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IN THE HIGH COURT OF GAUHATI
A.K.GOSWAMI, J.
Moimona Nessa Bewa & Ors. – Appellants
Vs.
Hachina Khatun – Respondent
CRP No. 259 of 2011
Decided On: 13.06.2012
Civil Procedure Code - Order 20 Rule 18 - Section 152, 151, 115 - Title Suit - Praying for a decree of declaration for right, title and interest - Opposite party filed Title Suit in the Court of the learned Munsiff No. 1, Barpeta, praying for a decree of declaration for right, title and interest in respect of Schedule B of the plaint and for khas possession of Schedule C of the plaint, which is part of Schedule B, a decree to issue precept to the Revenue Authority for partition of B Schedule land in favour of the plaintiff by appointing Commission, to issue precept to the Revenue Authority for separate patta in respect of B Schedule land and for a permanent injunction not to prevent the plaintiff from entering into Schedule C land, etc - Petitioners had submitted written statement alongwith the counter claim praying for, amongst others, dismissal of the suit of the plaintiff with costs, declaration that plaintiff has no right, title, interest and possession of B Schedule land of the plaint, declaration that plaintiffs prayer for partition in respect of B Schedule land is illegal, declaration that the grant of mutation in favour of the plaintiff is illegal, to send precept to the Revenue Authority to correct the record of the land, declaration of the defendants right, title and interest and possession over the land prescribed in the Schedule to the counter claim measuring 1 Bigha 1 Katha and 16½ lechas of land.- Held, Order 20 Rule 18 CPC provides for passing of preliminary decree, if the partition or separation of immovable and movable properties cannot be conveniently made without further inquiry, declaring the right of the several parties interested in the property and giving further direction as may be required. Passing of preliminary decree pre-supposes declaring the right of the parties and the purpose of such a preliminary decree is to conduct further inquiry to effect partition or separation. In the instant case, plaintiffs right, title and interest has been declared by the learned Trial Court in respect of Schedule B land. It has also been made explicitly clear in the judgment that if there is any encroachment of the plaintiffs land by the defendants, the same has to be given possession to the plaintiff after proper demarcation at the time of partition. The report of partition did not advert to the question as to whether any part of land of Schedule B is under the possession of the defendants - Obviously, in the instant case, a material aspect having a bearing on the relief granted to the plaintiff was overlooked - Court is of the considered opinion that the learned Trial Court committed no material irregularity and also did not exceed its jurisdiction in exercising inherent powers under Section 151 CPC in passing the order to effectuate the purpose for which the preliminary decree was passed - Application dismissed.
A.K. Goswami, J.
1. This revision petition has been filed under Article 227 of the Constitution of India read with Sections 115 and 151, CPC challenging the Order dated 06.06.2011 passed by the learned Munsiff No. 1, Barpeta in Title Suit No. 330 of 2007. Heard Mr. A.R. Sikdar, learned counsel for the petitioners. Also heard Mr. B. Banerjee, learned counsel for the opposite party. As agreed to by the learned counsel for the parties, this revision petition is taken up for disposal at the admission stage.
2. The opposite party filed Title Suit No. 330 of 2007 in the Court of the learned Munsiff No. 1, Barpeta, praying for a decree of declaration for right, title and interest in respect of Schedule 'B' of the plaint and for khas possession of Schedule 'C' of the plaint, which is part of Schedule 'B', a decree to issue precept to the Revenue Authority for partition of 'B' Schedule land in favour of the plaintiff by appointing Amin Commission, to issue precept to the Revenue Authority for separate patta in respect of 'B' Schedule land and for a permanent injunction not to prevent the plaintiff from entering into Schedule 'C' land, etc.
3. The petitioners had submitted written statement alongwith the counter claim praying for, amongst others, dismissal of the suit of the plaintiff with costs, declaration that plaintiff has no right, title, interest and possession of 'B' Schedule land of the plaint, declaration that plaintiff's prayer for partition in respect of 'B' Schedule land is illegal, declaration that the grant of mutation in favour of the plaintiff on 11.10.1991 and 23.03.2005 is illegal, to send precept to the Revenue Authority to correct the record of the land, declaration of the defendants' right, title and interest and possession over the land prescribed in the Schedule to the counter claim measuring 1 Bigha 1 Katha and 16½ lechas of land.
4. The learned Trial Court framed the following issues:
1. Whether there is cause of action for the suit as well as for the counter claim of the defendants ?
2. Whether the plaintiff has right, title and interest over the Schedule 'B' land which is specifically described in the plaint?
3. Whether the plaintiff is entitled for the decree of khas possession of the Schedule 'C' land?
4. Whether the plaintiff is entitled for the relief as prayed for ?
5. Whether the defendants have right, title interest and possession over 1 Bigha 1 Katha 16½Lachas of land covered by Dag No. 66 under patta No. 99?
6. Whether the sale deed Nos. 1662/84 1335/91 and 316/03 are illegal, null and void and inoperative in law?
7. Whether the mutation of the plaintiff dated 11.10.1991 and 23.03.2005 is illegal and void in law?
8. Whether the defendants are entitled for the decree as prayed for in their counter claim?
9. To what other relief or reliefs the parties are entitled for ?.
5. The plaintiff examined six witnesses and some documents were also exhibited. The defendants had adduced evidence of four witnesses and also exhibited some documents in support of their case.
6. The learned Trial Court, on consideration of the materials on record, found that the plaintiff has right, title and interest over the Schedule 'B' land. The learned Trial Court decided issue No. 5 against the defendants holding that the defendants have no right, title, interest and possession over 1 Bigha 1 Katha 16½Lechas of land covered by Dag No. 60 under Patta No. 99, which was the land described in the Schedule to the written statement-cum-counter claim of the defendants. With regard to issue No. 3, the learned Trial Court opined as follows:
So, the plaintiff is not entitled for the khas possession of the Schedule 'C' land, but if there is any encroachment of the plaintiff's land by the defendants that has to be given to the plaintiff after proper demarcation at the time of partition, as the plaintiff has sought for relief of partition of her purchased land herein this case. Thus, this issue is decided partly in favour of the plaintiff.
7. In issu
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