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IN THE GAUHATI HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
N. CHAUDHURY, J.
Shri Dhirendra Namasudra & Anr. - Appellants
Versus
On the death of Sonamoni Namasudra @ Kala Sona, his legal heirs Shri Sukumar Roy & Anr. – Respondents
RSA 35 of 2005
Decided on : 10-06-2016
Assam Land and Revenue Regulation - Civil Procedure Code,1908 - Order XX Rule 18 - Order XLI Rule 31 - Preliminary decree of partition - Course of trial plaintiff examined 2 witnesses and adduced documents is certified copy of second R.S. Patta No. 43. Ext. 2 is the certified order passed by Collector rejecting PP Case - All these exhibits were admitted into evidence without there being any objection - Defendants side also examined witnesses on their part and adduced one document being Ext. A which is registered sale deed and same was under objection is certified copy of same - A but it was accepted into evidence without objection – Held, Even if by admission if plaintiffs are entitled of land what was harm in passing a preliminary decree in favor of the plaintiffs on the basis of such admission learned courts below have considered provisions of Order XX Rule 18 of Code of Civil Procedure and were aware that in a decree of partition it is duty of court to ascertain shares of all parties - As such computation was not made learned courts below chose option of dismissing suit of partition by holding that it is time barred - Bar on limitation may arise in regard to validity - But supposing a has not been challenged which was executed on but can we hold that could have inherited more title than his vendor had in suit – Order Accordingly
This second appeal has been preferred by the plaintiffs challenging the concurrent findings of the two learned courts below. Plaintiffs’ suit for declaration of right, title and interest and for preliminary decree of partition was dismissed by the learned trial court on the point of limitation and an appeal preferred there-against was dismissed by the learned first appellate court upholding the findings of the learned trial court. Aggrieved, the plaintiffs have approached this court challenging the concurrent findings of the learned courts below.
2. Two sons and a daughter of late Rajani Namasudra, as plaintiffs, instituted title suit No. 65/1992 in the court of learned Munsiff No. 1 at Silchar against legal heirs of Nayan Namasudra, Bharat Namasudra and Sonamoni Namasudra praying for a decree of declaration of their right, title and interest to the extent of 1B 6K 10Ch in the suit patta measuring 2B 13K 4Ch and also preliminary decree of partition of the suit patta followed by a final decree along with injunction etc. The case of the plaintiffs is that C.S. Patta No. 18 of Mouza Chibitabichia under Pargana Chatla in the district of Cachar was originally issued in the name of two persons, namely, Lob Chonga and Gagan Chonga. However, in the patta without there being any reason, names of Churamoni Namasudra and Nayan Namasudra were mentioned. The aforesaid patta comprised of five dags namely, dag No. 61, 62, 66, 79 and 80. The aforesaid 4 dags of C.S. Patta No. 18 were resurveyed as R.S. Patta No. 29 with only one dag, namely, dag No. 107 in the name of Rajani Namasudra, Churamoni Namasudra, Nayan Namasudra and Harmohan Namasudra. This is because Lob Chonga died in the mean time and was survived by his son Rajani Namasudra and Gagon Chonga was survived by his son Harmohan Namasudra. Name of Churamoni Namasudra appeared in the R.S. Patta No. 29 as it existed in C.S. Patta No. 18. Harmohan Namasudra being the son of Gagan Namasudra was entitled to only 1B 6K 10Ch being half of the entire patta measuring 2B 13K 4Ch but he sold 1B 15K 8Ch in favour of one Gunomoni Namasudra way back in the year 1926 which was excess than his entitlement. Gunomoni on turn sold this 1B 15K 8Ch to Nayan Namasudra and Bharat Namasudra. These two persons, namely, Nayan Namasudra and Bharat Namasudra thus became joint owner of 1B 6K 10Ch only although the sale deed executed in their favour contained recital as to 1B 15K 8Ch. The R.S. Patta No. 29 was re-surveyed during second settlement operation as second R.S. Patta No. 43 in the name of Rajani Namasudra, Nayan Namasudra, Nira Namasudrani, Nirmala Namasudrani and Abala Namasudrani. Names of Nira Namasudrani, Nirmala Namasudrani and Abala Namasudrani were mentioned in second R.S. Patta No. 43 being the legal heirs of Bharat Namasudra who along with Nayan Namasudra had inherited land from Gunomoni Namasudra being the original share of Harmohan Namasudra, the son of Gagan Namasudra. Rajani Namasudra approached the other co-pattadars for partition of the patta but they declined for which he instituted Perfect Partition Case No. 14 of 1991-92 before the Collector, Cachar District asking for a separate patta in his name with respect to his title in the patta. The Collector dropped the PP case on 30.01.1992 on the ground that the annual revenue of the patta was less than Rs. 5/-. After dismissal of the PP case, Rajani Namasudra died leaving behind the plaintiffs as his legal heirs and this is why they being the plaintiffs instituted suit for declaration of their right, title and interest to the suit patta as legal heirs of Lob Chonga. Plaintiffs claimed that Lob Chonga and Gagan Chonga jointly owned 2B 13K 4Ch of land in C.S. Patta No. 18 and each of them was owner of 1B 6K 10Ch of land in the suit Patta only. Rajani Namasudra being the sole legal heir of Lob Chonga inherited 1B 6K 10Ch and this devolved on the plaintiffs jointly. The remaining 1B 6K 10Ch owned by Gagan Chonga devolved on his son Harmoha
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