High Court
Case Details
RSA 208/2003 BEFORE HON’BLE MR JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal, by the defendant No.2, is directed against the judgment and decree dated 19th June, 2003 passed by the learned Civil Judge (Senior Division), Morig aon in Title Appeal No.7/2003, allowing the appeal filed by the plaintiff/respon dent by setting aside the judgment and decree dated 13th February, 2003 (decree drawn on 17th February, 2003) passed by the learned Civil Judge (Junior Division ) No.2, Morigaon in Title Suit No.20/1999, whereby and whereunder the suit of th e plaintiff was initially dismissed.
Legal Reasoning
[2] The plaintiff instituted the suit for declaration of right, titl e and interest in respect of 2 Bighas 1 Katha of land, morefully described in Sc hedule to the plaint, contending inter alia that out of 6 Bighas 3 Kathas of lan d covered by Dag No.102 of Patta No.26, 2 Bighas 1 Katha of land fell in the sha re of Maina, whose successor-in-interest, namely, Suren, sold the said land in f avour of the plaintiff by a registered deed of sale dated 6th January, 1981 (Exh ibit-1) and the plaintiff was put into possession. It has further been pleaded t hat the defendant dispossessed the plaintiff from the suit land on 7th January, 1989. The further pleaded case of the plaintiff is that as the name of the fathe r-in-law of the defendant No.2, present appellant, and the father of the defenda nt No.1 (since deceased) recorded his name in respect of 1 Bigha of land in the suit dag, namely, Dag No.102, he executed a deed of relinquishment dated 27th Oc tober, 1988 (Exhibit-2) relinquishing his right in favour of the plaintiff in re spect of the said 1 Bigha of land, which is part of the suit land. [3] The defendant contested the suit by filing joint written stateme nt contending inter alia that land measuring 6 Bighas 3 Kathas belonged to three brothers, namely, Maina, Bhumidhar and Kulung in equal shares and the suit land measuring 2 Bighas 1 Katha fell in the share of Bhumidhar, who transferred his right, title and interest in respect of 1 Bigha of land in favour of Abdul Aziz Khan @ Abdul Jalil and Nobi Newas Khan, both sons of Ali Newaj Khan, who in turn on 9th October, 1980 transferred the said land in favour of the defendant No.2 by a registered deed of sale dated 9th October, 1980 (Exhibit-Kha). It has also been pleaded that another plot of land measuring 1 Bigha was transferred by Bhu midhar in favour of Abdul Aziz Khan @ Abdul Jalil, who in turn on 13th March, 19 80 transferred the same in favour of Hazarat Ali, father of the defendant No.1 a nd father-in-law of the defendant No.2 by a registered deed of sale. The defend ant, therefore, pleaded that the plaintiff cannot claim right, title and interes t in respect of the suit land by virtue of purchase vide sale deed dated 6th Jan uary, 1981. The defendants have also denied execution of the deed of relinquish ment by Hazarat Ali on 27th October, 1980. [4] e following issues for determination: Based on the pleadings of the parties, the trial Court framed th (cid:28)1. Whether there is a cause of action for the suit? 2. Whether the case is bad for non-joinder of necessary parties? 3. Whether the suit is barred by Limitation & adverse possession? 4. Whether the plaintiff has got right, title and interest over the suit land? 5. Whether the plaintiff is entitled to khas possession of suit land by demolis hing the structure on it? 6. To what other relief/reliefs the parties are entitled? (cid:29) The trial Court, upon appreciation of the evidence on record, bo [5] th oral and documentary, adduced by the parties, dismissed the suit of the plain tiff by holding that the plaintiff could not prove his title as well as possessi on of the suit land and possession of the vendor of the suit land. The issue re lating to the limitation has also been decided against the plaintiff by holding that the same is barred by time. The trial Court has also held that the defenda nt’s possession is adverse to the interest of the plaintiff. Being aggrieved, the plaintiff preferred the aforesaid appeal, w [6] hich has been allowed by holding that the defendant could prove his right, title and interest over the suit land by proving the sale deed dated 6th January, 198 1 (Exhibit-1). The issue of limitation has also been answered in favour of the p laintiff. It has also been held that the defendants could not prove adverse pos session. Hence, the present appeal. [7] 2004 on the following substantial questions of law:- The appeal was admitted for hearing vide order dated 9th April, (cid:28)(i) Whether the findings of the First appellate Court regarding delivery of pos session of the Suit land to the plaintiff is legally sustainable in view of the provisions of law under section 54 of the TP Act? (ii) Whether the so called deed of relinquishment dated 27.10.88 was legally and duly proved under Section 67 of the Indian Evidence Act? (cid:29)
Legal Reasoning
[8] ant and Mr. Z. Mukit, learned counsel appearing for the respondent. I have heard Mr. F.U. Borbhuiyan, learned counsel for the appell [9] Referring to the pleadings of the parties and also the judgments and decrees passed by the Courts below, it has been contended by the learned co unsel for the appellant that since the plaintiff claimed that the suit land fell in the share of Maina, whose successor-in-interest has executed the sale deed d ated 6th January, 1981 (Exhibit-1), the plaintiff has to prove that the said lan d, out of the total land of 6 Bighas 3 Kathas in Dag No.102 fell in the share of Maina, which the plaintiff having not been able to prove, the appellate Court o ught not to have decreed the suit of the plaintiff. It has also been submitted that none of the Courts below has recorded any finding as to whether the suit la nd fell in the share of Maina and Bhumidhar, which finding has to be recorded be fore decreeing the suit of the plaintiff, as the plaintiff has claimed that the land fell in the share of Maina and on the