High Court · 2012

I have heard Mr. N Choudhury, learned counsel for the appellants being assisted by Mr. T Goswami, Advocate and Mr. D Choudhury, learned counsel for the respondents.

03. Md. Azizur Rahman and Abdur Rahman, the predecessors-in-interest of the present appellants Nos. 1(a), 2(f) and 2(e) along with others filed the aforementioned suit against the respondents as defendants praying for a decree, inter alia, for declaration of their right, title and interest over a land measu ring 2 bighas 12 lechas described in Schedule B to the plaint together as well a s for a preliminary decree for partition thereof in their favour and for khas of the land described in Schedule C. Consequential direction for appointment of a Commissioner to effect partition in terms of a preliminary decree and, eventually, a final decree for partition in terms of the Commissioner’s report was also sought for. A decree for adjudging t he equitable mortgage of the land described in Schedule C to the plaint offered by the defendant No. 2 in favour of the Central Bank of India/defendant No. 15 v oid was also prayed for. The land included in Schedule C was a part of that desc ribed in Schedule B to the plaint.

04. Both the courts below decreed the suit partially by declaring th e right, title and interest of the plaintiffs in the land included in Schedule B together with confirmation of possession minus the land measuring 1 bigha descr ibed in Schedule C to the plaint. As the judgment of the learned trial court wou ld reveal, on adjudging the plaintiffs’ right, title and interest in the aforeme ntioned truncated portion of the land described in Schedule B and confirmation o f possession thereof, a preliminary decree for partition was passed and a Commis sioner was directed to be appointed to effectuate the same.

05. al question of law was framed: - (cid:28)Whether the courts below is right in decreeing the suit of the plaintiff in res pect of the Schedule B by excluding Schedule C land for which the petitioner had At the time of admission of this appeal, the following substanti prayed for khas possession? (cid:29)

