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2017 DIGILAW 1498 (GAU)

Anowar Hussain v. Jamal Uddin

2017-12-01

PRASANTA KUMAR DEKA

body2017
JUDGMENT : 1. Heard Mr. S.P. Choudhury, learned counsel appearing on behalf of the appellant. Also heard Mr. M.H. Rajbarbhuiyan, the learned counsel appearing for respondents. 2. The appellants before this court are the plaintiffs in Title Suit No. 86 of 2004 in the court of the learned Civil Judge (Jr. Div.) No. 1, Karimganj and the respondents are the defendants in the said Title Suit No. 86/2004. 3. The facts leading to filing the said Title Suit No. 86/2004 are that the landed property described in Schedule of the plaint is covered by Mohal Elam Patta No. 465/02 and Dag No. 115, under Mouza Pahar, Kitte Kuki Tilla, Porgonah Chapghat in the District of Karimganj. Idris Ali, Ambar Ali and Yakub Ali are the patta holders enjoying the land described in the Schedule of the plaint and same was possessed exclusively till the date. On the death of Idris Ali, Ambar Ali and Yakub Ali their legal heirs Moinuddin, Jalal Uddin and Nasir Uddin inherited the same and enjoyed the possession of the said land. Later on, Moin Uddin, Jalal Uddin and Nasir Uddin transferred the said land by way of registered sale deed No. 57 dated 22.1.2002 to the plaintiff-appellants whereafter, they acquired their right, title and interest and possession over the land described in the Schedule of the plaint. The plaintiff-appellants have reared fishes on the northern side of the low lying land within the boundary and planted annual Hali chara on the southern side. The defendant-respondents out of enmity tried to dispossess the plaintiff-appellants from the said land and as such they filed the suit for declaration that they have got the land holder right over the land described in the Schedule of the plaint so purchased by the registered deed No. 57 dated 22.1.2002 and for confirmation of possession along with the declaration that the defendant-respondents have got no right title and interest and possession over the said land and for permanent injunction restraining the defendant-respondents from entering into the suit land. 4. The suit land as revealed from the Schedule of the plaint is described hereinbelow: “Schedule under PS. 4. The suit land as revealed from the Schedule of the plaint is described hereinbelow: “Schedule under PS. Badarpur, Mouza Pahar, Kitte Kuki Tilla, Porgonah Chapghat, Mohal Elam periodic patta No. 465/02 dag No. 115, chara and low lying land measuring 1 kedar, butted and bounded— On the East — PWD Road, On the West — Panchayat Rasta and on further West — Tilla land, On the North — Homestead of Burhanuddin, On the South — Panchayat Rasta and on further South — Jama Masjid of village Bagligool.” 5. The defendant-respondents filed written statement and denied the contention made in the plaint by the plaintiff-appellants. It is contended in the written statement that the plaintiff-appellants had wrongfully claimed the land purchased by the defendant-respondents by giving false and concocted boundaries. That the predecessors of vendors of defendant Nos. 1 to 5 on amicable partition with his co-sharers got the Schedule land described in the Schedule of their written statement with other contiguous land situated on the eastern side of the Schedule land which is intervened by the PWD road. The Schedule land described in their written statement and its contiguous eastern boundary intervened by the PWD road is the homestead pond chara land of the predecessor of the vendors of the defendant-respondents. On the death of Abdul Bari, the predecessor of the vendors of defendant-respondent Nos. 1 to 5 inherited the said land and started to live there. One Abdul Jabbar, the brother of said Abdul Bari filed a Title Suit No. 153/2001 claiming the schedule land of their writ ten statement against Abdul Quyum and Mehmoda Begum, the vendor Nos. 1 and 3 of the defendant-respondent Nos. 1 to 5 in the Court of Civil Judge, (Jr. Div.) No.2, Karimganj. The said suit was dismissed vide judgment dated 30.1.2004. Later on, the said vendors (the legal heirs of Abdul Bari) sold the said land described in the Schedule of their written statement in favour of the respondent-defendants by way of registered sale deed No. 859 dated 30.3.2004. The defendant-respondent Nos. 1 to 5 became the owners of the said land so purchased from the legal heirs of Abdul Bari and started possessing the same by rearing fishes within the land described in the schedule of their written statement. The names of the vendors of the defendant-respondent Nos. 1 to 5 are corrected in the settlement records. The defendant-respondent Nos. 1 to 5 became the owners of the said land so