JUDGMENT Dr. Mrs. I. Shah, J. 1. Heard Mr. G.N. Sahewalla, learned Senior Counsel for the appellants. None has appeared on behalf of the respondents. This second appeal has been filed by the appellant/plaintiff against the judgment and decree of the first appellate Court dated 09-09-2004 passed by the learned District Judge, Tinsukia in T.A. No. 10 of 2003 (New) arising out of T.S. No. 08 of 1997 passed by the learned Civil Judge (Junior Division) No. 1, Tinsukia. By the impugned judgment and decree, the appeal filed by the appellant, was dismissed and the judgment and decree of the trial Court was upheld. 2. The substantial questions of law, formulated for decision of the present appeal, are :-- 1. Whether a co-pattadar can transfer the shares of others without their consent by way of mortgage or sale and if not, to what extent the document executed by such co-sharer is valid? 2. Whether the Courts below acted lawfully in dismissing the suit without being proved that any body else other than Late Dasiram Dahotia and Late Som Dutta Dahotia were owners of the land covered by P.P. No. 458 (old). The learned appellate Court below failed to held that Late Dasiram Dahotia did not inherited half share of the property and in any case he failed to consider any share in the property of Late Dasiram Dahotia as he was admittedly a co-sharer of land covered by P.P. No. 458 (old)? 3. The appellant's case, in brief, is that Late Dasiram Dahotia and his brother Somdutt Dohotia, both sons of Late Bibhison Dohotia jointly possessed 17 B 2 K and 18 L of lands situated at Borpathar village under Tinsukia Mouza, The said lands were within P.P. No. 458 (old) and dag Nos. 826, 831, 825, 832, 828, 879 and 976. Both brothers used to reside on the said land and the aforesaid lands were put to auction sale for default in payment of Government Revenue as per Section 70 /71 of the Assam Land Revenue Manual. One Dwarikadas purchased the said land. Late Somdutt Dohotia died unaware of the said sale and purchase. Thereafter, one Bidyadhar Sharma filed an appeal against the said sale and the Revenue Tribunal set aside the said sale. Somdutt Dohotia had left behind the present plaintiff, his brother Modan and wife Khadan Dohotia as his legal heirs and successors. One Dwarikadas purchased the said land. Late Somdutt Dohotia died unaware of the said sale and purchase. Thereafter, one Bidyadhar Sharma filed an appeal against the said sale and the Revenue Tribunal set aside the said sale. Somdutt Dohotia had left behind the present plaintiff, his brother Modan and wife Khadan Dohotia as his legal heirs and successors. After the death of Somdutt Dohotia, Dasiram, Modan and his wife Khadan were in possession of the said lands while the plaintiff was in service in the Army. 4. In the year 1953, Dasiram died leaving a 'will' executed by him on 22-03-1951 and the said 'will' was probated after his death. According to, the 'will', Dasiram bequeathed his share of lands to the plaintiff. The share of Dasiram was half of the entire area of 17 B 2K & 18 under P.P. No. 458. After setting aside the said sale by the learned Revenue Tribunal on the behest of Bidyadhar Sharma in the year 1937, the said Bidyadhar Sharma, in the year 1945, got his name mutated over the land. Although, Somdutt Dohotia was made a party in the said mutation proceeding but no notice was issued/served to him. 5. In the year 1958, Bidyadhar Sharma instituted a Civil Suit against the plaintiff/appellant his brother Modan and his mother whereby he claimed that 11B 4K 7L of the land was in his possession. In the said suit, no issue was framed regarding the entitlement of share of Dasiram, the 'will' executed in his favour and the probate though all those were averred in the written statement. The learned Sub-judge of Upper Assam Division decreed the suit in favour of Bidyadhar Sharma and the said judgment and decree was' affirmed by the High Court vide judgment and order dated 24-05-1966 in the first Appeal No. 15 of 1961. 6. During pendency of the appeal, Bidyadhar Sharma died and his legal heirs were brought on records. Thereafter, Title Execution Case No. 2 of 1968 was filed in the Court of Assistant District Judge, Dibrugarh. 