IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Case No: Md. Anowar Hussain & others Jamal Uddin & others -Versus- Appellants... Respondents BEFORE :: HON BLE MR. JUSTICE PRASANTA KUMAR DEKA For the Appellants : Mr. S.P. Choudhury Advocate For the Respondent : Mr. M.H.Rajbarbhuyan Advocate Date of Hearing : Date of delivery of Judgment and Order : JUDGMENT AND ORDER Heard Mr. S.P. Choudhury, learned counsel appearing on behalf of the appellant. Also heard Mr. M.H. Rajbarbhuyan, the learned counsel appearing for respondents. 2. The appellants before this Court are the plaintiffs in Title Suit No. 86/2004 in the Court of the learned Civil Judge (Jr. Div) No. 1, Page 1 of 12

2 Karimganj and the respondents are the defendants in the said Title Suit No. 86/ The facts leading to filing the said Title Suit No. 86/2004 are that the landed property described in Schedule of the plaint is covered by Mohal Elam Patta No. 465/02 and Dag No. 115, under Mouza Pahar, Kitte Kuki Tilla, Porgonah Chapghat in the District of Karimganj. Idris Ali, Ambar Ali and Yakub Ali are the patta holders enjoying the land described in the Schedule of the plaint and same was possessed exclusively till the date. On the death of Idris Ali, Ambar Ali and Yakub Ali their shares Moin uddin, Jalal Uddin and Nasir Uddin inherited the same and enjoyed the possession of the said land. Later on, Moin Uddin, Jalal Uddin and Nasir Uddin transferred the said land by way of registered sale deed No. 57 dated to the plaintiff/appellants where after, they acquired their right, title and interest and possession over the land described in the Schedule of the plaint. The plaintiff/appellants have reared fishes on the northern side of the low lying land within the boundary and planted annual Hali chara on the southern side. The defendant/respondents out of enmity tried to dispossess the plaintiff/appellants from the said land and as such they filed the suit for declaration that they have got the land holder right over the land described in the Schedule of the plaint so purchased by the registered deed No. 57 dated and for confirmation of possession along with the declaration that the defendant/respondents have got no right title and interest and possession over the said land and for permanent injunction restraining the defendant/respondents from entering into the suit land. Page 2 of 12

3 4. The suit land as revealed from the Schedule of the plaint is described hereinbelow:- Schedule under PS. Badarpur, Mouza Pahar, Kitte Kuki Tilla, Porgonah Chapghat, Mohal Elam periodic patta No. 465/02 dag No. 115, chara and low lying land measuring 1 kedar, butted and bounded- on the East-PWD Road, on the West- Panchayat Rasta and on further West- Tilla land, on the North- Homestead of Burhanuddin, on the South- Panchayat Rasta and on further South- Jama Masjid of village Bagligool. 5. The defendant/respondents filed written statement and denied the contention made in the plaint by the plaintiff/appellants. It is contended in the written statement that the plaintiff/appellants had wrongfully claimed the land purchased by the defendant/respondents by giving false and concocted boundaries. That the predecessors of vendors of defendants Nos. 1 to 5 on amicable partition with his co-sharers got the Schedule land described in the Schedule of their written statement with other contiguous land situated on the eastern side of the Schedule land which is intervened by the PWD road. The Schedule land described in their written statement and its contiguous eastern boundary intervened by the PWD road is the homestead pond chara land of the predecessor of the vendors of the defendant/respondents. On the death of Abdul Bari, the predecessor of Page 3 of 12

4 the vendors of defendant/respondents No. 1 to 5 inherited the said land and started to live there. One Abdul Jabbar, the brother of said Abdul Bari filed a Title Suit No. 153/2001 claiming the schedule land of their written statement against Abdul Quyum and Mehmoda Begum, the vendor Nos. 1 & 3 of the defendant/respondents No. 1 to 5 in the Court of Civil Judge, (Jr. Div) No. 2, Karimganj. The said suit was dismissed vide judgment dated Later on, the said vendors ( the legal heris of Abdul Bari) sold the said land described in the Schedule of their written statement in favour of the respondent/defendants by way of registered sale deed No. 859 dated The defendant/respondents No. 1 to 5 accordingly, became the owner of the said land so purchased from the legal heirs of Abdul Bari and started possessing the same by rearing fishes within the land described in the schedule of their written statement. The names of the vendors of the defendant/respondents Nos. 1 to 5 are corrected in the settlement records. The defendant/respondents Nos. 1 to 5 are still in use, occupation and possession over the Schedule land of the written statement. The plaintiff/appellants or their alleged vendors had no right, title and interest and possession over the land of the defendant/respondents. Hence, they prayed for dismissal of the suit. 6. The defendant/respondents in their written statement described the land purchased from the legal heirs of Abdul Bari which is reproduced herein below:- Page 4 of 12

