Liladhar Das vs Rup Jyoti Das And 2 Ors
2021 Latest Caselaw 3034 Gua

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GAHC010119012020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : CRP(IO)/119/2020

            LILADHAR DAS
            S/O- LT. MANORANJAN DAS, R/O VILL.- 1 NO. GALIAHATI, MOUZA, P.S.
            AND DIST.- BARPETA, ASSAM.



            VERSUS

            RUP JYOTI DAS AND 2 ORS.
            W/O- KHANINDRA NATH BHUYAN, R/O- DAHATI, P.S. AND DIST.-
            BARPETA, ASSAM.

            2:RAJU BHAGAWATI
             S/O- LT. BHAGAWAN BAGAWATI
             R/O- METUAKUCHI
             MOUZA
             P.S. AND DIST.- BARPETA
            ASSAM.

            3:KHANINDRA NATH BHUYAN
             S/O- LT. SASHI BHUYAN
             R/O- DAHATI
             MOUZA
             P.S. AND DIST.- BARPETA
            ASSAM

Advocate for the Petitioner   : MR. J AHMED

Advocate for the Respondent : MR. A C SARMA (R1, R3)

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER (ORAL) Date : 23-11-2021

Heard Mr. J. Ahmed, learned counsel appearing for the Petitioner and Mr. A.C. Sarma, learned senior counsel assisted by Mr. G. Bharadwaj appearing on behalf of the Respondent Nos. 1 & 3.

2. This petition under Article 227 Of the Constitution of India is filed challenging the order dated 07/03/2020 passed by the Munsiff No. 2, Barpeta in Misc.(J) Case No. 205/2019 arising out of Title Suit No. 108/2019, whereby the suit has been stayed till the disposal of Misc. (Probate) Case No. 2/2019 pending before the District Judge, Barpeta.

3. The brief facts of the case is that the Respondent No. 1 filed an application seeking probate in respect to a Will dated 19/04/2013 of one Lt. Kironmoyee Das before the District Judge, Barpeta. In the said application seeking probate, it has been specifically mentioned that Lt. Monoranjan Das gifted the said plot of land described in Schedule-A in favour of his wife Lt. Kiranmoyee Das by execution of a registered Gift Deed No. 2678/94 dated 31/08/1994. It is also the specific case of the Respondent No. 1 that Lt. Kironmoyee Das during her life time had sold a part of Schedule A land to one Raju Bhagawati vide the registered Sale Deed No. 499/2011 dated 08/03/2011. After the said sale Lt. Kiron Moyee Das had 1 Katha 10 Lechas of land with her residential house standing thereon, which was specifically described to the application seeking probate and by executing a Will on 19/04/2013 Lt. Kiron Moyee Das bequeathed the said Schedule B land with the standing house thereon in favour of Smt. Rupyoti Das, who was the daughter of the testatrix. The said probate proceeding has been registered and numbered as Misc. (Probate) Case No. 2/2019

and the same was filed on 6th of May, 2019.

4. The petitioner appeared in the said probate proceedings upon receipt of notice and filed his written objection wherein while denying the contents of the petition seeking probate, he stated that he had no knowledge about the execution of the Gift Deed No. 2678 dated 31/08/1994 as well as the Will bearing Deed No. 5-3 under Sl. No. 1525 dated 09/06/2009 Page No.# 3/6

and he came to learn about the same only when he received the summons in respect to Misc. (Probate) Case No. 2/2019. He further stated that he also came to know about the registered Deed No. 499/2009 dated 08/03/2011 executed in favour of Raju Baghawati when he received the summons as well as also the unregistered Will dated 19/04/2013. On the basis of the averments made in the written objection the petitioner who was the respondent No. 2 in Misc. (Probate) Case No. 2/2019 sought for rejection of the Probate suit. At this stage, it may be relevant to mention that prior to filing of the written objection by the petitioner in the Probate proceedings, he instituted a suit being Title Suit No. 108/2019 before the Court of Munsiff No. 1, Barpeta. In the said suit, i.e. Title Suit No. 108/2019, the petitioner as plaintiff sought for the following reliefs, which for the sake of convenience is quoted herein below :-

" A. To declare that the plaintiff have right, title and interest over the "B" Schedule land out of "A" Schedule land of the plaintiff on the other hand the main defendant No. 1 have right, title and interest over the "c" Schedule land. Out of "A" schedule land of the plaint.

B. To declare that the defendant have no legal right, title and interest and possession over the "B" schedule land by illegal dispossession of the plaintiff from the suit land.

C. To decree of evicting the defendants from the "B" schedule suit land and deliver khas possession of the suit land in favour of the plaintiffs. D. Decree for declaration that the Regd. Gift Deed No. 2678/94 dated on 31.08.1994, Regd. Will No. 5-3 under serial No. 1525 dated on 09.06.2009 and regd. Sale Deed No. 499/2011 dated 08.03.2011 and un Regd. will dated on 19.04.2013 are illegal, in operative null and void hence said gift deed, will's and sale deed are liable to be cancelled and accordingly to send precept to the concerned Sub registrar to cancel the said deeds from the volume book of this office.

E. Decree for declaration that the main defendant's No. 1 & 2 have no right to demand any part of land within the "B" schedule land out of "A" schedule land by virtue of the said Regd. Deeds.

