Page No.1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) ON THE DEATH OF HUSSAIN ALI HIS LEGAL HEIRS 1. CHAN MIA 2. BAKKAR ALI, 3. AKKAS ALI ALL ARE SONS OF LT. HUSSAIN ALI AND R/O VILL. BAHMURA, MOUZA GHILAJARI, 4. SAKINA KHATUN, W/O HASMAT ALI DAUGHTER R/O VILL. HAJIPARA, MOUZA GHILAJARI, 5. HASNA KHATUN W/O HASAN ALI DAUGHTER R/O VILL. PAKA BETBARI PAM, MOUZA PAKA, 6. KHADIJA KHATUN W/O ZAKIR HUSSAIN DAUGHTER 7. REZIA KHATUN W/O TARA MIAH DAUGHTER BOTH ARE R/O VILL. PANIMARICHA, MOUZA PAKA, - Appellants/plaintiffs Versus- 1. RAJ ALI AHMED 2. RAFIQUL ISLAM 3. REZZAK ALI, ALL ARE SONS OF LT. FAIRAD ALI AND R/O VILL. SALEKURA, MOUZA JANIA, 4. FAZIRAN NESSA, D/O LT. FAIRAD ALI, R/O VILL. SALEKURA, MOUZA JANIA, - Respondent/Defendants 5. AWZAD ALI S/O ABDUL MIA 6. MUSSTT. TARA BHANU W/O SUKUR ALI 7. AJGAR ALI S/O LT. ABDUL BASER 8. CHAN MIA S/O LT. ABDUL BASER
Page No.2 9. ABDUL ROUF S/O LT. ABDUL BASER 10. RAWSHANARA BEGUM W/O BAKKAR ALI, (D/O LT. FAIRAD ALI), ALL ARE R/O VILL. BAHMURA, MOUZA GHILAJARI, 11. HASSAN ALI, S/O LT. NUROHAMMAD 12. SARBESH ALI S/O LT. ABDUL MAZID BOTH ARE R/O VILL. KIRKIRA (BLOCK NO. II), MOUA PAKA, S/O LT. NUROHAMMAD - Proforma Defendants BEFORE HON BLE MR. JUSTICE PRASANTA KUMAR DEKA Advocate for the appellant Mr. J Ahmed Advocate for the respondent... Date of hearing & Judgment: 9 th May, 2017 JUDGMENT AND ORDER (ORAL) Heard Mr. J Ahmed, the learned counsel appearing on behalf of the appellant. 2. The present appellants are the plaintiffs in Title Suit No.6/2003 filed in the learned Court of Civil Judge (Junior Division) No.1, Barpeta. The predecessor in interest of the present appellants was the plaintiff in Title Suit No.6/2003 filed in the Court of learned Civil Judge (Junior Division ) No.1, Barpeta. On his death, the present appellants were substituted as his legal heirs during the pendency of the Title Appeal No.60/2004. 3. The facts of the plaintiff leading to filing of the said Title Suit is that the plaintiff and Fairad Ali, the father of the main defendants/respondents were members of a joint family headed by Fairad Ali. About 44 years back the A-Schedule land was purchased in the name of said Fairad Ali out of joint income of the plaintiff and his elder brother. After separation about 25 years back, Fairad Ali sold his share and since then the plaintiff possessed the suit
Page No.3 land as described in the Scheduled B, C and D of the plaint. After the death of Fairad Ali, the defendants/respondents secretly got their names mutated in the suit patta which came to the notice of the plaintiff on 12.02.1999. On 10.12.2002, the defendants/respondents threatened the plaintiff to dispossess him from the suit land. According to the plaintiff he is in absolute possession of the suit land and regularly paid land revenues to the Government. The defendants have no right, title and interest and possession over the suit land. As such the plaintiff being the predecessor in interest of the present appellants filed the said suit for declaration of right, title and interest, permanent injunction, correction of the records of rights and partition by appointing the Amin Commissioner. 4. The defendants/respondents filed their written statement denying that their father Lt. Fairad Ali never lived in a joint family with the plaintiff. The plaintiff and Lt. Fairad Ali came to Assam at the age of 9/10 years and started their lives as servant in the house of one Innas Ali. Lt. Fairad Ali was taken by one Abdul Rahman to his house for household work. Out of the income Lt. Fairad Ali purchased the A-Schedule land and lived there. The plaintiff later on possessed the said Fairad Ali s land for temporary shelter and cultivation of land on Adhi. The plaintiff was allowed to stay in his house and allowed to cultivate some land. Fairad Ali purchased land at village Salekura and started living there with his family. During the lifetime of said Fairad Ali, he asked the plaintiff to vacate the suit land but as he was paying the Adhi duly, he was allowed to stay for some more years until plaintiff manages to purchase other land. The plaintiff stopped payment of Adhi share and as such the defendants asked him to purchase the suit land which he failed. It is therefore, submitted by the defendants that the plaintiff possessed the land illegally and liable to be evicted due to nonpayment of the Adhi crops since 1999. The defendants in the counter claim prayed for declaration of the right, title and recovery of khas possession by evicting the plaintiff from the suit land and dismissal of the suit with cost. The proforma defendants No.3 to 8 in the suit filed their written statement. The proforma defendant No.8, the daughter of Lt. Fairad
