Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 924 (GAU)

Tara Begum v. Amzed Ali

2015-07-28

A.K.GOSWAMI

body2015
JUDGMENT : 1. Heard Mr. P.K. Kalita, learned counsel for the appellants. None appears for the respondents. 2. This appeal is preferred against the judgment and decree dated 16.06.2005 passed by the learned Civil Judge (Sr. Divn.), Barpeta, in Title Appeal No.29/2003 dismissing the appeal and affirming the judgment and decree dated 09.09.2003 passed by the learned Civil Judge (Jr. Divn.), Barpeta in Title Suit No.12/1992. 3. The appellant No.1 died during the pendency of this proceeding and he was substituted by his legal representatives. The appellant No.1 purchased 1 Bigha 1 Katha land from appellant Nos.2 and 3, who are husband and wife, respectively. The present respondent Nos.1 to 6 are successors-in-interest of Late Asman Ali, who was the original plaintiff. The plaintiff Asman Ali expired after he was examined as PW-2. 4. In the suit as was originally filed, one Bibijan Bewa was arrayed as defendant No.4 and the present appellants were the defendant Nos.1,2 and 3, respectively. One Chand Mahammad was arrayed as pro forma defendant No.5 and he is the son of defendant No.4. Defendant Nos.2 and 3 are son-in-law and daughter, respectively, of Bibijan Bewa. Original defendant No.4 having died, she was substituted. Pro forma defendant Chand Mahammad, on substitution, was numbered as defendant No.4 and other sons and daughters of Bibijan Bewa were arrayed as respondent Nos.5,6,7,8 and 9. It is also noticed that written statement was originally filed by the defendant Nos.1 to 4 before substitution of Bibijan Bewa. After the death of Bibijan Bewa, newly numbered defendant Nos.4 to 9 filed a written statement-cum-counter-claim. 5. The pleaded case of the plaintiff, in short, is that Dag No.652 was annual patta land measuring 2 Bigha 2 Katha 8 Lecha and 1 Bigha 1 Katha was taken out from the said Dag and put in Dag No.806 under Periodic Patta No.301. The plaintiff and the pro forma defendant No.5 (Chand Mahammad) were the joint pattadars and by amicable partition amongst themselves, the plaintiff was in possession of the western part of the Dag. The plaintiff and the pro forma defendant No.5 (Chand Mahammad) were the joint pattadars and by amicable partition amongst themselves, the plaintiff was in possession of the western part of the Dag. When the defendant No.1 demanded vacant possession from the plaintiff contending that he had purchased the entire land covered by Dag No.806 measuring 1 Bigha 1 Katha from defendant Nos.2 and 3, he made inquiries which revealed that defendant No.4 had executed in favour of defendant No.2 a sale-deed dated 02.07.1982 being deed No.5902 measuring 4 Katha 13 ½ Lecha covered by Dag No.350 which was, subsequently, corrected vide a rectification deed No.2699/86 dated 02.07.1986 replacing Dag No.350 with Dag No.806 and limiting the area to 3 Katha. It was also learnt by him that vide sale deed No.1851/91 dated 24.12.1991, defendant Nos.2 and 3 sold 1 Bigha 1 Katha of land in Dag No.806 of Periodic Patta No.301 to defendant No.1. In paragraph 1, the plaintiff had categorically stated that the plaintiff is entitled to 3 Katha of land which is called the suit land. Going by the averments in the plaint, this 3 Katha of land is clearly part of Dag No.806 of Periodic Patta No.301. In the written statement filed by original defendant Nos.1 to 4, it was stated that the area of land measuring 1 Bigha 1 Katha covered by Dag No.806 of Periodic Patta No.301 belonged to Madin Ali, husband of Bibijan, who after the death of Madin Ali in the year 1974, was in possession of the entire land and that she had acquired the land by right of inheritance and possession. It was pleaded that 3 Katha of land was sold to defendant No.3 vide registered sale-deed No.4531/85 dated 15.06.1985. It also referred to sale deeds made in favour of defendant No.2 as well as to the defendant No.1. It was also claimed that possession was accordingly delivered. 