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2013 DIGILAW 375 (GAU)

Abdul Mannan Mazumdar v. Alauddin Laskar

2013-06-04

NISHITENDU CHAUDHURY

body2013
This second appeal has been preferred by the appellant-plaintiff against the concurrent findings arrived at by both the counts below dismissing the suit of the plaintiff-appellant. 2. The plaintiff filed a suit in the court of learned Assistant District Judge No.1, Cachar, Silchar praying for declaration of right, title and interest and recovery of khas possession of a plot of land measuring 11 kathas, 7 chataks, 8 gondas, 2 koras and 2 krantis appertaining to various dags and bounded by different boundaries mentioned in the schedule to the plaint. According to the plaintiff, the suit land along with other lands originally belonged to one Raj Kishore Nath and his brother Sarat Chandra Nath, who transferred the land in favour of one Haidar Mia Mazumdar. Haidar died leaving behind five sons, namely, Abdul Mazid, Abdul Rehman, Abdul Hamid, Abdul Manaf and Abdul Khalek. The four sons of Haider Mia out of the aforesaid five sons, namely, Abdul Manaf, Amdul Mazid and Abdul Rehman transferred their shares in various dags arid pattas in favour of Namar Ali. Namar AH also purchased the share of Abdul Hamid and, thus, Namar AH purchased the title of four sons of Haider Ali leaving only one son, namely, Abdul Khalique. According to the plaintiff, Namar Ali being in possession of the land within the definite boundary sold the said land to him by a registered sale deed dated 14.9.1995 (ljlxt.4) and handed over possession. Consequently, the plaintiff continued in enjoining the same until he was dispossessed by the defendant No.1, namely, Alauddin Laskar. According to the plaintiff, there was a proceeding under section 145, Cr.PC being Case No.389(M)/1995, but after the said proceeding was dropped, on 30.11.1995 the defendant dispossessed him and in the meantime, in collusion with the predecessor-in-interest of the pro forma defendant executed a sale deed on 27.10.1995 with regard to the suit land. The said vendor, i.e., the remaining sons of Haidar Mia never owned or possessed the land in question. The plaintiff, therefore, made a prayer that the said sale deed be declared void, illegal, inoperative and liable to be delivered up and cancelled. While pro forma defendant did not contest the suit, the principal defendant No.l Alauddin Laskar submitted the written statement.. The plaintiff, therefore, made a prayer that the said sale deed be declared void, illegal, inoperative and liable to be delivered up and cancelled. While pro forma defendant did not contest the suit, the principal defendant No.l Alauddin Laskar submitted the written statement.. The specific stand in the written statement of the said defendant is that in a particular dag, namely, dag No.85, the vendor of the plaintiff had acquired only 13 kathas, 8 chataks, 12 gondas. It is curious to mention here that the land originally belonged to Raj Kishore Nath, who sold out to Haidar Mia and thereafter Haidar Mia sold it to Namar Ali who, in turn, sold his share to plaintiff. Similarly, one son of Haidar Mia transferred his title in favour of the contesting defendant No. 1. This transaction having taken placed over a long period of years, two successive settlement operations had been conducted during the intervening period and as such, Dag Nos. and Patta Nos. mentioned in various sale deeds virtually became confusing. Be that as it may, the Ext. 4, sale deed by which the plaintiff claimed to have been purchased the suit land measuring 11 kathas, 7 chataks, 8 gondas, 2 koras, 2 krantis are described within the specific boundaries. But the defendant did not mention as to whether the shares of five sons of Haidar Mia had title in other dags and as to whether there was at all any possession by metes and bounds corresponding to dags and pattas of the land in question; or as to whether amicable family settlement as claimed by the plaintiff in the plaint on the basis of possession was, the base for enjoyment of land by heirs of Haidar Mia and sold to their respective vendees. 