06. The rival pleadings need be traversed at the outset to sketch a brief outline of the essential facts. The plaintiffs averred that they are the m embers of the same family having right, title and interest over 2 bighas 12 lech as of land covered by PK Patta No. 166 and dag No. 918 of Nalbari town with no c onflict of interest amongst them. The entire suit patta land and land adjoining thereto covered by dag No. 262 was situated at village Khatabari. The suit land covered by dag No. 918 and the adjoining land in dag No. 262 were originally loc ated at village Khatabari were included in the same dag. After the formation of the Nalbari town the original dag was split into suit dag No. 918, which was inc luded in Nalbari town and the adjoining dag No. 262 remained in Khatabari Khanda , which also was subsequently included in Nalbari town consequent upon the exten sion of the town area. The plaintiffs pleaded that one Manjura Seikh, S/o. Lt. S ukhna Seikh had 1/3 share in the land covered by dag Nos. 918 and 262. The defen dant Nos. 1 to 5, who are his heirs, having transferred their entire share in th e said property in favour of proforma defendant Nos. 9 to 14 by registered deeds of sale on different dates, divested themselves wholly of their right, title an d interest therein so much so that they ceased to have any semblance thereof in any portion of the land covered by suit dag No. 918 as well as dag No. 262 and o ther adjoining dags. They were not in possession thereof as well. In course of s uch transfer, the defendant Nos. 1 to 5 sold 2 khatas 10 lechas of land in their possession in favour of proforma defendant No. 9 by a registered sale deed No.2 11/86 by wrongly mentioning dag No. 262. However, the boundaries of the plot wer e correctly mentioned and the possession thereof was handed over to the purchase r in terms thereof. The defendant No. 9 thereafter sold this land in favour of the plaintiff Nos. 3, 5 & 6 by registered sale deed No. 334/91 on 07.02.1991 again wrongly inserting dag No. 262. According to the plaintiffs, it transpired later on that out of the 2 kathas 10 lechas of land so conveyed, 2 kathas and 2 ‰ fell in dag No. 918 an d the remaining 7 ‰ lechas in dag No. 262. According to them, they were unaware of these inadvertent mistakes in the dag number, which, however, was not very ma terial as the boundaries tallied in full. According to the plaintiffs, on 17.02.1994 the defendant No. 1 f 07. alsely instituted Case No. 276 M/93 under section 145 Cr.P.C against the plainti ff Nos. 1, 2, 3 & 7 in the Court of the Addl. District Magistrate, Nalbari, in c onnection with which 1 bigha of land belonging to the plaintiffs was attached vi de order dated 17.02.1994. In the said proceeding, which was, eventually, conver ted into one under section 146 Cr.P.C though the plaintiff Nos. 1, 2, 3 & 7 subm itted their written statement resisting the claim of the defendants, the leaned Addl. District Magistrate, by order dated 29.11.1994 declared the possession of the disputed land measuring 1 bigha in favour the defendant No. 1. On a revision petition being filed by the plaintiff Nos. 1, 2, 3 & 7 in the Court of the lear ned Sessions Judge, Nalbari, the land was ordered to be reattached by order date d 03.12.1994. The defendant No. 1 approached this Court with Crl. Revn. No.653/1 994 and by order dated 21.12.1994 the operation of the order dated 03.12.1994 ha ving been stayed by this Court, the defendant Nos. 1 to 5 entered into possessio n of the disputed land and raised illegal structures thereon. The defendant No. 2 also surreptitiously offered a portion of the suit land as security against lo an as guarantor with the Central Bank of India, Barbhag Solmari Branch/defendant No. 15, though, he was bereft of any right, title and interest therein. The su it was thus filed. The defendant Nos. 1 to 5 in their written statement, while assa 08. iling the maintainability of the suit, insisted that Nalbari town and Khatabari Khanda are two separate revenue villages and that the land of dag No 262 was wel l situated within Khatabari Khanda. They admitted about their share in the land covered by dag No. 918 having devolved on them from their predecessor-in-interes t, but denied to have sold the same to any person. According to them, the plaint iff Nos. 1, 2, 3 & 7 having unauthorizedly tried to make a forcible entry into a portion of land measuring 1 bigha covered by dag No. 918, they had to institute a proceeding under section 144 Cr.P.C. They claimed possession of the suit land as a whole and denied in categorical terms to have sold the same to the proform a defendant No. 9 as contended by the plaintiffs. While pleading that the plaint iffs are members of different families and that therefore, the perception of par tition is absurd, they referred to the admission of the plaintiff No. 1 made in Case No. 276 M/93 that land under dag No. 262 was sold to proforma defendant No. 9 and not the one included in dag No. 918. They endorsed the order of the learn ed Addl. District Magistrate, Nalbari in declaring possession of the 1 bigha of land covered by dag no. 918 in their favour and affirmed that this land included in Schedule C to the plaint had already been laid with the Central Bank of Indi a, Barbhag Solmari Branch, defendant No. 15 as security for the loan obtained fr om it. The defendant No. 15, Central Bank of India, Barbhag Somari Bran 09. ch in its written statement affirmed that land measuring 1 bigha covered by PK P atta No. 166 dag No. 918 of Nalbari town had been placed with it as security for loan by creating equitable mortgage. On the pleadings of the parties, the following issues were frame

10. d:- (cid:28)1. Whether there is cause of action for the suit? 2. Whether suit is maintainable in its present form? 3. Whether suit is bad for non-joinder of Nazir and Atowar and who were successo r-in-interest as shown in genealogical table in plaint and misjoinder of plainti ffs No.4-17 as alleged in W/S? 4. Whether suit is time barred? 5. Whether entire suit patta had of dag No. 918 and adjoining land under dag No. 262 were included in the same dag and again split up as alleged in plaint.

6. Whether any one of the contesting defendant No. 1-5 had transferred any porti on of land of dag No. 918 as alleged in plaint? 7. Whether the plaintiffs have exclusive right, title and interest over entire a re of suit dag No. 918 as mentioned in Schedule ’B’ of plaint by right of inheri tance. 8. Whether plaintiffs had ever been in possession of land of Schedule C and enti tled for a decree of khas possession as prayed? 9. Whether order passed in case No.276 m/93 and subsequent orders of C.M. 39/94 and Civil Revision 653/94 and not buiding open plaintiffs; 10. Whether plaintiff are entitled to the relief as prayed. 11. What other relief/reliefs parties are entitled to? Additional Issues: 1. Whether the equitable mortgage created by defendant No. 2 in favour of defend ant No. 15 is void in operative and whether defendant No. 15 has acquired the ri ght of mortgage by virtue of such mortgage. (cid:29)

11. The parties examined several witnesses and proved various docume nts, including sale deeds and revenue records, in particular, Zamabandi and chit ha of the land. Revenue paying receipts were also proved.

