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2016 DIGILAW 31 (GAU)

Bilat Ali v. Sainur Ali

2016-01-19

N.CHAUDHURY

body2016
JUDGMENT AND ORDER N. Chaudhury, J. - The First Appellate judgment and decree dated 30.9.2005 passed by the learned District Judge, Darrang at Mangaldai in T.A. No. 1/2004 has been called in question by the plaintiff of T.S. No. 26/97 in the present second appeal. The learned Trial Court by his judgment and decree dated 15.12.2003 decreed the suit of the plaintiff and the learned First Appellate Court while reversing the Trial Court decree, dismissed the suit in entirety. 2. The brief but necessary facts involved in the present case are required to be stated at the threshold. The present appellant Bilat Ali as plaintiff instituted T.S. No. 26/97 in the Court of learned Civil Judge, Darrang at Mangaldoi stating that the suit land originally belonged to one Bali Sk. who died leaving behind three sons, namely, Thiru Sk., Mana Sk. and Huwa Sk. After the death of Bali Sk., his three sons made family settlement amongst themselves and thereupon Thiru Sk. got land measuring 1 Katha 1 Lecha, Mana Sk. got 19 Lechas and Huwa Sk. also got 19 Lechas of land. Thiru Sk. died leaving behind his only daughter Mariam Begum who on turn died leaving behind one daughter Marina and her husband Nasiruddin Ahmed. Nasiruddin died leaving behind his son Nazrul born through his second wife Bogi Sekhani. Mana Sk. died leaving behind Milik and Kalimuddin. While Kalimuddin is surviving, Milik died leaving behind his son Jainur Ali. The third brother Huwa Sk. died leaving behind his only daughter Abeda Begum. Abeda Begum later on sold 19 Lechas of land belonging to her father by executing a sale deed dated 9.7.95 (Exhibit-1) in favour of the plaintiff. Similarly, Milik sold 8 Lechas of land from his entitlement to the plaintiff on 16.8.72, Merina Begum sold 10 Lechas to the plaintiff on 1.2.80 vide Exhibit-3 and Nazrul sold 11 Lechas of land to the plaintiff on 12.4.98 vide Exhibit-4. Thus, the plaintiff purchased 2 Katha 8 Lechas out of the whole land of 2 Katha 19 Lechas owned by Bali Sk. 3. It is stated that out of 19 Lechas of land owned by Mana Sk, as above, Kalimuddin occupied 11 Lechas of land and the remaining 8 Lechas remained with Milik, father of the defendant No.1 and this 8 Lechas of land was sold by Milik on 16.8.72 vide Exhibit-2. 3. It is stated that out of 19 Lechas of land owned by Mana Sk, as above, Kalimuddin occupied 11 Lechas of land and the remaining 8 Lechas remained with Milik, father of the defendant No.1 and this 8 Lechas of land was sold by Milik on 16.8.72 vide Exhibit-2. The plaintiff alleged that the defendant No.1 re-possessed the sold out land after one week of the sale and, thereafter, both the defendant Nos. 1 and 2 constructed house on the southern portion of the suit land. On 18.11.95, while the plaintiff was in peaceful possession of the land described in Plot No. X, Y, Y(i), Z, Z(i) and Z(ii) comprising 2 Katha 8 Lechas, the defendant Nos. 1 and 2 trespassed into Plot No. Z and X measuring 13 Lechas and 11 Lechas respectively. The defendants, thereafter, forcibly constructed one house on the suit land. Under such circumstances, the plaintiff filed the suit for partition of 11 Lechas of homestead land of the defendant No.2 from the dag as per possession of his predecessor-in-interest. Ultimately, by the prayer made in the plaint, the plaintiff wanted ejectment of the defendants from the land described in Schedule-C of the plaint by demolishing and removing the house described in Schedule-D of the plaint. The plaintiff prayed for partition of 11 Lechas of land described in Plot No. X(i) from the rest of the dag and also for perpetual injunction. 4. The defendants after appearance filed written statement and contested the suit, both on maintainability as well as on merit. In Paragraph No. 32 of the written statement, the defendants stated their own facts. The defendants claimed that Bali Sk. had in fact four sons and not three as alleged in the plaint. Apart from Thiru, Huwa and Mena, another son Bhubura Sk. was also there and all the four sons acquired right, title and interest to the property left behind by Bali Sk. According to the defendants, Thiru and Huwa abandoned their property and shifted to village Maruachowki, where they had some paternal properties and started living there by constructing houses. There was an oral agreement among all the brothers that Thiru and Huwa would stay in village Maruachowki and the entire land covered by the suit dag will remain in possession of their youngest