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2009 DIGILAW 682 (GAU)

Dewan Alkash Ali v. Md. Ali Baksh

2009-09-18

BROJENDRA PRASAD KATAKEY

body2009
JUDGMENT B.P. Katakey, J. 1. This appeal by the defendants in Title Suit No. 47/1991, is directed against the judgment and decree dated 12.4.2000 passed in Title Appeal No. 10/1995 by the learned Civil Judge, Senior Division No. 2 at Guwahati, allowing the appeal preferred by the plaintiffs in the said suit and decreeing the suit by setting aside the judgment and decree dated 21.2.1995 passed by the learned Munsiff No. 4, Guwahati in Title Suit No. 47/1991. 2. The respondent No. 1 alongwith respondent No. 2 (against whom the appeal has abated) as plaintiffs instituted Title Suit No. 47/1991 against the predecessor in interest of the appellant Nos. 1(a) to 1(d) and the proforma respondent Nos. 3 to 7 praying for a decree declaring right, title and interest and for partition in respect of 1/3rd shares of land measuring 1 bigha 3 kathas 10 lechas covered by Dag No. 782 of K.P. Patta No. 106 with houses standing thereon as described in the schedule to the plaint, contending inter alia that the land measuring 1 bigha 3 kathas 10 lechas originally belonged to Mangal Shah Dewan, who had three sons, namely, Gahin Sayed (defendant No. 1), Nazar Ali (predecessor in interest of proforma respondent Nos. 3 to 7, who were the defendant Nos. 2 to 6 in the suit) and Farizur Ali alias Farizur Sayed (predecessor in interest of the plaintiffs) and after the death of Mangal Shah Dewan those three sons inherited the property in equal shares and accordingly their names were mutated in the revenue record. It has further been pleaded in the plaint that since the joint possession created some inconvenience, the plaintiffs insisted the defendant No. 1 for amicable division of the property, which having denied, the suit has been filed. The defendant No. 1 (Predecessor in interest of the appellants) contested the suit by filing the written statement contending inter alia that though the suit land originally belong to Mangal Shah Dewan, the same was put to auction sale by the revenue authority for recovery of the arrear of land revenue and in such auction sale the land was purchased by one Harmohan Das in the year 1940-41 and thereafter by an oral transfer for the consideration of Rs. 8/- the said land was transferred by Harmohan Das in favour of the defendant No. 1 and accordingly his name was mutated in the revenue record, on the basis of which K.P. Patta was issued in his name. The defendant No. 1, therefore, pleaded that after such purchase, he became the absolute owner in respect of the suit property. The defendant Nos. 2 to 6 (the successor in interest of the 3rd son of Mangal Shah Dewan, namely, Nazar Ali) by filing the written statement have supported the case of the plaintiffs. 3. The learned Trial Court on the basis of the pleadings of the parties framed the following issues: (1) Whether the suit is maintainable or not? (2) Whether there is any cause of action for the suit? (3) Whether the plaintiffs have right, title, interest over the suit land? (4) Whether the plaintiffs are entitled to a decree for khas possession over their share of land? (5) Whether the plaintiffs are entitled to a decree of parties of suit property? (6) To what relief parties are entitled to? (7) Whether the suit is barred by limitation as alleged by the defendants? 4. The plaintiffs in support of their claim examined 3 (three) witnesses and also proved three documents. The defendant No. 1 also examined 4(four) witnesses and also proved four documents. The witnesses have duly been cross-examined by the respective parties. The learned trial Court upon appreciation of the evidences on record dismissed the suit of the plaintiffs vide judgment and decree dated 21.2.1995 by holding that the suit land was purchased by one Harmohan Das as auction purchaser in the year 1940-41, on being put to sale for recovery of arrear land revenue and though the plaintiffs in their evidence have claimed that the such land was thereafter purchased by all the three sons of Mangal Shah Dewan from Harmohan Das at Rs. 27/-, out of which the predecessor in interest of the plaintiffs has paid Rs. 9/- as his share, there is no documentary evidence in respect of such purchase of the suit land from the auction purchaser. 5. 27/-, out of which the predecessor in interest of the plaintiffs has paid Rs. 9/- as his share, there is no documentary evidence in respect of such purchase of the suit land from the auction purchaser. 5. Being aggrieved the plaintiffs preferred the Title Appeal No. 10/1995 before the learned Lower Appellate Court, which has been allowed vide judgment and decree dated 12.4.2000 by holding that the plaintiffs could prove that the predecessor in interest of the plaintiffs, Farizur Sayed and the defendant No. 1 (Gahin Sayed) and the predecessor in interest of the defendant Nos. 2 to 6 (Nazar Ali) jointly purchased the suit land from the auction purchaser Harmohan Das for valuable consideration and hence the plaintiffs have right, title and interest in respect of 1/3rd of the suit land and therefore, entitled to partition. The learned Lower Appellate Court, therefore, set aside the judgment and decree passed by the learned Trial Court. Hence the present appeal by the successors in interest of the defendant No. 1 Md. Gahin Sayed, who in the meantime has died. 6. By order dated 11.9.2000 the appeal has been admitted for hearing by formulating the following substantial questions of law: 1. Whether the learned lower appellate Court committed illegality in interfering with the conclusions arrived at by the trial Court without examining the evidences of the witnesses? 