Aparna Paul & Ors vs Anil Kumar Giri & Ors

Sahidullah Munshi, J

This second appeal is at the instance of the plaintiff against the judgment and decree dated 11 February, 2009 passed by the learned Civil Judge, Senior Division, 1st Court, Contai in Title Appeal No. 54 of 2007 affirming the judgment and decree dated 10th April, 2007 passed by the learned Civil Judge, Junior Division, 1st Court, Contai in Title Suit No. 99 of 1997. Plaintiff filed a suit for declaration permanent injunction and recovery of Khas possession. According to the plaintiff 'Ka' and 'Ka/1' schedule properties pertains to 'Ga' schedule property. Originally it was the plaintiffs' case that 'Ga' schedule property belonged to Santosh Kumar Nag who transferred the same to defendant nos. 2 and 3 sometime in 1972 and since then defendant nos. 2 and 3 had been in possession of the 'Ka' schedule property by paying government tax. Santosh Kumar Nag sold 28 decimals of land to defendant no.1 on the western side of the suit schedule land. Prior to transfer of the rest of land to the defendant no.2 and 3, defendant no. 2 gifted the said property to plaintiff on 11.2.1984 and both the defendant nos. 8 and 3 and transferred the rest land to plaintiff on 16.021982 and 17.02.1984 and since then plaintiff had been possessing the 'Ga' schedule property by paying government rent and taxes. The defendant no.1 denied the title of plaintiff in 'Ka' schedule property and on 19.06.1985 he threatened the plaintiff of dispossession from the suit property and thus, cause of action for the suit arose there from.

By way of amendment plaintiff incorporated in the plaint that on 16.01.1994 during pendency of the suit defendant no.1 dispossessed the plaintiff from 'Ka/1' schedule property. There are many valuable trees of the plaintiff over the said dispossessed land and therefore, the plaintiff prayed for a declaration of title over the 'Ka' schedule property and a permanent injunction over the same for peaceful enjoyment. Further prayer of the plaintiff is for recovery of Khas possession of the 'Ka/1' schedule property by evicting the defendant no.1 there from. The suit was contested by defendant no.1 by filing written statement. The defendant nos. 1Ka to 1Ga appeared as the assignee of the defendant no.1 and filed joint written statement denying all material allegations in the plaint. The plaintiff principally agitated that the suit is bad for non-joinder and or misjoinder of necessary parties and the description of schedule properties are vague and indefinite. It is the admitted case that defendant no. 1purchased 21 decimals of land on 07.01.1972 from Santosh Kumar Nag and accordingly, his name was recorded in the L.R. settlement porcha. Defendant no.1 gifted 16 decimals of land to his younger daughter-in-law (Defendant no.1) vide deed no. 6801 dated 24.09.2004. The defendant no.1 gifted his rest land in favour of his grand sons defendant nos. 1(Ka) to 1(Ga) vide deed no.6802 dated 24.09.04. Defendant denied the plaint case that the suit schedule property of the plaintiff ever had 38 decimals of land as per settlement record and 46 decimals of land on physical verification. The defendant prayed for dismissal of suit. The learned trial Court framed the following issues :

"Is the suit maintainable in Law?

Is the suit barred by limitation?

Is the suit bad for non-joinder and misjoinder or necessary parties?

Is the suit description of the suit land vague and indefinite?

Whether the plaintiff has right, title, interest and possession over the 'Ka' and 'Ka/1' schedule properties?

Is the plaintiff entitled to get the decree as prayed for?

To what other relief, if any the plaintiff entitled?"

This second appeal was admitted by an order dated 17.06.2009 on the substantial question of law which was set out below:

a) "Whether the learned Courts below committed substantial error of law in passing a decree for declaration of title and recovery of possession on the basis of area mentioned in the amended plaint pursuant to the Commissioner's report notwithstanding the fact such amended area less the area mentioned in the actual deed of purchase by the plaintiff;

b) Whether the learned Courts below committed substantial error of law by rejecting the plea of the appellant that two of the co-sharers of plot No.907 ought to have been added in the proceedings by overlooking the fact that except those two persons all other co-sharers were made parties and that for effective adjudication of the dispute involved in the suit, the presence of all the co-sharer of plot No. 907 is necessary.

c) Whether the learned Courts below committed substantial error of law in passing a decree for declaration and recovery of possession by overlooking the fact that from the available deeds in respect of plot No.907 it would appear that some of the co-sharers sold in excess of their shares as would appear from their own deed of purchase, and, as such, in the absence of all the co-sharers of the plot, the suit was not maintainable."

