High Court
Case Details
RSA 122/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL) This appeal by the defendant is directed against the judgment and decree dated 2 6.2.2002 passed by the learned Civil Judge (Sr. Div) Nagaon in Title Appeal No. 46/2000, allowing the appeal preferred by the plaintiffs, by setting aside the j udgment and decree dated 26.9.2000 passed in Title Suit No. 84/1993 by the learn ed Civil Judge (Jr. Div) No. 1, Nagaon whereby and whereunder the suit of the pl aintiffs was dismissed. 2. The respondents herein, as plaintiffs, instituted the suit for d eclaration of right, title and interest and confirmation of possession in respec t of land measuring 6 bighas covered by Dag No. 159 of periodic patta No. 215 an d 5 bighas covered by Dag No. 158 of periodic patta 75 totaling 11 bighas, more fully described in the schedule to the plaint, contending inter alia that the la nd measuring 210 bighas 12 lechas originally belonged to the predecessor-in-inte rest of Masur Ali, Farmuj Ali, Esa bibi, Abdul Khalek, Muslema bibi and Rahima B ibi amongst whom there was amicable partition and consequently land measuring 64 bighas 16 lechas and 18 bighas fell in the share of Masur Ali and Esa Bibi. It has further been pleaded that out of the said land Masur and Esa sold 18 bighas 10 lechas and 11 bighas, respectively, to some other persons, out of their share . The further pleaded case of the plaintiffs is that Abdul Mannaf, who is the so n of Masur, out of above 46 bighas left, has got 9 bighas 1 katha 19 lechas, out of which he has sold 2 bighas of land to some other persons. According to the p laintiffs the remaining land measuring 7 bighas 1 katha 19 lechas, therefore, be longed to Abdul Mannaf, son of Masur, which land was sold by Fatema Bibi, widow of Abdul Mannaf in favour of the plaintiffs Nos. 1, 2 and 3 by two registered de eds of sale both dated 4.4.1981 (Ext. 4 and Ext. 6). It has further been contend ed that since in the aforesaid two sale deeds, being Ext. 4 and Ext. 6, there we re mistakes in mentioning the dag numbers, the deeds of rectification dated 1.6. 1981 (Ext. 5) and 9.6.1981 (Ext. 7) were executed by Fatema Bibi. According to t he plaintiffs Fatema Bibi has sold the land on behalf of the minor also, she bei ng the guardian appointed by the Court in the Guardianship case. The further ple aded case of the plaintiffs is that Abdul Khaleque, Ajijur and Abdul Matlib, son s of Esa Bibi, who inherited 7 bighas of land, sold 3 bighas 3 kathas 9 1/3 lech as each, vide three sale deeds dated 11.5.1981 (Ext. 8) 11.5.1981 (Ext. 9) and 1 9.5.1981 (Ext. 10) in favour of plaintiff Nos. 4, 5; 9, 10 and 6 to 8, respectiv ely. The plaintiffs, therefore, have claim that they became the owner in respect of the aforesaid land by virtue of purchase from the legal heirs of Masur Ali a nd Esa Bibi, who had to file the suit, as aforesaid, in respect of 11 bighas of land as their possession was disturbed by the defendant.
