High Court · 2012

The appellants as plaintiffs instituted the aforesaid suit in th 2. e court of the learned Civil Judge(Junior Division) No. 1, Morigaon for declarat ion of their right, title and interest in respect of 1 katha 10 lechas of land c overed by Dag No. 1541 of periodic patta No. 150 of Morigaon Revenue town kissa m, more fully described in Schedule A to the plaint, and also for delivery of kh as possession by evicting the defendant No. 1 therefrom, contending inter alia t hat out of the total land measuring 4 bighas 1 katha 3 lechas originally belongi ng to Dhekera Seikh, the great grand father of the principal defendant No. 1, la nd measuring 2 kathas was jointly inherited by the two sons namely; Asoru Seikh and Billat Seikh, after the death of Dhekera Seikh, having equal shares. It was also the pleaded case in the plaint that 1 katha of land which fell in the share of Asoru Seikh was allotted to his first son namely Gaju Seikh (principal defen dant No. 1) as the other two sons and four daughters, who are the proforma defen dant Nos. 4 to 9 in the suit, relinquished their right over the suit land becaus e of allotment of the other land originally belonged to Asoru Seikh. It is also the pleaded case of the plaintiffs that Billat Seikh had two sons namely; Kalu S eikh and Alijan who, however, predeceased Billat Seikh and 1 katha of land falli ng in the share of Billat Seikh was inherited by Kalu Seikh and Furkan Ali, sons of Alijan. The plaintiffs’ further pleading is that Kalu Seikh transferred the entire land measuring 2 kathas, which includes his share of 10 lechas, in favour of Musstt. Majera Khatun, on the strength of which though she filed Title Suit No. 2/1989 the title of Majera Khatun was declared in respect of 10 lechas only leaving out the remaining 1 katha 10 lechas. It is the further case of the plain tiffs that Gaju Seikh, Kalu Seikh and Furkan Ali also by registered deed of sale dated 16.8.1983 (Ext. 1) transferred the entire 2(two) kathas of land in favour of the plaintiffs and that is how the plaintiffs have acquired right over 1 kat ha 10 lechas of land as by the said sale deed Kalu Seikh also sold 10 lechas of land which was already transferred in favour of Majera Khatun. The plaintiffs fu rther contended in the plaint that after such purchase and delivery of possessio n the plaintiffs allowed Gaju Seikh (principal defendant No. 1) to stay over the land as Chowkidar on condition that he will vacate the land as and when asked f or. The plaintiffs thereafter though has asked Gaju Seikh to vacate the land but as he refused to do so they had to file the suit for declaration of right, titl e and interest and recovery of possession in respect of 1 katha 10 lechas of lan d. 3. The Principal defendant No. 1 and the proforma defendant Nos. 4 and 5 have only contested the suit filed by the plaintiffs by filing separate wr itten statements. The sisters of Gaju Seikh namely the proforma defendant Nos. 6 to 9 as well as Furkan Ali (proforma defendant No. 1) Kalu Seikh (proforma defe ndant No. 2) and Majera Khatun (proforma defendant No. 2) did not contest the su it. 4. ties framed the following issues for consideration and decision: - The learned trial court on the basis of the pleadings of the par (cid:28)1. Whether there is a cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is bad for non-joiner and mis-joinder of parties? 4. Whether the plaintiffs purchased the plot of land from actual owner - princip al defendant and proforma defendant Nos. 1 and 2 by a registered sale deed No. 8 37/83 with delivery of possession? 5. Whether the defendant Gaju Seikh admitted plaintiffs’ right, title and intere st over the S/L in his deposition when he deposed as DW. 5 in T.S. 2/89? 6. Whether the plaintiffs after taking possession of S/L erected bamboo fencing, installed a tube well and constructed a pakka kitchen and allowed the principal defendants to stay there as chowkidar?

7. Whether the same land was sold earlier by Md. Kalu Seikh (proforma defendant No. 2) to Majera Khatun? 8. Whether on the date of execution of sale deed Asaru Seikh the father of the a nswering defendants was alive and as such did not acquire any right, title and i nterest over the S/L to sell it? 9. Whether the plaintiffs have any right, title and interest over the S/L/ 10. To what other relief/reliefs the parties are entitled? (cid:29)

5. During the course of trial the plaintiffs examined four witnesse s apart from proving a number of documents including the sale deed dated 16.8.19 83 as Ext. 1. The defendants also examined three witnesses namely the principal defendant No. 1 apart from the proforma defendant Nos. 4 and 5. The witnesses we re cross examined by the respective parties. The learned trial court upon apprec iation of the evidences on record decreed the suit of the plaintiffs declaring t he right, title and interest in respect of the suit land measuring 1 katha 10 le chas and also passed the decree for recovery of khas possession by holding that the principal defendant No. 1 Gaju Seikh acquired right over 1 katha of land as the other brothers and sisters relinquished their right in favour of Gaju Seikh, which was sold to the plaintiffs vide Ext. 1 sale deed dated 16.8.1983 includin g the share of land of 10 lechas belonging to Furkan Ali.

