Research › Search › Judgment

Gauhati High Court · body

2001 DIGILAW 314 (GAU)

S. Ali His Legal Heirs H. Ali v. Kuddusali

2001-11-21

RANJAN GOGOI

body2001
RANJAN GOGOI, J. — This is a defendants' second appeal against the judgment and decree passed by the learned Assistant District Judge, Barpeta in Title Appeal No. 30 of 1988, dated 28.2.90. 2. The appeal has been admitted on the following substantial question of law: "Whether the finding of the learned trial Court in regard to the title of the plaintiff could not be sustained on the evidence on record?" 3. Mr P.K. Deka, learned counsel for the appellants in the course of his argument, has sought to somewhat alter the aforesaid substantial question of law to the following effect: "Whether title to land can pass by mere admission when the statute requires a registered deed, and whether based upon such admission, title can be established under the law?" 4. Having regard to the controversy that has arisen in the instant case, the substantial question of law as sought to be canvassed by the learned counsel for the appellants, has been permitted to be taken on record. 5. The brief facts necessary to effectively determine the question as aforesaid, may be stated as hereinafter. 6. The respondents in the appeal, as plaintiff, instituted Title Suit No. 185 of 1984 in the Court of the Munsiff No. 1 Barpeta, for declaration of the plaintiffs right, title, interest and confirmation of possession as well as for partition of the suit land. The short case of the plaintiff is that an area of land measuring 13 Bighas 10 Lechas, covered by K.P. PattaNo. 102, Dag No. 93, of village Pub Lohasur, Mauza Bhabanipur, belonged to the plaintiff and the defendant No. 7, Md. Mahar Ali. The said defendant No. 7 had right, title and interest as well as possession over an area of 2 Bihgas 3 Kathas of the suit land and the remaining 10 Bighas 2 Kathas and 10 Lechas of land belonged to the plaintiff. Out of the aforesaid area, the plaintiff sold 1 Bigha of land to proforma defendant No. 8, Mohammad Ali, and the remaining 9 Bihgas 2 Kathas 10 Lechas remained with the plaintiff. According to the plaintiff, defendants Nos. 1 to 6, without any semblance of right over the suit land, got mutation over 6 Bihgas of the suit land, in Mutation Case No. 33/83-84 and on the basis of the aforesaid mutation order, threatened to dispossess the plaintiff from the suit land. Hence the suit. 7. According to the plaintiff, defendants Nos. 1 to 6, without any semblance of right over the suit land, got mutation over 6 Bihgas of the suit land, in Mutation Case No. 33/83-84 and on the basis of the aforesaid mutation order, threatened to dispossess the plaintiff from the suit land. Hence the suit. 7. Defendants Nos. 1 to 6 filed a joint written statement contending, inter alia, that the plaintiff had possession over 3 Bihgas 2 Kathas 10 Lechas of the suit land. According to the defendants, one Bhagawan Choudhury was the original owner of the suit land. The aforesaid original owner, agreed to sell the suit land to the father of the plaintiff and the defendants, but before the sale deed could be executed, the original owner expired. Subsequently, one Sona Ram Choudhury executed a katcha sale deed in favour of the father of the plaintiff and the defendants. However, in the meantime, the land became Sarkari and one Ekin Ali got patta over the suit land. On the basis of the negotiations carried out by the father of the plaintiff, Ekin Ali agreed to surrender the suit land to the plaintiff subject to his being given an area of 4 Bihgas of land. Thereafter, the said Ekin Ali, by a sale deed executed in favour of the plaintiff, transferred the remaining portion of the suit land in favour of the plaintiff. According to the defendants, they were in possession over 6 Bighas of land and the plaintiff had possession in respect of 4 Bighas 3 Kathas and 10 Lechas of the suit land. The defendants pleaded that it was agreed between the plaintiff and the defendants that the plaintiff would later on execute a sale deed in respect of 6 Bighas of the suit land in favour of the defendants, which was in their possession, but the plaintiff declined and refused to execute the sale deed, and instead the plaintiff had resorted to the instant suit. 8. On the basis of the pleadings of the parties, the learned Munsiff framed as many as six issues. In view of the substantial question of law which requires to be determined in this second appeal, issues Nos. 4 and 5, which are relevant for the purpose of decision of the present case, are extracted hereinbelow: "4. Whether the plaintiff has right, title and interest over the suit land as alleged? 5. In view of the substantial question of law which requires to be determined in this second appeal, issues Nos. 4 and 5, which are relevant for the purpose of decision of the present case, are extracted hereinbelow: "4. Whether the plaintiff has right, title and interest over the suit land as alleged? 5. Whether the defendants are in possession over the suit land as alleged in their written statement?" 