High Court · 2012

2. This second appeal has been filed by the appellant/plaintiff against th e judgment and decree of the first appellate court dated 09-09-2004 passed by th e learned District Judge, Tinsukia in T. A. No. 10 of 2003 (New) arising out of T.S. No.08 of 1997 passed by the learned Civil Judge (Junior Division) No.1, Tin sukia. By the impugned judgment and decree, the appeal filed by the appellant, w as dismissed and the judgment and decree of the trial court was upheld.

3. The substantial questions of law, formulated for decision of the present appeal, are:-

1. Whether a co-pattadar can transfer the shares of others wi thout their consent by way of mortgage or sale and if not, to what extent the do cument executed by such co-sharer is valid?

2. Whether the courts below acted lawfully in dismissing the suit without being proved that any body else other than Late Dasiram Dahotia and Late Som Dutta Dahotia were owners of the land covered by P.P. No.458 (old). T he learned appellate Court below failed to held that Late Dasiram Dahotia did no t inherited half share of the property and in any case he failed to consider any share in the property of Late Dasiram Dahotia as he was admittedly a co-sharer of land covered by P.P. No.458 (old) ?

4. The appellant’s case, in brief, is that Late Dasiram Dahotia and his b rother Somdutt Dohotia, both sons of Late Bibhison Dohotia jointly possessed 17 B 2 K and 18 L of lands situated at Borpathar village under Tinsukia Mouza. The said lands were within P.P. No.458 (old) and Dag Nos.826, 831,825,832,828, 879 a nd 976. Both brothers used to reside on the said land and the aforesaid lands w ere put to auction sale for default in payment of Government Revenue as per sect ion 70/71 of the Assam Land Revenue Manual. One Dwarikadas purchased the said la nd. Late Somdutt Dohita died unaware of the said sale and purchase. Thereafter , one Bidyadhar Sharma filed an appeal against the said sale and the Revenue Tri bunal set aside the said sale. Somdutt Dohotia had left behind the present plai ntiff, his brother Modan and wife Khadan Dohotia as his legal heirs and successo rs. After the death of Somdutt Dohotia, Dasiram, Modan and his wife Khadan were in possession of the said lands while the plaintiff was in service in the Army.

5. In the year 1953, Dasiram died leaving a ’will’ executed by him on 22-03 -1951 and the said ’will’ was probated after his death. According to the ’will’ , Dasiram bequeathed his share of lands to the plaintiff. The share of Dasiram was half of the entire area of 17 B 2K & 18 L under P.P. No.458. After setting a side the said sale by the learned Revenue Tribunal on the behest of Bidyadhar Sh arma in the year 1937, the said Bidyadhar Sharma, in the year 1945, got his name mutated over the land. Although, Somdutt Dohotia was made a party in the said mutation proceeding but no notice was issued/served to him.

6. In the year 1958, Bidyadhar Sharma instituted a Civil Suit against the p laintiff/appellant, his brother Modan and his mother whereby he claimed that 11 B 4K 7 L of the land was in his possession. In the said suit, no issue was fra med regarding the entitlement of share of Dasiram, the ’will’ executed in his fa vour and the probate though all those were averred in the written statement. Th e learned Sub-judge of Upper Assam Division decreed the suit in favour of Bidyad har Sharma and the said judgment and decree was affirmed by the High Court vide judgment and order dated 24-05-1966 in the first Appeal No. 15 of 1961.

7. During pendency of the appeal, Bidyadhar Sharma died and his legal heirs were brought on records. Thereafter, Title Execution Case No. 2 of 1968 was fil ed in the court of Assistant District Judge, Dibrugarh. The appellant of this a ppeal, in the said execution case, filed an objection petition under Section 47 of the Code of Civil Procedure taking a plea that one of the co-pattadars namely , Dasiram Dohtia had bequeathed half of the landed property covered by P.P. No. 458 in favour of the appellant by executing a ’will’ on 22-03-1951, which was pr obated. The objection was, however, not entertained. The plaintiff, thereafter, filed Title Suit No. 10 of 1969 for declaration of right, title and interest an d confirmation of possession of half share of the entire land covered by P.P. No .458, and for declaration that the decree passed in the Title Suit No.61 of 1958 was not binding upon the plaintiff/appellant. The said suit was dismissed on 26 -03-1976 on the ground that the suit was barred by the doctrine of res judicata. The appellant preferred appeal, the appeal was allowed and remanded back to the trial court to dispose of the same on merit. The defendants/respondents in their written statement alleged inter alia 8. , that the suit was owned by Somdutt Dohotia and the entire land was mortgaged t o Bidyadhar Sharma in the year 1924 by a registered document as Somdutt had barr owed Rs.500/- from him. For non-payment of the money, Bidyadhar Sharma institut ed a suit against Somdutt Dohotia being Title Suit No. 366 of 1932. The said su it was decreed in favour of Bidyadhar Sharma and in execution of the decree, the disputed land was put on auction sale and thereby, Bidyadhar purchased the said land in auction. The possession of the land was delivered to him on 14-09-1935 by virtue of the Title Execution Case No. 129 of 1934. Thereafter, the said la nd was again sold by the Collector of Lakhimpur, which at the relevant time was within the district of Lakhimpur, for arrears of land revenue. One Dwarikadas Mu di purchased the said land. However, Bidyadhar Sharma preferred an appeal again st the order passed by the Collector and the Assam Revenue Tribunal set aside th e sale and thereafter Bidyadhar Sharma also deposited all dues in respect of the said land. Accordingly, the vacant possession of the land re-settled to Bidyad har Sharma.

