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2005 DIGILAW 442 (GAU)

Bisha Mia v. Natub Ali

2005-06-08

AMITAVA ROY

body2005
JUDGMENT Amitava Roy, J. 1. The Appellants/Defendants have impugned the judgment dated 17.11.2004 and the decree dated 29.11.2004 passed by the learned Civil Judge (Sr. Division), Barpeta, in Title Appeal No. 24/2003 affirming the judgment dated 22.8.2003 and decree dated 27.8.2003 passed by the learned Civil Judge (Junior Division) No. I, Barpeta, in Title Suit No. 33/01, decreeing the suit of the Respondents/Plaintiffs. 2. I have heard Mr. MH Rajborbhuiya, learned Counsel for the Appellants. For the order, which I propose to pass, issuance of notice on the Respondents is not necessary. 3. The Respondents filed Title Suit No. 33/01 against the Appellants/Defendants and two proforma Defendants praying for a decree inter alia for declaration of their right, title and interest in the suit land and for confirmation of possession thereof. The land involved in the suit was described to be measuring 6 bighas 2 kathas 1 lechas covered by Dag No. 72 under KP Patta No. 119 situated at village Gadesali Pam, mauza Sarukhetri, District Barpeta, Assam. The Respondents/Plaintiffs' pleaded case in short is that their father late Neshu Seikh held annual patta of the land which was eventually converted into a periodic patta in his favour vide order dated 10.3.74 by the jurisdictional Circle Officer. The land was thus in the possession of their father and continued to be so till his death in the year 1981. On his death, the Respondents/Plaintiffs, their sisters the proforma Defendants and their mother inherited the property. Their mother expired soon thereafter and the proforma Defendants relinquished their share in the property. According to the Respondents/Plaintiffs, the Appellants/Defendants were their near relations being the sons of their uncle. The ancestral property was, however, partitioned amongst the heirs but the suit land remained in exclusive possession of the Respondent's/Plaintiffs' father. According to the Respondents/Plaintiffs, while they in their own right had been possessing the suit land, the Appellants/Defendants No. 1,2 and 3 secretly managed to get their names mutated in respect of the suit land. The Respondents/Plaintiffs having unsuccessfully challenged the mutation in the higher forum approached the Civil Court for the reliefs aforementioned. 4. In their written statement cum counter claim, the Appellants/Defendants denied that the suit land belonged exclusively to the father of the Respondents/Plaintiffs and contended that the same was the joint property of the family. The Respondents/Plaintiffs having unsuccessfully challenged the mutation in the higher forum approached the Civil Court for the reliefs aforementioned. 4. In their written statement cum counter claim, the Appellants/Defendants denied that the suit land belonged exclusively to the father of the Respondents/Plaintiffs and contended that the same was the joint property of the family. They asserted that the Respondents/Plaintiffs' father being the eldest brother, the patta of the suit land was allowed to remain in his name. However, the suit land was partitioned into three shares and that the Appellants/Defendants were exclusively possessing two third share of the suit land. While admitting that the Respondents/Plaintiffs were in possession of the remaining one third share of the suit land, they averred that mutation in respect of two third shares of the suit land was granted in their favour. They, therefore, prayed for a declaration of their right, title and interest in and confirmation of possession in the two third share of the suit land measuring 4B 7K 1/3 Ls. 5. The learned Trial Court on the basis of the pleadings framed several issues, issue No. 3 and 5 being as under. Issue No. 3. Whether the Plaintiffs have right, title, interest and possession over the suit land? Issue No. 5. Whether the Defendants have right, title interest an possession over the suit land? 6. Both parties adduced evidence and the learned Trial Court on a consideration of the pleadings of the parties and the evidence on record, both oral and documentary, decreed the suit deciding the issue No. 3 in favour of the Respondents/Plaintiffs and issue No. 5 against the Appellants/Defendants. As aforesaid, the learned Lower Appellate Court in the appeal filed by the Appellants/Defendants affirmed the decree of the learned Trial Court. 