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Title and partition suit of undivided jote should go together

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Appellate Division (Civil)  :
Surendra Kumar Sinha CJ
Syed Mahmud Hossain J
Hasan Foez Siddique J
Mirza Hussain Haider J
Jahangir Alam (Md) and others ... Appellants
vs
Sabdir Ahmed and others...............Respondents
Judgment
December 7th, 2016
Specific Relief Act (1 of 1877)
Sections 42
In the absence of partition of the undivided jote the plaintiff' cannot pray for simple declaration of title without praying for partition by impleading all the co-sharers.
The plaintiffs without impleading all the heirs of Samadullah prayed for declaration of title in the undivided jote left behind by Samadullah. The plaintiffs should have prayed for not only declaration of title but also for partition impleading all the co-sharers of Samadullah. The Appellate Court was, however, justified in decreeing the suit in part holding that since the plaintiffs were not impleaded in previously filed title suit for partition, they were not bound by that decree. The Appellate Court was perfectly justified in giving the above declaration. The plaintiff-appellants are, however, entitled to file a properly framed suit if so advised and the question of limitation will not stand on the way (24 & 25)
Tayeb Ali vs Abdul Khaleque, 43 DLR (AD) 87; Enjaheruddin Mia alias Md Enjaheruddin Mia, (1998) 18 BLD (AD) 77 = 50 DLR (AD) 84 arid Mrs Shabiha Khanam vs Jaitun Bibi @ Mrs Syed Moazzem Hossain being dead her heirs Syed Nurul Hasan, (1998) 3 MLR (AD) 15 = 3 BLC(AD) 175 ref.
Shaheed Alam, Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record-For the Appellants.
Mahbubey Alani, Senior Advocate and Khair Ezaz Maswood Advocate, instructed by Nurul Islam Bhuiyan, Advocate-on-Record-For Respondent No.1.
Judgment
Syed Mahmud Hossain J : This appeal, by leave~ is directed against the judgment and order dated 3-2-2009 passed by a single Bench of the High Court Division in Civil Revision N0.2919 of 2007 discharging the Rule and affirming the judgment and decree dated 11-4-2007 passed by the learned Additional District Judge, First Court, Sylhet in Title Appeal No.114 of 2006 allowing the appeal in part and reversing the judgment and decree dated 25-7-2006 passed by the learned Senior Assistant Judge, Sadar, Sylhet in Title Suit No.23 of 2003 dismissing the suit.
2. The facts leading to the filing of this appeal, in a nutshell, are that Samadullah was the owner of 2.74, acres of land appertaining to plot No.2906 of SA Khatian No.553 as described in schedule-1 to the plaint. Samadullah gifted the said land to his 4 sons, namely, Mattober Ali, Mokaddas Ali, Abdul Nojibor and Idris, who used to possess the same by cultivating paddy. Similarly, Samadullah used to possess another 0.10 acre of land appertaining to plot No.2905 of Khatian No.301 after getting the said land from his father Ayet Ali by way of amicable partition with other brothers. Samadullah's son Mukaddas Ali got the said 0.10 acre of land of plot No.2905 by way of amicable partition after the death of Samadullah. Thus Mukaddas Ali got 1/4 share of plot No. 2906 measuring 0.6850 acre of land and 0.10 acre of land of plot No. 2905. He sold 0.22 acre of land and 0.08 acre of land from plot Nos.2906 and 2905 respectively to the predecessors of the plaintiffs, Muddasir Ali and Muzammel Ali by 2 registered deeds of sale dated 3-11-1968 and 1-4-1969 and delivered possession thereof to the purchasers. At the time of execution and registration of the deeds, the plot number was wrongly mentioned as 2693 instead of plot Nos.2905 and 2906 which was detected in 1975. As soon as, the matter was informed to Mukaddas Ali, he executed and registered another deed dated 14-1-1975 mentioning the correct plot Nos.2905 and 2906 and the area of land was correctly mentioned in rectified deed as 0.30 acre. Subsequently, Mudassir Ali and Muzammel Ali died leaving behind 4 sons, plaintiff Nos. 1-4, 2 daughters, defendant Nos.5-7 and wife plaintiff No.6 who used to possess the suit land.
