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2018 DIGILAW 1341 (GAU)

M. K. Mashiuddin Ahmed v. Gazi Giasuddin Ahmed

2018-09-12

SUMAN SHYAM

body2018
JUDGMENT : Suman Shyam, J. Heard Mr. D. Mazumder, learned Sr. counsel appearing for the appellant. Also heard Mr. S. Ali, learned counsel appearing for the respondent. 2. This second appeal is directed against the concurrent judgment and decree dated 29-01-2013 passed by the learned District Judge, Darrang, Mangaldoi in Title Appeal No. 03/2009 dismissing the appeal preferred by the appellant, thereby affirming the judgment and decree dated 14-05-2009 passed by the learned Civil Judge, Darrang, Mangaldoi in Title Suit No. 15/1996. 3. This second appeal was admitted by the order dated 13-11-2014 passed by this Court to be heard on the following substantial question of law: "(i) Whether the learned courts below erred in law in holding that plaintiff has title over the Schedule- V house without deciding the title over the land on which the house stands?" 4. The appellant was the defendant No. 1 in Title Suit No. 15/1996 instituted by the respondent as plaintiff, inter alia, praying for a decree declaring his title over the suit land described in Schedule-I and houses described in Schedule- II of the plaint; for recovery of khas possession by evicting the defendant No. 1 from the house described in Schedule-IV; for a decree of permanent injunction and for other consequential relief’s. The plaintiff and the defendant No. 1 are the sons of the defendant Nos. 2 and 3. The plaintiff's case, in brief, is that a plot of land measuring 1B-2K-10L covered by Dag No. 475 (old)/ 345 (new) of Periodic Patta No. 27 (old)/ 249 (new) of Mangaldoi Goan under Chopai Mouza of Mangaldoi Town originally belonged to one Benoy Bandhu Das. The defendant No. 2 (since deceased) i.e. the father of the plaintiff, took the said land on lease from Benoy Bandhu Das on 06-06-1952 and remained in possession of the land till 07-10-1967 by constructing dwelling houses with attached kitchen and a Assam Type dwelling house, a Granary and a "Dhenki" house over the said land, which are described in Schedule-II and III of the plaint. By means of Purchase Deed dated 07-10-1967, the plaintiff had purchased the aforesaid plot of land measuring 1B-2K-10L from its registered owner Benoy Bandhu Das for a consideration of Rs. 6000/-out of his own income and took possession of the land. In this manner he had acquired right, title and interest over the plot of land measuring 1B-2K-10L. By means of Purchase Deed dated 07-10-1967, the plaintiff had purchased the aforesaid plot of land measuring 1B-2K-10L from its registered owner Benoy Bandhu Das for a consideration of Rs. 6000/-out of his own income and took possession of the land. In this manner he had acquired right, title and interest over the plot of land measuring 1B-2K-10L. Thereafter, the defendant No. 2 had become a lessee under the plaintiff in respect of the said land. The defendant No. 2 was also the exclusive owner of the plots of agricultural land measuring 9B-0K-13L situated at VillageAdhamapara and land measuring 25B-0K-15L situated at Village-Dalgaon. During his lifetime, the defendant No. 2 had made a gift of the entire plot of agricultural land in favour of the defendant No. 1 pursuant whereto, defendant No. 1 was put in possession of the land. The plaintiff had objected to such gift of land made by the defendant No. 2 in favour of defendant No. 1.The defendant No. 1 had also raised a claim in respect of the land measuring 1B 2K 10 L as a result of which, certain dispute and difference had arisen by and between the brothers. With a view to resolve such dispute, the defendant No. 2 had intervened in the matter and a registered Deed of Family Settlement dated 04-12- 1993 bearing No. 2206 was entered by and between the plaintiff, defendant No. 1 and defendant No. 2. In terms of the Deed of Family Settlement land measuring 2K-10L described in Schedule- A(I) of the deed, being part of land measuring 1B-2K-10L, situated on the western part of the Schedule- A land, was relinquished by the plaintiff in favour of the defendant No. 1. The defendant No. 2 had also relinquished the lease held in respect of the Schedule- A land described in the deed of family settlement in favour of the plaintiff besides relinquishing his right in respect of land and house mentioned in Schedule- C of the deed. Likewise, the defendant No. 1 had also relinquished his right, title and interest in respect of the agricultural land described in Schedule- B(I) being part of Schedule- B land in the deed of family settlement, in favour of the plaintiff and the defendant No. 1 had taken possession of the land measuring 2K-10L. Likewise, the