6. Being aggrieved, the principal defendant No. 1 and the proforma defendant Nos. 4 and 5 filed Title Appeal No. 20/1999, which has been allowed by the first appellate court vide judgment and decree dated 28.11.2000, by setting aside the judgment and decree passed by the learned trial court. The first appe llate court has held that though the plaintiffs have claimed that 1 katha of lan d, which initially fell in the share of Asoru Seikh, was allotted to Gaju Seikh (principal defendant No. 1) because of relinquishment of the shares and mutual p artition amongst the brothers and sisters of Gaju Seikh, the plaintiffs, however , could not prove the same and hence Gaju Seikh had not right to transfer the sa id 1 katha of land in favour of the plaintiffs as was done by executing the sale deed dated 16.8.1983 (Ext. 1). The first appellate court has also recorded the finding that Gaju Seikh after execution of the sale deed dated 16.8.1983 never h anded over possession of the land measuring 1 katha and the plaintiffs could pos sess only the land measuring 10 lechas which fell in the share of Furkan Ali aft er the execution of the sale deed dated 16.8.1983 (Ext. l). Hence the present ap peal.

7. The appeal was admitted for hearing vide order dated 8.8.2001 on the following substantial question law: -

1. Whether the learned appellate court below was justified in reversing the judg ment and decree of the learned trial court and in holding that the plaintiffs ha d no right, title and interest over the suit land, although the plaintiffs could prove the execution of the sale deed (Exhibit-1) by adducing evidences of PW 2 and 3 one of the executors and deed writer respectively as per provision of Sect ion 68 of the Evidence Act? I have heard Mr. Laskar, learned counsel for the appellants as w 8. ell as Mr. BC Das, learned senior counsel appearing for the respondent Nos. 1(a) to 1(e), who are the legal heirs of original respondent No. 1/principal defenda nt No. 1. I have also heard Mr. Rajkhowa, learned counsel appearing for the resp ondent Nos. 2 and 3. None appears for the proforma respondents.

9. Mr. Laskar, learned counsel for the appellants referring to the aforesaid substantial question of law formulated and also the judgment and decre e passed by the first appellate court submits that as it is evident from the dep osition of DW 2, namely the proforma defendant No. 5, that he has admitted the p artition of the land originally belonged to Asoru Seikh, the father of the princ ipal defendant No. 1 and proforma defendant Nos. 4 to 9 apart from admitting tha t the land measuring 1 katha, which is part of the suit land fell in the share o f Gaju Seikh (principal defendant No. 1), the first appellate court ought not to have set aside the decree passed by the trial court when Gaju Seikh in his depo sition recorded in Title Suit No. 2/1989 admitted execution of the sale deed (Ex t. 1) by him along with two others namely Kalu Seikh and Furkan Ali in favour of the plaintiffs. The learned counsel further submits that there was also no disp ute relating to the transfer of 10 lechas of land by Furkan Ali by the aforesaid sale deed dated 16.8.1983 (Ext. 1). Hence according to the learned counsel the first appellate court ought to have dismissed the appeal preferred by the presen t respondents there being no dispute relating to the execution of the sale deed dated 16.8.1983 (Ext. 1). In the alternative Mr. Laskar, learned counsel submits that the plaintiffs at least is entitled to declaration of their right, title a nd interest in respect of 10 lechas of land which fell in the share of Furkan Al i by virtue of the sale vide Ext. 1 apart from the land falling in the share of principal defendant No. 1 and the proforma defendant Nos. 4 and 5 i.e. 12 lechas by virtue of the sale deed Ext. 1, which has also not been decreed by the first appellate court. The learned counsel, therefore, submits that the decree passed by the first appellate court needs to be set aside by reviving the judgment and decree passed by the learned trial court.

10. Mr. Das, learned senior counsel appearing for the respondent Nos . 1(a) to 1 (e) as well as Mr. Rajkhowa, learned counsel appearing for the respo ndent Nos. 2 and 3 submit that it is evident from the discussion of the evidence s by the first appellate court that though the plaintiffs have pleaded that the other brothers and sisters of Gaju Seikh relinquished their right in favour of G aju Seikh and there was partition amongst them, they could not prove by adducing any evidence to that effect and hence all the heirs of Asoru Seikh namely the p rincipal defendant No. 1 as well as proforma defendant Nos. 4 to 9 would have th e right over the land measuring 1(one) katha in terms of their respective shares under the Mohammedan law. The learned counsel further submit that since Gaju Se ikh alone had transferred said 1 katha of land apart from the transfer by Furkan Ali to the extent of 10 lechas of land, such sale by Gaju Seikh cannot bind the other heirs of Asoru Seikh and hence the learned first appellate court has righ tly allowed the appeal by setting aside the judgment and decree passed by the le arned trial court.