2. When land is sold in auction for arrears of revenue the auction purchaser acquires good title free from an encumbrances and the transferee from the auction purchaser acquires title to the exclusion of all others. Therefore, the plaintiffs cannot acquire title merely on the basis of mutation entries. If so, whether the learned lower appellate Court committed illegality in decreeing the suit by reversing the trial Court's judgment? 7. I have heard Mr. C.K. Sarma Baruah, the learned Sr. counsel for the appellants and Mr. H.K. Deka, the learned Sr. counsel appearing on behalf of the respondent No. 1. 8. The name of the respondent No. 2 (plaintiff No. 2) has been deleted from the list of respondents, as the application seeking condonation of delay, for setting aside abatement and substitution of the names of legal heirs of the said respondent have been dismissed, refusing to condone the delay, vide order dated 26.11.2007 passed in Misc. Case No. 301/2007. The appeal, therefore stands abated as against the said respondent (plaintiff No. 2 Md. Case No. 301/2007. The appeal, therefore stands abated as against the said respondent (plaintiff No. 2 Md. Nur Uddin). 9. Mr. Deka, the learned Sr. counsel for the respondent No. 1 has raised a preliminary objection contending inter alia that since the decree passed by the learned Lower Appellate Court is joint and indivisible, on abatement of the appeal as against the plaintiff No. 2/respondent No. 2, Md. Nur Uddin, the appeal filed by the appellants stands abated as a whole. Mr. Deka in support of the contention has placed reliance on a constitution bench judgment of Apex Court in Sardar Amarjit Singh Kalra and Ors. v. Pramod Gupta and Ors. reported in (2003) 3 SCC 272 . 10. Mr. Sarma Baruah, the learned Sr. counsel appearing for the appellants, on the other hand, referring to the pleadings in the plaint, relief sought for as well as the impugned judgment and decree passed by the learned Lower Appellate Court, has submitted that since the suit is for declaration of right, title and interest of the plaintiffs claiming inheritance of the 1/3rd share of the suit property from their father and for partition on the basis of such right, the appeal as a whole did not abate, on abatement of such appeal against the respondent No. 2/plaintiff No. 2, as the question as to whether the plaintiffs had any right, title and interest over the suit land can be gone into in the absence of the plaintiff No. 2 in the appeal, when the plaintiff No. 1 (respondent No. 1) is on record, both of them having claimed the property being the heirs of Farizur Ali, one of the brothers of the predecessor in interest of the present appellants. Mr. Sarma Baruah submits that since the estate of the plaintiff No. 2/respondent No. 2 is adequately represented by the plaintiff No. 1/respondent No. 1, the appeal as a whole has not abated. Referring to a decision of the Apex Court in Shahazada Bi and Ors. v. Halimabi reported in (2004) 7 SCC 354 , it has been submitted by Mr. Sarma Baruah submits that since the estate of the plaintiff No. 2/respondent No. 2 is adequately represented by the plaintiff No. 1/respondent No. 1, the appeal as a whole has not abated. Referring to a decision of the Apex Court in Shahazada Bi and Ors. v. Halimabi reported in (2004) 7 SCC 354 , it has been submitted by Mr. Sarma Baruah that the test as to whether an appeal as a whole abates, in view of the abatement of such appeal against one of the respondents, is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject-matter and in the instant case according to the learned Sr. counsel since the suit is for right, title and interest on the basis of right of inheritance and keeping in view the findings recorded by the learned Court below that the suit land was sold in auction to one Harmohan Das and as well as in view of the specific stand taken by the defendant No. 1 in the suit that thereafter he purchased the land from Harmohan Das and became the absolute owner, the appeal cannot said to have abated as a whole. Mr. Sarma Baruah in support of the contention has also placed reliance on the decision of the Apex Court in State of Haryana and Ors. v. Gurcharan Singh and Ors. reported in (2004) 12 SCC 540 . 