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2017 DIGILAW 1526 (GAU)

Mozammel Haque (Md. ) v. Halim Uddin Ahmed (Md. )

2017-12-11

PRASANTA KUMAR DEKA

body2017
JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. N. Dhar, learned counsel appearing on behalf of the appellants alongwith Mr. B. Hussain and Mr. T.U. Laskar. Also heard Mr. S.K. Ghosh, learned counsel appearing for the respondents. 2. The present appellants are plaintiffs in Title Suit No. 89/2002 in the Court of learned Civil Judge (Jr. Division) No. 1, Barpeta and the present respondents are defendants in the said suit 3. The case of the plaintiffs appellants is that 'A' schedule land belonged to the pattadars Abdul Kasem, Abdul Samad, Abdul Munnaf, Abdul Rashid and Abdus Siddique. The plaintiffs appellants are sons of Abdus Siddique, the proforma defendants named in the said plaint are the legal heirs of late Abdul Kasem and rests are legal heirs of the aforesaid co-pattadars of 'A' Schedule land. Abdus Siddique, the predecessor-in-interest of plaintiffs appellants did not sold the 'B' schedule land and after his death the plaintiffs appellants also had not transferred the land to anybody. Abdus Siddique died on 8.12.1998. During his life time and while he was suffering from illness he put 3 bighas 0 katha 6-1/5th lechas of land under mortgage with defendant respondent No. 2, Samsul Haque at Rs. 1000/- and during his life time he repaid the mortgage to the defendant respondent No. 2 in the last part of the November, 1999 and the plaintiffs appellants asked the defendant respondent No. 2 to give back the vacant possession of the land to them but he took some time as there was wheat cultivation over the land. The defendant respondent No. 2 requested the plaintiffs appellants to wait till harvesting of the crop. After harvesting, the requests of the plaintiffs appellants were not paid to any heed. On 3.12.2001 on further pressing the defendant respondent No. 2 to give back the possession he refused and asked the said plaintiffs appellants that if the defendant respondents No. 1 & 3 who are occupying 1 bigha of land returned back the said land, then the defendant respondent No. 2 would return his land. On approaching defendants respondents No. 1 & 3 they refused to vacate the said land measuring 1 bigha on the contention that the said defendant respondent Nos. 1 & 3 purchased the said land from Abdus Siddique on 4.1.1999 by execution of two sale deeds. On approaching defendants respondents No. 1 & 3 they refused to vacate the said land measuring 1 bigha on the contention that the said defendant respondent Nos. 1 & 3 purchased the said land from Abdus Siddique on 4.1.1999 by execution of two sale deeds. After searching in the office of Barpeta Sub-Registrar, the plaintiffs appellants came to know that the defendants respondents No. 1 & 3 managed to execute 2 sale deeds bearing registration Nos. 4/1999 dated 4.1.1999 and 8/1999 dated 8.1.1999 in the office of the Sub-Registrar, Mandia in favour of defendant respondent No. 1. Thereafter plaintiffs appellants brought the suit for declaration of right title interest and recovery of khas possession, cancellation of the mutation order passed in favour of defendant respondent No. 1 and cancellation of registered sale deeds No. 4/1999 dated 4.1.1999 and 8/1999 dated 8.1.1999 and partition of the suit land. It was pleaded that the said sale deeds are forged and fake as Abdus Siddique died prior to the date of execution of the sale deds. 4. The defendant respondent Nos. 1 & 3 contested the suit by filing their joint written statement and defendant respondents No. 2 contested the suit by filing separate written statement. The defendants respondents Nos. 1 & 3 pleaded Abdus Siddique had the right, title and interest and possession over 1 bighas 2 kathas 10 lechas of land at village Kadamburi covered by dag No. 612 who offered to sale 1 bigha of land for Rs. 11,000/- and received Rs. 7000/- in advance and executed the deed for sale. A sum of Rs. 5,000/- was received by Abdus Siddique and an affidavit was sworn with his brothers Kasem, Abdus, Samad, Mannaf Ali to the effect that though they are co-pattadars they put 1 bigha of land in the exclusive possession of Abdus Siddique who promised to sell the same to defendant and respondent No. 1. After conversion of the annual patta into periodic patta, Abdus Siddique