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Hema Kanta Deka & Others v/s Hemendra Nath Deka & Others


Company & Directors' Information:- S R DEKA AND CO PVT LTD [Active] CIN = U15319AS1987PTC002678

Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

    Case No. RFA 1 of 2011

    Decided On, 09 April 2019

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA

    For the Appellants: R.J. Bordoloi, S. Das, Advocate. For the Respondents: P.K. Kalita, Sr. Advocate, Sheeladitya, Sheeladitya, Advocates.



Judgment Text

Judgment (Oral)

1. Heard Mr. RJ Bordoloi, learned counsel appearing for the appellants and Mr. PK Kalita, learned Senior Counsel assisted by Mr. Sheeladitya, learned Advocate, appearing for the respondents.

2. The present plaintiffs/appellants filed Title Suit No. 21/2007 in the court of learned Civil Judge No. 2, Kamrup at Guwahati seeking for the following reliefs:

That a decree may kindly be passed:

(a) declaring that the plaintiffs jointly have right title and interest and constructive possession over the suit land described in schedule A, B, C below of the extend of 50% along with the defendants by right of inheritance.

(b) declaring that no title has flown to the defendant or their predecessors vide fraudulent, forged and illegal partition deed, which is an unregistered one.

(bb) declaring that the decision of the Assam Board of Revenue as to title of the parties over the suit land vide Judgement & order dated 14.12.2005 in 68 RA (K) 2000 is not tenable, lawful and binding on the parties.

(c) by temporary and permanent injunction restraining the defendants from transferring the suit land and any part thereof in any way or from modifying the character and nature thereof by raising construction otherwise.

(d) for any of the relief to which the plaintiff may be found to be entitled.

(e) For costs of the suit.

3. Both the parties to the suit are from lineage of one Rohini Deka who had a substantive area of land in his name. He died leaving behind two sons, namely, Nagen and Tarun. The plaintiffs/ appellants are the legal heirs of Tarun Deka and the defendants are the legal heirs of Nagen Deka. The cause of action for the suit arose when the plaintiffs/ appellants could come to know that the defendants/ respondents mutated their names after the death of Tarun as his legal heirs. It was challenged before the Revenue court that the defendants/ respondents are not the legal heirs of Tarun. Rather, the plaintiffs/ appellants are the legal heirs of Tarun Deka and as such, the names of the defendants/ respondents are liable to be cancelled as the legal heirs of Tarun and the names of the plaintiffs/ appellants are to be recorded as the legal heirs of Tarun who inherited his share. The said mutation proceeding led to a dispute between the parties to the suit as a result of which the suit was filed with the reliefs stated hereinabove.

4. The defendants/ respondents denied almost all the contention made in the plaint and projected that one Balaram Deka was the predecessor-in-interest of Rohini Deka, Kamala Kanti Deka, Padma Kanti Deka and Ananda Deka. The four sons of Balaram Deka during the lifetime of their father acquired land in the Demoria Mouza in the district of Kamrup and established farmhouse and started cultivating over the said acquired land. The said four brothers decided to partition their landed property in the district of Morigaon and Demoria Mouza in the district of Kamrup and on the basis of the said decision elder brother Rohini Deka was settled with the total land in the district of Morigaon and the rest of the brothers accordingly relinquished their rights in favour of Rohini Deka. However, the name of Rohini Deka remained uncancelled in patta no. 63 of village Uttar Demoria in Demoria Mouza in the district of Kamrup. Two of his sons, Nagen and Tarun during the lifetime of Rohini Deka started living separately as two different families over the vast landed properties of Rohini Deka. After the death of Rohini Deka, the said Nagen and Tarun decided to divide their paternal properties by calling village ‘Mel’ and on the basis of the said arrangement the father of the defendants/ respondents relinquished his right over the properties settled with his brother Tarun Deka. Though, Tarun Deka also consented to relinquish the settled portion in favour of Nagen but due to negligence the name of Tarun Deka remained in the land records along with Nagen Deka. It is further pleaded that as per the arrangement the entire land of their grandfather in Morigaon district belonged to their uncle Tarun whereas the land of their grandfather situated in Demoria Mouza belonged to their father Nagen Deka. Due to the said negligence during the lifetime of Tarun, after his death the defendants/ respondents filed a petition before the Circle Officer, Sonapur Revenue Circle to delete the name of Tarun Deka and mutate the names of defendants/ respondents as the legal heirs of Nagen Deka which the Circle Officer accordingly allowed. The said recording of the names of the defendants/ respondents led to various cases before the Additional Deputy Commissioner, Kamrup, Assam Revenue Board and finally in WP(C) No. 873/2006 the names of the defendants/ respondents were allowed to be recorded in compliance of the order passed earlier by the Circle Officer, Sonapur Revenue Circle. In the written statement it was also pleaded that the said fact of settlement was recorded in a settlement deed and signed by both Nagen and Tarun Deka. This fact of the settlement deed was disputed by the plaintiffs/ appellants on the ground that Tarun Deka did not sign the said settlement deed. Accordingly, after taking a specific plea in the written statement that the suit is hit under the provision of Section 34 of the Specific Relief Act, 1963 (hereinafter referred to as ‘the Act’), the defendants/ respondents sought for dismissal of the suit.

