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2016 DIGILAW 682 (GAU)

Md. Idrish Ali v. Hassen Ali

2016-07-26

N.CHAUDHURY

body2016
JUDGMENT AND ORDER : N. Chaudhury, J. 1. Plaintiff of Title Suit No. 47/1995 has preferred this Second Appeal challenging the judgment and decree of reversal dated 11.07.2006 passed by learned Civil Judge (Senior Division), Nagaon, in Title Appeal No. 15/2002. The learned Civil Judge (Junior Division) No. 2, Nagaon decreed Title Suit No. 47/1995 on 11.07.2002 in part. The plaintiff did not challenge the judgment passed by the learned trial Court but the defendants did. The appellate Court dismissed the suit of the plaintiff in entirety and this is how the plaintiff has approached this Court by invoking second appellate jurisdiction. 2. The present appellant as plaintiff instituted Title Suit No. 47/1995 in the Court of learned Munsiff No. 1, Nagaon, stating that land measuring 14B 1K 17L pertaining to PP No. 148 was originally owned by his predecessor Ismaijl Ali and one Kasem Ali. Upon amicable partition between the original pattadars, Ismail Ali became absolute owner in possession of 7B 18½ L. During 1930-31 settlement operation land covered by PP No. 111 and 117 was comprised in one periodic patta, namely, PP No. 148 comprising 14B 1K 17L. But subsequently in 1968-69 settlement operation, aforesaid PP No. 148 and Dag No. 289 was resurveyed into two pattas, namely, PP No. 111 and PP No. 117. PP No. 111 and dag No. 568 comprised of land measuring 8B 10L whereas PP No. 117 and Dag No. 561 comprised 6B 1K 7L. Out of the aforesaid land Ismail Ali made sale in favour of one Khurshed Ali and Hussain Ali and upon such sale having been made he was left with 2B 4K 5L in PP No. 111 and 2B 2K 8½ L in PP No. 117. Thus, Ismail Ali retained 5B 1K 13½ L in the aforesaid two pattas. Ismail Ali was predecessor in interest of the plaintiffs and the proforma defendants no. 18 to 21. He having died about 18 years prior to institution of the suit the aforesaid property left behind by him was inherited by the plaintiffs and proforma defendants no. 18 to 21 and they were peacefully enjoying the property by cultivation of different crops and constructing thatched houses thereon. 18 to 21. He having died about 18 years prior to institution of the suit the aforesaid property left behind by him was inherited by the plaintiffs and proforma defendants no. 18 to 21 and they were peacefully enjoying the property by cultivation of different crops and constructing thatched houses thereon. Taking opportunity of the absence of the plaintiffs the defendants in collusion with revenue staff first got the names of the plaintiffs struck out from both the dags on 16.07.1993 and thereafter dispossessed them from the suit land measuring 5B 1K 13½ Ls described in Schedule-A to the plaint on 13.08.1993. The defendant No. 5 also made a katcha house over the schedule land. Having come to know about the same the plaintiff came back from his place of employment and asked the defendants to vacate the suit land on 14.08.1993 to which the defendants refused, rather threatened with dire consequences. This is how the right, title and interest of the plaintiffs over the suit land got clouded and hence necessity for institution of the suit for declaration of right, title and interest and recovery of khas possession arose. Plaintiffs also made a prayer for permanent injunction along with a decree for precept directing the revenue authorities to correct the revenue records. 3. On being summoned the defendants no. 1, 2, 3 and 4 only appeared and submitted a written statement. The other principal defendants and the proforma defendants did not appear even after service of summons and so the suit proceeded ex-parte against them. The defendants no. 1 to 4 in their joint written statement denied the case of the plaintiffs in entirety and claimed to have purchased the suit land from various owners. According to the contesting defendants, Ismail Ali had transferred his entire title in the suit pattas and so he did not have any right, title or interest left in the aforesaid two pattas. In paragraph 16 of the written statement the defendants stated that the defendant no. 1 purchased 3B 4K 9Ls of land from suit pattas by registered sale deed from Abdul Matalib alias Mata Seikh. One Khurshed Ali purchased 1B 1K of land from Mata Seikh and defendant No. 1 vide deed dated 05.01.1971 purchased this 1B 1K land of PP No. 111 from said Khurshed Ali and obtained possession of the said land. 1 purchased 3B 4K 9Ls of land from suit pattas by registered sale deed from Abdul Matalib alias Mata Seikh. One Khurshed