CRP 5(K)/2015. Gauhati High Court

Case Number:CRP 5(K)/2015
Judgement Date:May 24, 2020
Court:Gauhati High Court
 
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I N THE GAUHATI HI GH COURT

(THE HI GH COURT OF ASSAM, NAGALAND, MI ZORAM AND ARUNACHAL PRADESH)

KOHI MA BENCH

Civil Revision Petition No.5 ( K) of 2015.

  1. Smt i. Limasenla Ao

    W/ o Lat e B. S. Sharma Resident of House No. 151

    Lingrij an, Dimapur, Nagaland.

  2. Shri. Tiachung Ao

    S/ o Lat e B. S. Sharma Resident of House No. 151

    Lingrij an, Dimapur, Nagaland.

    . . . .. . .. . .. Petitioners

    -Versus-

  3. Shri. Arun Met ha

    Husband of Lat e Rit ikha Met ha

    Resident of House No. 183

    Apna Hot el Complex

    Nyamo Lot ha Road

    Dimapur, Nagaland.

    1(a). Ms. Esha Met ha D/ o Arun Met ha

    R/ o House No. 183, Apna Hot el Complex

    Nyamo Lot ha Road

    Dimapur, Nagaland.

    (impleaded as respondent No. 1 and 2 vide order dat ed

  4. 03. 2016)

    1(b). Mr. Siddart h Met ha

    S/ o Arun Met ha

    House No. 267, 3rd f loor

    Opposit e DDA Market

    Arj un Market , Saf darj ung

    New Delhi-110029.

  5. Mrs. Arenla Jamir

    W/ o Lat e Deepak Sharma

    R/ o Chungt ia village

    Mokokchung, Nagaland.

  6. Miss Yapangnaro Longchar D/ o Lat e Deepak Sharma

    R/ o. Chungt ia village

    Mokokchung, Nagaland.

    . . .. Respondents/ Plaintiffs

  7. Smt i. Basant i Devi Sharma

    W/ o Lat e B. S. Sharma

    Resident of House No. 183

    Apna Hot el Complex

    Nyamo Lot ha Road

    Dimapur , Nagaland.

  8. Shri. Suraj Sharma

    Son of Lat e B. S. Sharma

    Resident of House No. 183

    Apna Hot el Complex

    Nyamo Lot ha Road

    Dimapur, Nagaland.

  9. Smt i. Rachna Sharma

    D/ o of Lat e B. S Sharma. And

    W/ o Shri. Bharat Bhushan Sharma

    Resident of Punj ab Hot el

    Near Jyot i Cinem Hall

    Lumding, Assam.

  10. Shri. Bikram Sharma

    S/ o of lat e Bharat i Sharma

    Resident of Kalibari

    Lumding. Assam.

  11. Shri. Aman Sharma

    S/ o of lat e Bharat i Sharma

    Resident of Kalibari

    Lumding, Assam.

  12. Mrs. Mano Peseyie

    W/ o Shri. Thekhrubi Peseyie

    Resident of Half Nagarj an

    Dimapur, Nagaland.

    . ... . . .Profoma respondents/ Defendants

    -BEFORE-

    HON’ BLE MR. JUSTICE S. SERTO

    For t he pet it ioners : Mr C. T. Jamir, Sr. Adv.

    Mr. Wat i Jamir,

    Mr. N. Longkumer,

    Mr. Imkong Jamir,

    Ms. Amen Anichar,

    Mr. Pokyim Yaden,

    Mr. Yalemsen Ao, Advs.

    For t he respondent No. 1 & 2 : Mr. B. C. Talukdar

    Mr. Pf osekho, Advs.

    For t he prof oma respondent No. 5 : Mr. Akum Pongen,

    Mr. P. Chandra,

    Mr. Moa Jamir,

    Mr. Aonungsang Pongen, Advs.

    Dat e of hearing : 04. 04. 2017

    Dat e of j udgment : 24. 05. 2017

    JUDGMENT & ORDER (CAV)

    This is a revision petition filed under Article 227 of the constitution of India read with Section-115 of Code of Civil Procedure 1908, praying for quashing and setting aside the order dated 26.06.2015 passed by the District Judge, Dimapur in Civil Misc Case No. 19/ 2015 connected with Civil Suit No. 3/ 15.

