Possession by one co-owner is regarded as possession of all; thus, dismissal based solely on possession is erroneous under the Hindu Succession Act.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr. Sheeladitya, the learned counsel appearing on behalf of the appellants and Mr. N. Choudhury, the learned counsel who appears on behalf of the respondent.

2. The instant Appeal has been filed challenging the judgment and decree dated 09.10.2013 passed by the learned Court of the Civil Judge, Nagaon (hereinafter referred to as ‘the learned First Appellate Court’) thereby interfering with the judgment and decree of the learned Court of the Munsiff No.1, Nagaon (hereinafter referred to as ‘the learned Trial Court’) dated 23.03.2012 passed in Title Suit No.69/2005 whereby the suit filed by the plaintiff was decreed.

3. It is seen from the records that the learned Coordinate Bench of this Court vide the order dated 14.02.2014 admitted the instant Appeal by formulating two substantial questions of law which reads as under:-

I) Whether the learned lower appellate Court erred in law to declare the title of the plaintiff on the basis of admitted exhibited documents?

II) Whether the learned lower appellate Court erred in law in reversing the findings of the trial Court without considering the reasons basing on which the trial Court’s decree was passed?

4. The question arises as to whether the two substantial questions of law are involved in the instant Appeal. This Court in this regard had duly heard Mr. Sheeladitya, the learned counsel appearing on behalf of the appellants as well as Mr. N. Choudhury, the learned counsel appearing on behalf of the respondent.

5. For ascertaining as to whether the two substantial questions of law so formulated are involved in the instant Appeal, this Court finds it relevant to take note of the brief facts which led to the fling of the instant Appeal.

6. For the sake of convenience, the parties herein are referred to in the same status as they were before the learned Trial Court. 7. From the admitted facts amongst the parties it is apparent that Kon Koch was the owner of a plot of land admeasuring 32 bighas 2 kathas 8 / lechas in Patta No.88 covered by Dag 3 Nos.304, 305 & 308. The said Kon Koch expired in the year 1962 leaving behind his wife Renu Saikia, two sons, namely, Rana Saikia and Tilak Saiki and two daughters, namely, Rina Saikia and the defendant Mina Saikia. The admitted facts further would show that Rina Saikia and Rana Saikia expired immediately after the death of Kon Koch leaving behind no heirs. Tilak Saikia married the plaintiff No.1 in the year 1981 and out of their wedlock, the plaintiff No.2 was born. Thereupon, Tilak Saikia expired in the year 1985.

8. From the above facts, it is therefore clear that the land which Late Kon Koch inherited devolved upon his wife Late Renu Saikia, his son, Late Tilak Saikia and his daughter, the defendant No.1. After the death of Tilak Saikia, his share devolved upon the plaintiff No.1 and plaintiff No.2. It is further relevant to take note of that the mother-in-law of the plaintiff No.1 expired in the year 1999, and therefore, by virtue of Section 15 of the HINDU SUCCESSION ACT , 1956, her right in respect to her share devolved upon the defendant No.1 in one part and the plaintiff Nos.1 & 2 in the other. Accordingly, the plaintiff No.1 being deprived of her rights in respect to the suit property as described in the Schedule to the plaint had filed a suit being Title Suit No.69/2005 seeking declaration of her right, title and interest in respect to the suit land more specifically described in Schedule-A to the plaint; for a preliminary degree for partition; a decree for deli