WP(C) 79/2007 BEFORE HON’BLE MR JUSTICE A K GOSWAMI JUDGMENT AND ORDER (ORAL) Heard Mr. K. K. Mahanta, learned senior counsel appearing for the appell ants/plaintiffs. None appears for the respondents despite service of notice. 2. This second appeal is directed against the judgment and decree dated 20. 03.2007 passed by the learned Civil Judge, Sonitpur, Tezpur, in Title Appeal No. 6/2006, whereby the appeal preferred against the judgment and decree dated 24.0 4.2006, passed by the learned Civil Judge (Junior Division No. 1), Sadar Munsiff , Tezpur, in Title Suit No. 27/2001, was dismissed. 3. This appeal was admitted to be heard by an order passed on 01.08.2007 o n the following substantial questions of law: 1. Whether the learned Court below was justified in dismissing the suit of the plaintiff in its entirety on the face of the finding on Issue No. 6 and the additional Issue No. 1 framed in the suit? 4. Issue No. 6 and Additional Issue No. 1 read as follows: 6. Whether Late Golap Bhuyan sold his share of land to the four sons of Lat e Rudra Bhuyan in the year 1967? Additional Issue No. 1: Whether the plaintiffs have right, title and interest over the suit land? 5. The plaintiffs filed the suit for declaration of right, title and intere st over the suit land and for eviction and recovery of possession. 6. The case of the plaintiffs, as projected in the plaint, is that Schedule -A land measuring 14 Bigha 3 Katha 13 Lecha, at village Dekargaon, Mouza Bhairab pad, in the District of Sonitpur, Assam, in different dags of three different pa ttas were originally owned by one Kandura Bhuyan. Kandura had two sons - Rudram Bhuyan and Dhani Bhuyan. Rudram had four sons, namely, Thanuram, Mohan, Nilamb ar and Cheniram. They are no more. Dhani had two sons, namely, Dandi Bhuyan an d Golap Bhuyan. Plaintiffs are the sons of Golap Bhuyan and defendant No. 1 is the son of Cheniram. The pro forma defendants are some of the legal representat ives of sons of Rudram Bhuyan. 7. It is averred that the eldest son of Dhani Bhuyan, namely, Dandi, had go ne missing and was untraced. Pro forma defendant No. 11 is also one of the son s of Golap. It is the case of the plaintiffs that the defendants were possessing the suit land, but the plaintiffs, who earlier had no knowledge of the suit lan d, obtained mutation and, on 20.01.2001, tried to take over possession but they were frustrated in their attempt to take over possession. It is pleaded at one p lace that the defendants have no right, title and interest on the suit land and, in another place, it is pleaded that the defendant and the pro forma defendants were entitled to some shares, as indicated in the plaint. The plaintiffs are e ntitled to 2/3rd share of land as described in Schedule-C. Schedule-B land was s hown to be measuring 7 Bigha 1 Katha 16.5 Lecha, out of Schedule-A, being the sh ares of Golap and Dandi, from which 1 Bigha 1 Katha was sold by Golap Bhuyan. Schedule-C, in total, refers to 6 Bigha 16 Lecha. 8. The defendant Nos. 1, 2, 3, 4, 6, 8 and 10 filed written statement stati ng that all the legal representatives had not been brought on record and they an nexed a genealogical table tracing the origin from Late Kandura Bhuyan. Many of the factual averments in the plaint, such as residence, names of the heirs were disputed. It is pleaded that Golap Bhuyan had sold his share of land by a regist ered sale deed, dated 04.10.67, bearing Deed No. 3147 of 1967 transferring all h is rights to sons of Rudram. There was no necessity to deliver possession of the land as the land was always under the possession of Rudram Bhuyan and, after hi s death, in possession of the predecessors-in-interest of the defendant and pro forma defendant Nos. 1 to 10 and they have been owning and possessing the suit l and. Golap Bhuyan died about 22 years back and he had not raised any dispute wha tsoever and the defendant and heirs of Rudram are possessing the land described in Schedule-A (i) and (ii) to the plaint. As Dandi had remained untraced, Shrad ha of Dandi was performed by Golap Bhuyan after around 12 years since Dandi had become untraced, when the plaintiff No. 1 was a small child. So far as Schedule- A (iii) is concerned, it is pleaded that though originally it belonged to Kandur a Bhuyan, the same had been sold long time back and neither the plaintiffs nor t he defendants are pattadars in respect of the said plot of land. 9. Both the courts below had concluded, on the basis of the admission of PW 1, that all the legal heirs of Kandura Bhuyan had not been made parties. Two da ughters of Thanuram, two daughters of Mohan, four surviving daughters of Nilamba r had not been made parties. The suit being filed by the plaintiffs for declarat ion of their right, title and interest over the ancestral property and for recov ery of possession, it was held that the suit was bad for non-joinder of necessar y parties. So far as land in Schedule A(iii) is concerned, both the learned cour ts below held that plaintiffs had failed to prove their case. 10. The learned trial court, in Issue No. 6 and Additional Issue No. 1, by t aking up the same together for discussion and decision, held that the father of the plaintiffs had not sold his share of land in Patta No. 73 (old), 68 (new) an d Patta No. 191 (old), 173 (new) to the sons of Rudram Bhuyan and, therefore, th e plaintiffs had title over 1 Bigha 2 Katha 6 Lecha of land in Patta No. 73 (old ), 68 (new) and 1 Katha 15 Lecha of land in Patta No. 191 (old), 173 (new). How ever, the suit was dismissed in view of the finding recorded that the suit was b ad for non-joinder of necessary parties and the division of the property, sought by the plaintiffs, was obscure and vague. 