transferred 1 bigha of land in favour of defendant respondent No. 1 by executing a registered sale deed No. 4/1999 in the office of the Sub-Registrar, Mondia, after obtaining necessary permission from the concerned authority. Remaining 2 kathas 10 lechas of land was also sold in favour of said defendant respondent No. 1 by executing 'katcha' deed on 18.9.1992 and delivered the possession to them. Remaining 2 kathas 10 lechas of land was also sold in favour of said defendant respondent No. 1 by executing 'katcha' deed on 18.9.1992 and delivered the possession to them. On 16.11.1992 Abdus Siddique sworn an affidavit to that effect of such sale and transferred the land to the defendant respondent No. 1. Thereafter the conversion of the patta into the periodic patta, on 8.1.1999 he transferred the same to the defendant respondent No. 1 by executing the sale deed No. 8/1999. The said Abdus Siddique handed over the possession of the land to the defendant respondent Nos. 1 & 3 on 12.4.1988 for 1 bigha of land on the basis of agreement for sale and on 18.9.1992, Abdus Siddique also handed over the possession of the rest 2 kathas 10 lechas of land by executing a 'katcha' deed in favour of the defendant respondent No. 1 and as such defendant respondent No. 1 acquired the right over the land by raising dwelling house thereon and possessing it with their family. It was further pleaded that on 5.7.1999 the defendant respondent No. 1 who is Government servant serving as LDA in the office of Geographical Survey of India, posted at Bhutan, while travelling by train from his house to Rangia Railway station he lost his brief case with the original sale deeds bearing Nos. 8/1999 and 4/1999. As soon as Abdus Siddique handed over the possession to the defendant respondent No. 1 by way of agreement of sale on 12.4.88 he had acquired the possession with non-evictable right thereon under the law. Similarly on the strength of said 'katcha' deed on 18.8.1992 he acquired the possession of the suit land and the same is a valid transfer deed. He denied forgery of the registered sale deeds Nos. 4/1999 and 8/1999. The defendant respondent No. 2 contested the suit by pleading that he purchased the suit land from Abdus Siddique who transferred 1 bigha of the suit land and relinquished 2 bighas 0 katha 6 lechas, in total 3 bighas 0 katha 6 lechas of land in his favour and the possession of which was delivered to the defendant respondent No. 2. He mutated his name and after the conversion of the patta to period patta his name was mutated as purchaser and as such he has right, title, interest over the said property alienated by the father of the plaintiffs appellants. With the said pleadings the defendants respondents prayed for dismissal of the suit. On the basis of the pleadings the learned trial Court framed the following issues: "i. Whether there is cause of action for the suit? ii. Whether the suit is barred by limitation? iii. Whether the suit is barred by estoppels? iv. Whether the suit is bad for non-joinder of necessary parties? v. Whether the plaintiffs have right, title and interest over the suit land and they were dispossessed from the B schedule land" vi. Whether the Regd. Sale deed No. 4/99 dated 4.1.99 and 8/99 dated 5.1.99 are forged and thereby inoperative in the eye of law? vii Whether the plaintiffs is entitled to get a decree as prayed for? viii What other relief/reliefs the parties are entitled to? Additional Issues:- ix. Whether Abdus Siddique entered into an agreement with the defendants No. 1 to sale 1 bigha 2 kathas 10 lechas of land out of the suit land and accordingly delivered possession after receipt of the consideration money, and if so whether the possession of the defendant is protected under law? 5. The plaintiffs appellants side examined 6(six) witnesses whereas the defendant respondent Nos. 1 & 3 examined 6(six) witnesses, DW 5 to DW 10 whereas the defendant respondent No. 2 examined 4 (four) witnesses, DW 1 to DW 4 in support of their respective cases. The learned trial Court took up issue No. 6 in order to examine the validity of the registered sale deed Nos. 4/1999 dated 4.1.1999 and 8/1999 dated 8.1.1999, the Exts. 4 & 5 respectively. The learned trial Court at first took into the consideration the death certificate of late Abdus Siddique. Ext. 1 is the said death certificate which shows that 8.12.1998 as the date of death of Abdus Siddique. 