Page No.4 Ali supported the case of the plaintiff in her written statement, she being the married wife of one of the sons of the plaintiff. On the basis of the pleadings, the learned trial Court framed the following issues: 1. Whether there is cause of action for the suit of the plaintiff and also for the counter claim of the principal defendants. ii. Whether the suit of the plaintiff and counter claim of the principal defendants are barred by limitation? iii. Whether the suit of the plaintiff is bad for non-joinder of necessary parties? iv. Whether the plaintiff has right, title and interest and confirmation of possession over the suit land? v. Whether the mutation order dated 01.07.95 passed by circle officer, Barpeta was illegal and inoperative in the eyes of law? vi. Whether the principal defendants have right, title and interest over the land described in the schedule of their counter claim and the possession of the plaintiff is illegal and thereby required to be evicted? vii. Whether the plaintiff is entitled to get decree as prayed for? viii. Whether the principal defendants are entitled to get decree as claimed in their counter claim? ix. To what other relief or reliefs the parties are entitled to? 5. Learned trial court thereafter dismissed the suit of the plaintiff and allowed the counter claim partially declaring that the counterclaimants/main defendants are entitled to get the declaration of the joint titles over the suit land with the other legal heirs of Lt. Fairad Ali namely Roziya Khatun and Rusanara Begum. However, the counterclaimants were not entitled for khas possession over the entire suit land as Rawshanera Begum (proforma defendant No.8) supported the plaintiff s case and possession and another legal heir Roziya Khatun is not a party in the counter claim. Being aggrieved the plaintiff preferred title appeal No.60/2004 challenging the judgment and decree passed by the learned trial Court in the court of the learned Civil Judge, Barpeta. The First Appellate Court after hearing the parties to the appeal dismissed the appeal on contest thereby upholding the judgment and decree passed by the learned trial Court in Title Suit No.6/2003. 6. Thereafter the legal heirs of the original plaintiff preferred the present second appeal challenging the judgment and decree dated 09.08.2016 passed in Title Appeal No.60/2004
Page No.5 by the learned Civil Judge, Barpeta. This second appeal is taken up for admission under Order 41 Rule 11 CPC today. 7. Mr. J Ahmed submits that both the courts below came to the finding that the suit filed by the plaintiff/appellants and the claim made therein the suit are barred under the provisions of Section 4 of the Benami Transaction(Prohibition) Act, 1988. It is submitted that the said finding of the courts below are not supported by any facts pleaded nor the evidence on record supports the said findings of the court below. Mr. Ahmed submits that exhibit-3, which is the voter list specifically proves the fact of jointness of the family of the plaintiff/appellants and the defendants/respondents. It is also submitted by the learned counsel that the decree of partition prayed for by the plaintiffs/appellants ought to have been considered and allowed inasmuch as the family of the parties to the suit was a joint family and out of the joint income of both the predecessor in interest of the appellants and Lt. Fairad Ali the Schedule-A land was purchased. As such the findings arrived at by the courts below are perverse and to that effect the substantial question of law be formulated. 8. In order to verify the submissions made by the learned counsel, this Court considering the nature of the relief so far partition is concerned entered into the finding of issue No.4 of the courts below. The pleadings of the plaintiff/appellants shows that the A- Schedule land was purchased by the plaintiff and his elder brother Lt. Fairad Ali before 45 years back from joint income of the joint family and Lt. Fairad Ali being the head of the family all deeds and records were in his name and were kept under his custody. The trial court while deciding issue No.4, going through the plaint and the evidence of the plaintiff side came to the finding that the claim made by the plaintiff/appellants over the suit land as benamidar cannot be accepted. The learned trial Court came to the finding that the plaintiff is in possession of the suit land since long. On the other hand, the defendant/respondents claimed the said possession of the plaintiff/appellants as permissible occupier till 1999 on the
