Decided on February 26,2018

Jahida Ahmed Appellant
Sayera Ahmed Respondents


PRASANTA KUMAR DEKA,J. - (1.) Heard Mr.D.Choudhury learned counsel appearing for the appellants and Mr.M.H. Ansari learned counsel appearing for the respondents.
(2.) The present appellant is the defendant No. 2 in Title Suit No. 70/2005 preferred by the respondents No.1 and 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 and 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 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 and 2. The defendant No. 1 i.e. the mother of the plaintiff respondent Nos. 1 and 2 also did not file the written statement. On the basis of the pleadings available before the learned trial Court following issues were framed: Issue No.-1:Whether the suit property is ancestral property of the plaintiffs and defendant No.1 & 2? 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? Issue No.-4:To what relief/reliefs the parties are entitled to ?
(3.) 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 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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