F. A decree for declaration that the plaintiff is entitled to get partition upon the "B" schedule land out of "A" schedule land accordingly to issue precept to the concerned revenue authority to create separate dag and patta in the name of the plaintiff upon the "B" schedule land out of "A" schedule land. G. To issue precept to the concerned revenue authority for setting aside the impugned order of C.O., Barpeta on 18.12.1995 in connection with M.C. Case Page No.# 4/6

No. 118/95-96 and also the impugned order of C.O., Barpeta dated on 17.12.2012 in connection with M.C. No. 245/10-11.

H. Decree to issue permanent injunction restraining the main defendant to enter into the "B" schedule land out of "A" schedule land creating any obstruction and disturbance the peaceful enjoyment of the plaintiff after so partition. I. That decree for declaration that the proceeding of Misc. Probate Case No. 2/19 which is pending before the Hon'ble Court of Addl. District & Session's (Adhoc) Judge, Barpeta is not tenable in the eye of law. J.Decree all cost of the suit in favour of the plaintiff as per provision of law and against the main defendants.

K. Decree for any other relief or reliefs in favour of the plaintiff as per provision of law and against the main defendant."

5. From the reliefs quoted herein above one can see that the petitioner as plaintiff had sought for declaration that the registered Deed No. 2678/1994 dated 31/08/1994 amongst others is illegal, inoperative, null and void and for issuance of precept. The Respondent No. 1 and 3 herein, who were the defendant Nos. 1 and 3 in the said suit filed their joint written statement denying the statements made in the plaint both on law as well as on facts. The Defendant No. 2 had also filed a separate written statement denying the contents of the plaint in so far as the defendant No. 2 is concerned. Pursuant thereto, the Respondent Nos. 1 and 3 herein filed an application under Section 10 read with Section 151 of the Code of Civil Procedure that till disposal of Misc. (Probate) Case No. 2/2019 pending before the Court of Additional District Judge, Barperta, the proceedings of Title Suit No. 108/2019 be stayed. The grounds assigned out there in the said application was that the 'Will' dated 19/04/2013 is an issue pending before the Court of Additional District Judge, Barperta in Misc. (Probate) Case No. 2/2019. A written objection was filed by the petitioner contending inter alia that the proceedings in Title Suit No.108/2019 was more wholesome, and as such staying the proceedings in the said suit does not arise.

6. The Trial Court below vide an order dated 07/03/2020 on the basis of a judgment of this Court rendered in the Case of Amalendu Sarkar Vs. Rajendra Sarkar reported in (1990) 2 GLR (NOC) 32 and by invoking the power under Section 10 of the CPC stayed the proceedings in Title Suit No. 108/2019 pending disposal of the Misc. (Probate) Case No. 2/2019. Being aggrieved, the petitioner has approached this Court under Article 227 of the Constitution of India.

7. I have heard the learned counsel for the parties at length. From a perusal of the Page No.# 5/6

impugned order, it reflects that the Trial Court had taken into consideration the provision of Section 10 of the Code of Civil Procedure while passing the impugned order. The principle of law is well settled that the provision of Section 10 of the CPC would be applicable where a suit is pending, i.e. in the same or any other court in India having jurisdiction to grant the reliefs claimed in the subsequent suit, which is not the case in the instant proceedings. The law as regards Section 10 of the CPC is also very clear, whereby it stipulates that when a decision passed in the previously instituted suit would be a res judicata in the subsequent suit then only the provisions of Section of Section 10 can be made applicable, which is also not present in the instant case as the jurisdiction exercised by the Probate Court is limited.

8. Be that as it may, taking into consideration that the Trial Court had relied upon a judgment rendered in the case of Amalendu Sarkar(supra), wherein this court has exercised the power under Section 151 of the CPC, let me look into the facts as to whether the Court below could have exercised the power under Section 151 of the CPC in the instant case. A perusal of the plaint and more particularly the relief as sought for as regards the challenge of the Gift Deed dated 31/08/1991 on the basis of which a sale was made to the Defendant No. 2 and thereupon the remaining land was being bequeathed to the Defendant No. 1 the stay of the proceeding in Title Suit No.108/2019 pending disposal of the Probate proceedings could not have been ordered by the Trial Court in as much as there is a challenge to the very authority of the testatrix to execute the Will as well as also the Deed of Sale No. 499/2011 dated 08/03/20111. This aspect of the matter have not been taken into consideration by the Court below while passing the impugned order. Consequently, the impugned order dated 07/03/2020 passed by the Munsiff No. 2, Barpeta in Misc.(J) Case No. 205/2019 is interfered with.

9. It has been brought to my attention by Mr. A.C. Sarma, the learned senior counsel appearing on behalf of the respondent Nos. 1 and 3 that the petitioner herein had filed an application under Section 10 read with Section 151 of the CPC before the Court of the Addl. District Judge, Barpeta, whereby the further proceedings of Misc. (Probate) Case No. 2/2019 has been sought to be stayed pending disposal of the Title Suit No. 108/2019. The observations made herein above shall not affect the adjudication of the said application by the Court of the Addl. District Judge, Barpeta and the said Court is directed to proceed with the adjudication of the said application on its merit.

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10. With the above observations, the instant petition is disposed of. No costs.

JUDGE

Comparing Assistant