5. The learned trial court on the basis of pleadings of the parties framed the following issues:

1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable?

3. Whether the alleged unregistered deed of partition is legal, valid and binding on the parties?

4. Whether the plea of partition taken by the defendant without any registered document in support thereof is tenable?

5. Whether the defendants have exclusive right, title, interest and possession over the suit land described in the schedule of the plaint?

6. Whether the plaintiff is entitled to declaration as to joint title and constructive possession over the suit land?

7. Whether the decision of the Assam Board of Revenue as to exclusive title of the defendants over the suit land vide order dated 14/12/05 is legal, tenable and valid?

8. Whether the suit property was partitioned by the predecessor of the parties as claimed by the defendants?

9. Whether the plaintiff is entitled to relief as prayed for?

10. To what other relief/reliefs the parties are entitled?

6. During the course of the trial, the plaintiffs/ appellants examined 7 witnesses and on the other hand, the defendants/ respondents examined 4 witnesses. The learned trial court decided the issues, more specifically, issue nos. 1, 3 and 4 in favour of the plaintiffs/ appellants. The learned trial court dismissed the suit by holding that the suit is not maintainable under Section 34 of the Act. Being aggrieved, the plaintiffs/ appellants have filed this appeal under Section 96 of the CPC.

7. Mr. Bordoloi submits that the plaintiffs/ appellants sought for declaration of their joint right, title and interest along with the defendants/ respondents over the entire land described in Schedules A, B and C in the plaint. The trial court came to the finding that as the plaintiffs/ appellants failed to seek for relief of the partition of the suit land as such the learned court below was wrong inasmuch as the declaration sought for by the plaintiffs/ appellants ought to have been declared inasmuch as the issues which were framed keeping in view the pleadings of the parties were decided by the trial court in favour of the plaintiffs/ appellants but because of the bar as held by the trial court the said declaration was not made in favour of the plaintiffs/ appellants. It is further submitted that there is no bar in giving a declaration simpliciter in a suit. It is further submitted that in fact the suit is not for declaration simpliciter inasmuch as the consequential relief as required under the proviso of Section 34 of the Act is very much sought for in the form of permanent injunction. Whether the plaintiffs/ appellants are entitled to the said relief or not that is upto the court but the suit fulfils the criteria as required under Section 34 of the Act. Moreover, Section 34 is not exhaustive. Rather, in such a situation the court can grant a decree of declaration simpliciter under Section 9 of the CPC. The trial court had already held while deciding issue nos. 3 & 4 that the suit property is not partitioned and this amounts to the declaration sought for by the plaintiffs/ appellants and under Section 9 of the CPC there is no bar in granting the declaration and as such, the court below failed to apply its jurisdiction in the proper manner.

8. Mr. Kalita, learned Senior Counsel, on the other hand, fairly submits that without seeking for partition the plaintiffs/ appellants are not entitled for the reliefs which is in the consequential form of permanent injunction. On one hand, the plaintiffs/ appellants have sought for the relief of their joint possession as the co-sharers with the defendants/ respondents. On the other hand, the plaintiffs/ appellants have also sought for granting permanent injunction from alienating and/or carrying out construction on the suit land by the defendants/ respondents who are admittedly the co-sharers as per factual matrix in the plaint. The said reliefs under no circumstances can be granted by the court below keeping in view the various provisions of the Transfer of Property Act, more specifically, Section 44 of the said Act. According to Mr. Kalita, if the factual matrix of the pleadings in the plaint is considered there is no error nor the findings on issue no. 2 can be held to be incorrect, moreso, when there is a specific pleading in the written statement that the suit is hit under Section 34 of the Act. To that effect, a specific issue is also framed and under Order XX Rule 5 of the CPC, the court is bound to decide each and every issue while passing the judgment and keeping in view the specific plea of maintainability taken in the written statement, the court rightly decided the same keeping in view the factual matrix pleaded in the plaint.