brother Mana Sk. On the basis of such oral family arrangement, Mana Sk. There was an oral agreement among all the brothers that Thiru and Huwa would stay in village Maruachowki and the entire land covered by the suit dag will remain in possession of their youngest brother Mana Sk. On the basis of such oral family arrangement, Mana Sk. continued possession over the entire suit dag by constructing dwelling houses and after his death the two defendants acquired right, title and interest. After the death of Thiru, his homestead land in village Maruachowki was sold by his daughter to one Mahabat Ali and similarly after the death of Huwa, his daughter sold his homestead land to one Idrish. Under such circumstances, Thiru and Huwa did not have any trace of title in the suit dag. The plaintiff forcibly occupied the northern side of the suit dag measuring about 10 Lechas and instituted the suit only as a deterrent measure so that the defendants cannot institute a suit for recovery of the land from the plaintiff. The defendants craved leave to file a separate suit for recovery of possession of the suit land . 5. In Paragraph 34 of the written statement, the defendants further stated that the suit of the plaintiff is bad for non-joinder of Prahlad, Mazahar, Hasmat, Rajit Ali Dukhu and Nasir Ali who were running different trades and business in the eastern and southern portion of the suit dag. With these averments, the defendants prayed that the suit of the plaintiff be dismissed with cost. 6. Upon consideration of the aforesaid pleadings of the parties, the learned Trial Court framed the following eight issues :- (i) Whether there is cause of action for the suit. (ii) Whether proper court fee has been paid in the suit. (iii) Whether the suit is bad for non-joinder of necessary parties. (iv) Whether the suit is barred by law of limitation. (v) Whether the defendant trespassed into the suit land and thereby dispossessed the plaintiff on 18.11.95 from the suit land. (vi) Whether the defendants are liable to be evicted from the suit land described in the plaint schedule by demolishing and removing their houses. (vii) Whether the plaintiff is entitled for decree as prayed for. (viii) To what reliefs, if any, the parties are entitled. 7. (vi) Whether the defendants are liable to be evicted from the suit land described in the plaint schedule by demolishing and removing their houses. (vii) Whether the plaintiff is entitled for decree as prayed for. (viii) To what reliefs, if any, the parties are entitled. 7. The learned Trial Court by its judgment and decree dated 27.8.2002 dismissed the suit in entirety against which the plaintiff preferred T.A. No. 7/2002 in the Court of the learned District Judge, Darrang at Mangaldoi. The learned Appellate Court allowed the appeal and remanded the matter to the Trial Court after framing an additional issue as follows: "Whether the plaintiff has right, title and interest over the suit land." 8. In course of trial, the plaintiff examined as many as seven witnesses including Abeda Begum (P.W.1), Md Hasim Ali (P.W.2), Md Ahmed Ali (P.W.3), Najrul (P.W.4) etc. The plaintiff was examined as P.W.6 in the case. The plaintiff adduced as many as twelve documents including certified copy of the sale deeds based on which the suit was instituted. The defendants examined three witnesses including D.W. 1, Md Jainur Ali. Upon perusal of the evidence led by these witnesses, the learned Trial Court decreed the suit holding that the plaintiff acquired right, title and interest on the basis of the purchase made by him and accordingly, the Additional Issue No. 1 was decided in favour of the plaintiff. Consequently, Issue Nos. 6, 7 and 8 were also decided in favour of the plaintiff and in the long run, the suit was decreed in entirety. 9. Aggrieved, the two defendants preferred T.A. No. 1/2004 in the Court of learned District Judge, Darrang who by the appellate judgment and decree dated 30.9.2005 allowed the appeal and dismissed the suit of the plaintiff in entirety. Against this appellate judgment and decree, the instant second appeal has been filed. This Court by order dated 19.12.2005 framed the following three substantial questions of law: "1. Whether the learned court below misconstrued the law governing inheritance under the Hanaf School of Mahammedan Law in calculating the share of the plaintiff's vendors namely, Abida, Marina and Nazrul. 2. Whether the learned court below erred in applying the provisions of Section 106 of Mulla's Mahammedan Law by leaving out of consideration the fact that the parties in the suit are sunnis and not shias. 