MONOMOYEE BARMANI Vs. UPESWARI BARMANI

JUDGEMENT

(1.) The plaintiff brought this appeal from the judgment dated 20-8-1985 passed by Shri R. K. Bora, Assistant District Judge, Dhubri, in T.A. No. 75/83 and the judgment dated 20-7-1983 of Shri B. P. Sarma, Munsiff No. 3, Dhubri in T. S. No. 89/81 as both of them have dismissed the plaintiff's suit.

(2.) The suit was instituted on 17-2-1981. In brief the facts of the case are as follows : Three brothers, namely, Atya, Satya and Nityananda were the owners of land measuring 35B 8K 18 dhors at village Vidyapara under Gauripur Raj Estate and they held the land ejmali in equal shares of 10 bighas. From out of 35B odd, 10B had been sold to one Uma Nath Seal who obtained separate khatian for that 10B. For the remaining 25B 1 K 17L-7B 2K 7L was recorded under khatian No. 72 and 17B 4K 10L was recorded under khatian No. 78. An area of 1B 3K 17L out of 7B 2K 7L and 9B 3K 14L out of 17B 4K 10L were in possession of tenants who also had tenant's khatian for them, (sic) 8B OK 16L remained in ejmali possession of the co-sharers. Satya died 60 years ago leaving his wife Smt. Dhanbhari and two sons, Atya and Batul and a daughter Upeswari. So Satya's share was inherited by Atya and Batual in equal shares. Atya died leaving his mother Dhanbhari, brother Batul and sister Upeswari. His mother Dhanbhari inherited 1/4 share of 1/3 = 1/6 of the entire land. Batul died about 30 years back in 1951 leaving his mother and wife. Batual was entitled to 1/6 share of the entire land. After Batual's death his wife, Monomoyee Barmani, the plaintiff, inherited his 1/6 share. Smt. Dhanbhari died 7 years ago leaving her daughter Upeswari (defendant No. 1) and son Batul's wife (plaintiff). Each of them (i.e. Plaintiff and defendant No. 1) got 1/2 of her 1/6 share. Thus the plaintiff claims that she is entitled to the 1/6 share of her husband plus 1/12 share of Dhanbhari's share. Plaintiff stated that defendant No. 2 is not entitled to get any share and according to her he (defendant No. 2) was only looking after the share of his mother, the defendant No. l; but his name was illegally mutated. Other defendants purchased some portion of the land from Nityananda. Atya was entitled to 1/3 share of the land under khatian Nos. 72 and 78, and defendant No. 2, Dharmanarayan, son of Atya and defendant No. 4, Smt. Gadi have inherited the property left by Atya. Nityananda was entitled to 1/3 share of the entire land under Khatian Nos. 72 and 78, and defendant No. S, Gatu and defendant No. 6, Jaladhar and defendant No. 7, Dhepri inherited the property left by their father, Nityananda. 5B-1K-8L and 2B-4K-8L = 8B-OK-16L of Dag Nos. 147, 148, 149, 152, 161, 162, 163, 164, 167, 173, 298 of Khatian No. 78 is a khas land of Satya, Atya and Nityananda who were in ejmali possession. After becoming widow, it became difficult for the plaintiff to continue the ejmali possession. Therefore, she filed Mutation Case No. DM/29/75-76 but it was dismissed on 7-3-1977. After dismissal, the plaintiff brought the suit for declaration of her share by partition. The State of Assam was impleaded as pro forma defendant No. 8 though no relief was claimed against them. On the above allegation, the plaintiff prayed for decree; (a) declaring that she is entitled to 1/4 share of the land from Khatian Nos. 72 and 78 as described in Schedule 'A'; (b) that she is entitled to 1/4 share of 14B-OK-8L from ejmali possession as described in Schedule 'B'; (c) that she is entitled to 1/6 share of the bithi land of 2K-9L covered by Dag No. 124 of Khatian No. 72 and 4K-1L covered by Dag No. 173 of Khatian No. 78 as shown in Schedule 'B' of the plaint; and (d) for sending the decree to Revenue Court for partition of her share of the land.

(3.) The suit was contested by defendant No. 1 (Upeswari) defendant No. 2 (Kailash Chandra Rai) and by pro forma defendant No. 8 (State of Assam). The plea of defendant Nos. 1 and 2 were; (1) that Batul had died 30 years ago in 1951 and the plaintiff deserted his home (Vidyapara) immediately after his death and thus she was out from ejmali possession. The defendant, therefore, stated that even if the plaintiff may have right she had lost it and they (defendant Nos. 1 and 2) have acquired the right by adverse possession. As such, the plaintiff had no cause of action, (2) that Smt. Dhanbhari during her life time had made a registered deed of gift of her share to defendant No. 2 and he (defendant No. 2) had built residential houses on the land and therefore the plaintiff cannot get the share of Dhanbhari, (3) The 7 (seven) persons; (i) Kumudini, (ii) Togru Roy, (iii) Herimati Ghose, (iv) Radhaballav Ghosh, (v) Kali Das, (vi) Kumudini Dasi and (vii) Debendranath Seal are recorded co-khatiandars and therefore they are necessary parties. The suit, therefore, must fail for non joinder of these parties. The contention of pro forma defendant No. 8 is that the record of right having been published in 1961-62, the suit is now barred by limitation and as such, the plaintiff could have no cause of action.