purchased from the legal heirs of Abdul Bari and started possessing the same by rearing fishes within the land described in the schedule of their written statement. The names of the vendors of the defendant-respondent Nos. 1 to 5 are corrected in the settlement records. The defendant-respondent Nos. 1 to 5 are still in use, occupation and possession over the Schedule land of the written statement. The plaintiff-appellants or their alleged vendors had no right, title and interest and possession over the land of the defendant-respondents. Hence, they prayed for dismissal of the suit. 6. The defendant-respondents in their written statement described the land purchased from the legal heirs of Abdul Bari which is reproduced hereinbelow: “Schedule Porgonah Chapghat, Mouza Pahar, Kitte Kuki Tilla, Mohal Elam periodic patta No. 465/02 dag No. 115, bounded by East-PWD road, further East-homestead of Abdul Quyum and others, West-Panchayat Path, North-Purchased land of Burhannu ddin, South-Panchayat Path and further South-Mosque. Within this boundary pond and chara land measuring and area of 1 Kedar, 6 Justi, 9 Pon.” 7. On the basis of the pleadings of the parties of the suit, the trial court framed the following issues: 1. Is there any cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the suit land has been properly described and identified in the schedule of the plaint? 4. Whether the plaintiffs have right, title, interest and possession over the suit land? 5. To what relief/reliefs, the plaintiffs are entitled? 8. The plaintiff-appellants examined as many as 5 witnesses in support of their pleadings and they exhibited Ext. 1, certified copy of deed No. 57 dated 22.1.2002, Ext. 2 Jamabondi, Ext. 3(1) to Ext. 3(3) challan and Ext. 4 original Regd. Sale Deed No. 57 dated 22.1.2002. On the other hand, the defendant-respondents exhibited as many as 12 documents starting from Ext. A to Ext. 1. Out of the said Ext., Ext. I is the certified copy of registered sale deed No. 170 dated 25.1.1991 whereby one Burahannuddin had purchased land from one Abdur Rahman land measuring 0.12 acre and the boundary of the said land has been mentioned as follows: East-PWD road, West-Homestead of Burhannuddin, North-land of the vendor and South-Abdul Jabbar. 9. The trial court after hearing the parties dismissed the suit of the plaintiff-appellants vide judgment dated 30.7.2005. 9. The trial court after hearing the parties dismissed the suit of the plaintiff-appellants vide judgment dated 30.7.2005. The trial court while dismissing the suit held that there was no cause of action for the suit as it came to the finding that the registered sale deed Ext. 1 was executed only by the legal heirs of Ambar Ali and Yakub Ali but not by all the legal heirs of the said pat tadar. With regard to issue No. 3, the trial court came to the finding that PW1, one of the plaintiff-appellants during the cross-examination admitted that to the west of homestead of Abdul Bari is the PWD road and further West is the pond chara of Abdul Bari, to the North of the said chara pond, there is the homestead of Burahanuddin who purchased the same about 15 years back. It is also taken into consideration that the PW1 had admitted the boundaries of the land mentioned in the Schedule of the written statement and the trial court after considering the said piece of evidence held that the suit land is in fact the land of the defendant-respondents and as such held the issue against the plaintiff-appellant. With regard to issue No. 4, the trial court came to the conclusion that right, title and interest over the suit land of the plaintiff-appellants as well as the defendant-respondents found to be in the same footing but the defendant-respondents are found in better position in respect of the possession over the suit land and for the said reason, the issue was decided against the plaintiff-appellants. 10. Being aggrieved the plaintiff-appellants preferred the Title Appeal No. 42/2005 before the learned Court of Civil Judge (Senior Division) at Karimganj challenging the judgment and the decree passed in Title Suit No. 86/2004. In the said First Appeal the present respondents preferred cross-objection which was not registered as required under the provisions of order XLI, rule 22(2) of the Code of Civil Procedure. But the learned First Appellate Court while dismissing the First Appeal held that the cross-objection was allowed by the same judgment and decree dated 14.9.2006. The First Appellate Court as aforesaid dismissed the appeal thereby upholding the findings of the trial court vide judgment dated 14.9.2006. But the learned First Appellate Court while dismissing the First Appeal held that the cross-objection was allowed by the same