5 Schedule Porgonah Chapghat, Mouza Pahar, Kitte Kuki Tilla, Mohal Elam periodic patta No. 465/02 dag No. 115, bounded by East- PWD road, further East-homestead of Abdul Quyum and others, West- Panchayat Path, North- Purchased land of Burhannuddin, South- Panchayat Path and further South- Mosque. Within this boundary pond and chara land measuring and area of 1 cadre 6 jastice 9 pon 7. On the basis of the pleadings of the parties of the suit, the trial Court framed the following issues:- I) Is there any cause of action for the suit? II) Whether the suit is maintainable? III) Whether the suit land has been properly described and identified in the schedule of the plaint? IV) Whether the plaintiffs have right, title, interest and possession over the suit land? V) To what relief/reliefs, the plaintiffs are entitled? 8. The plaintiff/appellants examined as many as 5 witnesses in support of their pleadings and they exhibited exhibit-1, certified copy of deed No. 57 dated , exhibit-2 Jamabondi, exhibit-3 (1) to exhibit-3 (3) challan and exhibit-4 original Regd Sale Deed No. 57 dated On the other hand, the defendant/respondent exhibited as many as 12 documents starting from exhibit- A to exhibit-l. Out of the said exhibits, exhibit-i is the certified copy of registered sale deed No. Page 5 of 12

6 170 dated whereby one Burahannuddin had purchased land from one Abdur Rahman land measuring 0.12 acre and the boundary of the said land has been mentioned as follows:- East- PWD road, West- Homestead of Burhannuddin, North-land of the vendor and South- Abdul Jabbar. 9. The Trial Court after hearing the parties dismissed the suit of the plaintiff/appellants vide judgment dated The Trial Court while dismissing the suit held that there was no cause of action for the suit as it came to the finding that the registered sale deed exhibit-1 was executed only by the legal heirs of Ambar Ali and Yakub Ali but not by all the legal heirs of the said pattadar. With regard to issue No. 3, the Trial Court came to the finding that PW-1, one of the plaintiff/appellants during the cross-examination admitted that to the west of homestead of Abdul Bari is the PWD road and further West is the pond chara of Abdul Bari, to the North of the said chara pond, there is the homestead of Burahanuddin who purchased the same about the 15 years back. It is also taken into consideration that the PW-1 had admitted the boundaries of the land mentioned in the Schedule of the written statement and the trial Court after considering the said piece of evidence held that the suit land is in fact the land of the defendant/respondents and as such held the issue against the plaintiff/appellant. With regard to issue No. 4, the trial Court came to the conclusion that right, title and interest over the suit land of the plaintiff/appellants as well as the defendant/respondents found to be in the same footing but the defendant/respondents are found Page 6 of 12

7 in better position in respect of the possession over the suit land and for the said reason, the issue was decided against the plaintiff/appellants. 10. Being aggrieved the plaintiff/appellants preferred the Title Appeal No. 42/2005 before the learned Court of Civil Judge (Senior Division) at Karimganj challenging the judgment and the decree passed in Title Suit No. 86/2004. The First Appellate Court also after hearing the parties dismissed the appeal thereby upholding the findings of the Trial Court vide judgment dated Thereafter, the plaintiff/appellants preferred this Second Appeal challenging the judgment and decree dated passed by the learned Civil Judge, (Senior Division) Karimganj in Title Appeal No. 42/2005 which was admitted on on the following substantial question of law:- Whether, the learned Lower Appellate Court erred in dismissing the suit of the appellant/plaintiffs as a whole on the ground of want of material facts in the plaint prepondering of their shares of the suit land in the face of overwhelming evidence on record to the said fact including the sale deed exhibit Mr. Choudhury, learned counsel appearing on behalf of the appellant submits that both the courts below failed to take into consideration the material piece of evidence led by the plaintiff side and considering the evidence of the defendant side only dismissed the suit. It is contended that the courts below were not correct in holding that the suit land was not properly described on the face of the contention in the Schedule of the plaint with regard to dag No. and the patta No. and the Page 7 of 12

8 boundaries of the suit land. It is also contended that the exhibit-1 Sale deed, on the basis of which the plaintiff/appellants claim their title over the suit land was executed on , which is prior in point of time the exhibit-a (sale deed of the defendant/respondents) as the same was executed on and title ought to have declared in favour of plaintiff. It is also wrong on the part of the Courts below that the plaintiff/appellants failed to show the flow of title of the vendors of the plaintiff/respondents over the suit land. Under such circumstances, Mr. Choudhury submits that the findings of both the Courts below are wrong and substantial question of law so framed is to be decided in favour of the plaintiff/appellants. 12. Mr. Choudhury submits that the PW-1 in his deposition has fully supported his case and the flow of title to the vendors of the plaintiff/appellants with respect to the suit land inasmuch as the exhibit-1, the registered sale deed has been duly proved and there was no denial with regard to the execution of the said exhibit-1 by the vendors. He also submits that the exhibit-2, the copy of the jomabondi has been duly proved wherein serial No. 24, 25 and 36 are the recorded names of Ambar Ali, Idris Ali and Yakub Ali all sons of Alim Mia. Further, the exhibit-3 series are the challans by way of which revenue was paid in respect of land covered by patta No. 465/02 by the vendors of the plaintiff/respondent. On the other hand, Mr. Choudhury submits that the deposition of the DW-1 who is the defendant No. 4 in the suit had proved that the exhibit-a was executed on and the said DW-1 admitted that as against the mutation of Abdul Bari there is no specific Page 8 of 12

