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2015 DIGILAW 384 (GAU)

Abu Bakkar Siddique v. Anowar Hussain and Ors.

2015-03-27

SUMAN SHYAM

body2015
Suman Shyam, J.(Oral) – Heard Mr. S. A. Ahmed, learned counsel appearing for the appellants. 2. This second appeal has been preferred against the concurrent judgment and decree dated 06.03.2012 passed by the Civil Judge, Barpeta in Title Appeal No. 47/2011 upholding the judgment and decree dated 06.08.2011 passed by the learned Munsiff No. 1, Barpeta in Title Suit No. 98/2008. 3. The case of the plaintiffs/appellants in brief is that they were in possession over the suit land measuring 4 Kathas described in the Schedule to the plaint, since the time of their father late Akshed Ali. Akshed Ali was the sole pattadar in respect of the patta which covers the suit land. It is the case of the plaintiffs that while they peacefully possessed the suit land, on 28.02.2008, the defendants had forcefully entered into the suit land and constructed a chali house thereupon. Subsequently, on the basis of the relevant enquiry made by the plaintiffs, they came to know that the defendants have illegally got their name mutated in the chitha in respect of the suit land. The plaintiffs had therefore, instituted Title Suit No. 98/2008 in the Court of Munsiff No. 1, Barpeta praying for a decree, declaring their right, title and interest over the suit land; for issuing precept to the revenue authorities and for other consequential reliefs. 4. The defendants contested the suit by filing their written statement, wherein they have taken a pleaded stand that the father of the plaintiffs, Akshed Ali (since deceased), had sold the suit land to the defendant No.1 vide registered deed of sale bearing No. 22/81 pursuant whereto, they had been put in possession of the land. It is the case of the defendants that after the suit land was sold by Akshed Ali to the defendant No. 1 by means of the aforesaid deed of sale, he was left with no further land under his title. The defendants however, pleaded that in the sale deed No. 22/81 there has been some mistake while mentioning the Dag number and Patta number. But the boundaries of the land mentioned in the sale deed clearly established that the suit land has been sold to the defendant No. 1 by Akshed Ali. The defendants had therefore, prayed for dismissal of the suit. But the boundaries of the land mentioned in the sale deed clearly established that the suit land has been sold to the defendant No. 1 by Akshed Ali. The defendants had therefore, prayed for dismissal of the suit. On the basis of the pleadings of the parties, the learned trial Court framed the following 4 (four) issues:- "(1) Whether there is a cause of action for the suit? (2) Whether the plaintiffs have right, title and interest over the suit land? If so whether the defendants are liable to be evicted therefrom? (3) Whether the plaintiff is entitled to the relief(s) prayed for in the suit? (4) To what relief(s) the parties are entitled to?" 5. The plaintiffs and defendants adduced oral as well as documentary evidence in support of their respective pleas. On the basis of the materials available on record and after threadbare discussion of the factual as well as legal issues involved in the case, the learned trial Court dismissed the plaintiff's suit by the judgment and decree dated 06.08.2011 passed in Title Suit No. 98/2008. 6. The aforesaid judgment and decree dated 06.08.2011 passed by the Munsiff No. 1, Barpeta was carried in an appeal by the plaintiffs as appellants before the Civil Judge, Barpeta in Title Appeal No. 47/2011. 7. After hearing the parties, the learned Civil Judge, Barpeta dismissed the Title Appeal No. 47/2011 by the judgment and decree dated 06.03.2012 by affirming the decree passed by the trial Court. 8. Being aggrieved by the judgment and decree dated 06.03.2012, the plaintiffs as appellant have preferred the second appeal. 9. Mr. S.A. Ahmed, learned counsel for the appellants submits that the judgment and decree passed by the Court below is vitiated on account of the fact that the defendants have not been able to prove the Ex.A sale deed by examining the attesting witnesses and in that view of the matter, the Courts below could not have relied upon the Ex-A sale deed so as to dismiss the suit of the plaintiffs. 10. I have considered the submissions made on behalf of the appellants and have also examined the materials on record. 