Lanibala Rudra Paul And Ors vs Aswini Rudra Paul And Ors

Heard Mr. A.K. Bhowmik, learned senior counsel, assisted by Mr. Kundan Pandey, learned counsel appearing for the plaintiff-appellants. None appears for the respondents.

This is an appeal preferred by the original plaintiffs, i.e. the appellants of the instant appeal, challenging the legality and propriety of the judgment and decree, dated 28.02.2017, passed by the learned Civil Judge(Sr. Division), North Tripura District, Dharmanagar in connection with case No. Title Suit(Partition) 36 of 2013, dismissing the suit for partition of the plaintiffs.

The plaintiff-appellants(hereinafter referred to as the 'plaintiffs') have instituted a title suit before the Court of learned Civil Judge, Senior Division, Dharmanagar, North Tripura for partition of their joint suit property. The defendant-respondents(hereinafter referred to as the 'defendants') contested the said suit by filing written statement.

To decide the case, following issues were framed by the learned trial Judge on the basis of the pleadings of the parties to the suit:

"(i) Whether the suit is maintainable in its present form?

(ii) Whether there is any cause of action for filing of this suit?

(iii) Whether plaintiffs are entitled to get a decree for partition of the suit property as prayed for?

(iv) What other relief/relieves the parties are entitled to?"

While deciding the suit, the learned trial Judge on the basis of the pleadings and evidence had recorded the following findings:-

"[16] Upon careful scrutiny of the pleadings and the evidence of plaintiffs and defendants I find the following undisputed facts which need to be noted here for brevity :-

(a) It is an admitted position that predecessor-in-interest of plaintiffs and defendants No.9 to 12 late Surendra Ch. Rudra Paul (hereinafter referred as S. C Paul) and predecessor-in-interest of defendants No.1 to 6 namely Late Aswini Rudra Paul (hereinafter referred as A. Paul) who came to India from erstwhile East Pakistan (present Bangladesh) in the year 1968 became the joint owners of total landed property measuring 13.01 acre on the strength of one registered exchange deed No.1-5774 dated 10-06-1968 vide Exbt.1 being executed between Late S. C. Paul and late A. Paul in one hand and Late Sajjad Ali and 4 others on the other hand.

(b) It is also undisputed that after execution of the exchange deed no further record of rights were created in the name of Late S.C. Paul and A. Paul in respect of their occupied land. It is an admitted position that the land of exchange deed of plaintiffs was covered under khatian No.12 jer 49, khatian No.49, khatian No.79 jer 54, khatian No.8 jer 87, khatian No.724, khatian No.723, khatian No.87, khatian No.84 viz Exbt.129.

(c) It is also an admitted position that defendant No.8 Sri Satish Ch. Das purchased 1.60 acre, 0.10 acre, 0.94 acre and 3.54 acre by dint of 4 Nos registered sale deeds dated 20-02-1973, 21-05-1973, 02-04-1974, 04-04-1975(Exbt.A, Exbt.B, Exbt.C and Exbt.D) respectively since these sale deeds are not disputed by plaintiffs in their pleadings.

(d) There is also no quarrel at bar to the fact that pro-defendant No.8 purchased the land of 0.91 acre from the son of Late A. Paul namely Sunil Rudra Paul by registered sale deed dated 15-04-1976 vide Exbt.E. He also purchased 6.15 acre land from A Paul and Jatindra Kr. Chakraborty by another sale deed dated 21-04-1976 vide Exbt.F.

(e) It is also undisputed that Satish Ch. Das and Chandranath Das acquired 2.58 acre land by exchange deed No.2197 dated 12-04-1966 vide Exbt.G. Subsequently, Satish Ch. Das also sold out several landed plot in favour of other purchasers by executing registered sale deeds as reflected in the written statement of pro-defendant No.8.

(f) It is also undisputed that predecessor-in-interest of defendants No.7(a) to 7(c) namely Digendra Kr. Das along with Nabakishore Das and Binode Bihari Das acquired total 4.77 acre land jointly by way of exchange deed No.1-5215 dated 22-05-1968 out of which Degendra Kr. Das got 2.81 acre land covered by previous khatian No.13 and 89. He also sold out 0.20 acre land out of his purchased land of 0.40 acre. The above admitted facts need not be discussed further as they are deemed to be proved in view of sec.58 of the Evidence Act.

(17) In the case in hand, the plaintiffs claimed their joint right, title and interest on the land of exchange deed while this exchange deed is also disputed by defendants No.7(a) to 7(c). The objection of defendants that the exchange deed of predecessor of plaintiffs was not signed by all the co- owners of Sajjad Ali has no legal force because the exchange deed is a document of more than 30 years old and no challenge has been made against this deed by the defendants earlier at any point of time. Admittedly Aswini Rudra Paul sold out several plots of land from his share portion earlier to Satish Ch. Das and no challenge is made against the exhibited sale deeds either by plaintiffs or defendant No.7 in the present case knowingfully that said A.Paul and S.C. Paul got landed property by way of exchange with the land of original owner. So the defendants are estopped to dispute the legality of this exchange deed at this stage and it can not be held that the exchange deed vide Exbt.1 is void or illegal."

A Survey Commissioner was appointed to identify the land. After surveying, the Survey Commissioner submitted his report. He also was examined as Court Witness No.1(CW1).

From the findings of the learned Court below, it transpires that while surveying the land, the Survey Commissioner found that the total exchanged land was measured about 13.01 acres, but, upon physical verification, he found total 17.10 acres of land.

It is observed by the learned trial Judge that the Survey Commissioner did not specifically mention in his report about the actual possessors and owners of the said additional quantum of land. However, the Survey Commissioner had mentioned four boundaries of the total land, measuring 17.10 acres in his report as per the existing map of the disputed land.

