Smti Sarumai Sarmah& Ors. vs. Makhan Chandra Khatoniar& Ors.

RSA 74/2002 BEFORE THE HON'BLE MR. JUSTICE B.P. KATAKEY

This appeal by the defendants, is directed against the judgment and decree dated 24.12.2001, passed by the learned Civil Judge (Senior Division) , Jorhat, in Title Appeal No.10/1989, allowing the appeal by setting aside the j udgment and decree dated 31.01.1989 (decree drawn on 16.02.1989), passed by the learned Munsiff No.1, Jorhat, in Title Suit No.60/1980, whereby and whereunder t he suit of the plaintiff was initially dismissed.

2. The respondent No.1 as plaintiff instituted the aforesaid suit praying f or eviction of the defendant No.1, Bipin Ch. Sarmah, who is the predecessor-in-i nterest of the present appellants, and also for recovery of khas possession, in respect of the land measuring 1 bigha 1 katha 12 lechas covered by Dag No.707 of periodic patta No.222, described in the schedule to the plaint, contending inte r alia that the land measuring 2 bighas 0 katha 14 lechas was originally belonge d to the father of the plaintiff and proforma defendant No.6 as well as the pred ecessor-in-interest of the proforma defendant Nos.7 and 8, which land they have inherited after the death of their father Padmeswar. It has further been pleaded that out of the said land, an area of land measuring 2 kathas 17 lechas was acq uired by the Collector for a public purpose in L.A. Case No.23/77-78, leaving 1 bigha 4 kathas 9 lechas. The further pleaded case of the plaintiff is that out o f the said land they have sold 1 bigha 5 lechas to the proforma defendant Nos.2 to 5 and thus the plaintiff as well as the proforma defendant No.6 and the prede cessor-in-interest of the proforma defendant Nos.7 and 8 became the absolute own er in respect of 1 bigha 1 katha 12 lechas, which is the suit land. According to the plaintiff, the father of the defendant No.1 Bipin, who has married the sist er of Padmeswar, was allowed to occupy 1 katha of land on the southeast corner o f the suit land, out of sympathy and taking advantage of the same, he initially claimed the compensation for the acquired land and thereafter encroached the ent ire land measuring 1 bigha 1 katha 12 lechas. The plaintiff, therefore, institut ed the suit for eviction of the original defendant No.1 and also for recovery of khas possession.

3. Bipin Ch. Sarmah, original defendant No.1, who is the predecessor-in-int erest of the present appellants, filed the written statement denying the claim o f the plaintiff and contending inter alia that his father was allowed to occupy the land by Padmeswar during his lifetime, who has subsequently shifted to Tenga khat, by virtue of which initially his father and thereafter the defendant No.1 continued to occupy the land. It has further been pleaded that since the defenda nt No.1 is possessing the land openly and adversely denying the title of the law ful owner, he has acquired the right over the suit land by prescription of law i .e. by adverse possession.

4. Based on the pleadings of the parties, the Trial Court framed the follow ing issues for determination:-

(i) Whether there is any cause of action for this suit?

(ii) Whether the plaintiff has any right, title and interest and possession o ver the suit land?

(iii) Whether the plaintiff has at right to sue?

(iv) Whether the suit is bad for non-joinder of necessary parties?

(v) Whether the proforma defendant No.1 and 2 sold the suit land to the prof orma defendant No.3 by a registered deed on 20.01.1987?

(vi) Whether the mutation of the suit land obtained by the plaintiff and prof orma defendant No.3?

(vii) What relief/reliefs the parties are entitled to?

5. The Trial Court, though has answered the issue No.4 relating to the clai m of the defendants on adverse possession in favour of the plaintiff, has, howev er, dismissed the suit of the plaintiff, on the ground that the plaintiff in the

suit having not claimed the right, title and interest, suit for eviction and re covery of khas possession is not maintainable.

6. Being aggrieved, the plaintiff filed Title Appeal No.10/1989, which has also been dismissed vide judgment and decree dated 30.05.1994 by affirming the j udgment and decree passed by the Trial Court.

7. The plaintiff then challenged the said judgment and decree in Second App eal No.178/1994, wherein the following substantial question of law was framed:- Whether the Courts below were right in interpreting the pleading in the plaint?

