Gauhati High Court
Page No.# 1/39 vs On The Death Of Smti. Renu Das on 20 May, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/39
GAHC010161062011
2025:GAU-AS:6348
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/84/2011
NABA KUMAR SARMA and ANR
S/O LATE ADYA PRASAD BARUAH @ SARMA, R/O VILL. HAZARIKAPARA,
MOUZA HINDUGHOPA,P.O. and P.S. SIPAJHAR, DIST. DARRANG, ASSAM.
2: BHABEN KALITA
S/O SHRI PRAFULLA KALITA
R/O VILL. TENGABARI
KARIM CHOWKA
MANGALDAI
MOUZA-CHOPAI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
VERSUS
ON THE DEATH OF SMTI. RENU DAS, HER LEGAL HEIRS and ORS
NAMELY-
1.1:SHRI SAURABH DUTTA
S/O LATE RENU DAS
1.2:SMTI ANJANA DAS
D/O LATE RENU DAS
1.3:SMTI MANIKUNTALA DAS
D/O LATE RENU DAS
1.4:SHRI SUJITH KUMAR DAS
S/O LATE RENU DAS
ALL ARE RESIDENTS OF WARD NO.7
Page No.# 2/39
TENGABARI
MANGALDAI TOWN
MOUZA CHAPAI
P.O. AND P.S. MANGALDAI
DISTRICT DARRANG
ASSAM
2:PRAMILA HAZARIKA
D/O LATE UMESH CH. DAS
R/O VILL. SARU ARENG
MOUZA-RANGAMATI
P.O. and P.S. MANGALDAI
DIST. DARRANG
ASSAM.
3:ON THE DEATH OF PURNA DAS
HIS LEGAL HEIRS
NAMELY-
3.1:SMTI ANJALI DAS
W/O LATE PURNA DAS
R/O H. NO35
2ND FLOOR
ARUNODOI PATH
OPPOSITE HATIGAON
NAAMGHAR
(GUWAHATI)
PIN 781038
3.2:SMTI KALPANA DAS
D/O LATE PURNA DAS
R/O H. NO 35
2ND FLOOR
ARUNODOI PATH
OPPOSITE HATIGAON
NAAMGHAR
(GUWAHATI)
PIN 781038
3.3:SMTI KAVITA DAS
D/O LATE PURNA DAS
R/O H. NO 35
2ND FLOOR
ARUNODOI PATH
Page No.# 3/39
OPPOSITE HATIGAON
NAAMGHAR
(GUWAHATI)
PIN 781038
3.4:SMTI ARPANA DAS
D/O LATE PURNA DAS
R/O H. NO 35
2ND FLOOR
ARUNODOI PATH
OPPOSITE HATIGAON
NAAMGHAR
(GUWAHATI)
PIN 781038
4:BIMAL DAS
S/O LATE KAMALA KANTA DAS
R/O WARD NO. 8
SALAIPARA
MANGALDAI TOWN
MOUZA-RANGAMATI
DIST. DARRANG
ASSAM.
5:BHABEN DAS
S/O LATE UMESH DAS
R/O VILL. SARU ARENG
MOUZA-RANGAMATI
P.O.and P.S.MANGALDAI
DIST. DARRANG
ASSAM.
6:SIBA PRASAD DAS
S/O LATE SAMBU RAM DAS
R/O VILL. SARU ARENG
MOUZA-RANGAMATI
P.O. and P.S. MANGALDAI
DIST. DARRANG
ASSAM.
7:SMTI SABITRI DAS
W/O LATE KAMALA KANTA DAS
Page No.# 4/39
8:PRANAB JYOTI DAS
S/O LATE KAMALA KANTA DAS
BOTH RESIDING AT WARD NO. 8
SOLALPARA
MANGALDAI TOWN
MOUZA-RANGAMATI
P.O. and P.S.MANGALDAI
DIST. DARRANG
ASSAM.
9:SMTI DEVA DAS
W/O SHRI SURJA KUMAR DAS
R/O CHANDMARI
MILANPUR
GUWAHATI-781021
P.O. BAMUNIMAIDAM
DIST. KAMRUP
ASSAM.
10:SMTI KHIRODA DAS
11:SUNITI DAS
12:SMTI MINA KUMARI DAS
NOS 10 TO 12 ALL ARE DAUGHTERS OF LATE KAMALA KANTA DAS
NOS. 10 TO 12 ALL ARE RESIDING AT WARD NO. 8
SOLALPARA
MANGALDAI TOWN
MOUZA-RANGAMATI
P.O. and P.S. MANGALDAI
DIST. DARRANG
ASSAM
For the Appellants(s) : Mr. S.P. Roy, Advocate
Ms. V. Rai, Advocate
For the Respondent(s) : Mr. D. Mozumdar, Sr. Advocate
Mr. S. Biswas, Advocate
Page No.# 5/39
Date of Hearing : 20.05.2025
Date of Judgment : 20.05.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. S.P. Roy, the learned counsel appearing on behalf
of the appellants. Mr. D. Mozumdar, the learned Senior Counsel
assisted by Mr. S. Biswas, the learned counsel appears on behalf of
the respondents.
2. This is an appeal filed challenging the judgment and decree
dated 16.11.2010 passed in Title Appeal No. 7/2008 by the learned
Court of the Civil Judge, Darrang, Mangaldai (hereinafter referred to
as, "the learned First Appellate Court") whereby the appeal was
dismissed thereby affirming the judgment and decree dated
30.06.2008 passed by the learned Munsiff No. 1, Mangaldai
(hereinafter referred to as, "the learned Trial Court") in Title Suit No.
03/2007.
3. It is seen from the records that the learned Coordinate Bench of
this Court vide an order dated 01.07.2011 formulated 2 (two)
substantial questions of law which are reproduced herein under:
Page No.# 6/39
"1. Whether a donee and the subsequent transferees acquire good title to
the share of property of the donor/co-owner making a gift deed which is partly
adjudged void to the extent of the share of the other co-owners?