judgment and decree dated 14.9.2006. The First Appellate Court as aforesaid dismissed the appeal thereby upholding the findings of the trial court vide judgment dated 14.9.2006. Thereafter, the plaintiff-appellants preferred Second Appeal being RSA No. 184/2006 challenging the judgment and decree dated 14.9.2006 passed by the learned Civil Judge, (Senior Division) Karimganj in Title Appeal No. 42/2005 without challenging the finding with regard to the cross-objection which was admitted on 13.4.2007 on the following substantial question of law: “Whether, the learned Lower Appellate Court erred in dismissing the suit of the appellant-plaintiffs as a whole on the ground of want of material facts in the plaint prepondering of their shares of the suit land in the face of overwhelming evidence on record to the said fact including the sale deed Ext. 1?” 11. The said RSA No.184/2006 was dismissed vide judgment dated 4.4.2017 and the same is revisited by this court in order to dispose of this appeal. 12. The appellants preferred this second appeal challenging the said judgment and decree dated 14.9.2006 passed in the aforesaid Title Appeal No. 42/2005 which was admitted on 5.1.2007 on the following substantial questions of law: “1. Whether learned Lower Appellate Court committed error in allowing the cross appeal thereby declaring title of the defendants although there was no counter-claim at the trial stage? 2. Whether the learned Lower Appellate Court erred in law in allowing the cross appeal without recording any reasons of the same?” 13. Mr. Choudhury, learned counsel appearing on behalf of the appellant submits that both the courts below failed to take into consideration the material piece of evidence led by the plaintiff side and considering the evidence of the defendant side only dismissed the suit. It is contended that the courts below were not correct in holding that the suit land was not properly described on the face of the contention in the Schedule of the plaint with regard to dag No. and the patta No. and the boundaries of the suit land. It is also contended that the Ext. 1 Sale deed, on the basis of which the plaintiff-appellants claim their title over the suit land was executed on 22.1.2002, which is prior in point of time the Ext. It is also contended that the Ext. 1 Sale deed, on the basis of which the plaintiff-appellants claim their title over the suit land was executed on 22.1.2002, which is prior in point of time the Ext. A (sale deed of the defendant-respondents) as the same was executed on 30.1.2004 and title ought to have declared in favour of plaintiff. It is also wrong on the part of the courts below that the plaintiff-appellants failed to show the flow of title of the vendors of the plaintiff-respondents over the suit land. Under such circumstances, Mr. Choudhury submits that the findings of both the courts below are wrong. 14. Mr. Choudhury submits that the PW1 in his deposition has fully supported his case and the flow of title to the vendors of the plaintiff-appellants with respect to the suit land inasmuch as the Ext. 1, the registered sale deed has been duly proved and there was no denial with regard to the execution of the said Ext. 1 by the vendors. He also submits that the Ext. 2, the copy of the jomabondi has been duly proved wherein serial Nos. 24, 25 and 36 are the recorded names of Ambar Ali, Idris Ali and Yakub Ali all sons of Alim Mia. Further, the Ext. 3 series are the challans by way of which revenue was paid in respect of land covered by patta No. 465/02 by the vendors of the plaintiff-respondents. On the other hand, Mr. Choudhury submits that the deposition of the DW1 who is the defendant No. 4 in the suit had proved that the Ext. A was executed on 30.4.2004 and the said DW1 admitted that as against the mutation of Abdul Bari there is no specific assertion of dag No. or area of any land as per the jomabondi, i.e., the Ext. 2. It is also submitted that the DW1 deposed that there are no houses over the suit land but the house tax receipts, i.e., Ext. F series ought to have been considered by the court below as false. So Mr. Choudhury submits that as the suit land and the land claimed by the defendant-respondents are same under such circumstances the Ext. 1 ought to have prevailed on Ext. A as the former one was executed prior to the said Ext. A executed by the vendors of the defendant-respondents. 15. Mr. So Mr. Choudhury submits that as the suit land and the land claimed by the defendant-respondents are same under such circumstances the Ext. 1 ought to have prevailed on Ext. A as the former one was executed prior to the said Ext. A executed by the vendors of the defendant-respondents. 