Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 1232 (GAU)

Asan Ali Mandal v. Abdul Hamid Sarkar

2019-11-15

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. This regular second appeal is by the defendant against the judgment and decree passed by learned Civil Judge, Goalpara in Title Appeal No. 4/2016 arising out of T.S. No. 92/2019. 2. The respondent, as plaintiff filed a suit (T.S. No. 1/1996) for declaration of right, title, and interest and recovery of possession in respect of the suit land measuring 1 Katha 10 Lechas described in schedule-B of the plaint, which is part of schedule-A of the plaint. The case of the plaintiff was that one Abdul Qadir Mandal was the owner of a plot of land measuring 1 Bigha 0 Katha 1 Lecha covered by dag no. 684 and Khatian No. 101. Abdul Qadir sold the said land to Intaz Ali by registered deed on 12-02-1968 and Intaz Ali in turn sold the said land to his wife by registered deed on 16-03-1971. The wife of Intaz Ali sold the land to one Abdul Jalil Mandal by registered deed on 21-10-1975. Said Abdul Jalil Mandal has been possessing the land measuring 1 Bigha 0 Katha 1 Lecha covered by dag no. 684 as well as another plot of land covered by dag no. 683 and he was in possession of total land measuring 2 Bighas 0 Katha 1 Lecha covered by two dag no. 683 and 684 under Katian No. 73 and 101 respectively, Said Abdul Jalil Mandal sold 1 Bigha 1 Lecha of land covered by dag No. 684 to Asan Ali (defendant) and his brother Ainul Hoque and later on, the said land was equally partitioned among them. It was also stated that Abdul Jalil Mandal sold land measuring 1 Bigha of dag no. 683 to the plaintiff Abdul Hamid. Ainal Haque also sold 2 Kathas 10 Lechas of land to the plaintiff and accordingly, the plaintiff became the owner of total land measuring 1Bigha 2 Kathas 10 Lechas covered by both the dag no. 683 and dag no. 684. In the year 1995, the defendant dispossessed the plaintiff from the suit land measuring 1 Katha 10 Lechas as described in the schedule of the plaint. Hence, the plaintiff filed the suit for declaration of right, title and interest and recovery of possession of land measuring 1 Katha 10 Lechas described in schedule-B of the plaint. 3. 684. In the year 1995, the defendant dispossessed the plaintiff from the suit land measuring 1 Katha 10 Lechas as described in the schedule of the plaint. Hence, the plaintiff filed the suit for declaration of right, title and interest and recovery of possession of land measuring 1 Katha 10 Lechas described in schedule-B of the plaint. 3. The pleaded case of the defendant was that Jainab Bibi, wife of Intaz Ali gifted the land measuring 1 Bigha 1 Lecha of dag No. 684 to the defendant Asan Ali Mondal in the year 1972 by registered gift deed and therefore, she could not have sold the said land again to Jalil Mondal in the year 1975. Defendant also denied the sale of land by Abdul Jalil Mondal in favour of Asan Ali and Ainal Mondal as well as the sale deed dated 12-03-1993 allegedly executed by Ainal Hoque in favour of the plaintiff, stating that such deed was forged and illegal, inasmuch as, Ainal Hoque was mentally unsound and was not capable of executing the sale deed, and thereby denied the title of the plaintiff over the suit land. On the basis of the above pleadings, learned trial court framed the following issues :- 1. Whether there is any cause of action in the suit ? 2. Whether the suit is maintainable? 3. Whether the plaintiff/respondent has right, title and interest over the suit land ? 4. Whether the plaintiff/respondent is entitled to khas possession over the suit land ? 5. To what relief’s the parties are entitled ? 4. Upon hearing the parties, learned trial court decreed the suit for declaration of right, title as well as recovery of possession of the suit land measuring 2 Katha 10 Lechas of dag No.684. The defendant preferred an appeal, which was also dismissed. Aggrieved by and dissatisfied with the appellate decree, the defendant/appellant preferred the instant second appeal, which was admitted to be heard on the following substantial question of law : "Whether the courts below were justified in accepting the sale deed no. 424 dated 12.3.93 to be a valid document in deciding the suit ? 5. I have heard Mr. T. Rahman, learned counsel for the appellant and Mr. N. Dhar, learned senior counsel for the respondent. 6. 424 dated 12.3.93 to be a valid document in deciding the suit ? 5. I have heard Mr. T. Rahman, learned counsel for the appellant and Mr. N. Dhar, learned senior counsel for the respondent. 6. From the pleadings and evidence adduced by the parties it appears that the crux of dispute involved in this appeal pertains to the sale deed No. 242 dated 12-03-1993 executed by Ainal Hoque in favour of the plaintiff, whereby 2 Kathas 10 Lechas of land was sold by said Ainal Hoque to the plaintiff. Plaintiff in support of his claim duly proved the sale deed No. 242 dated 12-03-1993 as Ext.