High Court · 2012

[3] The defendants contested the suit by filling the written stateme nt contending inter alia that the land was originally belonged to the father of Gone Seikh, Dumahu Seikh, Muluk Shah and Omar Ali, whose names were recorded in the Periodic Patta No.31 in the year 1930-31 and the said Patta was subsequently renumbered as Patta No.102. According to the defendants, the said land was sub sequently partitioned amongst the 4(four) brothers and out of the land fell in t he share of Omar Ali, one of the brothers, land measuring 1 Bigha 0 Katha 1 Lech a was transferred by his sons, namely Samsher, Akbar and Ibrahim, by registered deed of sale dated 24th April, 1970 (Exhibit-Unga) to the defendants and accordi ngly, they are possessing the said land, which includes the suit land described in Schedule-Kha. It has also been pleaded that during resettlement, the Patta i n respect of the entire land was illegally issued in favour of the plaintiff bei ng Patta No.102, which includes the land fell into the share of Omar, one of the brother. [4] med the following issues for consideration and decision:- The Trial Court on the basis of the pleadings of the parties fra (cid:28)(1) Whether there is cause of action for the suit? (2) Whether the suit is maintainable in its present form? (3) Whether the plaintiff has paid insufficient Court fee? (4) Whether the suit is barred by limitation? (5) Whether the suit is lead for non joinder of heirs of Late Omar Ali? (6) Whether the plaintiffs has right, title and interest over the suit land? (7) (8) Whether the plaintiff was dispossessed while in possession? To what relief(s) if any, the parties is entitled? Addl. Issues: Whether the plaintiff has obtained the patta by fraudulently in Collusio (9) n with revenue staff as alleged in the written statement? (cid:29) [5] While the plaintiff examined 2(two) witnesses and exhibited a nu mber of documents including the Patta No.102 (Exhibit-1) issued in the year 19 86, which includes the suit land measuring 2 Kathas 10 Lechas, the defendant exa mined 6(six) witnesses and proved a number of documents including the Patta No.3 1 issued in the year 1930-31 (Exhibit-Ka) as well as the sale deed dated 24th Ap ril, 1970 (Exhibit-Unga). The Trial Court upon appreciation of the evidences on record add [6] uced by the parties, both oral and documentary, dismissed the suit by holding th at the plaintiff could not prove the source of title. Being aggrieved, the plai ntiff/respondent preferred Title Appeal No.9/1989, which was also dismissed, res ulting in filing of Second Appeal No.141/1993 in this Court. [7] The said second appeal was disposed of vide judgment and order d ated 25th November, 1998 directing the First Appellate Court to decide the quest ion of title and the right of the plaintiff to get the recovery of possession, o n the basis of the Patta being Exhibit-1 and taking into account the rebuttal ev idence, if any, adduced by the defendants/appellants. The relevant paragraphs o f the said judgment and order are quoted below:- Next question is that whether the Ext.1 was interpreted by the courts be (cid:28)7. low properly. A perusal of the Ext.1 will show that this is periodic Patta whic h was issued at the time of settlement and there is absolutely no evidence to sh ow that this is fraudulent and collusive document. No doubt, mere production of Patta itself cannot be conclusive piece of evidence, that evidence may be rebutt ed but whether there was such rebuttal evidence or not, that aspect of the matte r was not considered by any of the courts below. Accordingly it is found that t he courts below did not consider that aspect of the matter.

