JUDGMENT AND ORDER (ORAL)

Date : 23-06-2022

1. Heard Mr. A. K. Hussain, the learned counsel appearing on behalf of the Appellants. None appears on behalf of the Respondent.

2. This Court vide an order dated 06.12.2013 admitted the instant appeal by formulating the following 3 (three) substantial question of law which are as hereinunder.

(I) Whether the Lower Appellate Court was justified in reversing the judgment and decree passed by the Trial Judge which had decreed the plaintiff’s suit for declaration and partition in relation to the land in dispute ?

(ii) Whether the Lower Appellate Court was justified in holding, while answering Issue No.3 in Paragraph No.10, that the suit is bad for non-joinder of necessary parties, namely, the purchasers of the suit land ?

(iii) Whether in the facts of this case, the purchasers of the part of the property from the original defendant could be regarded as necessary parties to the suit and whether failure to bring them on record would result in dismissal of the suit on the ground of non-joinder of necessary parties ?

3. For the purpose of appreciating and deciding as to whether the said substantial questions of law arises and is involved in the instant case, it is relevant to take note of the facts of the instant case. For the purpose of convenience, the parties are referred to in the same status as they stood before the Trial Court.

4. The appellants herein as plaintiffs have instituted the suit seeking a preliminary decree for partition of the suit property described in Schedule-A according to the share of the parties; for appointment of a Commissioner for affecting the partition in terms with a preliminary decree; final decree embodying the Commissioner’s report, Khas possession of the plaintiffs share after finding their title share thereto and for permanent injunction.

5. The facts of the case as described in the plaint is that one Amodoni Sarkar, the predecessor in interest of the plaintiff and the defendant owned and possessed a plot of land measuring 3 Katha 10 Lecha which is the Schedule-A land. Late Amodoni Sarkar died in the year 1995 leaving behind the plaintiffs rd and the defendant as the legal heirs entitled to 1/3 share each in the suit land. The case of the plaintiffs is that the defendant has already possessed a plot of land measuring 20 Lechas out of 3 Kathas 10 Lechas upon which he has been residing for the last 13 years by constructing a residential house. The plaintiff alleged that the defendant with mala fide intention mutated his name showing him as the only legal heir of Late Amodoni Sarkar. Accordingly, a Zamabandi was issued in the name of the defendant vide an order of the Circle Officer dated 31.07.2006. On coming to learn about the said, the plaintiffs filed a petition before the Circle Officer, Bijni to rectify the mutation order dated 31.07.2006 and accordingly a case was registered. The Circle Officer passed an order dated 19.07.2007 declaring that the plaintiffs are also the share holders in respect to the Schedule-A land by virtue of being legal heirs of late Amodoni Sarkar. However, the said order was not implemented for which the Plaintiff No.1 filed the petition before the Assam Board of Revenue, Guwahati and accordingly on 26.03.2009, the Circle Officer Bijni was directed to rectify the mutation and accordingly the Circle Officer Bijni mutated the name of the plaintiffs alongwith the defendant as legal heirs of Amodoni Sarkar mentioning equal share in the suit land vide an order dated 20.05.2009. The Plaintiff further alleged that the defendant with a mala fide intention had illegally tried to possess the share of the plaintiffs by constructing a temporary shed for which the said suit was filed seeking the said reliefs as already stated hereinabove. It is relevant to mention rd that as the plaintiffs’ share is 2/3 of the Schedule-A land, the said plot of land measuring 2 Kathas 7 Lechas was described specifically in Schedule-B to the plaint.

6. The defendant fi