-2, which shows that Ainal Hoque sold 2 Kathas 10Lechas of land covered by dag No. 684. The plea of the defendant in the written statement was that the said sale deed allegedly executed by Ainal Hoque was collusive, as no such deed was executed by Ainal Hoque, inasmuch as, at the relevant time Ainal Hoque was suffering from mental illness and he was not competent to execute the sale deed because of unsoundness of mind. Therefore, execution of the sale deed no. 242 was not disputed. The genuineness of the deed has been disputed on the ground of incompetency of the vendor Ainal, inasmuch as, according to the defendant, Ainal Hoque was mentally unsound and he was not competent to execute the sale deed. Since the specific plea of the defendant was that the sale deed No. 242 purportedly executed by Ainal Hoque was collusive, as the vendor Ainal Hoque was not competent to execute the sale deed because of suffering from mental illness, burden to prove such plea was necessarily on the defendant Apparently no evidence was adduced by the defendant to substantiate the plea, that Ainal Hoque was suffering from mental ailment and he was not in a position to execute the sale deed. Having considered the evidence on record, learned trial court held as under : "I have gone through the evidence adduced by the defendant, but it appears that the burden of proving the fact of unsound mind of Ainal Hoque has not been discharged properly. It is also not on record whether the proforma defendant is still unsound of mind." 7. Having considered the evidence on record, learned trial court held as under : "I have gone through the evidence adduced by the defendant, but it appears that the burden of proving the fact of unsound mind of Ainal Hoque has not been discharged properly. It is also not on record whether the proforma defendant is still unsound of mind." 7. Since no evidence was adduced by the defendants in support of their plea, that Ainal Hoque, the vendor of the sale deed No. 242, was suffering from unsoundness of mind and therefore, incapable of executing the sale deed, the findings of the courts below accepting the sale deed No. 242, executed by Ainal Hoque to be genuine document cannot be faulted. Accordingly, the substantial question of law is answered in affirmative and against the appellant. 8. Learned counsel for the appellant, Mr. T. Rahman referring to the pleadings and the description of the suit land contended, that as per pleadings, the plaintiff alleged that the defendants dispossessed the plaintiff from 1Katha 10Lecha of land and also sought for recovery of possession of the said 1Katha 10 Lecha of land described in schedule-B of the plaint. However, the learned courts below passed the decree for recovery of possession of 2 Kathas 10 Lechas of land by evicting the defendants therefrom, which was apparently beyond the pleadings and therefore, no such relief could be granted by the courts below for eviction of the defendant from 2 Kathas 10 Lechas of land, submits Mr. Rahman. The submission of the learned counsel for the appellant appears to be preponderous, inasmuch as, the clear pleading of the plaintiff was that the defendant dispossessed the plaintiff from 1 Katha 10 Lechas of land, which has been specifically described in the plaint and relief of recovery of possession was also sought in respect of 1 Kathas 10 Lechas of land. However, the learned trial court passed the decree for recovery of possession in respect of 2 Kathas 10 lechas of land, which was apparently beyond the pleadings. It is the trite law, that court cannot grant a relief beyond the pleadings. Learned senior counsel, Mr. However, the learned trial court passed the decree for recovery of possession in respect of 2 Kathas 10 lechas of land, which was apparently beyond the pleadings. It is the trite law, that court cannot grant a relief beyond the pleadings. Learned senior counsel, Mr. Dhar for the respondent, also very fairly contended, that the judgment and decree passed by the courts below does not show as to why such a decree of recovery of possession over 2 Kathas 10 Lechas of land was granted, when apparently there was no pleadings or prayer for such relief. Therefore, Mr Dhar contended that he has no objection in modifying the decree to that extent, so as to bring it within the limit of the pleadings. When evidently the plaintiff neither stated in the pleadings regarding his dispossession from 2 Kathas 10 Lechas of land nor sought recovery of possession in respect of 2 Kathas 10 Lechas of land, the judgment and decree passed by both the courts below for recovery of 2 Kathas 10 Lechas of land by evicting the defendants appears to be beyond the pleadings and as such, the decree to that extent deserves to be modified. Accordingly, the judgment and decree passed by the learned courts below as regards recovery of possession is modified to the effect, that the plaintiff is entitled to recovery of possession in respect of 1 Katha 10 Lechas of land described in schedule-B of the plaint. As regards the decree of declaration no interference is called for. 9. In view of the above discussion, the appeal is partly allowed with the modification in the decree as indicated above. The decree to be prepared accordingly. 10. No cost. 11. Send back the LCR.