2. Whether the Courts below are right in decreeing the suit without a
decree for partition?"
4. The question arises in the instant proceedings, as to whether, the
2 (two) substantial questions of law so formulated vide the order
dated 01.07.2011 are substantial questions of law involved in the
present appeal.
5. For ascertaining the same, this Court finds it relevant to take
note of the brief facts which led to the filing of the present appeal. For
the sake of convenience, this Court would refer to the parties in the
same status as they were before the learned Trial Court.
6. A perusal of the plaint reveals that the 4 (four) plaintiffs, along
with the defendant No. 2 were the successor-in-interest of one Umesh
Das (since deceased). The defendant No. 1 as well as the proforma
defendant Nos. 2, 3, 4, 5, 6 and 7 were the successor-in-interest of
one Kamal Das (since deceased). It is an admitted fact, as would be
seen from the pleadings of both the parties, that a plot of land
admeasuring 4 Kathas which is described in the Schedule to the plaint
and identified by a rough sketch, belonged to Late Umesh Das and
Page No.# 7/39
Late Kamal Kanta Das. On 28.03.1985, the defendant No. 1 along
with the defendant No. 2 sold out 2 Kathas of land vide a registered
deed of sale in favour of the defendant No. 4. It was alleged that the
said sale deed dated 28.03.1985 was executed secretly behind the
back of the plaintiffs and further, that the plaintiffs were in possession
of the part of the land which belonged to Late Umesh Das. It is
further mentioned in the plaint that the defendant No. 1 while
transferring the said land vide the registered deed of sale dated
28.03.1985 mentioned therein that he got his right from his father on
the basis of a registered deed of gift.
7. It is further seen from the averments made in the plaint that on
10.01.1989 the defendant No. 4 sold 1 Katha 16 Lechas of land
covered by Dag No. 279 (O)/280(N) to the defendant No. 3 for a sale
consideration of Rs. 20,000/- and it has been also averred in the
plaint that the same was also done secretly and behind the back of
the plaintiffs. It was also averred that the defendant No. 3 thereupon
got mutation of the land secretly and fraudulently on 16.06.1989.
8. Subsequent thereto, on 07.03.1989, the defendant No. 4 sold 2
Kathas 4 Lechas of land to the proforma defendant No. 2 for a sale
consideration of Rs. 5,000/- and delivered possession. It is further
seen from a perusal of the plaint that on 08.12.1990, the defendant
Page No.# 8/39
No. 3 started construction of a RCC building over 1 Katha 16 Lechas
thereby encroaching upon the 1 Katha 10 Lechas, which was the land
of the plaintiffs. The plaintiffs protested to the same and having not
succeeded, the suit was filed seeking various reliefs.
9. The reliefs so sought were, declaration that 2 Kathas of land out
of the 4 Kathas described in the Schedule be described as the share
of Late Umesh Das and Late Kamal Das had no title to it; a
declaration that the plaintiffs had title over 1 Katha 10 Lechas of land
out of 1 Katha 16 Lechas of land purchased by the defendant No. 3; a
declaration that the Gift Deed dated 29.01.1981 executed and
registered by Late Kamal Das is void and inoperative and the mutation
of the defendant No. 3 in the suit land is illegal; a decree for recovery
of possession against the defendant No. 3 by demolishing the house
over 1 Katha 10 Lechas of land being the share of the plaintiffs; if, in
the consideration of the Court, a partition is necessary for recovery of
possession, the same may also be decreed; a decree for permanent
injunction restraining the defendants or other defendants from
continuing construction of the house; a declaration that the mutation
of the defendant No. 3 in the revenue records dated 16.06.1989 is
illegal etc.
10. It is seen from the records that the defendant Nos. 3 and 4 who
Page No.# 9/39
are the appellants herein had only filed their written statement. In the
written statement filed by the defendant No. 3, various preliminary
objections were taken. The defendant No. 3 denied the case of the
plaintiffs and further stated that the defendant No. 4 sold 1 Katha 16
Lechas of land to the defendant No. 3 by a registered deed of sale
and delivered possession and the defendant No. 3 thereupon filed a
Mutation Case No. 437/1988-89 before the A.S.O. and in that
mutation case, the said A.S.O. granted mutation. It was further stated
that after the sale of 1 Katha 16 Lechas of land, the remaining 2
Kathas 4 Lechas was sold by the defendant No. 4 to one Sabitri Das.
It was denied that on 08.12.1990, the construction was started by the
defendant No. 3. It was categorically stated that at the time of
purchase of the suit land, the suit land was a low lying land and
therefore the defendant No. 3 filled up the same by truckloads of
earth from other places. It was further stated that as per permission
granted by the Mangaldai Municipality Board, the defendant No. 3
started construction of an Assam Type RCC building and completed
major portion i.e. 90% of the same. The construction of the door etc.
had been completed. Only the work of wood/C.I. sheet roof remained
to be completed.
11. It is further relevant to take into consideration the factual details
stated by the defendant No. 3 in his written statement. It was stated
Page No.# 10/39
that the defendant No. 2 Bhaben Das was the son of Late Umesh Das.
The defendant No. 1 agreed to sell 4 Kathas of land of the suit dag
and the defendant No. 4 agreed to purchase the same and the price
of the land was fixed at Rs. 10,000/-. It was further mentioned that as
the name of Umesh Das was there in the suit dag, the purchaser
Bhaben Kalita (defendant No. 4) desired that the defendant No. 2
should be a party as a seller and therefore the defendant No. 1 and
the defendant No. 2 sold the entire suit dag for a sale consideration of
Rs. 10,000/- and delivered possession of the 4 Kathas to the
defendant No. 4. It was further mentioned that as the defendant No.
3 was in need of land, the defendant No. 4 agreed to sell 1 Katha 16
Lechas of land from the suit dag for a sale consideration of Rs.
