Judgment · High Court · 2012

The appellant as plaintiff instituted the aforesaid suit praying for declaration of right, title and interest over the suit land described in Sc hedule-2 to the plaint and confirmation of possession, apart from a decree for p ermanent injunction restraining the principal defendant No.4 from entering into the suit land and also for issuance of precept to the defendant No.3 to record t he name of the plaintiff on the basis of the right, title and interest. The cas e of the plaintiff as projected in the plaint is that the land described in Sche dule-1 to the plaint being the ancestral property was inherited by him alongwith other co-shareres, namely Kutina Bibi and Sitai Bibi and after the death of Sit ai Bibi, the plaintiff inherited her 1/3rd share over Schedule-1 land and, there fore, became the owner in respect of 2/3rd of the Schedule-1 land. It has furth er been pleaded that there was mutual partition amongst the plaintiff and the ot her co-shareres, namely Kutina Bibi and the mother of the proforma defendant No. 5, by virtue of which the land described in Schedules-2 and 3 fell in the share of the plaintiff, out of which he sold 1.5 decimal of land from Schedule-III lan d, which is the southern side of the suit land, i.e. Schedule-II land. The furt her case of the plaintiff is that the defendant No.4 though has no right, title and interest over the suit land she in connivance with the principal defendant N o.3 recorded her name in the record of rights in place of the plaintiff and arme d with the order of mutation, threatened the plaintiff from dispossession, for w hich the suit has to be filed for declaration of right, title and interest and f or confirmation of possession, apart from injunction. [3] The suit was contested by the defendant No.4 by filing written s tatement contending inter alia that the suit is not maintainable; that the plain tiff is not in possession of the suit land; that the suit is bad for waiver, acq uiescence and estoppel; that the boundary in the Schedules-I, II and III have no t been correctly described in the plaint; that the suit is barred by limitation and that the suit land was purchased by Dhirendra Kr. Chakraborty by registered deed of sale dated 21st October, 1967 from its owner Kutina Bibi, who on 22nd Ju ly, 1982 sold the said land in favour of the said defendant. It has further bee n contended that since the year 1967 Dhirendra Kr. Chakraborty and, thereafter, from 1982 the defendant No.4 has been in possession of the land continuously wit hout any disturbance from any quarter. [4] med the following issues for determination:- The Trial Court on the basis of the pleadings of the parties fra

#4. Is there any cause of action for the suit? Is the suit maintainable in its present form? Is the suit bad for defect of parties? Whether the plaintiff has right, title, interest and possession over the suit land?