6. In the written statement-cum-counter-claim filed by the defendant Nos.4 to 9 (after substitution of Bibijan), it was pleaded that plaintiff and Madin Ali were brothers and they had equal share in the suit patta. The father of defendant Nos.3 to 9 had share in 3 Katha in the eastern part of the suit Dag No.806 and the plaintiff had share of 3 Katha in the western part. The father of defendant Nos.3 to 9 had share in 3 Katha in the eastern part of the suit Dag No.806 and the plaintiff had share of 3 Katha in the western part. Bibijan had no saleable right to sell the entire land under Dag No.806 covering an area of 1 Bigha 1 Katha and, accordingly, they had also prayed for declaration of the sale deeds as void and also for declaration of their right, title and interest in respect of 3 Katha of land in the eastern side of suit Dag No.806 and for khas possession thereof. 7. Title Suit No.12/1992 was initially dismissed on 05.12.1993. The counter-claim filed by defendant Nos.4 to 9 was also dismissed. In the appeal being T.A. No.10/1996, by a judgment dated 04.05.1998, while allowing the appeal, the learned Civil Judge, Barpeta remanded the case to the learned Trial Court for framing an additional issue to the effect as to whether defendant No.4 (Bibijan Bewa) had saleable interest in 1 Bigha 1 Katha of land. 8. On remand, the suit was decreed on 21.12.2000 and the counter-claim was again dismissed. An appeal was preferred being T.A. No.6/2001 and the appeal came to be allowed by a judgment and order dated 24.07.2002, whereby the case was remanded to the learned Trial Court with a direction to appoint an Amin Commissioner. 9. Amin Commissioner, who was appointed, submitted a report. There was no objection to the report of the Amin Commissioner and he was not examined. Thereafter, by a judgment and order dated 09.09.2003, the learned Trial Court decreed the suit as follows: “ORDER In view of the decision of foregoing issues it is ordered that the suit of the plaintiffs is decreed on contest. The counter-claim of the defendant Nos.4 to 9 is rejected. Let the right title interest and confirmation of possession be declared in favour of the plaintiffs over 3 kathas of land in the western part of the dag No.806 of patta No.301 of Musalman gaon of chenga Mouza. Let the sale deed No.5902/85, 2966/86 and 1851/91 be declared illegal and inoperative in the eyes of law. Let the mutation in favour of defendant Nos.2 and 3 over the suit land be declared illegal and inoperative in the eyes of law. Let the sale deed No.5902/85, 2966/86 and 1851/91 be declared illegal and inoperative in the eyes of law. Let the mutation in favour of defendant Nos.2 and 3 over the suit land be declared illegal and inoperative in the eyes of law. Let the permanent injunction be granted in favour of the plaintiffs restraining the defendants from entering into the 3 kathas of land in the western part of dag No.806 of patta No.301 of village Masalman gaon under Chenga Mouza. Plaintiffs and defendant Nos.4 to 9 are directed to pay advolaram court fee on the value of the sale deeds in question. Prepare the decree after payment of court fee. I pass no order as to cost.” 10. The appeal preferred by the present appellants being Title Appeal No.29/2003 was dismissed. 11. The appeal was admitted to be heard by an order dated 14.09.2005 on the following substantial questions of law: “1. Whether the judgment rendered is perverse on account of omission on the part of the learned Court below to consider relevant evidence on the question of title; 2. Whether there was proper pleading regarding title of the plaintiff over the suit land and whether in absence of proper pleading regarding title the plaintiff’s suit ought to be dismissed; 3. Whether the judgments and decree of the learned Courts below declaring the plaintiff’s title solely basing on the entries of Revenue Record are sustainable; and 4. Whether the sale deeds Ext.4,5 and 6 can be adjudged as void and inoperative in a suit which is not filed by the parties to the documents but by a stranger.” 12. Mr. P.K. Kalita, learned counsel for the appellants has submitted that he will be only urging substantial question of law Nos.1 and 4. It is submitted that a reading of the plaint and, more particularly, paragraph 1 of the plaint, makes it abundantly clear that the suit was filed for 3 Katha of land of Dag No.806 of Periodic Patta No.301, though in the schedule to the plaint, entire 1 Bigha 1 Katha of land covered by Dag No.806 under Periodic Patta No.301 was shown. The case set out by the plaintiff is that original defendant No.4, i.e., vendor of defendant Nos.2 and 3, who in their turn, sold 1 Bigha 1 Katha of land covered by Dag No.806 under Periodic Patta No.301 to the defendant No.1, did not have saleable interest as, according to the plaintiff, it was Chand Mahammad, son of Bibijan i.e. the vendor of defendant