Gauhati High Court

Page No.# 1/16 vs On The Death Of Jitendra Kr. Dutta ... on 8 September, 2022

                                                                    Page No.# 1/16

GAHC010003902009




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

                                 Case No. : RSA/27/2009

            ON THE DEATH OF JAGAT KR. DUTTA HIS LEGAL HEIRS SANJIT KR.
            DUTTA and ANR


            2: RAJIB DUTT

            VERSUS

            ON THE DEATH OF JITENDRA KR. DUTTA HIS LEGAL HEIRS (a) SMT
            SANDHYA RANI DUTTA
            W/O LATE JATINDRA KUMAR DUTTA
            RESIDENT OF CHIRING CHAPORI P.O., P.S. AND DIST. DIBRUGARH,
            ASSAM.
            786001

            1:(c) SAURAV KR DUTTA
             S/O LATE JATINDRA KUMAR DUTTA RESIDENT OF CHIRING CHAPORI P.O.
             P.S. AND DIST. DIBRUGARH
            ASSAM. 786001

            1:(b) SUBRATA KUMAR DUTTA
             S/O LATE JATINDRA KUMAR DUTTA RESIDENT OF CHIRING CHAPORI P.O.
             P.S. AND DIST. DIBRUGARH
            ASSAM. 78600

Advocate for the Petitioner   : C BARUAH

Advocate for the Respondent : K M SAIKIA

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT & ORDER (ORAL)

Date : 08-09-2022

Heard Mr. S.R. Gogoi, learned counsel appearing on behalf of the appellants and Mr. G Choudhury, learned counsel for the respondents.

2. This appeal under Section 100 of the CPC, 1908 is directed against the judgment and decree dated 20.12.2007 passed in Title Appeal No.40/2005, whereby the appeal filed by the predecessors of the appellants was dismissed and the judgment and decree passed by the trial Court dated 12.09.2005 passed by the Court of the learned Civil Judge, Junior Division No.1 in Title Suit No.99/2003 was affirmed.

3. This Court vide the order dated 27.05.2009 admitted the instant appeal by framing the two substantial questions of law:

"(i)Whether the daughters of the predecessors in interest of the plaintiff and the defendant, who died in the year 1934 derives any right over the property left behind by the said predecessors in interest and therefore, is the necessary party in the suit?

(ii) Whether the suit of the plaintiff is maintainable in the absence of other brothers of the plaintiff and the defendant when the suit is based on the claim of family settlement?"

4. For the purpose of deciding as to whether the two substantial questions of law above mentioned are involved in the instant appeal, this Court deems it proper to take into account the facts of the instant case. For the purpose of Page No.# 3/16

convenience, the parties herein are referred to in the same status as they stood before the trial Court.

5. The suit was filed by the predecessor in interest of the present appellants i.e. by Jagat Ch. Dutta (since deceased) against the predecessor in interest of the present respondents i.e., Jatindra Kr. Dutta (since deceased). It is alleged in the plaint that one Dindaram Dutta was the absolute owner of a plot of land measuring 2 bighas 0 kathas, 0 lechas of Periodic patta No.356 covered by Dag No.161 of New Amolapatty Ward of Dibrugarh Town Mouza, District Dibrugarh, Assam. After the death of Late Dindaram Dutta and his wife their five sons i.e., Khirod Kr. Dutta, Dr. Profulla Kr. Dutta, Jagat Kr. Dutta (plaintiff), Jitendra Kr. Dutta (defendant) and Achintya Kr. Dutta inherited the aforesaid land in equal shares i.e., 2 kathas each and got their name mutated in the Jamabandi. It has been averred in the plaint that there was a oral family settlement amongst the legal heirs of late Dindaram Dutta including late Sukhadabala Dutta who died in

1979. Profulla Kr. Dutta got separate patta in respect of his 1/5 th share and he sold and left the place. The plaintiff constructed a pucca Assam Type House consisting of 7 rooms including bathroom, latrine on the South East portion of the land on the share of his land which bears holding No.474 of the Ward No.8 of Dibrugarh Muncipal Board, including a shop premises which bears Holding No.475 of Ward No.6 of Dibrugarh Municipality. One brother i.e., Achintya Kr. Dutta constructed his house on the Northern portion of the said land and his house bears municipal Holding No.478 of Ward No.8 of Dibrugarh Municipality, Dibrugarh. Another brother Khirod Kr. Dutta constructed his house on his portion in between the plaintiff and Achintya Kr. Dutta which bears municipal holding No.472 of Ward No.6 of Dibrugarh Municipal Board, Dibrugarh. Achintya Kr. Dutta died in the year 2002 leaving behind him surviving namely Smti Lakshi Page No.# 4/16

Dutta, Smti Babli Dutta and Smti. Papree Dutta. The defendant, Jatindra Kr. Dutta constructed his building on the South West Portion of the aforesaid land falling in his share which bears municipal holding No.473 of Dibrugarh Municipality, Dibrugarh.

