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2015 DIGILAW 1019 (GAU)

Abul Hussain Laskar v. Abdul Khalique Laskar

2015-08-13

A.K.GOSWAMI

body2015
JUDGMENT : A.K. Goswami, J. Heard Mr. S.R. Barbhuiyan, learned counsel for the appellants/defendants. Also heard Mr. M.H. Rajbarbhuiyan, learned counsel appearing for the respondent/plaintiff. 2. This appeal is directed against the judgment and decree dated 29.11.2005, passed by the learned Civil Judge, Senior Division No. 1, Silchar, Cachar, in Title Appeal No. 19/05, dismissing the appeal and affirming the judgment and decree dated 14.02.2005, passed by the learned Civil Judge, Junior Division No. 1, Cachar, Silchar, in Title Suit No. 1/02, decreeing the suit of the plaintiff. 3. The plaintiff had filed the suit for declaration of right, title and interest in respect of land measuring 6 Katha 2 Chattak and 10 Gonda, covered by Dag No. 265 of 2nd R.S. Patta No. 102, Pargana Sonapur; for confirmation of possession and, if dispossessed, for a decree of recovery of khas possession in the suit land, etc. 4. The case projected by the plaintiff, in short, is that Khudejan Bibi, Nena Bibi and Wajid Ali were the owners of 13 Katha 5 Chattak of land in Dag No. 265 of 2nd R.S. Patta No. 102, and their names were also mutated. Khudejan Bibi and Nena Bibi were the owners in respect of half share of the aforesaid land and Wajid Ali was the owner of the other half, measuring 6 Katha 2 Chattak 10 Gonda. Wajid Ali died leaving behind one daughter, namely, Syeda Banu Bibi, and, thus, she became owner of half portion of land measuring 3 Katha 1 Chattak 5 Gonda and, correspondingly, Khudejan Bibi received the other half portion of land measuring 3 Katha 1 Chattak 5 Gonda and thereby she became owner of land measuring 6 Katha 2 Chattak 10 Gonda. 5. On 28.03.61, by a registered deed, the plaintiff had purchased a plot of land measuring 2 Katha in the suit Dag from Syeda Banu Bibi. Khudejan Bibi died leaving behind her only son, Ishrak Ali, who also died leaving behind one son, Rezak Ali and one daughter, Sunaban Bibi. They sold their share of land measuring 6 Katha 2 Chattak 10 Gonda, on 27.03.84, to the plaintiff by a registered sale deed and the plaintiff was possessing the suit land, which is adjacent to his residential house. They sold their share of land measuring 6 Katha 2 Chattak 10 Gonda, on 27.03.84, to the plaintiff by a registered sale deed and the plaintiff was possessing the suit land, which is adjacent to his residential house. The defendants claimed that the suit land belonged to them as their grand-father had purchased the same and, on 15.01.02, the defendants forcefully tried to possess the land and had prepared to construct a residential house thereon. 6. At the very outset, it must be put on record that the plaint of the plaintiff was in vernacular and the translated version appended to the Memorandum of Appeal is found to contain many mistakes including mistakes on material aspects of the case. 7. In the written statement filed by the defendants, it is admitted that Khudejan Bibi, Nena Bibi and Wajid Ali were the pattadars and that Khudejan Bibi and Nena Bibi were the owners to the extent of 6 Katha 2 Chattak and 10 Gonda of land and Wajid Ali was owner in respect of 6 Katha 2 Chattak 10 Gonda. It is also admitted that on the death of Wajid Ali, his daughter, Syeda Banu Bibi, became owner to the extent of 3 Katha 1 Chattak 5 Gonda and the balance share, measuring 3 Katha 1 Chattak 5 Gonda devolved on Khudejan Bibi and that Khudejan Bibi became owner to the extent of 6 Katha 2 Chattak 10 Gonda of land. It is also stated that Nena Bibi had died issueless. It is pleaded in the written statement that the grand-father of the defendants, namely, Motorjin Ali, had purchased land measuring 11 Katha 5 Chattak, covered by Dag No. 265 in 2nd R.S. Patta No. 102 from Syeda Banu Bibi vide a registered sale deed executed on 28.03.61 on payment of valuable consideration. Motorjin Ali purchased another 2 Katha of land from Ishrak Ali vide registered sale deed No. 1156/1961, executed on 28.03.61 and that the suit land fell within the purchased land of the predecessor of the defendants, whereupon the defendants had constructed residential houses. 8. During trial, two witnesses were examined on behalf of the plaintiff and they had exhibited four documents. The defendants also examined two witnesses and it exhibited three documents as Ext.-'A' to 'C'. The sale deed dated 27.03.84 was exhibited by the plaintiff as Ext.-1. 8. During trial, two witnesses were examined on behalf of the plaintiff and they had exhibited four documents. The defendants also examined two witnesses and it exhibited three documents as Ext.-'A' to 'C'. The sale deed dated 27.03.84 was exhibited by the plaintiff as Ext.-1. Defendants had exhibited the sale deed of Syeda Banu Bibi executed in favour of the predecessor-in-interest of the defendants as Ext.-'C'. 9. The learned trial Court, on consideration of the evidence of record, held that Khudejan Bibi became owner to the extent of 9 Katha 3 Chattak 15 Gonda of land and that as Ishrak Ali had sold 2 Katha of land to the predecessor of the defendants vide Ext.-'B', Rezak Ali and Sunaban Bibi had saleable interest to the extent of 7 Katha 3 Chattak 15 Gonda in the suit Dag. Learned Trial Court also relied on Ext.-2, a certified copy of the judgment dated 28.02.85, in Title Suit No. 247/83, to hold that Syeda Banu Bibi had sold 2 Katha of land to the plaintiff prior to the sale made by her to the predecessor of the defendants, and Syeda Banu Bibi, after such sale, had saleable interest only in respect of 1 Katha 1 Chattak 5 Gonda of land. The learned Trial Court also noticed that by Ext.