THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh) RSA No.

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1 THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh) RSA No. 153 of Md. Anisur Rahman, S/O Lt. Mvi. Wazed Ali, Village-Batabari, Narkula, PO-Baguan, Dist.-Goalpara. 2. Mustt. Anowara Khatun, S/O Lt. Mvi. Wazed Ali, W/O Mazammil Haque, Village-Joypur, PO-Baguan, Dist.-Goalpara. 3. Musstt. Monowara Khatun, D/O Lt. Mvi. Wazed Ali, W/O Salimuddin, Village-Abrartila, PS-Baguan, Dist.-Goalpara. -Versus- Appellants. 1. Md. Lutfur Rahman, S/O Lt. Mvi. Wazed Ali, P.O. & P.S.-Baguan, Dist.-Goalpara. 2. Musstt. Jiban Nessa, W/O Abu Bakkar Siddique, Village-Kaljani, PS-Baguan, Dist.-Goalpara. Respondents.

2 2 Advocate(s) for the Appellants : Mr. H.R.A. Choudhury, Sr. Adv., Mr. A.S. Choudhury, Mr. M.U. Mandal. Advocate(s) for the Respondents : None. B E F O R E THE HON BLE MR. JUSTICE B.P. KATAKEY Date of Hearing : Date of Judgment & Order : JUDGMENT AND ORDER (ORAL) This appeal by the plaintiffs is directed against the judgment and decree dated passed by the learned Civil (Senior Division), Goalpara, in Title Appeal No.36/1999 allowing the appeal filed by the defendant No.1 by setting aside the judgment and decree dated passed by the learned Civil Judge (Junior Division), Goalpara, in Title Suit No.32/1996, whereby and whereunder the suit of the plaintiffs was decreed. 2. The plaintiffs/appellants brought the Title Suit No.32/1996 against the present respondent No.1 as principal defendant and present respondent No.2 as proforma defendant, in the court of the learned Civil Judge (Junior Division), Goalpara, praying for a decree declaring that they are jointly entitled to get

3 3 4/7 th share of the suit land measuring 1 katha 2½ lechas more fully described in the schedule to the plaint; for passing a preliminary decree declaring their share and also for possession, apart from passing a final decree for possession, contending inter alia that the suit measuring 1 katha 2½ lechas in Goalpara town originally belonged to late Mvi. Wazed Ali, the father of the plaintiffs as well as the defendants and after his death all the plaintiffs and the defendants became the owner by right of inheritance under the Mohammedan Law. According to the plaintiffs though they claimed their shares of land in the suit land, which is in possession of the defendant No.1, he refused to give any share and denied the title which necessitated with the filing of the suit. 3. The suit has been contested by the principal defendant No.1 by filing written statement. The proforma defendant No.2, however, did not contest the suit. In the written statement filed while admitting that the suit land originally belonged to late Mvi. Wazed Ali, the father of the plaintiffs and the defendants, it has been contended that late Mvi. Wazed Ali gifted the suit property in favour of the defendant No.1 by an oral gift pursuant to which his name has been recorded in the revenue record and katcha patta was issued in his favour. A counter claim has also been filed for declaration of his right, title and interest on the basis of such oral gift. In the said written statement the plea relating to want of cause

4 4 of action, maintainability, non-joinder of parties and the limitation were also taken. 4. The learned Trial Court on the basis of the pleadings of the parties, framed the following issues for considerations and decisions:- (1) Whether the plaintiffs have cause of action for the suit? (2) Whether the suit is maintainable? (3) Whether the suit is bad for non-joinder of necessary parties? (4) Whether the suit is barred by limitation? (5) Whether the suit land is given by way of gift to the defendant? (6) Whether the suit property is the joint property of the plaintiffs and the defendants? (7) Whether the plaintiffs are entitled to get partition as claimed? (8) Whether the defendant is entitled to get a decree of declaration of right, title and interest over the entire suit land? (9) To what other relief the parties are entitled? 5. The plaintiffs/appellants in order to prove their case examined 3(three) witnesses including the plaintiff No.1. The defendant No.1 also examined 4(four) witnesses including him. The plaintiffs have also proved the sale deed dated , registered on by which late Mvi. Wazed Ali, their father purchased the suit land, as Ext.-1. The defendant No.1 also proved

5 5 5(five) documents, namely, the permission for construction dated issued by Goalpara Municipality as Ext.-Ka, receipt dated issued by the Municipality showing deposit of the amount for granting of such permission as Ext.-Kha, copy of the order of mutation as Ext.-Ga, application submitted by the plaintiffs as Ext.-Gha and the order of mutation as Ext.-Unga, wherefrom it reflects that the name of respondent No.1 has been mutated in the revenue record by right of inheritance. 6. The learned Trial Court on the basis of the evidences available on record, both oral and documentary, though decided all the issues in favour of the plaintiffs and decrees the suit by holding that the defendant No.1 though set up the plea of oral gift, he has failed to prove the 3(three) essentials to constitute the gift under Mohammedan Law. The learned Trial Court accordingly decreed the suit of the plaintiffs declaring that the plaintiffs are entitled to 4/7 th share jointly over the suit land and their right, title and interest in respect of the said share and also for recovery of their share from the suit land without however passing any decree for partition. The counter claim of the defendant No.1 has also been dismissed. 7. Being aggrieved, the defendant No.1 preferred Title Appeal No.36/1999 in the court of the learned Civil Judge (Senior Division), Goalpara, which appeal however has been allowed by the learned First Appellate Court vide judgment and decree dated

