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2019 DIGILAW 415 (GAU)

Isteyaque Ahmed Ansari v. Mahammad Quddus

2019-04-02

PRASANTA KUMAR DEKA

body2019
JUDGMENT : PRASANTA KUMAR DEKA, J. Heard Mr. P.K. Kalita, learned Senior Counsel assisted by Ms. T. Goswami, learned counsel for the appellants and Mr. A. Choudhury, learned counsel for the respondents. 2. The present appellants are the plaintiffs in Title Suit No. 1/2002 subsequently renumbered as Title Suit No. 54/2006 in the Court of learned Civil Judge (Sr. Division) Lakhimpur which was filed against the present respondent for declaration of right, title, interest and recovery of possession after evicting the defendants respondents from the suit land. One late Jehili Hussain was the absolute owner of the land measuring 14 bighas 5 lechas covered by patta No. 124(old) of North Lakhimpur Sahar Part I Map. He died prior to the year 1945 leaving behind his four sons namely Hazarat Hussain, the father of the plaintiff appellant Nos. 1 and 2, Nabi Hussain, the father of defendant respondent No. 1, Jainuddin Ahmed and Md Raijuddin @ Yazuddin Ahmed father of plaintiff appellants No. 3 to 8. The said land devolved upon the said 4(four) sons of late Jehili Hussain. Nabi Hussain, the father of defendant respondent No. 1 alongwith Jainuddin sold their shares by executing a registered sale deed. As a consequence of said sale transaction, Jainuddin and Nabi Hussain were left with no title nor any right over the portion which fell in the shares of Hazarat Hussain and Md Raijuddin @ Yazuddin Ahmed i.e. predecessor-in-interest of the plaintiffs appellants. Nabi Hussain, the father of the defendant respondent No. 1 used to visit Lakhimpur since the year 1947. The fathers of the plaintiffs appellants allowed him to stay alongwith his son defendant respondent No. 1 in a room since the year 1974 over the land under the remaining shares of fathers of plaintiffs appellants. After the death of predecessor-in-interest of plaintiffs appellants, the defendant respondent No. 1, son of Nobi Hussain tried to mutate his name over the land under possession of the plaintiffs appellants who in turn inherited from their respective father. 3. An eviction suit was filed against the defendant appellant No. 1 and his father which was registered as Title Suit No. 52/1982. However the said suit was withdrawn on 22.2.1995 with leave to file fresh suit subject to the payment of cost of Rs. 2,000. The said order of withdrawal was passed by the learned Munsiff No. 1, North Lakhimpur. An eviction suit was filed against the defendant appellant No. 1 and his father which was registered as Title Suit No. 52/1982. However the said suit was withdrawn on 22.2.1995 with leave to file fresh suit subject to the payment of cost of Rs. 2,000. The said order of withdrawal was passed by the learned Munsiff No. 1, North Lakhimpur. During the pendency of said Title Suit No. 52/1982 the defendant respondent No. 1 alongwith his father instituted Title Suit No. 27/1987 in the court of learned Civil Judge (Sr. Divn), North Lakhimpur. The said suit was for declaration of right, title and interest for the suit land measuring 1 bigha 2 kathas 10 ½ lechas under periodic patta No. 124 of various dag numbers. The basis of the claim of the said suit land, which is the subject matter in the present Title Suit No. 54/2006 filed by the present plaintiffs appellants, was on the basis of ‘Hiba’ purportedly to the extent of 1/4th share out of remaining land of the suit patta by the purported donor Hazarat Hussain (father of plaintiffs appellants No. 1 and 2) in favour of the present defendant respondent No. 1. The contention therein is that Jehili Hussain had landed property in Bihar and the said land was mortgaged by Jehili Hussain. In order to redeem the said mortgaged property after the death of Jehili Hussain, the sons decided to sell the total land of Jehili Hussain at Lakhimpur including the suit land. Nabi Hussain and Jainuddin were present at the time of sale at Lakhimpur and as such they executed the registered sale deed to the extent of their shares. There was an understanding thereafter that Nabi Hussain alongwith the brother sold their shares in order to recover the joint family property as such they would be given their respective shares over the left over land at Lakhimpur. However, said suit was dismissed. Title Appeal No. 4/1998 was filed which was also rejected vide judgment dated 14.5.2000. The present suit is filed by the plaintiff appellant No. 3 on the strength of the authority granted by the respective legal heirs of predecessor-in-interests of the plaintiffs appellants viz Hazarat and Raijuddin for the reliefs as hereinabove stated. 