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2007 DIGILAW 740 (GAU)

Gaffar v. Jakrun Nessa

2007-11-13

BROJENDRA PRASAD KATAKEY

body2007
JUDGMENT B.P. Katakey, J. 1. Musst. Jakarun Nessa, the respondent in RSANo. 251/05 filed Title Suit No. 28/1993 against Md. Gaffar, the appellant in the said appeal, as defendant, as well as Musst. Noor Jahan Begum and Musst. Asmina Begum, as proforma defendants, in the Court of the learned Sadar Munsiff at Tezpur, praying for declaration of right, title and interest as well as for permanent injunction, in respect of the land measuring 3 Lechas covered by Periodic Patta No. 457/629(old)/211(new) under Dag No. 491/1160(old)/1173 (new) of Tezpur Town, Mouza-Mahabhairab, District-Sonitpur, contending inter alia that the land measuring 6 Lechas covered in the said Dags and Periodic Patta was initially purchased by Md. Gaffar, the appellant in the Second Appeal and Md. Sattar, the predecessor in interest of proforma defendant Nos. 2 and 3 and, thereafter, mere was an amicable partition between Md. Gaffar and Md. Sattar, who are the brothers. It has further been contended that after the death of Md. Sattar, the proforma defendant Nos. 2 and 3, being the wife and the daughter inherited the property, the share of Md. Sattar, i.e. 3. Leches of land, and the proforma defendant Nos. 2 and 3 executed a registered deed dated 30.05.1992 transferring the right and title over the said land of 3 Lechas in favour of Musst. Jakarun Nessa, the respondent herein. The respondent/plaintiff, therefore, claims the title over the said 3 Lechas of land by virtue of purchased by registered deed of sale. It has further been contended that as Md. Gaffar threatened the plaintiff to disposes from the land in question the suit has to be brought. Musst. Noor Jahan Begum and Musst. Asmina Begum, the proforma defendants did not contest the suit. However, the main defendant Md. Gaffar, who is the present appellant, filed the written statement denying the claim of the plaintiff in the plaint contending inter alia that the proforma defendant Nos. 2 and 3 being not the legal heirs of Md. Sattar had no right over the property and, therefore, no right and title can be conferred on the plaintiff by virtue of any sale made in her favour by the said proforma defendant Nos. 2 and 3. 2. Alternatively, it has been contended that even if the proforma defendant Nos. 2 and 3 are the heirs of Md. Sattar had no right over the property and, therefore, no right and title can be conferred on the plaintiff by virtue of any sale made in her favour by the said proforma defendant Nos. 2 and 3. 2. Alternatively, it has been contended that even if the proforma defendant Nos. 2 and 3 are the heirs of Md. Sattar they will not inherit the entire 3 Lechas of land belonging to Md. Sattar under the Mohammedan Law. The defendant No. 1/appellant herein further contended that out of 3 Lechas of Land Md. Sattar during his lifetime sold 3/4 Lechas of the land to one Shri Kashinath Singh and, therefore, only 21/4 Lechas of the land left in the share of Md. Sattar, however, there was no partition amongst the two brothers, namely Md. Gaffar and Md. Sattar. 3. During pendency of the said suit, Md. Gaffar and Musst. Sabera Begum, who claims to be the daughter of Md. Sattar, brought another suit being Title Suit No. 64/1993 in the Court of the learned Sadar Munsiff at Tezpur against Musst. Jakarun Nessa (the plaintiff in Title Suit No. 28/1993) and Musst. Noor Jahan Begum and Musst. Asmina Begum (defendant Nos. 2 and 3 in Title Suit No. 28/1993) for declaration of right, title and interest over 6 Lechas of land pertaining to the same Dag numbers as well as the Patta numbers as described in Title Suit No. 28/1993 and also for conformation their possession as well as for declaration that the sale deed No. 998/1992 is null and void and inoperative in law and also prayed for permanent injunction, stating inter alia that the 6 Lechas of land was originally purchased by Md.Gaffar and Md. Sattar, the two brothers, by registered, deed of sale, that after the death of Md. Sattar his share of 3 Lechas of land was inherited by Musst. Sabera Begum, the plaintiff No. 2, that the defendant Nos. 2 and 3 are not the legal heirs of Md. Sattar and, therefore, they had no right over the 3 Lechas of land belonging to Md. Sattar and hence the transfer of 3 Lechas of land made by them in favour of Musst. Jakarun Nessa, the defendant No. 1, by registered deed of sale is void. In the alternative, it has further been contended that the defendant Nos. Sattar and, therefore, they had no right over the 3 Lechas of land belonging to Md. Sattar and hence the transfer of 3 Lechas of land made by them in favour of Musst. Jakarun Nessa, the defendant No. 1, by registered deed of sale