IN THE GAUHATI HIGH COURT

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM & ARUNACHAL PRADESH) RFA 9/2008 Sri Mrinal Kanti Dey, S/o- Shri Mohit Lal Dey, Resident of Circular Path, Rukmininagar, PO-Assam Sachivalaya, Dispur, Guwahati-6. -versus-.appellant 1. Shri Manas Prasun Dey, S/o- Shri Motilal Dey, C/o- Hotel, Shillong-1. Also to be served at Circular Path, Rukmininagar, PO-Assam Sachivalaya, Dispur, Guwahati-6. 2. Shri Motilal Dey, C/o- Hotel Lotus, Dey Mansion, GS Road, Shillong-1. Also to be served at Circular Path, Rukmininagar, PO-Assam Sachivalaya, Dispur, Guwahati-6. BEFORE HON BLE MR. JUSTICE SUMAN SHYAM RRESPONDENTS Advocates for appellant - Mr. MK Choudhury, senior advocate Mr. M Dutta, Mr. A Deka. Advocates for respondents - Mr. PK Deka Dr. P Chakrabarty Ms. A Dey Date of hearing & judgment - 15.3.2016

2 JUDGMENT AND ORDER (ORAL) Heard Mr. M Dutta, learned counsel appearing for the appellant. None appeared for the respondents. 2. This appeal is directed against the judgment and decree dated 3.12.2007 passed by the Court of learned Civil Judge (Senior Division) No.2, Kamrup, Guwahati, in Title Suit No.17/2004 whereby, the learned trial Court had dismissed the suit as well as the counter-claim filed by the respondent No.1/defendant No.1. 3. The admitted position of the fact emerging from the records of the case is that the plaintiff i.e. appellant herein and the defendant No.1 i.e. respondent No.1 herein had jointly acquired the suit land by means of registered instruments having equal share over the said property. Thereafter, both the parties had decided to construct a multi-storied building over the said plot of land comprising of 8 independent residential flats. Accordingly, after obtaining mutation of their names in respective suit land and on receiving the building construction permission granted by the competent authority, the plaintiff and the defendant No.1 jointly started construction of the residential house and completed construction of the ground floor measuring about 1200 sq. feet in a portion of the suit land although the foundation of the building was laid for construction of four storied building. The dispute arose at that stage when the plaintiff made a claim of having invested a large sum of money towards construction. Although both the parties i.e. the plaintiff and the defendant No.1 were in mutual agreement that the suit property was required to be divided between the parties, yet, the plaintiff claimed that portion of the land wherein the partially constructed building was standing, claiming that he had invested larger share in the construction of the building. This was the beginning of the dispute between the parties which had ultimately led to the defendant No.2 erecting a wall over the land so as to

3 divide the same in two parts by claiming that the defendant Nos.1 and 2 would retain that portion of the land where the building is standing leaving aside the vacate portion of the land for the plaintiff. 4. It further appears from the records that defendant Nos.1 and 2 had earlier made an application before the Revenue authorities for carrying out a revenue partition of the suit land on the basis of which an order dated 23.11.2001 was passed by the Revenue authorities whereby the suit land was partitioned and a area of land comprising 3.46 ares had been mutated in the name of the defendant No.1. A new Dag No.525 was also allotted so as to cover his portion of the land. However, no sooner did the plaintiff come to know about the same, he had lodged a complaint against the order dated 23.11.2001 and prayed for its cancellation. Since the prayer for cancellation of the order dated 23.11.2001 was rejected by the authorities by the order dated 17.11.2004, hence, the plaintiff had preferred an appeal before the Assam Board of Revenue against the order dated 17.11.2004. During the pendency of the said appeal before the Assam Board of Revenue, the plaintiff had approached the Trial Court by filing Title Suit No.17/2004 inter alia praying for a decree of partition of the suit land by metes and bounds and for declaration of the share and the separate possession of the plaintiff over his portion of the land; for permanent injunction and for other consequential reliefs. 5. The defendant Nos.1 had contested the suit by filing written statement-cum-counter claim whereby the said defendant has stated that the land in question was originally purchased by the defendant No.2 i.e. father of the defendant No.1 in the name of his mother Smti. Bidhumani Dey and, thereafter, developed the land by planting fruit bearing trees and also constructed an Assam Type house over the land. Once the land was transferred in the joint name of the plaintiff and defendant No.1, the construction of RCC building was started over the land whereby the ground floor of the building was completed by making equal investment by both the parties. It was also the case of the defendants that since the date of purchase