3. It was also contended by the plaintiffs that defendant Nos. 1-2 claimed title to the suit land in August 2002 as they got a decree from the court in a partition suit and on query, the plaintiffs found that in Title Suit No.30 of 1998 for partition they were not made parties and defendants obtained an ex parte decree. On 4-1-2004, defendant Nos. 1 and 2 threatened to dispossess the plaintiffs from the suit land. Hence the suit has been filed.
4. Defendant Nos 1 and 2 contested the suit by filing written statement denying all the material statements made in the plaint. Their case, in short, is that the suit is not maintainable in its present form. The suit is barred by limitation and the plaintiffs have no possession in the suit land. The land of plot No. 2906 of the 1st schedule to the plaint belonged to Samadullah. During continuance of his title and possession in that land, Samadullah sold 0.45 acre of land to Most. Ekramunnesa, the mother of these defendants, by a registered deed dated 25-9-1964 and handed over possession to her. Subsequently, Samadullah died on 25-6-1972 leaving behind 4 sons, Mohabbat Ali, Mokaddas Ali, Mosabbir Ali and Idris Ali along with 2 daughters Shamsunnessa and Suratunnessa. Idris Ali died leaving behind his wife, 4 sons and 5 daughters, defendant Nos.5-11 and Raina Begum and Badana Begum.
On 10-2-1983, Mohabbat Ali died leaving behind 2 sons, defendant Nos.3-4. On 12-12-1991 Mokaddas Ali died leaving behind wife and 1 daughter and 1 son. After death of his wife, on 14-5-1997, his son and daughter, defendant Nos. 1 and 2 became the leaving· heirs of Mokaddas Ali Abdul Mosabbir died leaving behind his son, defendant No.16 and 4 daughters. Defendant Nos. 1-2 have got 0.45 acre of land from their mother Ekramunessa and 0.46 acre of land from their father and mother as heirs and in total they got 0.91 acre of land. On 18-2-1998, defendant No.1 came to know that at the time of SA operation, the land of plot No.2906 had been recorded in the names of 4 sons of Samadullah in respect of 0.74 acre of land instead of 2.74 acres of land. These defendants asked the co-sharers to make partition of their shares but they refused to do so. Finding no other alternative, these defendants filed Title Suit No.30 of 1998 for partition impleading all the co-sharers. After getting notices, some of the co-sharers appeared before the Court but they did not file written statement and as a result, the suit was decreed ex parte in preliminary form on 13-92000. Then an Advocate Commissioner was appointed who filed a report on the basis of which final decree was passed on 9-5-2002:
After that, Execution Case No. 04 of 2003 has been filed which is still pending. The plaintiffs had no right, title and interest in the suit land and as such, the suit is liable to be dismissed.
5. The trial Court, upon hearing the parties, by the judgment and decree dated 25-72006, dismissed the suit.
6. Against the judgment and decree passed by the trial Court, the plaintiffs preferred an appeal being Title Appeal No.114 of 2006 before the learned District Judge, Sylhet. On transfer, the appeal was heard and disposed of by the learned Additional District Judge, First Court, Sylhet, who by the judgment and decree dated 11-4-2007 allowed the appeal-
in-part reversing the judgment and decree passed by the trial Court:
7. Being aggrieved by the aforesaid judgment and decree passed by the Appellate Court, the plaintiffs moved the High Court Division by filing a revisional application and obtained Rule in Civil Revision No.2919 of 2007. The learned Single Judge of the High Court Division by the impugned judgment and order dated 3-2-2009 discharged the Rule.
8. Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the plaintiffs as the leave petitioners have filed this Civil Petition for Leave to Appeal No.1176 of 2009, in which, leave was granted on 12-1-2011, resulting in the instant Civil Appeal No.61 of 201l.
9. Mr Shaheed Alam, learned Advocate, appearing on behalf of the plaintiff-appellants, submits that the Court of Appeal below reversed the finding of the trial Court and held that the appellants have title and possession and that they are not bound by the judgment of Partition Suit No.30 of 1998 but did not allow the appeal in full on the ground that the appellants did not implead the daughters of Samadullah in the suit and that the High Court Division wrongly discharged the Rule without considering that the daughters of Samadullah were not necessary parties since the appellants' suit was not suit for partition and as such, the impugned judgment should be set aside.