6. It has been further alleged that out of seven rooms of the Assam type house, the plaintiff had let out three rooms to a tenant for rent and the remaining four rooms was kept vacant. While the defendant was building his house on the western side of the building of the plaintiff, he with permission of the plaintiff occupied the four rooms of the Assam Type House. The said four rooms have been more specifically described in Schedule A to the plaint. It has been alleged in the plaint that the defendant No.1 in 1980 had executed a mortgaged deed in favour of the Assam State Housing Board in respect of his share of land wherein he constructed his building bearing Municipal Holding No.473 stating inter alia about family settlement. Upon completion of the building of the defendant No.1, the plaintiff demanded that the defendant should handover the vacant possession of the Schedule A premises but instead the defendant demanded formal partition. Under such circumstances, the plaintiff filed a partition case being Partition Case No.26/82-83 for his share and for eviction of the defendant. It has been alleged that in the meantime, the defendant managed a false 'Will' and filed a Probate proceedings which was registered as Misc (P) Case No.50/83, seeking probate of a Will of his mother. On account of the pendency of the said proceedings, the plaintiff's partition proceedings before the Deputy Commissioner was not finalised. The Additional District Judge, Dibrugarh granted probate certificate in favour of the defendant vide a judgment but the said probate certificate was set aside by this Court in MA(F) No.83/95 vide a judgment and order dated 09.08.2001. Thereupon, the Page No.# 5/16

plaintiff again filed partition case before the Revenue Authorities, Dibrugarh. The ADC (R), Dibrugarh after hearing the parties allowed partition vide order dated 05.10.2002 passed in P.P Case No.126/2001-2002 and thereby directed the concerned Circle Officer, Dibrugarh to execute the partition as per the possession and submit report. Accordingly, the Circle Officer visited the spot and made partition of the land by putting partition posts and the South East Portion of the entire land including the Assam Type House bearing Municipal Holding No.474 fell under the share of the plaintiff and the Circle Officer prepared a report and subsequently a separate patta issued to the plaintiff which the Revenue Court accepted and issued separate patta which bears Patta No.531 covered by Dag No.1089 for the land measuring 0 Bigha, 1 katha and 19 lechas of New Amolapaty Ward and Jamabandi was corrected accordingly. The said land has been specifically described in Schedule B to the plaint.

7. From a reading of the paragraph No.13 of the plaint, it is clear that the Schedule A premises is situated over the Schedule B land. After the partition, the plaintiff again demanded the defendant No.1 to vacate the suit premises but the defendant declined to do so, for which the suit was filed for declaration of right title and interest and khas possession of the suit premises by evicting the defendant from the same; for compensation of Rs.6000/-; for pendent lite compensation or house rent @ Rs.1000/- per month with effect from November 2003; for permanent prohibition injunction restraining the defendant from making any construction, alteration or repairing on the land described in Schedule B land and grant permanent mandatory injunction asking the defendant to remove his household articles and the shed which is constructed and being used as garage for vehicle on the land described in Schedule B and for the cost of the suit.

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8. The defendant filed the written statement. In the said written statement, the defendant alleged that the suit was bad for non joinder of necessary parties inasmuch as, Khirod Kr. Dutta, Dr. Profulla Kr. Dutta and Achintya Kr. Dutta and other legal heirs of late Dindaram Dutta were not made parties. It was alleged that that the defendant had not encroached the share of the land of the plaintiff. It was also alleged that the plaintiff had suppressed the fact that the old part of the Assam Type House as mentioned in Schedule A occupied by the defendant and another part house as occupied by the plaintiff are the ancestral properties which was not yet divided among the legal heirs of late Dindiram Dutta and late Sukhadabala Dutta and as such all the legal heirs namely, Jagat Kr. Dutta, Jitendra Kr. Dutta, Achintya Kr. Dutta, Khirod Kr. Dutta and Dr. Profulla Kr. Dutta were entitled to the equal share of the said old Assam Type house left by their parents.

