High Court
Case Details
RSA 82/2002 PRESENT HON’BLE MR JUSTICE NISHITENDU CHAUDHURY JUDGMENT AND ORDER(CAV)
Facts
This second appeal has been preferred by the appellant-plaintiff ag ainst the concurrent findings arrived at by both the Courts below dismissing the suit of the plaintiff-appellant. The plaintiff filed a suit in the Court of learned Assistant District J 2. udge No.1, Cachar, Silchar praying for declaration or right, title and interest and recovery of khas possession of a plot of land measuring 11 kathas 7 chataks 8 gondas 2 koras and 2 krantis appertaining to various dags and bounded by diffe rent boundaries mentioned in the schedule to the plaint. According to the plain tiff, the suit land alongwith other lands originally belonged to one Raj Kishor e Nath and his brother Sarat Chandra Nath, who transferred the land in favour o f one Haidar Mia Mazumdar. Haidar died leaving behind five sons, namely, Abdul M azid, Abdul Rehman, Abdul Hamid, Abdul Manafr and Abdul Khalek. Out of the afore said five sons of Haidar Mia, three sons, namely, Abdul Manaf, Amdul Mazid and A bdul Rehman transferred their shares in various dags and pattas in favour of Nam ar Ali. Namar Ali also purchased the share of Abdul Hamid , another son of Haida r Mia and thus, Namar Ali purchased the title of four sons of Hamid Ali leaving only one son, namely, Abdul Khalique. According to the plaintiff, Namar Ali bei ng in possession of the land within definite boundaries sold the said land to hi m by a registered sale deed dated 14.9.1995(Ext.4) and handed over possession. C onsequently, the plaintiff continued in enjoining the same until he was disposse ssed by the defendant No.1, namely, Alauddin Laskar. According to the plaintiff, there was a proceeding under Section 145 Cr.P.C. being Case No.389 (M)/ 1995, but after the said proceeding was dropped, on 30.11.1995 the defendant disposses sed him and in the meantime, in collusion with the predecessor-in-interest of th e proforma defendant executed a sale deed on 27.10.1995 with regard to the suit land. The said vendor Abdul Khalique, another son of Haidar Mia never owned or possessed the land in question. The plaintiff therefore, made a prayer that the said sale deed be declared void, illegal, inoperative and liable to be delivered up and cancelled. While proforma defendant did not contest the suit, the princ ipal defendant No.1 Alauddin Laskar submitted the written statement. The specifi c stand in the written statement of the said defendant is that in a particular d ag, namely, dag No.85, the vendor of the plaintiff had acquired only 13 kathas 8 chataks 12 gondas. It is curious to mention here that the land originally belon ged to Raj Kishore Nath, who sold out to Haidar Mia and thereafter Haidar Mia so ld it to Namar Ali who, in tern, sold his share to plaintiff. Similarly, one son of Haidar Mia transferred his title in favour of the contesting defendant No.1. This transaction having taken placed over a long period of years, two successiv e settlement operations had been conducted during the intervening period and as such, Dag Nos. and Patta Nos. mentioned in various sale deeds virtually became confusing. Be that as it may, the Ext.4, sale deed by which the plaintiff claim ed to have purchased the suit land measuring 11 kathas 7 chataks 8 gondas 2 kor as 2 krantis contain recital of definite and specific boundaries. But the def endant did not mention as to whether the shares of five sons of Haidar Mia had t itle in other dags and as to whether there was at all any possession by metes an d bounds corresponding to dags and pattas of the land in question; or as to whet her amicable family settlement as claimed by the plaintiff in the plaint on the basis of possession was the based for enjoyment of land by heirs of Haidar Mia a nd sold to their respective vendees. 3. The learned trial Court on the basis of the aforesaid pleadings framed as many as nine Issues. Out of which Issue Nos.7 and 8 relate to devolution of title on the plaintiff and validity of sale deed of the defendant No.1. The plai ntiff examined altogether six witnesses and exhibited the sale deed in original including Ext.4, the document of title on the basis of which the suit had been f iled. Defendants examined three witnesses and they also produced some documents including their deed of title. The trial Court hold that the suit for declarat ion of right, title and interest of the plaintiff is not maintainable because al l other pattadars of the original patta were not made parties. In so doing, lea rned trial Court failed to note in its judgment the prayer portion of the suit f or declaration of right, title and interest over the suit land and recovery of k has possession thereof from defendant No.1, who is described to be a trespasser to the land. The learned trial Court observed in the judgment inter alia as foll ows :- (cid:28) &.. & &.. & &.. & & &. &.. & &.. & &.. & & &. Thus, it revealed that the description of land given in the instrument ( Ext.4) does not tally with those mentioned either in the plaint or in the eviden ce of material witnesses on record. The recital of the schedule to the sale de ed marked as Ext.4 as to the delivery of entire land measuring 11 k. 7 ch. 8 Gon das 2 koras 2 kranti within the only dag No.85 under 2nd R.S. Patta No.55 is fou nd to be absurd as well as in violation of the permission granted vide Ext.4(b). In view of the above discussions, in my opinion, the plea of the defendant No. 1 in his W/S that the suit land as has been described in the schedule to the pla int is bad, imaginary and not identifiable in the locality, cannot be ruled out . (cid:29) Learned trial Court further held that Namar Ali Mazumdar could not have transferred his title in respect of 11 kathas 7 chataks 8 gondas 2 koras 2 kranties in Dag No.85 under R.S.patta No.51 etc. With the aforesaid observatio ns, the learned trial Court dismissed the suit on 24.9.1999. 