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2020 DIGILAW 21 (GAU)

Mustt Sakina Khatun v. Golam Sarwar Khan

2020-01-07

ACHINTYA MALLA BUJOR BARUA

body2020
JUDGMENT Achintya Malla Bujor Barua, J. - Heard Mr. R. Sarma, learned counsel for the appellants. Also heard Mr. A. Choudhury, learned counsel for the respondents. 2. The appellants herein being the legal heirs of the original plaintiff Moziran Nessa continued with T. S. 34/2002 which, amongst others, was instituted with the following prayer "(c) A decree for setting aside the fraudulent Chitha mutation dated 6.5.96 and 29.7.97 in connection with Misc. Case No. 61/96-97 of Circle Officer, Kalgachia Revenue Circle by declaring it null and void, inoperative in law and to send a precept of the said Revenue authority to correct the Revenue Record by restoring the plaintiffs' mutation and patta." 3. Without going into any other issues that has been raised it is apparent that the appellant plaintiffs had prayed for a decree for setting aside the Chitha mutation the dated 06.05.1996 and 29.07.1997 which were made pursuant to the orders of the Circle Officer, Kalgachia Revenue Circle in connection with Misc. Case No. 61/96-97. Along with the said prayer, the appellant plaintiffs also prayed for a declaration of their right, title, interest and possession over the suit land and also for a decree for Khas possession of the suit land by evicting the respondent defendants. 4. The claim of the appellant plaintiffs in the plaint was that they are the owners of the suit land concerned whereas the respondent defendants in their written statement had taken a stand that under the said sale deed the original plaintiff Moziran Nessa had sold the 2 Kathas and 14 Lechas out of a bigger plot of 1 Bigha 7 Lechas, which is the suit land. In course of the trial the following issues were framed: 1) Whether the suit is barred by limitation? 2) Whether Maziram Nessa sold 2 K. 14 L of the suit land to defendant No. 1 and 2 by executing a unregistered deed and delivered possession to them during her life time. 3) Whether the plaintiffs have right, title and interest over the suit land? 4) Whether the plaintiffs were forcibly dispossessed from the suit land by the defendants? 5. By the judgment dated 11.03.2005 in Title Suit No. 34/2002, the issue No. 2 was decided in favour of the appellant plaintiffs on the ground that the plea of the land having been sold to respondent defendants based on the unregistered sale deed was unacceptable. 6. 5. By the judgment dated 11.03.2005 in Title Suit No. 34/2002, the issue No. 2 was decided in favour of the appellant plaintiffs on the ground that the plea of the land having been sold to respondent defendants based on the unregistered sale deed was unacceptable. 6. The issue No. 3 on the question of right, title and interest of the appellant plaintiffs over the suit land was also decided in favour of the appellant plaintiffs, again on the ground that the claim of the respondent defendants of having purchased the suit land from the appellant plaintiffs by virtue of an unregistered sale deed was unacceptable in law. The issue No. 4 as on the question whether the appellant plaintiffs were forcibly dispossessed from the suit land was also decided in favour of the appellant plaintiffs by taking note of the result of the proceeding under Section 145 CrPC under which the suit land was also attached. 7. On appeal filed by the respondent defendants being T. A. No. 30/2005, the learned Civil Judge, Borpeta by the judgment dated 20.09.2006 had reversed the judgment of the learned trial Court. In paragraph 15 of the judgment of appellate Court, a conclusion was arrived that the unregistered Katcha deed although not tenable in law, can be used for a collateral purpose. 8. No explanation is forthcoming in the judgment as to what is to be understood to be a collateral purpose, if the unregistered sale deed is unacceptable in law. 9. A conclusion was also drawn that the appellant plaintiff witnesses have admitted that the suit land was in possession of the respondent defendants for the last 5-6 years, therefore no dispossession of the appellant plaintiffs could have taken place on 15.02.2002. 10. But the at the same time the learned appellate Court had also held as follows: "on perusal of the oral and documentary evidence of the parties specially relying on Ext. 1 it is found very clear that the appellant/defendant Nos. 1 and 2 are the pattadars of the suit land and their possession over the land are admitted by the plaintiff/respondents. Accordingly it can be held that at present the plaintiff/respondents has no right, retile, interest and possession over the suit land. Though the plaintiff/respondents claimed the right, title and interest over the suit land but they failed to prove it by adducing reliable oral and documentary evidence. Accordingly it can be held that at present the plaintiff/respondents has no right, retile, interest and possession over the suit land. Though the plaintiff/respondents claimed the right, title and interest over the suit land but they failed to prove it by adducing reliable oral and documentary evidence. " 11. Apparently, the learned appellate Court had relied upon the Ext. 1 to arrive at its conclusion that the respondent dependants No. 1 & 2 are Pattadars of the suit land and their possession over the land are admitted by the appellant plaintiffs and therefore, it is to be held that the appellant plaintiffs have no right, title interest and possession over the suit land. Accordingly, the claim for right, title and interest over the suit land by the appellant plaintiffs has to fail. 12. We have taken note of that prayer (c) of the plaint clearly seeks for a decree for setting aside the mutation orders dated 06.05.1996 and 29.07.1997. The list of exhibit shows that Ext. 1 is the mutation orders 13. If being so, the learned appellate Court had relied upon the mutation order of 06.05.1996 and 29.07.1997 to deny the right, title and interest of the appellant plaintiffs in a circumstance where the mutation orders itself are under challenge. 14. In our view it would be fundamentally incorrect to rely upon the orders that are challenge in a litigation without adjudicating upon its correctness and validity and to make it a basis for declaring the right, title and interest of either of the parties. As the learned appellate Court had made the two mutation orders to be its basis for arriving at its conclusion, which are under challenge without adjudicating on their validity, we accordingly, interfere with the appellate judgment dated 20.09.2006 of the learned Civil Judge, Borpeta in T.A. No. 30/2005 and remand the matter back to the learned Civil Judge for a fresh adjudication of the appeal preferred by the respondent defendants herein. 15. The second appeal stands allowed in the above terms. 16. Sent back the LCR. 17. The parties to appear before the learned Civil Judge, Borpeta on 11.03.2020.