Legal Reasoning
3. The defendant on receipt of the summons entered appearance and f iled the written statement denying the claim of the plaintiffs, contending inter alia that the heirs of Masur Ali and Esa Bbi have sold their share in the prope rty in favour of the defendant by executing four sale deeds dated 28.3.1980 (Ext . Kha), 28.4.1981 (Ext. Ga), 28.3.1980 (Ext. Gha) and 28.3.1980 (Ext. Ungo). Acc ording to the defendant vide Ext. Kha dated 28.3.1980 Ajab Bibi, wife of Masur A li, sold 2 bighas of land comprised in Dag No. 158 of Periodic Patta No. 75 and in Dag No. 159 of Periodic Patta No. 215; vide Ext. Ga dated 28.4.1981, Fatema B ibi, wife of Abdul Mannaf, who was the son of Masur Ali, sold 1 bigha 1 katha 10 lechas of land in Dag No. 159 of Periodic Patta 215, Dag No. 167, 168 of Period ic Patta No. 73; vide Ext. Gha sale deed dated 28.3.1980. Abdul Kuddus, another son of Masur Ali, sold 5 bighas of land in Dag No. 159 of Periodic Patta 215 and in Dag No. 158 of periodic patta No. 75 and vide Ext, Ungo sale deed dated 28.3 .1980. Abdul Rajek and Abdul Kuddus, sons of Masur Ali, sold 7 bighas of land in dag No. 159 of periodic patta No. 215 and in dag No. 158 periodic patta No. 75. The defendant, therefore, have claimed that they have purchased the land vide E xhibit kha, ga, gha and ungo from the successor-in-interest of Masur Ali. They h ave not claimed that they have purchased any land belonging to Esa Bibi. The def endant have also set up the plea that the suit land is the part of the land pur chased by them and since they have purchased the suit land at prior point of tim e than the plaintiffs, the plaintiffs cannot acquire right, title and interest b y virtue of the purchase at a subsequent point of time. 4. ues for determination: Based on the pleadings, the trial court framed the following iss (cid:28)1. Is the suit maintainable in its present form? 2. Whether the suit land has been described properly? 3. Whether the suit is barred by waiver, estoppel and acquiescen ce ? the suit land ? 4. Is the suit barred by limitation and adverse possession ? 5. Whether proper court fee has been paid ? 6. Whether the plaintiffs have any right, title and interest in 7. To what relief, if any, are the parties entitled ? (cid:29) 5. The trial court, upon appreciation of the evidence on record, bo th oral and documentary, initially decreed the suit of the plaintiffs vide judgm ent dated 25.11.1998 declaring the plaintiffs’ right, title and interest and als o confirmation of possession by holding that the plaintiffs have acquired such r ight by virtue of the sale deeds, Exts. 4 to 10. Being aggrieved, the defendant preferred Title Appeal No. 1/99 before the first Appellate Court which was allow ed vide judgment dated 22.09.1999, by setting aside the judgment and decree pass ed by the trial court and remanding the suit to the trial court for fresh decisi on by formulating three questions to be determined and also to appoint an Amin C ommissioner for that purpose, as the evidence on record was not sufficient to an swer the said questions. The relevant portion of the aforesaid judgment dated 22 .9.1999 is quoted below (cid:28)23. Thus, from the evidence on record it cannot be ascertained: (i) Whether the lands purchased by the plaintiffs are adjoining in one plot and it includes the suit land and whether the suit land has been cor rectly described? (ii) Whether the land purchased by the plaintiffs include the su it land was already purchased by defendant No. 1 and the vendors had no right to sell the suit land to the plaintiffs and (iii) Whether the suit land is in possession of defendant No. 1 and never possessed by the plaintiffs? 24. To ascertain these matters Amin Commissioner had to be appoi nted for its report on local investigation and survey of the suit land for a rea sonable and just decision of the suit. (cid:29) 6. The trial court, on remand, accordingly appointed the Amin Commi ssioner to survey the land to find out the factual position so as to answer the questions formulated by the first appellate court. The Amin Commissioner, based on the survey made, submitted his report dated 8.4.2000, which was accepted by t he Court and marked as Ext. W. The said report was proved by the Amin Commission er who has been examined as court witness No. 1. 7. The trial court, thereafter, passed the judgment dated 26.09.200 0 dismissing the suit of the plaintiffs by holding that since the plaintiffs cou ld not prove the partition of the land amongst the heirs of original owner and t he plaintiffs also could not prove that they have purchased the land from the su ccessor-in-interest of the original owner, there being contradiction between the pleadings in the plaint and the evidence adduced, the plaintiffs cannot acquire right, title and interest over the suit land. 8. The pertinent questions whether the land purchased by the plaint iffs and the suit land over which the plaintiffs claim the right, title and inte rest, is the same land and whether the vendors of the plaintiffs and the defenda nt have the right to sell the property, have not been gone into, despite the dir ections contained in the judgment dated 22.9.1999 passed by the first appellate court in Title Appeal No. 1/1999. 