8. The said appeal was heard and disposed of on 11.01.2001 remanding the ca se to the First Appellate Court for deciding the question of title of the plaint iff, though the plaintiff did not pray for declaration of right, title and inter est over the suit land, in view of the finding recorded by both the Courts below that the defendants could not prove the ingredients to constitute adverse posse ssion, concurring with the finding recorded by both the Courts below relating to the claim of adverse possession by the defendant No.1.

9. The First Appellate Court, thereafter, in view of the aforesaid order pa ssed in the aforesaid second appeal, decided the Title Appeal No.10/1989 afresh limiting to the question of the title of the plaintiff. The First Appellate Cour t has held that the plaintiff being the successor-in-interest of Padmeswar, has acquired the right, title and interest over the suit land measuring 1 bigha 1 ka tha 12 lechas and consequently passed the decree for recovery of khas possession by evicting the defendant No.1 therefrom, despite the pleadings of the plaintif f in the plaint that the entire suit land belonged to the proforma defendant Nos .6, 7 and 8, apart from him. Hence the present appeal.

10. The appeal was admitted for hearing vide order dated 31.05.2002 on the f ollowing substantial questions of law:-

(i) Whether the first appellate Court erred in allowing the appeal decreeing the suit without determining as to whether the right of the appellants as famil y co-sharers stood exhausted/extinguished?

(ii) Whether the evidence on record relating to title had been properly appre ciated under the provisions of the Indian Evidence Act regarding burden of proof ? And

(iii) Any other substantial question of law that may be pressed during the cou rse of argument.

11. During pendency of the Second Appeal No.178/1994, the original defendant No.1 had expired and in his place the present appellants were substituted being his legal heirs and right to sue having survived on them. During pendency of th e present appeal the appellant No.1 Smt. Sarumai Sarmah had also died and her le gal heirs being already on record, namely, appellant Nos.2, 3 and 4, the name of Sarumai Sarmah, appellant No.1, has been struck off from the list of appellants

.

12. I have heard Mr. S.K. Ghosh, learned counsel for the appellants and Mr. T.J. Mahanta, the learned counsel appearing for the respondent No.1. Other respo ndents have not entered appearance despite service.

13. Mr. Ghosh, the learned counsel appearing for the appellants referring to the impugned judgment and decree passed by the First Appellate Court has submit ted that since it is the case of the plaintiff that he is one of the co-sharers along with the proforma respondent Nos.6, 7 and 8, the First Appellate Court oug ht not to have decreed the suit of the plaintiff by declaring his right, title a nd interest in respect of the entire suit land measuring 1 bigha 1 katha 12 lech as. It has also been submitted that the PW-1, the plaintiff himself during cross -examination has also admitted that Padmeswar had 5(five) daughters, apart from 3(three) sons, namely, Makhan (plaintiff), Nalin (proforma defendant No.7) and G anesh (the predecessor-in-interest of the proforma defendant Nos.8 and 9) and Pa dmeswar having died in the year 1966, all the heirs 8(eight) in numbers will hav e equal shares over the land measuring 1 bigha 1 katha 12 lechas and hence the p laintiff would have right, title and interest only in respect of 1/8th share of the suit land and hence the First Appellate Court ought not to have decreed the suit of the plaintiff in respect of the entire suit land. Mr. Ghosh, the learned counsel further submits that admittedly there being no partition amongst the co -owners, namely, sons and daughters of Padmeswar, the plaintiff's right, title a nd interest in respect of 1/8th share can only be declared jointly with the righ t, title and interest of the other co-sharers and no decree for recovery of khas possession can be passed even in respect of 1/8th share of the plaintiff withou t the suit land being partitioned.

14. Mr. Mahanta, the learned counsel on the other hand, has submitted that t he plaintiff's plea of adverse possession has been turned down by both the Court s below, which has also been affirmed by the Second Appellate Court vide judgmen t and order dated 11.01.2001 passed in Second Appeal No.178/1994 and hence the C ourt below has rightly decreed the suit of the plaintiff in respect of the entir e suit land in the absence of any claim by the other co-sharers, though his brot her as well as the successor-in-interest of another brother have been arrayed as proforma defendant Nos.6, 7 and 8. The learned counsel further submits that it is being not the case of the defendants in the written statement filed that the plaintiff cannot inherit the property alone and that the sisters of the plaintif f, 5(five) in numbers, have also the right, title and interest over the suit lan d, the contention of the defendants that the title of the plaintiff in respect o f the entire land cannot be decreed, is not tenable.

