Sri Biren Das (Dhobi ) vs Sri Ram Sundar Das (Dhobi ) & 3 Ors on 12 February, 2015

[Cites 2, Cited by 2]

Gauhati High Court

Sri Biren Das (Dhobi ) vs Sri Ram Sundar Das (Dhobi ) & 3 Ors on 12 February, 2015

4. Sri Prahald Das (Dhobi) Both sons of Sri Ramsundar Das (Dhobi) Jalan Nagar P.O. & P.S. Dibrugarh, Assam ......... P roform a R espondent BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM Advocate for the Appellant :- Mr. C. Boruah, Sr. Advocate.

Advocates for the Respondent :- Mr. G.N. Sahewalla, Sr. Advocate.

           Date of Hearing & Judgment    : 12.02.2015.



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                           JUDGMENT & ORDER

Heard Mr. C. Boruah, learned senior counsel appearing for the appellants. Also heard Mr. G.N. Sahewalla, learned senior counsel appearing for the respondents.

(2) The second appeal RSA No. 26/2010 is directed against the judgment and decree dated 20.06.2009, passed by the Civil Judge, Dibrugarh in Title Appeal No. 53/2006 preferred against the judgment and decree dated 31.08.2006 passed by the Civil Judge, (Junior Division) Dibrugrah in Title Suit No.101/2005, thereby dismissing the counter-claim filed by the appellant/defendant.

(3) RSA No. 27/2010 has been filed against the judgment and decree of reversal passed by the Civil Judge, Dibrugarh in Title Appeal No.60/2006 decreeing the suit of the plaintiffs/respondents. Since both the aforementioned Second Appeals arises out of decree passed by the Appellate Court in the same proceeding between the same parties, giving rise to common question of law, hence both the appeals are taken up together for disposal.

(4) The factual matrix of the case as emerging from the record is that one Gourai Das was the original owner of a plot of land, measuring 2 bighas 3 kathas 4 lechas covered by Dag No.71 and Patta No. 71 of Dibrugarh town, Mouza-Dibrugarh. Gouri Das Dhobi died leaving behind her husband Deoraj Das, 3 (three) sonsm viz., Ram Sundar Das, Rajen Das and Biren Das as well as 4 (four) daughters viz, Smti. Chansari Devi, Alodhaney Devi, Muneswari Devi and Motikunja Devi as her legal heirs. Ram Sundor Das and Rajen Das being the 2 (two) sons of Gouri Das had Page 2 of 8 instituted the Title Suit No.101/2005 in the Court of Civil Judge, (Junior Division), Dibrugarh, interalia praying for decree for determining their individual share over the ancestral land by effecting a partition of the land in question and thereafter, passed a final decree in terms thereof. The plaintiffs have claimed that each of them being the legal heirs of Gouri Das, was entitled to 1/3 share in the suit land since the sisters had relinquished their claim over the land and in view of the fact that Deoraj Das had already gifted his share in the undivided property in favour of his 2 (two) grandsons, namely, Jaigopal Das, Prahalad Das. It was also their case that Deoraj Das during his life time had constructed a lodge in the name and style "Gouri Lodge" from his own income and, therefore, the plaintiff and defendant being his sons were entitled to and was infact enjoying the said property. However, the defendant No.1 slowly took over the property and the possession of Gouri Lodge and started running the same for his personal benefit. The plaintiff asked for a compromise, but the defendant declined the said proposal.

(5) The defendant No.1, namely, Biren Das had contested the suit by filing written statement denying and disputing the claim made by the plaintiffs in the plaint. The defendant No.1 had also filed a counterclaim, claiming his exclusive title and right over 'Gouri Lodge' by denying that the same was constructed by Deoraj Das. It was the case of the defendant No.1, that he himself had set up the 'Gouri Lodge' by making investment from his own resources and therefore, the claim of the said property as well as 1/3 share of the ancestral property made by the plaintiff was denied and disputed by him. In the counterclaim filed on behalf of defendant Nos.1 to 5 i.e., the son Biren Das and the four sisters, it was claimed that the counterclaimant had 5/7 share in the land Page 3 of 8 described in Schedule A, Schedule B and Schedule C on the ground and reasons mentioned therein. It may be pointed herein that although in the written statement cum counterclaim was shown to have been filed on behalf of the defendant Nos. 1 to 5, yet it is submitted by Mr. G.N. Sahewalla, that the same was not signed by any of the four sisters who were the defendant Nos. 2 to 5 and the same was filed under the signature of defendant No.1 alone. On the basis of the pleadings of the parties, the learned trial Court framed as many as 6 (six) issues which are as follows:

"1. Whether there is cause of action in the suit?

2. Whether the suit is maintainable in its present form?

3. Whether Deoraj Das Dhobi gifted land measuring 0B OK 17Ls in favour of Jaigopal Das and Prahalad Das and whether it was valid?

4. Whether the plaintiffs are entitled to 1/7 share of the ancestral property including income of Gouri lodge?

5. Whether the defendants are entitled to counter claim as prayed for?

6. Whether any other relief or the parties are entitled to?"

(6) After hearing the parties, the learned trial Court had dismissed both the suit as well as the counter claim filed by the defendants by holding them as not maintainable in the present form.

