Partly allowed

Naba Kumar Sarma and Anr. v. on the Death of Smti. Renu Das, Her Legal Heirs and Ors.

Gauhati HC19 May 2025RSA/84/2011

Case brief

AI extract

What is this about?

Second appeal by purchasers challenging concurrent decrees declaring their sale deeds void. The High Court held the 1985 sale deed conveyed only 2 Kathas 8 Lechas under Section 44 TPA, held the suit not barred under Article 65, and modified the decree by declaring parties' shares and passing a preliminary decree for partition.

What did the court decide?

Appeal partly allowed: shares declared, preliminary decree for partition passed, Deputy Commissioner directed to partition within six months; possession decree left to trial court in final decree proc

Naba Kumar Sarma and Anr. Vs on the Death of Smti. Renu Das, Her… — Partition | Gauhati HC (2025)

Page No.# 1/39

GAHC010161062011

2025:GAU-AS:6348

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

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Case No. : RSA/84/2011

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NABA KUMAR SARMA and ANR

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S/O LATE ADYA PRASAD BARUAH @ SARMA, R/O VILL. HAZARIKAPARA, MOUZA HINDUGHOPA,P.O. and P.S. SIPAJHAR, DIST. DARRANG, ASSAM.

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2: BHABEN KALITA

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S/O SHRI PRAFULLA KALITA R/O VILL. TENGABARI KARIM CHOWKA MANGALDAI MOUZA-CHOPAI P.S. MANGALDAI DIST. DARRANG ASSAM

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VERSUS

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ON THE DEATH OF SMTI. RENU DAS, HER LEGAL HEIRS and ORS NAMELY-

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1.1:SHRI SAURABH DUTTA S/O LATE RENU DAS

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1.2:SMTI ANJANA DAS D/O LATE RENU DAS

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1.3:SMTI MANIKUNTALA DAS

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D/O LATE RENU DAS

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1.4:SHRI SUJITH KUMAR DAS

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S/O LATE RENU DAS ALL ARE RESIDENTS OF WARD NO.7

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TENGABARI MANGALDAI TOWN MOUZA CHAPAI P.O. AND P.S. MANGALDAI DISTRICT DARRANG ASSAM

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2:PRAMILA HAZARIKA

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D/O LATE UMESH CH. DAS R/O VILL. SARU ARENG MOUZA-RANGAMATI P.O. and P.S. MANGALDAI DIST. DARRANG ASSAM.

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3:ON THE DEATH OF PURNA DAS HIS LEGAL HEIRS NAMELY-

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3.1:SMTI ANJALI DAS

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W/O LATE PURNA DAS R/O H. NO35 2ND FLOOR ARUNODOI PATH OPPOSITE HATIGAON NAAMGHAR (GUWAHATI) PIN 781038

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3.2:SMTI KALPANA DAS

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D/O LATE PURNA DAS R/O H. NO 35 2ND FLOOR ARUNODOI PATH OPPOSITE HATIGAON NAAMGHAR (GUWAHATI) PIN 781038

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3.3:SMTI KAVITA DAS

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D/O LATE PURNA DAS R/O H. NO 35 2ND FLOOR ARUNODOI PATH

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OPPOSITE HATIGAON NAAMGHAR (GUWAHATI) PIN 781038

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3.4:SMTI ARPANA DAS

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D/O LATE PURNA DAS R/O H. NO 35 2ND FLOOR ARUNODOI PATH OPPOSITE HATIGAON NAAMGHAR (GUWAHATI) PIN 781038

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4:BIMAL DAS

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S/O LATE KAMALA KANTA DAS R/O WARD NO. 8 SALAIPARA MANGALDAI TOWN MOUZA-RANGAMATI DIST. DARRANG ASSAM.

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5:BHABEN DAS

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S/O LATE UMESH DAS R/O VILL. SARU ARENG MOUZA-RANGAMATI P.O.and P.S.MANGALDAI DIST. DARRANG ASSAM.

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6:SIBA PRASAD DAS

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S/O LATE SAMBU RAM DAS R/O VILL. SARU ARENG MOUZA-RANGAMATI P.O. and P.S. MANGALDAI DIST. DARRANG ASSAM.

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7:SMTI SABITRI DAS

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W/O LATE KAMALA KANTA DAS

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Page No.# 4/39

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8:PRANAB JYOTI DAS

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S/O LATE KAMALA KANTA DAS BOTH RESIDING AT WARD NO. 8 SOLALPARA MANGALDAI TOWN MOUZA-RANGAMATI P.O. and P.S.MANGALDAI DIST. DARRANG ASSAM.

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9:SMTI DEVA DAS

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W/O SHRI SURJA KUMAR DAS R/O CHANDMARI MILANPUR GUWAHATI-781021 P.O. BAMUNIMAIDAM DIST. KAMRUP ASSAM.

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10:SMTI KHIRODA DAS

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11:SUNITI DAS

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12:SMTI MINA KUMARI DAS

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NOS 10 TO 12 ALL ARE DAUGHTERS OF LATE KAMALA KANTA DAS NOS. 10 TO 12 ALL ARE RESIDING AT WARD NO. 8 SOLALPARA MANGALDAI TOWN MOUZA-RANGAMATI P.O. and P.S. MANGALDAI DIST. DARRANG ASSAM

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For the Appellants(s) : Mr. S.P. Roy, Advocate

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Ms. V. Rai, Advocate

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For the Respondent(s) : Mr. D. Mozumdar, Sr. Advocate

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Mr. S. Biswas, Advocate

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Page No.# 5/39

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Date of Hearing : 20.05.2025 Date of Judgment : 20.05.2025

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. S.P. Roy, the learned counsel appearing on behalf of the appellants. Mr. D. Mozumdar, the learned Senior Counsel assisted by Mr. S. Biswas, the learned counsel appears on behalf of the respondents.