9. Further to that it has been mentioned that the defendant had reconstructed the house by investing a huge amount of money amounting to Rs.4,50,000/- and under such circumstances the suit for ejectment of the defendant from Schedule A and B is not justified. It was denied that Dr. Profulla Kr. Dutta got separate patta in respect to his share in accordance with the family arrangement amongst the legal heirs of late Dindaram Dutta and late Sukhadabala Dutta. It was specifically admitted that the legal heris of late Dindaram Dutta and late Sukhadabala Dutta had constructed their respective residential houses in accordance with their choices on more or less piece of land.

10. In paragraph No.14 of the written statement, there is no denial to the fact that plaintiff had constructed the Assam Type House. In paragraph 23 which is the reply to paragraph No.13 of the plaint, the defendant specifically Page No.# 7/16

denied that the Circle Officer visited the spot and made partition of the land by putting partition posts and submitted a report before the Revenue Authority. In paragraph 24, the defendant have denied that the plaintiff occupied the land and constructed the residential house thereon in accordance with the family settlement or in other words, the defendant duly admitted that there was a family settlement. On the basis of the above averments, the defendant denied the case of the plaintiff and sought for dismissal of the suit.

11. The trial Court on the basis of the pleadings framed as many as 8 issues which are as follows:

i. Whether there is cause of action in the suit?

ii. Whether the suit is maintainable in the present form? iii. Whether the suit is barred by limitation?

iv. Whether the suit is bad for non joinder of necessary parties? v. Whether there was family settlement in respect of the ancestral properties amongst the legal heirs of late Dindaram Dutta and Sukhadabala Dutta?

vi. Whether the suit premises was constructed by Late Dindaram Dutta? vii. Whether the plaintiff is entitled to decree as prayed for? viii. Whether any other relief or reliefs the parties are entitled to?

12. The plaintiffs side examined 4 witnesses and exhibited various documents whereas, the defendants side examined 3 witnesses.

13. The trial Court dismissed the suit vide the judgment and decree dated 12.09.2005. In doing so, the trial Court while deciding the issue No.4 held that the sons and daughters of Late Dindaram Dutta were necessary parties and in absence of them the suit cannot be decided inasmuch as, it would be impossible Page No.# 8/16

to execute the decree, if so passed. As regards, the issue No.5 which pertains as to whether there was any family settlement in respect to the ancestral property amongst the legal heirs of late Dindaram Dutta and Sukhadabala Dutta, the Trial Court though held that there was proof adduced by the plaintiff that the suit premises was constructed by the plaintiff himself alone but gave a finding that the plaintiff did not construct the suit premises alone. At this stage, it may be relevant to take note that the Trial Court did not assign any reasons why it went contrary to the evidence-on-record. Further the Trial Court observed that from the evidence of DW-1, DW-2 and DW-3 and perusal of Exhibits - 1, 2, 3 and 6, 7, 8, it appeared that that suit premises falls within the share of the land of the plaintiff and the DW-2 and DW-3 also confirmed that the suit premises falls within the share of the plaintiff but came to a finding without any basis or materials that there was no formal partition amongst the legal heirs of late Dindaram Dutta and the shares of the daughters of late Dindaram Dutta were ignored and decided the issue No.5 that there was no family settlement in respect to the land of late Dindaram Dutta and late Sukhadabala Dutta.

14. The findings arrived at by the trial court as regards the issue No.5 were on the face of it, perverse as the trial court though had taken into consideration that the plaintiff had constructed the suit premises and the suit premises described in Schedule A fell in the share of the plaintiff but without any basis or reason came to a finding that the plaintiff did not construct the suit premises alone or for that matter that there was no family settlement in respect to the land. On the basis of the decision in issue Nos.4 and 5, the other issues were also decided against the plaintiff and accordingly, the suit was dismissed.

15. Being aggrieved and dissatisfied, the plaintiff as appellant preferred the appeal before the Court of the Civil Judge, Dibrugarh which was registered and Page No.# 9/16

numbered as Title Appeal No.40/2005.