6. Relying on AIR 1992 Madras High Court 224, learned trial court discarded the Ext. 1 by holding that Section 13(3) of the Registration of Birth and Death Act, 1969 cannot be taken into the consideration so far the date mentioned therein when the same is disputed. 6. Relying on AIR 1992 Madras High Court 224, learned trial court discarded the Ext. 1 by holding that Section 13(3) of the Registration of Birth and Death Act, 1969 cannot be taken into the consideration so far the date mentioned therein when the same is disputed. The learned trial Court took up the Ext.8 i.e. registered sale deed executed by Abdus Siddique and another in favour of Sarbat Ali who was examined as PW 6. The said Ext.8 was executed on 29.12.1998 and registered on the same date in the office of the Sub-Registrar, Barpeta by Abdus Siddique in favour of Sarbat Ali. Further holding that the registered sale deeds Exts. 4 & 5 were recorded in the office of Sub Registrar Mandia and considering the fact that the originals of said Exts. 4 & 5 were lost as pleaded in the written statement by the defendant respondent No. 1, came to the finding that non-submission of originals of Exts. 4 & 5 shall not create any adverse inference against the defendant respondent Nos. 1 & 3. While discussing further, the trial Court took into consideration the Ext. 'Ka' and 'Ga' i.e. affidavit sworn by Abdus Siddique and Ext. Kha, the 'katcha' sale deed purportedly executed by Abdus Siddique in favour of defendant respondent No. 1 from which it was inferred that the same could be considered for collateral purpose inasmuch as the signatures thereon, the said Ext. Ka, Kha and Ga were proved by PW1 (wife of late Abdus Siddique). Learned trial court observed that the Exts. 4 & 5 are not forged and fraudulent and the same were executed by Abdus Siddique during his lifetime. 7. Considering the pleadings of the defendant respondents No. 1 and 3 learned trial Court came to the finding while discussing the issue No. 5, that the Exts. 4 & 5 had transferred the right, title, interest to the defendant respondent No. 1 to the extent of the land so sold and defendant respondent Nos. 1 & 3 are legally possessing 1 bigha 2 kathas 10 lechas of land on the strength of the sale deed Nos. 4/1999 and 8/1999. 8. So far the defendant respondent No. 2 is concerned taking up the pleadings in his written statement, trial court considered the Ext. 1 & 3 are legally possessing 1 bigha 2 kathas 10 lechas of land on the strength of the sale deed Nos. 4/1999 and 8/1999. 8. So far the defendant respondent No. 2 is concerned taking up the pleadings in his written statement, trial court considered the Ext. A and C purportedly the unregistered deeds of relinquishment by which Abdus Siddique relinquished his title on 2 bighas of land respectively one bigha each in favour of defendant respondent No. 2. Further the learned trial Court observed that by the unregistered deed of sale Ext. B, executed by Abdus Siddique he sold 1 bigha 0 katha 6 lechas of land at Rs. 6,000/- and held the same to be unlawful one in view of Section 54 of Transfer of Property Act, 1882. the same being an unregistered sale deed. Combining, while appreciating the said Exts. A, B, C, learned trial Court came to the finding that no effective valid transfer of title took place from Abdus Siddique to defendant respondent No. 2 and as such the title of the plaintiffs appellants remained over the land measuring 3 bighas 0 katha 6-1/5 lechas out of schedule 'A' land and rest 1 bigha 2 kathas 10 lechas of land through Exts. 4 & 5, the title remained with the defendant respondent No. 1. Rejecting the prayer for cancellation of registered sale deed No. 4 & 8 of 1999, the trial court decreed the suit partially thereby declaring the right, title and interest of the plaintiffs appellants over 3 bighas 0 katha 6-1/5 lechas of land out of the schedule 'A' land and for partition of the said land as per law and the plaintiffs appellants are entitled to get the recovery of khas possession by evicting the defendant respondent No. 2 from the suit land. However, prayer for evicting the defendant respondent Nos. 1 and 3 was allowed subject to leaving aside the land purchased by the defendant respondent No. 1 vide Exts. 4 and 5. 