High Court
Case Details
RSA 13/2003 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the plaintiffs is directed against the judgment and decree dated 19th September, 2002 passed by the learned District Judge, Barpeta in Title Appe al No.1/2000, allowing the appeal preferred by the defendants by setting aside t he judgment and decree dated 21st December, 1999 (decree drawn on 6th January, 2 000) passed by the learned Civil Judge (Senior Division), Barpeta in Title Suit No.27/1996, whereby and whereunder the suit of the present appellants/plaintiffs was initially decreed.
Facts
[2] The predecessor-in-interest of the present appellants, namely, N arendra Namu Das, as plaintiff, has instituted the said suit for declaration of right, title and interest and for confirmation of possession as well as for perm anent injunction and for issuance of precept to the revenue authority for correc tion of records of rights, in respect of the land measuring 6 Bighas 2 Kathas 9 Lechas described in Schedule to the plaint, contending inter alia that though he has the right, title and interest in respect of the said land by virtue of the settlement made by the Government by issuing patta, attempt has been made by the defendants to get their names mutated in the revenue record, which attempt thou gh, for the first time, was defeated, in the second they were successful to get their names mutated in the revenue record, even without issuing any notice to th e plaintiffs. The plaintiffs, therefore, filed the suit for declaration as afor esaid. [3] The defendants on receipt of the summons entered appearance and filed written statement contending inter alia that the land, which was originall y covered by annual patta belonging to the plaintiff, was sold by the plaintiff in favour of their predecessor-in-interest, vide Exhibits-Ka and Kha registered deeds of sale, both dated 4th March, 1968, by virtue of which they have acquired right, title and interest and the plaintiff has lost his title over the land in question. During pendency of the suit, the original plaintiff expired and in hi s place, the present appellants were substituted [4] e following issues for determination:- Based on the pleadings of the parties, the trial Court framed th (cid:28)1. Whether there is any cause of action for the suit? 2. Whether the suit is barred by law of limitation? 3. Whether the suit is properly valued and proper court fee has been paid? 4. Whether the plaintiff has right, title, interest and possession over the suit land? 5. Whether the mutation granted in Misc. Case No.11/95-96 on 2.4.96 by the Circ le Officer, Sarthebari Revenue Circle in favour of the defendant is illegal and inoperative? (cid:29) 6. To what relief or reliefs if any, the parties are entitled? [5] The trial Court, upon appreciation of the evidence on record, bo th oral and documentary, decreed the suit of the plaintiff by holding that the l and originally belonged to Narendra Namu Das, which was annual patta land and th e same having been converted to periodic patta in the name of Narendra Namu Das, he will have the right, title and interest over the suit land, whether or not, he during the continuance of the annual patta, sold the land in favour of the pr edecessor-in-interest of the defendants vide Exhibits-Ka and Kha sale deeds. It has also been held that the defendants could not prove Exhibits-Ka and Kha sale deeds, execution of which has been denied by the plaintiff. [6] Being aggrieved, the defendants preferred the aforesaid appeal, which has been allowed by judgment and decree dated 19th September, 2002 by sett ing aside the judgment and decree passed by the trial Court, by holding that sin ce the original plaintiff has transferred his right, title and interest over the suit land vide Exhibits-Ka and Kha sale deeds dated 4th March, 1968, when the l and was covered by annual patta, the predecessor-in-interest of the defendants w ill acquire right, title and interest over the suit land even after conversion o f the annual patta to periodic patta in the name of the vendor, namely, Narendra Namu Das. The appellate Court, however, did not bother to go into the question as to whether the defendant could prove the sale deeds, being Exhibits-Ka and K ha. Hence, the present appeal. [7] y, 2003 on the following substantial questions of law:- The appeal was admitted for hearing vide order dated 7th Februar (cid:28)1. Whether the defendants were required to prove the sale deeds executed by the plaintiff once sale deeds were denied by the plaintiff?