3. The learned trial court on the basis of the aforesaid pleadings framed as many as nine issues. Out of which Issue Nos. 7 and 8 relate to devolution of title on the plaintiff and validity of sale deed of the defendant No.l. The plaintiff examined altogether six witnesses and exhibited the sale deed in original including Ext.4, the document of title on the basis of which the suit had been filed. Defendants examined three witnesses and they also produced some documents including their deed of title. Defendants examined three witnesses and they also produced some documents including their deed of title. The trial court hold that the suit for declaration of right, title and interest of the plaintiff is not maintainable because all other pattadars of the original patta were not made parties. In so doing, learned trial court failed to note in its judgment the prayer portion of the suit for declaration of right, title and interest over the suit land and recovery of khas possession thereof from defendant No.l,; who is described to be a trespasser to the land. The learned trial court observed in the judgment inter alia as follows : “*** *** *** *** *** *** Thus, it revealed frat the description of land given in the instrument (Ext.4) does not tally with those mentioned either in the plaint or in the evidence of material witnesses on record. The recital of the schedule to the sale deed marked as Ext.4 as to the delivery of entire land iheasuring 11 k., 7 ch., 8 gondas, 2 koras, 2 kranti within the only dag No.85 under 2nd R.S. Patta No.55 is found to be absurd as well as in violation of the permission granted vide Ext.4(b). In view of the above disciissions, in my opinion, the plea of the defendant No.l in his W/S that the suit land as has been described in the schedule to the plaint is bad, imaginary and not identifiable in the locality, cannot be ruled out." Learned trial court further held that Namar Ali Mazumdar bould not have transferred his title hi respect of 11 kathas, 7 chataks, 8 gondas, 2 koras, 2 kranties in Dag No.85 under R.S. Patta No.51, etc. With the aforesaid observations, the learned trial court dismissed th[e suit on 24.9.1999. 4. Aggrieved, the plaintiff preferred Title Appeal No.l6/19&9 in the court of learned District Judge, Cachar at Silchar. With the aforesaid observations, the learned trial court dismissed th[e suit on 24.9.1999. 4. Aggrieved, the plaintiff preferred Title Appeal No.l6/19&9 in the court of learned District Judge, Cachar at Silchar. The learned District Judge although observed that sons of Haidar Mia wefe possessing their respective shares by amicable family arrangement, but virtually dittoed the findings of the learned trial court without independent application of mind and observed in paragraph 9 as follows : *** *** *** *** *** *** Thus, it reveals from Ext.4 and other relevant documents that the descriptions of the land given in Ext.4 does not tally with those mentioned either in the plaint or in the evidence of the materials witnesses on record." 5. Against the aforesaid concurrent findings, the plaintiff has approached this court through this present second appeal. The second appeal was admitted on 15.5.2002 on the following substantial questions of law : (1) Whether the sale deed, i.e., Ext.4 having been executed in| favour of the plaintiff in earlier point of time will prevail upon the sale deed, i.e., Ext. C executed in favour of the defendant No. 1 in latter point of time and confer right title and interest of the suit land on the plaintiff. (2) Whether the suit of the plaintiff being a suit under section 31 of the Specific Relief Act, i.e., for cancellation of a sale deed executed in favour of the defendant Nb.l by the Pro forma defendant JMos.2 to 4 and also a suit under section 34 of the Specific Relief Act for declaration of right of the plaintiff against the defendant No.1 who is denying title of the plaintiff can be dismissed for non-joinder of all the co-pattadars of the patta in question more so in view of the provisions of the order 1, rule 9 of the Civil Procedure Code." 6. I have heard Mr. P. Roy, learned counsel for "the appellant (plaintiff) and Mr. B. Banerjee, learned counsel for the respondent (defendant). In addition to the aforesaid two substantial questions of law, both the learned counsel have been heard on one additional substantial question of law, namely, as to whether the finding of the learned courts below that the schedule mentioned in Ext. 4 does not tally with the schedule of the plaint are perverse or not? So far as the substantial question No. 1 is concerned, learned counsel, Mr. 4 does not tally with the schedule of the plaint are perverse or not? So far as the substantial question No. 1 is concerned, learned counsel, Mr. Roy has argued that the plaintiff having purchased the suit land by Ext. 4 on 14.9.1995 and having come to the possession of the suit land, the defendant No.l by subsequent sale deed dated 27.10.1995, could not have any title whatsoever in respect thereto. Although both the parties agree that original title holder and pattadar was Haidar Mia, but defendant No. 1 claimed to have purchased the share of Audul Khalique one of the five sons of Haidar Mia