4. Aggrieved, the plaintiff preferred Title Appeal No.16/1999 in the Court of learned District Judge, Cachar at Silchar. The learned District Judge although observed that sons of Haidar Mia were possessing their respective sh ares by amicable family arrangement, but virtually dittoed the findings of the l earned trial Court without independent application of mind and observed in para graph 9 as follows :- (cid:28) & &.. . . . . . . & & & & &.. & &.. & & &.. & &.. & &.. Thus, it reveals from Ext.4 and other relevant documents that the descriptions of the land given in Ext.4 does not tally with those mentioned either in the pl
Legal Reasoning
7. Order VII Rule 3 of the Code of Civil Procedure only requires that if plainti ff’s claim of title in respect of specific immovable property, it should be sui tably identified either by boundaries or by revenue index i.e. dags and pattas. So, if the demised land is described within specific boundaries, the same would be sufficient compliance of the said provision. It is settled law that when ther e is dispute between dag number and boundaries, the boundaries shall prevail. 8. Here, in this case, sale deed dated 14.9.1995 specifically mentioned the four boundaries of the land in question. I have compared the land with the plai nt and found the boundaries of Ext. 4 and the land in schedule to the plaint are identical and there is no variation whatsoever. The findings of the learned Co urts below particularly trial Court, that there is no mention about delivery of possession in Ext. 4, also appears to be perverse in asmuch as, there is specifi c recital in Ext. 4 that the same land is handed over to the vendee within the specific boundary mentioned in the deed. This finding of the Courts below as to variance of boundaries of schedule and that of the plaint alongwith observation as to the absence of the recital that possession was handed over to the vendee, therefore, are clearly perverse which gave rise to substantial questions of law within the meaning of Section 100 of the Code of Civil Procedure. In this view of the matter, the substantial question No.1 is decided in favour of the appella nt. As observed above, a suit for declaration of title alongwith recovery of pos session with a prayer for partition can not fail for lack of non-joinder of co-p attadars. There is a registered sale deed in favour of the petitioner which is e xecuted duly and validly in respect to the suit land. Having regard to the obse rvations made above, the second substantial question of law is also liable to be decided in favour of the appellant /plaintiff. 9. It is clear from the observations made above that merely by deciding the aforesaid two substantial questions of law, the dispute is made out in this cas e between the parties cannot be effectively brought to an end. The plaintiff has a registered sale deed in his hand. The defendant is aware that the said sale d eed in favour of the plaintiff is anterior to execution of his sale deed but eve n thereafter there is no attempt on the part of the defendant to get the same ad judged illegal or cancelled. There are materials on record in his favour indicat ing that his vendor had title to the property left behind by Hamid Mia which is the common source of title of both the parties. The defendant wants the court t o believe that before execution of the sale deed Ext.4, the title of Namar Ali h ad been exhausted. But to establish the same the title of Haidar Mia in all the dags and pattas including the suit land have to be considered. This burden lies on the defendant but the same has not been discharged. As held by the Hon’ble su preme court in Santosh Hazare reported in (2001)2SCC179, the first appellant Co urt being the last Court of facts and law is duty bound to look into all materi als by independent application of mind without dittoing merely the findings of t he trial Court as indicated above. The lower appellate Court therefore, has clea rly fell into an error in exercising its jurisdiction. For the ends of justice, I am inclined to set aside the judgment and decree dated 17.11.2001 passed by th e first appellate Court and remand the appeal for decision afresh. 10. In view of the observations made hereinabove, the second appeal is allo wed. The appellant having been dispossessed from the suit land in the year 1996, the first appellate Court shall make an endeavour to decide the matter expediti ously preferably within a period of two months from the date of receipt of recor ds. Send down the records immediately to the first appellate Court. No costs.