Ali purchased 1B 1K of land from Mata Seikh and defendant No. 1 vide deed dated 05.01.1971 purchased this 1B 1K land of PP No. 111 from said Khurshed Ali and obtained possession of the said land. This sale deed was subsequently corrected by deed No. 3325/93. Similarly, Hussain Ali purchased land from the suit patta by five more sale deeds executed by Abdul Matalib alias Mata Seikh vide deeds dated 10.01.1969, 04.02.1970, 26.10.1973, 22.02.1974 and 15.05.1974 and Abdul Matalib delivered possession of the land to him on the date of execution of the sale deeds and thus defendant No. 1 became owner of 3B 4K 9L of land covered by the two pattas. Defendant No. 2 similarly purchased another 3B 4K 9Ls of land from the suit pattas by registered sale deeds and came into possession from the date of execution of the sale deeds. Ismail Ali, the predecessor-in-interest of the plaintiffs and the proforma defendants, sold 1B 1K land from PP No. 111 to defendant No. 2 vide registered sale deed dated 07.03.1973. Defendant No. 2 having purchased 2B 2K 15Ls land of suit pattas from Khurshed Ali on 05.01.1971 came in possession of the land and Khurshed Ali on turn had purchased 1B 5L land from Ismail Ali and 1B 2K 10Ls land from Sabdul Khan. This 1B 2K 10Ls originally belonged to Ismail Ali who sold it to one Jamir Moral who on turn sold it to one Miraj Ali and thereafter Miraj Ali sold it to Mansur Ali. Mansur Ali sold it to Sabdul Khan and Sabdul Khan sold it to Khurshed Ali and ultimately Khurshed Ali sold to defendant No. 2. This is how defendant No. 2 became owner of 3B 3K 15Ls of land and was enjoying the same. The defendant No. 3 purchased 4B 5 Ls of land from suit patta. Ismail Ali also sold 3K 13Ls to one Abdul Majid and Abdur Rahim from PP No. 111 and dag No. 560 and this Abdul Majid and Abdur Rahim sold 3K 13L land on 01.03.1974 to defendant No. 3 and delivered possession. Mustt. The defendant No. 3 purchased 4B 5 Ls of land from suit patta. Ismail Ali also sold 3K 13Ls to one Abdul Majid and Abdur Rahim from PP No. 111 and dag No. 560 and this Abdul Majid and Abdur Rahim sold 3K 13L land on 01.03.1974 to defendant No. 3 and delivered possession. Mustt. Sarbanu purchased 12L of land from Abdur Rahim and then sold it to defendant No. 3 and thus name of defendant No. 3 was duly mutated in the records of rights. He was also in possession of 4K 5Ls of land since the date of purchase. Defendant No. 4 purchased land from Sahar Banu who had inherited it from Abdul Matlib alias Mata Seikh and defendant No. 15 Abdul Kuddus purchased 12½ Ls of land from PP No. 111 from Abdul Karim who had purchased it from Ismail Ali. Thus, the entire suit land was purchased by defendant Nos. 1, 2, 3, 4, 7 and 15. With these averments of facts the defendants urged that the suit of the plaintiffs be dismissed with cost. 4. Learned trial Court upon consideration of the aforesaid rival contentions of the parties framed the following five issues:- "(1) Whether there is cause of action for the suit? (2) Whether the plaintiffs have right, title and interest over the "A" schedule land of the plaint? (3) Whether the plaintiffs have been dispossessed by the defendants from the suit land of 'A' schedule land to the plaint? (4) Whether the plaintiffs are entitled to a decree as prayed for? (5) To what relief/reliefs the parties to the suit are entitled?" 5. The plaintiffs examined three witnesses and exhibited five documents. Ext-1 is a jamabondi of 1930-31, Ext-2 is the certified copy of jamabondi of 1968-69, Ext-3 is the jamabondi of 1968-69 and Ext-4 is draft chita. Ext-5 is the written statement in Title Suit No. 47/1995. The defendants, on the other hand, examined nine witnesses and exhibited as many as 18 documents. Ext-Ka to Ext-Ta are sale deeds whereas Exts-Tha to Ext-Da are certified copies of jamabondies of the suit patta. Learned trial Court after consideration of all these materials dismissed the suit of the plaintiffs in entirety. The defendants, on the other hand, examined nine witnesses and exhibited as many as 18 documents. Ext-Ka to Ext-Ta are sale deeds whereas Exts-Tha to Ext-Da are certified copies of jamabondies of the suit patta. Learned trial Court after consideration of all these materials dismissed the suit of the plaintiffs in entirety. Aggrieved at the trial Court judgment and decree dated 23.12.1999 the plaintiffs preferred appeal before the learned Civil Judge (Senior Division) at Nagaon, who after hearing the parties allowed the appeal and remanded the matter to the trial Court with a direction to frame further issues. The learned trial Court after receipt of the records on remand framed three more issues and the same are quoted below:- "(1) Whether the original pattadar Ismail, the predecessor-in-interest of the plaintiffs sold the entire plot of land of the suit pattas during his life time? (2) Whether Abdul Matlib @ Mata has acquired his right, title and interest over the land of the suit pattas to sell to the defendants and others? (3) Whether the defendant No. 1, 2, 3 and 4 have acquired their right, title, interest and possession over the entire plot of land of the suit pattas on the strength of the alleged registered sale deeds executed in their favour?" 