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2020 DIGILAW 22 (GAU)

Amanat Hussain v. Sahida Begum

2020-01-07

ACHINTYA MALLA BUJOR BARUA

body2020
JUDGMENT 1. Heard Mr. BD Deka, learned counsel for the appellants and Mr. AD Choudhury, learned counsel for the respondent. 2. The respondent herein as plaintiff had instituted the Title Suit 10/1994 with the following prayers:- (a) For a declaration that the plaintiff has acquired right and title to the suit land described in the schedule A & B; (b) For a declaration that the plaintiff has/had possession over the suit land prior to her dispossession by the defendants on 7.2.94; (c) For khas possession of the suit land of Schedule-B by evicting the defendants, their agents, workmen, servants, women etc from the suit land and also by removing and demolishing all structures and houses therefrom; (c)(i) For a decree for mesne-profits at the rate of Rs.1000.00 (one thousand) per month with effect from 1-3-94 with interest @ Rs.15% per annum to be recovered from the defendants jointly and severally for which the plaintiff shall pay proper court fees on the decreetal amount/amounts at the time of execution of the decree; (d) For injunction restraining the defendants from disposing of the suit land by sale or gift or lease or mortgage and also from raising further houses, structures etc. either of permanent or temporary nature on the suit land or on any part of it; (e) For costs of the suit and other relief or reliefs to which the plaintiff is entitled to under law and equity. 3. According to the respondent/plaintiff they had purchased a land measuring 1K-12L in the years 1982 and 1984 by two registered Sale Deeds bearing numbers 4398 dated 25.11.1982 and 1965 dated 19.03.1984. It is stated that the two Sale Deeds were executed on behalf of the then minors namely Amanat Hussain, Adalat Hussain and Ebadat Hussain all being sons of late Abdul Jabbar, who are also arrayed as the defendants No.2, 3 and 4 respectively. Having so purchased, the plaintiff/respondent was delivered the khas possession of the land and they have been enjoying the land without any interference. The suit was instituted on the basis of a cause of action, which arose on 07.02.1994 in which the defendants/appellants were said to have trespassed into the purchased land and raised two temporary sheds. In the circumstance, a declaration was sought for that the plaintiff/respondent has acquired a right, title and interest over the suit land, along with the other prayers. 4. In the circumstance, a declaration was sought for that the plaintiff/respondent has acquired a right, title and interest over the suit land, along with the other prayers. 4. The plaintiff/respondent claimed their right, title and interest over the suit land on the basis of the two aforementioned registered Sale Deeds. In paragraph-9 of the written statement of the appellants/defendants, amongst others, a stand was taken that at the time when the aforementioned two Sale Deeds were executed, the defendants No.1, 3, 4 and 5 were minors. The defendants on the other hand instituted Title Suit 75/1994 claiming for a declaration that the two registered Sale Deeds of 1982 and 1984 are unsustainable in law. 5. Both the Title Suits were analogously decided and by the common judgment dated 23.12.2002, the Title Suit 10/1994 of the present respondent stood dismissed, whereas the Title Suit 75/1994 of the present appellants was allowed. Being aggrieved, the respondent preferred Title Appeal 04/2004 in the Court of the learned Civil Judge, Senior Division, Goalpara against the judgment in Title Suit 10/1994 and Title Apepal 03/2004 against the judgment in Title Suit 75/1994. By the common judgment dated 28.05.2004, the judgment of the learned trial Court stood reversed. In respect of Title Suit 75/1994 preferred by the present appellants, the learned appellate Court dismissed the suit by arriving at a conclusion that under Article 60 of the Limitation Act, 1963 , the suit preferred by the appellants against the two Registered Sale Deeds was time barred. In respect of Title Suit 10/1994, the learned appellate Court reversed the judgment of the trial Court and declared right, title and interest of the respondent/plaintiff based upon the two registered Sale Deeds of 1982 and 1984 as well as provided for the recovery of possession. 