20,000/-. Accordingly, on 10.01.1989 the defendant No. 4 sold 1
Katha 16 Lechas of land vide a registered sale deed in favour of the
defendant No. 3 and delivered possession thereof within specific
boundaries. The defendant No. 3 filed Mutation Case Number 437/88-
89 before the A.S.O. and the same was granted on 16.06.1989. It was
also mentioned that the defendant No. 3 had spent Rs. 5,000/- for
earth filling.
12. Further to that it was also stated that the defendant No. 3 also
spent a huge amount of money in the construction of an RCC Assam
Type building. At paragraph No. "Sha" of the written statement filed
Page No.# 11/39
by the defendant No. 3, it was averred that even assuming that the
plaintiffs had right over the suit land, their rights would be at best 1
Katha 10 Lechas and the defendant No. 4 would have right over the
said land to the tune of 2 Kathas 10 Lechas and as such it would not
have affected the right of the defendant No. 4 to sell 1 Katha 16
Lechas of land to the defendant No. 3. It was further mentioned that
the defendant No. 3 was a bona fide purchaser for value without
notice and therefore he was protected under Section 41 of the
Transfer of Property Act, 1882 (for short, "the Act of 1882"). The
translated Paragraph "Sha" of the written statement filed by the
defendant No. 3 having relevance to the instant proceedings is
reproduced herein under:
"Sha) That on 21-09-1981 Kamal Das executed a registered Gift Deed in
respect of 4 kathas of the suit Dag in favour of Bimal Das and divested himself
of all his right, title and interest and Bimal Das acquired full title thereto. Even if
it is assumed that within 4 kathas of land he had title over 2 kathas i.e. half
share. In that case Kamal Das was legally entitled to make a gift in respect of
the same. In case of Kamal Das and Umesh Das the Dayabhaga School of
Hindu law is applicable. Kamal Das legally was entitled to gift the said 2 kathas
for that reason after such gift Bimal Das had 2 kathas of land in his share
therefore he is entitled to 2 kathas of land and was able to sell the same to
defendant No. 4. Even if it is assumed that Umesh Das had title to the suit Dag,
according to the admission of the plaintiffs the defendant No. 2 Bhaben Das is
at least entitled to 10 lechas of land. Therefore, they were entitled to sell 2
kathas 10 lechas of land out of the entire 10 kathas to the defendant No. 4
Bhaben Kalita as they had title thereto. Hence, out of the 4 kathas defendant
Page No.# 12/39
No. 4 Bhaben Kalita got title to 2 kathas 10 lechas of land. Therefore the
defendant No. 4 Bhaben Kalita was entitled to sell 1 katha 16 lechas of land to
the defendant No. 3. The defendant No. 3 purchased the same for valuable
consideration from Bhaben Kalita and he acquired title to the same. After taking
over possession he is possessing the same in his own right by constructing
house. The defendant No. 3 is a bonafide purchaser for value without notice
and therefore he is protected under Section 41 of the Transfer of Property Act."
13. The defendant No. 4 had also filed his written statement. The
stance taken by the defendant No. 4 in the written statement is
similar to the stand which has been taken by the defendant No. 3 and
for the sake of brevity this Court is not repeating the same.
14. Be that as it may, it is an admitted fact by the defendant No. 4
that vide the registered deed of sale dated 28.03.1985, the defendant
No. 1 and defendant No. 2 sold 4 Kathas of land to the defendant No.
4 and thereupon the defendant No. 4 transferred 1 Katha 16 Lechas
of land to the defendant No. 3 vide a Registered Sale Deed dated
10.01.1989 and 2 Kathas 4 Lechas of land to the proforma defendant
No. 2 by a Registered Sale Deed dated 07.03.1989.
15. From the materials on record, it is seen that the learned Trial
Court framed 15 (fifteen) issues which included eight original issues
and seven additional issues. The said 15 (fifteen) issues being
relevant are reproduced herein under:
Page No.# 13/39
"1. Whether there is cause of action for the suit?
2. Whether proper court-fee has been paid?
3. Whether the suit is barred by limitation, equity of estoppel,
waiver and acquiescence?
4. Whether the defendant No. 1 & 2 had right, title and interest to
sell the entire suit land?
5. Whether the sale of the suit land was collusive and the sale deed
was void and inoperative?
6. Whether the plaintiffs have got right, title and interest as prayed
for?
7. Whether the parties are entitled to the reliefs prayed for?
8. Whether the plaintiffs filed the suit in collusion with pro-forma
defendants?
Additional Issues
1. Whether the suit land has been properly described in the plaint?
2. Whether the plaintiffs' father Lt Umesh Das and defendants' father
Lt. Kamala Kt. Das had equal share of 2K on the suit land?
3. Whether Kamal Das gifted 2K of land covered by P.P. No. 43 of Dag
Page No.# 14/39
No. 179(old) and 279 (new) by executing a registered deed No. 6789 to
his son Sri Bimal Das on 16-9-81 and whether Sri Bimal Das and Sri
Bhaben Das sold that 2 K of land to defendant No. 4 by a registered sale
deed and whether they have got right, title and interest to execute the
sale deed?
4. Whether defendant No. 2 Bhaben Das acquired any right, title and
interest to sell 1 K 16 L of land out of 2 K to defendant No. 3?
5. Whether the suit is maintainable in its present form without partition
of properties between Umesh Das and Kamal Das?
6. Whether the defendant No. 3 is a bonafide purchaser for value
without notice?
7. Whether the sale deed dated 10-1-89 executed in favour Naba Kr.
Das is void?"
16. On behalf of the plaintiffs 4 (four) witnesses were examined and
they exhibited 5 (five) documents which were Exhibit 1- Patta of the
suit land; Exhibit 2- Sale Deed dated 28.03.1985; Exhibit 3- Bond
executed by defendant No. 3 to the effect that if the plaintiffs
succeeds in the suit and the suit is decreed in favour of the plaintiffs,
the defendant No. 3 undertook to demolish and remove all structures
constructed by him; Exhibit 4- Application filed by the defendant No. 3
in Misc Appeal No. 2/91 submitting before the learned Appellate Court
that he would execute a bond; Exhibit 5- Certified Copy of the order
Page No.# 15/39
passed in Misc Appeal No. 2/91.