15. Mr. Choudhury further submits that the grounds raised in the cross appeal/objection by the defendant-respondents cannot be termed to be a cross appeal inasmuch as on perusal of the grounds the same does not reflect as if the First Appellate Court requires any interference protecting the right, title and interest of the defendant-respondents without there being counter-claim on their part at all. As such, how the learned First Appellate Court allowed the cross-objection is totally silent in the judgment and decree passed by the said court. If the same is held to be a cross-objection then also from that point of view there is nothing on the grounds taken up by the respondent-defendants. Accordingly, Mr. Choudhury submits that the findings with respect to the said cross-objection of the defendant-respondents be set aside. 16. Mr. M.H. Rajbarbhuiyan submits that there is no error in the findings of both the courts below and also to findings on the cross-objection. 17. Considered the submissions of the learned counsel. Perused the case records, gone through the pleadings in the suit and the respective piece of evidence of all the witnesses. It is not in dispute that the defendant-respondents had claimed the suit land but with the pleading that the boundaries mentioned there in the suit land are not the same as that of the one which they are possessing and to that effect they have specifically mentioned the schedule of the land which they are possessing. The Ext. C is the judgment passed in Title Suit No. 153/01 wherein one Abdul Zabbar as the brother of Abdul Bari filed a suit claiming the said land. In the issue No. 3 of the said judgment of Title Suit No. 153/2001 Ext. C, the said Abdul Zabbar had been held to be the brother of Abdul Bari and the suit was dismissed. The suit was filed against vendors of the defendant-respondents, i.e., legal heirs of Abdul Bari. Now let us examine the Ext. In the issue No. 3 of the said judgment of Title Suit No. 153/2001 Ext. C, the said Abdul Zabbar had been held to be the brother of Abdul Bari and the suit was dismissed. The suit was filed against vendors of the defendant-respondents, i.e., legal heirs of Abdul Bari. Now let us examine the Ext. I which is the certified copy of the registered sale deed bearing No. 170 dated 25.2.1991 whereby Burhanuddin purchased land from one Abdul Rahman. In the Schedule of the said sale deed on the southern side it has been shown that Abdul Zabbar and his family are residing. Now let us consider the Schedule of the suit land as mentioned in the Schedule of the plaint. From the said Schedule of the plaint, it is very much apparent that on the northern side homestead of Burhanuddin is situated. 18. If we take into consideration the schedule of the land sold vide Ext. I to Burhanuddin and considers the boundary of the said land it is the land of Abdul Zabbar and family members situated on the southern side of the said land. This Abdul Zabbar is none other than but the brother of Abdul Bari as apparent from the Ext. C, i.e., the judgment passed in Title Suit No. 153/01 who claimed the said land. Further let us examine, the cross-examination of the PW1 wherein he has admitted the boundary of the land described in the Schedule of the written statement including the land of Burhanuddin which the said PW1 deposed that the said Burhanuddin purchased the land about 15 years back. Now, considering this material piece of evidence it can very well be concluded that the land which the plaintiff-appellants had claimed belonged originally to the family members of Abdul Zabbar who is none other than one of the brothers of Abdul Bari and his claim against the legal heirs of Abdul Bari was denied by the judgment passed in TS No. 153/01 vide Ext. C. 19. Accordingly, it can very well be prepondered that the vendors of the plaintiff-appellants are admittedly not the legal heirs of family members of Abdul Zabbar and or Abdul Bari and as such the said vendors cannot sale the land shown in the Schedule of the plaint inasmuch as the same belongs to the family members of Abdul Zabbar and Abdul Bari. On the other hand, the defendant-respondents had claimed their title over the suit land on the basis of registered sale deed, i.e., Ext.A. For the said reason the courts below rightly dismissed the suit of the plaintiff. It is also clarified that the Ext. 1, which has not been challenged by the defendant-respondents itself goes to show that the defendant-respondents are holding the suit land on the strength of their own right, title and interest derived through Ext.A. So the plaintiff-appellants failed to prove that the land they claimed is similar to the one covered under Ext. ‘A’. For this reason the Ext. 1 cannot prevail over Ext.’A’ as land described in the Schedules therein are found to be different. 