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This is an appeal filed challenging the judgment and decree dated 16.11.2010 passed in Title Appeal No. 7/2008 by the learned Court of the Civil Judge, Darrang, Mangaldai (hereinafter referred to as, “the learned First Appellate Court”) whereby the appeal was dismissed thereby affirming the judgment and decree dated 30.06.2008 passed by the learned Munsiff No. 1, Mangaldai (hereinafter referred to as, “the learned Trial Court”) in Title Suit No. 03/2007.

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It is seen from the records that the learned Coordinate Bench of this Court vide an order dated 01.07.2011 formulated 2 (two) substantial questions of law which are reproduced herein under:

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“1. Whether a donee and the subsequent transferees acquire good title to the share of property of the donor/co-owner making a gift deed which is partly adjudged void to the extent of the share of the other co-owners?

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Whether the Courts below are right in decreeing the suit without a decree for partition?”

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The question arises in the instant proceedings, as to whether, the 2 (two) substantial questions of law so formulated vide the order dated 01.07.2011 are substantial questions of law involved in the present appeal.

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For ascertaining the same, this Court finds it relevant to take note of the brief facts which led to the filing of the present appeal. For the sake of convenience, this Court would refer to the parties in the same status as they were before the learned Trial Court.

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A perusal of the plaint reveals that the 4 (four) plaintiffs, along with the defendant No. 2 were the successor-in-interest of one Umesh Das (since deceased). The defendant No. 1 as well as the proforma defendant Nos. 2, 3, 4, 5, 6 and 7 were the successor-in-interest of one Kamal Das (since deceased). It is an admitted fact, as would be seen from the pleadings of both the parties, that a plot of land admeasuring 4 Kathas which is described in the Schedule to the plaint and identified by a rough sketch, belonged to Late Umesh Das and

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Late Kamal Kanta Das. On 28.03.1985, the defendant No. 1 along with the defendant No. 2 sold out 2 Kathas of land vide a registered deed of sale in favour of the defendant No. 4. It was alleged that the said sale deed dated 28.03.1985 was executed secretly behind the back of the plaintiffs and further, that the plaintiffs were in possession of the part of the land which belonged to Late Umesh Das. It is further mentioned in the plaint that the defendant No. 1 while transferring the said land vide the registered deed of sale dated 28.03.1985 mentioned therein that he got his right from his father on the basis of a registered deed of gift.

¶69

It is further seen from the averments made in the plaint that on 10.01.1989 the defendant No. 4 sold 1 Katha 16 Lechas of land covered by Dag No. 279 (O)/280(N) to the defendant No. 3 for a sale consideration of Rs. 20,000/- and it has been also averred in the plaint that the same was also done secretly and behind the back of the plaintiffs. It was also averred that the defendant No. 3 thereupon got mutation of the land secretly and fraudulently on 16.06.1989.

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Subsequent thereto, on 07.03.1989, the defendant No. 4 sold 2 Kathas 4 Lechas of land to the proforma defendant No. 2 for a sale consideration of Rs. 5,000/- and delivered possession. It is further seen from a perusal of the plaint that on 08.12.1990, the defendant

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No. 3 started construction of a RCC building over 1 Katha 16 Lechas thereby encroaching upon the 1 Katha 10 Lechas, which was the land of the plaintiffs. The plaintiffs protested to the same and having not succeeded, the suit was filed seeking various reliefs.

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The reliefs so sought were, declaration that 2 Kathas of land out of the 4 Kathas described in the Schedule be described as the share of Late Umesh Das and Late Kamal Das had no title to it; a declaration that the plaintiffs had title over 1 Katha 10 Lechas of land out of 1 Katha 16 Lechas of land purchased by the defendant No. 3; a declaration that the Gift Deed dated 29.01.1981 executed and registered by Late Kamal Das is void and inoperative and the mutation of the defendant No. 3 in the suit land is illegal; a decree for recovery of possession against the defendant No. 3 by demolishing the house over 1 Katha 10 Lechas of land being the share of the plaintiffs; if, in the consideration of the Court, a partition is necessary for recovery of possession, the same may also be decreed; a decree for permanent injunction restraining the defendants or other defendants from continuing construction of the house; a declaration that the mutation of the defendant No. 3 in the revenue records dated 16.06.1989 is illegal etc.

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It is seen from the records that the defendant Nos. 3 and 4 who

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are the appellants herein had only filed their written statement. In the written statement filed by the defendant No. 3, various preliminary objections were taken. The defendant No. 3 denied the case of the plaintiffs and further stated that the defendant No. 4 sold 1 Katha 16 Lechas of land to the defendant No. 3 by a registered deed of sale and delivered possession and the defendant No. 3 thereupon filed a Mutation Case No. 437/1988-89 before the A.S.O. and in that mutation case, the said A.S.O. granted mutation. It was further stated that after the sale of 1 Katha 16 Lechas of land, the remaining 2 Kathas 4 Lechas was sold by the defendant No. 4 to one Sabitri Das. It was denied that on 08.12.1990, the construction was started by the defendant No. 3. It was categorically stated that at the time of purchase of the suit land, the suit land was a low lying land and therefore the defendant No. 3 filled up the same by truckloads of earth from other places. It was further stated that as per permission granted by the Mangaldai Municipality Board, the defendant No. 3 started construction of an Assam Type RCC building and completed major portion i.e. 90% of the same. The construction of the door etc. had been completed. Only the work of wood/C.I. sheet roof remained to be completed.