is void. In the alternative, it has further been contended that the defendant Nos. 2 and 3 under the Mohammedan Law cannot inherit the entire property left behind by Md. Sattar and in any case, the defendant No. 2 is not the natural guardian of defendant No. 3 and cannot transfer any property belonging to the defendant No. 2. The said suit was contested by Musst. Jakarun Nessa, the defendant No. 1 therein, by filing written statement. However, the defendant Nos. 2 and 3 did not file any written statement. Musst. Jakarun Nessa has taken the plea in the written statement as taken by her in the plaint in Title Suit No. 28/1993, apart from taking the plea about the maintainability of the suit. 4. The learned Trial Court on the basis of the pleadings framed the following issues in Title Suit No. 28/1993: 1. Whether there is any cause of action for the suit? 2. Whether the suit is barred Under Section 34 of the Specific Relief Act? 3. Whether the suit is barred by limitation? 4. Whether Musst. Sabera Begum and Kashinath Singh are necessary parties in the suit? 5. Whether the plaintiff has any right, title and interest in the suit land and house? 6. Whether any partition took place in respect of the suit properties in between Md. Sattar and Md. Gaffar as alleged by the plaintiff? 7. Whether the proforma defendant had any saleable right over the suit properties? 8. Whether the plaintiff is entitled to get any decree as prayed for? 9. To what other reliefs, if any, the parties are entitled? 5. In Suit No. 64/1993, the learned Trial Court on the basis of the pleadings framed the issues, which are quoted below: 1. Whether the suit is maintainable in its present form? 2. Whether there is any cause of action for the suit? 3. Whether the plaintiff No. 1, and his deceased brother Md. Sattar had partitioned the suit land and houses standing thereon equally? 4. Whether Musst. Noorjahan and Asmina Begum widow and daughter of Late Md Sattar respectively? 5. Whether the suit is maintainable in its present form? 2. Whether there is any cause of action for the suit? 3. Whether the plaintiff No. 1, and his deceased brother Md. Sattar had partitioned the suit land and houses standing thereon equally? 4. Whether Musst. Noorjahan and Asmina Begum widow and daughter of Late Md Sattar respectively? 5. Whether Sabera Begum @ Muni is daughter of Late Md. Sattar? 6. Whether the registered sale deed 998/92 is null and void and inoperative in law? 7. Whether the plaintiffs are entitled for decree as prayed for? 8. To what relief/reliefs the parties are entitled 6. The learned Trial Court upon appreciation of the evidences on record, both oral and documentary, produced by the parties dismissed both the suits being the Title Suit No. 28/1993 and Title Suit No. 64/1993 vide judgments and decrees both dated 22.12.1995. Being aggrieved Musst. Jakarun Nessa preferred Title Appeal No. 14/1996 in the Court of the learned Civil Judge (Sr. Division), Sonitpur at Tezpur against the judgment and decree passed in Title Suit No. 28/1993 together with an application for condonation of delay. The appeal was, however, initially dismissed by the learned First Appellate Court refusing to condone the delay, against which a Civil Revision Petition being No. 340/1996 was filed before this Court, which was disposed of vide order dated 23.02.2004 by setting aside the order dated 12.09.1996 passed by the learned First Appellate Court dismissing the appeal. The Court by the said order also condoned the delay in filing the appeal and directed the learned First Appellate Court to hear and dispose of the Title Appeal being Title Appeal No. 14/1996 on merit. The appeal was accordingly heard by the learned First Appellate Court and vide judgment and order dated 06.12.2004 allowed the appeal and decreed the suit being Title Suit No. 28/1993 filed by Musst. Jakarun Nessa. Md. Gaffar, who was the defendant No. 1 in the said suit, being aggrieved preferred the present RSA No. 251/2005. 7. Md. Gaffar and Musst. Sabera Begum, who were the plaintiffs in Title Suit No. 64/1993 being aggrieved by the judgment and decree dated 22.12.1995 passed by the learned Trial Court dismissing the suit filed by them being Title Suit No. 64/1993 preferred Title Appeal No. 8/1996 in the Court of the learned Civil Judge (Sr. 7. Md. Gaffar and Musst. Sabera Begum, who were the plaintiffs in Title Suit No. 64/1993 being aggrieved by the judgment and decree dated 22.12.1995 passed by the learned Trial Court dismissing the suit filed by them being Title Suit No. 64/1993 preferred Title Appeal No. 8/1996 in the Court of the learned Civil Judge (Sr. Division) at Sonitpur, which was dismissed by the learned First Appellate Court on merit vide judgment and decree dated 24.06.1997, against which Second Appeal No. 157/1997 has been filed by the plaintiffs in Title Suit No. 64/1993. 