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2015 DIGILAW 369 (GAU)

Rafique Ahmed v. Legal Heirs of Eunus Ali

2015-03-25

SUMAN SHYAM

body2015
JUDGMENT Suman Shyam, J. 1. This second appeal is directed against the judgment and decree dated 26.09.2011 passed by the learned District Judge, Morigaon in Title Appeal No. 8(M) of 1994 reversing the judgment and decree dated 29.03.1994 passed by the Munsiff No. 1, Morigaon in Title Suit No. 6/1988. The plaintiff Eunus Ali claims to have purchased a plot of land measuring 1B covered by dag No. 126 of periodic patta No. 114(old)/132(new) of village Kupatimari, mouza Bhuragaon in the district of Nagaon from proforma defendant No. 2 and 3 by means of registered deed of sale bearing No. 6113 dated 14.09.1977 (Exhibit-2). The plaintiff Eunus Ali had also purchased a plot of land measuring 1B-1K and another plot of land measuring 1K-10L from the proforma defendant No. 1 by registered deed of sale bearing No. 2570 dated 12.02.1977 and sale deed No. 1198 dated 01.02.1977 respectively. However, the plaintiff's case is that the dispute in the title suit is only in respect of the 1B of land purchased by the plaintiff on the basis of Exhibit-2 sale deed which is the suit land described in schedule-A to the plaint The plaintiffs case is that while he was in peaceful possession of the land purchased by him on the basis of the aforementioned sale deed, on 05.02.1988 the defendant No. 1 to 4 illegally and forcefully took over possession of the suit land measuring 1B and refused to vacate the same despite protest made by the plaintiff. The said defendants claimed to have purchased the suit land from the plaintiff on the basis of registered deed of sale bearing No. 439 dated 21.01.1985 allegedly executed by the plaintiff. The plaintiff Eunus Ali was, therefore, compelled to institute the suit inter-alia praying for a decree declaring his right, title and interest and also for recovery of khas possession of the suit land; cancellation of the sale deed No. 439 being a forged document and for other consequential reliefs. 2. The defendant Nos. 1 to 4 contested the suit of the plaintiff by filing written statement. 2. The defendant Nos. 1 to 4 contested the suit of the plaintiff by filing written statement. The stand taken by the defendants in their written statement, reduced to its essence, is that they had purchased 4B-2K-10L of land by means of Exhibit-'Ka', 'Kha', 'Ga' and 'Gha' registered deeds of sale executed by the proforma defendant No. 2, 3 and 4 and are in possession of the land in question on the basis of said purchase. The contesting defendants generally denied the case of the plaintiff and prayed for dismissal of the suit. 3. On the basis of the materials on record the learned Trial Court dismissed the suit filed by the plaintiff by virtually declaring the title of the contesting defendants over the suit land measuring 1B taking the same to be a part of the land purchased by the defendants by means of Exhibit-'Ga' as claimed by the defendant 4. Being aggrieved by the judgment and decree passed by the Trial Court the plaintiff as appellants preferred Title Appeal No. 8(M) of 1994 before the court of District Judge, Morigaon. By the judgment and decree dated 18.12.1998 passed in Title Appeal No. 8(M) of 1994 the learned District Judge, Morigaon reversed the judgment dated 27.03.1993 and decree dated 04.04.1994 passed by the learned Munsiff No. 1 in Title Suit No. 6/1998 thereby decreeing the suit of the plaintiff. 5. Being aggrieved by the said judgment and decree dated 18.12.1998 passed in Title Appeal No. 8(M) of 1994 the contesting defendants as appellants had earlier preferred second appeal bearing RSA No. 43/1999 before this Court. 6. The RSA No. 43/1999 was disposed of by this Court by judgment and order dated 07.09.2004 remanding the matter back to the First Appellate Court for a fresh decision on merit by laying down the parameters that was required to be followed by the learned Appellate Court. The operative part of the judgment and order dated 07.09.2004 is quoted herein below: "13. In my considered opinion therefore, without first identifying the suit land, qua, the sale deeds involved, it would not be safe to arrive at any decision by limiting the considerations only to the sale deeds on both sides, executed last in point of time. In absence of partition, the learned lower appellate court proceeded on the basis of individual shares computed on notional basis. In absence of partition, the learned lower appellate court proceeded on the basis of individual shares computed on notional basis. But having regard to the series of sales made by the pattadars to the respondent plaintiff and the appellants defendants, it would not be an infallible criteria