(7) Being aggrieved by the said judgment, the plaintiffs filed Title Appeal No.60/2006 before the Court of learned Civil Judge (Senior Page 4 of 8 Division), Dibrugarh, challenging the judgment and decree of the trial Court in so far as the dismissal of the Title Suit is concerned. The defendant No.1/counter-claimant filed Title Appeal No.53/2006 before the same Court challenging the judgment and decree in so far as the rejection of the counterclaim is concerned.

(8) Upon hearing the parties, learned First Appellate Court passed the judgment and decree dated 20.06.2009 allowing the Title Appeal No.60/2006 filed by the plaintiffs by decreeing the suit with a direction to prepare a preliminary decree. However, by a separate judgment and decree dated 20.06.2009, the appeal filed by the defendant Nos.1 to 5 being Title Appeal No.53/2006 was dismissed. Being aggrieved by the aforesaid judgment and decree passed in Title Appeal No.60/2006 as well as 53/2006 the defendant No.1 as appellant has preferred the second appeal No.27/2010 as well as 26/2010 respectively.

(9) On perusal of the pleadings in plaint and the written statement as well as counterclaim, it was evident that the suit was one for partition of the undivided property inherited by the parties to the proceeding from their mother, Gouri Das. From the pleadings of the case, it was apparent that the plaintiff Nos. 1 and 2 as well as defendant No. 1 was not only claiming distinct and different quantum of share over the ancestral property, but they were also making claim in respect of possession and ownership pertaining to specific areas falling under the ancestral property.

(10) Order 20 Rule 18 of the CPC enjoins a duty upon the Court to declare the rights of several parties interested in the property and if the Page 5 of 8 partition or separation cannot be conveniently made without further inquiry, then the Court may pass a preliminary decree declaring the rights of the parties interested in the property after giving such further direction as may be required. It is only after the completion of the aforesaid exercise that a direction is required to be issued to the Collector for completing the exercising in terms of Section 54 of the CPC. Therefore, when there is a dispute between the co-sharers about the quantum of share and also the right to occupy a specific portion in the undivided property, such a dispute would have to be decided by the Civil Court and a declaration in respect thereto would have to be made for the purpose of affecting a proper partition in the property. On the basis of the finding of the Civil Court a preliminary decree is required to be prepared which will be open to challenge by parties. It is only thereafter, that necessary changes in the revenue record is required to be made by the collector in terms of Section 54 of the CPC, pursuant whereupon, a final decree can be drawn up.

(11) In the case of Bimal Kumar and Ors -Vs- Shakuntala Debi and Ors reported in (2012) 3 SCC 548, the Hon'ble Apex Court, while drawing a distinction between the preliminary and the final observed as follows:

"25. In the said case, after referring to CPC by Mulla, this Court, while drawing a distinction between the preliminary and the final decree, has stated that a preliminary decree declares the rights or shares of the parties to the partition.

Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed. A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant Page 6 of 8 to the preliminary decree, the rights of the parties are finally determined and a decree is passed in accordance with such determination, which is the final decree. Thus, fundamentally, the distinction between preliminary and final decree is that: a preliminary decree merely declares the rights and shares of the parties and leaves room for some -further inquiry to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree incorporating such determination needs to be drawn up which is the final decree."

(12) On perusal of the judgment of the learned First Appellate Court, it appears that the Court below has not decided the contentious issues, more particularly those pertaining to claim of share as well as separate possession made by the respective parties viz-a-viz their claim to exclusive right over any particular portion of the undivided property. It has also not been gone into as to how a gift deed was executed by late Deoraj Das conveying title and possession to his two grandsons even before the property was partitioned amongst co-sharers. The learned First Appellate Court had decreed the suit of the plaintiff by directing preparation of a preliminary decree. However, in the absence of any decision in respect of the competing claims of share and separate possession over the ancestral property, the preliminary decree as directed to be prepared would be a futile one as the same cannot be a basis for conferring exclusive title to any of the co-sharers on the suit land.

(13) In view of the above, the impugned judgment and decree, both dated 20.06.2009 passed by First Appellate Court in Title Appeal No.60/2006 as well as Title Appeal No.53/2006 are not sustainable in the eye of law and the same are hereby set aside. The entire matter would now be remanded back to the First Appellate Court with a direction to decide the contentious issues pertaining to specific claim of shares and Page 7 of 8 separate possession made by the respective parties in the undivided property in accordance with the mandate of Order 20 Rule 18 of the CPC. An endeavour shall be made to complete the exercise as indicated above as expeditiously as possible, preferably within a period of 6 (six) months from the date of receipt of the records. Learned First Appellate Court will now decide both the Title Appeal No. 53/2006 and 60/2006 on merit without being influenced by any observation made in this order.

(14) The parties are directed to appear before the First Appellate Court on 23.03.2015 for further order(s). Having regard to the facts and circumstances of the case, there would be no order as to costs. Both the second appeals stand disposed of in terms of the direction made above. Registry to send back the records urgently.

JUDGE Anamika Page 8 of 8

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