17. On behalf of the defendants, 5 (five) witnesses were examined
and 8 (eight) documents were exhibited. Exhibit A- Gift deed executed
by Late Kamal Das in favour of his son, the defendant No. 1; Exhibit
B- Sale deed executed by Bhaben Kalita; Exhibit C- Written statement
of Sabitri Das; Exhibit D- Sale deed in favour of Bhaben Kalita; Exhibit
E- Application with affidavit by Bhaben Kalita; Exhibit F- Certified copy
of sale deed; Exhibit G- Applications of defendant Nos. 3 and 4;
Exhibit H- Amended plaint.
18. It is very pertinent to take note of the witnesses who were
examined by the defendants. Defendant Witness No. 4 was the
defendant No. 1; Defendant Witness No. 5 was the defendant No. 2;
Defendant Witness No. 1 was the defendant No. 4 and the Defendant
Witness No. 2 was the defendant No. 3.
19. The learned Trial Court vide its judgment and decree dated
30.06.2008 decreed the suit of the plaintiffs by declaring that the
plaintiffs had right, title and interest over 1 Katha 12 Lechas of land
described in the Schedule. The sale deed dated 28.03.1985 by which
the defendant Nos. 1 and 2 transferred 4 Kathas of land in favour of
the defendant No. 4 was declared void and inoperative and there was
Page No.# 16/39
a further decree that the plaintiffs be put into possession in the suit
land by evicting the defendant No. 3 by demolishing the house
standing thereon. It is relevant to take note of that while deciding the
said suit, the learned Trial Court held that Exhibit A and Exhibit B
which were not proved as certified copies were adduced in evidence,
which were secondary evidence, without following the mandate in
terms with Section 65 of the Indian Evidence Act, 1872 (for short,
"the Act of 1872").
20. The learned Trial Court further took note of the evidence of the
witnesses and, more particularly, the evidence of DW 4 and DW 5 who
were the defendant Nos. 1 and 2 respectively. The learned Trial Court
while appreciating the evidence observed that the DW 4 deposed that
the suit land belonged to Umesh Das and the defendant No. 4 never
possessed that 2 Kathas of land and his father gifted him only 2
Kathas of land and he never sold the 2 Kathas of land belonging to
Umesh Das. The learned Trial Court further while appreciating the
evidence of DW 5, took into consideration that the DW 5 who was the
defendant No. 2 deposed that the suit land originally belonged to
Umesh Das and Kamal Das and Kamal Das gifted his share of 2
Kathas of land to the defendant No. 1 during his lifetime. It is further
relevant to take note of that the learned Trial Court while deciding the
issues came to a finding that the sale deed dated 28.03.1985 which
Page No.# 17/39
was executed by the defendant Nos. 1 and 2 in favour of the
defendant No. 4 cannot in the eye of law confer right, title and
interest upon the defendant No. 4. It was further observed that the
registered sale deed dated 10.01.1989 by which the defendant No. 4
sold 1 Katha 16 Lechas of land to the defendant No. 3 had conferred
him no right, title and interest over that plot of land in excess of 8
Lechas as because he had no authority to sell beyond 8 Lechas of
land and the sale deed is void and inoperative.
21. Being aggrieved, the defendant Nos. 3 and 4 jointly preferred an
appeal before the learned First Appellate Court which was registered
and numbered as Title Appeal No. 7/2008. The learned First Appellate
Court vide its judgment and decree dated 16.11.2010 dismissed the
said appeal by affirming to the findings of the learned Trial Court. It is
under such circumstances, the present appeal has been filed.
22. In the backdrop of the above, let this Court now take into
consideration, as to whether, the 2 (two) substantial questions of law
are involved in the instant appeal.
23. Mr. S.P. Roy, the learned counsel appearing on behalf of the
Appellants submitted that the learned Courts below erred in law in
declaring that the Sale Deed dated 28.03.1985 was void ab initio
Page No.# 18/39
without there being any challenge to the said Deed of Sale. He further
stated that the learned Courts below could not have also given any
declaration in respect to the registered Sale Deed dated 10.01.1989
inasmuch as there was no relief so sought for in the Plaint as regards
the said Deed of Sale dated 10.01.1989. The learned counsel further
submitted that even assuming for argument's sake that the learned
Courts below could have made appropriate declaration as regards the
Deed of Sale dated 28.03.1985 as well as the Deed of Sale dated
10.01.1989 but under no circumstances the entire sale deed could
have been nullified taking into consideration that the plaintiffs right
were only limited to 1 Katha 10 Lechas of land and nothing beyond
that. He therefore submitted that the first substantial question of law
so formulated is therefore involved in the Instant Appeal.
24. The learned counsel appearing on behalf of the Appellants
further submitted that the learned Courts below were also not
justified in passing a decree for recovery of possession in respect to a
property without there being any finding of the fact that the plaintiffs
were dispossessed from the suit land. He therefore submitted that the
second substantial question of law is therefore involved in the instant
appeal.
25. In addition to that, the learned counsel drew the attention of this
Page No.# 19/39
Court to the question of limitation and submitted that the Deed of Gift
dated 16.09.1981 which was registered on 21.09.1981 in respect to
which declaration has been sought for was barred by limitation in
terms with Article 58 of the Schedule to the Limitation Act, 1963 (for
short, "the Act of 1963"). He therefore submitted that as the gift deed
was barred, and without the gift deed being set aside, the plaintiffs
had no right over the suit property, for which, the suit ought to have
been dismissed as being barred by limitation.
26. The learned counsel appearing on behalf of the appellants
further submitted that even as regards the registered deed of sale
dated 28.03.1985, the suit having been filed in the year 1991, the suit
was barred by limitation and as such this very aspect of the matter
having not been taken into consideration properly, the said be framed
as a further substantial question of law by this Court before
proceeding with the Appeal. The learned counsel in support of his
submissions, have referred to three judgments of the Supreme Court .