6. Being aggrieved by the two judgments of the learned appellate Court in TA 04/2004 and TA 03/2004, the RSA 193/2004 was preferred against the judgment rendered in TA 03/2004 and RSA 194/2004 in respect of the judgment rendered in TA 04/2004. By an earlier common judgment of this Court dated 29.07.2015 in RSA 193/2004 and RSA 194/2004, both the appeals stood dismissed and the judgments of the learned appellate Court were upheld. Against the part of the judgment dated 29.07.2015 in RSA 194/2004, a review petition being Review Petition No.44/2017 was preferred by the appellants. By an earlier common judgment of this Court dated 29.07.2015 in RSA 193/2004 and RSA 194/2004, both the appeals stood dismissed and the judgments of the learned appellate Court were upheld. Against the part of the judgment dated 29.07.2015 in RSA 194/2004, a review petition being Review Petition No.44/2017 was preferred by the appellants. By the judgment dated 14.09.2018 in Review Petition 44/2017, the common judgment dated 29.07.2015 stood modified to the extent that in spite of the dismissal of the TS 75/1994 claiming for cancellation of the two Registered Sale Deeds of 1982 and 1984, the appellants herein would be at liberty to take any such stand that may be available to them against the two registered Sale Deeds as defendants in Title Suit No.10/1994. In other words, the plaintiff in Title Suit 10/1994 would have to prove their case on their own merit. 7. As a result of the judgment dated 14.09.2018 in Review Petition 44/207, the RSA 194/2004 has come up for its fresh consideration. 8. Heard the learned counsel for the parties. 9. Without going into the details of the rival contentions being raised by the parties, it is taken note of that Title Suit 10/1994, which resulted in RSA 194/2004 is for a declaration of right, title and interest of the respondent/plaintiff in respect of the land purchased by them through the two registered Sale Deeds of 1982 and 1984. 10. Fundamentally in order to claim a declaration of right, title and interest over any plot of land based upon a registered Sale Deed, it would be a requirement of the plaintiff concerned to firstly prove the registration and existence of the Sale Deed, by which the land in question was purchased. Ordinarily, without there being any further issue, if the plaintiff establishes the execution of the respective Sale Deeds and proves its existence, would be sufficient for a declaration in their favour as regards the right, title and interest over the land involved in the registered Sale Deeds. 11. Ordinarily, without there being any further issue, if the plaintiff establishes the execution of the respective Sale Deeds and proves its existence, would be sufficient for a declaration in their favour as regards the right, title and interest over the land involved in the registered Sale Deeds. 11. But when the land purchased in the registered Sale Deeds also involves a question of law whether under the relevant law such sale would be permissible or such sale would be a valid sale, there would also be a further requirement for the plaintiff to prove before the Court that the sale of the land incorporated in the registered Sale Deeds were a valid and acceptable under the law. 12. In the instant case, through the evidence on record, the plaintiff in Title Suit 10/1994 had proved to the satisfaction of the Court that the two respective registered Sale Deeds were executed and they are in existence. But as the defendants No.2 and 3 in their written statement had taken a definite plea that when the two registered Sale Deeds were executed, they were minors and under the principle of Mohammadan law by which the parties are governed, a sale of land of the minors are regulated by the relevant provisions of law, we are of the view that apart from proving the registration and execution of the two respective Sale Deeds, a further requirement would also be there to establish that the respective sales incorporated in the two Sale Deeds were also permissible under the law or in other words that the two sales were a valid sale under the relevant provisions of law. 13. As the subsequent question as to whether the sale incorporated in the two registered Sale Deeds were a valid sale or that they were permissible under the relevant provisions of the law governing the parties were not gone into by the learned trial Court as well as by the learned appellate Court, we are of the view that an appropriate adjudication for a declaration of the right, title and interest of the plaintiff over the suit land cannot be made without adjudicating the said question. 14. 14. For the aforementioned reason, we are of the view that the matter requires to be remanded back to the trial Court for a proper adjudication on the question whether the sale of the land incorporated in the two registered Sale Deeds bearing numbers 4398 dated 25.11.1982 and 1965 dated 19.03.1984 were otherwise permissible and valid under the law, which governs the respective parties. It is clarified that if the total land purchased by the plaintiff was beyond the respective shares of the then minors, such land, which would be beyond the shares of the minors would not be governed by the requirement of this order and for the purpose the learned trial Court shall determine the respective shares of the minors. The appeal stands allowed to the extent indicated above.