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It is further relevant to take into consideration the factual details stated by the defendant No. 3 in his written statement. It was stated

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that the defendant No. 2 Bhaben Das was the son of Late Umesh Das. The defendant No. 1 agreed to sell 4 Kathas of land of the suit dag and the defendant No. 4 agreed to purchase the same and the price of the land was fixed at Rs. 10,000/-. It was further mentioned that as the name of Umesh Das was there in the suit dag, the purchaser Bhaben Kalita (defendant No. 4) desired that the defendant No. 2 should be a party as a seller and therefore the defendant No. 1 and the defendant No. 2 sold the entire suit dag for a sale consideration of Rs. 10,000/- and delivered possession of the 4 Kathas to the defendant No. 4. It was further mentioned that as the defendant No. 3 was in need of land, the defendant No. 4 agreed to sell 1 Katha 16 Lechas of land from the suit dag for a sale consideration of Rs. 20,000/-. Accordingly, on 10.01.1989 the defendant No. 4 sold 1 Katha 16 Lechas of land vide a registered sale deed in favour of the defendant No. 3 and delivered possession thereof within specific boundaries. The defendant No. 3 filed Mutation Case Number 437/8889 before the A.S.O. and the same was granted on 16.06.1989. It was also mentioned that the defendant No. 3 had spent Rs. 5,000/- for earth filling.

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Further to that it was also stated that the defendant No. 3 also spent a huge amount of money in the construction of an RCC Assam Type building. At paragraph No. “Sha” of the written statement filed

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by the defendant No. 3, it was averred that even assuming that the plaintiffs had right over the suit land, their rights would be at best 1 Katha 10 Lechas and the defendant No. 4 would have right over the said land to the tune of 2 Kathas 10 Lechas and as such it would not have affected the right of the defendant No. 4 to sell 1 Katha 16 Lechas of land to the defendant No. 3. It was further mentioned that the defendant No. 3 was a bona fide purchaser for value without notice and therefore he was protected under Section 41 of the Transfer of Property Act, 1882 (for short, “the Act of 1882”). The translated Paragraph “Sha” of the written statement filed by the defendant No. 3 having relevance to the instant proceedings is reproduced herein under:

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“Sha) That on 21-09-1981 Kamal Das executed a registered Gift Deed in respect of 4 kathas of the suit Dag in favour of Bimal Das and divested himself of all his right, title and interest and Bimal Das acquired full title thereto. Even if it is assumed that within 4 kathas of land he had title over 2 kathas i.e. half share. In that case Kamal Das was legally entitled to make a gift in respect of the same. In case of Kamal Das and Umesh Das the Dayabhaga School of Hindu law is applicable. Kamal Das legally was entitled to gift the said 2 kathas for that reason after such gift Bimal Das had 2 kathas of land in his share therefore he is entitled to 2 kathas of land and was able to sell the same to defendant No. 4. Even if it is assumed that Umesh Das had title to the suit Dag, according to the admission of the plaintiffs the defendant No. 2 Bhaben Das is at least entitled to 10 lechas of land. Therefore, they were entitled to sell 2 kathas 10 lechas of land out of the entire 10 kathas to the defendant No. 4 Bhaben Kalita as they had title thereto. Hence, out of the 4 kathas defendant

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No. 4 Bhaben Kalita got title to 2 kathas 10 lechas of land. Therefore the defendant No. 4 Bhaben Kalita was entitled to sell 1 katha 16 lechas of land to the defendant No. 3. The defendant No. 3 purchased the same for valuable consideration from Bhaben Kalita and he acquired title to the same. After taking over possession he is possessing the same in his own right by constructing house. The defendant No. 3 is a bonafide purchaser for value without notice and therefore he is protected under Section 41 of the Transfer of Property Act.”

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The defendant No. 4 had also filed his written statement. The stance taken by the defendant No. 4 in the written statement is similar to the stand which has been taken by the defendant No. 3 and for the sake of brevity this Court is not repeating the same.

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Be that as it may, it is an admitted fact by the defendant No. 4 that vide the registered deed of sale dated 28.03.1985, the defendant No. 1 and defendant No. 2 sold 4 Kathas of land to the defendant No. 4 and thereupon the defendant No. 4 transferred 1 Katha 16 Lechas of land to the defendant No. 3 vide a Registered Sale Deed dated 10.01.1989 and 2 Kathas 4 Lechas of land to the proforma defendant No. 2 by a Registered Sale Deed dated 07.03.1989.

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From the materials on record, it is seen that the learned Trial Court framed 15 (fifteen) issues which included eight original issues and seven additional issues. The said 15 (fifteen) issues being relevant are reproduced herein under:

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“1. Whether there is cause of action for the suit?

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Whether proper court-fee has been paid?

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Whether the suit is barred by limitation, equity of estoppel,

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waiver and acquiescence?

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Whether the defendant No. 1 & 2 had right, title and interest to

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sell the entire suit land?

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Whether the sale of the suit land was collusive and the sale deed was void and inoperative?

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Whether the plaintiffs have got right, title and interest as prayed for?

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Whether the parties are entitled to the reliefs prayed for?

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Whether the plaintiffs filed the suit in collusion with pro-forma defendants?

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Additional Issues

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Whether the suit land has been properly described in the plaint?

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Whether the plaintiffs’ father Lt Umesh Das and defendants’ father Lt. Kamala Kt. Das had equal share of 2K on the suit land?

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Whether Kamal Das gifted 2K of land covered by P.P. No. 43 of Dag

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No. 179(old) and 279 (new) by executing a registered deed No. 6789 to his son Sri Bimal Das on 16-9-81 and whether Sri Bimal Das and Sri Bhaben Das sold that 2 K of land to defendant No. 4 by a registered sale deed and whether they have got right, title and interest to execute the sale deed?

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Whether defendant No. 2 Bhaben Das acquired any right, title and interest to sell 1 K 16 L of land out of 2 K to defendant No. 3?

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Whether the suit is maintainable in its present form without partition of properties between Umesh Das and Kamal Das?

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Whether the defendant No. 3 is a bonafide purchaser for value without notice?

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Whether the sale deed dated 10-1-89 executed in favour Naba Kr. Das is void?”

