IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) RSA No.

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1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) RSA No. 168/1999 On the death of Sibanath Sarma, the sole appellant his legal heirs 1. Putul Sarma, 2. Basudev Sarma, 3. Rajan Sarma, 4. Bhabadev Sarma, 5. Bipul Sarma, 6. Janmajay Sarma, All are sons of late Sibanath Sarma, All are residents of village Simalaya, Mouza- Pokowa, District-Nalbari. Assam. Appellants - VERSUS - 1. Sri Aswini Sarma, Son of late Pushpa Ch. Sarma, 2. Sri Prabitra Kr. Sarma, Son of late Pushpa Ch. Sarma, 3. Sri Pulin Sarma, Son of late Pushpa Ch. Sarma, 4. Legal representatives of late Ajit Sarma, (a) Smti. Monomati Devi, wife (b) Geetima Devi (c) Prajit Sarma, RSA 168/1999 Page 1 of 10

2 (d) Jintu Sarma 5. Sri Amulya Sarma, All are residents of Village Simalaya, Mouza Pokowa, P.S. Belsor, District- Nalbari, Assam. Respondents Advocate for the petitioner Advocate for the respondent : Mr. PK Kalita, Advocate. : Mr. PK Deka, Advocate. BEFORE THE HON BLE MR. JUSTICE B.P. KATAKEY Date of Hearing : Date of Judgment and Order : JUDGMENT & ORDER (CAV) The respondent Nos. 1, 2, 3 and 5 and the predecessor-in-interest of the present respondent Nos. 4(a) to 4(d) instituted Title Suit No. 32/1997 in the court of the learned Munsiff, Nalbari against the predecessor-in-interest of the present appellants namely Siba Nath Sarma, apart from 14 others as defendants, for declaration of right, title and interest in respect of schedule ka land measuring 3 kathas 13 lechas covered by Dag No. 677 of KP patta No. 1 of village Shimalaya under Pokowa mauza within Belsor police station as well as for restraining the defendants from interfering with the peaceful possession over kha schedule land. The plaintiffs also prayed for a decree for recovery of khas possession if it is found that they are dispossessed during the pendency of RSA 168/1999 Page 2 of 10

3 the suit, apart from passing a decree for permanent injunction and issuance of precepts to the revenue authority for correction of the revenue records. 2. The plaintiffs in the plaint pleaded that after the death of Purnananda Sarma, his sons namely Chakrabarti and Banamali inherited the entire land measuring 3 kathas 4 lechas and 3 kathas 13 lechas in different dags in KP patta No. 41/498, and thereafter, share of Baliram, son of Chakrabarti and Parbananda, son of Banamali were ascertained, thereby land measuring 3 Kathas 4 Lechas was allotted to Baliram and the other land measuring 3 Kathas 13 Lechas was allotted to Parbananda. The said land measuring 3 kathas 13 lechas was subsequently surveyed and dag No. 677 of KP patta No. 1 was allotted which is part of the land covered by old pata No. 41/498 and the land fell in the share of Baliram i.e. 3 kathas 4 lechas was covered by Dag No It is also the case of the plaintiffs that after the death of Parbananda, son of Banamali, the land measuring 3 kathas 13 lechas was inherited by his wife Chitrapriya and son Devdut and thereafter by his wife Rebati, who died issueless, along with Chitrapriya. It is also the case of the plaintiffs that Devdut executed a Will in respect of his share of land in favour of mother Chitrapriya, which was probated and accordingly Chitrpriya became the owner of the entire land of 3 kathas 13 lechas, who sold the same to Srikanta Sarma, the grandfather of the plaintiffs, by a registered sale deed on (Ext. 1). According to the plaintiff, they had to institute the suit for right, title and interest as well as for recovery of khas possession, if found to be dispossessed, against the defendants as they are trying to disposes them on the ground that the name of Baliram, the father of the original defendant No. 1, also appears in the revenue records. RSA 168/1999 Page 3 of 10