Legal Reasoning
A single Bench of this Court in Gobinda Chandra Das (supra) has [15] held that the transferee of annual patta land would acquire a good title even af ter conversion to periodic in the name of the vendor. The same view has also bee n taken by a single Bench of this Court in Haji Abdul Haque (supra). [16] In the instant case, it is not in dispute that the land original ly belonged to the original plaintiff, Narendra Namu Das, which was initially co vered by annual patta. The said annual patta land, however, subsequently conver ted to periodic patta in the name of Narendra Namu Das. The defendants have als o admitted the said position of fact, as the defendants have claimed that their predecessor-in-interest had purchased the land from Narendra Namu Das, vide sale deeds dated 4th March, 1968 (Exhibits-Ka and Kha). [17] Hence, the most pertinent question, which arose for determinatio n by the Courts below was whether the defendants could prove sale of the land by the original plaintiff in faovur of their predecessor-in-interest on 4th March, 1968 vide Exhibits-Ka and Kha sale deeds. As discussed above, the trial Court has held that the sale could not be proved. The appellate Court, however, did n ot discuss anything in that regard. [18] The appellate Court being the final Court on facts, is required to decide all the issues by discussing all the evidences on record, both oral an d documentary, more so when it is a judgment of reversal. In the instant case, as discussed above, the appellate Court did not record any finding as to whether the defendants could prove the due execution of Exhibits-Ka and Kha sale deeds dated 4th March, 1968, though that was the most pertinent question, which was re quired to be decided. [19] In view of the above, the judgment and decree dated 19th Septemb er, 2002 passed by the first appellate Court is set aside. The appeal is remit ted to the first appellate Court for deciding the same afresh, on the basis of t he evidence already adduced by the parties and in the light of the discussions m ade hereinabove. [20] The parties are directed to appear before the first appellate Co urt on 7th October, 2013. The first appellate Court shall decide the said appea l within 2(two) months from the date of appearance of the parties. [21] The Registry is directed to send down the records, so as to reac h the first appellate Court before the date fixed for appearance of the parties. [22] The appeal is accordingly allowed to the extent indicated above. [23] hout. The parties, however, are directed to bear their own cost throug
Arguments
2. Whether the defendants were required to produce attesting witness for examina tion for the purpose of proving certified copies of sale deeds once sale deeds w ere denied by the plaintiff? (cid:29) [8] I have heard Mr. R. Sarma, learned counsel for the appellants/pl aintiffs and Dr. B. Ahmed, learned counsel appearing for the respondents/defenda nts. [9] Upon hearing the learned counsel appearing for the parties, the following substantial question of law has also been framed today and as agreed t o by the learned counsel, the appeal has been taken up for hearing today itself on this substantial question of law alongwith the substantial questions of law a lready formulated:- (cid:28)Whether the judgment passed by the first appellate Court is in conformity with the provisions of Order 41 Rule 31 CPC? (cid:29) [10] During pendency of the appeal, the appellant No.1, i.e. the wife of Narendra Namu Das, expired and her name has been struck off from the list of appellants, as the appellant Nos.2, 3 and 4, who are the heirs of the appellant No.1, are already on record. [11] Mr. Sarma, learned counsel appearing for the appellant, refer ring to the impugned judgment and decree passed by the first appellate Court sub mits that since the annual patta was subsequently converted to periodic patta in the name of the original plaintiff, the appellate Court ought not to have held that transfer of the land by annual patta holder in favour of the predecessor-in -interest of the defendants would not have any affect of conversion and the defe ndants even after such conversion would continue to have the right, title and in terest over the land, which was transferred when the land was covered by annual patta. The learned counsel further submits that the first appellate Court did no t go into the main question as to whether the defendants could prove the Exhibit s-Ka and Kha sale deeds dated 4th March, 1968, when the trial Court has recorded the finding that the defendants could not prove such sale by Narendra Namu Das in faovur of the predecessor-in-interest of the defendants. According to the lea rned counsel, the question as to whether the defendants would continue to have t he right, title and interest by virtue of such sale, even after conversion, woul d come only if the defendants could prove execution of the sale deeds being Exhi bits-Ka and Kha. The learned counsel, therefore, submits that the appeal may be remanded to the first appellate Court for deciding the said questions afresh, b ased on the evidence already adduced. [12] Dr. Ahmed, learned counsel appearing for the respondents/defenda nts, on the other hand, has submitted that finding has been recorded by the firs t appellate Court, by setting aside the finding recorded by the trial Court, tha t the defendants could prove the Exhibits-Ka and Kha sale deeds dated 4th March, 1968. Placing reliance on the judgments of this Court in Gobinda Chandra Das - Vs- Boloram Boro & Ors. reported in 2000 (3) GLJ 159 and in Haji Abdul Haque & O rs. -Vs- Sujit Kr. Das & Ors. reported in 2003 (1) GLT 376, it has been submitte d by Dr. Ahmed that since the land covered by annual patta can be transferred, t he transferee would acquire right, title and interest over the land covered by a nnual patta and such right would not be dislodged even by conversion of annual p atta subsequently to periodic patta in favour of the vendor. The learned counsel , therefore, submits that the judgment and decree passed by the first appellate Court needs no interference. [13] I have considered the submissions advanced by the learned counse l appearing for the parties and also perused the records, including the judgment s and decrees passed by the Courts below. [14] As noticed above, the trial Court has recorded the finding that the defendants could not prove the sale deeds dated 4th March, 1968 being Exhibi ts-Ka and Kha, which, according to the defendants, were executed by the original plaintiff, namely, Narendra Namu Das, in favour of the predecessor-in-interest of the defendants. The trial Court has also held that even if the sale is made, since the annual patta was subsequently converted in the name of the vendor, na mely, Narendra Namu Das, he will continue to have the right, title and interest over the land in question and the defendants would not acquire any right, title and interest, after such conversion, by virtue of Exhibits-Ka and Kha sale deeds . The appellate Court though has negated the finding of the trial Court that the transferee of the annual patta land have no right, title and interest over the land transferred, after its conversion to periodic patta in the name of the vend or, however, did not discuss anything as to whether the defendants could prove t he execution of Exhibits-Ka and Kha sale deeds, both dated 4th March, 1968, by t he original plaintiff in favour of the predecessor-in-interest of the defendants , though the said question ought to have been decided first and the decision on continuance of the right, title and interest of the transferee after conversion of the land to periodic patta in the name of the vendor would be dependant on th e decision on the said question.