9. Being aggrieved, the plaintiffs preferred Title Appeal No. 46/20 00, which has been allowed, decreeing the suit of the plaintiffs by setting asid e the judgment and decree passed by the trial court. 10. The first appellate court has decreed the suit of the plaintiffs on the ground that since neither the plaintiffs nor the defendant raised any ob jection relating to the admissibility of the Exts. 4 to 10 and Exts. kha to ungo , both will acquire right, title and interest over the land which they have purc hased. The first appellate court has also held that since it could not be ascert ained, on the basis of the evidence available on record, whether the plaintiffs or the defendant is in possession, joint possession is to be declared. The first appellate court has concurred with the findings recorded by the trial court tha t the plaintiffs could not prove the amicable partition of the land amongst the heirs of the original owner. Hence the present appeal by the defendant. 11. The appeal was admitted for hearing vide order dated 6.9.2002 on the following substantial questions of law: - (i) Whether the reasons assigned by the learned first appellate court below on the two formulated points for determination as seen in para 10 of the judgment were based on evidence or not? (ii) Whether the first appellate court below has erred in law as well as in fact to declare the joint possession of the disputed land in favour of the plaintiffs and the defendant? ed the judgment and decree of the trial court or not? (iii) Whether the first appellate court below has rightly revers
Legal Reasoning
12. I have heard Mr. P. Khataniar learned counsel for the appellant and Mr. AK. Purkayastha, learned counsel appearing for the respondents/plaintiff s 13. Mr. Khataniar, the learned counsel appearing for the appellant r eferring to the impugned judgment and decree passed by the first appellate court has submitted that though the first appellate court vide judgment dated 22.9.19 99 passed in Title Appeal No. 1/1999 formulated the most pertinent question - as to whether the suit land, as claimed to have been purchased by the plaintiffs h as also been purchased by the defendant, the first appellate court in the impugn ed judgment and decree has not answered the said question and instead declared t he right, title and interest of both the plaintiffs and the defendant in respect of the same land. The learned counsel, further, submits that the first appellat e court, while doing so, even did not bother to go through the report submitted by the Amin Commissioner (Ext. W), wherefrom it is evident that both the plainti ffs and the defendant have claimed purchase of the same plot of land, which incl udes the suit land. Mr. Khataniar, further, submits that since the defendant has purchased the suit land from the successor-in-interest of Masur Ali at earlier point of time than the purchase by the plaintiffs, the defendant would acquire r ight, title and interest by virtue of the purchase made by him vide Ext. kha-ung o, (except Ext. Ga which is at later point of time than the purchase by the plai ntiffs) as the successor-in-interest of Masur Ali did not have, after such sale, right over the land to sell it again in favour of the plaintiffs. The learned c ounsel, further, submits that since the plaintiffs have claimed a decree for con firmation of possession the burden lies on the plaintiffs to prove their possess ion, which, as is evident from the first appellate court’s judgment that the pla intiffs have failed to do and hence the first appellate court ought not to have passed the decree for joint possession of both the plaintiffs and defendant. The learned counsel submits that since the aforesaid most pertinent question has no t been answered the appeal may be remanded to the first appellate court for fres h decision based on the evidence already in record. 14. Mr. Purkayastha, learned counsel appearing for the respondents/p laintiffs, on the other hand, supporting the judgment passed by the first appell ate court has submitted that since the defendant did not object to the admission of Exts. 4 to 10 sale deeds, the first appellate court has rightly decreed the suit of the plaintiffs declaring the right, title and interest by virtue of the purchase by the aforesaid sale deeds. According to the learned counsel, Abdul Ra zek and Abdul Kuddus, who are sons of Masur Ali, did not have any right to sell any land in favour of anyone including the defendant as the land in question fel l in the share of Abdul Mannaf, another son of Masur Ali, which land was sold by successor-in-interest in favour of the plaintiffs. The learned counsel, therefo re, submits that the defendant cannot acquire right, title and interest over the suit land by virtue of the purchase vide Exts. Kha to ungo. It has also been su bmitted that in any case Ext. Ga sale deed dated 28.4.1981 executed by Fatema Bi bi being after the execution of Exts. 4 and 7, sale deeds (Ext. 5 and 7 are deed s of rectification), the defendant cannot claim right, title and interest in res pect 1 bigha 2 katha 10 lechas of land covered by dag No. 159 of periodic patta