¶110

On behalf of the plaintiffs 4 (four) witnesses were examined and they exhibited 5 (five) documents which were Exhibit 1- Patta of the suit land; Exhibit 2- Sale Deed dated 28.03.1985; Exhibit 3- Bond executed by defendant No. 3 to the effect that if the plaintiffs succeeds in the suit and the suit is decreed in favour of the plaintiffs, the defendant No. 3 undertook to demolish and remove all structures constructed by him; Exhibit 4- Application filed by the defendant No. 3 in Misc Appeal No. 2/91 submitting before the learned Appellate Court that he would execute a bond; Exhibit 5- Certified Copy of the order

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passed in Misc Appeal No. 2/91.

¶113

On behalf of the defendants, 5 (five) witnesses were examined and 8 (eight) documents were exhibited. Exhibit A- Gift deed executed by Late Kamal Das in favour of his son, the defendant No. 1; Exhibit B- Sale deed executed by Bhaben Kalita; Exhibit C- Written statement of Sabitri Das; Exhibit D- Sale deed in favour of Bhaben Kalita; Exhibit E- Application with affidavit by Bhaben Kalita; Exhibit F- Certified copy of sale deed; Exhibit G- Applications of defendant Nos. 3 and 4; Exhibit H- Amended plaint.

¶114

It is very pertinent to take note of the witnesses who were examined by the defendants. Defendant Witness No. 4 was the defendant No. 1; Defendant Witness No. 5 was the defendant No. 2; Defendant Witness No. 1 was the defendant No. 4 and the Defendant Witness No. 2 was the defendant No. 3.

¶115

The learned Trial Court vide its judgment and decree dated 30.06.2008 decreed the suit of the plaintiffs by declaring that the plaintiffs had right, title and interest over 1 Katha 12 Lechas of land described in the Schedule. The sale deed dated 28.03.1985 by which the defendant Nos. 1 and 2 transferred 4 Kathas of land in favour of the defendant No. 4 was declared void and inoperative and there was

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a further decree that the plaintiffs be put into possession in the suit land by evicting the defendant No. 3 by demolishing the house standing thereon. It is relevant to take note of that while deciding the said suit, the learned Trial Court held that Exhibit A and Exhibit B which were not proved as certified copies were adduced in evidence, which were secondary evidence, without following the mandate in terms with Section 65 of the Indian Evidence Act, 1872 (for short, “the Act of 1872”).

¶118

The learned Trial Court further took note of the evidence of the witnesses and, more particularly, the evidence of DW 4 and DW 5 who were the defendant Nos. 1 and 2 respectively. The learned Trial Court while appreciating the evidence observed that the DW 4 deposed that the suit land belonged to Umesh Das and the defendant No. 4 never possessed that 2 Kathas of land and his father gifted him only 2 Kathas of land and he never sold the 2 Kathas of land belonging to Umesh Das. The learned Trial Court further while appreciating the evidence of DW 5, took into consideration that the DW 5 who was the defendant No. 2 deposed that the suit land originally belonged to Umesh Das and Kamal Das and Kamal Das gifted his share of 2 Kathas of land to the defendant No. 1 during his lifetime. It is further relevant to take note of that the learned Trial Court while deciding the issues came to a finding that the sale deed dated 28.03.1985 which

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was executed by the defendant Nos. 1 and 2 in favour of the defendant No. 4 cannot in the eye of law confer right, title and interest upon the defendant No. 4. It was further observed that the registered sale deed dated 10.01.1989 by which the defendant No. 4 sold 1 Katha 16 Lechas of land to the defendant No. 3 had conferred him no right, title and interest over that plot of land in excess of 8 Lechas as because he had no authority to sell beyond 8 Lechas of land and the sale deed is void and inoperative.

¶121

Being aggrieved, the defendant Nos. 3 and 4 jointly preferred an appeal before the learned First Appellate Court which was registered and numbered as Title Appeal No. 7/2008. The learned First Appellate Court vide its judgment and decree dated 16.11.2010 dismissed the said appeal by affirming to the findings of the learned Trial Court. It is under such circumstances, the present appeal has been filed.

¶122

In the backdrop of the above, let this Court now take into consideration, as to whether, the 2 (two) substantial questions of law are involved in the instant appeal.

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Mr. S.P. Roy, the learned counsel appearing on behalf of the Appellants submitted that the learned Courts below erred in law in declaring that the Sale Deed dated 28.03.1985 was void ab initio

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without there being any challenge to the said Deed of Sale. He further stated that the learned Courts below could not have also given any declaration in respect to the registered Sale Deed dated 10.01.1989 inasmuch as there was no relief so sought for in the Plaint as regards the said Deed of Sale dated 10.01.1989. The learned counsel further submitted that even assuming for argument's sake that the learned Courts below could have made appropriate declaration as regards the Deed of Sale dated 28.03.1985 as well as the Deed of Sale dated 10.01.1989 but under no circumstances the entire sale deed could have been nullified taking into consideration that the plaintiffs right were only limited to 1 Katha 10 Lechas of land and nothing beyond that. He therefore submitted that the first substantial question of law so formulated is therefore involved in the Instant Appeal.

¶126

The learned counsel appearing on behalf of the Appellants further submitted that the learned Courts below were also not justified in passing a decree for recovery of possession in respect to a property without there being any finding of the fact that the plaintiffs were dispossessed from the suit land. He therefore submitted that the second substantial question of law is therefore involved in the instant appeal.

¶127

In addition to that, the learned counsel drew the attention of this

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Court to the question of limitation and submitted that the Deed of Gift dated 16.09.1981 which was registered on 21.09.1981 in respect to which declaration has been sought for was barred by limitation in terms with Article 58 of the Schedule to the Limitation Act, 1963 (for short, “the Act of 1963”). He therefore submitted that as the gift deed was barred, and without the gift deed being set aside, the plaintiffs had no right over the suit property, for which, the suit ought to have been dismissed as being barred by limitation.

