RFA No. 31 of 2008. Case: Gauri Shankar Agarwalla Vs Madanlal Agarwalla and Ors.. Guwahati High Court
| Case Number | RFA No. 31 of 2008 |
| Counsel | For Appellant: G.N. Sahewalla, Md. Aslam, D. Senapati and M. Jain, Advs. And For Respondents: R.L. Yadav and A. Kalora, Advs. |
| Judges | Ranjan Gogoi and C.R. Sarma, JJ. |
| Issue | Assam Municipal Act - Sections 296 and 326; Hindu Succession (Amendment) Act, 2005 - Section 6; Hindu Succession Act, 1956 - Section 8; Hindu Gains of Learning Act, 1930; Registration Act - Sections 17(1), 35A and 49; Civil Procedure Code (CPC) - Section 80 - Order 21, Rule 24 - Order 41, Rules 24 and 33; Assam Land and Revenue Regulation, 1886... |
| Citation | (2011) 2 GLR 171 |
| Judgement Date | August 26, 2010 |
| Court | Guwahati High Court |
Judgment:
C.R. Sarma, J.
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This appeal is directed against the judgment and decree, dated 11.8.2008 and 18.8.2008 respectively passed by the learned Civil Judge, Tinsukia, in Title Suit No. 66/2006. The Plaintiff's suit being dismissed by the learned trial Judge, the Plaintiff, as Appellant, has come up with this appeal.
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The Plaintiff's case, in brief, may be stated as below: -
The Plaintiff is the absolute owner of 1 katha, 11/2 lessas of land appertaining to a part of Dag No. 1337(New)/458(01d) of periodic patta No. 422(Old)/1160(New), situated at Tinsukia Town Ekma Khanda-3, Mouza-Tinsukia, and another plot of land measuring 4 kathas, 11 lessas, covered by Dag No. 1313, 1334, 1338 of periodic patta No. 250 situated at Tinsukia Town Ekma Khanda-1, Mouza-Tinsukia, along with the residential building and the shop houses standing thereon. The residential building and rented premises are covered by Holding No. 2343 and 2343(a) of Tinsukia Municipal Board. The suit property has been fully described in the schedule to the plaint.
In order to avoid quarrel, among his sons (Defendant Nos. 1 to 3), the Plaintiff permitted his sons, i.e., the Defendant Nos. 1, 2 and 3 to reside separately, since 2000, with the arrangement that the Defendant No. 1 was allowed to reside with his family in the first floor while the Defendant No. 2 was allowed to reside with his family in the second floor of the building, standing on the suit premises. The Defendant No. 3 was allowed to reside in the house situated at Delhi. The ground part of the said building at Tinsukia was divided into two parts and each of the Defendant Nos. 1 and 2 were allotted one part in the ground floor of the building as permissive occupier, to run their businesses, for maintaining their livelihood.
But, the Defendant No. 2, vide order passed in Mutation Case No. 180/ A, got his name mutated in respect of land measuring 3 kathas, 9 lessas, covered by Dag No. 1337 (in part) of P.P. No. 1160 and Dag No. 1138 (in part) and 1334 of P.P. No. 250, which was a part of the suit land as described in Schedule-'A' to the plaint and obtained separate Dag Nos. 1660, 1661 and 1662 of P.P. No. 2142. Similarly, the Defendant No. 1 also, vide Mutation case No. 475/02, got his name mutated in respect of Schedule-'B' land measuring 2 kathas, 18 lessas covered by Dag Nos. 1334, 1338 of P.P. No. 250 and Dag No. 1337 of P.P. No. 1160. The Defendant No. 3 too, vide Mutation Case No. 188(A) of 2005-06, got his name mutated, in respect of land covered under Dag No. 1338 (in part) of P.P. No. 250 in respect of land measuring 1 katha, 18 lessas as described in Schedule-'C' to the plaint.
According to the Plaintiff, after receipt of the notice in the mutation case aforesaid, he raised objection and approached the Circle Officer, with a prayer for cancellation of the said mutation order, but the Defendant Nos. 1, 2 and 3 managed to get their names mutated and obtained separate pattas and holding numbers, as aforesaid. It is also averred that the Defendant No. 2, without having right, title and interest over the suit land and without any permission from the Tinsukia Development Authority, started construction of a shed measuring 15 ft. x 25 ft. with C.I. Sheet roof and wooden post and completed the same on 1.11.2006 thereby covering the water tank and the broken pillars of the tank, situated on the third floor of the building, which has been described in Schedule-'B' to the plaint.
According to the Plaintiff, the Defendants have no right, title and interest over the suit premises and they are just permissive occupiers. Hence, the Plaintiff instituted the suit for -
(i) declaration of right, title and interest over the suit properties;
(ii) declaration that the mutation in the name of the Defendant Nos. 1, 2 and 3 in respect of Schedule-'A', 'B' and 'C' land and the allotment of new holding number to the Defendant No. 2 were illegal and liable to be cancelled;
(iii) declaration that the construction of shed/structure by the Defendant No. 2 on the top of the 3rd floor of the building situated in 'D' Schedule land was illegal and liable to be demolished;
(iv) mandatory injunction with other consequential reliefs restraining the Defendant No. 2 from transferring or alienating the 'A' Schedule property.