defendant No. 1 had also relinquished his right, title and interest in respect of the agricultural land described in Schedule- B(I) being part of Schedule- B land in the deed of family settlement, in favour of the plaintiff and the defendant No. 1 had taken possession of the land measuring 2K-10L. As such, by virtue of the deed of family settlement, the plaintiff had acquired title over the 1 Bigha land mentioned in Schedule-A of the deed of family settlement besides the houses mentioned in Schedule-C in lieu land mentioned in Schedule-A(I) of the deed. The Schedule- A land corresponds to Schedule-I whereas, the houses mentioned in Schedule- C of the deed corresponds to Schedule- II of the plaint. 5. Although the plaintiff had become the absolute owner of the aforementioned properties by virtue of the deed of family settlement, yet, considering the fact that the defendant No. 1 was his younger brother, the plaintiff had allowed him to live in an one room "Assam Type" house with pucca floor measuring about 16ft. x 10ft. situated towards the eastern side of the house mentioned in Schedule-I of the deed of family settlement which is described in the Schedule- II of the plaint. It is the case of the plaintiff that although the defendant No. 1 was allowed to occupy the said land and house as a permissive occupier, yet, he had committed breach of such license and thereby violated the condition of the permission granted to him by the plaintiff, as a result of which, the plaintiff was compelled to institute the Title Suit No. 15/1996 for recovery of possession of the house. 6. The defendant Nos. 1 and 2 had contested the suit by filing joint written statement, inter alia, denying the case of the plaintiff. In their written statement, although it has been admitted that the defendant No. 2 was a lessee under Benoy Bandhu Das since 06-06-1952 but as per the projection made in the written statement, the defendant No. 2 was in possession of land measuring 1B-2K-16L out of which, the plaintiff had purchased only 1B-2K-1L. According to the defendants, the remaining 15 lechas of land was purchased by the defendant No. 1 from Benoy Bandhu Das with the consent of the defendant No. 2 by means of a registered deed of sale No. 1240 dated 08-05-1996 for a consideration of Rs. According to the defendants, the remaining 15 lechas of land was purchased by the defendant No. 1 from Benoy Bandhu Das with the consent of the defendant No. 2 by means of a registered deed of sale No. 1240 dated 08-05-1996 for a consideration of Rs. 20,000/- pursuant whereto, the defendant No. 1 took possession of the said land. It is their case that the defendant No. 1 has acquired title over 15 lechas of land owned by Benoy Bandhu Das by right of purchase and on such ground the claim of the Plaintiff of having purchased land measuring 1B-2K-10L from Benoy Bandhu Das had been denied and disputed. 7. Based on the pleadings of the parties, the learned Trial Court had framed the following issues for trial: "(i) Is there any cause of action for the suit? (ii) Is the suit is maintainable in its present form? (iii) Is the suit is barred by limitation? (iv) Whether the suit is barred by the principles of waiver, estoppels and acquiescence? (v) Whether the excess land of 15 lessas was purchased by defendant No. 1 form Binoy Bandhu Das by a sale deed and whether the defendant No. 1 had become owner thereof? (vi) Whether the family settlement dated 04.12.1993 by and between the plaintiff and defendant No. 1 and 2 is genuine and duly executed? (vii) Whether the family settlement dated 04.12.1993 was entered into by consent of all the parties involved therein? (viii) Whether the 'dheki' house has been demolished by the defendant No. 1 or it was repaired as alleged in the written statement? (ix) Whether the plaintiff has right, title and interest in respect of the suit land and the suit houses? (x) To what relief, if any, the plaintiff is entitled?" 8. During the course of trial, both sides had lead evidence in support of their respective cases. Appreciating the evidence brought on record, the learned Trial Court had decided all the issues except issue No. 8, in favour of the plaintiff. Consequently, the plaintiff's suit was decreed on contest by the trial court on 14-05-2009. 9. Aggrieved by the judgment and decree passed by the learned Trial Court, the defendant No. 1, as appellant, had preferred Title Appeal No. 03/2009, which was dismissed by the learned District Judge, Darrang, Mangaldoi by the impugned judgment and decree. Hence, this second appeal. 10. Mr. 9. Aggrieved by the judgment and decree passed by the learned Trial Court, the defendant No. 1, as appellant, had preferred Title Appeal No. 03/2009, which was dismissed by the learned District Judge, Darrang, Mangaldoi by the impugned judgment and decree. Hence, this second appeal. 