3. 2. Whether the learned court below erred in applying the provisions of Section 106 of Mulla's Mahammedan Law by leaving out of consideration the fact that the parties in the suit are sunnis and not shias. 3. Whether the learned court below erred on the aspect of the acquisition of title by adverse possession on a proper consideration of the pleadings of the parties and the materials on record." 10. I have heard Mr. P.K. Kalita, learned counsel for the appellant and Mrs. R. Choudhury, learned counsel for the respondents. I have also perused the Lower Court Records. 11. Drawing attention of the Court to the findings recorded in the Trial Court judgment as well as the appellate judgment, Mr Kalita, learned counsel for the appellant would argue that the learned First Appellate Court on his own showing found that Nazrul could validly dispose of 2.7 Lechas of land in favour of the plaintiff. The learned First Appellate Court also found that Abeda Begum was entitled to 9½ Lechas of land which she could transfer by way of sale. Coming to the share of Mariam, the learned First Appellate Court found that vide Exhibit-4, 11 Lechas of land was sold by Nazrul to the plaintiff. Having discussed the Doctrine of Return in the impugned judgment, the learned First Appellate Court could not have dismissed the suit of the plaintiff in entirety, in as much as, the vendors of the plaintiff having at least some title to the land sold by them, the plaintiff has lawfully acquired the right, title and interest thereto and under such circumstances, the learned Trial Court was duty bound to make assessment as to the entitlement of all the parties as it is basically a partition suit. 12. Per contra, Mrs. R. Choudhury, learned counsel for the respondents would argue that it is the specific case of the respondents that Thiru Sk. and Huwa Sk. left the place and settled in village Maruachowki. There was an oral family settlement among all the brothers with regard to the property left behind by Bali Sk. and on that basis Mana Sk. became the sole owner of the property left behind by Bali Sk. in the suit dag. The defendants all along being in possession, there was no occasion on the part of the plaintiff acquiring any title by virtue of purchase from Abeda or Marina or Nazrul. and on that basis Mana Sk. became the sole owner of the property left behind by Bali Sk. in the suit dag. The defendants all along being in possession, there was no occasion on the part of the plaintiff acquiring any title by virtue of purchase from Abeda or Marina or Nazrul. According to Mrs Choudhury, the learned First Appellate Court has rightly dismissed the suit of the plaintiff by reversing the findings of the Trial Court. 13. I have heard the learned counsel for the parties and on perusal of the materials on record, it appears that although the defendants took a specific plea in their written statement that Thiru and Huwa left the place and shifted to village Maruachowki, no averment has been made anywhere that there was any oral gift in favour of Mana Sk. The defendants have failed to prove by preponderance of probability that there was any oral agreement among all the brothers in terms of which Mana Sk. became de facto owner of the land covered by suit dag after Thiru and Huwa shifted to a different village and subsequently acquired the property there from their paternal share. If the story of amicable settlement goes, in that event, Huwa and Thiru will continue to have some share in the suit dag. However, in the absence of any convincing material to hold that there was an oral agreement among the sons of Bali Sk., the learned First Appellate Court was not in a position to presume that there was really an oral agreement. On the other hand, if devolution of property of Bali Sk. was made according to the provisions of Mohamedan Law, in that event, Abeda, Nazrul and Marina definitely had inherited some amount of property under the suit dag and in that eventuality, there would be no reason to wipe out the claim of the plaintiff arising from the registered sale deeds executed by these persons. Abeda herself came to the witness box as P.W. 1 and admitted to have executed Exhibit-1, sale deed dated 9.7.75 and so there cannot be any doubt about execution of the sale deed by her. A third party cannot challenge a sale deed. Abeda being the vendor of Exhibit-1 and she having been examined, there is no doubt about the genuineness of Exhibit-1. A third party cannot challenge a sale deed. Abeda being the vendor of Exhibit-1 and she having been examined, there is no doubt about the genuineness