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2015 DIGILAW 925 (GAU)

AZIR UDDIN v. BASIR UDDIN

2015-07-28

A.K.GOSWAMI

body2015
Judgment : 1. Heard Mr. N. Dhar, learned counsel, appearing for the appellant/defendant No. 2. Also heard Mr. H.R.A. Choudhury, learned Senior counsel, assisted by Ms. R. Choudhury, learned counsel, appearing for the respondents/plaintiffs. 2. This appeal is preferred against the judgment and decree dated 13.05.2004, passed by the learned Civil Judge, Senior Division, Karimganj, in Title Appeal No. 70/2000 allowing the appeal and setting aside the judgment and decree dated 28.06.2002 passed by the learned Civil Judge, Junior Division No. 1, Karimganj, in Title Suit No. 20/94, by which the suit of the plaintiffs was dismissed. 3. The plaintiffs filed the suit for right, title, interest and confirmation of possession over 2/6th share each of the plaintiff No. 1 and defendant No. 1, and 1/6th share each of plaintiff Nos. 2 and 3 and for confirmation of possession; for cancellation of the sale deed dated 07.08.93, executed in favour of defendant No. 2 by the defendant No. 1 and registered on 08.10.93; for declaration of the said sale deed as void; for permanent injunction restraining the defendants from alienating the suit land etc.; for granting mutation in the name of the plaintiffs along with defendant No. 1 in place of Abdul Mazid over the suit land in the settlement record, etc. The suit land measures 10 Chattak in Dag No. 307 and 308 covered by new Patta No. 83 (earlier Dag No. 190/191 of Khatian No. 155). 4. The case projected in the plaint is that the suit land was owned by Abdul Mazid, who died leaving behind the plaintiff No. 1, Basiruddin; defendant No. 1, Abdul Rahman; two daughters, namely Jayatunnessa Khatun and Samida Khatun. Jayatunnessa was arrayed as plaintiff No. 2 and plaintiff No. 3 is the son of Samida Khatun, who expired. It is alleged that the suit property was being enjoyed jointly and the defendant No. 1 illegally executed a sale deed on 08.10.93 in favour of defendant No. 2. The defendant Nos. 1 and 2 filed written statement denying the allegations that the suit land was being possessed jointly and stating, amongst others, that on partition, the defendant No. 1 received more or less 10 Chattak of land and he was in possession of the same and, while in possession, he sold the same to the defendant No. 2. 5. 1 and 2 filed written statement denying the allegations that the suit land was being possessed jointly and stating, amongst others, that on partition, the defendant No. 1 received more or less 10 Chattak of land and he was in possession of the same and, while in possession, he sold the same to the defendant No. 2. 5. The learned trial Court framed the following issues: “(i) Is there any cause of action for the suit? (ii) Whether the plaintiffs are entitled to get decree as prayed for? (iii) To what relief/reliefs the plaintiffs are entitled to get?” 6. The defendants examined two witnesses and exhibited a few documents. Defendant No. 2 examined himself. However, defendant No. 1, vendor of defendant No. 2, did not examine himself. 7. As noted earlier, while the learned Trial Court dismissed the suit of the plaintiff, the learned Lower Appellate Court reversed the same and decreed the suit. 8. The Second Appeal was admitted to be heard by an order dated 19.03.2008 on the following substantial question of law: “Whether the learned first appellate Court erred in law in rejecting the claim of the appellant on the ground of non-production of Defendant No. 1 as witness to prove the factum of participation as claimed by the appellant on the basis of the materials available on record?” 9. Learned counsel for the parties agree that the word “participation” in the substantial question of law is to be read as “partition”, as, apparently, the word “participation” has been wrongly typed in place of “partition”. 10. Mr. Dhar submits that in order to get a decree, the plaintiff must prove his case and cannot take advantage of the weakness, if any, of the case of the defendants. It is submitted by him that after selling the land to the defendant No. 2, defendant No. 1 has got no interest and the defendant No. 2 cannot compel defendant No. 1 to adduce evidence as he has got nothing left at stake and, in view of the above, non-examination of defendant No. 1 could not have been the only factor in decreeing the suit of the plaintiff by drawing adverse inference for such non-examination. It is submitted by him that though the plaintiffs had claimed that there was no partition, such claim of the plaintiffs is belied by Ext.-2, a document exhibited by the plaintiffs, wherein the name of defendant No. 1, in respect of the suit land, was appearing in the Katcha Patta. The aforesaid document, along with Ext.