Nos.2 and 3, who had right, title and interest in respect of balance 3 Katha of land in Dag No.806 of Periodic Patta No.301. Emphasizing that Chand Mahammad never filed any suit praying for declaration for his right, title and interest in respect of the aforesaid 3 Katha of land and also evidence on record having disclosed that the plaintiff was in exclusive possession of his 3 Katha of land, the learned courts below ought not to have set aside the sale-deeds in question in their entirety and at the most, could have held that sale-deed executed in favour of defendant No.1 did not confer right, title and interest beyond 3 Katha. Therefore, his contention is that this court may rectify the error by holding the sale-deed in favour of defendant No.1 to be invalid only to the extent of 3 Katha in Dag No.806 of Periodic Patta No.301 in the western part of Dag No.806 in respect of which decree was granted by the learned courts below. He also submits that mutation granted in favour of defendants may be restricted to 3 Katha, without in any way interfering with the plaintiff’s right, title and interest. The learned counsel submits that the learned lower Appellate Court totally mis-directed in appreciating the evidence on record and the very premise of appreciation of evidence was faulty in that the learned lower Appellate Court proceeded on the basis that Bibijan is the wife of defendant No.2 and on the death of defendant No.2, she acquired 1/8th share of the property left behind by Samnur Ali. He has also drawn the attention of the Court to the evidence of Chand Mahammad, who examined himself as PW-3, and also the evidence of PW-2 to buttress his contention that suit land measured only 3 Katha in Dag No.806 of Periodic Patta No.301. Mr. He has also drawn the attention of the Court to the evidence of Chand Mahammad, who examined himself as PW-3, and also the evidence of PW-2 to buttress his contention that suit land measured only 3 Katha in Dag No.806 of Periodic Patta No.301. Mr. Kalita submitted that his claim is limited only to 3 Katha of land in the eastern side of Dag No.806 of periodic Patta No.301 and he will have no claim whatsoever in the annual patta land and 3 Katha of land in the western side of Dag No.806 of Periodic Patta No.301. 13. I have considered the submissions of Mr. Kalita and have perused the materials on record. 14. Evidence of PW-3 discloses that he had not filed any suit challenging the alienations made by his mother. Evidence of PW-2 (plaintiff) goes to show that Madin Ali had share in the suit property, the same being ancestral land. In his evidence he has also stated that after death of Madin, his wife Bibijan had share in the plot of land. PW-2 in his evidence had stated that Bibijan had sold the entire land in the Periodic Patta to her daughter and son-in-law. His evidence also goes to show that the defendant No.1 was trying to take possession of his share of land in Periodic Patta as well as in the Annual Patta. Significantly, it is noticed that the plaintiff had filed the suit for confirmation of possession. On the basis of evidence on record, the learned courts below had held that the plaintiff had been able to establish his right, title and interest in respect of 3 Katha of land in the western side of Dag No.806 of Periodic Patta No.301. Plaintiff’s claim was limited to 3 Katha, that too, in the western side of Dag No.806. Obviously, Bibijan could not have sold 3 Katha of land belonging to the plaintiff. The plaintiff’s claim being limited to 3 Katha of land and there being no challenge by Chand Mahammad or by any other heirs of Madin Ali questioning the sale made by Bibijan in respect of the balance portion measuring 3 Katha, I am of the considered opinion that the sale deed executed in favour of the defendant No.1 ought not to have been cancelled in its entirety. 15. 15. Consequently, the second appeal is partly allowed providing that sale deed (Ext-4) cannot convey 1 Bigha 1 Katha of land in favour of the defendant No.1 and the same will be valid only to the extent of 3 Katha of land in the eastern portion of the Dag No.806 of Periodic Patta No.301. Mutation effected in respect of the defendant Nos.1,2 and 3 would also be limited to only 3 Katha of land. The impugned judgments and decrees of the learned courts below are modified to that extent. Substantial questions of law are answered in terms of the above. No cost. 16. Registry will send back the records forthwith.