20. The findings of the court below with regard to shares of the vendors of defendant-respondents had been given in order to establish the fact that they had been in possession of the suit land since 1991 and thereafter the said vendors mutated their names in the year 1999 in place of Abdul Bari. Such finding of fact was necessary in order to resolve the dispute between the parties wherein both the parties claim the suit land and both the parties have based their claim by way of purchase. So in order to decide the same, the courts below at first decided with respect to the identity of the suit land which from the discussion made hereinabove probabalise the preponderance in favour of the defendant-respondents and then whether the title transferred to the defendant-respondents was lawful. To that extent the mutation of the vendors of defendant-respondents was considered by looking into their mutation in the Jamabandi as the heirs of Abdul Bari. There are no sufficient evidence in favour of the plaintiff-appellants to decide their title with respect to the suit land so claimed as the same differs from the one purchased vide Ext. 1. 21. Now, entering into the substantial questions of law so formulated, this court enters into order XLI, rule 22 of the CPC which gives the right to any respondent to file any objection to the decree as if he had preferred a separate appeal. For proper appreciation, order XLI, rule 22 of the CPC is reproduced hereinbelow: “O. XLI, R. 22. Upon hearing respondent may object to decree as if he had preferred a separate appeal. For proper appreciation, order XLI, rule 22 of the CPC is reproduced hereinbelow: “O. XLI, R. 22. Upon hearing respondent may object to decree as if he had preferred a separate appeal. — (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. (2) Form of objection and provisions applicable thereto. — Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. ********* (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the court thinks fit. (5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.” 22. Let me see what right is given to the respondent under order XLI, rule 22 of the Code of Civil Procedure, 1908 (‘CPC’). In Sahadu Gangaram Bhagade v. Special Deputy Collector, (1970) 1 SCC 685 : AIR 1971 SC 1887 , the hon'ble Apex Court held as follows: “10. …………… The question is whether a cross-objection filed by a respondent in an appeal can be considered as a memorandum of appeal in substance though not in form. It is a right given to a respondent in an appeal to challenge the order under appeal to the extent he is aggrieved by that order. The memorandum of cross-objection is but one form of appeal. It is a right given to a respondent in an appeal to challenge the order under appeal to the extent he is aggrieved by that order. The memorandum of cross-objection is but one form of appeal. It takes the place of a cross appeal.” So from the aforesaid ratio, it appears that it is a right given to a respondent in an appeal to the extent he is aggrieved by that order. 23. The Hon'ble Apex Court in Banarsi v. Ram Phal, (2003) 9 SCC 606 : AIR 2003 SC 1989 held that under the amended order XLI, rule 22(1) of the CPC, a party in whose favour the decree is passed in its entirety is not entitled to prefer any cross-objection. It was further held that the insertion of the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The hon'ble Apex Court envisages three situations for filing cross-objection: (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent. In such a situation it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent. (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. As per the hon'ble Apex Court in the type of cases (ii) and (iii) though it is not necessary for the respondent to take any cross-objection laying any challenge to any finding adverse to him as the decree is entirely in his favour he may support the decree without cross-objection but considering the text in the sub-rule (1) read with explanation it gives the respondent a right to take cross-objection to a finding recorded against him. 24. 