10. Mr Mahbubey Alam, learned Senior Advocate and Mr Khair Ezaz Maswood, appearing on behalf of respondents, on the other hand, submit that the appellate Court rightly found that a suit for declaration simplicitor is not maintainable as admittedly the original owner Samadullah had two daughters and that admittedly the jote left behind by Samadullah was not partitioned by metes and bounds. In support of their submissions, the learned Advocates relied on three cases which we shall discuss in the body of the judgment.
11. We have considered the submissions of the learned Advocate for the appellants and the learned Advocates for respondents, perused the impugned judgment and the materials on record.
12. Leave was granted to consider whether a suit for declaration of title was maintainable without prayer for partition and whether the High Court Division was justified in affirming the judgment of the appellate Court when the appellate Court came to the finding that the appellants could prove their title to and possession in the suit land.
13. Admittedly, Samadullah was the owner of 2.74 acres of land of plot No.2906 of SA Khatian No.553. The plaintiffs alleged that Samadullah gifted the aforesaid land to his four sons. The plaintiff, however, could not produce the deed of gift alleged to have been executed by Samadullah. It is also stated Samadullah got 0.10 acre of land from his father Ayet Ali in plot No.2905 of Khatian No. 301. Mukaddas Ali one of the sons of Samadullah sold 0.22 acre of land from plot No. 2906 and 0.08 acre of land from Plot No.2905 to the plaintiffs' predecessors by two registered deeds of sale dated 3-11-1968 and 1-4-1969. Later it was detected that in both the deeds Plot No.2693 (1693) was wrongly written in place of plot Nos.2905 and 2906 which was detected in 1974. Subsequently, the vendor Mukaddas Ali executed and registered a rectification deed on 14-1-1975.
14. Defendant Nos.1 and 2, the contesting defendants stated that admittedly, Samadullah was the owner of the land shown in the first schedule to the plaint. Samadullah sold 0,45 acre of land to Ekramunnessa, the predecessor in-interest of defendant Nos.1 and 2 by a registered deed of sale dated 25-9-1964. These two defendants also became owners of 0.46 acre of land as the heirs of their father and mother and in total they became owners in 0.91 acre of land.
15. Admittedly, Samadullah died leaving behind four sons and two daughters. The claim of the plaintiffs that Samadullah gifted 2.74 acres of land of plot No.2906 of SA Khatian No.553 to his four sons could not be substantiated by producing any documentary evidence. It is also admitted that the jote left behind by Samadullah was not partitioned by metes and bounds.
16. The trial Court came to the finding that the plaintiffs could not prove their title to and possession in the suit land. The trial Court also found that the plaintiffs had claimed declaration of title to the suit land measuring 0.30 (0.22 + 0.08) acre out of 2.74 acres in which admittedly several co-sharers had been possessing and that they could not prove the specification of the suit land properly. The trial Court, therefore, concluded that the plaintiffs ought to have prayed for partition as consequential relief apart from declaration of title.
17. The Court of appeal, however, found that the plaintiffs could prove their deeds of sale by adducing evidence. The appellate Court also found that they had been able to prove their possession as well in the undivided jote left behind by Samadullah. The appellate Court, however, found that as per evidence, Samadullah apart from four sons had two daughters and that the daughters are also co-sharers in the undivided jote left behind by Samadullah. The appellate Court held that the disputed jote was not partitioned by metes and bounds and that the daughters of Samadullah were also necessary parties. The appellate Court noted that the plaintiffs without impleading the daughters claimed title to the suit land. Therefore, the plaintiffs should have filed a suit for declaration of title as well for partition.
18. The appellate Court, however, came to a finding that the plaintiffs became owners in the disputed jote by purchase and that they were not impleaded as defendants in Partition Suit No.30 of 1998 filed by the defendants and that the aforesaid partition suit was not disposed of legally. The appellate Court held that since the plaintiff-appellants are co-sharers in the disputed jote they are entitled to get relief against the ex parte decree passed in Title Suit No.30 of 1998. Accordingly, the appellate Court declared that the plaintiff-appellants are not bound by the ex parte decree passed in Title Suit No. 30 of 1998 for partition.
