Remanded

Jahida Ahmed v. Sayera Ahmed and Anr.

Gauhati HC8 Mar 2018RSA/2/2008

Case brief

AI extract

What is this about?

In a partition suit appeal, the High Court held that the first appellate court erred in not considering the trial court's finding of the appellant's illness which excluded her from filing a written statement. The High Court remanded the case to the trial court to permit the filing of the written statement, allow cross-examination within limits, and decide the suit on merits.

What did the court decide?

Appeal allowed; judgment and decree of courts below set aside; matter remanded to trial court to allow appellant to file written statement and decide suit on merits.

Jahida Ahmed Vs Sayera Ahmed and Anr. — Partition | Gauhati HC (2018)

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Page No.# 1/8

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GAHC010001852008

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : RSA 2/2008

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1:JAHIDA AHMED

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W/O LT. ASRAF AHMED, M.G.ROAD NA-ALI, JORHAT TOWN, DIST. JORHAT.

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VERSUS

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1:SAYERA AHMED and ANR.

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D/O LT. USUF AHMED, W/O ANWARUL HAQUE, RESIDING AT NAGABANGLO ROAD, GOLAGHAT TOWN, PERMANENT RESIDENT OF FAKARUDDIN ALI AHMED ROAD, CHIIMILE, GUWAHATI.

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2:MD. SERIF AHMED S/O LT. USUF AHMED M.G.ROAD NA-ALI JORHAT TOWN DIST. JORHAT.

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3:NESIMA AHMED W/O LT. USUF AHMED M.G.ROAD NA-ALI JORHAT TOWN DIST. JORHAT.

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4:RUMANA BEGUM W/O MD. MAJUR HUSSAIN R/O ANGOORIGHAT WEST DIST. SIVSAGAR

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Advocate for the Petitioner : MR.D CHOUDHURY

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Advocate for the Respondent : MR.MH Ansari

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Page No.# 2/8

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BEFORE HON BLE MR. JUSTICE PRASANTA KUMAR DEKA

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JUDGMENT

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Date : 26-02-2018

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Heard Mr.D.Choudhury learned counsel appearing for the appellants and Mr.M.H.Ansari learned counsel appearing for the respondents.

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The present appellant is the defendant No. 2 in Title Suit No. 70/2005 preferred by the respondents No.1 & 2 as plaintiffs for declaration, partition initially by way of preliminary decree and thereafter drawal of final decree for partition. The present respondents No.1 & 2 being the plaintiffs filed the suit against their mother Nasima Ahmed(defendant No. 1) who is the proforma respondent No.3 herein this appeal. The present defendant appellant who is the sister-in-law i.e. wife of the deceased brother Asraf Ahmed of the plaintiffs respondents is impleaded as the defendant No.2.The third defendant who is the respondent No.4, Rumana Begum was impleaded as proforma defendant No. 3 in the suit who purchased a 12 feet x 14 feet RCC room over the suit land. One Eusuf Ahmed was actual owner of a plot of land measuring 2 kathas 12 lechas covered by dag Nos. 4731/5130 of K.P.Patta No. 35(new) Block No. 2 Jorhat Town in the district of Jorhat. Over the suit land, the nature of structures standing are described in the schedule-B of the plaint and the Schedule-C is a RCC room measuring 12 feet x 14 feet purportedly sold to the proforma defendant No.3(defendant respondent No.4 in this appeal) by all the legal heirs of Eusuf Ahmed. Asraf Ahmed, the husband of the present defendant appellant died on 9.7.2005 leaving in addition to his wife rest of the parties to the suit both plaintiffs and defendant No.1. The share of said husband of the defendant appellant over the Schedule ‘A’ property was inherited by the plaintiffs, the defendant appellant and the mother of Asraf Ahmed. The suit land is a commercial plot of land and structures standing thereon are mostly let out to various tenants and rent arising out of said tenanted premises are being collected by the parties to the suit. Admittedly the said RCC room described in Schedule-C of the plaint was sold to one Rumana Begum without any right over the land except the standing structure allowing a premption right in the event of selling the land to person other than the family members of the parties to the suit. In the plaint shares of each and every legal heirs of Eusuf Ahmed is stated and contending as such