6. After framing of the additional issues plaintiffs did not lead any further evidence but defendants examined one DW. Considering all the evidence led by the parties the learned trial Court arrived at the finding at paragraph 22 that defendants having claimed to have purchased land from the suit patta failed to prove the same. However, Exts-Ta, Tha, Na and Taa were duly proved. The plaintiffs in their evidence denied that Mata Seikh had any saleable right over the suit pattas and the other sale deeds executed by the plaintiffs were obtained by the said Mata Seikh. When title of the vendor of the defendants were not established which was their burden the aforesaid claim of the defendants vide Ext-Ka to Unga were not proved. However, although plaintiffs claimed to be owner of 5B 1K 13½ Ls of land, yet it was proved from Exts-Ta, Tha to Na and Taa that 3B 3K 15Ls of land was transferred by Ismail Ali, the original pattadar who was none other than predecessor-in- interest of the plaintiffs and the proforma defendants No. 18 to 21. However, although plaintiffs claimed to be owner of 5B 1K 13½ Ls of land, yet it was proved from Exts-Ta, Tha to Na and Taa that 3B 3K 15Ls of land was transferred by Ismail Ali, the original pattadar who was none other than predecessor-in- interest of the plaintiffs and the proforma defendants No. 18 to 21. Vide Ext-Ka land measuring 1B 2K 10L, vide Ext-Tha land measuring 1B 1K, vide Ext-Na land measuring 1K 5L and vide Ext-Taa land measuring 3B 3K 15L from the suit pattas were sold by Ismail Ali. The sold land thus amounted to 3B 3K 15Ls which if deducted from the total entitlement of Ismail Ali being 7B 18½ Ls the plaintiffs would be entitled to only 3B 3K 3½ Ls. This title was based on inheritance from Ismail Ali who was the original owner and the same was proved by adducing Exts-1 to 4 and thus the learned trial Court by his impugned judgment and decree dated 11.07.2002 partly decreed the suit in respect of 3B 3K 3½ Ls. Title of the plaintiffs declared over 3B 3K 3½ Ls. from Schedule-A and khas possession thereof was allowed to be recovered from the defendants. 7. Although by the said judgment the claim of the plaintiffs to the extent of 3B 3K 15Ls was denied by the learned trial Court and decree was passed only to the extent of 3B 3K 3½ Ls, yet, the plaintiffs accepted the position and did not prefer any appeal. The defendants, on the other hand, preferred Title Appeal No. 15/2002 in the Court of learned Civil Judge (Senior Division) at Nagaon. The plaintiffs being respondents therein did not prefer any cross appeal or any cross objection under Order 41, Rule 22 of the CPC and thus refusal of the learned trial Court to declare right, title and interest of the plaintiffs over 3B 3K 15Ls also attained finality. 8. The learned First Appellate Court after hearing the parties passed the impugned judgment and decree dated 11.07.2006 whereby the suit of the plaintiffs was dismissed in entirety by reversing the trial Court judgment and decree. 8. The learned First Appellate Court after hearing the parties passed the impugned judgment and decree dated 11.07.2006 whereby the suit of the plaintiffs was dismissed in entirety by reversing the trial Court judgment and decree. The learned First Appellate Court considered Ext- 4 jamabondi and since there was entry in the Ext-4 as to purchase by the defendants so on the basis of the mutation entries the learned First Appellate Court arrived at the opinion that although defendants did not prove the sale deed of Ismail Ali in connection with the sale described in Ext-4, yet, the mutation entries cannot be brushed aside. A long continuous existence of names of the defendants in the records of rights conferred good title to them. Name of Mata Seikh was in the records of rights for long period and Ismail Ali did not make any challenge before the revenue authority for dropping the name of Mata Seikh from the records of rights and thus because of existence of names in the records of rights, good title create to Mata Seikh and so he being owner of 4B 3K 19L rightly transferred the same in favour of the defendants. The learned First Appellate Court thus relied on mutation of entries in Ext-4 to decide the title of the defendants and thereupon dismissed the suit of the plaintiffs in entirety. This judgment and decree of reversal passed by the learned First Appellate Court has been called in question in the present Second Appeal. 