9. Being aggrieved by the said judgment and decree dated 11.1.2005 and 19.1.2005 respectively in title Suit No. 89/2002. the plaintiffs appellants preferred Title Appeal No. 20/2005 before the learned Civil Judge (Sr. Division), Barpeta. The learned First Appellate Court upheld the findings of the trial Court thereby dismissing the said appeal vide judgment and decree dated 18.2.2006. 10. 9. Being aggrieved by the said judgment and decree dated 11.1.2005 and 19.1.2005 respectively in title Suit No. 89/2002. the plaintiffs appellants preferred Title Appeal No. 20/2005 before the learned Civil Judge (Sr. Division), Barpeta. The learned First Appellate Court upheld the findings of the trial Court thereby dismissing the said appeal vide judgment and decree dated 18.2.2006. 10. The plaintiffs appellants filed the present Second Appeal against the said judgment and decree dated 18.2.2006 and vide order dated 14.12.2007, the present RSA 153/2006 was admitted for hearing on the following substantial questions of law: "1. Whether title can be passed on the defendant Nos. 1 and 3 on the basis of the registered sale deed Nos. 4/99(Ext.4) and 8/99(Ext.5) executed by Abdus Siddique in view of the death certificate Ext. 1? 2. Whether the registration of the sale deed being Nos. 4/99(Ext.4) and 8/99(Ext.5) is valid in view of the provisions of Section 28 of the Registration Act.? 11. Mr. N. Dhar, learned counsel appearing on behalf of the appellants submitted that the courts below is wrong in passing the judgment and decree. It is submitted that the plaintiffs appellants had been able to prove the date of death of their predecessor-in-interest inasmuch as the Ext. 1 is the death certificate issued by a competent statutory authority and as such the Courts below ought to have drawn up presumption as required under Section 74 of Indian Evidence Act, 1872. 12. The sale deed Exts. 4 & 5 were registered in Mandia Sub-Registrar office and the subject matter therein which was beyond the jurisdiction of the said sub-Registrar at Mandia inasmuch the suit land falls within the Sub divisional Registrar of Barpeta. 13. Section 28 of the Registration Act 1908 specifically stipulates that if registration is done in the office of the Sub-Registrar and the immovable property which is the subject matter of the said registration is beyond the territorial jurisdiction of the said office of the Sub-Registrar, the said registration is invalid. Moreover the execution of deed by Abdus Siddique was not proved as required under the law by defendants respondents. The disputed signature of Abdus Siddique was never proved by calling for opinion of the handwriting expert and as such requisite onus on the part of the defendants appellants were not discharged. Further the Courts below took into consideration the Exts. Moreover the execution of deed by Abdus Siddique was not proved as required under the law by defendants respondents. The disputed signature of Abdus Siddique was never proved by calling for opinion of the handwriting expert and as such requisite onus on the part of the defendants appellants were not discharged. Further the Courts below took into consideration the Exts. Ka and Kha in the wrong perception, under no circumstances the said two Exts. would be taken into consideration for collateral purpose as taken by the Courts below in support of the fact of possession of the suit land so far the defendant respondent Nos. 1 & 3 are concerned. Mr. Dhar, learned counsel also submits that the judgment delivered in the First Appellate Court is hit under the provision of Order 41 Rule 31 CPC inasmuch the same is not as per Order 20 Rule 5 of CPC. 14. Considering the submissions and in support of his contention Mr. Dhar, learned counsel relies on the following decision and submits that the second appeal be allowed by setting aside the judgment and decree of First Appellate Court. 1. AIR 1981 Supreme Court 361: Harpal Singh & Anr. Vs. State of H.P. 2. AIR 1966 Supreme Court 1457: The Roman Catholic Mission Vs. The State of Madras & Anr. 3. 1995 2 GLR 174: The State of Meghalaya & Ors. Vs. Joinmanick Nosmel Giri 4. 1999 (1) GLT 30 : 1999 2 GLR 219 : Mahindra Kumar Dey & Anr. vs. Mahendra Sukla Baidya & Ors. 5. 2009 (3) GLT 753: Vrenubala Nama & Ors. Vs. Renubala Das. 6. AIR 1984 Patna 274: Dwarika Prasad Marwari vs. Sudarshan Pd Chaudhury & Ors. 7. 