4. However, said suit was dismissed. Title Appeal No. 4/1998 was filed which was also rejected vide judgment dated 14.5.2000. The present suit is filed by the plaintiff appellant No. 3 on the strength of the authority granted by the respective legal heirs of predecessor-in-interests of the plaintiffs appellants viz Hazarat and Raijuddin for the reliefs as hereinabove stated. 4. The defendants respondents filed their written statement raising the plea that the suit is barred by law of limitation being instituted more than 12 years after the admitted dispossession of the plaintiffs appellants pleaded in the plaint itself of T.S. No. 52/82. A feeble stand of adverse possession on the ground that the defendants respondents through their tenants occupied the suit land more than 50 years and as such the suit is barred by law of limitation and the plaintiffs appellants are to prove that the suit is filed within the period of limitation. The defendants respondents sought for dismissal of the suit. On the basis of pleadings the learned trial court framed the following issues: “1. Is there cause of action for the suit? 2. Whether the suit is not maintainable in its present form? 3. Whether the suit is barred by limitation? 4. Whether the suit is bad for multifariousness? 5. Whether the Power of Attorney of plaintiff No. 1 in favour of the plaintiff Mehfooz Alam is legally valid and whether the other plaintiffs executed any Power of Attorney in favour of plaintiff Mehfooz Alam? 6. Whether the plaintiffs have right, title and interest over the suit land? 7. Whether the defendants are trespasser on the suit land by staying over it inspite of serving eviction notices? 8. To what relief/reliefs the parties are entitled to?” 5. Both sides adduced oral and documentary evidence. The learned trial court took up the issue No. 3 as to whether the suit is barred by limitation. The trial court considered the evidence of plaintiff appellant No. 1 who in cross examination admitted that the suit land was the subject matter of Title Suit No. 52/1982 for eviction of defendants respondents and the suit was withdrawn after 13 years. The court below appreciated the fact of withdrawal of Title Suit No. 52/1982 alongwith the leave granted to file a fresh suit. The court below appreciated the fact of withdrawal of Title Suit No. 52/1982 alongwith the leave granted to file a fresh suit. As there was an admission by the plaintiff appellant No. 1 that no fresh suit was filed as per order as such Section 14 of the Limitation Act shall have no bearing on such withdrawal. 6. Citing the period under Article 65 of the Limitation Act 1963, the trial Court came to the finding that the defendant respondent No. 1 and his father instituted Title Suit No. 27/1987 against the plaintiffs appellants for declaration of title and for permanent injunction and the suit was dismissed on 18.8.1998. After scrutiny of the record of Title Suit No. 27/1987, Ext.9, the court below held that the plaintiffs appellants were aware with respect to the filing of the suit and filed written statement also. The trial court also noticed that the defendant respondent No. 1 alongwith his father sought for title over the suit land on the basis of gift and concluded that the same was adverse to the title of the present plaintiffs appellants. So the plaintiffs appellants were fully aware of raising of adverse title against the plaintiffs appellants and as such there was necessity on the part of the plaintiffs appellants to file counter claim against the claim of the defendant respondent in Title Suit No. 27/1987. But as the suit was filed after 14 years i.e. 15.2.2002, the suit is barred under Article 65 of the Limitation Act 1963 and the title of the plaintiffs appellants extinguished due to adverse possession of defendant. Amongst other issues the trial court took up issue No. 5 and recorded that there was an objection in respect of execution of the authority/deed of power attorney on behalf of the plaintiff appellant No. 3 by the other plaintiffs appellants. Considering the admission of PW1(plaintiff appellant No. 3) in the cross examination that none of the executants of the deed of power of attorney were examined as such the court disbelieved the authority given to the plaintiff appellant No. 3 and finally the suit was dismissed. 7. Title Appeal No. 15/2007 was filed by the plaintiffs respondents challenging the judgment passed by the learned trial court in the court of learned Civil Judge, Lakhimpur. The same was dismissed vide judgment dated 20.3.2008. 