6. During pendency of the appeal, Bidyadhar Sharma died and his legal heirs were brought on records. Thereafter, Title Execution Case No. 2 of 1968 was filed in the Court of Assistant District Judge, Dibrugarh. The appellant of this appeal, in the said execution case, filed an objection petition under Section 47 of the Code of Civil Procedure taking a plea that one of the co- pattadars namely, Dasiram Dahotia had bequeathed half of the landed property covered by P.P. No. 458 in favour of the appellant by executing a 'will' on 22-03-1951, which was probated. The objection was, however, not entertained. The plaintiff, thereafter, filed Title Suit No. 10 of 1969 for declaration of right, title and interest and confirmation of possession of half share of the entire land covered by P. P. No. 458, and for declaration that the decree passed in the Title Suit No. 61 of 1958 was not binding upon the plaintiff/appellant. The said suit was dismissed on 26-03-1976 on the ground that the suit was barred by the doctrine of res judicata. The appellant preferred appeal, the appeal was allowed and remanded back to the trial Court to dispose of the same on merit. 7. The defendants/respondents in their written statement alleged inter alia, that the suit was owned by Somdutt Dohotia and the entire land was mortgaged to Bidyadhar Sharma in the year 1924 by a registered document as Somdutt had bar-rowed Rs. 500/- from him. For non-payment of the money, Bidyadhar Sharma instituted a suit against Somdutt Dohotia being Title Suit No. 366 of 1932. The said suit was decreed in favour of Bidyadhar Sharma and in execution of the decree, the disputed land was put on auction sale and thereby, Bidyadhar purchased the said land in auction. The possession of the land was delivered to him on 14-09-1935 by virtue of the Title Execution Case No. 129 of 1934. Thereafter, the said land was again sold by the Collector of Lakhimpur, which at the relevant time was within the district of Lakhimpur, for arrears of land revenue. One Dwarikadas Mudi purchased the said land. However, Bidyadhar Sharma preferred an appeal against the order passed by the Collector and the Assam Revenue Tribunal set aside the sale and thereafter Bidyadhar Sharma also deposited all dues in respect of the said land. Accordingly, the vacant possession of the land re-settled to Bidyadhar Sharma. One Dwarikadas Mudi purchased the said land. However, Bidyadhar Sharma preferred an appeal against the order passed by the Collector and the Assam Revenue Tribunal set aside the sale and thereafter Bidyadhar Sharma also deposited all dues in respect of the said land. Accordingly, the vacant possession of the land re-settled to Bidyadhar Sharma. 8. The further case of the defendants/respondents is that Dasiram, thereafter, came to occupy a portion of the land as a tenant under Bidyadhar Sharma and in the year 1950, Dasiram died. Bidyadhar Sharma used to reside at Dibrugarh, which is situated at a distance of 48 kilometres from Tinsukia. Taking the advantage of his absence, Modan and Khudan occupied a portion of disputed land in year 1953 and both of them is started construction of a house on the land compelling Bidyadhar Sharma to file Title Suit No. 61 of 1958 against Ratan Singh Dohotia (present appellant), Modan and Khudan Dohotia. The suit was decreed in favour of the Bidyadhar Sharma and it was affirmed by the High Court. 9. The learned trial Court held that the plaintiff failed to prove the title of Dasiram over the suit land at the relevant point of time and the alleged probate is not binding upon the defendants/respondents. The plaintiff is not entitle to get any relief. The first appellate Court held that the suit was maintainable. It was observed by the learned first appellate Court that the entire land covered by the P.P. No. 458 was mortgaged by Somdutt about 26 years prior to the execution of the 'will' and at the time of mortgage in the year 1924, the mortgagor, Somdutt Dohotia, was; recorded the pattadar of the entire suit land and the entire land was sold by public auction on 09-06-1934 pursuant to the decreed passed in Title Suit No. 366 of 1932, which was filed for