8. Since both the appeals are between the same parties and involving the same property, both are taken up for hearing and disposal together, as agreed to by the learned Counsel for the parties. 9. I have heard Mr. N. Choudhury, the learned Counsel appearing on behalf of the appellants as well as Mr. T.C. Khetri, the learned Sr. Counsel appearing on behalf of the respondent No. 1, Musst. Jakarun Nessa, in both the appeals. 10. Mr. Choudhury, the learned Counsel appearing for the appellants referring to the judgments passed by the learned First Appellate Court has submitted that though the learned First Appellate Court being the final Court on facts is required to decide all the issues involved in the suit by discussing the entire evidences on record, but the same has not been done and, therefore, the judgments passed by the learned First Appellate Court in both the appeals be set aside and the appeals may be remanded to the learned First Appellate Court for giving decision on merit on the basis of the evidences on record. 11. It has further been contended by Mr. Choudhury that though the appellants in both the suits raised the question regarding the inheritance of property left behind by Md. Sattar by Musst. Noor Jahan Begum and Musst. Asmina Begum such question was not decided by the learned Courts below and without giving any decision on such question the suits could not have been decided as the defendant No. 1 claims title by virtue of the sale deed executed by said Musst. Noor Jahan Begum. It has further been contended that the learned Court below has also failed to take into consideration the law of succession under the Mohammendan Law as Musst. Noor Jahan Begum, even if she was the widow of Md. Noor Jahan Begum. It has further been contended that the learned Court below has also failed to take into consideration the law of succession under the Mohammendan Law as Musst. Noor Jahan Begum, even if she was the widow of Md. Sattar, cannot inherit the entire property left behind by Md. Sattar and she being not the natural guardian of Musst. Asmina Begum had no right to transfer any share belonging to Musst. Asmina Begum after the death of Md. Sattar. Mr. Choudhury has further contended, that the learned First Appellate Court also did not decide the question as to whether there was partition of the land between Md. Gaffar and Md. Sattar as it has a bearing in view of the fact that the suit in respect of the un-partitioned land filed by Musst. Jakarun Nessa is not maintainable under the provisions of Specific Relief Act. Relating to the appeal preferred before the: First Appellate Court arising out of Title Suit No. 64/1993 it has further been contended by Mr. Choudhury that both the learned Courts below while dismissing the suit has ignored the admitted position of fact that Md. Gaffar has right, title and interest at least in respect of 3 Lechas of land, but inspite of such admitted position of fact the entire suit of the plaintiff has been dismissed. It has further been contended that the learned Courts below without discussing any evidences on record has rejected the claim of the plaintiff No. 2, Sabera Begum, that she is the daughter of Md. Sattar. 12. Mr. Khetri, the learned Sr. Counsel appearing for the respondent No. 1, on the other hand, has submitted that both the Courts below upon appreciation on the evidences on record has rightly decided the suits. It has been contended that the appellate judgment passed by the learned First Appellate Court are inconformity with the provision of Order 41 Rule 31 CPC as the learned First Appellate Courts have discussed all the evidences on record in respect of Title Appeal No. 8/1996 arising out of Title Suit No. 64/1993. Mr. Khetri has submitted that the suit was in fact dismissed by the learned Trial Court by holding that the same is not maintainable and such finding of the learned Trial Court was upheld by the learned First Appellate Court. According to Mr. Mr. Khetri has submitted that the suit was in fact dismissed by the learned Trial Court by holding that the same is not maintainable and such finding of the learned Trial Court was upheld by the learned First Appellate Court. According to Mr. Khetri, the appeals preferred by the appellants, therefore, deserve to be dismissed. 13. I have considered the submissions of the learned Counsel for the parties and also passed the materials available on records. 