11. I have considered the submissions of the learned counsel for the parties and also perused the judgments and decrees passed by both the courts be low. I have also gone through the evidences on record both oral and documentary to which the learned counsel for the parties drawn my attention.

12. As noticed above, the plaintiffs’ pleaded case is that out of 2 kathas of land originally belonged to Dhekaru Seikh 1 katha of land fell in the share of Asoru Seikh and the other 1 katha fell in the share of Billat Seikh, wh o are the sons of Dhekaru Seikh. According to the plaintiffs the land falling in the share of Asoru Seikh was allotted to Gaju Seikh (principal defendant No. 1) as other brothers and sisters namely the proforma defendant Nos. 4 to 9 relinqu ished their share in favour of Gaju Seikh and there was partition amongst them. The plaintiffs, however, could not prove such pleadings by adducing any evidence as has been noticed by the first appellate court in its judgment. Even PW 1 dur ing his cross examination has admitted that after the death of Asoru Seikh the p rincipal defendant No. 1 and the proforma defendant Nos. 4 to 9 have inherited 1 katha of land. The DW 1 and 2, who are the proforma defendant Nos. 4 and 5, in their deposition have also stated that they apart from their sisters have share over the 1 katha of land after the death of Asoru Seikh. That being the position the plaintiffs have failed to prove the pleaded case that Gaju Seikh has acquir ed right over 1 katha of land after the death of Asoru Seikh. Gaju Seikh (principal defendant No. 1) in the Title Suit No. 2/1 13. 989, which suit was instituted by the present proforma defendant No. 3 Majera Kh atun against the present plaintiffs, principal defendant No. 1 and proforma defe ndants as proforma defendants claiming declaration of her right, title and inter est over 2 kathas of land by virtue of the purchase made by her from Kalu Seikh (present proforma defendant No. 2), had also admitted the execution of the sale deed dated 16.8.1983 (Ext. 1) by him along with Kalu Seikh and Furkan Ali in fav our of the plaintiffs for the land measuring 2 kathas. The suit instituted by Ma jera Khatun i.e. Title Suit No. 2/1989 was, however, decreed for 10 lechas only as Kalu Seikh had right over 10 lechas being one of the sons of Billat Seikh. Th ere is no dispute that Furkan Ali had right over the remaining 10 lechas of land being the son of Alijan Ali, who was the son of Billat Seikh and the said 10 le chas of land was transferred in favour of the plaintiffs vide sale deed dated 16 .8.1983 (Ext. 1).

14. As discussed above, over the plot of land measuring 1 katha out of the suit land, Gaju Seikh as well as the proforma defendant Nos. 4 to 9 have right to the extent of their respective shares under the Mohammedan law and henc e Gaju Seikh cannot transfer the entire land measuring 1 katha, as has been done vide sale deed dated 16.8.1983 (Ext. 1) in favour of the plaintiffs/appellants, which includes the shares of proforma defendant Nos. 4 to 9. Gaju Seikh has adm itted the execution of the said sale deed being Ext. 1. By virtue of such sale d eed dated 16.8.1983 the plaintiffs shall acquire right in respect of Gaju Seikh’ s share in 1 katha of land, which is 4 lechas. As noticed above, Furkan Ali also has not disputed transfer of h 15. is share of land being 10 lechas in favour of the plaintiffs vide sale deed date d 16.8.1983. The plaintiffs, therefore, are entitled to declaration of their rig ht, title and interest in respect of 14 lechas of land and joint possession with Gaju Seikh in respect of 4 lechas of land being his share, the plaintiffs havin g not claimed partition. The plaintiffs, however, is entitled to recovery of kha s possession in respect of 10 lechas of land falling in the share of Furkan Ali, son of Alijan, as it is in evidence that Furkan Ali was possessing this definit e 10 lechas of land out of 1 katha of land falling in the share of his grandfath er Billat Seikh. The plaintiffs would not be entitled to decree for the 10 lecha s of land which fell in the share of Kalu Seikh in view of the decree passed on 22.9.1995 in Title Suit No. 2/1989 instituted by Majera Khatun (proforma defenda nt No. 3) declaring her right, title and interest in respect of 10 lechas of lan d which was the share of Kalu Seikh.

16. The first appellate court in view of the aforesaid discussions o ught to have decreed the right, title and interest of the plaintiffs in respect of the aforesaid 14 lechas out of the suit land measuring 1 katha 10 lechas and also declaring joint possession as aforesaid, which has not been done.

17. Hence the appeal preferred by the appellants/plaintiffs is partl y allowed to the extent as indicated above by setting aside the judgment and dec ree passed by the first appellate court.

18. ties are directed to bear their own cost. Keeping in view the facts and circumstances of the case, the par

19. cords to the courts below. The Registry is directed to draw the decree and send down the re