They are Rajeev Gupta and Others Vs. Prashant Garg and Others
reported in (2025) SCC OnLine SC 889 and relied upon Paragraph Nos.
32 and 33 of the said judgment; Thankamma George Vs. Lilly Thomas
& Another reported in (2024) 8 SCC 351 and referred to Paragraph No.
15.1; Nikhila Divyang Mehta & Another Vs. Hitesh P. Sanghvi & Others
reported in (2025) SCC OnLine SC 779 and referred to Paragraph Nos.
Page No.# 20/39
27, 28 and 29.
27. Per contra, Mr. D. Mozumdar, the learned Senior Counsel
submitted that from the concurrent findings of fact, it would be seen
that both Late Umesh Das and Late Kamal Das had equal rights over
the 4 Kathas of land. He submitted that though the defendant No. 1
could have transferred 2 Kathas of land belonging to Late Kamal Das,
but the defendant No. 2 could not have sold, more than 8 Lechas of
land taking into account that Late Umesh Das had 5 successors-in-
interest i.e. the plaintiffs as well as the defendant No. 2. He further
referred to Section 44 of the Act of 1882 and submitted that in
respect to a property which is jointly owned and the said land have
not been partitioned, the owner's right to transfer is limited to his
share and not beyond that. In that regard, he referred to the
judgment of the Supreme Court in the case of Sk. Golam Lalchand Vs.
Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal Bayes & Others
reported in (2024) SCC OnLine SC 2456.
28. The learned Senior Counsel appearing on behalf of the
respondents further submitted that though the deed of sale dated
28.03.1985 have not been specifically challenged in the plaint, but
taking into account the provisions of Section 31 and Section 34 of the
Specific Relief Act, 1963 (for short, "S.R. Act"), the learned Senior
Page No.# 21/39
Counsel submitted that a suit for cancellation of a sale deed and
seeking a declaration that a particular document is inoperative as
against the plaintiff are two distinct and separate suits. He submitted
that a suit for declaration of title has to be decided by the Court
within its fold, consideration of several factors, as to how, the plaintiff
is entitled for the declaration of title and in such cases, the plea of the
defendants about the validity, enforceability and the binding nature of
any document defeating the title of the plaintiff have also to be
considered. In such cases, the Court naturally views the evidence on
both sides living apart the frame of the suit. The learned Senior
Counsel further submitted that the plaint must be read as a whole and
actual relief sought for can also be culled out from the averments
made in the plaint. In that regard, he referred to the judgment of the
Supreme Court in the case of Hussain Ahmed Choudhury & Others Vs.
Habibur Rahman (Dead) through Lrs. and Others reported in (2025)
SCC Online SC 892.
29. On the question of limitation, the learned Senior Counsel
appearing on behalf of the respondents further referred to the
judgment of the Supreme Court in the case of Mallavva & Another Vs.
Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Others
reported in (2024) SCC Online SC 3846 and submitted that where
there are several reliefs claimed in the suit, the limitation period would
Page No.# 22/39
be that of the main relief and the limitation for the ancillary relief has
to be ignored. The learned Senior Counsel referring to Paragraph No.
31 of the judgment in Mallavva (supra) submitted that when the suit
is based on title for possession, once the title is established on the
basis of relevant documents and other evidence, unless the defendant
proves adverse possession for the prescriptive period, plaintiff cannot
be non-suited.
30. The learned Senior Counsel appearing on behalf of the
respondents submitted that the facts of the present case is
distinguishable from the facts involved in the case of Rajeev Gupta
and Others (supra) and submitted that in the said case, the facts
would show that the Supreme Court had duly considered that the sale
deeds executed were not void and inoperative and as such, the
plaintiffs therein could not, at their option, seek for cancellation
thereof. The learned Senior Counsel submitted that in the present
case, the right of the plaintiffs over their undivided share to the extent
of 1 Katha 12 Lechas continues till it has been partitioned inasmuch as
the defendant No. 2's right to transfer was only limited to 8 Lechas
and nothing beyond that. He therefore submitted that as the suit in
question was seeking declaration of their right in respect to the share
of the plaintiffs over the schedule property, and the plaintiffs still
continue to hold the right over the said land, the right of the plaintiff
Page No.# 23/39
does not extinguish and the period of limitation has to be counted on
the basis of Article 65 of the Schedule to the Limitation Act, 1963.
31. In the backdrop of the said submissions, let this Court now take
up, as to whether, the substantial questions of law so formulated are
involved in the instant appeal and further, as to whether, a further
substantial question of law arises on the question of limitation.
32. For the purpose of deciding the first substantial question of law,
this Court had duly taken note of the deed of sale dated 28.03.1985
on the basis of which the defendant Nos. 1 and 2 transferred the land
admeasuring 4 kathas in favour of the defendant No. 4. A perusal of
the said document, more particularly, the Schedule mentioned therein
reflects that the defendant No. 1 had only sold 2 Kathas of his land
which was gifted whereas the defendant No. 2 had also sold 2 Kathas
of the remaining land. This is apparent also from the observations of
the learned Trial Court while appreciating the Deed of Sale dated
28.03.1985 and the evidence of DW 4 and DW 5.
33. Section 44 of the Act of 1882 stipulates that where one of the
two or more co-owners of an immovable property legally competent in
that behalf, transfers, his share of such property or any interest
therein, the transferee acquires as to such share or interest and so far
Page No.# 24/39
as is necessary to give effect to the transfer, the transferor's right to
joint possession or other common or part enjoyment of the property
and to enforce a partition of the same, but subject to the conditions
and liabilities affecting at the date of the transfer, the share or interest
so transferred.