4 of the land, defendant No.2 has been maintaining the same but, it is the plaintiff who had started obstructing the right of use and enjoyment of the building by the defendants without any valid reason. 6. The defendant No.2 filed separate written statement contesting the claim made in the plaint inter alia stating that the suit property had already been divided way back in the year 1996 between the parties. 7. Based on the pleadings of the parties the learned Court below had framed the following issues in the suit and the counter-claim: 1. Whether the suit is barred by law of estoppel and acquiescence? 2. Whether the plaintiff is entitled to get decree for partition as prayed for? 3. Whether the plaintiff is entitled to get decree for perpetual injunction as prayed for? Issues on Counter-claim: 1. Whether the suit property had already been partitioned by metes and bounds and the defendant No.1 has been occupying his share shown in Schedule-X of the Counterclaim as absolute owner thereof? 2. Whether the defendant No.1 is entitled to get decree as claimed in the Counter-claim? 8. Both the parties adduced oral and documentary evidence during the trial. Based on evidence on record, the learned Trial Court had decided all the issues against the plaintiff as well as the counter claimant holding that the suit was not maintainable since the Revenue authorities had already passed an order for perfect partition of the suit property. The learned Trial Court had held that since there was an efficacious, alternative remedy available to the parties, hence, the suit itself was not maintainable under Section 9 of the CPC. On the basis of such finding, the learned Trial Court had dismissed the suit as well as the counter-claim.

5 9. Assailing the impugned judgment and order dated 3.12.2007 passed by the learned Trial Court, Mr. Dutta, learned counsel for the appellant submits that the revenue partition can be carried out when there is no dispute as regards the claim of the title of the parties over the land in case of ejmali patta and when such partition is carried out on the basis of mutual consent. However, in a case where there is contesting claim of title of co-sharers, in such an event, the remedy would lie only in approaching the Civil Court by filing a title suit which had been done in the instant case by the plaintiff. Mr. Dutta submits that on a total misconstruction of the scheme of the Assam Land and Revenue Regulation, 1886 as well as the Executive Instructions issued by the Govt. under Assam Land Revenue Re-assessment Act, 1936, the learned Trial Court had illegally dismissed the suit by reading ouster of jurisdiction of Civil Court merely because the defendant No.2 had earlier approached the Revenue authority seeking revenue partition of the suit property. Mr. Dutta further submits that even the order of revenue partition granted by the authorities had been subsequently set aside by the Assam Board of Revenue in an appeal preferred by the plaintiff and the said order dated 5.12.2008 passed in RA No.144 (K)/2004 by the Assam Board of Revenue had since attained finality in the eye of law. 10. I have considered the submissions made by Mr. Dutta, learned counsel appearing for the appellant and have also perused the materials on record. A reading of the plaint and the written statement filed by the parties clearly go to show that the entitlement of both the parties over the portion of the suit land based on their interest over the RCC building is a disputed question of fact which can be decided only by a Civil Court. Accordingly, the plaintiff had preferred the Title Suit No.17/2004 seeking a decree of partition and permanent injunction. The defendant No.1 had also apparently set up a plea claiming his right, title and interest over that portion of the land where the RCC building is standing. Therefore, from the pleadings of the parties it is

6 apparent that both the parties are claiming their share over that portion of the land where the newly constructed RCC building is standing. 11. Order XX Rule 18 of the CPC provides that where the court passes a decree for partition of property or for separate possession of share it must declare the rights of several parties interested in the property and shall direct such partition or separation to be made by the Collector, or any gazetted officer subordinate to the Collector deputed by him in his behalf in accordance with such declaration as well as with the provision of Section 54 of the CPC. 12. Chapter VI of the Assam Land and Revenue Regulation, 1886 deals with the procedure for carrying out perfect partition and imperfect partition of a revenue paying estate on the basis of an application made before the Deputy Commissioner. Section 100 of the Regulation 1886, however, provides that when there is objection as regards the question of title, the Deputy Commissioner will stay his hand in the matter and such objection would be determined by a Civil Court of competent jurisdiction. Section 100 of the Regulation 1886 is quoted hereinbelow: 100. Objection on question of title- (1) If an objection, preferred as required under Section 99 raises any question of title which has not been already determined by a Court of competent jurisdiction, the Deputy Commissioner shall stay his proceedings for such time as, in his opinion, is sufficient to admit of a suit being instituted in the Civil Court to try the objection. (2) A Deputy Commissioner staying his proceedings under this section shall make on order requiring the objector, or, if for any reasons he deems it more equitable, the applicant, to institute such a suit within the time fixed, and, in the event of such a suit not being instituted within that time, may in his discretion, disallow the objection, or dismiss the application, as the case may be.