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Page No.# 3/8

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the plaintiffs respondents No.1 and 2 preferred the suit for partition. The suit proceeded exparte against the present defendant appellant as she could not file her written statement within the prescribed time owing to her illness. However the defendant respondent No.4 filed her written statement supporting the claim of the plaintiff respondent Nos.1 & 2. The defendant No. 1 i.e. the mother of the plaintiff respondent Nos. 1 & 2 also did not file the written statement. On the basis of the pleadings available before the learned trial Court following issues were framed:

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Issue No.-1:Whether the suit property is ancestral property of the plaintiffs and defendant No.1 & 2?

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Issue No.-2:Whether the plaintiffs have right, title and interest over the suit property ? Issue No.-3: Whether the plaintiffs are entitled to partition and separate possession as prayed for?

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Issue No.-4:To what relief/reliefs the parties are entitled to ?

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The learned trial court vide judgment and decree dated 28.11.2006 decreed the suit by passing a preliminary decree as per provisions of Order 20 Rule 18 of the CPC. As apparent from the order sheet of the Title Suit No. 70/2005 the suit was fixed for filing of written statement by the defendant appellant alongwith other defendants on 9.12.2005, 7.1.2006 and 25.1.2006. The adjournment petition filed by the defendant appellant seeking time to file written statement was disallowed on 2.2.2006 as grounds of illness were not supported by affidavit and as such the suit was ordered to proceed exparte against the said defendant appellant. The proforma defendant Rumana Begum filed her written statement on 7.1.2006 and vide order dated 2.2.2006 the matter was fixed for framing of issues on 1.3.2006. The matter was fixed for steps before peremptory hearing and 17.4.2006 was fixed for evidence on the plaintiff side. The defendant appellant being aggrieved by the order dated 2.2.2006 preferred a revision application being CRP 53/2006 before this Court which however was not entertained following which the same was withdrawn with liberty to file appropriate application in appropriate forum. Armed by the said liberty given by this Court, the defendant appellant on 5.6.2006 filed an application under Order 9 Rule 7 of the CPC alongwith an application for condonation of delay. On 5.6.2006 the main suit was fixed for argument. The learned trial Court fixed 26.6.2006 for objection and hearing of the said application under

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Page No.# 4/8

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Order 9 Rule 7 of the CPC which was numbered as Petition No. 1345/2006 dated 5.6.2006. The said application was allowed vide order dated 27.9.2006 by the learned trial Court after the defendant appellant proved the fact of illness by adducing evidence of the medical officer who issued the certificate supporting the fact of her illness from 5.1.2006 to 5.2.2006 and the fitness certificate issued on 6.2.2006. The learned trial Court while allowing the said application under Order 9 Rule 7 of the CPC held that no cogent ground was found for allowing time to file written statement by the defendant appellant at that stage and accordingly rejected the said prayer. The defendant appellant was not permitted to adduce evidence also. After rejecting the said application the suit was fixed for argument on 4.11.2006 and vide judgment and decree dated 28.11.2006 the learned trial court decreed the suit.

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Being aggrieved the appellant preferred Title Appeal No. 1/2007 before the learned Court of District Judge at Jorhat. Amongst various grounds the defendant appellant raised the following ground before the First Appellate Court:

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“5. For that the defendant/appellant could not file her written statement on the date fixed by the learned Court below as such exparte order was passed against the defendant/appellant. Without filing any petition by the defendant/appellant, directly filed a revision petition before the Hon’ble Gauhati High Court. The Hon’ble Gauhati High Court advised that the said petition are not tenable in law as such file the same in proper jurisdiction . Accordingly the defendant/appellant has filed a petition before the learned Court below for vacating the exparte order, the learned Court below set aside the exparte order of the defendant/appellant but did not allow to file the written statement. The learned Court below ought to have allowed to file written statement of the defendant/appellant and wrongly passed erroneous judgment which is liable to be set aside.”

