High Court
Case Details
RSA 134/2002 BEFORE THE HON’BLE MR JUSTICE N. CHAUDHURY This second appeal by defendant is directed against the judgment of reve rsal dated 22.03.2002 passed by the Addl. District Judge, Nagaon in Title Appeal No. 15/1988 thereby setting aside the judgment and decree dated 11.07.1988 pass ed by the learned Munsiff No. 2, Nagaon in Title Suit No. 71/1978, whereby the l earned Munsiff had dismissed the suit of the plaintiff. While admitting this app eal on 17.09.2002 the following substantial questions of law were framed by this Court:- Whether the First Appellate Court complied with the provision of law lai (cid:28)1. d down under Order 41 Rule 31 CPC while passing the impugned judgment and decree ? 2. Issue Nos. 9 & 10 are based on evidence or not? 3. ent and decree of the trial Court or not? (cid:29)
Legal Reasoning
Whether the finding of the learned First Appellate Court on the related Whether the First Appellate Court erred in law while reversing the judgm 2. ary to narrate the facts of this case in nutshell. To decide the aforesaid substantial question of law it is necess 3. One Musstt. Roshida Khatun as plaintiff instituted Title Suit No . 71/78 in the Court of learned Munsiff at Nagaon praying for a decree for decla ration of her right, title and interest over the suit land and confirmation of p ossession thereon. In the event of her failure to prove possession over the suit land a decree for recovery of possession of the suit land was also prayed in th e alternative. The case of the plaintiff is that the suit land originally belon 4. ged to one Anu Munshi and he died about 12 years ago leaving behind the proforma defendant Nos. 11 to 25. Title over the suit land, on death of Anu Munshi devol ved on the plaintiff and the proforma defendants jointly. Subsequently, there wa s an amicable partition among the legal heirs of late Anu Munshi and thereupon t he suit land fell in the share of Yakub Ali, namely, the proforma defendant No. 11. This Yakub Ali sold the land to the plaintiff at a consideration of Rs. 500/ - by executing a registered sale deed and handed over possession to her. The pla intiff claimed to have been possessing the land since then consequent to her pur chase. The plaintiff further stated that the principal defendants did not have a ny right, title or interest and also possession over the suit land, but they tri ed to dispossess the plaintiff from the suit land on 29.11.1976. The plaintiff, therefore, filed an application before the jurisdictional Executive Magistrate l eading to institution of a proceeding under Sections 144/107 Cr.PC. vide MR Case No. 788/76 and the land was attested thereafter under Section 176 Cr.PC. Since the contesting defendants appeared and disputed the title of the plaintiff over the suit land, the learned Executive Magistrate directed the parties to have the ir rights determination from a competent civil Court and, hence, the suit. 5. The defendant Nos. 1, 2, 3 and 4 jointly submitted a written sta tement denying the claim of the petitioner and put up a case of their own, sayin g that the suit land really fell in the share of Alimunnessa, the proforma defen dant No. 18 in the suit and they have purchased the suit land from said Alimunne ssa. The defendants also took an additional stand alleging that Yakub Ali (profo rma defendant No. 11), the vendor of the plaintiff had exhausted his title by hi mself as well as by his wife and thus although Anu Munshi, original owner of 9 b ighas, 3 kathas, 1 lecha devolved to the proforma defendants, each of them got t he said amicably partitioned land amongst themselves and Alimunnessa got the sui t land in her share. The defendant claimed that by registered sale deed obtained from Yakub Ali (proforma defendant No. 11) the plaintiff could not have acquire d any title at all. 6. amed as many as 14 issued and the same are quoted below:- Whether there is any cause of action for the suit? (cid:28)1. On perusal of the aforesaid pleadings the learned trial Court fr 2. 3. 4. 5. 6. 