12. The learned trial court, on an analysis of the evidence on recor d, traced the land covered by dag Nos. 918 and 262 to a bigger plot included ori ginally in dag No. 447 measuring 12 bighas 1 katha 4 lechas mutated in the names of the predecessor-in-interest of the defendants as far back as in the year 190 4. It came to the conclusion that the suit dag No. 918 had been resurveyed from old dag No. 655 bifurcated from original dag No.447 containing land measuring 2 bighas 2 kathas 14 lechas situated in the Nalbari town, Mouza Khata. Similarly, land measuring 8 bighas 4 kathas 10 lechas under dag No. 262 had been resurveyed from dag Nos. 85 and 86 under Khatabari village, which included a portion of da g No. 447. The learned trial court, thus concluded that dag Nos. 918 and 262 the refore, did exist separately since the time of the revenue settlement that had t aken place in between. That this established as well the separate identity of th e revenue villages, namely, Nalbari and Khatabari was also mentioned. That the p laintiffs had failed to prove that dag No. 262 was wrongly included in the sale deeds by which they claimed to have purchased the suit land was recorded. It not iced as well, absence of any step taken by them before the revenue authority to cause necessary corrections in the dag number in their sale deeds. It recorded t he admission of the plaintiffs as well that at the time of purchase, they did no t measure or survey the area of the land covered by dag Nos. 918 and 262. That, admittedly, 1 bigha of land covered by dag No. 918 was not in possession of the plaintiffs was recorded as well. The learned trial court noted that out of the t otal area of 2 bighas 2 kathas 14 lechas claimed by the plaintiffs to be covered by dag No. 918, there was no mention of the said dag number in any of the sale deeds, except those proved as Ext. 8, 9, 10 and 26. That the sale deeds proved a s Exts. 1, 5 and 7 had no specific boundary was also referred to by the learned trial court. It was observed as well that the shares of the plaintiffs’ vendors , namely, Safina and Kamal Mussalmani in suit dag No. 918 had remained unproved. It, thus, came to the conclusion that barring the land mentioned in Exts. 8, 9, 10 & 26, the plaintiffs had not acquired any right, title and interest in the s uit dag and, thus decreed the suit partially as above. While doing so, it notice d, inter alia, the plaintiffs’ version that no partition had been effected in re spect of the land involved.

13. The learned lower appellate court, as the impugned judgment and order would reveal, in substance, generally affirmed the findings of the learned trial court. It observed in addition that the plaintiffs’ sale deeds proved as Exts. 3 to 12 and 22 to 24 did not mention the suit dag No. 918 and those proved as Ext. 8, 10, 22 and 23 did not contain boundaries of the land as well. That t he plaintiff No. 1 in his testimony did not state about the execution and regist ration of these deeds and that he had admitted in Case No.276 m/93 that the defe ndants did get the boundaries of the land covered by dag Nos. 262 and 918 measur ed and demarcated by the jurisdictional lat mandal without any demur of the plai ntiffs was recorded.