11. Mr. Sarma Baruah, on the merit of the appeal, submits that it is apparent from the finding recorded by the learned Courts below that the suit land though originally belonged to Mangal Shah Dewan, the same was put to auction sale in the year 1940-41 for the failure of the pattadar to pay the land revenue and the same was purchased by one Harmohan Das as auction purchaser, on whom the property vested free from all encumbrances, in view of Sections 71 and 85 of Assam Land and Revenue Regulation, 1886. Therefore, the learned Sr. counsel submits, the plaintiffs cannot claim any right, title and interest in respect of any portion of the suit land, by right of inheritance. According to the learned Sr. Therefore, the learned Sr. counsel submits, the plaintiffs cannot claim any right, title and interest in respect of any portion of the suit land, by right of inheritance. According to the learned Sr. counsel since it is not the case of the plaintiffs in the plaint that their predecessor in interest alongwith the original defendant No. 1 and the predecessor in interest of the defendant Nos. , 2 to 6 have jointly purchased the said land from the auction purchaser, the learned Court below has erred in law as well as in facts in decreeing the suit of the plaintiffs by ignoring the provisions in Sections 71 and 85 of the Assam Land and Revenue Regulation, 1886. It has further been submitted by the learned Sr. counsel that the First Appellate Court being the final Court on facts and having passed the judgment setting aside the judgment and decree passed by the learned Trial Court, is required to discuss all the evidences on record, both oral and documentary, but in the instant case the learned First Appellate Court reversed the judgment and decree passed by the learned Trial Court without discussing the entire evidences on record. Mr. Sarma Baruah, therefore, submits that it is a fit case where this Court, keeping in view the substantial questions of law formulated, may set aside the judgment and decree passed by the learned First Appellate Court and remand the case to the learned First Appellate Court for fresh disposal. 12. Mr. Deka, the learned Sr. counsel appearing on behalf of the respondent No. 1, on the merit of the appeal, has submitted that though there is no specific plea in the plaint filed by the plaintiffs that the land was purchased by Harmohan Das in auction in the year 1940-41 and thereafter was repurchased by the defendant No. 1 and the predecessor in interest of the plaintiffs as well as of the defendant Nos. 2 to 6, who were the brothers, since it has come out in the evidence adduced by the parties that the suit land in fact was purchased by one Harmohan Das in auction sale, who in turn sold it to the said three brothers, the learned Court below did not commit any illegality in decreeing the suit of the plaintiffs by declaring their right, title and interest in respect of 1/3rd of the suit land, they being the successors in interest of Farizur Ali. Mr. Deka submits that the second substantial question of law as formulated by this Court does not arise at all as the learned First Appellate Court has recorded the specific finding about the transfer of ownership of the suit land in favour of Harmohan Das on the basis of the auction purchase. The learned Lower Appellate Court, however, on the basis of the materials available on record has also recorded the further finding that Harmohan Das thereafter sold the suit land in favour of the said three brothers, who contributed in equal share towards the sale price of such land. Mr. Deka referring to the first substantial question of law formulated has submitted that it is apparent from the impugned judgment and decree passed by the learned First Appellate Court that all the material evidences, both oral and documentary, have been discussed and no other material evidences were left out by the learned First Appellate Court from discussion. According to the learned Sr. counsel the appellants have not been able to demonstrate which of the material evidences has not been discussed by the learned First Appellate Court while passing the decree. 13. I have considered the submissions of the learned Counsel for the parties and perused the materials available on record. 14. Before going into the merit of the appeal, I shall first considered the preliminary objection raised by the learned Sr. counsel for the respondent No. 1 that in view of the abatement of the appeal as against the plaintiff No. 2/respondent No. 2, the appeal has abated as a whole, the decree appealed against being joint and indivisible. 15. The plaintiffs jointly instituted the suit for declaration of right, title and interest and for partition in respect of 1/3rd share of 1 bigha 3 kathas 10 Jechas of land. 15. The plaintiffs jointly instituted the suit for declaration of right, title and interest and for partition in respect of 1/3rd share of 1 bigha 3 kathas 10 Jechas of land. The learned First Appellate Court has passed the decree declaring the right, title and interest of the plaintiffs jointly in respect of such 1/3rd of the entire suit land by recording the finding that the predecessor in interest of the plaintiffs (Farizur Ali), defendant No. 1 (Gahin Sayed) and the predecessor in interest of the defendant Nos. 2 to 6 (Nazar Ali) who were the brothers, have purchased the land from the auction purchaser Harmohan Das on payment of consideration amount in equal shares. In the decree for partition, as granted by the learned Lower Appellate Court, the shares of each of the plaintiffs have also not been ascertained. 