  13. The brief facts leading to the filing of the petition are as follows:

    The respondent No. 1 to 3 filed a Civil Suit before the District Judge, Dimapur being No.3/ 2015 claiming that they are entitled to 1/ 7th share in a plot of land measuring O0B-01K-15Ls, covered by patta No.381, Dag No. 620 of Block No.6, Dimapur Town, Dimapur Mouza 1 and the building standing therein. The basis of their claim as stated in that suit is that during the lifetime of late B.S. Sharma whom they claimed was the Karta of their Joint Hindu family under Mitak-shara Hindu law jointly shared and enjoyed the suit property and all the benefits which accrued there to. But to their shock and surprise they came to know that the suit property had been sold by the petitioners in this case (defendant No.2 & 5 in the suit) by a sale deed dated 30.05.2013. Therefore, they filed a Civil Suit for declaration of their title over 1/ 7th of the suit property and cancellation of the sale deed, and the name of the petitioners from the patta of Suit property. After the suit was instituted the petitioner here in filed the Civil Misc No. 19/ 2015 under Order VI I Rule 11 read with Section-151 of Code of Civil Procedure, 1908 praying for rejection or dismissal of the plaint in the Civil Suit No.3/ 15 by contending as follows:

    (i) That the petitioner No.1 and Late B.S. Sharma got married in the year 1965 and out of their marriage petitioner No.2 was born on 15.09.1967. During the lifetime of late B.S. Sharma a plot of land (the suit land) was purchased by both petitioner No.1 and late B.S. Sharma on 20.04.1971 from one Satuo Peseyie and a sale deed was executed wherein the petitioner No.1 was the only signatory in the sale deed. I n course of time, the land was developed and 4 storeyed RCC building was constructed in which a hotel namely Apna Hotel was started and is still being run. The land was mutated in the name of petitioner No.1 and on 10/ 08/ 1976 the Jamabandi was issued in her name. Late B.S. Sharma also had another wife to whom he was first married i.e. the profoma respondent No.4 and the other respondents are his legal heirs through that marriage. During his lifetime, late. B.S. Sharma handed over all his properties situated at Diphu, Bongaigaon and Delhi to the profoma respondent No.4 and the legal heirs through her. But the suit land and the building continued to be the property of the petitioner No.1 as she was the absolute owner free from all incomprehension. However, in the year 1999, the respondent No.1 (opposite party No.1 in the Civil Misc Case No. 19/ 2015) along with her mother that is profoma respondent No.4 requested the petitioner No.1 to allow them to run the Apna Hotel on rental basis. Considering their request the petitioner No.1 allowed them to run the Hotel at nominal monthly rent of Rs 10,000/ -, which was regularly paid till the Hotel was disposed off on 30.05.2013. The petitioner’s case in the Civil Misc Case was that the plaintiffs in the Civil Suit No.3/ 2015 who are none other than the opposite parties in that Civil Misc Case No.19/ 2015 has no case to go for trial in view of the facts and circumstances stated above, therefore, the suit ought to be dismissed at the threshold.

    (ii) The petitioner No.1 also submitted in the C.M.C that since her name was mutated in the patta of the suit land way back on 10.08.1976, it was too late when the respondents filed the suit, therefore, on that ground alone, the suit ought to have been dismissed.

    (iii) I t was also submitted that when the suit and the building were sold and Notice dated 31.05.2013 was issued for mutation of the name of profoma respondent No.8 the same was published in the Nagaland Post on 02.06.2013 but nobody turn up objecting the same, therefore, the respondents/ claimants cannot make any valid claim over the suit land and the building.

    (iv) I t was also submitted that the petitioners are Christian by religion and they are not bound by Hindu Mitak-shara law. I t was further submitted that when late B.S.

    Sharma was alive, the respondents with their mother (profoma respondent No. 4) were living at Bongaigoan, therefore, they never live together as Hindu family.

  14. The respondents filed a written objection against the application contending

    as follows;

    (i) That there was no document(s) which would show that the suit land was transferred to the petitioners by late B.S Sharma. The name of the petitioner No.1 was recorded in the record of rights of the suit land only because of the fact that she being indigenous Naga her name could be entered in the record, but for that mere entry of her name in the record of rights it does not confer her absolute title over the same.

    (ii) I t was also contended that the building was constructed with the money of late B.S. Sharma, therefore, both the land and the building belongs to all his legal heirs and accordingly they have continually enjoyed both the suit land and building together as a joint family.

  15. The learned District judge after hearing the parties passed the impugned order

    on 26.06.2015. The operative portion of the same is reproduced here below;

    “8. In any view of the matter, upon hearing the parties and the observation made herein and above, I am of the considerate opinion that the applicants/defendants application praying to reject the instant suit under Order VII Rule 11 of Code of Civil Procedure, 1908, is devoid of any merits and therefore present Misc. Cases arising out the main suit is hereby dismissed and rejected.

    Accordingly both the Misc Case no.19/15 and Misc Case no.20/15 arising out of Civil Suit No.03/15 are dismissed. Defendants may file necessary objection/written statement in main suit if any. Case is disposed of on contest. No cost.”

  16. I have heard Mr. C.T. Jamir, learned Sr. counsel assisted by Mr...

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