7 (3) On a suit being instituted to try any objection under this section, the Deputy Commissioner shall with reference to the objection, be guided by the orders passed by the Civil Court in the suit. 13. Further, instruction No.29 of the Part-III of the Executive Instructions framed under the provisions of Assam Land Revenue Re-assessment Act, 1936 clearly indicates that the partition of ejmali patta can be carried out by the revenue authorities provided all the shareholders agree and give their consent in writing by putting their signatures in the chitha or otherwise. The said provision is quoted hereinbelow: 29. If the shareholders of an ejmali patta wish to partition amicably their land according to possession and point out the new boundaries, the recorder will survey the boundaries as pointed out, provided all of them agree and give their consent in writing by putting their signatures in the chitha or otherwise. If any co-sharer objects, or if there be dispute about possession, the recorder will not effect the partition. 14. A bare reading of the provisions of contained in Chapter VI of the Assam Land and Revenue Regulation, 1886 read with the Rules framed and the Executive Instructions issued under the Assam Land Revenue Re-assessment Act, 1936, leaves no manner of doubt that the Revenue authorities would be competent to carry out perfect/imperfect partition of a revenue paying estate if and only if all the co-sharers give their consent for such amicable partition i.e. when the application for such partition is made on mutual consent of the parties. However, if there is any dispute as regards the title or possession raised by any of the co-sharers, the Deputy Commissioner has to stay his hands on such process of partition and leave the matter to be decided by a competent Civil Court having jurisdiction over the matter. The said position also becomes amply evident from the language employed in Order XX Rule 18 read with Section 54 of the CPC.

8 15. In the instant case, both the parties have raised a claim to their right, title and interest seeking exclusive possession over that portion of the suit land where the RCC building is standing. Hence, this is a case where there is a contesting claim raised by the parties for declaring their share and exclusive possession over a particular portion of the ejmali property. Such a question involving claim of title and possession could not have been relegated by the Civil Court for being determined by the Revenue authorities and was a matter falling exclusively within the domain of the Civil Court to be decided in the partition suit. When a suit for partition is instituted seeking declaration of share and separate possession by a co-sharer based on contesting claim of title, the Revenue authorities cannot proceed to decide such question as per the scheme of the Regulation 1886. However, by a complete misunderstanding of the provisions of law, the learned Trial Court appears to have taken a contrary view in the matter by holding that it is the Civil Court which would have no jurisdiction to try the suit once an application for partition is entertained by the revenue authorities concerning the subject matter of the suit. 16. Law is well settled that ouster of jurisdiction of Civil Court under Section 9 of the CPC is not to be readily presumed and that the Civil Court would have jurisdiction to try all disputes of civil nature save and except those that are expressly barred under a statute. In the present case, there was nothing in law that imposes a bar on a Civil Court to entertain the partition suit merely because an application for revenue partition of the estate had been made by one of the co-sharers. Such being the position, I am of the considered opinion that the learned Trial Court was not correct in dismissing the suit by reading an ouster of jurisdiction of the Civil Court to try partition suit. It is a different matter that even the order of partition issued by the Deputy Commissioner is now non-existent since the same had been set aside by the Assam Board of Revenue. In such view of the matter, the impugned judgment and decree dated 3.12.2007 passed by the learned Civil Judge is held to be unsustainable in law and the same is accordingly set aside.

9 17. Since the learned Trial Court had not decided any of the issues on merit by considering the evidence on records, hence, I am of the considered opinion that the suit and the counter-claim, filed by the plaintiff and the defendant No.1 respectively, calls for a re-trial in accordance with the provisions of Order 41 Rule 23 A of the CPC. Such being the position the matter is remanded back to the Trial Court for re-trial of all the issues on the basis of the evidence available on record. The Trial Court would be at liberty to re-cast and/or frame additional issue for trial in the suit if the same is called for under the law. Considering the fact that the suit is one pertaining to the year 2004, an attempt may be made to dispose of the suit within a period of 6 (six) months from the date of receipt of the record. Since the respondents are not present before this Court today, hence, the Trial Court would issue fresh notices to the respondents/defendants fixing a date of appearance upon steps being taken by the plaintiff to that effect. The appellant/plaintiff shall appear before the Trial Court on 25.4.2016. 18. Office to send back the lower court record as expeditiously as possible. No order as to costs. JUDGE gunajit