34. In the instant case, from the concurrent findings of facts arrived
at by the learned Courts below, it would be seen that the defendant
No. 2's share was only limited to 8 Lechas taking into account Late
Umesh Das left behind 5 successors-in-interest who were the 4
plaintiffs and the defendant No. 2. The legal competency of the
defendant No. 2 to transfer, therefore, was only to the extent of 8
Lechas. Therefore, the registered sale deed which has been executed
dated 28.03.1985 has to be good insofar as the sale so made by
defendant No. 1 of 2 Kathas in favour of the defendant No. 4 and as
regards 8 Lechas by the defendant No. 2 in favour of the defendant
No. 4. This aspect of the matter can also be seen from a recent of the
judgment of the Supreme Court in the case of Sk. Golam Lalchand
(supra). In this regard, this Court finds it relevant to quote paragraph
Nos. 20, 21 and 22 of the said judgment herein below:
"20. In this view of the matter, the entire property purchased by the two
brothers late Salik Ram and late Sita Ram in the year 1959 vide Exh.1
continued to be the joint property in which both of them had equal rights. On
Page No.# 25/39
their death, the same devolved upon their respective heirs and legal
representatives including Brij Mohan, his three sisters on one side and plaintiff-
respondent Nandu Lal, his three brothers and five sisters on the other side.
Thus, Brij Mohan alone was not competent to execute a sale of the entire
property in favour of the defendant appellant SK. Golam Lalchand, that too
without its partition by metes and bounds.
21. Since the suit property has many co-owners including the plaintiff-
respondent Nandu Lal and Brij Mohan, the defendant-appellant S.K. Golam
Lalchand could not have acquired right, title and interest in the whole of the
suit property solely on the basis of the sale deed dated 19.05.2006 executed by
Brij Mohan. The said sale deed, if at all, in accordance with Section 44 of the
Transfer of Property Act, 1882 may be a valid document to the extent of the
share of Brij Mohan in the property and defendant appellant S.K. Golam
Lalchand is free to take remedies to claim appropriate relief either by suit of
partition or by suit of compensation and damages against Brij Mohan.
22. The authorities cited on behalf of the defendant-appellant S.K. Golam
Lalchand are only to the effect that there is no illegality on his part in
purchasing the share of Brij Mohan in the suit property and to that effect the
sale in his favour is valid. There are no two opinions on the above aspect as
mentioned earlier but those authorities do not help him in any way to enable us
to reverse the decree passed by the First Appellate Court as affirmed by the
High Court."
35. Therefore, in the opinion of this Court, the learned Trial Court as
well as the learned First Appellate Court could not have come to a
finding that the Deed of Sale dated 28.03.1985, was illegal, void ab
initio and inoperative rather, both the learned Courts below ought to
Page No.# 26/39
have held that the said Sale Deed dated 28.03.1985 conveyed the
right, title and interest over the defendant No. 4 to the extent of 2
Kathas 8 Lechas of land of the Schedule Property.
36. Before proceeding to the next substantial question of law so
formulated, this Court now finds it relevant to take note of the
submission so made by the learned counsel appearing on behalf of
the appellants that there is no challenge being made to the Deed of
Sale dated 28.03.1985 as well as the subsequent Deed of Sale dated
10.01.1989 and as such, the relief so sought for could not have been
granted. The answer to the said submission is also found in Paragraph
Nos. 23 and 24 of the judgment of the Supreme Court in the case of
Sk. Golam Lalchand (supra) wherein the Supreme Court holds that
Section 31 of the Specific Relief Act, 1963 uses the word "may" for
getting declared the instrument as void which is not imperative in
every case, more particularly, when the person is not a party to such
an instrument. The Supreme Court further observes in the said
judgment that the suit property which is undivided is left with the co-
owners to proceed in accordance with law to get their shares
determined and demarcated before making a transfer. Paragraph Nos.
23 and 24 of the said judgment are reproduced herein below:
"23. A faint effort was made in the end to contend that the plaintiff-
respondent Nandu Lal had not asked for any relief of cancellation of the sale
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deed by which the property was purchased by the defendant-appellant S.K.
Golam Lalchand and, therefore, is not entitle to any relief in this suit. The
argument has been noted only to be rejected for the simple reason that Section
31 of the Specific Relief Act, 1963 uses the word 'may' for getting declared the
instrument as void which is not imperative in every case, more particularly
when the person is not a party to such an instrument.
24. The suit property which is undivided is left with the co-owners to proceed
in accordance with law to get their shares determined and demarcated before
making a transfer."
37. Now let this Court take note of the submission made by the
learned counsel appearing on behalf of the appellants that the suit
was barred by limitation in view of the fact that the suit was filed in
the year 1991, challenging a deed of gift dated 29.01.1981 and as the
main relief is barred by limitation, there arises no question of granting
the consequential reliefs. At the outset it is relevant to take note of
that though the Deed of Gift dated 16.09.1981 which was registered
on 21.09.1981 was put to challenge, the facts of the case and issues
which required determination did not actually require that the Deed of
Gift to be challenged inasmuch as the defendant No. 1 only
transferred 2 Kathas of land to the defendant No. 4 vide the Deed of
Sale dated 28.03.1985 and not 4 Kathas. The remaining 2 Kathas was
sold by defendant No. 2 and the issue involved is in relation to the
sale made by the defendant No. 2 and not defendant No. 1. Under
such circumstances, because of assailing a Deed which was not
Page No.# 28/39
required to be assailed, the plaintiffs cannot be non-suited on the
ground of limitation.
38. At this stage, this Court finds it very relevant to take note of the
judgment relied upon by the learned counsel appearing on behalf of
the appellants in support of his submission on the question of
limitation i.e. the judgment of the Supreme Court in the case of
Rajeev Gupta (supra). It is relevant to take note of the facts involved
in the said case. A suit was filed by one Dr. Karam Chand Garg along
with his son which was registered as Original Suit No. 117/2003,
wherein a decree for cancellation of the sale deed dated 16.06.1992
as well as for recovery of possession was sought for. The plaintiffs in
the said suit also sought for a permanent injunction. While the said
suit was pending, the plaintiffs filed an application for amendment of
the plaint which was allowed. With the said amendment, a declaration
was sought for. The said suit was dismissed by the learned Trial Court.
However, the learned First Appellate Court decreed the suit. The
learned High Court of Allahabad dismissed the Second Appeal and it is
under such circumstances, the matter reached the Supreme Court.