2014 1 GLR 851 : Runupa Khatun Vs. Union of India & Ors. 8. (2010) 8 SCC 383 : Meghmala & Ors. Vs. G. Narasimha Reddy & Ors. 9. (2009) 7 SCC 363 : Suraj Lamp and Industries Private Limited through Director Vs. State of Haryana & Anr. 10. (2008) 8 SCC 564 : K.B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd. 11. (2008) 8 SCC 580 : Superintendent of Police, Karnataka Lokayukta & Anr. vs. B. Srinivas 12. (2013) 3 SCC 801 : Joseph John Peter Sandy Vs. Veronica Thomas Rajkumar & Anr. 13. 2010 (2) GUT 820 : Saukat Ali & Ors. Vs. Musstt. Nekjan Bibi & Ors. 15. Mr. Development Consultant Ltd. 11. (2008) 8 SCC 580 : Superintendent of Police, Karnataka Lokayukta & Anr. vs. B. Srinivas 12. (2013) 3 SCC 801 : Joseph John Peter Sandy Vs. Veronica Thomas Rajkumar & Anr. 13. 2010 (2) GUT 820 : Saukat Ali & Ors. Vs. Musstt. Nekjan Bibi & Ors. 15. Mr. Ghosh appearing on behalf of the respondents submits that both the Courts below had appreciated the evidence on record in its proper perspective. The fact of presumption of the date of death as mentioned in Ext. 1 has no basis at all inasmuch as the Ext.8 which is a registered sale deed was proved to be executed by Abdus Siddique thereby transferring the land to the PW 6. Ext.8 shows the date of execution as 29.12.1998. and the evidence of PW 1 and PW 2 under no circumstances could support the fact of date of death to be presumed on the basis of Ext. 1. 16. Considered the submissions of the learned counsels. Perused the case record, evidence and the various exhibits. Mr. Dhar relies on the decision reported in AIR 1981 SC 361 (supra) and submits that Section 35 of the Indian Evidence Act covers the entry in birth register and entry made by the concerned officials while discharging his official duties and the certified copy of the said entry is admissible under the said Section of Evidence Act and requires no examination of officials in order to prove the said entry. So Mr. Dhar wants to place that the said Ext. 1, death certificate needs no extra proof with regard to the entry of the date of death of Abdus Sidique by calling officials from the said department. The learned courts below ought to have considered the said date of death of Abdus Siddique to be the date of death and held the Exts. 4 & 5 as fraudulent. The said submission of Mr. Dhar cannot be accepted on the face of Ext.8, the Registered sale deed bearing No. 3163 dtd. 29.12.1998 which was executed by the said Abdus Siddique in favour of PW 6, Sarbat Ali. The said PW 6 deposed in his evidence that by way of Ext.8 he admitted that he purchased the land by way of said Ext.8 from Abdul Mannan and Abdus Siddique. 29.12.1998 which was executed by the said Abdus Siddique in favour of PW 6, Sarbat Ali. The said PW 6 deposed in his evidence that by way of Ext.8 he admitted that he purchased the land by way of said Ext.8 from Abdul Mannan and Abdus Siddique. In his cross-examination, the said PW 6 deposed that he did not forge the signature of Abdus Siddique nor he filed any suit for declaration of the said Ext. 8 as illegal. However, in chief he deposed that on the date of registration of the deed Abdus Siddique died. The said deposition that Abdus Siddique died on the date of registration of Ext. 8 cannot be considered inasmuch had the said fact as deposed by PW 6 was known to the plaintiffs appellants to be correct the same ought to have been pleaded and as there is no such pleadings and the same cannot be considered in the evidence. On the other hand if the pleadings of the plaintiffs appellants are considered from the plaint it is apparent that Abdus Siddique after creating the mortgage in favour of defendant respondent No. 2, repaid the borrowed amount of Rs. 1000/- in the month of November, 1999 which is on record and can be taken into consideration. On the other hand PW1 Mariam Begum wife of late Abdus Siddique in her cross examination admitted the fact that Abdul Mannan sold the land vide sale deed No. 3163 Ext.8, in favour of Sarbat Ali, PW 6. Further in her cross-examination she deposed that her husband did not sold the land to the said PW 6 rather in place of Abdus Siddique she stood before the Sub-Registrar. On the other hand, PW 2 Abdul Rashid (brother of Abdus) in his cross examination deposed that Abdus Siddique sold the land to Sarbat Ali by way of registered sale deed. If the said piece of evidence of PW 6 is considered alongwith PW 2 and PW 1 it can be concluded that the presumption on the entry of the date of death of Abdus Siddique in the death certificate Ext. 1 is not based on any fact having its firm foundation to draw the presumption of the correction of entry of date of death in Ext. 1. 