ROHINI SAIKIA Vs. BIPLAB BASAK

JUDGEMENT

(1.) HEARD Mr. A. Choudhury, learned counsel for the appellants. Also heard Mr. M.K. Choudhury, learned senior counsel appearing for the respondent, assisted by Mr. A. Barkataki, Advocate.

(2.) THE appellants in this appeal were the defendants in Title Suit No. 109 of 2000. The said suit was brought about by the respondent Sri Biplab Basak praying for execution and the registration of the sale deed and delivery of possession in respect of the suit land. The plaintiff and the defendants had entered into an agreement, duly registered, on 26.11.1999 where under the defendants agreed to sell a plot of land measuring 1 katha (more or less) as described in the schedule to the plaint. The cause of action arose when the defendants backtracked on the agreement. The appellants / defendants who had contested the suit took the plea the two other members of the family i.e. Ghaneshyam Saikia and Rupam Saikia, being the co -pattadar of the suit land and not having been impleaded as party defendant, therefore the suit was bad on account of non -joinder of necessary parties. Mention be made that in the said written statement filed by the defendants no averment has been made with regard to the suit land not having been partitioned amongst the family members. The Trial Court upon the pleadings and evidence on record decreed the suit to the extent that the plaintiff would be entitled to Rs. 20,000/ - by way of costs. In so far as the respondent/plaintiff's prayer for execution and registration of sale deed and for delivery of possession was concerned, the same were negated.

(3.) THE plaintiff/respondent herein being aggrieved filed Title Appeal No. 41/2006 and the primary points for determination was with regard to whether the suit was bad for non -joinder of necessary parties and whether or not the land agreed to be sold to the plaintiff have been partitioned amongst the family members or not. The first appellate Court upon appreciation of the pleadings of record and taking into consideration the evidence of PW2 i.e. Nripen Saikia (step brother of the defendants); DW2 i.e. Smti Rohini Saikia (mother of the defendants); DW1 i.e. Anil Saikia (one of the defendants) and DW3 i.e. Ghanashyam Saikia (another step brother of the defendants) arrived at the conclusive finding that the suit land is a property which is mutually partitioned amongst the family members and in fact the Exts. -5,6,7 and 8, being the various sale deeds, would go to show that Ghanyashyam Saikia, the step brother of the defendants and the legal heir of the predecessor -in -interest, had sold his share of the property inherited from Late Mohat Ram Saikia. The testimony of the aforesaid prosecution witness and defence witnesses strikes a consistent note to the effect that the property left behind by their father Late Mohat Ram Saikia had been mutually partitioned amongst the members of the family and what was intended to be sold to the plaintiff was the share which fell amongst the defendants only. Upon such consideration the first appellate Court was also of the view that the suit was not bad for non -joinder of necessary parties. The judgment and decree of the trial Court was accordingly set aside and the plaintiff's prayer for granting a decree for execution and registration of a sale deed in respect of the suit land alongwith delivery of possession by payment of the balance amount of Rs. 1 lakh was granted. The said title appeal was allowed vide judgment and decree dated 15.07.2008. On second appeal before this Court, which was admitted for hearing vide order dated 08.02.2010, two substantial questions of law was formulated, being