One of the issues involved before the Supreme Court pertained to, as
to whether, the suit was barred by limitation. It is very relevant to
take note of Paragraph No. 35 of the said judgment wherein the
Supreme Court observed that there was no dispute that the plaintiffs
Page No.# 29/39
had knowledge, constructive as well as actual during the pendency of
the second suit or soon thereafter of the transfer of the suit property
in favour of the appellants by execution of the sale deed which was
subsequently registered as required under Section 54 of the Act of
1882. It was further observed that once the appellants started
residing in the suit property, what crystallized was the invasion of the
plaintiffs' right and therefore, with the execution of the sale deed,
which was subsequently registered, the right to sue first accrued to
the plaintiffs. The Supreme Court further observed that the knowledge
of the said deed having been executed in the year 1992, being there
with the plaintiffs in the said suit, the filing of the suit in the year
2003 was barred by limitation.
39. This Court further finds it relevant to take note of another
judgment of the Supreme Court in the case of Mallavva (supra) which
categorically observes that when the suit is based upon title for
possession, once the title is established on the basis of relevant
documents and other evidences, unless the defendant proves adverse
possession for the prescriptive period, the plaintiff cannot be non-
suited. The relevant paragraphs of the said judgment being Paragraph
Nos. 31 and 32 being pertinent to the issue involved are reproduced
herein under:
Page No.# 30/39
"31. It is well settled that when there are several reliefs claimed in a suit, the
limitation period would be that of the main relief, the limitation for ancillary
relief being ignored. The argument of the learned counsel appearing for the
appellants herein is not sustainable in law as it proceeds on the assumption as
if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff
who based his case on title had to prove not only title but also possession
within twelve years of the date of the suit. The said provision of law as
observed aforesaid has undergone a metaphoric sea change as we find under
the Limitation Act. Article 65 reads as under:
"Description Period of Time from
of Suit limitation which
period
begins to
run
65. For Twelve When the
possession years possession
of of the
immovable defendant
property or becomes
any interest adverse to
therein the plaintiff"
based on
title
It is, therefore, obvious that when the suit is based on title for possession, once
the title is established on the basis of relevant documents and other evidence
unless the defendant proves adverse possession for the prescriptive period, the
Page No.# 31/39
plaintiff cannot be non-suited. [See: Indira v. Arumugam and Another
reported in (1998) 1 SCC 614.]
32. In C. Mohammad Yunus v. Syed Unnissa reported in AIR 1961 SC 808,
it has been laid down that in a suit for declaration with a further relief, the
limitation would be governed by the Article governing the suit for such further
relief. In fact, a suit for a declaration of title to immovable property would not
be barred so long as the right to such a property continues and subsists. When
such right continues to subsist, the relief for declaration would be a continuing
right and there would be no limitation for such a suit. The principle is that the
suit for a declaration for a right cannot be held to be barred so long as Right to
Property subsist."
40. In the backdrop of the above principles of law and applying the
same to the facts concurrently arrived at by the learned Courts of
facts it appears that the defendant No. 1 sold only 2 Kathas of his
land and the defendant No. 2 sold 2 Kathas of his land. The defendant
No. 2 though sold 2 Kathas of his land, but he was not legally
competent to sell beyond 8 Lechas. Taking into account Section 44 of
the Act of 1882, the right which vests upon the defendant No. 4 on
the basis of the deed of sale can only be to the extent of 2 Kathas 8
Lechas as has been already observed herein above. Under such
circumstances, the plaintiffs continued to have right over 1 Katha 12
Lechas of land of the suit property.
41. It is relevant to take note of that this is not a case where there is
Page No.# 32/39
an extinguishment of the right of the plaintiffs inasmuch as the deed
of sale bearing deed No. dated 28.03.1985 can only be held to be
good insofar as 2 Kathas 8 Lechas. Under such circumstances, Article
65 of the Act of 1963 would duly apply insofar as the plaintiffs have
been able to prove that they had the right, title and interest over the
suit land to the extent of 1 Katha 12 Lechas. Therefore, the
substantial question of law which has been urged to be formulated on
the question of limitation cannot be formulated.
42. Now let this Court take up the second substantial question of law
which was formulated by the learned Coordinate Bench of this Court.
It is noticed from the concurrent findings of facts arrived at that the
defendant No. 3 as well as the proforma defendant No. 2 are in
respective possession of the suit property. This Court in the foregoing
paragraphs of the instant judgment has also observed that the right
of the plaintiffs is only limited to 1 Katha 12 Lechas out of the 4
Kathas of the suit land. Therefore, in the opinion of this Court, that
without there being a partition, the learned Courts below, were not
justified in decreeing the suit for recovery of khas possession in
respect to the land under the possession of the defendant No. 3. More
so, without taking into consideration that the land which has been
sold to the defendant No. 3 was prior to the land being sold to the
proforma defendant No. 2. In the opinion of this Court, both the
Page No.# 33/39
learned Courts below ought to have passed a decree for partition of
the suit land described in the schedule to the plaint. Under such
circumstances, this Court is of the opinion that in order to pass the
decree for recovery of possession in favour of the plaintiffs there is
also a requirement of partition of the suit land amongst the plaintiffs
and the defendants including the proforma defendant No. 2.
43. The question arises before this Court, as to whether, the Court is
required to pass a preliminary decree or a final decree for partition.
From the concurrent finding of facts and the opinion of this Court in
respect to the rights of the parties, it is clear that the plaintiffs have
right, title and interest in respect to the suit land to the extent of 1
Katha 12 Lechas taking into account that the defendant No. 1 and 2's
sale to the defendant No. 4 vide the Deed of Sale dated 28.03.1985
was only good to the extent of 2 Katha 8 Lechas. This Court had also
taken note of that the defendant No. 4 vide two Deeds of Sale
transferred 4 Kathas of land though he was only entitled to sale 2
Kathas 8 Lechas. It is also relevant to take note of that vide the Deed
of Sale dated 10.01.1989, the defendant No. 4 sold a portion of the
suit land to the extent of 1 Katha 16 Lechas to the defendant No. 3.
