Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 596 (GAU)

MD. SABUL HUSSAIN v. MD. ABDUL JALIL MIAH

2014-06-05

N.CHAUDHURY

body2014
JUDGMENT & ORDER(ORAL) This second appeal is directed against the judgment of reversal passed on 30.06.2005 by the learned Civil Judge (Senior Division), Barpeta in Title Appeal No. 27 of 2004 thereby decreeing the suit of the plaintiff setting aside the trial Court’s judgment and decree dated 11.06.2004 passed by the learned Civil Judge (Junior Division) No. 1, Barpeta in Title Suit No. 105/2002. This second appeal is at the instance of the contesting defendants No. 1 to 4. 2. Md. Abdul Jalil Miah as plaintiff instituted Title Suit No. 105/2002 in the Court of learned Civil Judge (Junior Division) No.1 at Barpeta praying for declaration of his right, title and interest, confirmation of possession and prohibitory injunction restraining the principal defendants from dispossessing the plaintiff from the suit land. According to the plaintiff, land measuring 2 bighas out of two dags, namely, Dag No. 9 and Dag No. 11 of Periodic Patta No. 177 covered by Betbari Mouza in the District of Barpeta originally belonged to one Nawshad Ali who by executing a valid registered sale deed on 13.03.1962 transferred it jointly in favour of the plaintiff and the Proforma Defendant (Niamuddin Mia). Subsequently plaintiff amicably partitioned the land with Proforma Defendant and got his 1 bigha of land separated. The plaintiff claimed that pursuant to the aforesaid purchase and possession he obtained mutation in the records of rights. It is the case of the plaintiff that although defendants No. 1 to 4 did not have any semblance of right, title and interest to the land in question yet by filing a Misc. Case being MC 223/2001-02 before Settlement Officer of Barpeta prayed for mutation in their name with respect to those land. According to the plaintiff, issuance of notice on 20.05.2002 on such prayer of the Principal Defendants, praying for mutation of the suit land clouded his title and it was under such circumstances filing of the suit became necessary. The plaintiff prayed, therefore, that a decree be passed declaring his right, title and interest and confirmation of possession over the suit land on the basis of aforesaid purchase made on 13.03.1962 and consequentially prohibitory injunction restraining the principal defendants from dispossessing the plaintiff from the suit land. The Proforma Defendant (Niamuddin Mia) who was the joint purchaser of the suit land though served with notice, did not appear and contest the claim of the plaintiff. The Proforma Defendant (Niamuddin Mia) who was the joint purchaser of the suit land though served with notice, did not appear and contest the claim of the plaintiff. The Principal Defendants No. 1 to 4, however, by filing a joint written statement took a stand at paragraph 6 thereafter that the suit land was purchased in the name of the plaintiff and Proforma Defendant (Niamuddin Mia) but the money for 1 bigha of land out of the aforesaid 2 bighas was paid from the joint fund of the family consisting of the plaintiff and the Principal Defendants No. 1 to 4. Under such circumstances, plaintiff alone is not entitled to get declaration of title to the suit land. 3. Learned trial Court upon pleadings of the parties framed as many as six issues and the same are quoted below: i) Whether there is any cause of action for the suit? ii) Whether the suit is barred by law of limitation? iii) Whether the suit is bad as the plaintiff put wrong dag and patta No. in his plaint? iv) Whether the plaintiff has right, title, interest and possession over the suit land? v) Whether the plaintiff is entitled to get a decree as prayed for? vi) What other relief/reliefs the parties are entitled to? 4. Plaintiff examined as many as 3 witnesses including himself while defendants examined 5 witnesses including the defendants No. 1 & 2. The learned trial Court decided issues No. 1, 2 & 3 in favour of the plaintiff and against the defendants but coming to the issue No. 4 the learned trial Court found that the four boundaries of the schedule as shown in the plaint did not disclose the rest portion of the purchased land and the plaintiff also did not prove the title of his vendor. The learned trial Court held that vendor of the plaintiff did not have title over the Dag No. 11 and under such circumstances they could not have transferred any title to the plaintiff by Ext.-1 which is the registered sale deed dated 13.03.1962. The learned trial Court, therefore, refused to declare title of the plaintiff over the suit land on the basis of Ext.-1. This judgment by trial Court was passed on 11.06.2004 dismissing the suit of the plaintiff in entirety. 5. The learned trial Court, therefore, refused to declare title of the plaintiff over the suit land on the basis of Ext.-1. This judgment by trial Court was passed on 11.06.2004 dismissing the suit of the plaintiff in entirety. 