#5. To what relief or reliefs the plaintiff is entitled to get in this suit? [5] The plaintiff in support of his claim examined 3(three) witnesse s. The defendant No.4 has examined 9(nine) witnesses in support of her claim. Both the parties have proved a number of documents including the sale deeds exec uted in the years 1967 and 1982 as Exhibit-F and Exhibit-I, respectively. The w itnesses were duly cross-examined by the respective parties. The Trial Court up on appreciation of the evidences on record vide judgment and decree dated 10th A ugust, 1999 decreed the suit of the plaintiff declaring the right, title and int erest and possession. The precept was accordingly issued to the revenue authori ty for recording the name of the plaintiff in the revenue record in place of the defendant No.4. [6] Being aggrieved, the defendant No.4 preferred Title Appeal No.32 /1999 in the Court of the learned Civil Judge (Sr. Division), Karimganj, which h as been allowed vide judgment and decree dated 6th September, 2001 by setting as ide the judgment and decree passed by the Trial Court, thereby dismissing the su it of the plaintiff. The First Appellate Court has set aside the decree passed by the Trial Court by holding that though the plaintiff claimed the right, titl e and interest over the suit land by right of inheritance, he could not, however , prove that he is the grandson of Sayed Ali, who is admittedly the original own er of the suit land. The said finding has been recorded on the basis of the Ex hibits-C and D and also the evidence of PW-3. The First Appellate Court has als o negated the contention of the plaintiff that the land, which was transferred v ide Exhibit-F and Exhibit-I sale deeds, is not the suit land and recorded the fi nding that the suit land is the land in respect of which Exhibit-F sale deed was executed by Kutina Bibi in favour of Dhirendra Kr. Chakraborty and Exhibit-I by Dhirendra Kr. Chakraborty in favour of the defendant No.4. Hence, the present appeal. [7] 2002 on the following substantial questions of law:- The appeal was admitted for hearing vide order dated 3rd April, (i) der 41 Rule 31 CPC while reversing the judgment and decree of the Trial Court? Whether the First Appellate Court has complied with the provisions of Or (ii) Whether the First Appellate Court could have dismissed the suit on the b asis of the written statement and evidence of the defendant which did not relate to the suit land as described in the Schedule to the plaint? [8] ppellant/plaintiff. None appears for the respondents. I have heard Mr. HRA Choudhury, learned senior counsel for the a [9] The learned senior counsel for the appellant referring to the ju dgment and decree passed by the First Appellate Court has submitted that since t he defendant No.4 in the written statement filed did not deny the claim of the p laintiff that he has inherited the suit land being the grandson of Sayed Ali, th e First Appellate Court ought not to have held that the plaintiff could not prov e that he is the grandson of Sayed Ali and hence inherited the suit land and acq uired the right, title and interest. It has also been submitted that the land d escribed in Schedule-II of the plaint, in respect of which the plaintiff has pra yed for a decree declaring right, title and interest and confirmation of possess ion is not the land as described by the defendant No.4 in Schedule-A to the writ ten statement, which is the land, i.e. the land purchased by the defendant No.4 from Dhirendra Kr. Chakraborty by Exhibit-I. The learned senior counsel, theref ore, submits that the finding recorded by the First Appellate Court that the sui t land (Schedule-II) and the land transferred vide Exhibits-F and I is the same land, is perverse. It has also been submitted that the First Appellate Court be ing the final Court on facts, though is required to discuss all the evidences on record, both oral and documentary, more so when it is a judgment of reversal, i t did not discuss the entire evidences while reversing the judgment and decree p assed by the Trial Court. [10] I have considered the submissions advanced by the learned senior counsel for the appellant. As discussed above, the Trial Court decreed the sui t of the plaintiff/appellant declaring the right, title and interest and confirm ation of possession and issuing the precept. The said decree, however, has been set aside by the First Appellate Court vide judgment and decree dated 6th Septe mber, 2001 passed in Title Appeal No.32/1999. It appears from the judgment pass ed by the First Appellate Court that the relevant evidence, both oral and docume ntary, for recording the finding on the issues framed have been discussed includ ing the oral testimony as well as the documentary evidence and hence, the judgme nt passed by the First Appellate Court does not suffers from non compliance of t he provisions of Order 41 Rule 31 CPC. [11] The First Appellate Court in the impugned judgment and decree ha s also discussed the evidences on record, both oral and documentary, relating to the identity of the land and also the contention of the defendant No.4 that the suit land has not been properly described in Schedule-2 to the plaint, which la nd has been sold by Kutina Bibi, one of the legal heir of Sayed Ali to Dhirendra Kr. Chakraborty vide Exhibit-F, who in turn sold it to the defendant No.4 vide Exhibit-I both by registered deeds of sale. It appears from the judgment passed by the First Appellate Court that vide Exhibit-F sale deed dated 21st October, 1967, Kutina Bibi, who is admittedly one of the legal heir of Sayed Ali, the ori ginal owner, transferred the plot of land bounded by on the East- road leading t o the BSF Camp, on the West- Go-Path (Cattle Path), on the North- land of Abdus Sattar (the plaintiff) and on the South- the land requisitioned for BSF. The sa id Dhirendra Kr. Chakraborty vide Exhibit-I sale deed dated 22nd July, 1982 sold the land to the principal defendant No.4, which is bounded by on the East-road leading to the BSF Camp, on the West-Go-Path (Cattle Path), on the North-land of Dilip Kr. Paul and on the South-the land requisitioned for BSF. While describi ng the lands, except giving the boundary and the ward number etc., no dag number has been mentioned in both the sale deeds. The land, however, is identifiable by the boundary given. Except the boundary on the northern side, the other boun daries described in Exhibits-F and I are the same and identical. The First Appe llate Court has discussed the evidences on record and found that Abdus Sattar so ld the land in favour of one Akmol Ali, vide Exhibit-G, who in turn vide Exhibit -K sale deed sold it to Dilip Kr. Paul and that is how the person on the norther n boundary of the land described in Exhibit-I has been changed. Those sale deed s were executed after execution of the Exhibit-F sale deed by Kutina Bibi in fav our of Dhirendra Kr. Chakraborty. The First Appellate Court, therefore, has hel d that the land transacted vide Exhibit-F and Exhibit-I sale deeds in fact the l and over which the plaintiff has claimed right, title and interest. It also app ears from the judgment and decree passed by the First Appellate Court that the p laintiff though has claimed right, title and interest in respect of Schedule-II land by inheritance, he could not prove that he is the grandson of Sayed Ali and brother of Kutina Bibi and Sitai Bibi. Admittedly the name of the plaintiff’s father is Makram Ali. It appears from Exhibit-C and Exhibit-D that the name of the father of Makram Ali is not Sayed Ali but one Kurman Ali. There is no evide nce on record that Kurman Ali and Makram Ali is one and the same person. That b eing the position, the First Appellate Court did not commit any illegality in re cording the finding that the plaintiff could not prove that Makram Ali is the so n of Sayed Ali and the plaintiff being the son of Makram Ali has inherited the p roperty, though there is no specific plea in the written statement denying the c laim of the plaintiff that he is the grandson of Sayed Ali. The learned senior counsel for the appellant, though argued about the perversity in recording the a foresaid findings, nothing could be demonstrated how such findings are perversed . [12] In view of the aforesaid discussion, I do not find any merit in the appeal and hence, the same is dismissed. No costs. The Registry is directed to send down the records forthwith.