10. Mr. D. Mazumder, learned Sr. counsel appearing for the appellant has argued that although the plaintiff had claimed to have purchased 1B-2K-10L of land from Benoy Bandhu Das by means of purchase deed dated 07-10-1967 (Exhibit- 2), yet, the area of land indicated in the deed was only 1B-2K-1L. Therefore, after relinquishing an area of 2K-10L of land in favour of the appellant/defendant No. 1 by means of the Deed of Family Settlement dated 04-12-1993 (Exhibit- 1), the plaintiff was left with only 4K-11L of his purchased land. By referring to the observations made by the learned trial court to the effect that there are discrepancies in the descriptions of the land purchased by the plaintiff by Exhibit- 2, the learned Sr. counsel for the appellant submits that since the total area of land as per the purchased deed was 1B-2K-1L, hence, in the absence of a clear findings as to how the plaintiff could retain 1 Bigha land as described in Schedule- I of the plaint, after relinquishing 2K-10L in favour of the appellant/ defendant No. 1, the learned court below was not correct in issuing a decree declaring the right, title and interest of the plaintiff in respect of land described in Schedule- I of the Plaint. According to Mr. Mazumdar, the house measuring 16ft. x 10ft. is standing over land described in Schedule-I and, hence, unless the plaintiff succeeds in establishing his title over the Schedule-I land, no decree for recovery of possession of the house measuring 16ft. x 10ft. described in Schedule- II could have been passed by the learned court below. On such ground, Mr. Mazumder has prayed for annulment of the concurrent decree passed by the lower appellate court and for dismissal of the suit. 11. Mr. S. Ali, learned counsel for the respondent, on the other hand, has argued that his client had not only purchased 1B-2K-1L but also acquired another 09 lechas of land from its registered owner totaling 1B-2K-10L of land and therefore, the projection made by the learned Sr. counsel appearing for the appellant is wholly misleading. Mr. 11. Mr. S. Ali, learned counsel for the respondent, on the other hand, has argued that his client had not only purchased 1B-2K-1L but also acquired another 09 lechas of land from its registered owner totaling 1B-2K-10L of land and therefore, the projection made by the learned Sr. counsel appearing for the appellant is wholly misleading. Mr. Ali submits that a bare perusal of the recital in the deed of family settlement would make it amply clear that the plot of land measuring 2K-10L was given to the defendant No. 1 not only out of the purchased land of the plaintiff but from the total land in the possession of the family. Since there is no dispute regarding right, title and interest of the parties over any other land mentioned in the deed of family settlement and considering the fact that the appellant/ defendant No. 1 is in possession of the 2K 10L plot of land relinquished in his favour on the strength of the deed of family settlement, the question of law urged by the appellant, according to Mr. Ali, does not arise for consideration by this Court in the facts and circumstances of the case. Mr. Ali has further argued that the issues sought to be raised by the appellant are all questions of facts and since both the courts below have recorded concurrent finding of facts on the issues in favour of the plaintiff, there is no scope for this Court to interfere with such finding of fact in a second appeal. 12. I have considered the submissions made by the learned counsel for both parties and have also perused the materials available on record. At the very outset it would be necessary to note herein that there is no wrangle at the bar about the fact that the appellant/ defendant No. 1 is in possession of land measuring 2K-10L mentioned in Schedule- A(I) of the deed of family settlement nor has the appellant denied of having received his share of property as per the family settlement. As a matter of fact, Mr. Mazumdar has categorically submitted that his client is not disputing the deed of family settlement (Exhibit- 1) or the entries made therein. Therefore, it is in the above factual the back drop that this Court would be called upon to answer the substantial question of law framed in this appeal. 13. As a matter of fact, Mr. Mazumdar has categorically submitted that his client is not disputing the deed of family settlement (Exhibit- 1) or the entries made therein. Therefore, it is in the above factual the back drop that this Court would be called upon to answer the substantial question of law framed in this appeal. 