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2014 DIGILAW 846 (GAU)

Md. Hamid Ali v. Md. Rustom Ali

2014-09-04

N.CHAUDHURY

body2014
ORDER(ORAL) Plaintiff, Rustom Ali filed Title Suit No. 72 of 1978 in the Court of the Assistant District Judge, Nagaon against Hamid Ali, Tafiruddin, Sahed Ali, Kalimuddin, Kumud Ali, Hasmot Ali, Jamdhar ali, Abdur Rahman, another Hamid Ali and Samed Ali stating that suit land measuring 18 bighas 4 kathas 3 lechas described in Schedule-A to the plaint originally belonged to his father Abdul Rahim. Abdul Rahim died leaving behind the plaintiff as a sole legal heir and so the plaintiff inherited whole of the property and got his name mutated in the records of rights. Plaintiff stated that the aforesaid land was initially covered by an annual patta and subsequently it was converted into periodic patta and that he being the sole pattadar went on possessing and enjoying the same. But defendants having entered into collusion with the Revenue staff got their names mutated in the records of rights behind the back of the plaintiff although they have no semblance of right, title and interest and possession over the suit land. Situated thus, plaintiff prayed that his suit be decreed declaring right, title and interest over the suit land and confirming the possession thereon. 2. Having been summoned the defendants appeared and submitted their written statement. In the written statement submitted jointly be defendants No. 1, 3, 4, 8, 9 and 10, not only the claim of the plaintiff was denied but it was stated specifically that Abdul Rahim had exhausted his title by way of sale of the whole property by several sale deeds. The defendants thereafter purchased the same. It is also denied that plaintiff, Rustom Ali is not a son of Abdul Rahim. Mother of Rustom Ali was former wife of Abdul Rahim who had divorced her and several years after divorce of Rustom’s mother by Abdul Rahim, Rustom Ali was born. This being the position, the plea of Rustom Ali that he is legal heir of Abdul Rahim or that he inherited the property of Abdul Rahim are baseless. Defendants No. 2, 5 & 6 filed another written statement. They also took an identical plea and contested the suit on similar ground. 3. When the evidence of plaintiff was going on, the defendants did not appear and by order dated 17.06.1983, learned trial Court proceeded ex-parte against the defendants. The plaintiff examined three witnesses including himself. Defendants No. 2, 5 & 6 filed another written statement. They also took an identical plea and contested the suit on similar ground. 3. When the evidence of plaintiff was going on, the defendants did not appear and by order dated 17.06.1983, learned trial Court proceeded ex-parte against the defendants. The plaintiff examined three witnesses including himself. The learned trial Court upon perusal of the examination-in-chief of PW1, PW2 and PW3 dismissed the suit of the plaintiff on 02.12.1983. This dismissal was not preceded by passing of any formal judgment and/or discussion. Plaintiff challenged the judgment and order dated 02.12.1983 before appellate Court vide Title Appeal No. 3 of 1983. Learned Appellate Court after hearing both sides allowed the appeal on 02.08.1985 and thereby remanded the case to trial Court for deciding the suit afresh after permitting both sides one opportunity to lead their respective evidence. On remand to the trial Court the case was renumbered as Title Suit No. 60 of 1993. There was no order by the learned first appellate Court in judgment dated 02.08.1985 for providing any opportunity to the defendants to cross-examine the witnesses of plaintiff who had already been examined pursuant to order dated 17.06.1983. The plaintiff examined himself again after the remand and examined two more witnesses on his behalf as PWs No. 4 & 5. The defendants also examined two witnesses who were cross-examined by the plaintiff. 4. This time the learned trial Court by judgment and decree dated 13.09.2002 dismissed the suit of the plaintiff holding that plaintiff could not prove his title over the suit land. Plaintiff approached the first appellate Court by Title Appeal No. 23 of 2002 and the learned first appellate Court by judgment and decree dated 20.01.2003 had allowed the appeal and declared title of plaintiff over the suit land on the basis of Exts.-1, 2 & 3. The learned Court held that defendants having taken an objection as to paternity of the plaintiff but not having led any evidence their objection was not sustainable. It was also found that defendants failed to trace their title by showing as to how Abdul Rahim had transferred title to intermediate owners from whom defendants purchased the land vide ext.-Ka. The learned first appellate Court also noticed that some documents were filed by defendants but they were not proved in accordance with law. It was also found that defendants failed to trace their title by showing as to how Abdul Rahim had transferred title to intermediate owners from whom defendants purchased the land vide ext.-Ka. The learned first appellate Court also noticed that some documents were filed by defendants but they were not proved in accordance with law. This appellate judgment on reversal decreeing the suit of the plaintiff has been called in question in the second appeal. 