5. Plaintiff challenged the original judgment before the learned Civil Judge (Senior Division), Barpeta in Title Appeal No. 27/2004. The learned First Appellate Court after hearing the parties and on perusal of the materials on record allowed the appeal by judgment and decree dated 30.06.2005 and thereby the judgment was set aside and suit of the plaintiff was decreed. In so doing, the learned First Appellate Court arrived at the finding that the plaintiff purchased the suit land in the year 1962 and got his name mutated immediately on the basis of such purchase. The learned trial Court also held that plaintiff has got right, title and interest and possession over the suit land. The finding of the learned trial Court that there was ambiguities in the boundaries of the suit land did not find favour of the first appellate Court, who was satisfied that the suit land is attracted by Ext.1 sale deed. It is also the finding of the learned first appellate Court that defendants have no right to claim any share in the suit land as the suit land is self acquired property of the plaintiff. This judgment of reversal has been brought under challenge by the four Principal Defendants in the present second appeal and this court while admitting the appeal on 19.12.2005 framed two following substantial questions of law: (i) Whether the impugned judgment and decree passed by the lower appellate Court is passed without deciding the identity of the suit land? and (ii) Whether the diversive(sic) the judgment of the learned trial has exceeded its jurisdiction under Section 96 of the CPC? 6. I have heard Mr. G.C. Phukan, learned counsel for the appellants. None appears for the plaintiff although the names of learned counsel are shown in the Cause List. 7. The case of the plaintiff is that he became owner of the suit land measuring 1 bigha on the basis of joint purchase of 2 bighas of land alongwith Proforma Defendant (Naimuddin Mia). G.C. Phukan, learned counsel for the appellants. None appears for the plaintiff although the names of learned counsel are shown in the Cause List. 7. The case of the plaintiff is that he became owner of the suit land measuring 1 bigha on the basis of joint purchase of 2 bighas of land alongwith Proforma Defendant (Naimuddin Mia). It is the case of the plaintiff that subsequent to purchase, he got his share separated from the share of Naimuddin Mia and the 1 bigha of land described in schedule to the plaint is his exclusively property to which Proforma Defendant Niamuddin Mia does not have any claim. 8. Niamuddin Mia was impleaded as Proforma Defendant and he did not appear even after service of notice. The Proforma Defendant, therefore, is presumed to have admitted the claim of the plaintiff that suit land is covered by Ext.-1 sale deed and that out of the 2 bighas purchased by Ext.-1, suit land measuring 1 bigha fell exclusive in the share of the plaintiff after amicable partition was made between the plaintiff and the Proforma Defendant. It is also important to note the response of the defendants No. 1 to 4 as against the claim made by the plaintiff with respect to the suit land. While plaintiff claimed exclusive title to the suit land on the basis of Ext.-1, the defendants did not dispute that carrier of the title is Ext.-1. Defendants also did not dispute that vendors of Ext.-1 had title to the land. The only issue raised by contesting defendants No. 1 to 4 was that although the sale deed was in the name of plaintiff alone to yet the defendants No. 1 to 4 had share in it in view of the fact that suit land was purchased by Ext.1 from the money derived from joint fund of the family consisting of the plaintiff and the defendants No. 1 to 4. The defendants, therefore, did not dispute that suit land was attracted by Ext.1. The defendants also did not dispute that Namiuddin Mia had any share in suit land covered by Ext.-1. So from the pleadings of parties the deducible facts on common pleading is that suit land is covered by Ext.-1, that the vendors of Ext.-1 had title to the 2 bighas of land of which suit land is one half i.e. suit land is identifiable. So from the pleadings of parties the deducible facts on common pleading is that suit land is covered by Ext.-1, that the vendors of Ext.-1 had title to the 2 bighas of land of which suit land is one half i.e. suit land is identifiable. The dispute between the parties, therefore, can only be zeroed to the point as to whether half of the consideration money in execution of Ext.1 was paid by plaintiff alone or it was derived from the corpus of joint family consisting of the plaintiff of the defendants No. 1 to 4. The learned trial Court appears to have missed this vital aspect of the dispute and allowed himself to be drawn in the riddle as to whether suit land is identifiable and as to whether suit land is attracted by Ext.-1. None of the parties to the suit having raised any question as to identity of the suit land and or causal connection between the suit land and Ext.-1, the learned Court perhaps was not supposed to have taken a third course by entering into the question of identification of the land and thereby dismissing the suit holding that the boundaries of Ext.-1 did not coincide with the suit land. Surprisingly, the learned trial Court solely based on the consideration as to whether suit land is covered by Ext.-1 or not when no doubt was expressed by any of the parties to the suit in this regard. Coming to the first appellate judgment, it appears that the learned first appellate Court considered boundaries of the Ext.-1 and the boundaries of suit land mentioned in the plaint. The finding of the first appellate Court was that suit land was covered by Ext.-1. In this respect one point is necessary to be mentioned here that Ext.-1 is a bigger plot of land covering 2 bighas out of 9. The second substantial question of law framed by this Court is too wide. It raises the question as to whether the first appellate Court had exceeded the jurisdiction under Section 96 of the Code of Civil Procedure. Perhaps by so saying it was suggested in this second substantial question of law that the first appellate judgment was or was not in conformity with the provision of Order XLI Rule 31 of the Code of Civil Procedure read with Section 107. Perhaps by so saying it was suggested in this second substantial question of law that the first appellate judgment was or was not in conformity with the provision of Order XLI Rule 31 of the Code of Civil Procedure read with Section 107. As pointed out above, the real dispute between the plaintiff and the contesting defendants No. 1 to 4 is as to whether half of the consideration money for making purchase vide Ext.