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2014 DIGILAW 843 (GAU)

Abdul Jalil Mazumdar v. Alauddin Barbhuiya

2014-09-03

N.CHAUDHURY

body2014
ORDER(ORAL) This second appeal at the instance of defendant No. 1 in title Suit No. 96/2007 in the Court of learned Munsiff No. 1, Hailakandi is directed against concurrent findings of the two courts below. The learned trial Court decreed the suit by judgment dated 14.03.2013 and Title Appeal No. 12/2013 filed there against was dismissed by the learned Civil Judge, Hailakandi on 13.03.2014. 2. The respondent No. 1 (Alauddin Barbhuyan) as sole plaintiff instituted Title suit No. 96/2007 in the Court of learned Munsiff No. 1 at Hailakandi stating that he purchased a plot of land measuring 1 katha 8 chattacks covered by Dags No. 432/433 of Patta No. 104 within specific boundaries from original owner Said Ahmed Mazumdar who was impleaded as Proforma Defendant No. 9 vide registered sale deed No. 1902 dated 09.04.2007. According to the plaintiff having become the owner in possession of the land more particularly described in Schedule-II to the plaint, he constructed a house thereon with wooden frame and tin roof and got the holding registered under Hailakandi Municipal Authority as holding No. 61(A) and also obtained electricity connection from the ASEB. Defendant No. 1 dispossessed the plaintiff on 22.03.2010 from 5 chattakas 10 gandas of land which is described in Schedule-III of the plaint. Schedule -III is part of Schedule-II land. According to the plaintiff defendant No. 1 who had dispossessed the plaintiff did not have any semblance of right, title and interest to the suit land and under such circumstances a decree declaring right, title and interest to the plaintiff over entire Schedule-II land and for recovery of possession with respect to Schedule-III land by evicting defendant No. 1 and his men, agents, etc. should be passed. 3. The defendant No. 1 appeared and submitted written statement denying the case of the plaintiff. In paragraph 11 of the written statement, defendant No. 1 claimed to have purchased land from Abdul Salam Mazumdar who had purchased 1 katha 4 chattacks of land on 04.02.2005 from the common vendor, namely, Said Ahmed Mazumdar (Proforma defendant No. 9). The defendant No. 1, however, did not plead in his written statement as to when did he purchase land from Said Ahmed Mazumdar. He also did not make any mention as to the date of his purchase from Abdul Salam apart from making a vague statement that he purchased land from A. Salam Mazumdar and others. The defendant No. 1, however, did not plead in his written statement as to when did he purchase land from Said Ahmed Mazumdar. He also did not make any mention as to the date of his purchase from Abdul Salam apart from making a vague statement that he purchased land from A. Salam Mazumdar and others. 4. The learned trial Court framed as many as 6 issues on the aforesaid pleadings of the parties and the same are quoted below: 1. Is there any Cause of Action for the Suit? 2. Whether the plaintiff has right, title and possession over Schedule-II Land? 3. Whether the Plaintiff has been dispossessed from the 3rd Schedule Land and entitled to restoration of possession? 4. Whether the plaintiff is entitled to get injunction as prayed for? 5. Whether the Sale Deed mentioned in 2 (Ka) is liable to be corrected? 6. What relief the Plaintiff is entitled? 5. Plaintiff side examined as many as 4 witnesses including sale deed No. 1902 dated 09.04.2007 to establish that he had purchased 1 katha 8 chattacks of land from Proforma Defendant No. 9. The defendant No. 1 also examined four witnesses and exhibited some documents including sale deed dated 28.05.2007 executed by same vendor, namely, Said Ahmed Mazumdar (Ext.-5) with respect to 1 katha 8 chattacks under the same dag and patta within specific boundaries. The defendant No. 1 does not appear to have placed on record the so called sale deed whereby he claimed to have purchased land form aforesaid Abdul Salam Mazumdar. The learned trial Court having considered the evidence led by the parties, both oral and documentary, decreed the suit vide judgment and decree dated 14.03.2013. Aggrieved, defendant No. 1 preferred Title Appeal No. 12/2013 in the Court of learned Civil Judge at Hailakandi. The learned first appellate Court having considered the materials on record arrived at the finding that plaintiff has succeeded to prove his acquisition of title over the suit land described in Schedule-II to the plaint and consequently dismissed the first appeal upholding decree of the learned trial Court. It is this judgment which has been brought under challenge before this Court. 6. I have heard Mr. M.H. Rajbarbhuiya, learned counsel for the appellant. Since plaintiff put-up appearance through caveat, Mr. K. Uddin is also heard on behalf of the plaintiff. 7. Mr. It is this judgment which has been brought under challenge before this Court. 6. I have heard Mr. M.H. Rajbarbhuiya, learned counsel for the appellant. Since plaintiff put-up appearance through caveat, Mr. K. Uddin is also heard on behalf of the plaintiff. 