19. The High Court Division merely concurred with the findings and decision arrived at by the appellate Court.
 (To be continued)
20. Admittedly, Samadullah died leaving behind four sons and 2 daughters. The plaintiffappellants became co-sharers in the disputed jote left behind by Samadullah by purchase. Defendant Nos. l and 2 claimed that they also became owners in the disputed jote left behind by Samadullah by purchase and inheritance. The plaintiff-appellants claimed title to the disputed jote left behind by Samadullah without impleading the admitted co-sharers to the suit. While seeking declaration of title in an undivided jote, the plaintiffs should have prayed not only for declaration of title but also for partition as a consequential relief as envisaged in the proviso to section 42 of the Specific Relief Act. If declaration of title is allowed to the plaintiffs in the undivided jote left behind by Samadullah, the other co-sharers, who are not impleaded in the suit are likely to be affected. Admittedly, many co-sharers and successive co-sharers of Samadullah were not impleaded in the suit for declaration of title filed by the plaintiff-appellants. In a suit for partition, the share of each of co-sharer is determined and such determination is necessary so that at the time of calculation of shares, the share of none of co-sharers is affected or reduced. If declaration of title is allowed to the plaintiff-appellants in the absence of other co-sharers, the left out co-sharers are likely to be affected.
21. In this connection, reliance may be placed on the case of Enjaheruddin Mia alias Md Enjaheruddin Mia, (1998) 18 BLD (AD) 77 = 50 DLR (AD) 84 where it has been held as under:
"The proviso to section 42 of the Specific Relief Act, 1877 (Act 1 of 1877) provides that no court shall make any declaration as to the plaintiff's legal character or his right to any property where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. So far as the instant case is concerned the plaintiffs could have asked for either joint possession or partition as a co-sharer of the defendants in the disputed land, but they did not take any such stand in the lower appellate Court or even before the High Court Division. In such view of the matter it will not, at all be fair to put blame either upon the lower appellate court or the High Court Division that they did not declare plaintiffs' title to the part of the suit land."
22. Reliance may also be placed on the case of Mrs Shabiha Khanam vs Jaitun Bibi@ Mrs Syed Moazzem Hossain being dead her heirs: Syed Nurul Hasan, (1998) 3 MLR (AD) 15 = 3 BLC (AD) 175 where it has been held as under:
It must however be said that in the absence of any evidence of partition of CS plot No. 42 the plaintiff-petitioner is not without right and title to his portion of purchased land. Admittedly his purchase is through a co-sharer. But he cannot claim declaration of title simpliciter unless he claims a partition for determining the respective shares of the four brothers in CS plot No. 42 and thereafter his own share of 0.13 acres therein. Hence although the suit has ultimately been dismissed the issue is still open and the plaintiff is free to agitate the. question of his title and entitlement to specific portion of 0.13 acres from CS plot No.42 in a properly framed partition suit."
23. Reliance may also be placed on the case of Tayeb Ali vs Abdul Khaleque, 43 DLR (AD) 87 where it has been held that the suit being one for declaration of title to an unspecified share of an undivided plot of land is not maintainable without prayer for partition.
24. The principle expounded in the cases is that in the absence of partition of the undivided jote the plaintiff cannot pray for simple declaration of title without praying for partition by impleading all the co-sharers. The plaintiff appellants in the case in hand could have asked for joint possession in the disputed undivided jote left behind by Samadullah but they omitted to do so at any stage of the suit. Thus they are not entitled to declaration of title within specific boundary in the undivided jote left behind by Samadullah in the absence of left out co-sharers.
25. The plaintiffs without impleading all the heirs of Samadullah prayed for declaration of title in the undivided jote left behind by Samadullah. The plaintiffs should have prayed for not only declaration of title but also for partition impleading all the co-sharers of Samadullah. The appellate Court was, however, justified in decreeing the suit in part holding that since the plaintiffs were not impleaded in previously filed Title Suit No. 30 of 1998 for partition, they were not bound by that decree. The appellate Court was perfectly justified in giving the above declaration. The plaintiff-appellants are, however, entitled to file a properly framed suit if so advised and the question of limitation will not stand on the way.
In the light of the findings made before, we do not find any substance in this appeal. Accordingly, this appeal is dismissed without any order as to costs.

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