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BINESWAR BORA & OTHERS V/S BOGI BORA & OTHERS, decided on Tuesday, July 11, 2017.
[ In the High Court of Gauhati, RSA No. 69 of 2003. ] 11/07/2017
Judge(s) : PRASANTA KUMAR DEKA
Advocate(s) : T.J. Mahanta, Senior , P. Bhattacharyya. R.K. Jain, A. K. Sarma.
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    Oral Judgment & Order:1. Heard Mr. T.J. Mahanta learned senior counsel assisted by Ms. P. Bhattacharyya learned counsel appearing for the appellants/ defendants and Mr. R.K. Jain learned counsel appearing for the respondents/ plaintiffs.2. One Gendhala Bora was the owner of land covered by two periodic pattas i.e. Periodic Patta No. 22 covering land measuring more or less 20 Bighas and other one Periodic Patta No. 12 covering land more or less 9 Bighas 3 kathas. Gendhala Bora died leaving behind his three sons Kanakeswar Bora Akon Bora and Soneswar Bora. Soneswar Bora died leaving behind his son the original defendant No. 4 Ramani Ranjan Bora and his wife Biroja Bora. On the other hand Kanakeswar Bora died leaving behind the defendant No. 2 Haren Bora defendant No. 3 Dineswar Bora and defendant No. 5 Sri Deben Bora. Akon Bora died leaving behind his daughters Smti Bogi Bora the plaintiff No. 1 Smti Junu Bora the plaintiff No. 2 and rest of the plaintiff Nos. 3 to 8 are the sons and daughters of Junu Bora including grandchildren of Akon Bora.3. The plaintiffs/ respondents’ case is that on the death of Akon Bora they are entitled to one-third share of the properties per stripe as the legal heirs of late Akon Bora out of the total land left by Gendhala. On the basis of the said claim they preferred a revenue partition case being Revenue Partition Case No. 64/1985 which was accordingly granted by the learned Additional District Magistrate Jorhat. Accordingly a separate partition patta was curved out from the original Patta No. 22 covering land measuring 15 (fifteen) Bighas 3 (three) kathas 3 (three) lechas from the said patta. The said partition patta was issued under the Periodic Patta No. 570 of Village- Dohotia Barua Gaon Mouza– Khangia in the District of Jorhat Assam. The present defendants/ appellants refused to accept the said partition and even on issuance of legal notices they refused to vacate the land upon which they are possessing purportedly being the share of the plaintiffs/respondents. Hence the suit was filed for the reliefs for declaration of the right title and interest recovery of khash possession and injunction.4. The defendants/ appellants filed their joint written statement thereby taking the plea that during the life time of Kanakeswar Bora Akon Bora and Soneswar Bora an amicable settlement took place amongst them and on the basis of the said settlement Akon Bora was settled with the land covered by the Periodic Patta No. 12 and both Kanakeswar Bora and Soneswar Bora were settled with the total land covered by Periodic Patta No. 22 so that both Kanakeswar Bora and Soneswar Bora could divide their shares between them. It is also pleaded that the original periodic Patta No. 22 consists of 22 Bighas of land and subsequently Kanakeswar Bora and Soneswar Bora by way of purchase and exchange got the land extended to 48 Bighas. Accordingly as there was a family settlement during the life time of the respective predecessors-in-interest of the parties to the suit as such the plaintiffs/ respondents being the legal heirs of Akon Bora are not entitled to any share of the land covered by the Periodic Patta No. 22. Hence the defendants prayed for dismissal of the suit.5. On the basis of the pleadings of the parties the trial court framed the following issues.1. Whether there is any cause of action for the suit and the suit is barred?2. Whether plaintiffs have acquired any valid right and title to the suit land?3. Whether there was any valid partition and the suit property falls to the share of the plaintiffs?4. To what reliefs parties are entitled?6. During the course of evidence the plaintiffs examined 3 (three) witnesses and exhibited Ext. Nos. 1 and 2 the certified copies of the Jamabandi showing various entries including their names being mutated. The defendants examined 3 (three) witnesses. However no exhibits were put on record by the said defendants. The trial court after hearing the parties dismissed the suit.7. Being aggrieved the plaintiffs/ respondents preferred T.A. No. 1/2002 in the court of the learned Additional District Judge Jorhat. It is pertinent to mention here that originally the title appeal was filed in the year 1998 and numbered as T.A. No. 