11. It appears that the findings on Issue No. 6 and Additional Issue No. 1 w ere also assailed by the defendants before the learned lower appellate court. T he learned lower appellate court, in essence, held that the plaintiffs were co-s harers of land in Schedule-A (i) and (ii) to the extent of 3 Katha 18 Lecha. Ho wever, the learned lower appellate court held that Issue No. 11 relating to the entitlement of the plaintiffs to the reliefs, was rightly decided by the learned trial court as, in case of a joint property, no exclusive right, title and inte rest can be claimed over a specific plot of land until and unless shares are cur ved out. Observing that no prayer was made in the suit for partition and the pla intiffs having prayed only for exclusive right, title and interest over the land in Schedule-C by recovery of possession of the said land by evicting the defend ants and the pro forma defendants, the learned lower appellate court concurred w ith the decision of the learned trial court and, accordingly, dismissed the appe al. 12. Mr. K. K. Mahanta, learned senior counsel for the appellants has submitt ed that the learned lower appellate court, having found that the plaintiffs are co-sharers to the extent of 3 Katha 18 Lecha, in respect of land in Schedule-A ( i) and (ii), committed manifest error of law in declining the prayer of the plai ntiffs and dismissing the suit in its entirety. He has submitted that the estate was sufficiently represented by the defendants and, therefore, the suit ought n ot to have been dismissed on the ground of non-joinder of necessary parties. In the facts and circumstances, the prayer for partition was not required to be mad e and, thus, the learned courts below had committed manifest error of law in dis missing the suit of the plaintiffs. 13. I have considered the submissions of the learned senior counsel for the appellants and have perused the materials on record. 14. Going by the pleadings of the plaintiffs, it is an admitted position tha t the plaintiffs are not in possession of the suit land. The father of the plai ntiffs, Golap Bhuyan had, vide Ext.-A, sold the land measuring 1 Bigha 4 Katha 1 2 Lecha of Periodic Patta No. 56 and 57 [which had subsequently become 73(old)/6 8(new) and 191(old)/173(new)] to the four sons of Rudram Bhuyan. The sale deed shows that the possession of the land was with the purchasers and that by the sa id sale deed, Golap had sold his share of land, which was in possession of the p urchasers. The learned lower appellate court, on the basis of materials on reco rd, held that the plaintiffs still remain co-sharers to the extent of 3 Katha 18 Lecha in Schedule-A (i) and (ii) to the plaint. 15. When the suit was filed for declaration of right, title and interest in ejmali property, necessarily, by way of consequential relief, prayer for partiti on has to be made. Though plaintiffs had stated, at one place in the plaint that the defendants as well as pro forma defendants are entitled to certain shares o f land in Schedule-A, they did not make prayer for partition of the suit land. It is also significant to note that in paragraph 9, the plaintiffs had stated th at the defendants are possessing the suit land without having legal right, title and interest thereon. 16. It is well settled that the decision of a case would not be based on the grounds outside the pleadings of the parties and it is the pleaded case that ha s to be seen and considered. In the instant case, even after a detailed genealo gical table was annexed with the written statement, the plaintiffs did not pray for amendment of the plaint to bring on record the left out legal representative s of sons of Rudram and it was admitted by PW1 that all the legal heirs were not made parties. Only the son of Cheniram was made the principal defendant and so me of the other heirs were made pro forma defendants. Though recovery of possess ion was prayed for, except defendant No. 1, other legal heirs had been impleaded as pro forma defendants. In the facts and circumstances of the case, I am unab le to accept the contention of Mr. Mahanta that the estate was duly represented by the defendant No. 1 and the pro forma defendants. Leaving aside the subject of non-joinder of necessary parties, no relief having been prayed for partition, I am of the considered opinion that the learned courts below were justified in dismissing the suit of the plaintiffs. 17. Taking that view, I find no merit in this appeal and, accordingly, the a ppeal is dismissed. The substantial question of law is answered against the appe llant. No cost. 18. The Registry will send back the records.