9. Mr. Bordoloi in reply to the submission of Mr. Kalita, submits that the court below ought to have exercised its jurisdiction under Order VII Rule 7 of the CPC by moulding the relief and even if the plaintiffs/ appellants are not entitled to the relief it ought to have granted, the declaration as sought for to the extent that they are the joint owners over the suit property along with the defendants/ respondents. In support of his contention, Mr. Bordoloi relies on the case law of Guneshwar Rajbongshi v. Kamaleswar Rajbongshi and another reported in 2012 (2) GLT 872 and submits that as held in the said decision, a person while seeking a declaration of his co-ownership of his suit property, may not if he does not so desire to seek partition of the suit property so long as a joint owner of the suit and his relationship with other members of his family/ co-owners is continued. In the second appeal, as relied upon by Mr. Bordoloi, a similar dispute was before this Hon’ble Court wherein the maintainability of a suit wherein the relief of partition was not sought for by the plaintiff was questioned under Section 34 of the Act. There in the first appellate court held that the suit was not maintainable under Section 34 of the Act as no relief of partition was sought for. Setting aside the said finding of the first appellate court it was held that Section 34 of the Act does not compel a plaintiff to seek all reliefs which he may otherwise be entitled to nor Section 34 debars a plaintiff to obtain a relief which he wants, unless he, at the same time ask for a relief which he had not sought for.

10. From the submissions of the learned counsel for the parties, the point for determination before this court is “Whether the findings, more specifically, finding in issue no. 2 is correct by the trial court”.

11. I have given due consideration to the submissions of the learned counsel appearing for the parties. Section 9 of the CPC stipulates Courts to try all civil suits unless barred. A suit in which the right to property or to an office is contested is a suit of civil nature notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. The explanation attached to Section 9 of the CPC gives a wide jurisdiction to a Civil Court. The only criterion is that the plaintiff as the dominus litus must claim a right to property. Section 34 of the Act stipulates the discretion of the court as to declaration of status or right. Any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right and the court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief. However, the proviso to the said Section 34 states that no court shall make any such declaration where the plaintiff being able to seek further relief then a mere declaration of title omits to do so.

12. Considering the proviso to Section 34 of the Act, I would like to come to the provision under Order II Rule 2 of the CPC. Order II CPC prescribes the frame of suit and Rule 1 stipulates that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. But a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Besides such relinquishment, a person is entitled to omit more than one relief in a suit arising out of the same cause of action with the leave of the court. If the provisions of Order II Rules 2 & 3 are taken up together, it can be inferred that Section 34 along with its proviso is not exhaustive inasmuch as suit under Section 9 of the CPC permits a plaintiff not to claim all the reliefs, subject to leave of the court. Accordingly, the learned court below considered the factual matrix in the plaint and held that it is an admitted fact that the defendants are in the possession of the suit land in dispute and not the plaintiff and in the event of passing a decree in favour of the plaintiffs it will remain a paper decree and the same will never be executed. The court below taking the intent of law for passing a declaratory decree under Section 34 of the Act as discretionary and as the plaintiffs/ appellant failed to pray for partition of the properties and for recovery of possession of their claimed shares finally held that prayer for permanent injunction is not the further relief. Rather, the plaintiffs/ appellants ought to have prayed for partition of the suit properties. Having not done so, the suit is not maintainable. I am unable to agree to the said finding keeping in view the provisions of Order II of the CPC and Section 9 of the CPC. In Guneshwar Rajbongshi v. Kamaleswar Rajbongshi and another (supra) it is stated that mere non-asking of the relief of partition cannot be held to be bad in law. The Hon’ble Apex Court in catena of decisions held that declaration simpliciter can be given by a court under Section 9 of the CPC and in the present case in hand, the court below however stuck up to Section 34 of the Act without any deviation therefrom. Accordingly, the finding of issue no. 2 is reversed.