7. Mr. M.H. Rajbarbhuiya, learned counsel for the appellant submits at the threshold that according to both the parties original owner was one Mobarak Ali who sold 3 kathas of land including the suit land to Proforma defendant No. 9 (Said Ahmed Mazumdar). This Said Ahmed Mazumdar sold 1 Katha 4 chattacks land to one Abdul Salam Mazumdar and handed over possession. Thereafter on the same day he executed two sale deeds and thereby sold 1 Katha 8 chattacks to the plaintiff and 1 katha 4 chattacks to the defendant No. 1. In addition to that defendant No. 1 also purchased 10 chattacks from Abdul Salam Mazumdar and so plaintiff failed to prove his title to the suit land inasmuch as plaintiff could not prove that though executed on the same day the sale deed No. 1902 was executed prior to execution of the sale deed in favour of defendant No. 1. This according to Mr. M.H. Rajbarbhuiya gives rise to substantial question of law. 8. I have gone through the judgment passed by learned Courts below and the learned counsel for the parties have also cooperated by furnishing photocopy of sale deed No. 1902 dated 09.04.2007 on the basis of which plaintiff claimed decree as well as sale deed registered on 29.05.2007 in favour of the respondent no. 1 on being executed by Said Ahmed Mazumdar. Plaintiff’s sale deed No. 1902 dated 09.04.2007 is in respect of 1 Katha 8 chattacks of land within specific boundaries. The copy of sale deed executed by Said Ahmed Mazumdar in favour of Abdul Jalil Majumdar with respect to 1 katha 4 chattacks of land was executed on 28.05.2007. The deed was registered on 29.05.2007. This shows that both the sale deeds i.e. sale deed No. 1902 in favour of the plaintiff and the sale deed in favour of defendant No. 1 though executed on different dates but were registered on the same date. This triggered confusion to the learned counsel for the appellant but for which he submitted that both the deeds were executed on the dame date. This triggered confusion to the learned counsel for the appellant but for which he submitted that both the deeds were executed on the dame date. To clarify this confusion it is necessary to refer to Section 47 to the Indian Registration Act, 1908. Section 47 provides that if a deed is required to be registered by law and accordingly it is registered then it should be deemed to have taken effect w.e.f. the date from when it was executed. Section 47 of the Registration Act is quoted below: “Time from which registered document operates.-A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not form the time of its registration.” 9. Having gone through the provision on Section 47 it is clear that it is not the date of registration but the date of execution of a deed which is relevant for the purpose of deciding as to when it did really come into effect. Section 23 of the Registration Act, 1908 provides that subject to provision of Section 24, 25 and 26 no document other than a Will shall be accepted for registration unless presented within 4 months from the date of its execution. So whenever a sale deed is executed which is compulsorily registrible under Section 17 of the Act, it can be presented for registration on any date within period of 4 months from the date of execution. This is why a question naturally arises as to when a deed would come into effect if it is not registered on the date of its execution. This question has been replied but by laying down specific provision in Section 47 referred to above. There being no dispute of law that a registered document shall operate from the date of its execution in view of recital under Section 47 of the Registration Act, the sale deed of the plaintiff came into effect on 09.04.2007 whereas that of defendant No. 1 came into effect on its date of execution, namely, 28.05.2007 although both the deeds were registered on the same date. This being the position the plaintiff became owner to the extent of 1 katha 8 chattacks of land under the suit dag and patta and defendant could not acquire title of 1 katha 4 chattacks of land purportedly conveyed by Proforma Defendant No. 9 by sale deed dated 28.05.2007. Defendant No. 1 could have acquired only that much of the land which was lying unsold after sale of land to Abdul Salam and the plaintiff herein. Although the defendant No. 1 claims to have purchased some land from Abdul Salam but neither written statement makes any disclosure as to the date of purchase and the quantum of land so purchased nor do any of the judgment passed by learned Courts bear any testimony to that effect. Mr. M.H. Rajbarbhuiya in his usual fairness submits that there is probability that defendant No. 1 did not produce or exhibit the same document before the learned Courts below. This being the position the sole objection raised by the defendant No. 1 challenging the claim of title of the plaintiff is found to fail. The learned Courts below do not appear to have committed any error of law in declaring title to the plaintiff on the basis of registered sale deed No. 1902 dated 09.04.2007. As no substantial question of law appears to have emerged from the impugned judgments and decrees, this second appeal is liable to be dismissed as not admitted. 10. Second appeal is dismissed. 11. No order as to costs.