¶130

The learned counsel appearing on behalf of the appellants further submitted that even as regards the registered deed of sale dated 28.03.1985, the suit having been filed in the year 1991, the suit was barred by limitation and as such this very aspect of the matter having not been taken into consideration properly, the said be framed as a further substantial question of law by this Court before proceeding with the Appeal. The learned counsel in support of his submissions, have referred to three judgments of the Supreme Court. They are Rajeev Gupta and Others Vs. Prashant Garg and Others reported in (2025) SCC OnLine SC 889 and relied upon Paragraph Nos. 32 and 33 of the said judgment; Thankamma George Vs. Lilly Thomas & Another reported in (2024) 8 SCC 351 and referred to Paragraph No. 15.1; Nikhila Divyang Mehta & Another Vs. Hitesh P. Sanghvi & Others reported in (2025) SCC OnLine SC 779 and referred to Paragraph Nos.

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27, 28 and 29.

¶133

Per contra, Mr. D. Mozumdar, the learned Senior Counsel submitted that from the concurrent findings of fact, it would be seen that both Late Umesh Das and Late Kamal Das had equal rights over the 4 Kathas of land. He submitted that though the defendant No. 1 could have transferred 2 Kathas of land belonging to Late Kamal Das, but the defendant No. 2 could not have sold, more than 8 Lechas of land taking into account that Late Umesh Das had 5 successors-ininterest i.e. the plaintiffs as well as the defendant No. 2. He further referred to Section 44 of the Act of 1882 and submitted that in respect to a property which is jointly owned and the said land have not been partitioned, the owner's right to transfer is limited to his share and not beyond that. In that regard, he referred to the judgment of the Supreme Court in the case of Sk. Golam Lalchand Vs. Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal Bayes & Others reported in (2024) SCC OnLine SC 2456 .

¶134

The learned Senior Counsel appearing on behalf of the respondents further submitted that though the deed of sale dated 28.03.1985 have not been specifically challenged in the plaint, but taking into account the provisions of Section 31 and Section 34 of the Specific Relief Act, 1963 (for short, “S.R. Act”), the learned Senior

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Counsel submitted that a suit for cancellation of a sale deed and seeking a declaration that a particular document is inoperative as against the plaintiff are two distinct and separate suits. He submitted that a suit for declaration of title has to be decided by the Court within its fold, consideration of several factors, as to how, the plaintiff is entitled for the declaration of title and in such cases, the plea of the defendants about the validity, enforceability and the binding nature of any document defeating the title of the plaintiff have also to be considered. In such cases, the Court naturally views the evidence on both sides living apart the frame of the suit. The learned Senior Counsel further submitted that the plaint must be read as a whole and actual relief sought for can also be culled out from the averments made in the plaint. In that regard, he referred to the judgment of the Supreme Court in the case of Hussain Ahmed Choudhury & Others Vs. Habibur Rahman (Dead) through Lrs. and Others reported in (2025) SCC Online SC 892 .

¶137

On the question of limitation, the learned Senior Counsel appearing on behalf of the respondents further referred to the judgment of the Supreme Court in the case of Mallavva & Another Vs. Kalsammanavara Kalamma (Since Dead) by Legal Heirs & Others reported in (2024) SCC Online SC 3846 and submitted that where there are several reliefs claimed in the suit, the limitation period would

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be that of the main relief and the limitation for the ancillary relief has to be ignored. The learned Senior Counsel referring to Paragraph No. 31 of the judgment in Mallavva (supra) submitted that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence, unless the defendant proves adverse possession for the prescriptive period, plaintiff cannot be non-suited.

¶140

The learned Senior Counsel appearing on behalf of the respondents submitted that the facts of the present case is distinguishable from the facts involved in the case of Rajeev Gupta and Others (supra) and submitted that in the said case, the facts would show that the Supreme Court had duly considered that the sale deeds executed were not void and inoperative and as such, the plaintiffs therein could not, at their option, seek for cancellation thereof. The learned Senior Counsel submitted that in the present case, the right of the plaintiffs over their undivided share to the extent of 1 Katha 12 Lechas continues till it has been partitioned inasmuch as the defendant No. 2’s right to transfer was only limited to 8 Lechas and nothing beyond that. He therefore submitted that as the suit in question was seeking declaration of their right in respect to the share of the plaintiffs over the schedule property, and the plaintiffs still continue to hold the right over the said land, the right of the plaintiff

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does not extinguish and the period of limitation has to be counted on the basis of Article 65 of the Schedule to the Limitation Act, 1963.

¶143

In the backdrop of the said submissions, let this Court now take up, as to whether, the substantial questions of law so formulated are involved in the instant appeal and further, as to whether, a further substantial question of law arises on the question of limitation.

¶144

For the purpose of deciding the first substantial question of law, this Court had duly taken note of the deed of sale dated 28.03.1985 on the basis of which the defendant Nos. 1 and 2 transferred the land admeasuring 4 kathas in favour of the defendant No. 4. A perusal of the said document, more particularly, the Schedule mentioned therein reflects that the defendant No. 1 had only sold 2 Kathas of his land which was gifted whereas the defendant No. 2 had also sold 2 Kathas of the remaining land. This is apparent also from the observations of the learned Trial Court while appreciating the Deed of Sale dated 28.03.1985 and the evidence of DW 4 and DW 5.

¶145

Section 44 of the Act of 1882 stipulates that where one of the two or more co-owners of an immovable property legally competent in that behalf, transfers, his share of such property or any interest therein, the transferee acquires as to such share or interest and so far

¶146

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as is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.