16. In the backdrop of the aforesaid position, I shall now discuss the various decisions of the Apex Court, on which the learned Counsel for the parties have placed reliance. In Sardar Amarjit Singh Kalra (supra) a Constitution Bench of the Apex Court taking into consideration its earlier decisions in the matter of abatement of an appeal, has summarised the factors to be taken into consideration while determining as to whether an appeal abates as a whole, in view of abatement of such appeal as against one of the respondents: (1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them. (2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees. (3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one. (4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other. 17. In Shahazada Bi, (supra) the Apex Court has held that when the suit is of such a nature that the absence of legal representative of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto, otherwise, the abatement takes place only in respect of' the interest of the respondent who has died. It has further been observed that the test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject-matter. The Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees, the Court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties. In the said judgment the Apex Court further observed that a distinction must be made between the cases in which there is specification of shares or interests and those in which there is no specification of interests. Where there is a specific share or interest, the appeal cannot abate as a whole and in such cases, the appeal abates only in respect of the interest of the deceased respondent and not as a whole. The Apex Court in the said decision has also explained when a decree can be said to be inconsistent or contradictory with another decree. It has been held that a decree can said to be inconsistent or contradictory with another decree only when two decrees are incapable of enforcement and that enforcement of one would negate the enforcement of the other. In Gurcharan Singh's case the Apex Court relying on the decision in Sardar Amarjit Singh Kalra, (supra) has further observed that the question of abatement depends on facts and circumstances of each case, the nature of the right asserted and the relief which had been sought. It has further been observed that if the claims are different and distinct even though they may be sought to be vindicated in one proceeding/then the appeal would not abate as a whole. Thus, it has been held that the facts and circumstances of each case have to be looked into and amongst other things, if the claim is as heirs of somebody else, then so long as even one representative is on record, the proceedings would not abate as a whole. 18. Thus, it has been held that the facts and circumstances of each case have to be looked into and amongst other things, if the claim is as heirs of somebody else, then so long as even one representative is on record, the proceedings would not abate as a whole. 18. From the aforesaid decisions of the Apex Court what therefore transpires is that, whether the appeal as a whole abates or not, in view of the abatement of such appeal as against one of the respondents, is to be decided keeping in view the facts of each case. If the decree passed is joint and indivisible and in the event of allowing the appeal there would be inconsistent or contradictory decrees, the appeal abates as a whole, when the same has abated as against one of the respondents. In the instant case as it appears from the judgment and decree passed by the learned First Appellate Court, which is under challenge, that the suit of the plaintiffs has been decreed in respect of 1/3rd share of the land jointly, without there being any specification of shares or interest to which each of the plaintiffs are entitled to. The plaintiffs in the suit have not claimed any specific share or interest out of that 1/3rd share. The decree as against the plaintiff No. 2/respondent No. 2 has attained finality as soon as the appeal filed against him has abated. Such decree being declaring the right, title and interest of the plaintiffs jointly in respect of 1/3rd share of the suit property, in the event the appeal is allowed as against the present respondent No. 1 (plaintiff No. 1) there would be two contradictory decrees in the same suit in respect of the same subject matter as both the decrees are incapable of enforcement and the enforcement of one the decrees would negate the enforcement of the other, as the legal heirs of the plaintiff No. 2/respondent No. 2, in whose favour the decree has become final would be entitled to put the decree as a whole in execution, there being No specification of their shares or interest out of such 1/3rd share of the suit property. The contention of the learned Sr. The contention of the learned Sr. counsel for the appellants that since one of the heirs being plaintiff No. 1/respondent No. 1 is on record, the appeal as a whole has not abated, also cannot be accepted in view of the aforesaid discussion. 19. In view of the above, the appeal preferred by the appellants has abated as a whole, for abatement of such appeal as against the plaintiff No. 2/respondent No. 2. Having held so, no finding is required to be recorded on the merit of the appeal. 20. The appeal, therefore, stands dismissed. No cost.