4 3. Though there were 15 principal defendants only the defendant No. 1 Sibanath Sarma, i.e. the predecessor-in-interest of the present appellants, contested the suit by filing the written statement contending inter alia that the land measuring 3 kathas 13 lechas which was transferred by Chitrapriya in favour of Sri Kanta Sarma, originally belonged to Purnananda and after his death was jointly inherited by his sons Chakrabarty and Banamali. It is also contended that after the death of Chakrabarti and Banamali the land was inherited by Baliram, son of Chakrabarty and Parbananda, son of Banamali. It is also the case of the defendant No. 1 that after the death of Parbananda, Chitrapriya, wife and his son Devdut will have right, title and interest in respect of ½ of 3 kathas 13 lechas and hence she cannot by the sale deed Ext. 1 transfer the entire land of 3 kathas 13 lechas, as the defendant No. 1 and his other brothers has right over the ½ of the said land. 3. The learned trial court on the basis of the pleadings of the parties framed the following issues for consideration and decision :- 1. Whether there is cause of action for the suit? 2. Whether the suit is barred by limitation? 3. Whether the suit is barred by estoppels acquiesce and waiver? 4. Whether proper court fees have been paid by the plaintiff? 5. Whether suit is bad for non joinder/misjoinder of parties? 6. Whether plaintiffs have right, title and interest over the suit land? 7. Whether plaintiffs have possession over the suit land since the time of their fore father as alleged in the plaint? 8. Whether defendant is entitled to compensation u/s 35 (A) of CPC as alleged? 9. Whether plaintiffs are entitled to a decree as prayed for? 10. To what other relief/reliefs the parties are entitled? RSA 168/1999 Page 4 of 10

5 4. During the course of the trial the plaintiffs examined five witnesses and exhibited a number of documents which are marked as exhibit Nos. 1 to 15 including the sale deed dated as Ext. 1. The defendant No. 1 also examined four witnesses and exhibited five documents Ext. Ka to Ext. Ungo. 5. The learned trial court upon appreciation of the evidences on record and after hearing the learned counsel for the parties vide judgment and decree dated dismissed the suit of the plaintiffs by holding that since Chitrapriya, who executed the sale deed dated Ext. 1 in favour of Sri Kanta Sarma, had no right over the entire land measuring 3 kathas 13 lechas, she cannot transfer the said land vide Ext. 1. It was also found that the said transfer vide Ext. 1, therefore, is fraudulent. 6. Being aggrieved the plaintiffs preferred Title Appeal No. 2/1999 in the court of the learned Civil Judge (senior division), Nalbari which was, however, allowed vide judgment dated decreeing the suit of the plaintiffs by holding that Chitrapriya had the title in respect of the land measuring 3 kathas 13 lechas described in schedule ka to the plaint and therefore the plaintiffs would acquire title in respect of the said land by virtue of the sale deed Ext. 1. Hence the present appeal. 7. The appeal has been admitted for hearing vide order dated by formulating the following substantial question of law: - 1. Whether the suit property belonged to Purnanda, who died leaving two sons Chakrabarti and Banamali and whether Chitrapriya, the daughter in law of Banamali could alone transfer the entire property by excluding the heirs of the other son of Purnanda and whether the learned RSA 168/1999 Page 5 of 10

6 lower appellate court committed serious error of law by adverting to this vital aspect of the matter? 8. I have heard Mr. PK Kalita, learned counsel for the appellant as well as Mr. PK Deka, learned counsel appearing for the respondents. 9. Referring to the impugned judgment passed by the appellate court, it has been submitted by Mr. Kalita, learned counsel for the appellants that though the first appellate court being the final court of appeal is required to discuss all the evidences on record, both oral and documentary, more so when the judgment and decree passed by the trial court is reversed, the learned first appellate court has allowed the appeal filed by the plaintiffs thereby decreeing the suit in their favour by reversing the judgment and decree passed by the trial court, without discussing the evidences on record relating to the claims of the parties in the matter of partition of the land between Chakrabarti and Banamali, the two sons of Purnananda. The learned counsel further submits that the first appellate court has decreed the suit of the plaintiffs on the basis of the letter of administration granted by the learned District Judge vide Ext. 14 though the civil court even after the grant of the letter of administration can decide the right, title and interest of the parties. The learned counsel, therefore, submits that it is a fit case where the matter may be remanded to the first appellate court for deciding the appeal afresh by setting aside the impugned judgment and decree passed. 10. Mr. Deka, learned counsel appearing for the respondents/plaintiffs, on the other hand, has submitted that though the first appellate court while reversing the judgment and decree passed by the trial court did not discuss the relevant evidences on record relating to the claim of RSA 168/1999 Page 6 of 10

7 the plaintiffs about partition of the land between the two sons of Purnananda, namely Chakrabarti and Banamali, it is evident from the deposition of the predecessor-in-interest of the present appellants namely, Sibanath Sarma, the original defendant No. 1, that he has admitted the partition of the plots of land measuring 3 kathas 4 lecahs and 3 kathas 13 lechas between the two brothers, namely Chakrabarti and Banamali. It has also been submitted that the defendant No. 1 in his evidence has also admitted that after such partition, Chitrapriya, wife of Parbananda, who is the descendent of Banamali started living on the suit land on one side of the road and defendant No. 1, Baliram, who is the descendant of Charabarti was residing on the other side of the road over the land measuring 3 kathas 4 lechas. The learned counsel, therefore, submits that in view of such evidence of the defendant No. 1(DW 4), the appeal need not be remanded to the first appellate court for a fresh decision. The learned counsel, therefore, submits that no illegality has been committed by the first appellate court in decreeing the suit of the plaintiffs. 11. I have considered the submissions of the learned counsel for the parties and also perused the evidences on record apart from the judgments and decrees passed by the learned courts below. 12. The first appellate court being the final court of appeal is required to discuss all the evidences on record, both oral and documentary, more so when the judgment and decree passed by the learned trial court is reversed. 13. In the instant case, the first appellate court though has held that there was partition, as pleaded by the plaintiffs in the plaint, there was no proper discussion of the evidences on record. However, since the suit was instituted in the year 1997, I do not propose to remand the matter to the first RSA 168/1999 Page 7 of 10