9. The learned Munsiff, by judgment and decree dated 30.8.88, decreed the suit of the plaintiff to the extent of 3 Bighas and odd. Aggrieved, the plaintiff instituted Title Appeal No. 30/88 and by the judgment and decree dated 28.2.90, the learned lower appellate Court, on the grounds and reasons mentioned in the judgment, decreed the suit of the plaintiff in tis entirety giving rise to the present second appeal. 10. Mr P.K. Deka, learned counsel appearing for the appellant by taking me through the contents of the judgment under challenge, has very strenuously contended that the learned lower appellate Court has erred on substantial question of law in holding the right, title and interest over the suit land in favour of the plaintiff on the basis of mere admission of purchase of the said properties by the plaintiff. According to the learned counsel, the plaintiff not having proved any deed of sale on the basis of which title was claimed, devolution of title cannot flow from any admission; but in view of the provisions of Section 54 of the Transfer of Property Act, it was incumbent on the plaintiff to exhibit and prove the necessary document on the basis of which such title was claimed. The learned counsel for the appellant on the basis of the aforesaid contention by pointing out to the findings arrived at by the learned lower appellate Court has contended that the judgment and decree under challenge stand vitiated by errors on substantial question of law requiring interference by this Court in second appeal. 11. Mr A.S. Choudhury, learned senior counsel appearing for the respondent/ plaintiff, places reliance on the contents of the written statement filed by the defendants Nos. 1 to 6, which would go to show that apart from the admission of possession of the plaintiff over an area of 3B. 2K. 10 Lechas, the defendants have admitted transfer of the entire suit land by Ekin Ali in favour of the plaintiff. 1 to 6, which would go to show that apart from the admission of possession of the plaintiff over an area of 3B. 2K. 10 Lechas, the defendants have admitted transfer of the entire suit land by Ekin Ali in favour of the plaintiff. The learned counsel, Mr Choudhury, has also placed before the Court the pleaded case of the defendants to the effect that the suit land was transferred by Ekin Ali in favour of the plaintiff and that the defendants had possession over 6 Bighas of land and the plaintiff had possession over 4 B. 3K. 10 Lechas of land. The further pleaded case of the defendants regarding the agreement between the plaintiff and the defendant whereby the plaintiff had agreed to excuse the sale deed in favour of the defendants in respect of 6 Bighas of land in their possession and the failure of the plaintiff to act in terms of the aforesaid agreement, have also been placed by Mr Choudhury to bring home the point that as per the pleaded case of the defendants, there was no denial of little of the plaintiff over the suit land, rather there was an admission of such title of the plaintiff over the suit land. 12. I have considered the rival submissions advanced by the learned counsel for the parties and have perused the judgment dated 28.2.90 passed by the learned lower appellate Court. A perusal of the judgment under challenge would go to show that the learned lower appellate Court came to the finding of title in favour of the plaintiff not only on the basis of the admission made in the written statement, but also on the basis of the Chitha, exhibited as Ext. 1 in the case and the order of mutation subsequently granted by the Revenue authority. The learned lower appellate Court on consideration of the case of possession as put forward by the defendants came to the conclusion that the defendants have not succeeded in establishing their case of possession over the suit land. On the aforesaid basis, the learned lower appellate Court held title in favour of the plaintiff and also decided the question of possession in favour of the plaintiff. On the aforesaid basis, the learned lower appellate Court held title in favour of the plaintiff and also decided the question of possession in favour of the plaintiff. A perusal of the judgment under challenge would also go to show that the Revenue records which were exhibited, namely, the Chitha and the mutation order, were not the basis of the finding regarding title, but were relied upon to lend corroborative value to the finding of title already reached on the basis of the admission made by the defendants. The findings on Issue No. 4 and 5 of the learned lower appellate Court being based on cogent consideration of the evidence on record, are findings of fact with which the second appellate Court would be disinclined to interfere. As the title of the plaintiff over the suit land was clearly admitted by the defendants, no error on any substantial question of law as pleaded can be said to be apparent from the judgment and order of the learned lower appellate Court, under challenge in the instant second appeal. 13. In view of the foregoing discussion, I do not find any merit in this second appeal and the same stands dismissed. However, having regard to the facts and circumstances of the case, there shall be no order as to costs.