High Court · 2012

The defendant Nos.2, 4, 5 and 9 in Title Suit No.21/2009, by the present appeal have challenged the judgment and decree dated 28.09.2011 passed by the l earned Civil Judge, Barpeta in Title Appeal No.17/2011, dismissing the appeal pr eferred by the present appellants along with the defendant Nos.1 and 6 and affir ming the judgment and decree dated 05.02.2011 passed by the learned Munsiff No.1 , Barpeta in the said suit. The respondents herein, who are the successor-in-interest of Iazuddin al ias Riazuddin through the second wife Mustt. Rahima Khatun (respondent No.1) as plaintiffs instituted the aforesaid suit against the present appellants and othe rs for declaration of right, title and interest in respect of 4 kathas 6‰ lechas of suit land; for passing a decree for partition to the extent of 4 kathas 4 le chas described in Schedule-C to the plaint apart from declaration that by virtue of registered deed No.5101/82 (Ext.-3/Ext.-Ka) the defendants have not acquired right, title and interest in respect of the suit land exceeding 2 kathas 10 lec has, contending that the land measuring 26 bighas 4 kathas 4 lechas in different Dags in K.P. Patta No.45 of village-Kalabhanga, described in Schedule-A to the plaint, was settled by the Government in favour of Lt. Iazuddin alias Riazuddin, the predecessor-in-interest of the plaintiffs and the defendants, who during hi s lifetime sold certain portion of the land to some persons except the land cove red by Dag No.530. It has also been contended that out of the land in Dag No.530 land measuring 2 bighas 3 kathas, described in Schedule-B, which is the suit la nd, Iazuddin sold 2 kathas 10 lechas of land in favour of his first wife, the de fendant No.1, by a registered deed of sale No.5101/82 dated 25.06.1982 (Ext.-3/E xt.-Ka) and again transferred by way of gift land measuring 1 bigha 0 katha 13 l echas in favour of the defendant Nos.2 to 6 and the plaintiffs and accordingly t he joint possession was given to both the parties. The further contention is tha t Iazuddin on 22.07.1987 executed a deed (Ext.-2) indicating the aforesaid joint gift, out of which the plaintiff Nos.1 to 3 acquired right, title and interest to the extent of 3/8th share i.e. 2 kathas 2 lechas. It is also the case of the plaintiffs that the plaintiff No.1 has also acquired right, title and interest t o the extent of 6… lechas of land over the remaining 1 bigha of suit land and th e plaintiff Nos.2 to 8 jointly acquired the right by right of inheritance in res pect of 1 katha 15¾ lechas. According to the plaintiffs, they acquired right, ti tle and interest jointly to the extent of 4 kathas 4 lechas, which is described in Schedule-C to the plaint and were under their possession. The further case of the plaintiffs is that the defendants suddenly on 02.08.2007 entered the ’C’ sc hedule land and raised a ’Chali’ and since then they are trying to consolidate t heir occupation in the front side of the eastern part of the land in Schedule-B contending that the Schedule-C land belonged to them as they have purchase by th e sale deed No.5101/82 (Ext.-3/Ext.-Ka) the land measuring 1 bigha 2 kathas 10 l echas, though by the sale deed Iazuddin transferred only 2 kathas 10 lechas of l and in favour of the defendant No.1. The defendant Nos.1, 2, 7 and 9 contested the suit by filing joint writt en statement contending that during the lifetime of Iazuddin, he on 25.06.1982 s old 1 bigha 2 kathas 10 lechas of land out of 2 bighas 3 kathas 3 lechas in favo ur of defendant No.1 by sale deed No.5101/82 (Ext.-3/Ext.-Ka) and accordingly po ssession was handed over to them and again on 22.07.1987 (Ext.-2) relinquished t he remaining land in favour of the defendant Nos.2 to 6 and plaintiff Nos.1 to 3 . It is also the pleaded case of the defendants that thus Iazuddin disposed of t he entire land covered by Dag No.530 of K.P. Patta No.45 and the land which was given jointly to the defendants and the plaintiff vide document dated 22.07.1987 was subsequently partitioned and the plaintiff Nos.1 to 3 jointly got 2 kathas 2 lechas of land. The learned Trial Court on the basis of the pleadings, framed the follow ing issues for determination:- 1. 2. Whether there is cause of action for the suit? Whether the plaintiffs have right, title and interest over the suit land to the extent of 4 kathas 4 lechas? If so, whether the plaintiffs are entitled Whether the plaintiffs are entitled for the decree as prayed for in the for possession of the same by evicting the defendants therefrom? 3. Whether the defendants acquired right, title and interest over the suit land exceeding 2 kathas 10 lechas on the strength of the registered sale deed No .5101/82? 4. suit? 5. To what other relief or reliefs the parties are entitled for? The learned Trial Court upon appreciation of the evidences on record dec reed the suit of the plaintiffs by holding that by Ext.