7. Title Appeal No. 15/2007 was filed by the plaintiffs respondents challenging the judgment passed by the learned trial court in the court of learned Civil Judge, Lakhimpur. The same was dismissed vide judgment dated 20.3.2008. Subsequent thereto this second appeal was filed by the plaintiffs appellants which was admitted on the following substantial questions of law on 5.9.2008: “(i) Whether in absence of proper pleading and proof of all the elements of adverse possession and also in absence of any issue on adverse possession, the learned Courts below were justified in dismissing the plaintiffs' suit on the ground of adverse possession of the defendant? (ii) Whether the learned Courts below were justified in not applying Section 14 of the Limitation Act while deciding the issue on the question of Limitation.” 8. Mr. Kalita, learned Senior counsel submits that the finding in respect of the issue No. 3 and Issue No. 1 are not proper. It is his contention that initially the suit was filed by the plaintiffs appellants in the year, 1982 thereby claiming right, title, interest over the suit land against the same set of defendants respondents who filed Title Suit No. 27/1987 claiming their right, title and interest over the same suit land. The suit filed by plaintiffs appellants continued till the year 1995 in which year on the basis of the application under Order 23 Rule 3 CPC, the trial court was satisfied to grant the leave to withdraw the said Title Suit No. 52/1982 and considering that the suit was impregnated with formal defect granted the leave to file it afresh. The issue in respect of claims and counterclaim of right, title and interest over the suit land by the parties to this present appeal continued till the year, 1995 so far Title Suit No. 52/1982 is concerned and on the other hand, Title Suit No. 27/1987 continued till the year 2001 in which year Title Appeal No. 4/1998 filed by the defendants respondents against the dismissal of their suit was dismissed. 9. The appeal is continuation of the suit and at least till the year, 2001 the dispute continued in the court of law and the plaintiffs appellants did not give up their claim in the court of law. 9. The appeal is continuation of the suit and at least till the year, 2001 the dispute continued in the court of law and the plaintiffs appellants did not give up their claim in the court of law. Section 27 of the Limitation Act 1963 stipulates extinguishment of right to property by instituting suit for possession only on the determination of the period prescribed by the Limitation Act, 1963. In the present case in hand Article 64 and 65 prescribe for the relief of recovery of possession. In the present case the plaintiffs appellants claimed their right, title and interest on the basis of title derived by way of inheritance and as such Article 65 will govern the period of limitation for filing the suit by the plaintiffs appellants. As per Mr. Kalita the said period of 12 years under no circumstances could be held by the courts below to be extinguished as both the parties were litigating for the title with respect to the suit land in the court of law. 10. It is further submitted that in order to bring home an issue of limitation on the basis of adverse possession the defendants respondents ought to have pleaded at least the date from which the possession of the defendants respondents over the suit land started adverse against the plaintiffs appellants. In addition to that animus possessendi is one of the ingredients which is required to be pleaded and the manner in which they entered into the suit land and what intent they possessed at the time of entry into the suit land. Those ingredients are not at all pleaded. 11. Opposing the submission of Mr. Kalita, on the other hand Mr. Choudhury submits that the plaintiffs appellants started litigating for recovery of possession of the suit land since the year 1982. The defendants respondents took stand in the written statement in Title Suit No. 52/1982 that they possessed the suit land prior to 1982. Referring to the judgment passed by the first appellate court in Title Appeal No. 4/1998 against the judgment of dismissal of Title No. 27/1987, Mr. Choudhury further points out that the fact of dispossession prior to 1982 is established as per the judgment of Title Appeal No. 4/1998. Referring to the judgment passed by the first appellate court in Title Appeal No. 4/1998 against the judgment of dismissal of Title No. 27/1987, Mr. Choudhury further points out that the fact of dispossession prior to 1982 is established as per the judgment of Title Appeal No. 4/1998. Cause of Action in filing the present suit by the plaintiffs appellants also goes back prior to 1982 and as such admittedly the period of 12 years had already expired much before filing of the present suit. He further submits that the plaintiffs appellants cannot take the benefit u/s 14 of the Limitation Act, 1963 inasmuch as there is no finding that the suit filed by the plaintiffs appellant in the court had no jurisdiction to decide the dispute raised by the plaintiffs respondents. Supporting that there are specific pleadings in the written statement more specifically in para No. 8 that the defendant respondent No. 1 was in possession of suit land openly and adversely against the plaintiffs by himself and through his tenants for more than 50 years till the date of filing the written statements without acknowledging the right, title and interest of the plaintiff appellant over the suit land in any manner whatsoever, the said pleading is sufficient in order to take note of the specific defence plea by the courts below. The defence of the defendants respondents was rightly taken into consideration by the courts below and as such the findings of both the courts below are proper. 