintiff such relief

as is appropriate to the case. In paragraph 51 of the same judgment it is the

view of the Hon’ble Supreme Court that court must be slow to throw out a claim

of a plaintiff on mere technicality of pleading. When the substance of the thing is

there and no prejudice is going to be caused to the other side, it is the duty of

the court to mould the relief and to examine the claim raised by the plaintiff on

perusal of the plaint in entirety. The deficiency in the present case, therefore,

ought to have been ignored by the learned trial court and an enquiry ought to

have been made as to whether plaintiff has got any title whatsoever to the suit

patta. If he has any semblance of title in that event what is the quantum of such

title ought to have been considered and computed by taking into consideration

the relevant law holding the field.

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12. There is yet another aspect of the matter which cannot be lost sight of.

The defendants stated in paragraph 24(C) of the written statement that plaintiff

could claim at best an area of 4K 7Ch of land in the suit patta. This admission of

the defendants in the written statement escaped the notice of both the learned

courts below. Even if by admission, if plaintiffs are entitled to 4K 7Ch of land,

what was the harm in passing a preliminary decree in favour of the plaintiffs on

the basis of such admission? The learned courts below have considered the

provisions of Order XX Rule 18 of the Code of Civil Procedure and were aware

that in a decree of partition it is the duty of the court to ascertain the shares of

all the parties. As such computation was not made, the learned courts below

chose the option of dismissing the suit of partition by holding that it is time

barred. Bar on limitation may arise in regard to validity of Ext. A or Ext. 3. But

supposing Ext. A has not been challenged which was executed on 29.10.1926

but can we hold that Gunomoni Namasudra could have inherited more title than

his vendor had in the suit patta. Vendor of Gunomoni Namasudra was Harmohan

Namasudra who was the son of Gagan Chonga and Gagan Chonga was one of

the two joint pattadars of C.S. Patta No. 18 measuring 2B 13K 4Ch. It was

necessary for learned courts below, therefore, to hold as to whether Gagan

Chonga owned 1B 6K 10Ch or not. If he had owned 1B 6K 10Ch and the patta

was in the joint name of Lob Chonga and Gagan Chonga, in that event,

Harmohan had title to the extent of 1B 6K 10Ch in the absence of any claim of

adverse possession. Defendants have not raised any such issue of adverse

possession in the written statement and so there is no reason to hold that

Harmohan had more title than he inherited because of adverse possession. If

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Harmohan had title to the extent of 1B 6K 10Ch, any sale deed executed by him

would be valid only with respect to such land. This is because law is settled that

no one can transfer more title than he has. Even these aspects of the matter

were not taken into consideration by the learned courts below. Had it been taken

into consideration and view was taken then it would have been possible on the

part of this court to see as to whether such view is in terms of law or not. The

learned courts below, therefore, have failed to comply with the provision of Order

XX Rule 18 of the Code of Civil Procedure on the basis of the materials available

on record.

13. In view of what have been stated above, the sole substantial question of

law is decided in the affirmative in favour of the appellants and consequently the

first appellate judgment and decree is hereby set aside. The matter is remitted to

the learned first appellate court who shall consider the whole matter in view of

what have been stated above and shall pass a judgment afresh on the basis of

the materials available on record.

14. Send down the LCRs immediately.

JUDGE BiswaS