3/ 1998 in the court of the learned District Judge Jorhat but the same was transferred to the court of the learned Additional District Judge Jorhat and renumbered as T.A. No. 1/ 2002. During the pendency of the appeal in the court of the learned District Judge Jorhat the respondent No. 10 Romani Ranjan Bora who was the legal heir of Soneswar Bora died on 11.7.1999. The present plaintiffs/ respondents as the appellants in T.A. 3/1998 filed a petition No. 290/1999 on 26.7.1999 informing the first appellate court about the death of the respondent No. 10 with a further prayer to substitute the said respondent No. 10 through his legal heirs within the period stipulated for substitution of the legal heirs without the appeal being allowed to be abated. The learned first appellate court after the said T.A. No. 3/1998 was transferred and renumbered as T.A. No. 1/2002 after hearing the parties allowed the appeal thereby decreeing the suit of the plaintiffs/ respondents. The decree was drawn up showing the name of the deceased respondent No. 10 Ramoni Ranjan Bora.8. The present defendants/ appellants dissatisfied with the judgment and decree passed by the first appellate court preferred the present second appeal which was admitted on 13.05.2003 and the following substantial questions of law were formulated.1) Whether the right title and interests over the plot of land have been declared without any valid partition and on the basis of revenue partition in respect of a joint property?2) Whether the appellate decree is a nullity on the ground of the same being passed against a dead man late Ramani Ranjan Bora?3) Whether the appellate decree can be imposed when one of the defendants defendant No. 5 Sri Deben Bora was not impleaded in the appeal as a party?9. Mr. T.J. Mahanta learned senior counsel appearing on behalf of the appellants/ defendants assailed the judgment and decree passed by the first appellate court and specifically pointed out that the said judgment and decree was passed against a dead man without substitution of his legal heirs who are the necessary parties to the said suit and the appeal. By making such submission Mr. Mahanta further submits that the suit as a whole is abated inasmuch as the plaintiffs/ respondents prayed for a joint decree against the defendants/ appellants. The first appellate court while reversing the findings of the trial court no legal heirs were made parties so far the respondent No. 10 Ramoni Ranjan Bora is concerned. Accordingly the said decree ought not to have been passed by the learned first appellate court as the suit as a whole abated considering the nature of the decree sought for by the plaintiffs/ respondents. As such Mr. Mahanta submits that the substantial question of law No. 2 be decided in the affirmative thereby allowing the second appeal.10. Mr. RK Jain learned counsel appearing on behalf of the plaintiffs/ respondents fairly submits that if the submission is true as submitted by Mr. Mahanta then definitely the suit had abated. However on perusal of the record it is seen that the plaintiffs/ respondents as the appellants in T.A. 3/88 filed an application bearing No. 290/1999 dated 26.7.1999 referred hereinabove purportedly in order to substitute late Ramoni Ranjan Bora by his legal heirs and that too before the appeal being abated.11. The submission of Mr. Mahanta which is clearly admitted by Mr. Jain with respect to nullity of the decree cannot be faulted with the plaintiffs/ respondents inasmuch as the plaintiffs/ respondents with due diligence filed the petition for substitution which inadvertently missed the notice of the first appellate court. In such a situation this court has no other alternative but to set aside the judgment and decree passed in T.A. No. 1/2002 and remand the same to the first appellate court with a direction to consider and pass appropriate order in Petition No. 290/1999 dated 26.7.1999 and thereafter bringing the legal heirs of Late Ramani Ranjan Bora on record to hear the matter afresh and pass the judgment and decree accordingly.12. Considering the matter to be a long pending one the first appellate court shall make an endeavour to decide the appeal within a period of 5 (five) months from the date of receipt of the LCR. The parties are accordingly directed to appear before the first appellate court on 09.08.2017. It is further directed that the first appellate court considering the dispute between the parties may also send this matter for mediation if the parties express their desire.13. Accordingly this appeal is disposed of. Send back the LCR at the earliest.