9 assertion of dag No. or area of any land as per the jomabondi i.e the exhibit-2. It is also submitted that the DW-1 deposed that there is no houses over the suit land but the house tax receipts i.e exhibit-f series ought to have been considered by the Court below as false. So Mr. Choudhury submits that as the suit land and the land claimed by the defendant/respondents are same under such circumstances the exhibit-1 ought to have prevailed on exhibit-a as the former one was executed prior to the said exhibit-a executed by the vendors of the defendant/respondents. So the learned counsel for the appellants submits that the substantial question of law is to be decided in favour of appellant. 13. Mr. M.H. Rajbarbhuyan submits that there is no error in the findings of both the Courts below. 14. Considered the submission of the learned counsel. Perused the case records, gone through the pleadings in the suit and the respective piece of evidence of all the witnesses. It is not in dispute that the defendant/respondent had claimed the suit land but with the pleading that the boundaries mentioned there in the suit land are not the same as that of the one which they are possessing and to that effect they have specifically mentioned the schedule of the land which they are possessing. The exhibit-c is the judgment passed in Title Suit No. 153/01 wherein one Abdul Zabbar as the brother of Abdul Bari filed a suit claiming the said land. In the issue No. 3 of the said judgment of Title Suit No. 153/2001 exhibit-c, the said Abdul Zabbar had been held to be Page 9 of 12

10 the brother of Abdul Bari and the suit was dismissed. The suit was filed against vendors of the defendant/respondents i.e. legal heirs of Abdul Bari. Now let us examine the exhibit-i which is the certified of the registered sale deed bearing No. 170 dated whereby Burannudin purchased land from one Abdul Rahman. In the Schedule of the said sale deed on the southern side it has been shown that Abdul Zabbar and his family are residing. Now let us consider the Schedule of the suit land as mentioned in the Schedule of the plaint. From the said Schedule of the plaint, it is very much apparent that on the northern side homestead of Burannuddin is situated. 15. If we take into consideration the schedule of the land sold vide exhibit-i to Buranuddin and considers the boundary of the said land it is the land of Abdul Zabbar and family members situated on the southern side of the said land. This Abdul Zabbar is none other than but the brother of Abdul Bari as apparent from the exhibit-c i.e. the judgment passed in Title Suit No. 153/01 who claimed the said land. Further let us examine, the cross-examination of the PW-1 wherein he has admitted the boundary of the land described in the Schedule of the written statement including the land of Burannuddin which the said PW-1 deposed that the said Burannuddin purchased the land about 15 years back. Now, considering this material piece of evidence it can very well be concluded that the land which the plaintiff/appellants had claimed belonged originally to the family members of Abdul Zabbar who is none-other than one of the brothers of Abdul Bari and his claim against the legal heirs of Page 10 of 12

11 Abdul Bari was denied by the judgment passed in T.S. No. 153/01 vide Ext. C. 16. Accordingly, it can very well be prepondered that the vendors of the plaintiff/appellants are admittedly not the legal heirs of family members of Abdul Zabbar and or Abdul Bari and as such the said vendors cannot sale the land shown in the Schedule of the plaint inasmuch as the same belongs to the family members of Abdul Zabbar and Abdul Bari. On the other hand, the defendant/respondent had claimed their title over the suit land on the basis of registered sale deed i.e. exhibit-a. For the said reason the courts below rightly dismissed the suit of the plaintiff and the substantial question of law is accordingly decided against the appellants. It is also clarified that the exhibit-1, which has not been challenged by the defendant/respondents itself goes to show that the defendant/respondents are holding the suit land on the strength of their own right, title and interest derived through exhibit-a. So the plaintiff/appellant failed to prove that the land they claimed is similar to the one covered under Ext. A. For this reason the Ext 1 cannot prevail over Ext A as both land described in the Schedule therein are found to be different. 17. The findings of the Court below with regard to shares of the vendors of defendant/respondent had been given in order to establish the fact that they had been in possession of the suit land since 1991 and thereafter the said vendors mutated their names in the year 1999 in place of Abdul Bari. Such finding of fact was necessary in order to resolve the Page 11 of 12

12 dispute between the parties wherein both the parties claim the suit land and both the parties have based their claim by way of purchase. So in order to decide the same, the Courts below at first decided with respect to the identity of the suit land which from the discussion made hereinabove probabalise the preponderance in favour of the defendant/respondents and then whether the title transferred to the defendant/respondents was lawful. To that extent the mutation of the vendors of defendant/respondents was considered by looking into their mutation in the Jamabandi as the heirs of Abdul Bari. There are no sufficient evidence in favour of the plaintiff/appellants to decide their title with respect to the suit land so claimed as the same differs from the one purchased vide Ext-1. Accordingly, this Second Appeal is dismissed as the substantial question of law is decided against the appellants. 18. No Costs. 19. Send back the case record. JUDGE B. DEY Page 12 of 12