recovery of unpaid mortgaged loan. Thereafter, the sale certificate in pursuance to T.S. No. 366 of 1932, which was issued in favour of the Bidyadhar Sharma and the name of Bidyadhar Sharma was mutated. It was also noticed by the Court that the present appellant had objected the mutation of name of Bidyadhar Sharma, which was rejected by the S.D.C., Tinsukia Circle on 30-01-1956. Thereafter, the sale certificate in pursuance to T.S. No. 366 of 1932, which was issued in favour of the Bidyadhar Sharma and the name of Bidyadhar Sharma was mutated. It was also noticed by the Court that the present appellant had objected the mutation of name of Bidyadhar Sharma, which was rejected by the S.D.C., Tinsukia Circle on 30-01-1956. The learned Court below observed that in the Title Suit No. 61 of 1958, the appellant pleaded in his written statement that the entire land originally belonged to the his grandfather Bibhision Kahar and on his death, the land devolved on his three sons and the three brothers inherited the entire land. Thus, late Dasiram Dohotia was not the owner of half of the share of the entire land. 10. It was held by the learned appellate Court that the land was mortgaged to Bidyadhar Sharma, who also obtained decree of the T.S. No. 366 of 1932 in his favour and his name was recorded in the 'jamabandi'. The probate proceeding was initiated much after the mutation in the name of Bidyadhar Sharma. But no notice of the proceeding was served on him. The 'will' was executed long 26 years of the mortgage of the property and the decree was obtained for non payment of mortgaged loan amount in T.S. No. 366 of 1932. The name of Dasiram was incorporated in the jamabandi in the year 1934-35 only. There was no evidence on what basis his name was included in the jamabandi. 11. It is true that a co-pattadar can transfer only his share of land by way of mortgage or sale to any other person(s). A co-pattadar cannot sale his share to other person by way of mortgage or sale. 12. It is submitted by the learned Senior Counsel for the appellant, Mr. Sahewalla that the learned appellate Court held that late Dasiram Dohotia did not inherit half share of the property since his father was survived by three sons and even if the property of Bibhison Kahar devolved on his three sons, Somdutt Dohotia had only 1/3 (one-third) share of the property. So, he was not entitled to mortgage the entire property. It was the pleading of the appellant in T.S. No. 61 of 1954 that the entire land originally belonged to Somdutt's father and on his death, the land ought to have distributed amongst the three sons. So, he was not entitled to mortgage the entire property. It was the pleading of the appellant in T.S. No. 61 of 1954 that the entire land originally belonged to Somdutt's father and on his death, the land ought to have distributed amongst the three sons. But there was absolutely no evidence on records that the land originally belonged to Bibhison Kahar. From the documents exhibited in the earlier suit, it transpires that late Somdutt Dohotia was recorded pattadar in respect of the suit land. His name was in the record of rights in the year 1924 when the land was mortgaged. It was not proved in the earlier proceedings that Bibhison Kahar was the owner of the land. As per the 'jamabandi' of 19-12-1913, the suit land under P.P. No. 69 and later on became P.P. No. 458 was recorded in the name of Somdutt Dohotia as pattadar. 13. It also appears from the findings of T.S. No. 61 of 1958 that the land was sold in execution proceeding in Title Execution Case No. 129 of 1934 that sale certificate exhibited in the said suit was proved. Bidyadhar Sharma purchased the land in public auction and the possession was delivered to the decree holder i.e. Bidyadhar Sharma. Neither the trial Courts while deciding the T.S. No. 61 of 1958 or T.S. No. 8 of 1997, nor at any point of time held that Late Dasiram Dohotia was co-sharer of the land covered by P.P. No. 458 i.e. the suit land. The appellant claimed that the inherited property of Dasiram by virtue of probate had failed to prove the title of Dasiram at the relevant time in respect of the suit land. The learned counsel for the