9. This Court while admitting the Second Appeal on 13.12.2006 framed the following substantial question of law:- "Whether the learned first appellate court erred in law in reversing the judgment passed by the learned trial court on the basis of Ext-Ka?" 10. I have heard Mr. D. Mazumdar, learned senior counsel assisted by Ms. J. Kakoti, learned counsel for the appellant. None appears for the respondents. It appears from order dated 24.02.2010 passed by this Court that respondents No. 6 and 7 died during pendency of the Second Appeal and the appeal abated against their legal heirs for failure on the part of the appellant to bring the legal heirs on record. Having perused the lower Court records it appears that defendants No. 6 and 7 even after service of summons did not appear before the learned trial Court and did not file any written statement. Having perused the lower Court records it appears that defendants No. 6 and 7 even after service of summons did not appear before the learned trial Court and did not file any written statement. Under the provision of Order 22, Rule 4 (4) of the CPC if any defendant fails to file a written statement or who having filed a written statement subsequently failed to appear and contest the suit at the hearing, Court may whenever it thinks fit exempt plaintiff from necessity of substituting legal representatives of such defendants. Order 22, Rule 4 (4) of the Code of Civil Procedure is quoted below for ready reference:- "4.(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant shall have the same force and effect as if it has been pronounced before death took place." 11. In the case in hand, on 22.02.2010, this Court had passed an order observing that respondent Nos. 6 and 7 already expired and no steps for bringing their legal heirs on record was taken by the appellant and hence appeal stood dismissed on abatement against respondent Nos. 6 and 7. It appears that appellant did not bring it to the notice of this Court as on 24.02.2010 or subsequent thereto that these respondent Nos. 6 and 7 did never appear before the learned trial Court and did not file a written statement to contest the suit. The Court, therefore, could have exempted the appellant from substituting the legal heirs of such uncontesting defendants. Now, the question arises whether such a power can be exercised at any stage. The answer is not far to seek. The provision of Order 22, Rule 4 (4) of the CPC provides that Court can exempt plaintiff whenever it thinks fit. Even this provision does not require filing of an application. In the provision of Order 22, Rule 9 there is specific provision for filing application for setting aside abatement or dismissal. The answer is not far to seek. The provision of Order 22, Rule 4 (4) of the CPC provides that Court can exempt plaintiff whenever it thinks fit. Even this provision does not require filing of an application. In the provision of Order 22, Rule 9 there is specific provision for filing application for setting aside abatement or dismissal. A similar requirement of filing application as occurring in Order 22, Rule 9 (2) of the CPC does not exist in Order 22, Rule 4 (4). Legislature in its wisdom made a specific provision for filing application for setting aside abatement in Order 22, Rule 9 (2) CPC but a similar provision was not prescribed in Order 22, Rule 4 (4) CPC. Since legislature in its wisdom did not make any specific provision for filing application for granting exemption under Rule 4(4) of Order 22, the Court is entitled to grant exemption to plaintiffs at any stage even in the absence of an application. This aspect of the matter came up for consideration before this Court in the case of Nepal Chandra Saha vs. Rebati Mohan Saha and Others, reported in AIR 1979 Gauhati 1. Paragraphs 17, 18, 19 and 21 of the aforesaid judgment are quoted below for ready reference:- "17. I am in respectful agreement with the view taken by the Madras High Court in AIR 1935 Mad 236 an AIR 1969 Mad 309 , that the provisions of sub-rule (4) of R.4 of O. 22 are applicable to appeal as well as to suit and that the power to exempt under the said sub-rule can be exercised at any time before the judgment, even after abatement has taken place. 