After considering the evidence on record and the report of the Survey Commissioner, the learned Civil Judge had observed thus:

"27. Thus in the light of what is discussed above and reasonings cited, I am of the considered view that though plaintiffs and defendant No.9 to 12 are the legal heirs of co-owners S.C. Paul and have been in possession of landed property acquired under the exchange deed but they could not discharge their burden of proving the exact identification and boundary of the joint property of their predecessors. The suit land so far described in the plaint measuring 18.41 acre can not be held to be the joint property of the predecessor of plaintiffs and defendants in view of the fact that earlier Aswini Kr. Rudra Paul sold out major portion of land in favour of pro-defendant No.8 and no mutation or demarcation of the original land of the exchange deed land was ever made. Consequently, I hold that plaintiffs have got no cause of action to claim partition of their un-identified joint property and so they are not entitled to get declaration of their quantum of share and partition of the land of exchange deed vide Exbt.1 in the present form and nature of the schedule land of plaint.

Hence, issues No.(ii) & (iii) are decided in the negative against the plaintiffs.

Having held so, the learned Civil Judge dismissed the suit of the plaintiffs as not maintainable and further observed that the plaintiffs are not entitled to get preliminary decree for declaration of their right, title and interest on the scheduled suit land and also final decree for partition of their share.

Mr. A.K. Bhowmik, learned senior counsel has submitted that from the report of the Survey Commissioner it is clear that, indisputably, the Survey Commissioner identified the entire plots of land which includes the land out of the exchanged deed. Learned senior counsel has further submitted that there is no dispute in regard to the boundary of the entire plots of land, which are jointly and severally occupied by the plaintiffs and the defendants. None has raised any objection to the boundary and the quantum of the land within the boundary of the exchanged land that is required to be partitioned. He has further drawn my attention that there is no dispute regarding the respective shares of the land in question, now in joint possession of the plaintiffs and the defendants.

True it is, that, both the plaintiffs and the defendants had sold some lands from their respective shares, but, it is the duty of the Court in a partition suit to partition the land as sought for by the parties. If it is found that if any of the parties sells the land in excess of their shares, then, it may be deducted proportionately from the share of the purchasers, since that part of the sale would be treated as void ab initio and would have no legal force.

I have given my due consideration to the submissions of the learned senior counsel. I am not in agreement with the learned Civil Judge that the plaintiffs have got no cause of action to claim partition. The reason, the learned Civil Judge has shown to dismiss the suit, is that the suit land is unidentified and the quantum of land is found more than the land which was mentioned in the exchanged deed.

In my opinion, whatever the quantum of land, it is to be partitioned between the parties to the suit. As such, the plaintiffs have the cause of action to institute a suit for partition. According to me, the plaintiffs are also entitled to get preliminary decree for partition.

Mutation cannot come in the way of partitioning a land. Mutation is only mean for identifying a person, who is in possession of the land. It does not confer any title. The finding of the learned Civil Judge that the suit land so far described in the plaint measuring 18.4 acres cannot be held to be the joint property of the predecessors of the plaintiffs and the defendants is also appeared to be erroneous and not tenable in law. Partition has to be caused against the whole suit land. It includes the land which has been sold to the other purchasers and it will identify the actual shares of the parties to the lis. If it is found that any of the parties has sold their respective lands in excess of their shares, then, it would be decided in accordance with law. That means, the quantum of land, the purchasers had purchased from any of the defendants would be invalid to the extent they sold the land in excess of their respective shares. To find out this fact, the partition of the whole suit land is necessary.

Having held so, in my considered view, the plaintiffs are entitled to get decree of partition of the suit land as they have prayed for. For this purpose, it is ordered and declared that the plaintiffs and the proforma defendant Nos.9, 10, 11 and 12 shall be entitled to get 50% of the suit land, being the inheritors of Lt. Surendra Chandra Rudra Paul and the defendants shall also be entitled their share of 50% of the suit land, being the inheritors of Lt. Aswini Rudra Paul.

15.1. The Survey Commissioner upon physical verification of the suit land found total 17.10 acres of land instead of 18.41 acres as mentioned in the schedule of the plaint. As such, the suit land would be partitioned considering the total land measuring 17.10 acres.

15.2. Registry is directed to draw the decree in the above terms.

15.3. It is further ordered and declared that the partition of the suit land shall be caused invoking Section 54 and Order XX Rule 18 of the Code of Civil Procedure, 1908.

The above provisions are reproduced here-in-below for convenience:

"54. Partition of estate or separation of share.-Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession shares, of such estates.

Order XX Rule 18. Decree in suit for partition of property or separate possession of a share therein.-Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;

(2) ......................................."

In view of the above provisions of law, the District Magistrate & Collector, North Tripura, Dharmanagar shall take appropriate steps to partition the suit land measuring 17.10 acres as if it is a partition between two brothers, namely Surendra Chandra Rudra Paul and Aswini Rurda paul, the original owners and possessors of the suit land.

Send the L.C.Rs along with a copy of the judgment and decree to the Court of learned Civil Judge(Senior Division), North Tripura, Dharmanagar, who will send a copy of this judgment and decree to the District Magistrate & Collector, North Tripura, Dharmanagar within a period of 7(seven) days from the date of receipt of the records to ensure and comply the judgment and decree passed by this Court in connection with RFA No.11 of 2017. On receipt of a copy of the said judgment and decree, the District Magistrate & Collector shall complete the entire exercise of partition within a period of 3(three) months.

With the aforesaid observations and directions, the instant appeal stands allowed as indicated above and thus disposed of.