Gauhati High Court
On The Death Of Bhabani Prasad Rabha His ... vs Dayabati Rabha on 26 August, 2015
Author: A. K. Goswami
Bench: A. K. Goswami
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
R.S.A. NO. 1/2007
On the death of Bhabani Prasad Rabha, his legal heirs,
(i) Podali Rabha (widow)
(ii) Swarnalata Rabha (Daughter)
(iii) Paresh Rabha (Son)
(iv) Binapani Rabha (Daughter)
(v) Monoranjan Rabha (Son)
(vi) Jayanti Rabha (Daughter)
(vii) Karunakanta Rabha (Son)
(viii) Anil Kumar Rabha (Son)
All are residents of Kalajhar,
P.O. & P.S. - Dudhnoi,
District - Goalpara, Assam.
.......APPELLANTS
- Versus -
1. Smti Dayabati Rabha,
Wife of Shri Bareswar Rabha,
2. Shri Bareswar Rabha,
Father's name is not known to the appellant.
3. Sri Halasan Rabha,
Son of Late Boloram Rabha,
All residents of Village - Kalajhar,
P.O. & P.S. - Dudhnoi,
District - Goalpara, Assam.
......... RESPONDENTS
BEFORE
HON'BLE MR. JUSTICE A. K. GOSWAMI
For the Appellants : Mr. S.K. Ghosh, Advocate.
For the Respondents : Mr. A. Adhikari, Advocate.
Date of hearing & Order : 26.08.2015
JUDGMENT AND ORDER (ORAL)
Heard Mr. S.K. Ghosh, learned Counsel for the appellants. Also heard Mr. A. Adhikari, learned counsel for the respondents.
R.S.A. No. 1/2007 1|Page
2. The plaintiff has filed the second appeal against the judgment and decree dated 21.06.2006, passed by the learned District Judge, Goalpara in Title Appeal No. 2/2003, dismissing the appeal and upholding the judgment and decree dated 23.05.2003, passed by the learned Civil Judge (Senior Division), Goalpara in Title Suit No. 6/2000, whereby the suit of the plaintiff was dismissed.
3. The defendant No. 1 in the suit is daughter of Hemkanta Rabha and defendant No. 2 is her husband. Defendant No. 3 is a villager of the same village, of which, the defendant Nos. 1 and 2 are resident. Plaintiff Bhabani Prasad Rabha, Hemkanta Rabha and Bhong Rabha were three brothers. Bhong Rabha is the owner and possessor of 22 Bigha 3 Katha 1 Lecha of land as described in the schedule of the plaint. Bhong Rabha died in the year 1990 unmarried, leaving his two brothers as heirs. It was alleged in the plaint that the plaintiff was dispossessed from 4 Bigha 1 Katha 5 Lecha of land on 06.07.1999, which he was possessing during the life time of Bhong Rabha and the land was also mutated in his name. It is also alleged that defendant No. 3 along with other persons had been obstructing the plaintiff from taking possession of the land. It is the pleaded case of the plaintiff that the plaintiff is entitled to properties left behind by Hemkanta Rabha as he died leaving no male issue and survived by only defendant No. 1 daughter, who was also married, in view of the fact that according to old Hindu law and Rabha Customary Law, a married daughter is not entitled to inherit the properties of her father. Thus, the claim set up is that the plaintiff is entitled to the entire property which earlier belonged to Late Bhong Rabha.
4. The Plaintiff had prayed for the following reliefs:
"(i) declaration that the plaintiff is entitled to the properties i.e. the suit lands left by Bhong Rabha and Hemkanta Rabha,
(ii) possession of the suit lands,
(iii) injunction restraining the defendants and the villagers of the Kalajhar village not to disturb the plaintiff in taking possession of the suit lands and afterwards in his peaceful possession of the suit lands,
(iv) cost of the suit, R.S.A. No. 1/2007 2|Page
(v) any other relief to which the plaintiff is entitled in law and equity."
5. The defendant No. 1 filed written statement stating, amongst others, that the plaintiff fraudulently got his name mutated in respect of 4 Bigha 1 Katha 5 Lecha of land and that she had filed objection to cancel the aforesaid mutation. It is asserted that Hindu Succession Act, 1956, for short, the Succession Act, is applicable to the Rabha community. As Bhong Rabha was suffering from leprosy, the plaintiff shifted to a distance place. However, father of the defendant No. 1 nursed the ailing Bhong Rabha, provided shelter to him, and ultimately, he did in his place. Bhong Rabha executed an unregistered sale deed and delivered possession to the father of the defendant No. 1 on 12.07.1990 promising to execute a registered sale deed. But before execution of the sale deed, Bhong Rabha died.
6. On the basis of the pleadings, the following issues were framed by the learned Trial Court.
"1. Whether there is cause of action for the suit filed by the plaintiff Shri Bhabani Prasad Rabha?
2. Whether the defendant No. 3 along with other villagers dispossessed the plaintiff from 4 B - 1 K - 5 L of land covered by Dag No. 64 of village Ghorapota under Matia Circle?
3. Whether the plaintiff got his name mutated fraudulently in collusion with officials?
4. Whether the Hindu Succession Act, 1956 is applicable to the Rabhas?
5. Whether Rabha customary law empowers daughter to inherit father's property?
6. Whether the plaintiff is entitled to the properties i.e. the lands left by Bhong Rabha and Hemkanta Rabha?
7. Whether Bhong Rabha sold his 22 B - 3 K - 1 Lecha to Hemkanta Rabha by unregistered sale deed and gave delivery of possession of the same in presence of some villagers on 12.7.90. Whether suit land owned and possessed by father of defendant No. 1?