Arguments
aint or n the evidence of the materials witnesses on record. (cid:29) 5. Against the aforesaid concurrent findings, the plaintiff has approa ched this Court through this present second appeal. The second appeal was admitt ed on 15.5.2002 on the following substantial questions of law :- 1) Whether the sale deed i.e. Exhibit-4 having been executed in favour of the pl aintiff in earlier point of time will prevail upon the sale deed i.e. Exhibit C executed in favour of the defendant No.1 in latter point of time and confer righ t title and interest of the suit land on the plaintiff. 2) Whether the suit of the plaintiff being a suit under Section 31 of the Specif ic Relief Act i.e. for cancellation of a sale deed executed in favour of the Def endant No.1 by the Proforma Defendant No.2 to 4 and also a suit under Section 34 of the Specific Relief Act for declaration of right of the plaintiff against th e Defendant No.1 who is denying title of the plaintiff can be dismissed for non- joinder of all the co-pattadars of the patta in question more so in view of the provisions of the Order 1 Rule 9 of the Civil Procedure Code. (cid:29) 6. I have heard Mr. P.Roy, learned counsel for the appellant (plainti ff) and Mr. B.Banerjee, learned counsel for the respondent (defendant). In addi tion to the aforesaid two substantial questions of law, both the learned counsel have been heard on one additional substantial question of law, namely, as to w hether the finding of the learned Courts below that the schedule mentioned in Ex t.4 does not tally with the schedule of the plaint is perverse or not ? So far a s the substantial question No.1 is concerned, learned counsel, Mr. Roy has argue d that the plaintiff having purchased the suit land by Ext. 4 on 14.9.1995 and having come to the possession of the suit land, the defendant No.1 by subsequent sale deed dated 27.10.1995, could not have any title whatsoever in respect the reto. Although both the parties agree that original title holder and pattadar w as Haidar Mia, but defendant No.1 claimed to have purchased the share of Audul Khalique one of the five sons of Haidar Mia whereas, the plaintiff’s vendor Nam ar Ali had purchased four shares of other four sons of Haidar Mia. If Namar Ali was in possession of the land pursuant to the purchase from four sons of Haidar Mia and he had handed over the possession to the plaintiff on 14.9.1995, the le gal heirs of Abdul Khalique , fifth son of Haidar Mia could not have handed o ver the possession of the same land without getting Ext.4 cancelled so as to exe cute a sale deed with respect to the suit land on a subsequent date. Without entering into that aspec t of the matter, learned Courts below proceeded in the premises that the schedul e of Ext. 4 does not tally with the plaint. This premise of the learned Courts below is based on the premise that within the specific boundary mentioned in the sale deed Ext.4 land of all dags and pattas originally owned by Haidar Mia must remain or that land must have been sold as per dag number and patta number as mentioned in the sale deed and not as per the four boundaries shown at the i pse dixit of the principal defendant who has not led any evidence to show that how the land of Haidar Mia has been described in various dags and how the same was apportioned amongst sons and daughters and how sales in specific dags were made.