7. Whether the suit is maintainable in its present form? Whether the suit is properly valued and stamped? Whether the suit is bad for non-joinder of defendants? Whether the suit is barred by limitation; Whether the suit is barred by adverse possession; Whether such patta land originally belonged to Anu Munshi and Tahir Ali. If not, who was the original owner of the suit patta land; 8. Whether Anu Munshi was owner of 9 bighas 3 kathas and one lechas of land of suit dag and whether after Anu Munshi’s death on partition the suit land fel l in shares of two sons and two daughters of Anu Munshi as stated in the W.S.? 9. Whether the vendors of the defendants have got right to sell the land as alleged? 10. 11. nd; 12. 13. 14. Whether plaintiff’s vendor have right to sell the suit land? Whether the plaintiff has got right, title and interest over the suit la Whether the plaintiff is in possession of the suit land? Whether the plaintiff is entitled to a decree as claimed? To what relief the plaintiff is entitled? (cid:29) To prove their respective cases the plaintiff examined as many a 7. s 7 witnesses and the defendants examined 5 witnesses. The learned Munsiff after hearing the parties dismissed the suit by his judgment dated 11.07.1988. The Co urt, after consideration the depositions of the parties arrived at the finding t hat the suit land devolved on two sons and two daughters of Anu Minshi after his death and thus decided Issue No. 8 in favour of the defendants. So far as the f indings of the learned trial Court in regard to apportionment of share among the legal heirs of Anu Munshi there does not appear to be any dispute, but the only question that fall for determination was as to whether Ext. ’Ka’ the sale deed of the defendants attracts the suit land and as to whether the finding that the suit land fell in the share of Alimunnessa is yet another question to be decided in this case. Aggrieved by the aforesaid judgment of the trial Court the plain 8. tiff preferred Title Appeal No. 15/1988 in the Court of Addl. District Judge, Na gaon. The learned Addl. District Judge by his judgment dated 22.03.2002, allowed the appeal and decreed the suit of the plaintiff. In so doing, the learned Appe llate Court without framing any point for determination as contemplated under th e provision of Order 41 Rule 31 CPC, proceeded to decide the issued afresh. The learned First Appellate Court discussed the Issue Nos. 9 and 10 in regard to exi stence of right, title and interest of the plaintiff and the contesting defendan ts. The learned Appellate Court considered Ext. 3, the registered sale deed by w hich plaintiff Roshida purchased the suit land from Yakub Ali, son of Anu Munshi . He also considered Ext. 4 and 5, which are correction deeds whereby some corre ctions of Ext. 3 were rectified. Incidentally, the defendant has filed neither a ny counter claim nor has challenged the validity of the three sale deeds, namely , Ext. 3, 4 and 5 and thus the recital made therein cannot be called in question at this stage. Plaintiff vendor Yakub Ali was examined in the case as PW 3. Lea rned First Appellate Court considered the deposition made by the DW 3, Yakub Ali , PW 4, Abdul Hoque, PW 7 Padmadhar Saikia and then came to finding that Yakub A li, the vendor of the plaintiff, Roshida had 3 bighas 1 katha 1/3rd lecha of lan d in his share in the suit, dag and patta, that he was possessing the said land after amicable partition and that there is absolutely no doubt that the suit lan d mentioned in the schedule of the plaint was purchased by original plaintiff, R oshida Khatun on 19.09.1972 from her vendor Yakub Ali (proforma defendant No. 11 ) from his share of land by registered sale deed and possession of the said was also delivered to her and she was possessing the said land and it was not the la nd from the share of Alimunnessa (proforma defendant No. 18), which she sold to defendant No. 1 Nizamuddin by Ext. ’kha’ . 9. appeal and decreed the suit of the plaintiff. With this finding the learned First Appellate Court allowed the 10.
