IMPORTANT POINT
The main legal point established in the judgment is that a co-owner is competent to transfer his/her share of the property, but a transferee of a share of a dwelling house belonging to an undivided family, who is not a member of the family, would not be entitled to joint possession or other common or part enjoyment of the house.

JUDGMENT :

Heard Mr. G. N. Sahewalla, the learned senior counsel assisted by Ms. K. Bhattacharjee, the learned counsel for the Appellants in both the Appeals and Mr. B. D. Deka, the learned counsel appearing on behalf of the respondent.

2. Both the Appeals are taken up together taking into account that the RSA No.133/2004 arises out of the Title Suit No.32/1978 and RSA No.132/2004 arises out of the Title Suit No.42/1981. From a perusal of the materials on record, it reveals that the Title Suit No.42/1981 is a cross suit to Title Suit No.32/1978. It is in view of the similarities of the facts and the issues involved, both the learned Trial Court as well as the learned First Appellate Court had taken up both the suits as well as the Appeals filed together and this Court therefore takes up the two Second Appeals together for disposal by this common judgment.

3. From a perusal of the order dated 13.08.2004 passed in both the Second Appeals, it transpires that in both the Second Appeals, the same substantial questions of law have been formulated which are as under:-

(i) Whether the learned Appellate Court committed error of law in not taking into consideration Exhibits-21, 22, 23 and 24 on the ground that these were not tendered in evidence by any witness?

(ii) Whether the provisions of Section 44 of the Transfer of Property Act, 1882 and Section 3 and 4 of the Partition Act, 1893 are applicable in the instant case and whether the learned First Appellate Court erred in law in not considering the appellant’s case in the light of the above provisions?

4. For deciding as to whether the two substantial questions of law so formulated in the present two Appeals are involved, this Court finds it relevant to take note of the brief facts which have led to filing of both the Appeals.

5. Title Suit No.32/1978 was filed by one Sulakshan Singh, (since deceased) the predecessor-in-interest of the present Appellants. In the said suit, it was the case of the plaintiff therein that the said plaintiff along with defendant No.1, Tara Singh (since deceased) had purchased a plot of land measuring 4 kathas in Dag No.458 covered by PP No.250/274 of South Amolapatty, Dibrugarh which was specifically described in Schedule-I of Title Suit No.32/1978. In the said suit, it was also mentioned that in the said Dag there was an additional area of 5 lechas which belonged to one Hari Prasanna Das. It was further alleged that the plaintiff and the defendant No.1 in the said suit carried on a business together and out of their joint income, the remaining 5 lechas of land which originally belonged to Hari Prasanna Das was purchased from his son after his death. It was alleged that both the plaintiff and the defendant No.1 jointly constructed a house over the said land which was described in Schedule-I to the plaint and both the plaintiff as well as the defendant No.1 used to reside. Sometime in the year 1975, the defendant No.2 who is the respondent herein in the present Appeals tried to take over the possession of the Schedule-I land forcibly. Thereafter, a proceedings under 107 of the Cr.P.C. was initiated by the defendant No.2 which was however dismissed. It was also mentioned that prior thereto, the defendant No.1 had filed the Revenue Partition Case No.22 of 1971-72 before the Additional Deputy Commissioner, Dibrugarh seeking perfect partition of his land claiming his share to be 2 kathas 5 lechas out of 4 kathas 5 lechas covered by Dag No.458/21 of PP No.15 corresponding to new Dag No.134 and new Patta No.21 situated at Amolapatty Ward, Dibrugarh Town, Mouza-Dibrugarh. It was alleged that the plaintiff did not get any notice in respect to the said Revenue Partition Case. It was further mentioned that the defendant No.1 on 15.05.1973 managed to obtain an ex-parte order for partition of the said land which the plaintiff came to learn from one Pyara Singh (since deceased) who was served with the notice dated 31.10.1974 from the Sub-Deputy Collector, Dibrugarh, East