7. Mr. Rajbarbhuiyan has argued that it being evident from the materials on record that the suit land was the ancestral property of the parties and that on a consideration of all relevant aspects, more particularly, the possession of two third share there of by the Appellants/Defendants, the revenue authorities had granted mutation in their favour in respect thereof, the learned Court below erred in law in decreeing the suit by overlooking material pieces of evidence in support of the claim of the Appellants/Defendants. 8. I have closely examined the judgments rendered by the learned Courts below. 8. I have closely examined the judgments rendered by the learned Courts below. The learned trial Court while decreeing the suit exhaustively dealt with the evidence adduced by both the parties. It took note of the testimony of the Respondent/Plaintiff No. 1 to the effect that the suit land was covered initially by an annual patta Exhibit 1, which was converted into a periodic patta in the year 1974 in favour of his father. The witness proved the copy of the jamabandi Exhibit 2 and the revenue paying receipts Exhibit 3(1) to 3(4). P.W. 2 Ramiz Ali and PW3 Kasimuddin deposed that the suit land was of Neshu Seikh and that after his demise, the Respondents/Plaintiffs has been in possession of the suit land PW4 Manik Talukdar, the Lat Mondal, in his evidence confirmed that the suit land was originally annual patta land and on 10.3.1974, aperiodic patta was issued in the name of Neshu Seikh. 9. The learned Trial Court while dealing with the evidence adduced by the Appellants/Defendants noted the deposition of Bishu Mia, D.W. 1 admitting that the patta of the land stood in the name of Neshu Seikh. According to the said witness, the land was partitioned and two third share of the land was possessed by the Appellant/Defendants for which they also obtained mutation. The witness, however, as the learned Trial Court observed, could neither furnish particulars of the partition nor prove any document to the said effect. DW2 Mafizuddin, in his cross-examination, admitted his ignorance about the factum of partition. Janu Mia, DW4 also could not furnish the area of the land possessed by the parties. On the basis of the evidence on record, the learned Trial Court concluded that the suit land originally was covered by an annual patta in the name of Neshu Seikh which was converted into a periodic patta in his name subsequent thereto. It was of the view that the Appellants/Defendants had failed to establish that the said land was a joint property as claimed by them. The evidence with regard to the possession of the suit land by the Appellants/Defendants was also founded to be discrepant and unconvincing. 10. It was of the view that the Appellants/Defendants had failed to establish that the said land was a joint property as claimed by them. The evidence with regard to the possession of the suit land by the Appellants/Defendants was also founded to be discrepant and unconvincing. 10. The learned Lower Appellate Court also on a consideration of the materials on record returned a finding that the Respondents/Plaintiffs had been able to prove their right, title and interest over the suit land whereas the Appellants/Defendants had failed to establish that the same was a joint property. The Appellants/Defendants' claim of right, title and interest in two third share of the suit land on the basis of their mutation in the face of the other evidence on record was rejected. 11. Apart from the fact that the findings recorded by the learned Courts below are concurrent in nature, those are founded on the evidence on record. The learned Courts below have elaborately analyzed the evidence adduced by the parties and on an appreciation thereof have held in favour of the Respondents/Plaintiffs. No perversity in approach in evaluating the evidence or any error of law or procedure is noticeable. The learned Courts below was satisfied about the right, title and interest of the Respondents/Plaintiffs tracing the same to the time of issuance of annual patta in favour of their father. The mutation granted by the revenue authorities in respect of two third share of the suit land in favour of the Defendants/Appellants, in the teeth of the Civil Courts determination of the title as above is thus inconsequential. 12. In my considered view, therefore, the appeal does not disclose any substantial question of law to be examined by this Court in exercise of its powers under Section 100 of Code of Civil Procedure Being without any merit, the appeal as a consequence is dismissed. No costs. Appeal dismissed.