6 by setting aside the judgment and decree passed by the learned Trial Court. The learned Appellate Court has dismissed the suit of the plaintiffs by holding that late Mvi. Wazed Ali transferred the suit land in favour of the defendant No.1 by an oral gift. Hence the present appeal. 8. By order dated the appeal has been admitted for hearing on the following substantial questions of law: A. Whether rights of the plaintiff to have partition of his joint ancestral property among the co-sharers is extinguished by operation of Section 97 of the Assam Land and Revenue Regulation? B. Whether the mutation of the suit land in favour of the defendant takes away the rights of the plaintiff to get partition of his share when both the plaintiff and the defendants are own brother? C. Whether the possession of the defendant over the suit land excludes the plaintiff to claim partition of his share from the ancestral property? 9. I have heard Mr. H.R.A. Choudhury, the learned Sr. counsel for the plaintiffs/appellants. None appears for the respondents/defendants despite service of notice. 10. Mr. Choudhury, the learned Sr. counsel for the appellants has submitted that since it is an admitted position of fact

7 7 as admitted by the defendant No.1 in the written statement that the suit land originally belonged to late Mvi. Wazed Ali, the father of the plaintiffs and the defendants, all the heirs of late Mvi. Wazed Ali, namely, the plaintiffs and the defendants inherited the said property after the death of their father to the extent of their respective shares under the Mohammedan Law and hence the learned Appellate Court has wrongly allowed the appeal by setting aside the judgment and decree passed by the learned Trial Court, when the defendant No.1 who set up the plea of oral gift made by late Mvi. Wazed Ali, has failed to prove the 3(three) essentials to constitute the valid gift as required under Section 149 of the Mohammedan Law. According to Mr. Choudhury, it is also evident from Ext.-Unga i.e. the endorsement in the jamabandi that the name of the defendant No.1 was mutated in the revenue records on the basis of the right of inheritance and not on the basis of any oral gift as has been contended by the respondent No.1 in the written statement as well as in the counter claim. It has further been submitted by Mr. Choudhury that since the possession of a cosharer in respect of the joint family property is the possession on behalf of all other co-sharers, the partition cannot be refused on the ground that one of the co-sharer was not in actual physical possession of the property. 11. Section 97 of the Assam Land and Revenue Regulation, 1886 provides that every recorded proprietor of a permanently

8 8 settled estate and every recorded land-holder of a temporarilysettled estate may, if he is in actual possession of the interest, in respect of which he desires partition, claim perfect or imperfect partition of the estate. The possession of a co-sharer in respect of the property is the possession on behalf of all the co-owners. A cosharer cannot even claim adverse possession against the other cosharers of a joint family property. Hence, even if a co-owner/cosharer is not in actual possession of the joint family property, he can claim partition of such property. 12. In the instant case, it is not in dispute that late Mvi. Wazed Ali, the father of the plaintiffs and the defendants was the original owner in respect of the suit land and after his death normally and in the absence of any transfer by him, the property devolves on the plaintiffs and the defendants and they will inherit the properties to the extent of their shares under the Mohammedan Law. The plea set up by the defendant No.1 in the written statement as well as the counter claim is that late Mvi. Wazed Ali transferred the right, title and interest over the suit land in his favour by an oral gift. The learned Trial Court, as discussed above, has recorded the finding that though such plea has been set up by the defendant No.1, he however, could not prove the 3(three) essentials to constitute a valid gift as required under Section 149 of the Mohammedan Law. Such finding has been set aside by the learned First Appellate Court on the ground that in the revenue

9 9 records the name of the defendant No.1 has been mutated and consequently katcha patta was issued and he is in possession of the suit land, however, without bothering to scrutinize as to whether the 3(three) essentials to constitute a valid gift have been proved by the defendant No Under the Mohammedan Law the oral gift is permissible. Section 149 of the Mohammedan Law provides that 3(three) essential conditions, namely, (i) a declaration of gift by the donor, (ii) an acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as stipulated in Section 150 must co-exist to constitute a valid gift. 14. As discussed above, the learned First Appellate Court has set aside the finding of the learned Trial Court that the defendant No.1 could not prove 3(three) essentials to constitute the valid gift, without considering as to whether the defendant No.1 could prove such 3(three) essential conditions. The First Appellate Court being the final court on facts is required to discuss all the evidences on record, both oral and documentary and decide the same in accordance with Order 41 Rule 31 of the CPC by recording its finding on each issues as framed by the learned Trial Court, more so, when the First Appellate Court reverse the findings

10 10 recorded by the learned Trial Court. The learned First Appellate Court, however, in the instant case has failed to do so. 15. In view of the above, the judgment and decree dated passed by the learned First Appellate Court is set aside. The case is remitted to the learned First Appellate Court to decide the Title Appeal No.36/1999 afresh upon hearing the learned counsel for the parties and on the basis of the evidences already on record. The plaintiffs/appellants are directed to appear before the learned First Appellate Court on The learned First Appellate Court on receipt of the records shall issue notice on the respondents/defendants since they have not contested the present appeal before this court. The Registry is directed to send down the records to the learned First Appellate Court so as to reach the said court on or before Roy JUDGE