of Exhibit-1. Nazrul was examined as P.W.4 and he proved Exhibit-4 to have been executed by him. Similarly, Exhibit-3 was executed by Marina who is none other than the step sister of Nazrul (P.W.4). Now question arises as to what was the share of Abeda in the property. Section 63 of Mulla's Mahomedan Law defines 'sharers' whereas Section 65 defines 'residuaries'. As per Section 63, after payment of funeral expenses, debts and legacies, the first step in the distribution of the estate of a deceased Mahomedan is to ascertain which of the surviving relations belong to the class of sharers and what is the quantum of their entitlement. After the entitlement of the sharers is calculated, the balance amount goes to the residuaries in terms of Section 65. Under Section 65 of Mahomedan Law a table of residuaries has been prepared which is applicable to all the Sunni Muslims. The learned courts below have noticed this table and fond that there are four types of residuaries, namely:- (I) Descendants (II) Ascendants (III) Descendants of father (IV) Descendants of a true grandfather. As per the table prepared under Section 63 of Mahomedan Law, a daughter would keep half of the property as sharer when there is no son and the balance property would go to the residuaries as defined under Section 65 read with the table appended thereto. If this law is applied, in that event, after the death of Huwa, his daughter Abeda must have acquired half of his property measuring 19 Lechas and the balance half went to the legal heirs of Thiru and Mana. But from the evidence available on record, it cannot be said that when Huwa died, Thiru or Mana were living. If Thiru and Mana were not surviving at the time of death of Huwa, in that event, Milik and Kalimuddin would be the sole residuaries of Huwa Sk. and so 50% of the property left behind by Huwa must have devolved upon them. But if Thiru was living at that time, in that event, half of that 50% would have gone to him being another residuary. However, that amount of evidence is not available on record. and so 50% of the property left behind by Huwa must have devolved upon them. But if Thiru was living at that time, in that event, half of that 50% would have gone to him being another residuary. However, that amount of evidence is not available on record. Neither the defendants nor the plaintiff has led any evidence to come to a finding in this respect. 14. Be that as it may, it is clear from the above that applying the provisions of Section 63 and 65 of Mulla's Mahomedan Law, Abeda acquired at least 50% of 19 Lechas owned by Huwa Sk. Abeda executed sale deed for 19 Lechas of land which is more than what she actually owned and so the sale deed would be valid only to the extent of her entitlement i.e. 9½ Lechas. The plaintiff would thus be entitled to 9½ lechas of the suit dag from Exhibit-1 sale deed. Mariam was the only daughter of Thiru who is claimed to have owned and possessed 1 Katha 1 Lecha of land. Applying the same principle of Section 63 and 65 of Mulla's Mahomedan Law, after the death of Thiru, his only daughter Mariam inherited 50% of this land measuring 10½ Lechas and the balance 10½ Lechas would go the residuaries. Here also question arises as to whether Huwa and Mana were living when Thiru had died. If Huwa and Mana were living, in that event, both Huwa and Mana would be the residuaries and the balance 50% of the property of Thiru would have gone in their favour. If Huwa was living and Mana was not living, in that event, Milik and Kalimuddin would have got ¼th share or the property left behind by Thiru as residuaries jointly. The necessary evidence for arriving at a just decision as to devolution of property is not available on record. The parties to the suit were duty bound to disclose as to the date of death of Thiru, Mana and Huwa to arrive at a finding as to who were the residuaries of Thiru and Huwa. The learned First Appellate Court has not gone into this aspect of the matter and dismissed the suit of the plaintiff without deciding as to whether the daughters of Huwa and Thiru and their respective legal heirs had right, title and interest over the properties. The learned First Appellate Court has not gone into this aspect of the matter and dismissed the suit of the plaintiff without deciding as to whether the daughters of Huwa and Thiru and their respective legal heirs had right, title and interest over the properties. The learned First Appellate Court has also failed to take into consideration that vide prayer (b) of the plaint, the plaintiff had in fact made a prayer for partition and, thus, the