12. I have given due consideration to the submissions of the learned counsel. The case record of Title Suit No. 52/1982 in the court of learned Munsiff No. 1 North Lakhimpur was exhibited by the defendant respondent as Ext. Ka (i). Similarly the case record of Title Suit No. 27/1987 was also exhibited by the plaintiffs appellants as Ext.9. The exhibits are sufficient for this court in deciding the second appeal to take note of the pleadings of the parties to this appeal in their respective suits. The Title Suit No. 52/1982 was filed by the predecessor-in-of some of the plaintiffs appellants and the son of late Hazarat Hussain against the son of Nabi Hussain including him. Md. Nabi Hussain is one of the brothers of the predecessor-in-interests of the plaintiffs therein Title Suit No. 52/1982 who are the plaintiffs appellants in the present Title Suit No. 54/2006. Md. Nabi Hussain is one of the brothers of the predecessor-in-interests of the plaintiffs therein Title Suit No. 52/1982 who are the plaintiffs appellants in the present Title Suit No. 54/2006. It is pleaded that the said defendant Nos. 1 and 2 are the distant relatives of the plaintiffs appellants who came in search of work from Bihar in the year 1974. The son of Nabi Hussain who is one of the present defendants respondents was allowed to live with the deceased Hazarat Hussain. The said defendant respondent had no title over the suit land. The father of the defendant No. 1 (in Title Suit No. 52/1982) came to stay with his son immediately after the death of Hazarat Hussain in the year 1980. The defendant respondent No. 1 claimed that late Hazarat Hussain the predecessor in interest of some of the present plaintiffs appellants gifted some land to him. On the basis of said plea the said defendant respondent No. 1 sought for mutating his name over the suit land on the false plea as such the Title Suit 52/1982 was filed seeking eviction of said defendant respondent No. 1 from the suit land. 13. In the written statement, the defendant respondent No. 1 in Title Suit No. 52/1982 took the plea that late Jehili Hussain at the time of death was indebted by creating mortgage of the land situated in Bihar. In order to repay the said loan ½ share of patta land of periodic patta No 124 at North Lakhimpur and land under periodic patta No. 50 had to be sold on 13.7.1945. The remaining land of patta No. 124 was included in the patta No. 679 of North Lakhimpur. In fact the total land covered by patta No. 124 and Patta No. 50 were supposed to be sold at a consideration of Rs. 5500/- but as out of four brothers only two were present at North Lakhimpur, ½ share of the said patta No. 124 and 50 could be sold at Rs. 2550/-. By the sale consideration received, the property at Bihar was redeemed and after such redemption the said properties were enjoyed by all the brothers equally. The sale proceed against the sale of land at North Lakhimpur was utilised for repayment of father's loan. 2550/-. By the sale consideration received, the property at Bihar was redeemed and after such redemption the said properties were enjoyed by all the brothers equally. The sale proceed against the sale of land at North Lakhimpur was utilised for repayment of father's loan. As such all the brothers agreed to share the remaining property equally after leaving the sold out ½ share of the patta even if the patta stood in the name of two brothers i.e the predecessors of plaintiffs appellants. The defendants respondents alongwith his father were entitled to ¼ share of the remaining land under patta No. 124. On the basis of the said plea and the defendants' defence therein, the defendant respondent claimed 1 bigha 2 kathas 8 ¾ lechas of land purportedly gifted by Hazarat Hussain, one of the brothers of Nabi Hussain who did not execute the sale deed in the year, 1945. From the said defence it can be inferred that the said 1 bigha 2 kathas 8 ¾ lechas of land is the ¼ share entitled by Nobi Hussain the father of the defendant respondent No. 1 being one of the brothers who sold his share alongwith another brother by registered sale deed in the year 1945 in order to repay the father's loan. Further it can be inferred that the plea of gift was taken in the written statement as the names of only two brothers including Hazarat Hussain, the purported donor were recorded in the jamabandi. The defendant respondent No. 1 alongwith his father Nabi Hussain, on the similar plea taken in the written statement in Title Suit No. 52/1982 filed T.S. No. 27/1887 in respect of the same suit land measuring 1 bigha 2 kathas 10 ½ lechas for declaration of right, title and interest and for permanent injunction. 