13. After hearing the arguments advanced by the learned counsel for the parties, it appears that the sole controversy raised by the appellant in this appeal pertains to the question of total area of land purchased by the plaintiff by means of the registered deed of sale dated 07-10-1967. It is no doubt correct that the sale deed Exhibit- 2 indicates that the total area of land purchased by the plaintiff was 1B-2K-1L. But it is equally true that the claim of the plaintiff in the suit over the Schedule-I and II land and house is not based solely on his purchase deed but is on the basis of the deed of family settlement (Exhibit- 1) dated 04-12-1993. The deed of family settlement had been evidently executed on a date which is much later than the date of his purchase of the land from Benoy Bandhu Das. A plain reading of Schedule-A of Exhibit- 1 clearly goes to show that the total area of "Basti" land was 1B-2K-10L out of which, land measuring 2K-10L, being 1/3rd of the Schedule-A land, had been given to the defendant No. 1 and the remaining land fell in the share of the plaintiff. Therefore, it is obvious that under the deed of family settlement, plaintiff had acquired right, title and interest in respect of an area of "Basti" land measuring 1 Bigha and it is the said plot of land measuring 1 Bigha described in the Schedule-I to the plaint, which has been claimed by him in the suit. Since the Schedule-II house is standing upon the Schedule- I land, the plaintiff cannot be denied possession of the same. 14. As noted above, it is the admitted position of fact that the family settlement was carried out voluntarily and that the defendant No. 1 is in occupation of his share of "Basti" land measuring 2K-10L. Since neither party has disputed the validity of the deed of settlement, it would not be necessary for this court to go into the said aspect of the matter. Since neither party has disputed the validity of the deed of settlement, it would not be necessary for this court to go into the said aspect of the matter. Until and unless the contrary is proved, there would be a presumption of fact that the registered deed of family settlement took in its fold all the immovable property owned by the family members who are the signatory to the deed of settlement and the rights flowing to each of the constituent member of the family under the deed would not only have to be recognized by the court but their claims would also have to be determined strictly in accordance with the letter and spirit of the deed of family settlement. I am therefore, of the considered opinion that the learned courts below have rightly relied upon the Exhibit- 1 deed of settlement and decreed the suit by accepting the plaintiff's claim over the Schedule- I property. 15. I find from the record that the learned trial court had decided the issue No. V against the appellant/defendants by holding that the defendant No. 1 had failed to establish by adducing cogent evidence, the fact that he had purchased 15 lechas of land from Benoy Bondhu Das. That apart, while deciding issue No. VII, the learned trial court had also dealt with the question of discrepancy in the description of the area of land purchased by the plaintiff. By referring to the documents Exhibit-1 and the Patta issued in favour of the plaintiff i.e. Exhibit- 3, the learned trial court has held that the correct area of land had been indicated in the family settlement deed. The said finding of fact had been affirmed by the lower appellate court and the appellant has not urged any question of law assailing the concurrent finding of fact recorded by the court below. Moreover, the appellant/ defendant No. 1 has also not succeeded in establishing that the house measuring 16ft. x 10ft. under his occupation is standing upon his own land. Moreover, the appellant/ defendant No. 1 has also not succeeded in establishing that the house measuring 16ft. x 10ft. under his occupation is standing upon his own land. Once the parties have accepted that their rights over the family property would be governed by the deed of family settlement, there would be no scope for this Court to go behind the said deed and record finding of facts which are inconsistent with the projection made in the registered deed, more so, when the deed of family settlement itself is not under challenge. 16. For the reasons stated hereinabove, I am of the view that the appellant has failed to make out any good ground warranting interference with the concurrent finding of facts recorded by the court below. The substantial question of law, therefore, stands answered against the appellant and in favour of the respondent. The appeal is held to be devoid of any merit and is accordingly dismissed. No order as to cost.