LANKESHWAR MALAKAR AND ORS. versus R. DEKA AND ORS.

Citation: [2006] SUPP. 9 S.C.R. 895 · Decided: 30-11-2006 · Supreme Court of India · Bench: S.B. SINHA, MARKANDEY KATJU · Disposal: Appeal(s) allowed

Judgment (excerpt)

LANKESHWAR MALAKAR AND ORS. 
A 
v. 
R. DEKA AND ORS. 
NOVEMBER 30, 2006 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
B 
Code of Civil Procedure, 1908: 
s. 100-Second appeal-Substantial question of law-Before High Court 
contention raised that findings of first appellate court regarding certain suit C 
properties were contrary to records-Held, High Court should have considered 
this question from correct perspective-Judgment of High Court set aside-
Matter remitted back to High Court for consideratirm afresh-It will be open 
to High Court to formulate fresh question(s) of law. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4813 of2000. D 
From the Judgment and Order dated 21-8-1998 of the Gauhati High 
Court in S.A. No. 149/1998. 
P.K. Goswami, Rajiv Mehta, 8. Aggarwal and A. Henry for the E 
Appellants. 
Rishi Maheshwari, R.K. Maheshwari, Ms. Tarannum Ansari and Raj 
Kumar Kaushik for the Respondents. 
The following Order of the Court was delivered by 
ORDER 
F 
The plaintiffs are before us questioning the correctness or otherwise of 
the judgment and order dated 21.8.1998 passed by a learned Single Judge of 
the High Court of Assam, whereby and whereunder the second appeal preferred 
by the appellant against a judgment and order dated 23 .5 .1988 passed by the G 
Assistant District Judge, Barpeta, in Title Appeal No. 46/1986, was dismissed. 
The basic fact of the matter is not in dispute. 
The lands in suit and other lands belong to one Durga Malakar. He is 
~s 
H 
896 
SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R. 
A the paternal uncle of the plaintiffs' father Nareswar Malakar. The exact date 
of death of Durga Malakar is not known. He left behind his widow, namely, 
Gandhari. The dispute between the parties revolves on the execution of a will 
by Durga Malakar in favour of the plaintiffs on 8.10.1958 and execution of 
a purported Deed of Gift dated 5.5.1958, which was in the name of his wife 
Gandhari. 
B 
Before we advert to the questions raised before us we may notice that 
Gandhari by reason of a Sale Deed dated 21.1.1960 conveyed her right, title 
and interest in the properties in question purported to be based on the said 
Deed of Gift dated 25.5.1959 in favour of Hamchandra Malakar. Arvinda 
C Sarma allegedly entered into a deed of exchange of land with the said 
Hemchandra, grandfather of the r!!Spondent herein; pursu~t whereto the 
grandfather allegedly came in possession of the lands in question. The names 
"i 
of the respondents were entered into the revenue records of rights. The 
plaintiffs therefore filed a suit in the Court of Munsif, Barpeta, which was 
registered as title suit No. 111/1966. We may at this juncture notice that the 
D plaintiffs filed an application for grant of probate in their favour which was 
allowed by order dated 20th November, 1973. 
The learned Trial Judge having regard to the pleadings of the parties 
inter alia framed the following issues: 
E 
l. Whether the Court has got pecuniary jurisdiction to try this suit? 
2. Whether proper Court fees have been paid? 
F 
3. Whether the suit is bad for non-joinder of necessary parties? 
4. Whether the plaintiff has got right, title and interest over the suit 
land? 
5. Whether Gandhari, wife of Durga Malakar has saleable interest 
over the suit land to sell it to one Hem Kanta Malakar? 
6. Whether the defendants have acquired valid title over the suit land 
G 
by means of 'exchange' as alleged in the written statement? 
7. To what relief, if any, the parties are entitled? 
8. Whether .the suit is barred by limitation?" 
H 
In the said suit the following prayers were made: 
1_ 
LANKESHW AR MALAKAR v. R. DEKA 
897 
(i) "That the plaintiffs' possession of the land in schedule 'Ka' be A 
confirmed on declaration of their title thereto and on declaration of.the 
principal defendant's unlawful possession null and void; 
(ii) that necessary precept be issued to the S.D.C., Bajali Circle, for 
effecting mutation of the land in Schedule 'Ka' in favour of the 
plaintiffs on the basis of the probate and their long tenn possession; B 
(iii) That a perpetual prohibitory injunction be issued, restraining the 
principal defendants from causing hindrance to the possession of the 
land in Schedule 'Ka'." 
Schedule 'Ka' of the plaint was described as under: 
SCHEDULE - "Ka" 
Land measuring 1 Bigha 2 katha with a revenue of Rs. 2.24 paise 
in dag 1628 (new)/548(old) of K.P. Patta No. 254(new)/9l(old) and 
c 
4 Katha 6 lechas (revenue Rs. 1.12) in dag 1660 (

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