Subsequent thereto, the defendant No. 4 only had right over 12
Lechas of land, but the defendant No. 4 transferred vide a Deed of
Sale dated 07.03.1989, 2 Kathas 4 Lechas to the proforma defendant
Page No.# 34/39
No. 2. At this stage, this Court finds it relevant to take into
consideration Section 48 of the Act of 1882 which stipulates the
doctrine of priority, stating that in cases of multiple transfers of the
same immovable property, the earlier transfer takes precedence over
the later transfer, if the rights created are incompatible. In that view
of the matter, as the rights created by the defendant No. 4 in favour
of the defendant No. 3 is earlier at the point of time, the right of the
defendant No. 3 in respect to the suit land would be 1 Katha 16
Lechas. The rights of the proforma defendant No. 2 in respect to the
suit land would be remaining 12 Lechas and nothing more.
44. Therefore from the above, this Court is of the opinion that the
shares of the parties in respect to the suit land is as follows:
Plaintiffs- 1 Katha 12 Lechas
Defendant No. 3- 1 Katha 16 Lechas
Proforma Defendant No. 2- 12 Lechas
45. It is also relevant to observe that the plaintiff No. 1 during the
pendency of the suit had expired, therefore, there would be a
requirement of a further enquiry in respect to the share of the plaintiff
No. 1 vis-à-vis the plaintiff Nos. 2, 3 & 4 or their successor-in-interest
Page No.# 35/39
and the defendant No. 2 or his successor-in-interest. This Court also
takes note of that vide Exhibit-3 the defendant No. 3 had submitted a
bond to demolish the construction if the suit proceedings were
decided against the defendant No. 3. In addition to that, further
enquiries would be required as regards the location of the area
wherein each party to the suit who have entitlement have their share
of land. In this regard, this Court finds it relevant to take note of the
judgment of the Supreme Court in the Case of Abdul Rejak Laskar Vs.
Mafizur Rahman & Others reported in (2024) SCC OnLine SC 3845
wherein the Supreme Court dealt with the issue when a final decree
or a preliminary decree is required to be passed. Paragraph Nos. 40
and 41 of the said judgment are reproduced herein below:
"40. In a suit for partition, the court may issue three types of decrees to put
the issue to rest: preliminary decree, composite decree (partly preliminary &
partly final), and final decree. The purpose of a suit for partition or separation
of a share is two fold:
a. First, declaration of plaintiff's share in the suit properties under the
preliminary decree, and;
b. Secondly, division of his share by metes and bounds which would take
place under the final decree.
41. In a given case, the property may be put to sale and the proceeds would
be shared among the shareholders which can be termed a final decree. In a
Page No.# 36/39
partition suit, if the court is unable to make a division of property by metes and
bounds forthright without further inquiry, the court will initially pass a
preliminary decree. A preliminary decree for partition identifies the properties to
be subjected to partition, defines and declares the shares/rights of the parties.
The prayer relating to actual division by metes and bounds and allotment is left
for being completed under the final decree proceedings."
46. Accordingly, the instant appeal stands partly allowed with the
following observations and directions:
(i) The plaintiffs share over the suit land described in the
Schedule to the Plaint is 1 Katha 12 Lechas and accordingly
this Court declares the same.
(ii) The defendant No. 3's share over the suit land is to the
extent of 1 Katha 16 Lechas and this Court declares the
same.
(iii) This Court declares that the share of the proforma
defendant No. 2 over the suit land to be 12 Lechas.
(iv) On the basis of the above shares being declared in
respect to the suit land, this Court passes a preliminary
decree thereby directing the Deputy Commissioner of
Darrang District, Mangaldai to partition the suit land in
Page No.# 37/39
terms with the shares declared herein above. The Deputy
Commissioner, Darrang or any Gazetted Subordinate of the
Deputy Commissioner deputed by him in this behalf shall
partition the suit land in terms of the shares so declared
herein above and thereupon issue respective separate Patta
to the parties who have been declared to be entitled to the
suit land.
(v) Some of the original plaintiffs have expired as well as
some defendants. While making the said partition, the
Deputy Commissioner, Darrang or the Gazetted Subordinate
of the Deputy Commissioner deputed by him in this behalf
shall make necessary enquiries and thereupon carry out the
partition. In that regard, the notice be issued to the parties
who have been held to be entitled to the shares of the suit
land. The partition proceedings be completed with a sense
of urgency by the Deputy Commissioner, Darang or the
Gazetted Subordinate of the Deputy Commissioner deputed
by him in this behalf and preferably within 6 (six) months
from the receipt of a copy of the instant judgment and the
preliminary decree so directed to be made hereinafter.
(vi) The Registry is directed to draw up a preliminary
Page No.# 38/39
decree and send it to the Deputy Commissioner, Darrang
District for partition forthwith.
(vii) The said partition upon being made, report be
submitted by the Deputy Commissioner, Darrang or the
Gazetted Subordinate of the Deputy Commissioner before
the learned Court of the Civil Judge (Junior Division) No. 1,
Darrang, Mangaldai. Upon receipt of the said report, the
learned Court of the Civil Judge (Junior Division) No. 1,
Darrang, Mangaldai thereupon shall draw the final decree.
(viii) This Court further observes and directs that the
learned Court of the Civil Judge (Junior Division) No. 1,
Darrang, Mangaldai while drawing up the final decree shall
pass appropriate decree for recovery of possession in favour
of the plaintiffs in respect to the area of land which has
been partitioned in their favour as well as other
consequential reliefs as sought for in the plaint.
(ix) The learned Court of the Civil Judge (Junior Division)
No. 1, Darrang, Mangaldai is further directed to regularly
issue directions upon the Deputy Commissioner, Darrang or
the Gazetted Subordinate of the Deputy Commissioner
Page No.# 39/39
ensuring early completion of the partition proceedings.
47. There shall be no order as to costs.
48. The Records of the learned Courts below be returned forthwith
to the learned Trial Court.
JUDGE
Comparing Assistant