On issue no.3 which is framed on non-joinder and misjoinder of parties and which has been indicated in the second substantial question of law is being dealt with first. The learned trial Court held that although the defendant raised an issue of nonjoinder and or misjoinder of parties but they have never mentioned the names of the necessary parties. It has been argued referring to Exbt.D which is an information slip in respect of suit plot no.907 issued from the office of the Block Land and Land Reforms Officer saying that Kakoli Giri and Dipak Kumar Giri also had share in suit plot no. 907 and therefore, they are necessary parties. The reason for not holding that Kakoli Giri and Dipak Giri are not necessary parties is that 66 decimals of land in plot no. 907 was recorded in the name of Santosh Kumar Nag under Khatian no. 501/1 as admitted by the parties. In as much as there is no dispute regarding the rest of the land in the suit plot in Khatian no. 501/3, the co-sharers of that land are not necessary parties in the suit. More so, in the written statement the defendant did not also mention the name of the necessary parties. Exbt.A Series are different Khatians recorded under plot no. 907. Both the plaintiff and the defendant claims title under the Santosh Kumar where name was recorded in Khatian no. 501/1. Therefore, the learned trial Court held that other co-sharers of the plot is not necessary in the suit and decided the issue in favour of the plaintiff that non-disputed khatians in the suit plot need not be impleaded as parties. The appeal Court has also subscribed its view holding that the trial Court rightly decided that Dipak and Kakoli having had interest in separate Khatian cannot be held to be necessary parties in the suit for declaration filed by the plaintiff. The Appellate Court below while answering the issue of non-joinder and misjoinder of parties has rightly held that plaintiff originally claimed 41 decimals of land but on amendment he reduced the area to 38 decimals. It was because a survey passed advocate commissioner was appointed and after he filed his report plaintiff amended his plaint reduced his claim to the suit property. Originally the plaintiff claimed that as per record area of the suit plot no.907 is 1.39 acre but on field measurement area appeared to be 1.47 acre and the plaintiff claimed to be the owner of land measuring 66 decimals as per record but 74 decimals as per actual field measurement. Situation altered after amendment was allowed. Commissioner's report was accepted rejecting objection of the defendant/appellant. On appreciation of the evidence and the materials disclosed before the trial Court, the Appellate Court below held that it was sufficiently proved that Santosh Kumar Nag had 66 decimals of land on the eastern side out of which he transferred 38 decimals of land on the extreme eastern side to the defendant no.2 and 3 who in turn transferred the same in favour of the plaintiff and Santosh Kumar Nag transferred 28 decimals out of 66 decimals to the Western side to the defendant no.1. Therefore, according to the learned Appellate Court below the description of schedule 'Ka', 'Ka/1' and 'Ga' schedule property it cannot be said to be vague or indefinite. The substantial question of law framed under (a) is therefore, answered accordingly. More so, plaint suit being not a suit for partition the argument all throughout made on behalf of the defendant that all the co-sharers of plot no. 907 are necessary parties cannot be accepted. When cause of action has been proved; right of plaintiff in respect of the suit property has been proved; interference with his right if proved, he has every right to seek for a declaration under Section 34 of the Specific Relief Act. Section 34 of the Specific Relief Act is set out below:

"S.34. Discretion of Court as to declaration of status or rights. -Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not inexistence, and for whom, if in existence, he would be a trustee."

Section 34 is maintainable if a person is entitled to protect his legal character or any right as to any property which the other side isconfronting with the interest of the plaintiff therein or the defendant is interested to deny such title of the plaintiff. And in such a situation Court in its discretion can make a declaration that the plaintiff is so entitled but here in this case the plaintiff has not only sought for a mere declaration but also sought for relief in compliance of the proviso to Section 34 and, therefore, the suit is maintainable. Plaintiff has made out a case that he has been dispossessed from 'Ka/1' schedule property and therefore, made a prayer for recovery of Khas possession of the said 'Ka/1' schedule property by evicting the defendant no.1 therefrom. If the plaintiff is able to establish that he has a better title than the defendant, in such an event Court has a discretion to give a declaration to protect such better title of the plaintiff. Relief under Section 34 is by way of confirmation of title; it is not necessary to have a perfect or absolute title.

When it is not the defence case that the defendant appellant has not been possessing any specific portion of the suit plot or he is in joint possession with other co-sharers and when it appears that respective portion of the plaintiff and the defendant no.1 as it appears from the deed of purchase are specific and that there is no defence that plaintiff subsequently transferred any property from his share in presence of all the other co-sharers Satya Vama Dasi or any assignee from her or her successors cannot be said to be necessary parties for complete adjudication of the suit. Since the plaintiff has grievance only against the defendant appellant, who alleged to have encroached the portion, the learned Appellate Court below rightly dismissed the appeal affirming the judgment and decree passed by the trial Court holding, inter alia, that when there is a prayer for recovery of possession of the plaintiff in respect of 'Ka/1' schedule property and the defendant/appellant did not claim that 'Ka/1' schedule property is part of his property, it cannot be said that the plaintiffs' suit is bad for non-joinder of necessary parties. The third substantial question of law had already been answered while I have dealt with the fact that although, originally it was the case that the plaintiff claimed in respect of the land in excess of what he had purchased but after amendment of the plaint he has reduced his claim from 41 to 38 in respect of the plot no.907, therefore, the last substantial question of law under also cannot be justified and is answered against the appellant.

It is necessary to mention that although, substantial question of law were framed as pointed out earlier but at the hearing of the appeal the learned advocate for the appellant argued on the issue only of non-joinder and/or misjoinder of parties.

In a suit for partition and separate possession of joint family property, all the legal heirs should be arrayed as party in the suit, on omission, the suit can be dismissed. All co-sharers are necessary parties. The present case, admittedly, does not involve in question of partition between the co-sharers. A specific case has been made out by the plaintiff with regard to his right, title and interest in the suit property and interference therewith by the defendants and on proof thereof the Court below has passed the decree. Therefore, it cannot be contended that all the co-sharers of the plot including the subsequent purchaser are necessary parties. Where complete and effective relief can be obtained against the party, it is not necessary to join any other party. In this suit for recovering land from the specified defendant and having regard to the specific overt act of such defendant, other co-sharers, in my view, are not necessary parties and the contention of the appellant that suit should fail cannot be accepted.

In my view, the learned Courts below have committed no error of law meaning thereby there is no substantial question of law involved in this appeal which could warrant interference in second appeal under Section 100 of the Code of Civil Procedure.

The appeal fails and is dismissed, however, without any costs. Judgment and decree passed by the learned Courts below are thus affirmed.

Department is directed to draw up a decree as expeditiously as possible.

Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.