15. I have considered the submissions advanced by the learned counsel for th e appearing parties.

16. From the evidence adduced by the parties, it is evident and rather an ad mitted position of fact that Padmeswar, the father of the plaintiff Makhan, died in the year 1966. It has also come out in evidence that Padmeswar had 3(three) sons and 5(five) daughters. One of the sons is the plaintiff, namely, Makhan, th e other is the proforma defendant No.6, namely, Nalin and the third one is Ganes h Khatoniar, the predecessor-in-interest of the proforma defendant Nos.7 and 8. The plaintiff, who has been examined as PW-1, in his deposition has also admitte d that Padmeswar had 5(five) daughters, who are the sisters of the plaintiff. Fa ther of the plaintiff having died in the year 1966 and it is being the case of t he plaintiff that he got the property by right of inheritance along with the pro forma defendant Nos.6, 7 and 8, the plaintiff would have right, title and intere st in respect of 1/8th share of 1 bigha 1 katha 12 lechas of land, which land ac cording to the plaintiff himself originally belonged to Padmeswar. The First App ellate Court, however, ignoring this aspect of the matter as well as the pleadin gs of the plaintiff in the plaint, has decreed the suit of the plaintiff declari ng his right, title and interest in respect of the entire suit land, namely, 1 b igha 1 katha 12 lechas and consequently passed a decree for recovery of khas pos session by evicting the present appellants therefrom.

17. It is not the case of the plaintiff that there was either any amicable p artition or partition in any other manner of the land left behind by Padmeswar. On the other hand, the plaintiff in the plaint himself claimed that the suit lan d has jointly been inherited by the plaintiff along with the proforma defendant Nos.6, 7 and 8 and all of them are sharers. As noticed above, there being 5(five ) other sisters of Makhan, who are the daughters of Padmeswar, who died in the y ear 1966, the other sisters would also have their share on the suit land. It is also not the case of the plaintiff that the other co-sharers, namely, his brothe rs and sisters have relinquished their right in respect of the suit land in favo ur of the plaintiff. As the plaintiff's title over the entire suit land cannot b e decreed, the decree for recovery of khas possession in respect of the entire s uit land also cannot be passed. That apart, even though the plaintiff has the ri ght, title and interest in respect of 1/8th share of the suit land, the decree f or recovery of khas possession by evicting the defendants cannot be passed, ther e being no partition and there being no prayer for partition of the suit land, a s 1/8th share of the plaintiff in the suit land has not been ascertained.

18. The contention of the respondent No.1/plaintiff that as the defendants h ave not raised the plea in the written statement that the plaintiff is entitled to only 1/8th share and as such the First Appellate Court has not committed any illegality in passing the decree in favour of the plaintiff, cannot be accepted in view of the order dated 11.01.2001 passed in Second Appeal No.178/1994, where by and whereunder the First Appellate Court was directed to ascertain the right, title and interest of the plaintiff. The First Appellate Court naturally, there fore, has to determine whether the plaintiff has the right, title and interest o ver the suit land or any part thereof. There being evidence on record and it is the pleaded case of the plaintiff that there are other co-sharers, the First App ellate Court cannot ignore that aspect of the matter and declare the right, titl e and interest of the plaintiff over the entire suit land, even in the absence o f any pleadings to that effect by the defendants in the written statement. The p lea of adverse possession by the defendants having been rejected earlier in Seco nd Appeal No.178/1994, the defendants cannot raise the said plea again.

19. In view of the aforesaid discussion, the judgment and decree passed by t he First Appellate Court stands modified declaring the joint right, title and in terest of the plaintiff in respect of 1/8th share of the suit land along with th e right, title and interest of the other co-sharers. The plaintiff, however, wou ld not be entitled to the decree for recovery of khas possession in the absence of any partition, as discussed above.

20. The appeal is accordingly allowed to the extent as indicated above. No c ost.

21. Registry is directed to send down the records forthwith.