JYOTI VASWANI Vs. STATE OF ASSAM AND ANOTHER

JUDGEMENT

(1.) Both the appeal and revision, which are inter-connected and arising out of the dispute between the same parties over the same disputed plot, were heard together, and are now being disposed of by this common judgment. The appeal is directed against the order dated 3-3-2004 passed by the learned Assistant District Judge, Shillong in T.S. No. 4(H) of 2001 rejecting the plaint under Order 7, Rule 11 of the Code of Civil Procedure as being barred by the doctrine of estoppel, while the revision is directed against the order dated 31-3-2009 passed by the Board of Revenue refusing to admit her appeal against the order dated 1-10-2008 of the Additional Deputy Commissioner, Shillong rejecting her prayer for issuing separate patta to her in respect of the same disputed plot i.e. Plot No. 43 marked as Plot A in the map attached to the family settlement dated 23-6-1984. To simplify the case, I will first decide RFA No. 6(SH) of 2009 and thereafter dispose of, as far as possible, the connected CR(P) No. 8(SH) of 2009 on the basis of my decision thereon. In the appeal, the case of the appellant, as pleaded in the plaint, is that she is the cousin of one Ashok Bhagwandas, s/o late Bhagwandas, and after her marriage with Pishu Vaswani, the latter also became acquainted with the said Ashok Bhagwandas, his brothers and sisters. Out of love and affection for the appellant, the said Ashok Bhagwandas, for himself and on behalf of his brothers and sisters, duly conveyed, by way of gift, a plot of land measuring approximately 2,450.25 square feet situate by the side of G.S. Road, Police Bazar, Shillong vide the Gift Deed dated 29-9-1988 which was registered on 29-3-1989 at Mumbai. Having accepted the gift, the donor delivered possession of the said plot in favour of the appellant. At the time of execution of the Gift Deed, the donors were not aware of any case filed by the respondent No. 1 (defendant 1) against any of them pending before any Court. After registration of the Gift Deed, the name of the appellant stood mutated in the revenue records vide the letter dated 3-1-1991 of the Deputy Commissioner, Shillong. However, it turned out that a gift deed was also executed by one Parbatibai, w/o late Odarmal Thadani, the principal of the respondent No. 2 (Shri Harish Vaswani, now deceased) in favour of respondent 1 in respect of the plot of land measuring about 2450 sq. feet lying by the side of a stream and at the back side of the plot of land delineated, demarcated and shown as Plot No. 'D' in the map forming a part of the memorandum of family arrangement entered into between Shri Kishan Chand Thadani, Smt. Rukimini Bai, Shri Ashok Bhagwandas (Thadani) on the one hand and Smt. Parbatibai on the other on 23-6-1984, which was witnessed by Shri Atmaram Murdhanani, Proprietor of Mohini Store and Shri Kishan Chand Vaswani, Proprietor of Broadway, Shillong, who is the father-in-law of the respondent No. 1.

(2.) It was further pleaded by the appellant that in terms of the oral family arrangement followed by a memorandum along with the map attached thereto voluntarily entered into among the parties concerned. The disputed plot was allotted for the exclusive ownership and possession of the said Ashok Bhagwandas, his brothers and sisters while plot 'B' was allotted to Shri Kishan Chand Thadani, plot 'C' to Smt. Rukminibai and plot 'D' to Smt. Purbatbai, now deceased. The said arrangement had already been acted upon by the parties then and there, though it was mentioned in Clause VII of the memorandum that the 'patta of the entire plot of the land will stand in the names of 4(four) parties signing the Memorandum of oral settlement and other taxes will be shared and borne equally till separate Pattas are issued as and when allowed by the authorities'. It was contended by the appellant that the disputed plot was not the land gifted by Smt. Parbatibai, the principal of defendant No. 2, to respondent 1 and, as such, she could not claim the ownership and possession of the disputed plot or any part thereof inasmuch as she could, at best, stepped into the shoes of the said Parbatibai in respect of plot 'D' only. Though the property was perfectly divided among the parties in terms of the family arrangement, due to fragmentation law, no separate Patta could be issued at that point of time and Patta No. 63 remained in the joint names of Shri Kishan Chand Thadani and three others: the respondent No. 1 could not obviously claim any right to the property more than that of her predecessor-in-interest, namely, the late Parbatibai. However, on the strength of the said Gift Deed dated 15-1-1988 executed by her late husband (defendant 2) and on the strength of Power of Attorney executed in his favour by the late Parbatibai, respondent 1 in collusion with the said Kishan Chand Thadani occupied the disputed plot of the said Ashok Bhagwandas when the disputed plot and plot 'D' were vacant lands except for the one or two tin sheds standing thereon: the said Ashok Bhagwandas, his brothers and sisters were then living in Mumbai and other places while the said Parbatibai, from whom the respondent 1 alleged to have received the gift was also absent from Shillong. Taking advantage of their absence and of the fact that the patta was standing in the joint names of Shri Kishan Chand Thadani and three others, she, in collusion with the said Kishan Chand Thadani, occupied the disputed plot allotted to the said Ashok Bhagwandas although factually she is entitled to take possession of plot 'D' as shown in the sketch map attached to the memorandum of family arrangement dated 23-6-1984. Mutation of the disputed plot was also allowed by the Deputy Commissioner (R) Shillong on 23-7-1984 vide Mutation Case No. 28 of 1984.

(3.) It is also the pleaded case of the appellant-plaintiff that the respondent No. 1 thereafter constructed a building on the disputed plot and then instituted Title Suit No. 6(H) of 1988 in the Court of Assistant District Judge, Shillong against the said Ashok Bhagwandas and others on the plea that the latter, her predecessor-in-interest, threatened to dispossess her if she did not quit and voluntarily vacate the disputed plot. The suit was a subject matter of Civil Revision No. 408 of 1988 before this Court which was hurriedly settled out of Court at the instance of respondent 1 and her late husband by wilful misrepresentation and concealment of facts to the appellant (the plaintiff in the instant suit) and her husband when she had no knowledge that the land covered by Patta No. 63, Plot No. 43 had been divided by family arrangement dated 23.6.1984 by which the land was perfectly divided and the specific portions of the heirs thereto spelt out after the death of the original owner, the late Smt. Nadiabai. Consequently, the learned Assistant District Judge decreed the suit by consent on 15.5.1989. According to the appellant, the compromise decree including the sketch map filed therewith was nothing but a fraudulent decree, which is inoperative and inexecutable. It was also contended that such a decree without registration was invalid and inoperative: no deed of exchange was entered between the owners of the disputed plot and plot 'D'.