8. Sri Goswami draws my attention to the evidence of D.W.1 where in the D.W .1 admitted that Akbar and Ibrahim both were minor at the time of sale in 1970 a nd it was further admitted by him that Akbar was insane. So it cannot be unders tood how the defendant can acquire title on the basis of such sale made by the m inors as well as by the person who was insane at that point of time. That aspec t of the matter also was not considered by the courts below. Already it has been held that Ext.1 was not a fraudulent document. This being the position and it being found that the question of the title of the plaintiff was not properly gon e into by the courts below there is no alternative but to remand this matter to the Learned Appellate Court to decide the question of title of the plaintiff on the basis of the evidence already on record and thereafter to dispose of the app eal in accordance with law. But it is made clear that the question of limitatio n shall not be reopened by the trial court nor the question of fraudulent of Ext .1 shall be looked into by the appellate court. The appellate court shall decid e the question of title and right of the plaintiff to get the recovery of posses sion. (cid:29) [8] The First Appellate Court thereafter, by the impugned judgment a nd decree dated 1st August, 2000 decided the appeal in favour of the plaintiff/r espondent, decreeing the suit and reversing the judgment and decree dated 17th M ay, 1989 passed by the learned Munsiff No.2, Mangaodai in the aforesaid suit. H ence, the present appeal. [9] vember, 2000 on the following substantial questions of law:- (cid:28)1) Whether the finding as to title of the plaintiff in respect of the suit The appeal has been admitted for hearing vide order dated 2nd No land of the learned lower Appellate Court is perverse being contrary to the evid ence on record? 2) ird case that the plaintiff acquired by inheritance? Whether the learned appellate Court misread the Plaint and made out a th 3) Whether mere issue of Patta and/or entry in the record of rights creates title or extinguishes or has any presumptive value of title in view of Section 41 read with 53 of the Assam Land and Revenue Regulation, 1886, if not whether t he assumption of the lower Appellate Court that, Ext.1 conferred title to the pl aintiff is legally sustainable? 4) Whether the finding of the learned lower Appellate Court that Ext. ’Unga ’ sale-deed that it is wholly void is a serious error of law and the plaintiff’s is competent to challenge the same? Whether the judgment of the lower Appellate Court is vitiated for non co 5) nsideration of the oral and various documentary evidence adduced by the parties? (cid:29) [10] rs. Goswami, learned counsel appearing for the respondent. I have heard Mr. Islam, learned counsel for the appellants and M [11] It has been submitted by the learned counsel for the appellants that though a single Bench of this Court vide judgment and order dated 25th Nove mber, 1998 passed in Second Appeal No.141/1993 directed the First Appellate Cour t to decide the question as to whether the plaintiff’s title in respect of the s uit land can be declared on the basis of the Patta being Exhibit-1 upon taking i nto consideration of the rebuttal evidence, if any, adduced by the defendants, t he First Appellate Court has allowed the appeal preferred by the present respond ent, even without taking into consideration the evidences adduced by the defenda nts rebutting the plaintiff’s claim of title by virtue of Exhibit-1. It has als o been submitted that the First Appellate Court has also not decided whether the right, title and interest of the plaintiff, on the basis of the Patta issued, c an be declared. The learned counsel, therefore, submits that the case may be re manded to the First Appellate Court for deciding the first appeal in terms of th e directions contained in the aforesaid judgment and order dated 25th November, 1998. [12] The learned counsel appearing for the respondent, on the other h and, supporting the judgment and decree passed by the First Appellate Court subm its that vide judgment and order dated 25th November, 1998 passed in Second Appe al No.141/1993 what was directed to be looked into by the First Appellate Court was whether there was any rebuttal evidence relating to the conformant of the ti tle on the plaintiff vide Exhibit-1 and the First Appellate Court has discussed the entire evidences adduced by the defendants while allowing the appeal, which requires no interference in the second appeal. [13] It appears from the impugned judgment and decree dated 1st Augus t, 2000 passed by the First Appellate Court that while the question as to whethe r the defendants acquired the right, title and interest by virtue of the sale de ed vide Exhibit-Unga was gone into and held that there cannot be any valid trans fer by the minors, one of who was admittedly insane and thereby recording the fi nding that the defendants cannot acquire any title by virtue of Exhibit-Unga sal e deed, there is no discussion relating to the evidence of the defendants includ ing the Patta, which was originally issued in the names of 4(four) persons, name ly Gone Seikh, Dumahu Seikh, Muluk Shah (father of the plaintiff) and Omar Ali i n the year 1930-31, Exhibit-Ka. The learned Court below has also not considered the effect of the Exhibit-Ka on the Exhibit-1 issued in the year 1986 pertainin g to the same land. [14] In view of the above, the present appeal stands allowed by setti ng aside the impugned judgment and decree dated 1st August, 2000 and remanding t he case to the First Appellate Court to decide the appeal afresh on the basis of the evidences already on record. The First Appellate Court shall only go into the question as to whether the plaintiff has acquired the title by virtue of Exh ibit-1 Patta and whether there was any rebuttal evidence by the defendants, apar t from the effect of Exhibit-Ka on Exhibit-1. The question as to whether the de fendants could get any valid title by virtue of Exhibit-Unga shall not be gone i nto, as the First Appellate Court in the impugned judgment and decree, upon disc ussion of the evidences on record has recorded the finding that the vendor of th e defendants, namely Akbar and Ibrahim, being minor, out of whom Ibrahim was an insane person, which has been admitted by the DW-1 himself in his evidence, ther e cannot be any valid transfer in favour of the defendants. [15] The suit having been instituted in the year 1987, the First Appe llate Court is directed to decide the appeal on the basis of the evidences alrea dy on record within a period of 2(two) months from the date of appearance of the parties as fixed by this Court. The parties are directed to appear before the First Appellate Court on 30th January, 2012. [16] The Registry is directed to send down the records, so as to reac h the Court of the learned Civil Judge, Darrang at Mangaldai on or before 24th J anuary, 2012. [17] ensure transmission of the record accordingly. The Assistant Registrar (Judicial) of this Court is directed to [18] costs. The appeal accordingly stands allowed, as indicated above. No