14. Title Suit No. 1/2002 subsequently renumbered as 54/2006 i.e. the present suit is filed by the plaintiffs appellants pleading similar factual matrix pleaded in the earlier suits. The defendants respondents in their written statement as hereinabove mentioned took the plea that the suit is barred by law of limitation and adverse possession. 15. 14. Title Suit No. 1/2002 subsequently renumbered as 54/2006 i.e. the present suit is filed by the plaintiffs appellants pleading similar factual matrix pleaded in the earlier suits. The defendants respondents in their written statement as hereinabove mentioned took the plea that the suit is barred by law of limitation and adverse possession. 15. In the pleadings of the written statement in T.S. 54/2006 nowhere it has been pleaded the date of dispossession of the plaintiffs appellants rather it is the pleadings that the plaintiffs appellants admitted in their plaint in Title Suit No. 52/1982 that the defendant respondent No. 1 alongwith his father Nabi Hussain dispossessed them from the suit land in 1982 by fraudulent means. No where it has been pleaded to infer the animus possessendi i.e. their entry into the suit land with hostility with an intent to dispossess the plaintiffs appellants. On the face of such pleadings in T.S. No. 54/2006 the defendants respondents in their written statement in Title Suit No. 52/1982 admitted their entry to the suit land as a permissive possessor by way of gift made by Hazarat Hussain. Not only that, they are claiming shares thereby admitting the plaintiffs appellants to be the co-sharers alongwith the defendants respondents. 16. In order to claim adverse possession against the co-sharers the “animus possessendi” is one of the ingredients and it must be pleaded that they totally ousted the co sharers from the land under their possession and such date of dispossession/ouster must be pleaded. The plea of adverse possession cannot be inferred inasmuch as in the written statement in Title Suit No. 52/1982 and the plaint in Title Suit No. 27/1987 the defendants respondents took the plea that Hazarat Hussain, one of the co-sharers gifted 1 bigha and odd to the defendant respondent No. 1 in order to compensate the share of his father Nabi Hussain who sold his share in order to redeem the mortgage created by their common father. Accordingly there is no pleading fulfilling the requirements in order to take the defence of adverse possession against the co-sharers. As the claims of the defendants respondents are on the basis of gift by Hazarat Hussain the plea of adverse possession does not come at all. Accordingly there is no pleading fulfilling the requirements in order to take the defence of adverse possession against the co-sharers. As the claims of the defendants respondents are on the basis of gift by Hazarat Hussain the plea of adverse possession does not come at all. Further even if it is considered to be a case amongst the co-sharers there must be pleading in the written statement of total ouster of the plaintiffs appellants from the suit land. Both the learned courts below misdirected in appreciating the whole case including the factual matrix. 17. Accordingly I am satisfied to answer the substantial question of law No. 1 in favour of the plaintiffs appellants. The substantial question of law No. 2 in my considered opinion, needs to be decided against the plaintiffs appellants which I do accordingly inasmuch as the application of Section 14 of the Limitation Act 1963 comes into play only when there is a finding that the courts below had no jurisdiction to decide the dispute in T.S. No. 52/1982. Both the earlier suits were filed in proper courts. Accordingly this second appeal succeeds so far the substantial question of law No. 1 is concerned. The courts below totally misdirected while deciding the matter in its entirety and I deem it fit to set aside the judgment and decree passed by first appellate court and remand the Title Appeal No. 15/2007 to the court of learned Civil Judge, Lakhimpur to decide it afresh by considering the evidence on record and keeping in view the observation made in this second appeal. No costs. 18. Send back the LCR. Parties to this appeal shall appear in the court of learned Civil Judge, North Lakhimpur on 8.5.2019 where after the court below shall decide the appeal within a period of three months from the date of appearance. This second appeal stands disposed of accordingly.