BHAGWAN DAS BHAJANKA Vs. BIMALA DEVI GOYEL

JUDGEMENT

(1.) Heard Mr. R.C. Sanchati, learned counsel appearing for the appellant. Also Heard Mr. O.P. Bhati, learned counsel for the sole respondent. This is an appeal under Order 41 Rule 1 read with section 151 of the Code of Civil Procedure, 1908, against the Judgment dated 31.03.2009 passed in Title Suit No. 285/05 by Sri A.K. Borah, learned Civil Judge No. 2, Guwahati.

(2.) The various facts leading to institution of the suit, in the Court below, in brief, is that the plaintiff, defendants No. 1 to 5 and pro-forma defendants No. 9 to 11 are the brothers and sisters by full blood., the defendants No. 6 is the wife of the brother of plaintiff and defendants No. 1 to 5 and Proforma defendants No. 9 to 11 late Vinod Kumar Bhajanka and the defendants No. 7 and 8 are the minor daughter and sons respectively of Late Shri Vinod Kr. Bhajanka. The father of the plaintiff and defendants No. 1 to 5 and proforma defendants No. 9 to 11, father in law of defendant No. 6 and grandfather of defendants No. 7 and 8, Tikam Chand Bhajanka died at Guwahati on 09.06.01 leaving behind the plaintiff and the defendants as his legal heirs to succeed and/or inherit the movable and immovable properties left by him at the time of his death. The wife of late Tikam Chand Bhajanka predeceased him on 07.04.1996. At the time of the death of Shir Tikam Chand Bhajanka, he was the absolute owner of a plot of land measuring more or less 37 areas covered under Dag No. 937, Patta No. 32 at Japorigog Gaon under Beltola Mouza situated at G.S. Road, Guwahati, Assam with building thereon which is fully and more particularly described in the schedule of the plaint. Accordingly, the plaintiff and each of the defendants except the defendants No. 6, 7 and 8 are entitled to 1/10th share of the premises left by late Shri Tikam Chand Bhajanka, and the defendants No. 6, 7 and 8 are jointly entitled to 1/10th share being the legal heirs of Late Vinod Kumar Bhajanka. The cause of action for the suit as stated in the plaint arose at Guwahati on 03.07.2005 when the plaintiff came to know from reliable sources as to the attempts being made by the defendants No. 1 to 8 to amicably partition the demise premises as described in the schedule and to allow the plaintiff to have the separate possession of their shares therein. But the defendants' No. 1 to 8 refused to partition and allow the plaintiff to enjoy her separate share in the property denying her right and title. To contest the proceeding initially, the defendant No. 5 filed his written statement. The defendants' No. 1, 2, 3, 4, 6, 7 and 8 did not appear and as such, the suit was directed to precede ex-parte against them. However, upon hearing both sides and on contest, the learned judge decreed vide the impugned judgment and decree that the plaintiff is entitled to get 1/10th share of the property left by late Tikam Chand Bhajanka as described in the schedule of the plaint.

(3.) Being highly aggrieved and dissatisfied with the said judgment dated 31.03.2009 passed in Title Suit No. 285/05, the appellant has preferred this appeal on the ground that the learned judge has passed the impugned judgment and decree without considering the materials on records and also has committed irregularities and illegalities by passing the said judgment and Decree on misconception of law. The further ground of preferring the appeal is that the learned Civil Judge has also committed irregularities and illegalities in not considering the evidence of PW1, in its proper prospective. Apart from the above, the other contention of the appellant is that the findings of the learned Judge on issue No. 1 is perverse and erroneous in view of the fact that PW1, in paragraph 10 of her evidence, on affidavit, admitted that partition was effected on 12.07.2004 of the suit land amongst the sons of Late Tikam Chand Bhajanka and also admitted in her cross examination that from Eshibit-2, it appears that the defendants No. 1 to 6 are the owners of the suit land and since the suit was filed only for partition and separate possession of the suit property, without making a prayer for cancellation of partition deed and mutation granted in the name of defendants No. 1 to 6, the suit being not maintainable in its present and the learned Judge ought to have dismissed the said suit. It has also been contended that the learned Civil Judge did not consider that the suit is barred under the law of limitation, in view of the fact that PW 1 in her cross examination admitted that she was married on 24.06.1973 and has settled at Sillguri with her husband and as such, the exclusion of the shares of the plaintiff in the suit property runs from 26.06.1973 and the time for filing the suit for partition, expires on 06.06.1985. But the suit was filed on 25.08.05 after expiry of limitation period and as such, the suit being barred under Article 110 of the Limitation Act, ought to have dismissed the suit. The further notable contention of the appellant is that the finding of the learned Civil Judge on issue No. 4 is perverse and erroneous and is therefore liable to be set aside. The learned Judge did not consider that the partition of the suit land was effected on 12.07.04 and the same was within the knowledge of the plaintiff that there was a partition of the property amongst defendants No. 1 to 6 and it was also within the knowledge of the plaintiff that before partition of the suit property, the suit land was mutated jointly in the name of defendants No. 1 to 5 and the husband of the defendant No. 6 as appeared from the mutation order marked as Exhibit 2 but in spite of that knowledge, the plaintiff did not file the suit for cancellation of the partition deed and mutation order granted in the name of defendant Nos. 1 to 5 and husband of defendant No. 6 and in view of that fact the right of the plaintiff in the suit property was waived, the learned Judge ought to have dismissed the suit