5. This Court while admitting the same on 30.05.2003 framed two substantial questions of law as follows: I) Whether the learned lower appellate court misconstrued the plaintiff’s document namely Ext.1, 2 and 3 and whether the title of the plaintiff was declared on the basis of these three documents? II) Whether the learned lower appellate court misconstrued the evidence adduced by defendants/respondents while reversing the decree passed by the learned trial Court? 6. I have heard Mr. T.J. Mahanta, learned senior counsel assisted by Mr. A. Bhattacharya, learned counsel for the appellant and Mr. J. Ahmed, learned counsel for respondents/plaintiffs. I have also perused the lower Court records including the exhibits and the deposition of the witnesses. 7. Plaintiff filed the suit claiming right, title and interest to the suit land on the basis of inheritance. His specific case is that Abdul Rahim was annual pattadar of the land and that after conversion of land into periodic patta, Abdul Rahim was settled with it. It is also claimed that plaintiff Rustom Ali being the only legal heir of Abdul Rahim inherited the property of Abdul Rahim and this is how his name found place in the records of rights. The objection of the plaintiff is that names of defendant have also been entered in the records of rights behind his back. According to the plaintiff, defendants do not have any semblance of right to the suit land and so their inclusion in the Jamabandi itself is illegal and consequently decree is required to be passed declaring title of the plaintiff, confirming his possession over the suit land. Plaintiff having claimed decree for declaration of his right, title and interest, burden is on him to establish that he has title to the suit land. Plaintiff having claimed decree for declaration of his right, title and interest, burden is on him to establish that he has title to the suit land. This can be done either by production of document of title or by showing that the land was converted from annual patta land into periodic patta in the name of his father and his name was mutated as the legal heir of Abdul Rahim. He neither produced periodic patta nor did he prove entries in Jamabandi to prove his intentions. It is specific case of the plaintiff that land was initially an annual patta land and that subsequently it was converted into periodic patta land. Then burden fell heavily on the plaintiff to prove such conversion more particularly when it is the case of the plaintiff that upon such conversion plaintiff acquired right, title and interest over the suit land. Ext. 1, 2 & 3 also does not show name of plaintiff in the records of rights. It is the pre-condition that Revenue Authority is to mutate records of land holders in Jamabandi only after being satisfied that claimant has prima facie title and that he is in possession of the land in question. Such satisfaction must find place in the order allowing registration under Section 53 of the Assam Land & Revenue Regulation. The evidence available on record does not speak eloquently in favour of the claim made by the plaintiff. On the other hand objection raised by the defendants that original patta holder Abdul Rahim sold land in favour of different persons and that the defendants purchased land from them is also not established by production of the appropriate sale deeds. This being the position, both the substantial questions of law are required to be answered accordingly holding that Exts- 1, 2 & 3 do not make out prima facie title to the plaintiff over the suit land and Ext.- Ka also does not establish that defendants had acquired title to the suit on being transferred by Abdul Rahim through intermediate purchasers. 8. At this stage, both the learned counsel, Mr. T.J. Mahanta, Senior Advocate as well as Mr. J. Ahmed, Advocate submits that ends of justice requires that both the parties be permitted to lead evidence by remanding the suit to the trial Court. 8. At this stage, both the learned counsel, Mr. T.J. Mahanta, Senior Advocate as well as Mr. J. Ahmed, Advocate submits that ends of justice requires that both the parties be permitted to lead evidence by remanding the suit to the trial Court. I find when remand was ordered by learned appellate Court on 02.08.1985 no specific instruction was given permitting cross-examination of the PWs 1, 2 and 3 by the defendants. The order of remand is necessarily interlocutory order and it can be subsequently challenged in an appeal before the appellate Court. In the case of Mangal Prasad Tamoli v. Narvedshwar Mishra reported in AIR 2005 SC 1964 the Hon’ble Supreme Court held that order of remand being an interim order it can be subsequently challenged in appeal under Section 107 of the Code of Civil Procedure. This being the position and keeping in view that parties are required to be given adequate opportunities to place their respective cases in the adversarial form of litigation, it is directed that the parties not only be permitted to place their respective oral and documentary evidence but also to cross-examine the witnesses who were not earlier cross-examined. 9. The judgment and order passed by the learned trial Court are hereby set aside and the case is sent back to trial Court with observation as made above. 10. Parties shall appear before the learned trial Courts on 15.10.2014 to receive necessary orders. 11. Each of the party shall be given one opportunity each for placing their further evidence, if so advised. 12. Second appeal is allowed.