16. The First Appellate Court vide the impugned judgment and decree dated 20.12.2007 dismissed the appeal. A perusal of the impugned judgment would show that the Court below did not at all take into consideration the provisions of Order XLI Rule 31 inasmuch as there was no point of determination framed in deciding the appeal. A perusal of paragraph No.9 of the impugned judgment, the First Appellate Court came to a finding that the plaintiff failed to prove that as per the family settlement each of the brothers had taken equal shares in their ancestral property but failed to take into consideration exhibit-2 (extract of the Assessment Register maintained by the Dibrugarh Municipality); Exhibit - 3(i), 3(ii), & 3(iii) payment of municipal taxes in respect of holding No.474 which was recorded in the name of the plaintiff in respect to the holding No.474 which was Schedule A premises; Exhibit-4 which was the registered deed of mortgage executed by the defendant himself deed No.1450 executed by the defendant in respect to a portion of the land which was his part of his share of the land. This aspect of the matter would also be seen from the paragraph 19 of the written statement wherein the defendant duly admitted of making construction on his share. Exhibit - 7 which was the separate patta issued bearing Patta No.531 of Dag No.1089 pertaining to 1 katha, 19 lechas of land which is specifically described in Schedule B to the plaint. Exhibit - 8 the Jamabandi in respect to Patta No.539 of Dag No.1089 wherein the name of the plaintiff appears as well as Exhibit-6(ii) which was the order dated 05.10.2002 passed in PP Case No.126/2001-02. There was no discussion whatsoever as regards the said evidence on record, though the First Appellate Court being the last court to decide facts and law, was under a statutory obligation to reflect its conscious application of mind and record findings supported by reasons.

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17. The First Appellate Court also did not take into consideration the cross- examination of the defendant wherein he had duly admitted that each of the brothers have taken their own share of land and constructed houses and buildings or sold of their share. The learned First Appellate Court further came to a finding as all the sons and daughters and the legal heirs of late Dindaram Dutta are necessary parties to a suit and they are entitled to equal shares in respect to the aforesaid 2 bighas of land and the said legal heirs were not made party to the suit, the trial court had rightly decided the suit to be bad for non joinder of necessary parties and dismissed the suit against the plaintiffs. On the basis thereof, the First Appellate Court had confirmed the judgment of the trial Court. Before further proceeding, this Court deems it proper to refer to paragraph 15 of the judgment of the Supreme Court in the case of Santosh Hazari Vs. Puroshotham Tiwari reported in (2001) 3 SCC 179 wherein the duty of the First Appellate Court has been explained. The said paragraph is quoted hereinbelow :-

"15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by Page No.# 11/16

the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary8). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai) The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."

18. Being aggrieved and dissatisfied, the present appeal has been preferred under Section 100 of the Code of Civil Procedure on the substantial questions of Page No.# 12/16

law which have already been quoted herein above. A perusal of the said two substantial questions of law so formulated would reveals that the same are in respect to the rights of the daughters of the predecessors-in-interest of the plaintiff and defendant who died in the year 1934 and if such right was there, the daughters would be a necessary party to the suit. The substantial question of law No. 2 is on the question as to whether the suit of the plaintiff is maintainable in absence of the brothers of the plaintiff and the defendant.

19. Both the above questions of law can be answered on the basis of a decision in respect to issue No. 5 which relates as to whether there was a family settlement. If there was a family settlement and the parties to the family settlement have taken their respective shares, the instant suit becomes purely a suit between the plaintiff and the defendant and have no relation whatsoever as regards the other brothers and sisters of the plaintiff and defendant. Therefore, the pivotal question before this Court is as to whether there was a family settlement amongst the sons of Late Dindiram Dutta.

20. It has been alleged in the plaint that there was a family settlement and on

the basis thereof, each of the five brothers have taken their respective 1/5th

shares of the 2 Bighas of land. A perusal of the plaint as well as the evidence adduced by the plaintiff would show that in the jamabandi in respect to the land covered by Patta No. 356 of Dag No. 161, which is Exhibit 1, the name of the five brothers have been mutated in respect to the land measuring 1Bigha 2 Kathas 19 Lechas. It further appears from the remark column that the name of the plaintiff was struck out from the said jamabandi on the ground of partition and a fresh patta being used in favour of the plaintiff bearing Patta No. 531. Exhibit 2 is the assessment extract of Holding No. 474 of Ward No. 8 of the Page No.# 13/16