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The Defendant No. 1, by filing a written statement, stated that he had no objection, if the mutation, granted in his favour, was cancelled.
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The Defendant Nos. 2 and 3 contested the suit by filing their respective written statements. Taking the pleas, that the suit was not maintainable, that the suit was barred by principles of waiver and estoppel, that the suit was hit by the provisions of Section 154 of the Assam Land Revenue Regulation, 1886 and Section 296 of the Assam Municipal Act, the contesting Defendants, in their written statements, contended, inter alia, that the entire suit-property belonged to a "Hindu Undivided Family" (HUF) known as "M/s. Chandulal Gaurishankar" of which the Plaintiff was the karta and the Defendants Nos. 1, 2, 3 and Sri Mangtu Ram Agarwalla were the coparceners in respect of the property belonging to the said HUF. The contesting Defendants further contended that, due to some dispute between the members of the said HUF with regard to the common enjoyment and possession of the HUF properties, the dispute was referred to some mediators namely Sri Ram Nagina Singh (since deceased), Sri Bijoy Kumar Garodia and Sri Arun Kumar Jalan for amicable settlement and that, at the intervention of the said mediators, the parties arrived at a mutual settlement, followed by a Memorandum of Understanding ('MoU') dated 9.9.2000 (Ext. No. A) and accordingly, as agreed to by all the coparceners, on the basis of the said Ext. No. A, the HUF property was mutually allotted amongst the coparceners of the said HUF and, thus, following the said settlement/ arrangement, the property, mentioned in Schedule-'A', was allotted to the Defendant No. 2, while the property described in Schedule-'B' and Schedule-'C' were allotted to the Defendants Nos. 1 and 3 respectively.
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The answering Defendants contended that the Plaintiff, despite having knowledge about mutation cases, mentioned hereinabove, did not prefer any appeal before the Revenue authority and as such, the Plaintiff's suit for cancellation of mutation, granted in favour of the Defendants, was barred by Section 154 of the Assam Land Revenue Regulation, 1886. The Defendants further averred that the suit was bad for non-service of notice under Section 80 of the Code of Code of Civil Procedure ('Code of Civil Procedure') and Section 326 of the Assam Municipal Act.
In the premises aforesaid, the contesting Defendants prayed for dismissal of the suit.
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The Defendant No. 4, i.e., the Circle Officer, also submitted a separate written statement contending, therein, that the suit was bad for want of notice under Section 80, Code of Civil Procedure. This Defendant averred that the mutation was granted in favour of the Defendants in accordance with the provisions of law.
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Upon the pleadings of the parties, the learned trial Judge framed the following issues for decision: -
(i) Is there any cause of action for the suit?
(ii) Is the suit maintainable?
(iii) Is the suit properly valued and stamped?
(iv) Whether the Plaintiff has right, title and interest over the suit land?
(v) Whether the mutation order dated 15.10.2004 and partition granted in favour of the Defendant No. 2 in respect of the Schedule-'A' land creating separate dags and patta is illegal and inoperative?
(vi) To what relief/or reliefs, the Plaintiff is entitled to?
(vii) Is the suit property belong to HUF?
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In support of his case, the Plaintiff examined himself as PW1 and he was cross-examined on behalf of the Defendant Nos. 2 and 3. The Defendants did not examine any witness.
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By the impugned judgment and order under appeal, the suit filed by the Appellant was dismissed resulting in this appeal.
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We have heard Mr. G.N. Sahewalla, learned senior counsel appearing on behalf of the Appellant and Mr. R.L. Yadav, learned Counsel appearing for the Respondents and perused the record.
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Mr. Sahewalla, learned senior counsel, assailing the impugned judgment and order, has submitted that the suit property is the self-acquired property of the Plaintiff and that the learned trial Judge committed error by holding the same to be a HUF property and also that the Defendants Nos. 1, 2 and 3, who were the sons of the Plaintiff, had acquired right, title and interest in respect of the said property by their birth. It is also submitted, on behalf of the Appellant, that the suit property was never a HUF property and that, in order to avoid family dispute/quarrel amongst his sons, the Appellant had allowed his sons to enjoy the property separately only for earning their livelihood and that there was no actual partition of the said property. It is further contended that, even if the property is treated to be a HUF or joint property then also, the Defendants, in view of absence of any partition, in accordance with law, were not entitled to get their names mutated and that the learned trial Judge wrongly decided the issue Nos. 4 and 7.
In support of his contention, Sri Sahewalla, learned senior counsel, for the Appellant, has relied on the following decisions: -
(1) Yudhistir v. Ashok Kumar (1987) 1 SCC 204.
(2) P.N. Venkatasubramania Iyer v. P.N. Easwara Iyer AIR 1966 Mad. 266.
(3) Nani Bai v, Gita Bai AIR 1958 SC 706.
(4) P. Kaliappa Goundar and Ors. v. Muthuswamy Mudaliar AIR 1987 Mad. 24.
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Refuting the said argument, advanced on behalf of the Appellant, Mr. R.L. Yadav, learned Counsel, appearing for the contesting Respondents has submitted that, in view of the admission of the Plaintiff, in his cross-examination, that the suit land was inherited by him from his father as the only heir of his deceased father and the Plaintiff and his sons, being governed by the Mitakshara...
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