appellant has submitted that the trial Court as well as the appellate Court believed in the entries of the revenue records in favour of the Somdutt Dohotia but it is settled law that the mutation entries did not confer any title of the property. In support of his submissions, he has relied upon case of Durga Das v. Collector and Others, reported in 1996 (5) SCC 618 . In support of his submissions, he has relied upon case of Durga Das v. Collector and Others, reported in 1996 (5) SCC 618 . No doubt, mutation entry did not confer any title to the property but the right, title and interest of Dasiram was claimed on the basis of 'jamabandi' in the year 1935 wherein Dasiram has been shown as co-owner of the land along with his late brother Somdutt. The fact remains that Somdutt was only the recorded 'pattadar' when he mortgaged the land. The said land was sold in the execution proceeding and again for realising the land revenue. The respondent Bidyadhar Sharma purchased the land in public auction on 09-06-1934. 14. It is submitted that the appellant was in possession of the suit land all along. The possession of the land was never handed over to the respondent/Bidyadhar Sharma. In T.S. No. 61 of 1958, it was observed that in Land Sale Case No. of 1936-37, Somdutt Dohotia himself admitted that Bidyadhar Sharma took possession of the land but he (Bidyadhar) allowed him to continue to occupy the land by paying the Govt. land revenue. He also admitted that he was in permissive possession, of the land under Bidyadhar Sharma. It was the finding of the Court in T.S. No. 61 of 1958 that after the revenue sale in favour of the Dwarikadas, the original owner shifted to Maithan. The witnesses examined in the said suit supported the respondent's case that Somdutt and his family members shifted to Maithan village. Late Somdutt admitted himself in his evidence in MC. 258/1958 that Ratan Singh Dohotia [present appellant] worked in the Military while Modan Dohotia was at Maithan village, which is at a distance of 25-26 kilometres from the suit land. 15. On the basis of the oral and documentary evidence, the learned trial Court in T.S. No. 61 of 1958 held that Bidyadhar Sharma was in possession of the suit land till dispossession of 1953. It was also observed by the learned trial Court that the defendant No. 1 i.e. present appellant admitted the plaintiff's title over the suit land. The appellant compelled the respondent to file several rounds of litigation since 1932. There must be end to the litigations. The learned trial Court rightly held that the probate/letter of administration granted in favour of the appellant did not confer title to him. The appellant compelled the respondent to file several rounds of litigation since 1932. There must be end to the litigations. The learned trial Court rightly held that the probate/letter of administration granted in favour of the appellant did not confer title to him. The appellant failed to prove the right, title and interest of Dasiram Dohotia over the suit land. The appellant also failed to prove that the suit land was the ancestral property of their grandfather. 16. From the evidence on records, it appears that since 1912-13, Somdutt Dohotia was the owner of the suit property. He mortgaged the land to Bidyadhar Sharma in 1924. Bidyadhar Sharma purchased the land in pursuance to execution of decree. After the revenue auction sale, Bidyadhar Sharma preferred an appeal before the Assam Revenue Tribunal and that the revenue auction sale to Dwarika Das Mudi, was set aside. Thereafter, Bidyadhar Sharma, deposited all land revenue dues and the possession of the land was delivered to him and his name was mutated in the record of rights. 17. In view of the above, the judgment and decree of the first appellate Court dated 09-09-2004 passed by the learned District Judge, Tinsukia in T.A. No. 10 of 2003 (New) arising out of T.S. No. 08 of 1997 passed by the learned Civil Judge (Junior Division) No. 1, Tinsukia, needs no interference and accordingly, the appeal is dismissed. 18. There shall be no order as to cost. Return the LCRs to the Courts below forthwith along with a copy of the judgment and order. Appeal dismissed