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By raising the said ground the defendant appellant challenged the order dated 27.9.2006 passed by the trial Court setting aside the ex-parte order was illegal inasmuch as the defendant appellant was not permitted to file her written statement and raised the plea that the defendant No.1 i.e. the mother of plaintiffs respondents gifted 2 lechas of land out of 1 katha 17 lechas of the suit patta land to her by way of registered gift deed and on the strength of said gift deed the defendant appellant after mutating her name in the jamabandi constructed pucca house thereon. It was contended before the First Appellate Court that while the partition suit was decreed, instead of leaving out the said gifted land of 2 lechas,

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Page No.# 5/8

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the same was included and as such the impugned judgment and decree passed by trial court was bad as the said 2 lechas of land was her absolute property with absolute ownership. 6. The learned First Appellate Court vide judgment and decree dated 13.07.2007 affirmed the judgment and decree passed by learned trial court whereafter being aggrieved, the present defendant appellant has preferred this second appeal which was admitted on the following substantial questions of law, after the same was admitted on 7.1.2008:

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1 .Whether the petition of the property of dwelling house which is not equally divisible can have a partition without assessment of the value of the respective share of the co-sharer and whether partition without valuation of the share will be unjust and inequitable and violative of the Section 2,3 and 4 of the Partition Act, 1893?

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2 .When in a partition suit the co-sharer are entitled to submit application under Section 4 of the Partition Act, 1893 at any stage of the proceeding, whether the written statement of the defendant No.2 can be rejected by applying strictly the procedure of Order 8 Rule 1 of the Code of Civil Procedure ?

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3 .Whether the suit property mentioned in the Schedule C and B which are not divisible equally among the co-sharers can have partition and whether the findings of the Court below are grossly in violation of the provisions of Partition Act, 1893?

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4 .Whether the provision of Order 8 Rule 1 of the Code of Civil Procedure is mandatory in a Partition Suit where the defendant No.2 could not submit her written statement for her ailment which she proved with the evidence of the Doctor ?

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Mr.Choudhury submits that the learned first appellate Court failed to consider that the defendant appellant is seriously prejudiced for not giving any finding with respect to her grounds raised before the First Appellate Court, specifically the issue of disallowing her to file written statement. The First Appellate Court has a duty cast upon it to consider the facts mentioned in the pleadings and appreciate the same as per the evidence on record. Not only that, the learned First Appellate Court failed to take into the consideration the provisions of Section 105 of the Code of Civil Procedure (CPC) and accordingly the judgment passed by the First Appellate Court is bad within the parameters of Order 41 Rule 31 CPC. It is the further contention of learned counsel that under the Partition Act, 1893 any of the co-sharers are at liberty to file application u/s 4 to purchase any other co-sharer’s share and for that purpose filing of written statement by each and every co-sharer of the suit property is mandatory. Order 20 Rule 18 of the CPC specifies that a partition decree must consist of specific share/shares of each of the co-sharers of the suit property. As such non-recording of

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Page No.# 6/8

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any finding with regard to the grounds raised by the appellant before the learned First Appellate Court has caused serious prejudice to the defendant appellant and as such the impugned judgment and decree upholding the judgment and decree of the trial court is liable to be set aside.

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Considered the submission of the learned counsel for the appellant. Perused the order dated 27.9.2006 whereby the learned trial court allowed the defendant appellant to contest the suit bereft of filing her written statement and also her evidence . The said order was rightly taken as a ground before the First Appellate Court. Section 105 CPC is specific where no appeal lies from any order made by a Court in exercise of its original or appellate jurisdiction but where a decree is appealed from any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal i.e the ground No. 5 of the appeal-memo as has been drawn and reproduced from the record hereinabove. The ground is specific in order to draw the attention of the First Appellate Court. The learned trial Court specifically denied the right of adducing evidence though at that relevant point of time stage of argument was not over. However the learned trial court ought to have been given the scope of cross-examination of the plaintiff to the defendant appellant keeping her cross examination confined to the matters pleaded in the plaint only. Further on the date of rejection of the prayer for seeking further time for filing written statement the suit was fixed for filing written statement and the trial court was not satisfied of the ground of illness of the appellant which fact was subsequently proved and the trial Court allowed the application under Order 9 Rule 7 of the CPC. Under such circumstances there was no point in disallowing the prayer for filing the written statement by the defendant appellant moreso when the fact as to in what manner the defendant appellant was prejudiced was well placed before the First Appellate Court.