¶148

In the instant case, from the concurrent findings of facts arrived at by the learned Courts below, it would be seen that the defendant No. 2’s share was only limited to 8 Lechas taking into account Late Umesh Das left behind 5 successors-in-interest who were the 4 plaintiffs and the defendant No. 2. The legal competency of the defendant No. 2 to transfer, therefore, was only to the extent of 8 Lechas. Therefore, the registered sale deed which has been executed dated 28.03.1985 has to be good insofar as the sale so made by defendant No. 1 of 2 Kathas in favour of the defendant No. 4 and as regards 8 Lechas by the defendant No. 2 in favour of the defendant No. 4. This aspect of the matter can also be seen from a recent of the judgment of the Supreme Court in the case of Sk. Golam Lalchand (supra) . In this regard, this Court finds it relevant to quote paragraph Nos. 20, 21 and 22 of the said judgment herein below:

¶149

“20. In this view of the matter, the entire property purchased by the two brothers late Salik Ram and late Sita Ram in the year 1959 vide Exh.1 continued to be the joint property in which both of them had equal rights. On

¶150

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¶151

their death, the same devolved upon their respective heirs and legal representatives including Brij Mohan, his three sisters on one side and plaintiffrespondent Nandu Lal, his three brothers and five sisters on the other side. Thus, Brij Mohan alone was not competent to execute a sale of the entire property in favour of the defendant appellant SK. Golam Lalchand, that too without its partition by metes and bounds.

¶152

Since the suit property has many co-owners including the plaintiffrespondent Nandu Lal and Brij Mohan, the defendant-appellant S.K. Golam Lalchand could not have acquired right, title and interest in the whole of the suit property solely on the basis of the sale deed dated 19.05.2006 executed by Brij Mohan. The said sale deed, if at all, in accordance with Section 44 of the Transfer of Property Act, 1882 may be a valid document to the extent of the share of Brij Mohan in the property and defendant appellant S.K. Golam Lalchand is free to take remedies to claim appropriate relief either by suit of partition or by suit of compensation and damages against Brij Mohan.

¶153

The authorities cited on behalf of the defendant-appellant S.K. Golam Lalchand are only to the effect that there is no illegality on his part in purchasing the share of Brij Mohan in the suit property and to that effect the sale in his favour is valid. There are no two opinions on the above aspect as mentioned earlier but those authorities do not help him in any way to enable us to reverse the decree passed by the First Appellate Court as affirmed by the High Court.”

¶154

Therefore, in the opinion of this Court, the learned Trial Court as well as the learned First Appellate Court could not have come to a finding that the Deed of Sale dated 28.03.1985, was illegal, void ab initio and inoperative rather, both the learned Courts below ought to

¶155

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¶156

have held that the said Sale Deed dated 28.03.1985 conveyed the right, title and interest over the defendant No. 4 to the extent of 2 Kathas 8 Lechas of land of the Schedule Property.

¶157

Before proceeding to the next substantial question of law so formulated, this Court now finds it relevant to take note of the submission so made by the learned counsel appearing on behalf of the appellants that there is no challenge being made to the Deed of Sale dated 28.03.1985 as well as the subsequent Deed of Sale dated 10.01.1989 and as such, the relief so sought for could not have been granted. The answer to the said submission is also found in Paragraph Nos. 23 and 24 of the judgment of the Supreme Court in the case of

¶158

Sk. Golam Lalchand (supra) wherein the Supreme Court holds that Section 31 of the Specific Relief Act, 1963 uses the word “may” for getting declared the instrument as void which is not imperative in every case, more particularly, when the person is not a party to such an instrument. The Supreme Court further observes in the said judgment that the suit property which is undivided is left with the coowners to proceed in accordance with law to get their shares determined and demarcated before making a transfer. Paragraph Nos. 23 and 24 of the said judgment are reproduced herein below:

¶159

“23. A faint effort was made in the end to contend that the plaintiffrespondent Nandu Lal had not asked for any relief of cancellation of the sale

¶160

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deed by which the property was purchased by the defendant-appellant S.K. Golam Lalchand and, therefore, is not entitle to any relief in this suit. The argument has been noted only to be rejected for the simple reason that Section 31 of the Specific Relief Act, 1963 uses the word ‘may’ for getting declared the instrument as void which is not imperative in every case, more particularly when the person is not a party to such an instrument.

¶162

The suit property which is undivided is left with the co-owners to proceed in accordance with law to get their shares determined and demarcated before making a transfer.”

¶163

Now let this Court take note of the submission made by the learned counsel appearing on behalf of the appellants that the suit was barred by limitation in view of the fact that the suit was filed in the year 1991, challenging a deed of gift dated 29.01.1981 and as the main relief is barred by limitation, there arises no question of granting the consequential reliefs. At the outset it is relevant to take note of that though the Deed of Gift dated 16.09.1981 which was registered on 21.09.1981 was put to challenge, the facts of the case and issues which required determination did not actually require that the Deed of Gift to be challenged inasmuch as the defendant No. 1 only transferred 2 Kathas of land to the defendant No. 4 vide the Deed of Sale dated 28.03.1985 and not 4 Kathas. The remaining 2 Kathas was sold by defendant No. 2 and the issue involved is in relation to the sale made by the defendant No. 2 and not defendant No. 1. Under such circumstances, because of assailing a Deed which was not

¶164

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required to be assailed, the plaintiffs cannot be non-suited on the ground of limitation.