other hand, the defendant claimed tha t the land fell in the share of Bhumidhar, from whom Abdul Aziz Khan @ Abdul Jal il and Nobi Newas Khan have purchased 2 Bighas of land and in turn, have sold in favour of the father of the defendant No.1 and father-in-law of the defendant N o.2. [10] The learned counsel for the appellant referring to the provision of Section 67 of the Indian Evidence Act also submits that since the defendant has denied execution of the deed of relinquishment dated 27th October, 1988 (Exh ibit2), the burden lies on the plaintiff to prove that the said deed was execute d by Hazarat Ali and since Hazarat Ali’s thumb impression has not been proved, t he first appellate Court ought not to have held that Hazarat Ali executed the re linquishment deed dated 27th October, 1988. The learned counsel in that regard has also referred to the deposition of PW-6, the deed writer, who, during cross- examination has stated that he does not know Hazarat Ali personally. [11] Mr. Mukit, learned counsel appearing for the respondents, on the other hand, supporting the judgment and decree passed by the first appellate Co urt has submitted that it is evident from the evidence adduced by the parties th at the suit land fell in the share of Maina and not in the share of Bhumidhar. It has also been submitted that since the plaintiff could prove due execution of the sale deed dated 6th January, 1981 (Exhibit-1) by the successor-in-interest of Bhumidhar, namely, Suren, the first appellate Court has rightly decreed the s uit of the plaintiff by setting aside the judgment and decree passed by the tria l Court. The learned counsel further submits that in any case, since Hazarat Al i, father-in-law of the present appellant, has executed a deed of relinquishment dated 27th October, 1988, due execution of which the plaintiff could prove, the defendant cannot claim right, title and interest over the suit land. I have considered the submissions advanced by the learned counse [12] l appearing for the parties and also perused the impugned judgment and decree pa ssed by the Courts below, apart from the Jamabandi, which has been marked as Exh ibit-4. It is evident from the pleaded case of the parties and also the evidenc e adduced that total land in Dag No.102 belonged to three brothers, namely, Main a, Bhumidhar and Kulung, in equal shares, i.e. 2 Bighas 1 Katha each. While the plaintiff claimed that the suit land measuring 2 Bighas 1 Kathas fell in the sha re of Maina, whose successor-in-interest, Suren, sold it to the plaintiff on 6th January, 1981 (Exhibit-1), the defendant claimed that the suit land measuring 2 Bighas 1 Katha fell in the share of Bhumidhar, who out of said land sold 1 Bigh a of land in favour of Abdul Aziz Khan @ Abdul Jalil, who in turn sold it to the father-in-law of defendant No.2 and another 1 Bigha of land to Abdul Aziz Khan and Nabi Newas Khan, who, in turn sold the same to the defendant No.2. The plain tiff’s claim for title being based on Exhibit-1 sale deed dated 6th January, 198 1 executed by Suren, son of Maina, in whose share, according to the plaintiff, t he suit land fell, the most pertinent question, which ought to have been decided by the Courts below, was - whether the suit land fell in the share of Maina or Bhumidhar, the defendants having claimed that suit land was the share of Bhumidh ar. There is no dispute relating to the share of the other brother, Kulung, who according to the plaintiff, has sold his share to him. Without deciding that p ertinent question, no decree ought to have been passed by any of the Courts belo w. Unfortunately none of the Courts below has recorded any positive finding as t o whether the land fell in the share of Maina or Bhumidhar. If the land fell in the share of Maina, then Suren had the right, title and interest to transfer th e land in favour of the plaintiff and plaintiff by virtue of the purchase vide s ale deed dated 6th January, 1981, acquired right over the same. If the land fell in the share of Bhumidhar, the plaintiff would not be entitled to declaration o f right, title and interest in respect of the suit land except right, title and interest in respect of 1 Bigha of land, by virtue of the deed of relinquishment dated 27th October, 1988, provided execution of the said deed of relinquishment is proved as required under the Indian Evidence Act. [13] Since the aforesaid most pertinent question has not been decided , I am of the view that the appeal needs to be remanded to the first appellate C ourt for deciding the said question and also to decide the appeal afresh, based on the evidence already adduced by the parties, as decision in the appeal would depend upon the said question of fact. If the first appellate Court finds that the suit land fall in the share of Maina, there is no question of taking into co nsideration the deed of relinquishment as the plaintiff could prove the transfer of land by Suren in his favour by Exhibit-1 sale deed dated 6th January, 1981. However, if the land fell in the share of Bhumidhar, the first appellate Court shall proceed to determine whether due execution of the deed of relinquishment ( Exhbiti-2) has been proved as required under the Indian Evidence Act and if so, whether the plaintiff would acquire right, title and interest over at least 1 Bi gha of land. The judgment passed by the appellate Court is, therefore, set as [14] ide. The appeal is remanded to the first appellate Court for deciding the appeal afresh on the basis of the evidence already on record. The appeal shall be dec ided within a period of 2(two) months from the date of appearance of the parties or the date of receipt of the records, whichever is later. [15] urt on 3rd January, 2014. The parties are directed to appear before the first appellate Co [16] The Registry is directed to send down the records to the first a ppellate Court forthwith, so as to reach the said Court before 3rd January, 2014 . [17]
Decision
The appeal is allowed to the extent indicated above. No cost.