18. It was then contented by Mr. Choudhury that even if the Court has power to grant such exemption as contemplated in sub-rule (4) of R.4 of O. 22, in an appeal and after abatement, such power can be exercised only when an application in that behalf has been made by the plaintiff or the appellant, as the case may be, and not otherwise. As no application has been made in the present case in that behalf, Mr. Choudhury submits, there is no scope to grant any such exemption. 19. This contention is also without any force, in my opinion. As no application has been made in the present case in that behalf, Mr. Choudhury submits, there is no scope to grant any such exemption. 19. This contention is also without any force, in my opinion. In some of the provisions of the Civil P.C., it has been specifically provided that the Court will make an order thereunder only on an application made in that behalf. Reference may be made in this regard to the provisions of sub-rule (1) and sub-rule (3) of R.4 of the same order. In sub-rule (3) there is no such provision that the Court will make an order exempting the plaintiff from the necessity of substituting the legal representatives of the deceased defendant, on an application made in that behalf. The rule-making authority advisedly omitted to insert such a provision in sub-rule (4). It is not permissible for the Court to read something in a rule which is not there. I am fortified in taking this view by the decision of the Madras High Court in AIR 1969 Mad 309 (supra). IN that case there was no application from the appellant for such exemption. Nonetheless, on a memo filed by the appellant in the Court, the Court recorded an order noting that none need be impleaded as the legal representatives of the deceased defendant. In the appeal before the High Court it was contended on behalf of the appellant that the said order on the memo should be treated as an order under Order 22, Rule 4 (4). The Court accepted this contention observing as below:- "It is said that the absence of a formal petition supported by an affidavit has not stood in the way of the court passing orders. Thus, courts are not debarred from passing orders in such matters without formal petition." 21. In the instant case none of the deceased respondents filed any written statement in the trial court. None of them appeared at any stage of the suit and accordingly the suit was heard and decreed ex-parte against them. They did not file any appeal before the First Appellate Court against such decree. In the instant case none of the deceased respondents filed any written statement in the trial court. None of them appeared at any stage of the suit and accordingly the suit was heard and decreed ex-parte against them. They did not file any appeal before the First Appellate Court against such decree. IN these circumstances I consider it to be a fit case to exempt the appellant from the necessity of bringing on record the legal representatives of the said deceased respondents under the provisions of sub-rule (4) of R.4 of O. 22, Civil Procedure Code This order will statutorily take away the effect of R. 3, that is in regard to abatement." 12. Since the deceased respondents No. 6 and 7 being defendants No. 6 and 7 in the main suit did not appear during the course of trial or at first appellate stage to contest the suit and since they did not appear even before the second appellate stage, the appellant is exempted from the requirement of substituting their legal heirs under Order 22, Rule 4 (4) of the CPC and in that view of the matter order passed by this Court on 24.02.2010 is considered. 13. Despite service of notice in the appeal no one has appeared to contest the second appeal. Lawazima Court had accepted service on all the respondents on 28.07.2009 and so the second appeal is taken up for consideration ex-parte against contesting defendants No. 1 to 4. The other defendants did not appear before the learned trial Court. 