Dibrugarh Municipal Board. From the said extract, it shows that the Holding is in respect to an Assam Type House, half pucca wall and cement plaster, wall bottom, post pucca, floor pucca, ceiling H plot, roofing CI Sheet in the name of the plaintiff. It is also been mentioned that the year of construction of the said Holding is 1955. Exhibits 3 (1) and 3 (2) are receipts of municipality tax being paid in the name of the plaintiff in respect to Holding No. 474. Exhibit 4 is a registered deed of mortgage which is a certified copy whereby the defendant had mortgaged the property in favour of Assam State Housing Board seeking for a loan of an aggregate value of 12,566. A reading of the said Exhibit-4 with paragraph No. 19 of the written statement of the defendant would categorically show that the defendant had taken the loan by pledging his share of the land measuring 1 katha 15 lechas in favour of Assam State Housing Board for construction of residential building on his part of his share of land. Exhibit 7 is the patta issued in favour of the plaintiff pursuant to the order dated 5/10/2002. (Exhibit-6 (ii)) in favour of the plaintiff. The said patta had been issued in respect to Schedule B to the plaint. Exhibit 8 is the jamabandi in respect to the land covered by Dag No.1089 of Patta No.531 wherein the Plaintiff's name appears.

21. The defendant in his written statement had duly admitted in paragraph No. 14 that he had never encroached on the share of the land of the plaintiff. He had also admitted that he had constructed a house over his part of the share of the land measuring 1 Katha 15 Lechas. Though the defendant had stated that he had invested huge amount of money to the tune of Rs. 4,50,000/- on reconstruction of the Assam Type House but he has failed to give any evidence to that effect. At this stage, it would also be relevant to take note of the cross- examination of the defendant wherein he had categorically admitted that each Page No.# 14/16

of the five brothers had taken a share in respect to the land left behind by the father and have either sold their portion or have constructed building thereon. He categorically admitted in his cross-examination that the plaintiff have got patta in respect to his portion wherein he has got partition. He further admitted that in terms with the partition, the plaintiff got 1 katha 19 lechas which is Schedule B land. It is also relevant to take note of that in the evidence-in- affidavit filed by the plaintiff, he had categorically taken a stand that the Schedule A premises stands on the Schedule B land and from the cross- examination of the plaintiff, it would be seen that there is no question also being put upon the plaintiff in respect to the same to test the veracity of the said statement.

22. In the backdrop of the above, therefore, it would be seen that both the Courts below completely erred in deciding the issue No. 5 as to whether there was a family partition or not. It is apparent on the basis of the materials on record that there was an oral family partition amongst the five sons and wife of Late Dindaram Dutta during their lifetime. It is also apparent that on the basis of the said family partition that each of the five brothers got their shares and Schedule B land fell into the share of the plaintiff. The issuance of the Patta (Ext.7) in favour of the plaintiff and no challenge to the issuance of patta by any of the brothers of the plaintiff bears testimony to the fact about the family partition and the five brothers adhering to it. The defendant also duly admits the fact that he has knowledge about the issuance of patta in favour of the plaintiff. Consequently, the dispute therefore becomes purely a dispute wherein the defendant is occupying the Schedule A premises belonging to the plaintiff. As the dispute in question is inter-se between the plaintiff and the defendant, the question of the daughters or the other brothers of the plaintiff being Page No.# 15/16

necessary party to the instant dispute does not arise. Under such circumstances, the substantial questions of law so framed are a substantial questions of law involved in the instant appeal. Accordingly, as the plaintiff has been able to prove that the Schedule A premises stands on the Schedule B land and that the Schedule B land belongs to the plaintiff, and the defendant having failed to show any better right to remain in possession of the Schedule A premises, this Court is of the opinion that the plaintiff is entitled to a decree as prayed for.

23. Consequently, this Court therefore, reverses the judgment and decree dated 20/12/2007 passed in Title Appeal No. 40/2005 as well as the judgment and decree dated 12/9/2005 passed in Title Suit No. 99/2003 passed by the Civil Judge No. 1 (Jr. Division) at Dibrugarh in Title Suit No. 93/2003.

24. In view of the above, this Court passes the following order :-

(A) The right, title and interest of the plaintiff is declared in respect to the Schedule A premises as well as the Schedule B land. It is further directed that the plaintiff shall be entitled to recover khas possession of the Schedule A premises from the defendant by evicting the defendant or any person claiming under him.