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Modula India Vs Kamakshya Singh Deo reported in (1988) 4 SCC 619 the Hon’ble Apex Court while deciding the right of defendant whose defence was struck off in the suit filed by the plaintiff appellant held as follows:

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“24. For the above reasons, we agree with the view of Ramendra Mohan Datta, Acting C.J.,that , even in a case where the defence against delivery of possession of a tenant is struck off under Section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled:

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Page No.# 7/8

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(a) to cross-examine the plaintiff’s witnesses; and

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(b) to address argument on the basis of the plaintiff’s case

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We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiffs’ case. In no circumstances should the cross examination be permitted to travel beyond the legitimate scope and to convert itself virtually into a presentation of the defendant’s case either directly or in the form of suggestions put to the plaintiff’s witnesses.”

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From the aforesaid ratio the defendants in such a situation has a right to crossexamine but to a very limited scope. However the defendant appellant would not be entitled to lead any evidence of her own nor the cross-examination be permitted to travel the very limited objective of pointing out the falsity or weakness of the plaintiff’s case. So as the suit was for partition wherein the share of the defendant appellant was not disputed, the plaintiffs respondents Nos. 1 and 2 having considered the defendant appellant as the necessary party to the suit, the learned trial court ought to have allowed the defendant appellant to file her written statement.

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On perusal of the judgment passed by the First Appellate Court it is seen that there is no variation with respect to the finding given by the learned trial court rather same could be termed replica of the judgment passed by the learned trial court. The learned counsel appearing for the defendant appellant submitted that the defendant No.1(defendant respondent No.3)sold out 2 lechas of land with a pucca house thereon in favour of the defendant appellant and plaintiff respondent Nos. 1 and 2 had sought for partition including the said 2 lechas of land. The learned counsel for the present respondents before the first appellate Court, Ms Rubiara Begum contended that no new fact could be introduced by the present defendant appellant for the first time in the appeal. It would not be out of place to mention here that Mr.Choudhuy learned counsel appearing for the present defendant appellant produced a copy of the registered gift deed purportedly executed on 30.3.1999 by the wife of Eusuf Ahmed and the executant was identified by none other than the Advocate Ms.Rubiara Begum.

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In Santosh Hazari V.Purushottam Tiwari(Dead) reported in 2001 AIR SCW 723 it was held as the jurisdiction to reverse or affirm the findings of trial court, first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing

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Page No.# 8/8

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both on question of facts and law. The judgment of the appellate Court must reflects its conscious application of mind and record finding supported by reasons on all the issues arising alongwith the contention put forth and pressed by the parties fo decision of the appellate court.

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It is a fact that the learned trial court accepted the fact of illness of the defendant appellant following which she could not file her written statement and the learned appellate court ought to have considered the said findings of the learned trial court while deciding the application under Order 9 Rule 7 of the CPC moreso considering the nature of the suit which is a partition suit and having not considered the said aspect of the matter, I am constrained to hold that this is a fit case for remand. Accordingly, the appeal is allowed setting aside the judgment and decree passed by the courts below and remand the same to the learned trial court to allow the present defendant appellant to file her written statement and after framing appropriate issues, the learned court shall allow the parties to the suit to adduce fresh evidence and thereafter decide the suit as per merit. Observations made in this appeal under no circumstances shall be taken by the court below to be final and the learned courts below shall decide the suit as per the merit only.

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Accordingly this second appeal is disposed of. Send back the LCR.

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Both the parties to the suit will appear before the trial Court on 4.4.2018. Section is to send back the LCR, considering the date fixed for appearance of the parties before the trial Court.

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JUDGE

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Comparing Assistant

Jahida Ahmed v. Sayera Ahmed and Anr.

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Jahida Ahmed v. Sayera Ahmed and Anr.

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