14. Mr. D. Mazumdar, learned senior counsel, argued that Ismail Ali and Kasem Ali were the original two pattadars of PP No. 148. The patta contained only one dag being Dag No. 289 for an area of 14B 1K 17Ls. The two pattadars subsequently got the land amicably partitioned between them and Ismail Ali became exclusive and absolute owner to the extent of 7B 18½ Ls within specific boundaries. The fact that Ismail Ali was absolute owner in possession of a specified part of land is not denied by the defendants as the contesting defendants No. 1 to 4 had claimed title by way of purchase from Ismail Ali or from his transferees. The fact that Ismail Ali was absolute owner in possession of a specified part of land is not denied by the defendants as the contesting defendants No. 1 to 4 had claimed title by way of purchase from Ismail Ali or from his transferees. Now, Ismail Ali being one of the two original pattadars his name exist in the patta and this part of the fact has been brought on record by the plaintiffs vide Exts-1 to 4. Exts-1 to 4 are the certified copies of jamabondies containing the notices. In the case of Amiya Bala Dutta & Others vs. Mukut Adhikari & Others, reported in (1999) 1 GLR 229 a Single Bench of this Court had considered the legality of mutation entries under the Assam Land and Revenue Regulation, 1886. Considering the legislative history of the Assam Land and Revenue Regulation, 1886 in comparison with the similar provisions for preparation of records of rights of other States, the Single Bench of this Court was of the view patta holder is deemed to be the land holder and has a permanent, heritable and transferrable right of use and occupancy in his land under Section 9 of the Assam Land and Revenue Regulation, 1886. The records of rights under Assam Land and Revenue Regulation are to be presumed to be correct under Section 40 and 41 thereof unless the contrary is proved. So, the mutation entries may not be the basis of title yet the same cannot be totally brushed aside and it must receive due consideration at the hand of the Court. Having considered paragraph 9 of the aforesaid reported judgment of this Court, there is no doubt that Ismail Ali being the original pattadar had acquired right of use and occupancy under Section 9 of the Assam Land and Revenue Regulation, 1886. This right is heritable and transferable in nature and so the plaintiffs and the proforma defendants being the descendants of Ismail Ali had acquired right, title and interest of their predecessor by operation of Section 9 of the Assam Land and Revenue Regulation, 1886. This fact as to issuance of patta in favour of Ismail Ali and Kasem Ali has been brought on record by exhibiting the jamabondies. The defendants rather came forward to claim that they had purchased their title from the original pattadars. This fact as to issuance of patta in favour of Ismail Ali and Kasem Ali has been brought on record by exhibiting the jamabondies. The defendants rather came forward to claim that they had purchased their title from the original pattadars. In so doing, they made claim that they had purchased 3B 3K 15Ls of land from Ismail Ali or his vendees but they could not produce any sale deed in respect of alleged sale made by Mata Seikh with respect to 3B 2K 3½ Ls. The defendants could not trace the title of Mata Seikh from Ismail Ali. He might have purchased from Kasem Ali being another pattadar of the original patta but by purchase from Kasem Ali he cannot claim the title of Ismail Ali, Mr. Mazumdar argued. Accordingly, the learned trial Court did not commit any error in decreeing the suit of the plaintiffs with respect to 3B 2K 3½ Ls of land but the learned First Appellate Court went a step further and held that although defendants claimed to have purchased the suit land measuring 3B 2K 3½ Ls from Mata Seikh and could not prove the same conclusively, yet, because of long continuance of their names in the records of rights they acquired good title to the suit land. This finding of the learned First Appellate Court is not tenable in the eye of law, Mr. Mazumdar argued. He, therefore, prays that the sole substantial question of law be decided in the affirmative and in favour of the appellant thereby setting aside the first appellate judgment and restoring the judgment passed by the learned trial Court. 15. I have given my anxious consideration to the argument put forward by the learned senior counsel appearing for the appellant. I have also gone through the lower Court records including the exhibits. 16. Ext-1 is the certified copy of jamabondi pertaining to settlement operation of 1930-31. It contains the names of two original pattadars, namely, Ismail Ali and Kasem Ali. The plaintiffs exhibited five documents to show that original pattadar was Ismail Ali and Kasem Ali and the total land was 14B 1K 17Ls. Ext-2 is the certified copy of jamabondi of 1968-69. It also shows that Ismail Ali was original pattadar of PP No. 117. The PP No. 111 was also owned by Ismail Ali. The plaintiffs exhibited five documents to show that original pattadar was Ismail Ali and Kasem Ali and the total land was 14B 1K 17Ls. Ext-2 is the certified copy of jamabondi of 1968-69. It also shows that Ismail Ali was original pattadar of PP No. 117. The PP No. 111 was also owned by Ismail Ali. Total area