-3, which is another Katcha Patta in respect of another Patta, namely, Patta No. 53, wherein the names of both plaintiff and defendant No. 1 appear, go to show that there was partition amongst the heirs of Abdul Mazid. He has also pointed out that the plaintiff No. 1, who was examined as PW1, had also stated in his evidence that Abdul Mazid left behind 6/7 Kedars of land. On the basis of the documents exhibited by the plaintiffs, the case projected that the suit land was in joint possession of the plaintiffs as well as defendant No. 1 rings hollow, he submits. Learned counsel submits that the impugned judgment of the learned Lower Appellate Court did not advert to the evidence on record in proper perspective and the learned Lower Appellate Court also proceeded on a totally erroneous premise that DW1 had stated in his evidence that defendant No. 1 had got 3 Chattaks of land in the said partition. 11. Mr. H.R.A. Choudhury, learned Senior counsel for the respondents/plaintiffs, on the other hand, supports the impugned judgment. It is submitted that as the plaintiff had proved that the suit land was ejmali and that the defendant No. 1 did not examine himself to lead evidence on the alleged partition, no interference is called for in the Second Appeal. 12. I have considered the submission of the learned counsel for the parties and have perused the materials on record. 13. At the very outset, it is to be made clear that DW1 never stated that in view of the amicable partition, defendant No. 1 got 3 Chattaks of land which was mentioned in the 2nd Schedule of the written statement. The categorical statement of DW1 is that defendant No. 1 got 10 Chattaks of land in his share and, thus, 10 Chattaks of land was sold to DW1 by the defendant No.1. Apparently, there is perversity, on the part of the learned Lower Appellate Court, in appreciating the evidence of DW1. The categorical statement of DW1 is that defendant No. 1 got 10 Chattaks of land in his share and, thus, 10 Chattaks of land was sold to DW1 by the defendant No.1. Apparently, there is perversity, on the part of the learned Lower Appellate Court, in appreciating the evidence of DW1. There is no dispute that the plaintiffs and the defendant No. 1 had inherited the property of Abdul Mazid. The learned Lower Appellate Court proceeded on the basis that the defendants failed to prove partition and drew adverse presumption for non-examination of defendant No. 1 under Section 114(g) of the Indian Evidence Act. The learned Lower Appellate Court had merely referred to Ext.-2 and Ext.-3 as well as Exts.-A(1) to A(6). Exts.-2 and 3, as noted earlier, were tendered into evidence by the plaintiffs, whereas Exts.-A(1) to A(6) were tendered into evidence by DW1. 14. Learned Lower Appellate Court has not indicated as to what is the import of the aforesaid exhibits. A look at Ext.-2, which, undisputedly, refers to the suit land, goes to show that name of defendant No. 1 had only appeared in the Katcha Patta. It is not understood as to how the plaintiffs can claim, on the basis of the said Ext.-2, that they are in ejmali possession of the suit land. Ext.-1, revenue payment receipts, exhibited by the plaintiffs, do not take the case of the plaintiffs further as there is no indication of any Dag number and Patta number for which such revenue had been tendered. Ext.-3 is a Katcha Patta in respect of Patta No. 53, wherein, along with others, name of plaintiff No. 1 as well as defendant No. 1 also appear. Ext.-A(3) is another document pertaining to the suit land, wherein the name of defendant No. 1 only appears. Ext.-A(3) is a record published under the Sylhet Tenancy Act, 1936, way back on 31.08.67. In Ext.-A(3) also the name of the plaintiffs do not appear. The plaintiffs had relied on the aforesaid documents to succeed in their case, but, instead of helping the case of the plaintiffs, such documents negate the very premise on which the claim of the plaintiffs is founded. Ext.-2 and Ext.-A(3) will only go to show that the plaintiffs had no subsisting interest in respect of the suit land and the documents lend support to the case of the defendants regarding partition between the parties. Ext.-2 and Ext.-A(3) will only go to show that the plaintiffs had no subsisting interest in respect of the suit land and the documents lend support to the case of the defendants regarding partition between the parties. 15. When the plaintiffs had failed to prove their case, the learned Lower Appellate Court was manifestly wrong in decreeing the suit of the plaintiffs only on the basis that defendant No. 1, who had mentioned about the partition of the properties left behind by Abdul Mazid, was not examined. In the facts of the case, his non-examination has no impact on the outcome of the suit. 16. In view of the above discussions, this appeal deserves to be allowed. Accordingly, the same is allowed. The impugned judgment and decree of the learned Lower Appellate Court is set aside and the judgment and decree of the learned Trial Court is restored. No cost. 17. Registry will send back the records.