-1 was contributed by plaintiff from his self-earned money or the same was derived from the common fund of the family consisting of the plaintiff and the defendants No. 1 to 4. While plaintiff claimed that he purchased the land vide Ext.-1, the defendants have come forward with the plea that the money was given from the common fund of the family. 10. Now if the contention of the defendants is assumed to be correct then the transaction comes within the definition of ‘Benami Transaction’ occurring under Section 2(a) of the Benami Transaction (Prohibition) Act, 1988 (herein after referred as ‘1988 Act’). Section 2(a) of the 1988 Act defines Benami Transaction as any transaction in which property is transferred to one person for a consideration paid or provided by another person. Under Section 3 of the Act of the 1988 Act of Benami Transaction have been prohibited and consequently by Section 4(2) thereof it has been provided that no defence based on any right in respect of any property held benami shall be allowed in any suit, claim or action by or on behalf of a person claiming to be a real owner of such property. By sub Section 3 of Section 4, however, some exceptions have been curved out. Sub clause (a) excludes Hindu Undivided Family from the purview of Section 4 of the 1988 Act and by Clause (b), any person who holds the property as a trustee or standing in fiduciary capacity has also been excluded from the mischief of Section 4 of the 1988 Act. When the stand taken by defendants in this case in paragraph 6 of their written statement is taken into consideration it comes within the sweep of Benami Transaction within the meaning of Section 2(a) of the 1988 Act. When the stand taken by defendants in this case in paragraph 6 of their written statement is taken into consideration it comes within the sweep of Benami Transaction within the meaning of Section 2(a) of the 1988 Act. This is because defendants claimed that although the property has been shown to have been purchased in the name of the plaintiff but the real owners were the plaintiff and the four defendants, namely, defendants No. 1 to 4. Once the grievance raised by the defendants comes within the arena of Benami Transaction automatically bar under Section 4(2) of the 1988 Act becomes applicable to them. To get out of this prohibition, the only recourse the defendants are entitled to take, is under Section 4(3)(b) of the 1988 Act by showing that plaintiff acted as a trustee or that plaintiff was standing in a fiduciary capacity in regard to the transaction. 11. I have gone through the deposition of all the five DWs. Only DW1 has made a mention that the money for purchasing the suit land was collected from joint fund of the family whereas DW2, 3, 4 and 5 did not make any mention in this regard. DW1 himself stated that the suit land does not belong to paternal property. He could not furnish any material particulars to make out that money came to plaintiff from the corpus of the joint family rather defendant No. 1 candidly stated in examination-in-chief that in 1962 when the land was purchased the defendants were minors and they lived under the care and custody of plaintiff who is their elder brother. By so saying DW1 had impliedly indicated that it was the plaintiff who reared the defendants No. 1 to 4. Under such circumstances, burden became heavier on the defendants to show that plaintiff did so from the money left behind by ancestor or by cultivation of the family property. Defendants having raised the question that money came from the joint family fund, it was the burden of the defendants to prove that money came from the joint fund. Having raised a point but not having led any evidence in support of it, the defendants miserably failed to establish that money used for purchasing suit land vide Ext.-1 came from joint family property or that plaintiff was standing in a fiduciary capacity vis-a-vis defendants No. 1 to 4 while entering into this transaction. Having raised a point but not having led any evidence in support of it, the defendants miserably failed to establish that money used for purchasing suit land vide Ext.-1 came from joint family property or that plaintiff was standing in a fiduciary capacity vis-a-vis defendants No. 1 to 4 while entering into this transaction. The defendants thus failed to take the benefit of exception under Section 4(3)(b) of the 1988 Act and consequently the defence raised by defendants vide paragraph 6 of the written statement has become unavailable to them in view of specific bar under Section 3 of the 1988 Act. That being the position learned first appellate Court had not committed any error in decreeing the suit of the plaintiff by reversing judgment passed by the learned trial court. The second substantial question of law, therefore, stands decided against the appellants and in favour of the respondent-plaintiff. 12. Both the substantial questions of law having been found against the appellants and in favour of the plaintiff-respondent this second appeal has no merit and accordingly it is dismissed. 13. The judgment passed by the first appellate Court is upheld. 14. No order as to costs.