covered by Patta No. 117 and dag No. 561 was 6B 1K 7Ls and that of Patta No. 111 and dag No. 560 was 8B 10L. On the other hand, Ext-Ka is a sale deed exhibited by one Khurshed Ali in favour of Hason Ali on 05.01.1971. By that deed land measuring 1B 4K 6Ls was transferred in favour of Hason Ali. Similarly, by Ext-Ka Hason Ali purchased land from Khurshed Ali on 06.07.1993. The purchased land was 1B 1K only. The remaining sale deed, namely, Ext-Kha was executed by one Abdul Matlib in favour of Khurshed Ali. The same person executed Ext-Ga in favour of Hason Ali. Ext-Ga also is yet another sale deed executed by Mata Seikh in favour of Hason Ali. Similarly, Ext-Gha, Unga, Cha, Chha were also executed by Mata Seikh. The learned trial Court was of the view that this Mata Seikh did not make any purchase from Ismail Ali in any point of time and title of Mata Seikh was not proved by the defendants by producing and exhibiting any sale deed. Acquisition of title by Mata Seikh was only borne by entries made in the jamabondi. This Mata Seikh was not the original pattadar and so Exts-1 to 4 jamabondies cannot establish acquisition of land holders right by the subsequent purchasers. While pattadars derive their right of user and occupation from the Government on the basis of patta, their acquisition of such right and title can be proved by production of the mutation records but when subsequent transfer takes place it is not the mutation entries but the respective documents of title which create title in favour of the purchaser. Under such circumstances, claimant of derivative title from the intermediate purchaser is duty bound to prove not only the source of title of the vendor from the original pattadar but also acquisition of title from the intermediate owner. 17. Under such circumstances, claimant of derivative title from the intermediate purchaser is duty bound to prove not only the source of title of the vendor from the original pattadar but also acquisition of title from the intermediate owner. 17. Here, in this case, defendants produced sale deed executed by Abdul Matlib alias Mata Seikh but could not produce any causal connection between Mata Seikh and the original pattadar Ismail Ali. The learned trial Court having considered the evidence on record arrived at the findings that there is no flow of title from Ismail Ali in favour of Mata Seikh or the defendants with respect to 3B 3K 3½ Ls while defendants successfully proved acquisition of title to the extent of 3B 3K 15Ls on the basis of four sale deeds, namely, Exts-Ta, Tha, Na and Ta. The defendants could not establish the title of the vendors by tracing their source of title with respect to other sale deeds. The learned First Appellate Court was of the view that since name of Abdul Matlib alias Mata Seikh remained in the records of rights for a long period continuously without there being any challenge from the original pattadar this amounted to conferment of good title in favour of such person which does not appear to be an acceptable logic. The existence of name of subsequent purchaser of the land of a patta is not on the basis of mutation entry but it is on the basis of purchase, gift or any other form of transfer of title. While records of rights can be exhibited as a document for acquisition of right under Section 9 of the Assam Land and Revenue Regulation, 1886 by the primary pattadar/original pattadar from the Government, subsequent acquisition of title by purchase from pattadar has to be proved by examination of the documents of title. A document of title has nowhere been defined. In the case of K.J. Nathan vs. Maruthi Rao and Others, AIR 1965 SC 430 , the question as to what is a title deed came up for consideration. It was held that the document or documents which shows prima facie or apparent title in depositor to the property or to some interest therein is/are the document of title or title deed. It was held that the document or documents which shows prima facie or apparent title in depositor to the property or to some interest therein is/are the document of title or title deed. As held by this Court in the case of Amiya Bala Dutta (supra) a patta is a document of title but mutation entries per se are not the documents of title because they do not show acquisition of title by any means. A mutation entry is made on the basis of prima facie title and possession on the satisfaction of the revenue officer. He has no occasion to adjudicate as to whether there is real conveyance of title. Mutation entry, therefore, may give rise to presumption of prima facie title and possession but the same being not the opinion of a