¶166

At this stage, this Court finds it very relevant to take note of the judgment relied upon by the learned counsel appearing on behalf of the appellants in support of his submission on the question of limitation i.e. the judgment of the Supreme Court in the case of Rajeev Gupta (supra) . It is relevant to take note of the facts involved in the said case. A suit was filed by one Dr. Karam Chand Garg along with his son which was registered as Original Suit No. 117/2003, wherein a decree for cancellation of the sale deed dated 16.06.1992 as well as for recovery of possession was sought for. The plaintiffs in the said suit also sought for a permanent injunction. While the said suit was pending, the plaintiffs filed an application for amendment of the plaint which was allowed. With the said amendment, a declaration was sought for. The said suit was dismissed by the learned Trial Court. However, the learned First Appellate Court decreed the suit. The learned High Court of Allahabad dismissed the Second Appeal and it is under such circumstances, the matter reached the Supreme Court. One of the issues involved before the Supreme Court pertained to, as to whether, the suit was barred by limitation. It is very relevant to take note of Paragraph No. 35 of the said judgment wherein the Supreme Court observed that there was no dispute that the plaintiffs

¶167

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had knowledge, constructive as well as actual during the pendency of the second suit or soon thereafter of the transfer of the suit property in favour of the appellants by execution of the sale deed which was subsequently registered as required under Section 54 of the Act of 1882. It was further observed that once the appellants started residing in the suit property, what crystallized was the invasion of the plaintiffs’ right and therefore, with the execution of the sale deed, which was subsequently registered, the right to sue first accrued to the plaintiffs. The Supreme Court further observed that the knowledge of the said deed having been executed in the year 1992, being there with the plaintiffs in the said suit, the filing of the suit in the year 2003 was barred by limitation.

¶169

This Court further finds it relevant to take note of another judgment of the Supreme Court in the case of Mallavva (supra) which categorically observes that when the suit is based upon title for possession, once the title is established on the basis of relevant documents and other evidences, unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be nonsuited. The relevant paragraphs of the said judgment being Paragraph Nos. 31 and 32 being pertinent to the issue involved are reproduced herein under:

¶170

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¶171

“31. It is well settled that when there are several reliefs claimed in a suit, the limitation period would be that of the main relief, the limitation for ancillary relief being ignored. The argument of the learned counsel appearing for the appellants herein is not sustainable in law as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on title had to prove not only title but also possession within twelve years of the date of the suit. The said provision of law as observed aforesaid has undergone a metaphoric sea change as we find under the Limitation Act. Article 65 reads as under:

¶172

“Description	Period of	Time	from
of Suit	limitation	which period begins	to
		run
65. For	Twelve	When	the
possession	years	possess	ion
of		of	the
immovable		defend	ant
property or		become	s
any interest		adverse	to
therein		the plai	ntiff”
based on
title

¶173

It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the

¶174

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plaintiff cannot be non-suited. [See: Indira v. Arumugam and Another reported in (1998) 1 SCC 614.]

¶176

In C. Mohammad Yunus v. Syed Unnissa reported in AIR 1961 SC 808, it has been laid down that in a suit for declaration with a further relief, the limitation would be governed by the Article governing the suit for such further relief. In fact, a suit for a declaration of title to immovable property would not be barred so long as the right to such a property continues and subsists. When such right continues to subsist, the relief for declaration would be a continuing right and there would be no limitation for such a suit. The principle is that the suit for a declaration for a right cannot be held to be barred so long as Right to Property subsist.”

¶177

In the backdrop of the above principles of law and applying the same to the facts concurrently arrived at by the learned Courts of facts it appears that the defendant No. 1 sold only 2 Kathas of his land and the defendant No. 2 sold 2 Kathas of his land. The defendant No. 2 though sold 2 Kathas of his land, but he was not legally competent to sell beyond 8 Lechas. Taking into account Section 44 of the Act of 1882, the right which vests upon the defendant No. 4 on the basis of the deed of sale can only be to the extent of 2 Kathas 8 Lechas as has been already observed herein above. Under such circumstances, the plaintiffs continued to have right over 1 Katha 12 Lechas of land of the suit property.

¶178

It is relevant to take note of that this is not a case where there is

¶179

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an extinguishment of the right of the plaintiffs inasmuch as the deed of sale bearing deed No. dated 28.03.1985 can only be held to be good insofar as 2 Kathas 8 Lechas. Under such circumstances, Article 65 of the Act of 1963 would duly apply insofar as the plaintiffs have been able to prove that they had the right, title and interest over the suit land to the extent of 1 Katha 12 Lechas. Therefore, the substantial question of law which has been urged to be formulated on the question of limitation cannot be formulated.

¶181

Now let this Court take up the second substantial question of law which was formulated by the learned Coordinate Bench of this Court. It is noticed from the concurrent findings of facts arrived at that the defendant No. 3 as well as the proforma defendant No. 2 are in respective possession of the suit property. This Court in the foregoing paragraphs of the instant judgment has also observed that the right of the plaintiffs is only limited to 1 Katha 12 Lechas out of the 4 Kathas of the suit land. Therefore, in the opinion of this Court, that without there being a partition, the learned Courts below, were not justified in decreeing the suit for recovery of khas possession in respect to the land under the possession of the defendant No. 3. More so, without taking into consideration that the land which has been sold to the defendant No. 3 was prior to the land being sold to the proforma defendant No. 2. In the opinion of this Court, both the

¶182

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learned Courts below ought to have passed a decree for partition of the suit land described in the schedule to the plaint. Under such circumstances, this Court is of the opinion that in order to pass the decree for recovery of possession in favour of the plaintiffs there is also a requirement of partition of the suit land amongst the plaintiffs and the defendants including the proforma defendant No. 2.

¶184

The question arises before this Court, as to whether, the Court is required to pass a preliminary decree or a final decree for partition. From the concurrent finding of facts and the opinion of this Court in respect to the rights of the parties, it is clear that the plaintiffs have right, title and interest in respect to the suit land to the extent of 1 Katha 12 Lechas taking into account that the defendant No. 1 and 2’s sale to the defendant No. 4 vide the Deed of Sale dated 28.03.1985 was only good to the extent of 2 Katha 8 Lechas. This Court had also taken note of that the defendant No. 4 vide two Deeds of Sale transferred 4 Kathas of land though he was only entitled to sale 2 Kathas 8 Lechas. It is also relevant to take note of that vide the Deed of Sale dated 10.01.1989, the defendant No. 4 sold a portion of the suit land to the extent of 1 Katha 16 Lechas to the defendant No. 3. Subsequent thereto, the defendant No. 4 only had right over 12 Lechas of land, but the defendant No. 4 transferred vide a Deed of Sale dated 07.03.1989, 2 Kathas 4 Lechas to the proforma defendant

¶185

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¶186

No. 2. At this stage, this Court finds it relevant to take into consideration Section 48 of the Act of 1882 which stipulates the doctrine of priority, stating that in cases of multiple transfers of the same immovable property, the earlier transfer takes precedence over the later transfer, if the rights created are incompatible. In that view of the matter, as the rights created by the defendant No. 4 in favour of the defendant No. 3 is earlier at the point of time, the right of the defendant No. 3 in respect to the suit land would be 1 Katha 16 Lechas. The rights of the proforma defendant No. 2 in respect to the suit land would be remaining 12 Lechas and nothing more.