8 appellate court to decide the appeal afresh and instead proceed to decide the appeal on merit and accordingly the learned counsel for the parties were heard allowing them to refer to the evidences on record, so that the decision in the suit is not further delayed. 14. As noticed above, the plaintiffs in the plaint claimed that that two plots of land measuring 3 kathas 4 lechas and 3 kathas 13 lechas in Dag Nos. 676 and 677 respectively, originally belonged to Purnananda, which land was amicably divided by his two sons Chakrabarti and Banamali and land measuring 3 kathas 4 lechas covered by Dag No. 676 fell in the share of Ckarabarti and land measuring 3 kathas 13 lechas covered by Dag No. 677 fell in the share of Banamali, the same has, however, been disputed by the defendant No. 1 by filing the written statement contending that the suit land measuring 3 kathas 13 lechas belonged to Ckarabarti and Banamali, both sons of Purnananda and hence Chitrapriya, wife of Parbananda who was the son of Banamali would have right, title and interest over half of the suit land measuring 3 kathas 13 lechas covered by Dag No The plaintiffs in support of their claim have adduced oral evidence apart from the documentary evidence, being the letter of administration issued by the learned District Judge (Ext. 14) on the basis of the Will executed by Devdut, son of Parbananda (Ext. 15) in favour of Chitrapriya, wife of Parbananda. The predecessor-in-interest of the appellants, who is the original defendant No. 1 and contested the suit, during his cross examination has admitted the partition by deposing that after separation Chakrabarti and Banamali, sons of Purnananda used to stay in different plots of land. It has further been deposed that while Chakrabarti, his grandfather stayed in the house where he is now staying, which is on one side of a road, Parbananda, RSA 168/1999 Page 8 of 10

9 son of Banamali continued to stay on the land on the northern side of the road. 15. From the aforesaid deposition of the defendant No. 1 Sibanath Sarma it is, therefore, evident that he has admitted the partition of the land. The plaintiffs case relating to the partition, therefore, has been established. It is also evident from the plaintiffs as well as the defendant s evidence that the land measuring 3 kathas 4 lechas fell in the share of the predecessor-in-interest of the defendant No. 1 and 3 kathas 13 lechas (schedule ka ) fell in the share of the predecessor-in-interest of Chitrapriya, who vide Ext. 1 sale deed transferred the land to Srikanta Sarma, the grandfather of the plaintiffs. 17. The predecessor-in-interest of the present appellants namely the original defendant No. 1 neither disputed the execution of the Ext. 1 sale deed nor the execution of Will (Ext. 15) by Devdut, son of Parbananda in favour of his mother Chitrapriya and the grant of letter of administration (Ext. 14). What he had pleaded in the written statement was that Chitrapriya wife of Parbananda having only ½ share of the suit land, cannot transfer the land measuring 3 kathas 13 lechas in favour of the grandfather of the plaintiffs. The execution of the Ext. 1 sale deed, therefore, has not been denied. 18. As held above, the plaintiffs could prove the partition of two plots of land measuring 3 kathas 4 lechas covered by Dag No. 676 and the land measuring 3 kathas 13 lechas covered by Dag No. 677 between Chakrabarti and Banamali, which has also been admitted by the defendant No. 1 in his evidence. Hence the plaintiffs, by virtue of Ext. 1 sale deed executed by Chitrapriya whose right to inherit the suit land measuring 3 kathas 13 lechas being the successor-in-interest of Banamali is not in dispute, have acquired the right, title and interest over the suit land. RSA 168/1999 Page 9 of 10

10 19. The learned appellate court, therefore, has rightly passed the judgment and decree declaring the right, title and interest of the plaintiffs in respect of the suit land confirming their possession in respect of the land measuring 3 kathas 13 lechas covered by Dag No. 677 described in schedule ka and issuing permanent injunction as well as issuing the precepts to the revenue authority for correction of records. 20. The appeal is, therefore, dismissed. No cost. JUDGE RSA 168/1999 Page 10 of 10