JUDGMENT
J. Sangma, J.
1. The plaintiff brought this appeal from the judgment dated 20-8-1985 passed by Shri R.K. Bora, Assistant District Judge, Dhubri, in T.A. No. 75/83 and the judgment dated 20-7-1983 of Shri B. P. Sarma, Munsiff No. 3, Dhubri in T.S. No. 89/81 as both of them have dismissed the plaintiffs suit.
2. The suit was instituted on 17-2-1981. In brief the facts of the case are as follows: Three brothers, namely, Atya, Satya and Nitya-nanda were the owners of land measuring 35B 8K 18 dhors at village Vidyapara under Gauripur Raj Estate and they held the land ejmali in equal shares of 10 bighas. From out of 35B odd, 10B had been sold to one Uma Nath Seal who obtained separate khatian for that 10B. For the remaining 25B IK 17L-7B 2K 7L was recorded under khatian No. 72 and 17B 4K 10L was recorded under khatian No.78. An are a of lB3K 17L out of 7B 2K 7L and 9B 3K 14L out of 17B 4K 10L were in possession of tenants who also had tenant’s khatian for them, (sic) 8B OK 16L remained in ejmali possession of the co-sharers. Satya died 60 years ago leaving his wife Smt. Dhanbhari and two sons, Atya and Batul and a daughter Upeswari. So Satya’s share was inherited by Atya and Batual in equal shares. Atya died leaving his mother Dhanbhari, brother Batul and sister Upeswari. His mother Dhanbhari inherited 1/4 share of 1/3 = 1/6 of the entire land. Batul died about 30 years back in 1951 leaving his mother and wife. Batual was entitled to 1/6 share of the entire land. After Batual’s death his wife, Monomoyee Barmani, the plaintiff, inherited his 1/6 share. Smt. Dhanbhari died 7 years ago leaving her daughter Upeswari (defendant No. 1) and son Batul’s wife (plaintiff). Each of them (i.e. Plaintiff and defendant No. 1) got 1/2 of her 1/6 share. Thus the plaintiff claims that she is entitled to the 1/6 share of her husband plus I/ 12 share of Dhanbhari’s share. Plaintiff stated that defendant No. 2 is not entitled to get any share and according to her he (defendant No. 2) was only looking after the share of his mother, the defendant No. 1; but his name was illegally mutated. Other defendants purchased some portion of the land from Nityananda. Atya was entitled to 1 / 3 share of the land under khatian Nos. 72 and 78, and defendant No. 2, Dharma-narayan, son of Atya and defendant No. 4, Smt. Gadi have inherited the property left by Atya. Nityananda was entitled to 1/3 share of the entire land under Khatian Nos. 72 and 78, and defendant No. 5, Gatu and defendant No. 6, Jaladhar and defendant No. 7, Dhepri inherited the property left by their father, Nityananda. 5B-1K-8L and 2B-4K-8L = 8B-OK-16 of Dag Nos. 147, 148, 149, 152, 161, 162,163,164,167,173,298 of Khatian No. 78 is a khas land of Satya, Atya and Nityananda who were in ejmali possession. After becoming widow, it became difficult for the plaintiff to continue the ejmali possession. Therefore, she filed Mutation Case No. DM/29/75-76 but it was dismissed on 7-3-1977. After dismissal, the plaintiff brought the suit for declaration of her share by partition. The State of Assam was impleaded as pro forma defendant No. 8 though no relief was claimed against them. On the above allegation, the plaintiff prayed for decree; (a) declaring that she is entitled to 1/4 share of the land from Khatian Nos. 72 and 78 as described in Schedule ‘A’; (b) that she is entitled to 1/4 share of 14B-OK-8L from ejmali possession as described in Schedule ‘B’; (c) that she is entitled to 1/6 share of the bithi land of 2K-9L covered by Dag No. 124 of Khatian No. 72 and 4K-1L covered by Dag No. 173 of Khatian No. 78 as shown in Schedule ‘B’ of the plaint; and (d) for sending the decree to Revenue Court for partition of her share of the land.
3. The suit was contested by defendant No. 1 (Upeswari) defendant No. 2 (Ka’ilash Chandra Rai) and by pro forma defendant No. 8 (State of Assam). The plea of defendant Nos. 1 and 2 were; (1) that Batul had died 30 years ago in 1951 and the plaintiff deserted his home (Vidyapara) immediately after his death and thus she was out from ejmali possession. The defendant, therefore, stated that even if the plaintiff may have right she had lost it and they (defendant Nos. 1 and 2) have acquired the right by adverse possession. As such, the plaintiff had no cause of action, (2) that Smt. Dhanbhari during her life time had made a registered deed of gift of her share to defendant No. 2 and he (defendant No. 2) had built residential houses on the land and therefore the plaintiff cannot get the share of Dhanbhari, (3) The 7 (seven) persons; (i) Kumudini, (ii) Togru Roy, (iii) Herimati Ghose, (iv) Radhaballav Ghosh, (v) Kali Das, (vi) Kumudini Dasi and (vii) Debendranath Seal are recorded co-khatiandars and therefore they are necessary parties, The suit, therefore, must fail for non-joinder of these parties. The contention of pro forma defendant No. 8 is that the record of right having been published in 1961-62, the suit is now barred by limitation and as such, the plaintiff could have no cause of action.
4. On the pleading the trial Court framed the following issues:
1. Whether there is cause of action for the suit and the plaintiff has right to sue.
2. Whether the plaintiff has any right, title and interest over the suit land and to what extent.
3. Whether the suit is bad for non-joinder of necessary parties.
4. Whether suit land was ancestral property of both the parties that is to say whether suit property originally belongs to Satya.