¶187

Therefore from the above, this Court is of the opinion that the shares of the parties in respect to the suit land is as follows:

¶188

Plaintiffs- 1 Katha 12 Lechas

¶189

Defendant No. 3- 1 Katha 16 Lechas

¶190

Proforma Defendant No. 2- 12 Lechas

¶191

It is also relevant to observe that the plaintiff No. 1 during the pendency of the suit had expired, therefore, there would be a requirement of a further enquiry in respect to the share of the plaintiff No. 1 vis-à-vis the plaintiff Nos. 2, 3 & 4 or their successor-in-interest

¶192

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and the defendant No. 2 or his successor-in-interest. This Court also takes note of that vide Exhibit-3 the defendant No. 3 had submitted a bond to demolish the construction if the suit proceedings were decided against the defendant No. 3. In addition to that, further enquiries would be required as regards the location of the area wherein each party to the suit who have entitlement have their share of land. In this regard, this Court finds it relevant to take note of the judgment of the Supreme Court in the Case of Abdul Rejak Laskar Vs. Mafizur Rahman & Others reported in (2024) SCC OnLine SC 3845 wherein the Supreme Court dealt with the issue when a final decree or a preliminary decree is required to be passed. Paragraph Nos. 40 and 41 of the said judgment are reproduced herein below:

¶194

“ 40. In a suit for partition, the court may issue three types of decrees to put the issue to rest: preliminary decree, composite decree (partly preliminary & partly final), and final decree. The purpose of a suit for partition or separation of a share is two fold:

¶195

a. First, declaration of plaintiff's share in the suit properties under the preliminary decree, and;

¶196

b. Secondly, division of his share by metes and bounds which would take place under the final decree.

¶197

41 . In a given case, the property may be put to sale and the proceeds would be shared among the shareholders which can be termed a final decree. In a

¶198

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partition suit, if the court is unable to make a division of property by metes and bounds forthright without further inquiry, the court will initially pass a preliminary decree. A preliminary decree for partition identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. The prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings.”

¶200

Accordingly, the instant appeal stands partly allowed with the following observations and directions:

¶201

(i) The plaintiffs share over the suit land described in the Schedule to the Plaint is 1 Katha 12 Lechas and accordingly this Court declares the same.

¶202

(ii) The defendant No. 3’s share over the suit land is to the extent of 1 Katha 16 Lechas and this Court declares the same.

¶203

(iii) This Court declares that the share of the proforma defendant No. 2 over the suit land to be 12 Lechas.

¶204

(iv) On the basis of the above shares being declared in respect to the suit land, this Court passes a preliminary decree thereby directing the Deputy Commissioner of Darrang District, Mangaldai to partition the suit land in

¶205

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terms with the shares declared herein above. The Deputy Commissioner, Darrang or any Gazetted Subordinate of the Deputy Commissioner deputed by him in this behalf shall partition the suit land in terms of the shares so declared herein above and thereupon issue respective separate Patta to the parties who have been declared to be entitled to the suit land.

¶207

(v) Some of the original plaintiffs have expired as well as some defendants. While making the said partition, the Deputy Commissioner, Darrang or the Gazetted Subordinate of the Deputy Commissioner deputed by him in this behalf shall make necessary enquiries and thereupon carry out the partition. In that regard, the notice be issued to the parties who have been held to be entitled to the shares of the suit land. The partition proceedings be completed with a sense of urgency by the Deputy Commissioner, Darang or the Gazetted Subordinate of the Deputy Commissioner deputed by him in this behalf and preferably within 6 (six) months from the receipt of a copy of the instant judgment and the preliminary decree so directed to be made hereinafter.

¶208

(vi) The Registry is directed to draw up a preliminary

¶209

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decree and send it to the Deputy Commissioner, Darrang District for partition forthwith.

¶211

(vii) The said partition upon being made, report be submitted by the Deputy Commissioner, Darrang or the Gazetted Subordinate of the Deputy Commissioner before the learned Court of the Civil Judge (Junior Division) No. 1, Darrang, Mangaldai. Upon receipt of the said report, the learned Court of the Civil Judge (Junior Division) No. 1, Darrang, Mangaldai thereupon shall draw the final decree.

¶212

(viii) This Court further observes and directs that the learned Court of the Civil Judge (Junior Division) No. 1, Darrang, Mangaldai while drawing up the final decree shall pass appropriate decree for recovery of possession in favour of the plaintiffs in respect to the area of land which has been partitioned in their favour as well as other consequential reliefs as sought for in the plaint.

¶213

(ix) The learned Court of the Civil Judge (Junior Division) No. 1, Darrang, Mangaldai is further directed to regularly issue directions upon the Deputy Commissioner, Darrang or the Gazetted Subordinate of the Deputy Commissioner

¶214

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ensuring early completion of the partition proceedings.

¶216

There shall be no order as to costs.

¶217

The Records of the learned Courts below be returned forthwith to the learned Trial Court.

¶218

JUDGE

¶219

Comparing Assistant

Naba Kumar Sarma and Anr. v. on the Death of Smti. Renu Das, Her Legal Heirs and Ors.

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Naba Kumar Sarma and Anr. v. on the Death of Smti. Renu Das, Her Legal Heirs and Ors.

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