8. Whether the plaintiff has no right, title and possession to the suit land?
9. To what relief/reliefs the parties are entitled to get?"
R.S.A. No. 1/2007 3|Page
7. Both the Courts below had held that the Succession Act applies to the Rabhas. The learned Trial Court, though dismissed the suit of the plaintiff, recorded the finding that Exhibit - 'Ka', unregistered sale deed, was inadmissible in law and that the same cannot be treated to be a valid document.
8. The learned lower Appellate Court held that the defendant No. 1 is only entitled to inherit half of the property of Bhong Rabha as the Succession Act is applicable to the parties and the plaintiff is not entitled to inherit the suit land as the only legal heir of Late Bhong Rabha.
9. This second appeal was admitted to be heard by an order passed on 05.01.2007 on the following substantial questions of law:
"(i) Whether the learned appellate Court below committed error in not declaring the title of the plaintiff over half of the suit land on the basis of his findings on title vide para 14 of the judgment?
(ii) Whether Hindu Succession Act, 1956 applies to Rabha Community, which is a schedule tribe?"
10. At the hearing, Mr. S.K. Ghosh, learned counsel for the appellants has submitted that he will not be urging substantial question of law No. 2 and will confine his argument only to substantial question of law No. 1. Learned counsel for the appellants submits that the learned lower Appellate Court having held that the plaintiff is also entitled to inherit property left behind by Late Bhong Rabha in equal share along with defendant No. 1, ought to have declared right, title and interest of the plaintiff to half of the suit land and ought to have granted consequential relief by moulding the relief. It is submitted that in view of declaration of entitlement of the plaintiff to equal share with defendant No. 1, though in the suit the plaintiff had prayed for ejectment of the defendant from the entire suit land, the plaintiff would have been entitled to obtain possession to the extent of 50% by means of a preliminary decree to be followed by a final decree. The learned counsel submits that in these circumstances, this appeal deserves to be allowed and the case be remanded to the R.S.A. No. 1/2007 4|Page learned lower Appellate Court so that the learned lower Appellate Court can address on the issue of moulding of the relief as the circumstances of the case would permit, in view of the finding regarding entitlement of the plaintiff to 50% share in respect of the suit property.
11. Mr. A. Adhikari, learned counsel appearing for the respondents submits that the plaintiff having prayed for right, title and interest in respect of the entire suit land and recovery of possession in respect to the said land and the learned lower Appellate Court having found that the plaintiff is entitled to only equal share with the defendant No. 1, suit was rightly dismissed. Therefore, there is no merit in this appeal, he submits.
12. I have considered the submissions of the learned counsel for the parties and have perused the materials on record.
13. In paragraph 14, the learned lower Appellate Court held as follows:
"14. Now, it is clear that both the plaintiff and the defendant No. 1 are entitled to inherit the property left behind by Late Bhong Rabha in equal shares though the plaintiff claimed the entire property of Bhong Rabha. Now, if we declare that the plaintiff is entitled to half share of the property left behind by Late Bhong Rabha, it will be an impossibility to pass a decree for khas possession. Therefore, this Court cannot declare that the plaintiff is entitled to inherit the property left behind by Late Bhong Rabha and that he is also entitled to possession thereon. This issue is, accordingly, decided in the affirmative against the plaintiff."
14. If the Plaintiff was held to be entitled to the entire suit property, ejectment of the defendant No. 1 would have followed. Plaintiff prayed for a larger relief, to which, he was found to be not entitled to. But the fact remains that a categorical finding is recorded that the plaintiff is entitled to inherit equal share with the defendant No. 1. The learned lower Appellate Court dismissed the suit only on the ground that it will be an impossibility to pass a decree for khas possession. The learned lower Appellate Court did not, as rightly pointed out R.S.A. No. 1/2007 5|Page by Mr. Ghosh, advert as to whether relief could have been moulded in the circumstances of the case.
15. Order VII Rule 7 of the Code of Civil Procedure, 1908 provides that even if a general or other relief is not being categorically sought for in the plaint, such relief can always be granted by the Court by moulding the relief as if it has been prayed for. If the relief claimed in the plaint is not wholly sufficient or appropriate, under Order VII Rule 7 of the Code of Civil Procedure, 1908, the Court is vested with the power to grant proper relief according to the attending facts and circumstances of the case.
16. Considering the matter in the above perspective, agreeing with the submission of Mr. Ghosh, the judgment of the learned lower Appellate Court is set aside and the case is remanded for fresh disposal in accordance with law bearing in mind the observations made hereinabove. This Court has not expressed any final opinion on the aspect of moulding of the relief and the case is remanded to the learned lower Appellate Court only because this aspect of the matter was not considered. The learned lower Appellate Court will not, however, re-open the issue regarding entitlement of the appellant to equal share to the property left behind by Late Bhong Rabha along with defendant No.1.
17. The appeal is allowed as indicated above. No cost.
18. The parties by themselves or through their counsel will appear before the learned Court of the District Judge, Goalpara on 16.11.2015.
19. Registry will send back the records.
JUDGE
P.K. SINHA
R.S.A. No. 1/2007 6|Page