whereas, the plaintiff's vendor Namar Ali claimed to have purchased four shares of other four sons of Haidar Mia or if Namar Ali was in possession of the land pursuant to the purchase from four sons of Haidar Mia and he had handed over the possession to the plaintiff on 14.9.1995, the legal heirs of five sons of Haidar Mia could not have handed over the possession cancelling the suit land on a subsequent date. Without entering into that aspect of the matter, learned courts below proceeded in the premises that the schedule of Ext. 4 does not tally with the plaint. This premise of the learned courts below is based on the premise that this boundary of the plaintiff must found acquired title of all dags and pattas originally owned by Haider Mia and shown in a particular dag, namely, dag No.85 in 7 R.S. patta No.51, the share of Namar Ali could have been 11 kathas, 7 chataks, 8 gondas, 2 koras, 2 krantis, rather, at the ipsi dixit of the principal defendant who has not led any evidence to show that how the land of Haidar Mia has been described in various dags and how the same apportioned amongst sons and daughters and how sales in specific dags were made. 7. Order VTI, rule 3 of the Code of Civil Procedure only requires that if plaintiff's claim title in respect of specific immovable property, it should be suitably identified either by boundaries or by revenue index, i.e., dags and pattas. 8. The law is settled by now that if there is any dispute with regard to identify of a land from the stand point of dag Nos. and patta Nos. 8. The law is settled by now that if there is any dispute with regard to identify of a land from the stand point of dag Nos. and patta Nos. with that of boundaries, the boundaries shall prevail over the revenue index and patta No. Here, in this case, sale deed dated 14.9.1995 specifically mentioned the four boundaries of the land in question. I have compared the land with the plaint and found the boundaries of Ext. 4 and the land in schedule to the plaint are identical and there is no variation whatsoever. The findings of the learned courts below particularly trial court, that there is no mention about delivery of possession in Ext. 4, also appears to be perverse inasmuch as, there is specific recital in Ext. 4 that the same land is handed over to the vendee within the specific boundary mentioned in the deed. This finding of the courts below as to variance of boundaries of schedule and that of the plaint along with observation as to the absence of the recital that possession was handed over to the vendee, therefore, are clearly perverse which gave rise to substantial questions of law within the meaning of section 100 of the Code of Civil Procedure. In this view of the matter, the substantial question No.1 is decided in favour of the appellant. As observe above, a suit for declaration of title along with recovery of possession with a prayer for partition cannot be failed without joinder of co-patttadars. There is a registered sale deed in favour of the petitioner which is executed duly and validly in respect to the suit land. Having regard to the observations made above, the second substantial question if law is also liable to be decided in favour of the appellant/plaintiff. 9. It is clear from the observations made above that merely by deciding the aforesaid two substantial questions of law, the differences Between the parties cannot be effectively brought to an end. The plaintiff has a registered sale deed in his hand. There are materials on record in his favour indicating that his vendor had title to the property left behind by Hamid Mia which is the common source of title of both the parties. The plaintiff has a registered sale deed in his hand. There are materials on record in his favour indicating that his vendor had title to the property left behind by Hamid Mia which is the common source of title of both the parties. The first appellant courts being the last court of facts and law they are duty bound to look into this aspect of the matter without dittoing merely the findings of the trial court as indicated above. The lower appellate court therefore, has clearly fell into an error in exercising its jurisdiction. For the ends of justice, I am inclined to set aside the judgment and decree dated 17.11.2001 passed by the first appellate court and remand the case for decision afresh. 10. In view of the observations made hereinabove, the second appeal is allowed. The appellant having been dispossessed from the suit the year 1996, the first appellate court shall make an endeavour to decide the matter expeditiously. Send down the records immediately to the first appellate court. No costs.