No. 215, Fatema Bibi having already sold her share in favour of the plaintiffs N os. 1, 2 and 3. It has also been submitted that the first appellate court did no t commit any illegality in declaring joint possession of the plaintiffs and the defendant in respect of the suit land, in the absence of any clinching evidence relating to the possession of the parties to the suit over the suit land. I have considered the submissions advanced by the learned counse 15. l for the parties and also perused the records including the judgments and decre es passed by the courts below. Based on the pleadings of the parties and also the arguments adv 16. anced by the learned counsel for the parties, it appears that it is an admitted position of fact that the suit land was part of the land inherited by Masur Ali and Esa Bibi. While the plaintiffs have claimed that they have purchased certain land from the successor-in-interest of Masur Ali and Esa Bibi vide sale deeds b eing Exts. 4 to 10 (Ext. 5 and 7 are deeds of rectification), which include the suit land, the defendant has claimed that he has purchased certain land includin g the suit land from the successor-in-interest of Masur Ali by registered deed o f sale being exhibit kha to ungo. 17. The plaintiffs claim that the plaintiff No.3 has purchased 5 big has of land from Fatema Bibi, wife of Abdul Mannaf, who is the son of the Masur Ali vide Exts. 4 sale deed dated 4.4.1981 and plaintiffs Nos. 1 and 2 have purch ased 2 bighas of land vide Exbt.6 sale deed dated 4.4.1981 from Fatema Bibi. The land sold by the sale deeds are covered by the dag No. 165, 167,168 of patta No . 73; dag No. 158 of patta No. 75 and dag No. 159 of patta No. 215. The plaintif fs have also claimed that the plaintiff Nos. 4 to 10 have, vide Exts. 8, 9 and 1 0 sale deeds dated 11.5.1981, 11.5.1981 and 19.5.1981, respectively, purchased 3 bighas 3 kathas 9 1/3 lechas each from Abdul Khalek, Ajijur Rahman and Abdul Mu tlib, who are the sons of Esa Bibi. On the other hand, the defendant has claimed purchase of 2 bighas of land from Ajab Bibi, wife of Masur Ali vide Ext. kha sa le deed dated 28.3.1980; 1 bigha 2 katha 10 lechas of land from Fatema Bibi, wif e of Abdul Mannaf, who is the son of Masur Ali, vide Ext Ga sale deed dated 28. 4.1981; 5 bighas of land from Abdul Kuddus, another son of Masur Ali vide Ext. g ha sale deed dated 28.3.1980 and 2 bighas of land from Abdul Razek and Abdul Kud dus, who are also sons of Masur Ali vide Exbt. Ungo sale deed dated 28.3.1980. T he defendant has not claimed that he has purchased any land either from Esa Bibi or from her successor-in-interest. However, according to the defendant the suit land is part of the land purchased by him from the successor-in-interest of Mas ur Ali. Having regard to the aforesaid position, the most pertinent ques 18. tions which are required to be answered by the court below are :- i) Whether Fatema Bibi, Abdul Khalek, Ajijur Rahman and Abdul Mutlib had th e right to sell land in favour of the aforesaid plaintiffs vide Exts. 4 to 10 (E xts. 5 and 7 are deeds of rectification) and also whether Ajab Bibi, Fatema Bibi , Abdul Kuddus and Abdul Razek had the right to sell the land in favour of the d efendant vide Exts. Kha to Ungo sale deeds; ii) Whether the suit land is part of the land claimed to have been purchased by the plaintiffs and the defendant, if so; Whether the plaintiffs could acquire any right, title and interest over iii) the suit land by virtue of the purchase vide Exts. 4 to 10 sale deeds (Exts. 5 a nd 7 are deeds of rectification). Those questions, apart from the question of possession have not 19. been answered by the court below, despite the directions contained in the judgme nt dated 22.9.199 passed by the first appellate court in Title Appeal No. 1/1999 . Unless those questions are answered, the Title Appeal cannot be decided. 20. As noticed above, the first appellate court has decreed the suit of the plaintiffs as well as the defendant by declaring the right, title and in terest based on the purchase claimed by them without ascertaining whether by the aforesaid sale deeds the same land was transacted. 21. That being the possession, the judgment and decree passed by the first Appellate Court on 26.2.2002 in Title Appeal No. 46/2000 is set aside. Th e appeal is remitted to the first appellate court for deciding the same afresh a nd on the basis of the evidence already on record. 22. The parties are directed to appear before the first appellate co urt on 23.9.2013. In case the parties do not appear on that date, the first appe llate court shall issue notice to the parties requiring their appearance within one month therefrom. 23. Since the suit was instituted in the year 1993, the first appell ate court shall decide the appeal within three months from the date of receipt o f the records from the Registry of this Court. 24. ppellate court so as to reach the said court on or before 16.9.2013 The Registry is directed to send down the records to the first a 25. The appeal is accordingly allowed to the extent indicated above. Having regard to the facts and circumstances of the case the parties are direct ed to bear their own cost through out.