17. On perusal of Exts. 1 is not based on any fact having its firm foundation to draw the presumption of the correction of entry of date of death in Ext. 1. 17. On perusal of Exts. 4 & 5, the sale deed on the basis of which the defendant respondent No. 1 claims title over the suit land, therein the executor Abdus Siddique was identified by his daughter, Maizum Nessa. Non examination of the said identifier by the plaintiffs appellants is a fact which is a relevant one inasmuch as a duty was cast upon the plaintiffs appellants to disprove the execution by bringing the identifier be it the daughter of the executants or any other person. 18. PW 3, Muzammil Haque in his cross examination deposed that he is the son of Abdus Siddique. Though he has stated that the signatures of Abdus Siddique are in the said sale deed but he has not compared the said signatures. From the said piece of evidence and on consideration of execution of the Ext. 8 it can be concluded that the said sale deed Exts. 4 & 5 were duly executed by Abdus Siddique and the presumption that Abdus Siddique died on 18.12.1998 cannot be drawn and the title with respect to the land sold through said Exts. 4 & 5 was validly transferred to the defendant respondent No. 1, lawfully. Thus substantial question of law No. 1 is decided against the plaintiffs appellants. 19. Mr. Dhar, learned counsel for the plaintiffs appellants relies Section 28 of the Registration Act, 1908 which stipulates that every documents mentioned in Section 17, sub-Section 1, Clause (a)(b)(c)(d) and (e), Section 17 sub-Section 2 in so far as such documents affects the immovable property and Section 18, Clauses (a)(b)(c) and (cc) must be presented for registration in the office of the Sub-Registrar within whose Sub District the whole or some portion of the property to which such document relates is situated. It is submitted that the suit property was under the jurisdiction of the Barpeta Sub-Registrar. But the said Exts. 4 & 5 relating to the immovable property described in the schedule 'A' of the plaint were registered in the office of the Mandia Sub-Registry. So the said registration had no valid effect under the provision of the Registration Act. The said submission of Mr. But the said Exts. 4 & 5 relating to the immovable property described in the schedule 'A' of the plaint were registered in the office of the Mandia Sub-Registry. So the said registration had no valid effect under the provision of the Registration Act. The said submission of Mr. Dhar cannot be accepted as there is the Assam Amendment in the Transfer of Property Act, 1882 by the Transfer of Property (Assam Amendment) Act, 1970. The said Act of 1970 received the assent of the Hon'ble President of India on 2.6.1976 and published in the Assam Gazette extraordinary dated 15.7.1976. The said Gazette notification stipulates the amendment of Section 54 of the Central Act IV of 1882 which is reproduced herein below: "2. Amendment of Section 54 of the Central Act IV of 1882.--In Section 54 of the Principal Act, in para 2, for the expression "by a registered instrument" the following expression shall be substituted, namely: "by an instrument registered in the State of Assam, notwithstanding anything contained in the Indian Registration Act, 1908 (Act XVI of 1908) to the contrary." 20. Section 54 of Transfer of Property Act defines 'sale' and in para 2 of the said Section 54 stipulates 'sale' how made. 21. The said amendment stipulates that the registered instrument as required under Section 54 para 2, shall be by an instrument registered in the State of Assam notwithstanding anything contained in the Registration Act, 1908 to the contrary. If the said amendment is taken into consideration with the non-obstante wording, the said Section 28 of the Registration Act, 1908 has nothing to do inasmuch as in order to be a valid sale u/s. 54 of Transfer of Property Act, 1882, the said sale deed can be registered in any place within the State of Assam. Accordingly the Second substantial question of law is also decided against the plaintiffs appellants. 22. As a result this second appeal is dismissed. No costs. 23. Prepare a decree accordingly. 24. Send back the LCR. No cost.