DHIRENDRA NAMASUDRA Vs. SUKUMAR ROY

JUDGEMENT

(1.) This second appeal has been preferred by the plaintiffs challenging the concurrent findings of the two learned courts below. Plaintiffs' suit for declaration of right, title and interest and for preliminary decree of partition was dismissed by the learned trial court on the point of limitation and an appeal preferred thereagainst was dismissed by the learned first appellate court upholding the findings of the learned trial court. Aggrieved, the plaintiffs have approached this court challenging the concurrent findings of the learned courts below.

(2.) Two sons and a daughter of late Rajani Namasudra, as plaintiffs, instituted title suit No. 65/1992 in the court of learned Munsiff No. 1 at Silchar against legal heirs of Nayan Namasudra, Bharat Namasudra and Sonamoni Namasudra praying for a decree of declaration of their right, title and interest to the extent of 1B 6K 10Ch in the suit patta measuring 2B 13K 4Ch and also preliminary decree of partition of the suit patta followed by a final decree along with injunction etc. The case of the plaintiffs is that C.S. Patta No. 18 of Mouza Chibitabichia under Pargana Chatla in the district of Cachar was originally issued in the name of two persons, namely, Lob Chonga and Gagan Chonga. However, in the patta without there being any reason, names of Churamoni Namasudra and Nayan Namasudra were mentioned. The aforesaid patta comprised of five dags namely, dag No. 61, 62, 66, 79 and 80. The aforesaid 4 dags of C.S. Patta No. 18 were resurveyed as R.S. Patta No. 29 with only one dag, namely, dag No. 107 in the name of Rajani Namasudra, Churamoni Namasudra, Nayan Namasudra and Harmohan Namasudra. This is because Lob Chonga died in the mean time and was survived by his son Rajani Namasudra and Gagon Chonga was survived by his son Harmohan Namasudra. Name of Churamoni Namasudra appeared in the R.S. Patta No. 29 as it existed in C.S. Patta No. 18. Harmohan Namasudra being the son of Gagan Namasudra was entitled to only 1B 6K 10Ch being half of the entire patta measuring 2B 13K 4Ch but he sold 1B 15K 8Ch in favour of one Gunomoni Namasudra way back in the year 1926 which was excess than his entitlement. Gunomoni on turn sold this 1B 15K 8Ch to Nayan Namasudra and Bharat Namasudra. These two persons, namely, Nayan Namasudra and Bharat Namasudra thus became joint owner of 1B 6K 10Ch only although the sale deed executed in their favour contained recital as to 1B 15K 8Ch. The R.S. Patta No. 29 was re-surveyed during second settlement operation as second R.S. Patta No. 43 in the name of Rajani Namasudra, Nayan Namasudra, Nira Namasudrani, Nirmala Namasudrani and Abala Namasudrani. Names of Nira Namasudrani, Nirmala Namasudrani and Abala Namasudrani were mentioned in second R.S. Patta No. 43 being the legal heirs of Bharat Namasudra who along with Nayan Namasudra had inherited land from Gunomoni Namasudra being the original share of Harmohan Namasudra, the son of Gagan Namasudra. Rajani Namasudra approached the other co-pattadars for partition of the patta but they declined for which he instituted Perfect Partition Case No. 14 of 1991-92 before the Collector, Cachar District asking for a separate patta in his name with respect to his title in the patta. The Collector dropped the PP case on 30.01.1992 on the ground that the annual revenue of the patta was less than Rs. 5/-. After dismissal of the PP case, Rajani Namasudra died leaving behind the plaintiffs as his legal heirs and this is why they being the plaintiffs instituted suit for declaration of their right, title and interest to the suit patta as legal heirs of Lob Chonga. Plaintiffs claimed that Lob Chonga and Gagan Chonga jointly owned 2B 13K 4Ch of land in C.S. Patta No. 18 and each of them was owner of 1B 6K 10Ch of land in the suit Patta only. Rajani Namasudra being the sole legal heir of Lob Chonga inherited 1B 6K 10Ch and this devolved on the plaintiffs jointly. The remaining 1B 6K 10Ch owned by Gagan Chonga devolved on his son Harmohan Namasudra and so although he had purportedly sold 1B 15K 8Ch which is 8K 14Ch more than his entitlement did not devolve on the vendee Gunomoni Namasudra and so Nayan Namasudra and Bharat Namasudra also inherited only 1B 6K 10Ch jointly and so, the defendants are entitled to 1B 6K 10Ch jointly in all irrespective of whether there were transactions among them. This suit for declaration and partition was contested by the defendants by filing written statement. Defendants No. 1 to 5 filed a common written statement whereas defendants No. 7, 8 and 9 filed a separate written statement, however, adopting the pleadings of defendants No. 1 to 5. The defendants No. 1 to 5 denied the case of the plaintiff and in paragraph 24 of their written statement set out their own facts. According to the defendants, Lobram died issueless and after his death his widow remarried one Darparam Namasudra and Rajani Namasudra was thereafter born to the widow of Lobram through Darparam Namasudra and so he not being the biological son of Lobram did not inherit his share at all. However, the defendants took an alternative stand in paragraph 24 (C) by saying that the plaintiffs could at best claim 4K 7Ch of land in the suit patta on proof of paternity of Rajani Namasudra. The defendants thus were ready to acquiesce the title of the plaintiffs only to the extent of 4K 7Ch of land. However, in paragraph 24(C) nothing has been stated as to why Lob Namasudra was entitled to only 4K 7Ch of land and not of 1B 6K 10Ch being the half of the C.S. Patta No. 18 measuring 2B 13K 4Ch. The defendants prayed that suit of the plaintiffs is barred by limitation and so it is liable to be dismissed. The defendants No. 7, 8 and 9 adopted the same argument of the other defendants.

(3.) The learned trial court framed following 6 issues from the pleadings of both sides:-