learned courts below were duty bound to decide the respective shares of all the parties as required under the provisions of Order 20, Rule 18 of the CPC. As pointed out above, the First Appellate Court also failed to take into consideration the provisions of Section 63 and 65 of Mulla's Mahomedan Law in ascertaining the entitlement of Abeda, Mariam and Marina in the present case. Moreover, the Doctrine of Return also does not appear to have been correctly applied in the present case. If Huwa and Thiru had residuaries at the time of their death, in that event, the Doctrine of Return as enunciated under Section 106 of Mulla's Mahomedan Law would not apply because question of return would arise only when there is no residuary. The learned First Appellate Court, therefore, committed error in deciding the shares of the parties keeping in mind the provisions of Mulla's Mahomedan Law. The first substantial question of law is accordingly decided in the affirmative and against the respondents. 15. Similarly, the second substantial question of law as to the Doctrine of Return also cannot arise in the present case as evidently there were residuaries of Huwa and Thiru. That being the position, in terms of Section 106 of Mulla's Mahomedan Law, the second substantial question of law has to be decided in the affirmative and in favour of the appellant and the same is accordingly decided. 16. Coming to the third substantial question of law, it is to be seen as to whether there is adequate pleadings as to adverse possession. As per the law relating to adverse possession, a defendant is duty bound to disclose the date as to when the possession became adverse. In Paragraph 3 of the additional written statement, it is stated that the plaintiff's suit is barred by limitation and by adverse possession. As per the law relating to adverse possession, a defendant is duty bound to disclose the date as to when the possession became adverse. In Paragraph 3 of the additional written statement, it is stated that the plaintiff's suit is barred by limitation and by adverse possession. It is stated further that the defendant No.1 has been possessing the suit land as of right since his father's time peacefully, continuously and adversely against any kind of interest of the plaintiff. It is to be noticed that in the written statement the defendants made a mention of amicable settlement amongst the brothers and on the basis of that Thiru and Huwa left the place and thus, possession of Mana over the suit dag and patta was a permissive one and could not have been described to be adverse by any stretch of imagination. To make out a case of adverse possession, defendant has to plead that it was hostile to the interest of the plaintiff apart from being open. On their own showing the defendants claimed that the other two brothers permitted Mana to enjoy the possession of the land covered by suit dag and patta. The defendants are not entitled to blow hot and cold and at the same time. Having claimed that the land was given to the possession of Mana by other two brothers, the descendants of Mana could not have claimed that the land was under adverse possession by them. In that view of the matter, the third substantial question of law is also decided in the affirmative and against the respondents. 17. In view of what has been stated above, it appears that the plaintiff had some title to the property on the basis of the purchase made from the legal heirs of the original owner. The learned First Appellate Court, therefore, committed error in dismissing the suit in entirety. 18. The appeal is accordingly allowed by setting aside the impugned judgment of the First Appellate Court. The matter is remanded back to the First Appellate Court to assess the entitlement of all the parties within the meaning of Order 20, Rule 18 of the CPC keeping in mind the provisions of Section 63, 65 and 106 of Mulla's Mahomedan Law. The appeal is accordingly allowed by setting aside the impugned judgment of the First Appellate Court. The matter is remanded back to the First Appellate Court to assess the entitlement of all the parties within the meaning of Order 20, Rule 18 of the CPC keeping in mind the provisions of Section 63, 65 and 106 of Mulla's Mahomedan Law. In course of such adjudication if it is found that it is necessary to ask the parties to lead further evidence, the learned First Appellate Court shall do so by taking recourse to the provisions of Order 41, Rule 27 (b) of the CPC. 19. The appeal stands allowed. No order as to cost. Send down the records after preparation of the decree.