-3/Ext.-Ka sale deed date d 25.06.1982 Iazuddin transferred only 2 kathas 10 lechas of land and not 1 bigh a 2 kathas 10 lechas. Being aggrieved the aforesaid defendants preferred Title A ppeal No.17/2011, which has also been dismissed by the learned First Appellate C ourt vide judgment and decree dated 28.09.2011 by upholding the judgment and dec ree passed by the learned Trial Court. Hence the present appeal. I have heard Mr. N. Haque, learned counsel for the appellants. It is the contention of the learned counsel that since the plaintiffs ha ve pleaded fraud contending that by sale deed (Ext.-3/Ext.-Ka), Iazuddin, the pr edecessor-in-interest of both the plaintiffs and the defendants transferred only 2 kathas 10 lechas of land in favour of the defendant No.1, not 1 bigha 2 katha s 10 lechas, burden lies on the plaintiffs to prove that by the said sale deed o nly 2 kathas 10 lechas land was transferred and not 1 bigha 2 kathas 10 lechas, which also according to the learned counsel, the plaintiffs have failed to disch arge. It has also been submitted that mere proof of the register to be maintaine d by the Registering Authority under the provisions of the Indian Registration A ct and the manipulation of such register by insertion of the figure (cid:28)1 bigha (cid:29) be fore the figures (cid:28)2 bighas 10 lechas (cid:29) would not amount the proof of fraud as all eged by the plaintiffs so as to entitle them to get a decree. It appears from the impugned judgments and decrees passed by the learned Courts below that the main issue which required determination is the issue No.3 i.e. whether the defendants acquired right, title and interest over the suit la nd exceeding 2 kathas 10 lechas on the strength of the registered sale deed No.5 101/82. It is the contention of the plaintiffs that by the said sale deed, Iazud din though transferred only 2 kathas 10 lechas of land, the defendants claimed t hat by the said sale deed the land measuring 1 bigha 2 kathas 10 lechas was tran sferred by Iazuddin in favour of the defendant No.1, the mother of the defendant Nos.2 to 6, who was the first wife of Iazuddin. It appears from the judgment passed by the learned First Appellate Court that the plaintiffs in order to prove that by the said sale deed (Ext.-3/Ext.-K a) Iazuddin transferred only 2 kathas 10 lechas of land in favour of the defenda nt No.1, filed an application before the Court for a direction to the defendants to produce the said document, which was in their power and possession. The defe ndants, however, failed to produce the said document and contended that the said document has been destroyed as it was eaten up by ant. The plaintiffs also exam ined the scribe of the said sale deed (Ext.-3/Ext.-Ka) as PW-2, who has also cat egorically stated about transfer of the land measuring 2 kathas 10 lechas by the said sale deed by Iazuddin in favour of the defendant No.1. The register volume required to be maintained by the Registering Authority under the provisions of the Registration Act was also called for and produced and the relevant entry in the said register was also proved through the PW-5, an officer of the office of the Sub-Registrar, Barpeta, where the Ext.-3/Ka document was registered. From th e relevant entry in the said register volume, the learned Courts below have foun d that the word (cid:28)1 bigha (cid:29) was inserted later on before the words (cid:28)2 bighas 10 le chas (cid:29) and thereby manipulated the records. Though the defendants took the plea, while refusing to produce the origi nal sale deed which was admittedly in their power and possession (Ext.-3/Ext.-Ka ), that the same was destroyed, none of the witnesses examined by the defendants have stated anything relating to the destroy of such document and on the other hand the DW-3 in his evidence has admitted the existence of such deed in the cus tody of the defendant No.1. The defendant No.1 who was the beneficiary of such s ale deed has also not come to the witness box to prove that by Ext.-3/Ka land me asuring 2 kathas 10 lechas was transferred by Iazuddin in her favour. There bein g no evidence relating to the explanation given by the defendants for non-produc tion of the original deed (Ext.-3/Ext.-Ka), the presumption has to be drawn agai nst the defendants and in favour of the plaintiffs that by the said sale deed Ia zuddin transferred only 2 kathas 10 lechas of land and not the land measuring 1 bigha 2 kathas 10 lechas, which presumption though is rebuttable, the defendants could not rebut the same by adducing any evidence. That being the position, I do not find involvement of any substantial qu estion of law to admit the appeal and hence the appeal stands dismissed.