5. The plaintiff examined hereself as PW 1 three other witnesses as PWs 2 to 4 and exhibited one document (Jamabandi). The contesting defendant No. 1 and 2 did not examine themselves; but they examined four DWs. The pro forma defendant No. 8 did not examine witness. The trial court found Issue No. 1 in favour of the plaintiff. On Issue No. 2, the trial court found that (i) Kumudini, (ii) Torgu Roy, (iii) Herimati Ghosh, (iv) Radhaballav Ghosh, (v) Kali Das, (vi) Kumudini Dasi, and (vii) Debendranath Seal were co-khatiandars and, therefore, they were necessary parties and the plaintiff having failed to implead them, the suit was bad for nonjoinder and liable to be dismissed. On Issue No. 3 he found that there was no clear and legal evidence to show that Batual inherited the property of his father Satya and as such, the plaintiff could have no case for the suit and on Issue No. 4, the trial court found that the suit land belonged to Satya and the plaintiff, as such had the right to sue. But he also found that the plaintiffs suit was vague and bad for multifarcousness. On these grounds he dismissed the suit on contest with costs.
6. On appeal by the plaintiff the learned Assistant District Judge, Dhubri, found that after the death of her husband, Batul, the plaintiff had left Bidyapara and went to live in the house of her father at Tiamari and thus, she did not have ejmali possession over any part of the suit land. He found that the defendants No. 1 and 2 proved by a deed of gift (Ext. Unga) that Dhanbhari had gifted 1 bigha of the suit land to defendant No. 2 on 2-9-1962 and the defendant No. 2 constructed a residential house for which he had been paying Municipal Taxes. So, he held that even if he might have a right, that has been extinguished by desertion and being out of possession for more than statutory period, the suit is barred by limitation. Lastly, he agreed with the trial court that there was a nonjoinder of party. Thus, he maintained the trial Court’s decree of dismissal. Hence, this second appeal.
7. On 3-12-1985, this Court admitted the appeal on the following grounds:
1. Whether a mere fact that the limited owner in a joint property being out of actual possession would disentitle her (the plaintiff) to become the absolute owner of the property in view of the provisions laid down under the Hindu Succession Act, 1956.
2. Whether it is necessary that the limited owner must exercise her right over the suit property after the death of the prodecessor-in-interest from whom the property is vested to the limited owner prior to coming into force of the Hindu Succession Act, 1956 in case of a joint property.
8. By order dated 27-9-1991, this Court (Srivastava, 1.) framed new issue and remanded it to appellate Court for giving a finding after giving opportunity to both parties to adduce evidence and remit the finding to this Court within 4 months. The new issue framed and remanded was:
Whether the plaintiffs right to the property in suit was extinguished by adverse possession of defendants including late Smt. Dhanbari?
In compliance, the appellant sent its finding dated 9-4-1992 that except in regard to the share of Dhanbari which the defendant No. 2 got by a gift deed from her (Dhanbari), the plaintiffs right had not been extinguished and, as such, there could be no adverse possession against the plaintiff in regard to the share of Batul.
9. Apart from the appellate Court’s finding of 27-9-91, Mr. P.N. Goswami, learned counsel for the plaintiff/ appellant, first argued that both the Courts were wrong in holding that the suit was bad for non-joinder of parties. He referred to Page 510 of Mulla’s Hindu Law (12th Edition) which is as follows:
“The plaintiff in a partition suit, should implead as defendant –
(i) The heads of all branches (c);
(ii) Females who are entitled to a share on partition;
(iii) Purchase of a portion of the plaintiffs share, the plaintiff himself being a co-parcener;
(iv) If the plaintiff himself is a purchaser from a co-parcener he is alienor.
The above are necessary parties and if any of them is not joined, the suit is liable to be dismissed.
10. Mr. Goswami has relied on Laksh-mamma v. Someswar Rao, AIR 1953 Hyderabad 170, wherein it was held :– in a partition suit a person who is not at all interested in the result of the suit and who is not entitled to any share or interest in the suit property on the plaint allegations is not a proper or necessary party. It is not the case of the contesting defendant that 7 (seven) persons named by the defendant Nos. I and 2 were entitled to any share or were interested in the suit property. This being the position, it cannot be said that they are necessary parties and ‘must be impleaded in the suit. Therefore, the suit cannot be dismissed on this issue.
11. The second point argued by Mr. Goswami is that under Section 14 of the Hindu Succession Act, the life estate of a widow became absolute and it did not matter if the widow was not in actual possession. In support of this, he relied on Mangal Singh v. Smt. Rattno, AIR 1967 SC 1786, wherein it was held that even if a female Hindu be, in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights in that property still exist and, in exercise of those ownership rights, she is capable of obtaining actual possession of it. In the instant case, the appellant may not be in actual possession but her ownership right in the property of her husband, Batul became absolute and it still exist and in exercise of ownership rights she would be capable of obtaining actual possession of it. It cannot be said that by not being in actual possession, the appellant had lost her rights to the property of her husband, Batul. Mr.Goswami referred to the evidence of PW 2 (Kailash Ch. Rai) which is as follows:
“In the suit property, Batul, husband of Monomoyee has no share. 1 cannot say anything about the said land except 1 B of land which I cot by a gift deed from Dhandhari”.
12. As this witness (P.W. 2) cannot say anyting about the said land except 18 which he got from Dhanbhari by a gift, there can be no question of adverse possession in regard to the share of Batul. The defendant Nos. 1 and 2, however, proved that Dhanbhari had made a gift of her land to defendant by a deed of gift in 1962 (Ext. Unga), the plaintiff, therefore, cannot get this part.
13. In the result, the appeal is allowed in regard to the share of Batul and the plaintiffs suit is decreed with respect of that land. As regards the land of Dhanbhari, the decree under appeal is maintained. I make no order as to costs.