-1 the plaintiff had purchased 8 Katha of land from 4 persons, including Rezak Ali and Sunaban Bibi. It was also noted by the learned Trial Court that the defendants had not specifically denied purchase of land by the plaintiff in the suit Patta. 10. Learned Lower Appellate Court also affirmed the findings of the learned Trial Court and, while doing so, the learned Lower Appellate Court also took note of Ext.-3, which is a judgment and decree dated 12.04.94, rendered in Title Appeal No. 43/1985 arising out of the judgment and decree in Title Suit No. 247/83. 11. The Second Appeal was admitted to be heard by an order dated 21.08.2006 on the following substantial question of law: "Whether the finding of the court below suffers from perversity as Ext.-1, the Sale Deed was accepted by the court though two of the vendors of the Sale Deed has no saleable right over the suit land." 12. It is submitted by Mr. It is submitted by Mr. Barbhuiyan that the sale deed, Ext.-1, had four vendors including Rezak Ali and Sunaban Bibi and, in the plaint, no particulars had been given with regard to the identity of the land and, therefore, no right, title and interest could have been declared in favour of the plaintiff, more so, in view of the fact that the plaintiff did not at all try to establish how the aforesaid two persons, namely, Musabbar Ali and Mukabbar Ali, who are not parties to the suit, had right, title and interest in the suit Dag and Patta. 13. In response, Mr. Rajbarbhuiyan has submitted that by the aforesaid Ext.-1, sale deed, the plaintiff had purchased 8 Katha of land and the suit was filed in respect of 6 Katha 2 Chattak 10 Gonda of land, which was purchased from Rezak Ali and Sunaban Bibi, with regard to which dispute had arisen as the defendants had sought to dispossess and, later on, dispossessed the plaintiff from the said 6 Katha 2 Chattak 10 Gonda of land. As there was no dispute with regard to the balance area of land out of the 8 Katha purchased, it was not necessary for the plaintiff to have prayed for any declaration in respect of the aforesaid balance area of the 8 Katha of land. 14. By drawing attention of the Court, Mr. Barbhuiyan has also submitted that DW1 had stated in his cross-examination that he did not deny purchase of land from Rezak Ali and Sunaban Bibi vide Ext.-1. 15. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 16. The defendants had admitted, as noticed above, that Khudejan Bibi was owner of land to the extent of 6 Katha 2 Chattak 10 Gonda out of which her own share was to the extent of 3 Katha 1 Chattak 5 Gonda and 3 Katha 1 Chattak 5 Gonda devolved on her on the demise of Syeda Banu Bibi. However, on their own admission, Nena Bibi also died issueless and, therefore, the share of Nena Bibi, measuring 3 Katha 1 Chattak 5 Gonda had also fallen in the share of Khudejan Bibi and, therefore, learned Trial Court rightly held that Khudejan Bibi had right, title and interest to the extent of 9 Katha 3 Chattak 15 Gonda. However, on their own admission, Nena Bibi also died issueless and, therefore, the share of Nena Bibi, measuring 3 Katha 1 Chattak 5 Gonda had also fallen in the share of Khudejan Bibi and, therefore, learned Trial Court rightly held that Khudejan Bibi had right, title and interest to the extent of 9 Katha 3 Chattak 15 Gonda. 2 Katha of land was sold by Ishrak Ali and, therefore, the plaintiff's two vendors, namely, Rezak Ali and Sunaban Bibi, out of the four, do have share to the extent of 7 Katha 3 Chattak 15 Gonda. The defendants, in their written statement, had admitted that Syeda Banu Bibi, daughter of Wajid Ali, inherited Wajid Ali's share to the extent of 3 Katha 1 Chattak 5 Gonda only and, if that be so, it is not understood as to how Syeda Banu Bibi could have sold 11 Katha 5 Chattak of land as stated in paragraph 15 of the written statement. The learned Courts below have held that after Syeda Banu Bibi had sold 2 Katha of land to the plaintiff, only 1 Katha 1 Chattak 5 Gonda of land had remained with her. Therefore, the vendors of the plaintiff, namely, Rezak Ali and Sunaban Bibi, could legitimately and rightfully transfer 6 Katha 2 Chattak 10 Gonda of land. It is also noticed that by Ext.-1, the plaintiff had purchased, in total, 8 Katha of land from the four vendors including Sunaban Bibi and Rezak Ali. The plaintiff had not sought for declaration of right, title and interest in respect of the entire 8 Katha of land and the suit was filed only for declaration of right, title and interest and consequential relief with regard to 6 Katha 2 Chattak 10 Gonda of land. As there was no dispute with regard to the balance area of 8 Katha, it was not necessary for the plaintiff to have given the details with regard to saleable interest of the aforesaid two vendors, namely, Musabbar Ali and Mukabbar Ali. When the learned Courts below have found that Rezak Ali and Sunaban Bibi had saleable interest to transfer property to the extent of 6 Katha 2 Chattak 10 Gonda, this Court is of the considered opinion that interference with the judgments and decrees of the learned Courts below is not called for. 17. When the learned Courts below have found that Rezak Ali and Sunaban Bibi had saleable interest to transfer property to the extent of 6 Katha 2 Chattak 10 Gonda, this Court is of the considered opinion that interference with the judgments and decrees of the learned Courts below is not called for. 17. Accordingly, while upholding the judgments and decrees of the learned Courts below, this appeal is dismissed. Substantial question of law is answered against the appellants. No cost. 18. Registry will send back the records.