14. Mr. Choudhury has urged that as the suit was essentially one for partition, the learned courts below having omitted to act in terms of Order 20 Rule 18 of the Code of Civil Procedure (hereafter for short referred to as the C ode), the impugned judgments are non est in law. According to him, apart therefr om, the analysis of the pleadings and the evidence on record resorted to by the learned courts below was wholly misdirected as in undertaking the same no effort was made to ascertain the extent of share of the suit land inherited by the def endant Nos. 1 to 5 and sold by them by various sale deeds. In absence of any suc h endeavour, the allocation of 1 bigha of land covered by PK Patta No. 166 and d ag No. 918 Schedule C to the plaint in favour of the defendants was grossly erro neous, he urged. The learned courts below in partially decreeing the suit having disregarded the fundamental principle that in case of conflict of dag numbers o f a plot of land, the boundaries thereof, prevail for its identification, the as sessment of the evidence on record is incurably vitiated by such legal infirmity and, thus, the impugned judgments and orders are liable to be set aside, he ple aded. That in deciding the suit, the learned courts below also overlooked the ap plication of the personal law of the parties to ascertain their shares in the su it land as a vitiating factor was also underlined. Mr. Choudhury, the learned counsel for the respondents, in reply 15. , besides contending that in absence of any pleading tracing the source of the p laintiffs’ title in the suit land, the evidence of purchase thereof, was, even o therwise inadmissible in law, maintained that as they failed to prove on the str ength of their sale deeds that the land under dag No. 918 had been purchased by them, the suit ought to have been dismissed as a whole. According to the learned counsel, the suit was mala fide for making wrongful gain as a sequel to the pro ceedings under section 145 Cr.P.C initiated by the respondents and that in absen ce of any complaint by them before any concerned authority about wrong recording of dag numbers in their sale deeds, no interference, in exercise of this Court’ s power under 100 of the Code, is called for. The plaintiffs having failed to pr ove their case, the suit ought to have been dismissed, he urged. The materials on record and more particularly, the judgments of 16. the learned courts below have been duly considered. The rival submissions have a lso been taken note of. Though, the plaint does not, in clear terms, disclose th e source of the title to the entire suit land as claimed by the appellants-plain tiffs, reference of purchase of 2 kathas 10 lechas of land from proforma defenda nt No. 9 has been made therein with the rider that in the instrument of sale, th e dag number had been wrongly recorded as 262 over the entire plot. They did not mention as well the area of land inherited by the defendant Nos. 1 to 5 as heir s of Manjura, son of Sukhna Seikh. Dag Nos. 262 and 918 had their roots in origi nal dag No. 447 under Khatabari Mouza and their separate identity did subsist at all relevant points of time. The specific plea of the contesting defendants had through out been that they had not sold any land covered by dag No. 918. That, admittedly, the contesting defendants had been in possession of the Schedule C l and, the subject matter of 146 Cr.P.C proceedings is a matter of record. The lea rned courts below, on an analysis of the evidence on record both oral and docume ntary, arrived at the finding that the plaintiffs had failed to prove the identi ty of the suit land covered by dag No. 918 with the plot(s) purchased by them by the various sale deeds i.e. Exts. 3 to 12 and 22 to 24. Absence of boundaries i n some of the sale deeds was also mentioned. However, in the face of the persistent plea of the appellants-plaintiffs that th e defendant Nos. 1 to 5 had divested themselves of the entire share of the prope rty inherited from Manjura Seikh and that they (appellants-plaintiffs) had acqui red their right, title and interest in the suit land by dint a series of purchas e, in the opinion of this Court, an endeavour ought to have been made by the lea rned courts below to ascertain the share of these defendants and the extent of t ransfer by sale thereof. If needed, the entire area within which, admittedly, th e lands under dag Nos. 918 and 262 are located, ought to have been surveyed thro ugh a Commissioner for necessary identification. As, the appellants-plaintiffs t o reinforce their claim in the suit land had proved their sale deeds, in my cons idered view, the same ought to have been duly investigated into at the spot with out, however, limiting the exercise only on records. This is more so, as the sui t, admittedly, was one seeking partition of the appellants-plaintiffs’ land, whi ch, in terms of Order 20 Rule 18 warranted declaration of the rights of the part ies interested in the suit property. None of the learned courts below did specif y the rights of the parties in the suit land as contemplated in Order 20 Rule 18 of the Code and stopped at adjudging the right, title and interest of the appel lants-plaintiffs only to a portion thereof. The preliminary decree for partition in favour of the appellants-plaintiffs described in Schedule B to the plaint an d the appointment of a Commissioner to effect the partition in terms thereof bes ides being opposed to the prescriptions of Order 20 Rule 18 of the CPC is obviou sly untenabsle in face of the rejection of their claim of right, title and inter est to that land as a whole. On a cumulative consideration of all above, I am of the view tha 17. t the impugned judgment and order rendered in the appeal in affirmation of the d ecision of the learned trial court is not sustainable in law and on facts and is liable to be interfered with. Ordered accordingly. The judgment and order dated 26.06.2001, passed by the Civil Judge (Sr.Divn) Nalbari in TA No.02/2001 is set aside and the matter is remanded to the learned lower appellant court for a fre sh disposal on merits. The appeal is allowed. No costs.