to decide the question of right, title and interest in the suit land. The transactions involving the suit land on either side with the vendors and other particulars of the sales need to be indentified before embarking upon this exercise. This understandably would involve a fresh investigation into the facts which sitting in Second appeal, this court is not required to undertake. For the opinion expressed as hereinabove, the finding of the learned lower appellate court on the issue of right, title and interest and possession of the respondent plaintiff cannot be sustained. Consequently, the impugned judgment and decree is hereby set aside. The matter stands remitted to the learned lower appellate court for a fresh decision on merits. It would in course of the hearing after remand act in terms of the observations recorded hereinabove and decide the issue accordingly. It is, however, made clear that the learned lower appellate court would act on the, materials already on record. 14. The appeal is thus allowed. The learned lower appellate court is requested to dispose of the appeal as expeditiously as possible. Office would prepare a decree accordingly and send down the records immediately. No costs." 7. It appears from the record on being remanded the learned First Appellate Court appointed a Survey Commissioner to conduct an enquiry at the field level as regards the actual position of the land. The Survey Commissioner was appointed with the consent of both the parties to the proceeding. Eventually the appointed Commissioner Mohan Chandra Sarkar submitted his report on 19.01.2010 depicting the position of the land as well as his opinion on the matter. Taking note of the report submitted by the Commissioner the learned District Judge, Morigaon had passed the impugned judgment and decree dated 26.09.2011 allowing the Title Appeal No. 8(M) of 1994 by decreeing the suit of the respondent/plaintiff on the grounds and reasons mentioned therein. 8. Taking note of the report submitted by the Commissioner the learned District Judge, Morigaon had passed the impugned judgment and decree dated 26.09.2011 allowing the Title Appeal No. 8(M) of 1994 by decreeing the suit of the respondent/plaintiff on the grounds and reasons mentioned therein. 8. Being aggrieved by the judgment and decree dated 26.09.2011 the appellant/defendant have preferred this second appeal which was admitted by this court by order dated 07.05.2013 to be heard on the following substantial questions of law: "i) Whether the learned 1st Appellate Court was wrong in appointing Survey Commissioner in view of the Order dated 7.9.2004 passed by the Hon'ble Gauhati High Court in T.A. No. 8(M) of 1994? ii) Whether the impugned judgment of 1st appellate court is not tenable in law relying upon the Commission report? iii) Whether the impugned judgment and decree dated 1st appellate court is erroneous in holding the saleable right of each original pattadars as 1 Bigha 2 Kathas and 7 1/2 lechas computed on notional basis?" 9. I have heard Mr. D.C.C. Phukan, learned counsel for the appellant and also heard Mr. D. Mazumdar, learned Sr. counsel appearing for the respondents. Mr. Phukan while drawing the attention of this court to the operative part of the order dated 07.09.2004 passed by this Court in RSA No. 43/1999 has submitted that while remanding the matter back to the lower Appellate Court this Court had passed a categorical direction requiring the lower Appellate Court to act on the basis of materials already on record. As such it was clear that while deciding the appeal afresh on merit the learned court below had to remain confined to the materials 'already' on record but in the present case it is evident that by appointing a Commissioner to conduct a survey/inspection in respect of disputed land and thereafter, taking note of such report submitted by the Commissioner, the learned First Appellate Court clearly acted beyond the purview of the order dated 07.09.2004 passed by this Court. Mr. Phukan, therefore, submitted that the judgment and decree passed by the First Appellate Court, being in clear contravention of the direction passed by this Court, is bad in the eye of law and as such is not sustainable on this count alone. Mr. Mr. Phukan, therefore, submitted that the judgment and decree passed by the First Appellate Court, being in clear contravention of the direction passed by this Court, is bad in the eye of law and as such is not sustainable on this count alone. Mr. Phukan further submits that beside the above lacuna in the appellate decree, the First Appellate Court has also not been able to decide the real issues involved in the Title Appeal. As such in any view of the matter the judgment and decree under appeal are not sustainable in the