Page No.6 condition of sharing of crops. The plaintiff/appellants had not claimed any adverse possession over the suit land. It is also held by the trial Court that there is no evidence of the family partition with respect to the land covered by the suit patta. Rather the learned trial court held the mutation of the names of Raj Ali Ahmed and Rofiqual Islam (the sons of Fairad Ali) cannot he held to be legal and valid and it ought to have been passed in favour of the legal heirs of Lt. Fairad Ali. This goes to show that the learned trial court held the plaintiff, the predecessor-in-interest of the appellants is not a co-sharer of the suit land with the legal heirs of Lt. Fairad Ali. The learned trial Court came to the finding that the claim of the plaintiff/appellants is barred under Section 4 of the Benami Transaction (Prohibition) Act, 1998. The said Section stipulates that no suit, claim or action to enforce any right in respect of any property held by the Benamidar would be allowed by or on behalf of a person claiming to be real owner of the property. The said finding has been affirmed by the First Appellate Court. 9. The submission of the learned counsel of the appellants that court ought to have decreed the suit for partition also cannot be considered inasmuch as once the claim of the plaintiff/appellants is held to be barred under the aforesaid provision of the Act of 1988 the question of co-ownership or co-sharer of the plaintiff/appellants with that of the legal heirs of Fairad Ali cannot be permitted. To claim for partition, the claimant must be a co-sharer with the person or persons against whom the said partition is claimed for. The plaintiff/appellants failed to show, on a specific query to the learned counsel by this court the materials to prove the common fund, on the basis of which the sale consideration was paid by Lt. Fairad Ali, the learned counsel submits that to that effect no such material piece of evidence was adduced but the same has been proved by way of the exhibit-3 which is the certified copy of the voter list showing the jointness of the family between the parties to the suit. Such submission cannot be accepted inasmuch as though the concept of joint family
Page No.7 system is not found under the Mohammadan law but even then keeping in view the prevailing custom within this area, the concept of joint family as pleaded by the plaintiff/appellants cannot be discarded at all. But even then when there is an admission on the part of the plaintiff/appellants that the suit land was purchased in the name of his elder brother, the evidence of the common family fund is very much vital to accept the pleading of the plaintiff/appellants conclusively. 10. Mr. Ahmed also submits that the judgment passed by the First Appellate Court is hit under the provision of Order 41 Rule 31 of the CPC. The said submission also cannot be taken into consideration considering the nature and/or manner in which the First Appellate Court has examined the findings of the learned trial court. As already reflected hereinabove the trial Court held that the Schedule-A land devolved on the death of Lt. Fairad Ali on his legal heirs and that view has been upheld by the First Appellate Court which clearly goes to show that though the First Appellate Court is bound to enter into the facts but in the present case in hand the First Appellate Court has entered into the points for determination which covers issues which requires entering into the evidence on record. Scrutiny and appreciation of the evidence in the proper perspective and a finding thereof amounts to finding of facts. So the said contention cannot be considered in the present facts and circumstances of the matter as the suit itself is barred by law. 11. Considering the same, submission of the learned counsel as referred hereinabove cannot be accepted and this second appeal has no merit and the same is dismissed. Rakhi JUDGE