13. The learned court below took up issue nos. 3 & 4. The said issues encircle whether the unregistered deed of partition is legal, valid and binding on the parties and whether the plea of partition taken by the defendant without any registered document in support thereof is tenable. The plaintiffs/ appellants in the plaint pleaded that in the proceedings before the Revenue court it was the plea taken by the defendants/ respondents that there was an amicable partition of the suit land between Nagen and Tarun by way of an unregistered deed of family settlement wherein both Tarun and Nagen put their signatures. The said deed was challenged on the ground that it was never executed by the predecessor-in-interest of the plaintiffs/ appellants, Late Tarun Deka. On the other hand, in the written statement the said stand of forgery of the unregistered partition deed was specifically denied by the defendants/ respondents. It is stated that both the brothers decided to divide their paternal properties by way of a village ‘mel’ leaving aside the movable properties like ornaments etc. Subsequent thereto, both Nagen and Tarun went to the office of the SDC, Nagaon with an intention to withdraw their respective names from the Records of Rights. It is further stated that Tarun Deka also gave written consent to withdraw his name from land of Demoria mouza in the district of Kamrup but due to negligence and absence of SDC concerned on various dates the cancellation of name of Tarun Deka from the patta of Demoria mouza was not done. By pleading that the unregistered family partition deed was forged on the ground that Tarun did not sign, itself goes to show that the burden to prove the said fact of forgery is upon the plaintiffs/ appellants. The trial court rightly held that the burden lies upon the plaintiffs/ appellants in order to prove the forgery. The fact of partition on the basis of the village ‘mel’ and on the basis of the family settlement is the defence taken by defendants/ respondents in support of their contention that their names were rightly recorded in the record of right. The learned trial court came to the finding that the defendants/ respondents failed to produce the original partition deed and also to prove the fact that there was a partition of the properties. The court below took note of the fact that the defendants/ respondents asserted that the partition was carried out by a deed of settlement and as they failed to produce the original, the issue no. 4 was decided against the defendants/ respondents holding that there was no partition of the suit properties as claimed by the defendants/ respondents.

14. Mr. Kalita relying on Exhibit C submits that on the basis of the said consent letter purportedly signed by Tarun Deka on 11.05.1966 the Land Revenue officials granted the mutation in the name of the defendants/ respondents. Without assailing the finding in issue no. 4, Mr. Kalita wants to project that on the basis of the said Exhibit C Tarun Deka relinquished his claim in favour of the predecessor-in-interest i.e. Nagen Deka of the defendants/ respondents. Partition in the true sense must be by metes and bounds. However, some sort of arrangement from the Exhibit C can be inferred. But that itself cannot be the substitute piece of evidence on the clear stand taken by the defendants/ respondents that on the basis of unregistered settlement deed the partition took place amongst Nagen Deka and Tarun Deka. The learned court below referring Section 91 of the Indian Evidence Act and keeping in view the contention of the plaintiffs/ appellants and the defendants/ respondents held that no partition took place between the predecessors-in-interest of the parties to the suit. I do not find any error in the said findings considering the fact that the defendants/ respondents failed to produce the original of Exhibit B (Settlement Deed). On the other hand, the burden taken by the plaintiffs/ appellants also remained not discharged and rightly the court below came to the conclusion that no partition took place with respect to the suit land.

15. Keeping in view the finding in issue no. 4, the court below held the findings in issue nos. 5 & 8 against the defendants/ respondents holding that the defendants are not entitled for exclusive owners with right, title and interest and possession over the suit land and in addition to that there was no partition by the predecessors-in-interest of the parties as claimed by the defendants/ respondents.

16. There is no dispute between the parties that the suit land originally belonged

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to one Rohini Deka and Nagen and Tarun are his sons who are the predecessors-in-interest respectively of the defendants/ respondents and the plaintiffs/ appellants. If the issue nos. 5 & 8 are decided against the defendants/ respondents, the issue no. 6 is to be decided declaring the joint title with the defendants/ respondents over the suit land. It is only because of the finding that the suit as per the court below is hit under the proviso to Section 34, the court below held that the suit is not maintainable. But as the said finding is reversed, in my opinion, the issue no. 6 is to be decided in favour of the plaintiffs/ appellants. The plaintiffs/ appellants in their plaint sought for declaration of their right, title and interest and constructive possession over the suit land to the extent of 50% along with the defendants by right of inheritance. The said relief cannot be granted except granting that the plaintiffs/ appellants and the defendants/ respondents are holding the suit property jointly and they are co-owners. 17. The plaintiffs/ appellants are not entitled for the relief of permanent injunction restraining the defendants/ respondents by way of permanent injunction from alienating the suit land and from carrying out construction and/or changing the nature of the suit land inasmuch as under Section 44 of the Transfer of Property Act, co-owners can transfer their respective shares. In order to get that relief, the plaintiffs/ appellants ought to have sought for the relief of partition. Having not done so, the plaintiffs/ appellants are not entitled to the relief of permanent injunction inasmuch as once the suit land is held to be joint property then the defendants are co-sharers with them and co-sharers cannot restrain other co-sharers from enjoying the joint property until and unless, the plaintiffs sought for partition and recovery of possession of their shares if the situation demands. 18. In view of the findings of the said issues, this appeal succeeds partly to the extent that the suit is maintainable and the suit land is not partitioned and the plaintiffs/ appellants and the defendants/ respondents are the co-sharers with respect to the suit land. 19. Send back the LCRs. No costs.
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