eye of law. 10. Mr. D. Mazumdar, learned Sr. counsel has submitted in all fairness that judgment and decree passed by the First Appellate Court, in so far as the appointment of Commissioner and his report is concerned, is in clear contravention of the direction passed by this Court by the order dated 07.09.2004. He, however, submits that leaving aside the report of the Commissioner the judgment and decree passed by the First Appellate Court was passed on the basis of other materials already available on record. Mr. Mazumdar submits that, even on arithmetic calculation of the area of the land as per the materials available on record will go to show that the vendors of the contesting defendants have sold more land then what they were entitle to under the law. 11. I have considered the rival submissions made by and on behalf of the parties and have also perused the materials on record. From a scrutiny of the judgment and decree passed by the First Appellate Court it is evident on the face of the record that this Court while passing the judgment and order dated 07.09.2004 had categorically directed the court below to act on the basis of the materials already on record. Such being the position, there was no scope for the learned court below to suo motu appoint a Commissioner and received additional materials on record so as to decide the appeal. Notwithstanding the categorical direction passed by this Court, unfortunately, the learned District Judge, Morigaon, for reasons not known, acted in clear contravention of such direction issued by this Court. Such being the position, there was no scope for the learned court below to suo motu appoint a Commissioner and received additional materials on record so as to decide the appeal. Notwithstanding the categorical direction passed by this Court, unfortunately, the learned District Judge, Morigaon, for reasons not known, acted in clear contravention of such direction issued by this Court. Such being the position and considering the fact that the impugned judgment and decree were apparently based on report of the Survey Commissioner, it is held that the same is in violation of the order dated 07.09.2004 passed by this Court and hence is liable to be set aside on this count alone. 12. Examination of the pleadings of the parties goes to show that one Kasimon Nessa, wife of Amir Ali was original owner of an area of land measuring 5B-4K-10L covered by the suit patta. The proforma defendant No. 1 to 4 are all sons of Kasimon Nessa These proforma defendant No. 1 to 4 have sold different plots of land to the plaintiff as well as the defendant No. 1 to 4 from time to time by executing different sale deeds. It is not in dispute that after the death of Kasimon Nessa there was no partition of the land amongst her legal heirs. Such being the position any attempt to determine the disputed questions of fact involved in the Title Suit would have to necessarily be precede by a determination as to the question of individual entitlement of each of the proforma defendant No. 1 to 4 in respect of the plot of land inherited by them from their mother Kasimon Nessa. Unless the said exercise is carried out, it would not be possible to ascertain as to which of the proforma defendants was competent to convey title in respect of what quantum of land and at what point of time. In view of what has been held before, this second appeal is once again remanded back to the First Appellate Court for a fresh decision on all the issues bearing in mind the parameters laid down by this Court by the order dated 09.07.2004 as well as order passed in the present second appeal. It is made clear that the First Appellate Court will decide the issue on the basis of materials that are already in existence. It is made clear that the First Appellate Court will decide the issue on the basis of materials that are already in existence. However, if either party to the proceeding approaches the Appellate Court by making any application for adducing additional evidence in accordance with the principle of law laid down under Order XLI Rule 27 CPC, such application would be considered by the Court on its own merit without being influenced by any observations made hereinbefore. Having regard to the fact that the Title Suit is a very old having been instituted in the year 1988 an endeavour would be made by the court below to dispose of the appeal within a period of 6 months from the date of receipt of the records, if necessary by holding day to day hearing. The parties would appear before the court of learned District Judge, Morigaon on 06.04.2015. Having regard to the facts and circumstances of the case there would be no order as to cost. Registry to transmit this record along with copy of the judgment at the earliest.