14. It appears from the judgment passed by the learned Trial Court in Title Suit No. 28/1993 that the said suit was initially dismissed by the learned Trial Court, against which Musst. Jakarun Nessa preferred Title Appeal No. 14/1996. The learned First Appellate Court while deciding the issues relating to the plaintiff's right, title and interest as well as whether there was partition between Md. Sattar and Md. Gaffar and whether the proforma defendants in the said suit has any saleable right over the suit properties, has not discussed the entire evidences on record adduced by the parties. The learned Appellate Court has also failed to record any finding relating to the question as to whether the proforma defendants are the heirs of Md. Sattar. The question raised by the defendant in the said suit relating to the extent of the right of the proforma defendant No. 2 over the property left behind by Md. Sattar as well as her right to transfer any property belonging to a minor daughter under the Mohammedan Law have also not been dealt with at all. The learned First Appellate Court merely on the basis of the provision contained in Section 43 of the Transfer of Property Act has allowed the appeal by decreeing the suit. 15. In Title Appeal No. 8/1996 arising out of the Title Suit No. 64/1993 filed by Md. Gaffar and Sabera Begum, the learned First Appellate Court has formulated the following points for determination, though altogether 8 issues were framed by the learned Trial Court in the Suit. The points are: 1. Whether Mst. Noorjahan who sold the land to the respondent is the wife of Late Md. Sattar? 2. Whether Mst. Noorjahan is entitled to sale the land including the land of the minors? 3. Whether the sale deed by which Mst. Noorjahan sold the land is a valid sale? 16. The points are: 1. Whether Mst. Noorjahan who sold the land to the respondent is the wife of Late Md. Sattar? 2. Whether Mst. Noorjahan is entitled to sale the land including the land of the minors? 3. Whether the sale deed by which Mst. Noorjahan sold the land is a valid sale? 16. The learned First Appellate Court has dismissed the appeal preferred by the appellant therein by giving decision in the said points formulated for determination and not giving decision in issue wise. The First Appellate Court has also not decided whether the land was partitioned and whether the suit filed by the plaintiffs was maintainable though the finding of the learned Trial Court on such issues were seriously challenged by the appellants, as it appears from the memo of appeal filed. It also appears from the judgment passed by the learned First Appellate Court that it has been held that Sabera Begum, the plaintiff No. 2, is not the daughter of Md. Sattar solely on the basis of her deposition that she does not know about the properties left behind by Md. Sattar. 17. Order 41 Rule 31 CPC requires the First Appellate Court to formulate the points for determination and to discuss the entire evidences on record, both oral and documentary, while giving decision of such points. It also requires giving reasons for decision. The First Appellate Court being the final Courts on fact is required to discuss entire evidences on record, both oral and documentary. The onus on the learned First Appellate Court is more when the judgment and decree passed by the learned Trial Court is set aside. 18. In the instant case, it is evident from the discussion made above that the learned First Appellate Courts have to discuss the entire evidences on record and also failed to decide the important questions both on fact and the law, arose for decision. 19. In view of the above, both the judgments and decrees passed by the learned First Appellate Court in Title Appeal No. 8/1996 and Title Appeal No. 14/1996 are set aside. The appeals are remanded to the Court of learned Civil Judge (Sr. Division), Tezpur for giving a fresh decision on the issues formulated and upon discussing the entire evidences on record and on hearing the parties and in accordance with law. The appeals are remanded to the Court of learned Civil Judge (Sr. Division), Tezpur for giving a fresh decision on the issues formulated and upon discussing the entire evidences on record and on hearing the parties and in accordance with law. Since both the suits were instituted in the year 1993 and the subject matter of the suits are same, the learned First Appellate Court is directed to decide both the appeals analogously and as expeditiously as possible, preferably within a period of three months from the date of receipt of the record or from the date of completion of service of notice on all parties, which ever is later. Both the appellants and the respondent No. 1 are directed to appear before the learned First Appellate Court on 10.12.2007 for taking necessary order from that Court. The learned First Appellate Court shall issue notice on the other parties before proceeding to hear the appeals. 20. The appeals are accordingly allowed to the extent indicated above. No cost. Registry is directed to send down the records forthwith. Appeal allowed.