judicial authority cannot be construed to be a document of title in any way. For example, if a person claims title by way of purchase, in that event the deed of purchase would be the document of title because it would prima facie show acquisition of title by the purchaser. Same will be the case of a gift. Under Section 123 of the Transfer of Property Act a gift or transfer of an immovable property for a price over 100 rupees can be made by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. So, when a gift deed is brought on record it would prima facie establish that a donor or someone on behalf of the donor had executed the registered instrument in presence of two attesting witnesses. This being the position, a gift deed may be a deed of title. A sale deed is also a deed of title as it proves sale under Section 54 of the Transfer of Property Act. But mutation entries recorded under Section 53 of the Assam Land and Revenue Regulation does not establish any conveyance of title. This being the position, it is the accepted position of law that mutation entries per se cannot create title in favour of anybody for whatever long period it may remain in force. If any reference is necessary one can take help from the judgment of the Hon'ble Supreme Court in the case of Guru Amarjit Singh vs. Rattan Chand & Others, AIR 1994 SC 227 . 18. If any reference is necessary one can take help from the judgment of the Hon'ble Supreme Court in the case of Guru Amarjit Singh vs. Rattan Chand & Others, AIR 1994 SC 227 . 18. The learned First Appellate Court committed error in holding that continuance of name of Mata Seikh in the records of rights without any objection has conferred good title. Such a finding of the learned First Appellate Court arrived in paragraph 23 of the impugned judgment does not appear to be acceptable. In paragraph 23, the learned First Appellate Court has observed as follows:- "A long continuous name of defendants in the revenue record confers good title to the claimant." 19. Title can be transferred by any of the means of transfer of property as prescribed under the Transfer of Property Act. It may also be acquired on the basis of probate of a Will by operation of law under Indian Succession Act, 1925. Section 54 of Transfer of Property Act provides that transfer of any goods of tangible immovable property of the value of 100 rupees and upwards can be made only by a registered instrument. Sale of a land having value of Rs. 100/- and upward, therefore, can be proved only by producing and proving such registered instrument and not otherwise. Here, in this case, defendants claimed to have purchased the suit land from Abdul Matlib alias Mata Seikh. This Mata Seikh is not the original pattadar, he could have acquired title to the patta either from the original pattadar or from any of the vendees of the pattadar. Ultimately, it was the duty of the defendants to establish the title of Abdul Matlib alias Mata Seikh so as to establish their acquisition of title. One is duty bound to show that the source of title from the original pattadar as it is the pattadar who acquired heritable and transferrable right from the Government under Section 9 of the Assam Land and Revenue Regulation, 1886 and others can only derive the title of pattadar the same being heritable and transferrable. The learned trial Court did not commit any error in holding that Abdul Matlib alias Mata Seikh could not have transferred title to the defendants in any way as he himself did not have title to the suit land. The learned trial Court did not commit any error in holding that Abdul Matlib alias Mata Seikh could not have transferred title to the defendants in any way as he himself did not have title to the suit land. The defendants could not show as to how title of Ismail Ali was conveyed to Abdul Matlib and this is why the learned trial Court refused to take into cognizance Exts. Ka to Nya etc. and relied on only four title deeds. The finding of the learned trial Court appears to be based on sound logic and law whereas the aforesaid findings of the learned First Appellate Court, which is the basis for his ultimate judgment and decree of reversal, does not appear to be correct as it is contrary to the law laid down by the Hon'ble Apex Court and the law of the land. 20. The sole substantial question of law, therefore, is decided in favour of the appellant and accordingly the Second Appeal stands allowed. The first appellate judgment and decree is hereby set aside and the judgment and decree passed by the learned trial Court is hereby restored. No order as to cost. Send down the records after framing of decree.