24. From the plain reading of the said stipulation under order XLI, rule 22 of the CPC and the ratio laid down by the hon'ble Apex Court referred hereinabove it is quite evident that grounds of objection must be such having its foundation on the pleadings and evidence on record. If there is no plea in support of the contention in the pleadings and no issue to that effect has been framed consequently in regard to the said plea, no amount of evidence can be looked into on such a plea raised by way of cross-objection. However, plea involving law flowing out of the facts pleaded by the parties to the suit requires no specific pleading which can be considered by the Appellate Court. The cross-objection can be filed only in respect of a finding on which the decree appealed against is based. It is also evident that where a person could not have appealed against the judgment and decree, he is not required to file a cross-objection in order to assail a finding against him, on which finding the decree is not founded. Similarly, it is not mandatory that a person having filed cross-objection, must accept some part of the decree. Further cross-objection can be filed only by a party who might have appealed from the decree but has not done so. 25. From the judgment passed by the learned First Appellate Court it is seen that not even a single ground raised by the defendant-respondents in the cross-objection before it had been referred to by the learned First Appellate Court. Mere allowing the cross-objection by the learned First Appellate Court, cannot be accepted to be a finding satisfying the conditions stipulated under order XLI, rule 31 of the CPC inasmuch as the cross-objection is an appeal. Dismissal of the first appeal cannot be presumed that the cross-objection of the respondents is allowed until and unless the appellate court gives reasons to its finding in that aspect. As referred hereinabove, the findings with regard to the shares of the vendors of defendant-respondents had been taken into consideration by the learned trial court and the learned First Appellate Court only to compare the firmness of the foundation in support of the pleadings of both the parties to the suit inasmuch as both the parties laid their claim over a single plot of land. Based on the pleadings of the parties, the learned courts below, at first, made an endeavour to identify the suit land for its entitlement by the parties to the suit. For the said reasons the trial court had considered the various exhibited documents including the one relied and exhibited by the defendant-respondents. From the said exhibits the courts below inferred the conclusions of the degree of firmness of the foundation of the facts pleaded by the parties to the suit. The courts while discussing the exhibits can sieve each and every piece of evidence and pick up the most relevant piece of evidence discarding the other giving reasons thereof. Such reasons/reasoning cannot by itself forms the ground of cross-objection as the respondent can argue without even preferring cross-objection. Even if there is any cross-objection, nothing has been discussed by the learned First Appellate Court. Invoking section 103 of the CPC entering into the records of the TA No. 42/2005 this court had gone through the grounds taken in the cross-objection which as hereinabove stated had not even registered as such. But from the grounds it is seen that the defendant-respondents had taken the grounds that the issue that there was cause of action for the suit ought to be held in the negative, that findings while appreciating the evidence of the documents/exhibits by the trial court in Issue No. 4 had also been taken as a ground in the said cross-objection. In the opinion of this court the same cannot form grounds for cross-objection inasmuch as non-availability of materials on record such as completion of settlement process proved by official witnesses had led to the appreciation of such evidence by the trial court. Title of the respondent cannot be declared until and unless there is a counterclaim which is also another ground in the said objection though no directly. As referred hereinabove, dismissal of a suit of the plaintiff for declaration of right, title and interest cannot mean that the title of the defendant is to be declared until there is a counter-claim. Accordingly, both the substantial questions of law are decided in favour of the present appellant. As referred hereinabove, dismissal of a suit of the plaintiff for declaration of right, title and interest cannot mean that the title of the defendant is to be declared until there is a counter-claim. Accordingly, both the substantial questions of law are decided in favour of the present appellant. By entering into the records this court finds that the cross-objection is devoid of any merit and as such to that extent the judgment and decree of the learned First Appellate Court is set aside, i.e., the finding to the extent of cross-objection. Accordingly, this second appeal succeeds so far the substantial questions of law involved are concerned without interfering the rest of the findings of the judgment and decree passed by the learned First Appellate Court. 26. Prepare a decree that the cross-objection is dismissed. 27. No Costs. 28. Send back the case record.