High Court · 2012

This appeal by the defendants is directed against the judgment and decre e dated 12.08.2011 passed by the learned District Judge, Hailakandi, in Title Ap peal No.12/2007, whereby and whereunder the appeal preferred by the present appe llants has been dismissed by upholding the judgment and decree dated 07.10.2005 passed by the learned Civil Judge (Sr. Division), Hailakandi, in Title Suit No.6 1/2000 decreeing the suit of the plaintiffs/respondents.

2. The aforesaid suit was instituted by the plaintiffs for declaration of r ight, title and interest in respect of Schedule-I land apart from the declaratio n that the plaintiff No.6 has exclusive right, title and possession over the Sch edule-V land and also for permanent injunction, contending inter alia that the l and measuring 20 bighas 5 kathas 15 chataks appertaining the cadastral patta No. 25 originally belonged to Niar Mia, on whose death the said property devolved on three sons, namely, Kasem Ali, Ismail Ali and Mufij Ali. It is also the pleaded case of the plaintiffs that Kasem Ali died leaving behind his son Idris Ali and after his death the land fell in the share of Kasem Ali devolved on them. It ha s also been contended that the land fell in the share of Ismail Ali was sold in auction in connection with a Civil Suit, which was purchased by one Bharat Ch. D as Choudhury, which was however later on purchased by Musst. Bibijan Bibi, wife of Ismail Ali from Bharat Ch. Das Choudhury by a registered deed of sale, which land was subsequently purchased by Idris Ali, son of Kasem Ali from Bibijan Bibi by a registered deed of sale on 25.01.1913 and thus Idris Ali, predecessor in i nterest of the plaintiffs became the owner of 2/3rd share of the land originally belonged to Niar Mia and the remaining 1/3rd belongs to Mufij Ali and thereafte r the defendants, who are the descendants of Mufij Ali. The plaintiffs claimed t hat as the defendants are claiming title over the land fell in the share of Kase m Ali, they have to file the suit for declaration of right, title and interest.

3. The suit was contested by the defendants by filing written statement con tending that Kasem Ali was unmarried and as such after his death the property be longing to Niar Mia devolved on other two brothers, namely, Ismail Ali and Mufij Ali. It has also been contended that Ismail Ali exchanged his share of land wit h other land belonging to Mufij Ali and hence Mufij Ali became the absolute owne r of the entire property left behind by Niar Mia. It is also the pleaded case of the defendants that they being the successor in interest of Mufij Ali, they acq uired the right, title and interest in respect of the land. The defendants in th e written statement has denied that Idris Ali is the son of Kasem Ali and has pl eaded that he is the foster son, who was given, out of love and affection, certa in land by gift and also who purchased certain land originally belonged to Niar Mia.

4. On the basis of the pleadings of the parties, the learned Court below in itially framed the following issues for consideration and decision, out of which issue Nos.1, 2, 3, 4 and 8 are subsequently struck off being unnecessarily fram ed:- 1. 2. 3. 4. erly? 5. 6. pted son of Kasem Ali? 7. Is there any cause of action of this suit? Is the suit is maintainable in its present form? Whether the suit is bad for non-joinder of parties? Whether the title of the suit patta land or suit land is traced out prop Whether the share of Ismail Ali sold in auction as alleged? Whether Idris Ali (the father of PW) is the son of late Kasem Ali or ado Whether Ismail Ali exchanged his 1/3rd share of Mahmudpur Mouza with the land of Mufij Ali of Sahabad Mouza?

8. Whether there is E & D khas land within the suit land and the plaintiffs are claiming right, title and interest of Govt. khas land also?

9. Whether there were village arbitration in respect of suit land by the co nsent, agreement of both the parties and the decision of the arbitrators are bin ding to the parties? 10. he suit land? 11. Whether the plaintiffs have right, title, interest and possession over t To what relief/reliefs the parties are entitled to? The learned Trial Court upon appreciation of the evidences on record, bo 5. th oral and documentary, decided the suit in favour of the plaintiffs and decree d the same by holding that Idris Ali was the son of Kasem Ali and as such he inh erited the property left behind by Kasem Ali. The suit of the plaintiffs in resp ect of the land fell in the share of Ismail Ali was also decreed as the plaintif fs could prove such transfer vide Ext.-9, the registered deed of sale. The learn ed Court below also found that the defendants have admitted such transfer.

6. Being aggrieved the defendants preferred Title Appeal No.12/2007, which however has been dismissed by the learned First Appellate Court as aforesaid. He nce the present appeal.

7. . Ahmed, learned counsel for the appellants. I have heard Mr. A.S. Choudhury, learned Sr. counsel assisted by Mr. M.H

8. It has been contended by the learned Sr. counsel for the appellants that since there was oral evidence to the effect that Idris Ali is the foster son of Kasem Ali, who died unmarried, the learned Courts below ought not to have recor ded the finding that Idris is the son of Kasem Ali by ignoring that part of the evidence. The learned counsel further submits that the evidence adduced by the d efendants that certain land out of the land originally belonged to Niar Mia was gifted to Idris Ali, the predecessor in interest of the plaintiffs, was also not taken into consideration while decreeing the suit of the plaintiffs. Hence acco rding to the learned counsel the appeal is required to be admitted by formulatin g the substantial question of law relating to perversity in recording the findin g by the learned Court below that Idris Ali is the son of Kasem Ali.

9. Perusal of the judgments and decrees passed by the learned Courts below reveal that a finding of fact has been recorded by the learned Courts below to t he effect that Idris Ali is the son of Kasem Ali and not the foster son, as plea ded by the defendants and as such the plaintiffs being the legal heirs of Idris Ali has inherited the property left behind by Kasem Ali. Such finding of fact re corded by the learned Trial Court, has also been accepted by the learned First A ppellate Court. It also appears that the learned Courts below have discarded the oral testimony of the defendants relating to their claim that Idris was the fos ter son of Kasem Ali in view of the documentary evidence being Exts.-1, 2, 4, 5, 8, 9, 24 to 27 and 29. Such concurrent finding of fact recorded on appreciation of entire evidences on record cannot be disturbed in the second appeal, as the same is concluded by concurrent finding of fact. The learned Courts below have r ightly discarded the oral evidence of the defendants keeping in view the documen tary evidence as noticed above. The defendants also could not prove the ingredie nt to constitute a valid gift under Mohammedan Law as well as sale to the predec essor in interest of the plaintiffs.

10. In view of the above, I am of the view that no substantial question of l aw is involved so as to admit the appeal and hence the appeal stands dismissed. No costs.