10. I have considered the submissions made on behalf of the appellants and have also examined the materials on record. On perusal of the judgment and decree passed by both the Court below, it appears that the trial Court had meticulously examined the pleadings as well as the evidence on record to arrive at a finding that the father of the plaintiffs, Akshed Ali had in fact sold the suit land to the defendants by means of Ex-A registered deed of sale. The learned trial Court by taking note of the oral evidence of the witnesses and more particularly, DWs 2 and 6, who are the boundary men of the suit land, have recorded the finding that the defendants are in possession of the suit land since the time of their purchase of the same by means of the aforesaid registered deed of sale which according to the trial Court have been duly proved by the defendants. 11. By referring to the decision of the Hon'ble Apex Court rendered in the case of Sheodhyan Singh v. Musammat Sanichara Kuer and Ors reported in AIR 1963 SC 1879 , the learned trial Court has held that notwithstanding the misdescription of the suit land in Ex-A sale deed in so far as the dag number and patta numbers are concerned, the title in respect of the plot of land, which was actually conveyed by Ex-A sale deed executed in favour of the defendants, was one and the same as claimed by the defendants in the suit and the boundary of the suit land as described in the plaint also tallied with that mentioned in the Ex-A sale deed. The learned Court below had also taken note of the fact that the plaintiffs have not challenged the Ex-A sale deed but on the contrary has maintained complete silence as regards the validity of the sale deed. That apart from the evidence of the plaintiffs, it was discernible that the plaintiff's father Akshed Ali had left the village long time back. 12. PW-1, Hajrat Ali in his cross-examination had also admitted that Anwar Hussain was possessing land which is bounded as follows:- On the North:- Assan Sheikh, on the South:- Gani Mollah, on the East:- Gohalat and on the West:- Anar Berapani. 12. PW-1, Hajrat Ali in his cross-examination had also admitted that Anwar Hussain was possessing land which is bounded as follows:- On the North:- Assan Sheikh, on the South:- Gani Mollah, on the East:- Gohalat and on the West:- Anar Berapani. On the basis of such un-impeached evidence available on record, the learned trial Court came to a finding that the plaintiffs did not retain title over any land belonging to Akshed Ali after their father sold the suit land in favour of the defendants. On the basis of such findings, learned trial Court dismissed the suit filed by the plaintiff by deciding the issue No.2 against them. 13. The First Appellate Court had also examined the issues in details and thereafter, gave its verdict on an independent analysis on each of the material issues concurring with the decisions and reasons given by the trial Court. 14. The decisions rendered by both the Courts below appears to be based on material evidence available on record and there is nothing to show that such conclusion on finding of facts recorded concurrently is vitiated by any illegality or perversity. That apart, since the plaintiffs have sought for a declaratory decree, the burden was on the plaintiffs to plead the relevant facts and established their case by adducing evidence so as to show that they had right, title and interest over the suit land entitling them for recovery of possession which the plaintiff have failed to do in the instant case. 15. Although both the Courts below have concurrently found that the defendants have been able to prove Ex.A sale deed, notwithstanding the same even if it was a case where the attesting witnesses had not been examined by the defendants in proving the sale deed, even in that case, such an omission would be completely inconsequential in the facts and circumstances of the case, as it was not the defendants who were praying for any relief in the title suit. 16. Another significant factor which needs to be pointed out is that despite the pleaded stand taken by the plaintiffs that they have been illegally dispossessed from the suit land, a perusal of the plaint shows that there is no prayer for recovery of possession. 16. Another significant factor which needs to be pointed out is that despite the pleaded stand taken by the plaintiffs that they have been illegally dispossessed from the suit land, a perusal of the plaint shows that there is no prayer for recovery of possession. The aforesaid omission coupled with the inability on the part of the plaintiffs to lead any evidence to establish their claim over the suit land justifies the dismissal of the suit by both the Courts below. Such being the position, I am of the view that there is no substantial question of law that arises for decision in this appeal. As such the second appeal being devoid of any merit is hereby dismissed. Registry to send back the LCR. Appeal dismissed.