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2015 DIGILAW 315 (GAU)

Alphina Bibi v. Abdur Raquib

2015-03-17

MANOJIT BHUYAN

body2015
JUDGMENT : Manojit Bhuyan, J. 1. Heard Mr. S.K. Ghosh, learned counsel for the appellants. Also heard Mr. R.L. Yadav, learned counsel, appearing for the respondents. Title Suit No. 140 of 1997 was brought about by the respondents/plaintiffs in respect of a parcel of land as described in the schedule to the plaint. Prayer was for declaration of ownership over the suit scheduled land by right of inheritance on amicable partition with the co-sharers coupled with Khas possession and perpetual injunction. The appellants/defendants contested the suit and filed written statement and categorically denied the averments made in the plaint. In the said written statement, the appellants/defendants has also provided a schedule to project the correct description of the suit land. 2. Among the Issues so framed by the Trial Court, the Issue Nos. 4 and 5 were held to be the primary Issues and the same pertains to whether the respondents/plaintiffs have right, title, interest and are entitled to get Khas Possession of the suit land. Upon appreciation of the original evidences as well as the documentary evidence, particularly, Ext. 1 and Ext. 2 produced by the plaintiffs, which are the Khatian and Kaccha Patta, the Trial Court held that the appellants/defendants failed to prove their source of title over the suit land. Accordingly, the suit was dismissed on contest. 3. In Title Appeal No. 76 of 2003 instituted by the respondents/plaintiffs, the First Appellate Court framed points for determination of the appeal and on the question as to whether the plaintiffs have right, title and interest over the suit land arrived at the finding that in the first place the schedule of the land described in the plaint as well as in the written statement are two different parcels of land and the same was evident from the survey report as well as Sketch Map (Ext. 5). The First Appellate Court took into consideration the Ext. 1 document i.e. Khatian to arrive at the finding that the name of the father of the plaintiff i.e. late Montaj Ali was recorded as a patta holder in the said Khatian. Further the Ext. 2 i.e. Kaccha Myadi Patta also referred the names of the plaintiffs and their brothers and sisters. The First Appellate Court on the basis of documents i.e. Ext. Further the Ext. 2 i.e. Kaccha Myadi Patta also referred the names of the plaintiffs and their brothers and sisters. The First Appellate Court on the basis of documents i.e. Ext. 1 and 2 arrived at the finding that since patta had been issued in accordance with the provisions of Regulation- 17 of the Assam Land and Revenue Regulation the same should be given due weightage to confer title of the plaintiffs over the suit land. Accordingly, the judgment and decree of the Trial Court was set aside and the suit was decreed with cost for a declaration that the respondents/plaintiffs are the owners of the suit land by inheritance and on amicable partition with the co-sharers. 4. The Second Appeal filed by the defendants to the suit was admitted for hearing on 17.11.2006 on the following substantial question of law: "Whether the Ext-1 which is the Khatian, Ext-2 Kaccha Patta conferred any title upon the plaintiff and whether the learned appellate Court was justified in passing the order on the basis of the evidence on record." 5. Mr. S.K. Ghosh, learned counsel for the appellants submits that the said substantial question of law cannot be answered in favour of the respondents/plaintiffs inasmuch as the said two documents being Ext. 1 and Ext. 2 being mutation entries the same cannot confer title upon the respondents/plaintiffs. While maintaining the said stand, Mr. Ghosh also relies upon the decision in Dayal Hari Paul & Ors. v. Pradip Kumar Lahkar & Ors., reported in 2006 (3) GLT 680. Mr. Ghosh also points out that in so far as the Ext. 1 Khatian is concerned, the same do not mention the name of the predecessor-in-interest. 6. On the other hand, Mr. R.L. Yadav, learned counsel for the respondents submits that the land described in the schedule to the plaint as well as in the written statement are two different parcels of land. Also, averments made in paragraph-5 of the plaint with regard to the suit path and illegal encroachment of the appellants/defendants thereon by construction of thatched house, there is no rebuttal to the same. According to Mr. Yadav, the learned Trial Court had erred in law by construing that the claim of title is by right of purchase whereas it should have been by right of inheritance. According to Mr. According to Mr. Yadav, the learned Trial Court had erred in law by construing that the claim of title is by right of purchase whereas it should have been by right of inheritance. According to Mr. Yadav in a claim for title by right of inheritance the Myadi Kaccha Patta i.e. Ext. 2 is sufficient evidence to prove the title unlike a claim made by right of purchase, which has to be proved by exhibiting sale deeds and tracing the source of title. Mr. Yadav also submits that, as would be apparent from the land described in the schedule to the written statement, the defendants' case is nowhere related to the suit property. 7. The answer to the substantial question of law can be had from the provision under Regulation 17 of the Assam Land and Revenue Regulation. The Ext. 2 Myadi Kaccha Patta was issued pursuant to settlement operation undertaken in exercise of the procedure under Regulation 17. The same Myadi Kaccha Patta having been so issued must be considered to be a document of title and cannot be brushed aside. The decision relied upon by Mr. S.K. Ghosh do not come to the aid of appellants/defendants in the facts and circumstances of the case. The First Appellate Court has sufficiently explained the value of Ext. 1 and Ext. 2 while deciding upon the plaintiffs' claim of title over the suit land. This is not a case of mis-appreciation of documents by the First Appellate Court. Accordingly, there is no ground for making fresh appraisal of the evidence on record and point of law and come to a finding contrary to the finding recorded by the First Appellate Court. In view of the above, the substantial question of law so formulated comes to the aid of the respondents/plaintiffs and not to the appellants/defendants. Resultantly, this appeal fails and the judgment and decree of the First Appellate Court is upheld. On the premises aforesaid, this appeal stands dismissed, however, without any order as to costs. Registry is directed to send back the records of the case to the appropriate Court forthwith.