Legal Reasoning
I have heard Mr. D. Mazumdar, learned counsel for the appellant. Despite service of notice no one has put up appearance on behalf of the respond ents. More than 10 years have passed in the meantime since the appeal was admitt ed and the respondents did not put up their appearance and as such the appeal is taken up for hearing ex-parte. 11. In the case in hand both the parties claim that the Anu Munshi w as the original owner of land measuring 9 bighas 3 kathas 1 lecha including the suit land. It is also not in dispute that after Anu Munshi, the land devolved to the proforma defendant Nos. 9 to 25. The only dispute between the parties is as to in whose share did the suit land really fall. Consequently the crux of the s econd appeal lies in the question as to whether the plaintiff acquired title ove r suit land vide Ext. 3 or, as to whether defendants acquired the title over the suit land vide Exts. ’ka’ and ’kha’. I have perused the said exhibits with the help of the learned counsel appearing for the appellant. Learned counsel for th e appellants says that the suit land was covered by Ext. ’Ka’. Let me compare th e scheduled of the plaintiff’s sale deed with that of Ext. ’Ka’. The boundaries mentioned in Ext. 3, 4 and 5 are as follows:- North: Harmuz Ali, South: Hasmat Ali, East: land of the vendor (Yakub Ali), West: land of Jamela Khatun. Now boundaries of Ext. ’ka’ are as follows:- North: Harmuz Ali, East: Himmat Ali, South: Hasmat Ali, West: land of the vendor (Aliman Nessa). Obviously the land under Ext. 3 is not the same as that of land under Ext. ’ka’. The next question comes as to whether suit land is directed by any of the sale deeds and to understand the said, let me compare the boundaries of the suit land with that of the aforesaid sale deeds. The boundaries of the suit land are as follows:- North: Harmuz Ali, South: Hasmat Ali, East: Yakub Ali, West: Jamela Khatun. Under such circumstances, without going to the question of exhaustion o f titles of the parties, it could be said that the plaintiff as well as the defe ndants had derived title to the properties left behind by Anu Munshi, the origin al owner and they cannot be held to have conflict of interest among them. The la nd of defendant and the suit land are distinct and different, and hence one does not negate the other’s title. 13. The learned First Appellate Court while decreeing the suit of th e plaintiff has merely held that Yakub Ali got the suit land in his share withou t saying as to whether the claim of defendants to the suit land vide issue No. 9 was tenable or not. Having framed Issue No. 9 it was incumbent upon the learned Courts below, particularly, the First Appellate Court to arrive at a decision a fter perusal of the materials on record, namely, Ext. ’Ka’ on the one hand and E xts. 3, 4 and 5 on the other hand. Be that as it may, as these three documents a re on record it is possible to arrive at a finding conclusively and it would be contradictory to the provision of Order 41 Rule 24 CPC to remand the matter for fresh decision by the First Appellate Court. 14. On the basis of the discussion made above, it is held that the c laim of the plaintiff vide Exts. 3, 4 and 5 over the suit land is sustainable an d at the same time there is no reason to set aside the claim of title the defend ants vide Ext. ’Ka’ over suit patta. 15. In the case in hand, the defendants have not filed any counter c laim and have not sought for any relief. The plaintiff has instituted the suit f or declaration of title with respect to the specific land and for confirmation o f possession thereon. As pointed out above, the claim of the plaintiff based on Ext. 3, 4 and 5 is sustainable. The learned First Appellate Court has not commit ted any error in decreeing the suit of the plaintiff. But the said decision cann ot bar the defendants from getting his share by way of a partition suit, if so a dvised. The first substantial question of law in regard to non-complianc 16. e of Order 41 Rule 31 CPC does not affect the decision of the second appeal inas much as the Appellate Court has substantially complied with the provision of the said Rule by deciding the issue. The first substantial question of law is decid ed in the affirmative. So far as the second substantial question of law is conce rned, it has got two portions. In the first part, the Court has decided the clai m of the defendants in the absence of a counter claim and in the second part Iss ue No. 10 relates to validity of the title of the plaintiffs/vendors. Since the respective sale deed of the parties related to two different boundaries and henc e understandably two different plots of land. This substantial question of law, in my humble opinion does not arise and hence the same is not necessary. The lea rned First Appellate Court has decreed the suit of the plaintiff by reversing ju dgment of the original Court holding that Yakub Ali got the suit land in his sha re following family portion and that the same was sold to the plaintiff vide reg istered sale deed, namely, Ext. 3, 4 and 5. 17. Atleast this part of the finding of the learned First Appellate Court cannot be faulted and hence the third substantial question of law has to b e decided in favour of the plaintiff. In the result the second appeal fails and the same is accordingly dismissed, subject however to the above observation. 18. However, no order as to cost.