9. The further case of the defendants/respondents is that Dasiram, there after, came to occupy a portion of the land as a tenant under Bidyadhar Sharma a nd in the year 1950, Dasiram died. Bidyadhar Sharma used to reside at Dibrugarh , which is situated at a distance of 48 kilometres from Tinsukia. Taking the adv antage of his absence, Modan and Khudan occupied a portion of disputed land in y ear 1953 and both of them is started construction of a house on the land compell ing Bidyadhar Sharma to file Title Suit No. 61 of 1958 against Ratan Singh Dohot ia (present appellant), Modan and Khudan Dohotia. The suit was decreed in favou r of the Bidyadhar Sharma and it was affirmed by the High Court. .

10. The learned trial Court held that the plaintiff failed to prove the t itle of Dasiram over the suit land at the relevant point of time and the alleged probate is not binding upon the defendants/respondents. The plaintiff is not en title to get any relief. The first appellate court held that the suit was mainta inable. It was observed by the learned first appellate court that the entire la nd covered by the P.P. No. 458 was mortgaged by Somdutt about 26 years prior to the execution of the ’will’ and at the time of mortgage in the year 1924, the mo rtgagor, Somdutt Dohotia, was recorded the pattadar of the entire suit land and the entire land was sold by public auction on 09-06-1934 pursuant to the decreed passed in Title Suit No.366 of 1932, which was filed for recovery of unpaid mor tgaged loan. Thereafter, the sale certificate in pursuance to T.S. No. 366 of 19 32, which was issued in favour of the Bidyadhar Sharma and the name of Bidyadhar Sharma was mutated. It was also noticed by the court that the present appellan t had objected the mutation of name of Bidyadhar Sharma, which was rejected by t he S.D.C., Tinsukia Circle on 30-01-1956. The learned court below observed that in the Title Suit No.61 of 1958, the appellant pleaded in his written statement that the entire land originally belonged to the his grandfather Bibhision Kahar and on his death, the land devolved on his three sons and the three brothers inh erited the entire land. Thus, late Dasiram Dohotia was not the owner of half of the share of the entire land.

11. It was held by the learned appellate court that the land was mortga ged to Bidyadhar Sharma, who also obtained decree of the T.S. No. 366 of 1932 in his favour and his name was recorded in the ’jamabandi’. The probate proceedin g was initiated much after the mutation in the name of Bidyadhar Sharma. But no notice of the proceeding was served on him. The ’will’ was executed long 26 year s of the mortgage of the property and the decree was obtained for non payment of mortgaged loan amount in T.S. No. 366 of 1932. The name of Dasiram was incorpo rated in the jamabandi in the year 1934-35 only. There was no evidence on what b asis his name was included in the jamabandi.

12. It is true that a co-pattadar can transfer only his share of land by way of mortgage or sale to any other person(s). A co-pattadar cannot sale his share to other person by way of mortgage or sale.

13. It is submitted by the learned Senior Counsel for the appellant, Mr. Sahewalla that the learned appellate court held that late Dasiram Dohotia did no t inherit half share of the property since his father was survived by three sons and even if the property of Bibhison Kahar devolved on his three sons, Somdutt Dohotia had only 1/3 (one-third) share of the property. So, he was not entitled to mortgage the entire property. It was the pleading of the appellant in T.S. N o. 61 of 1954 that the entire land originally belonged to Somdutt’s father and o n his death, the land ought to have distributed amongst the three sons. But ther e was absolutely no evidence on records that the land originally belonged to Bib hison Kahar. From the documents exhibited in the earlier suit, it transpires tha t late Somdutt Dohotia was recorded pattadar in respect of the suit land. His n ame was in the record of rights in the year 1924 when the land was mortgaged. I t was not proved in the earlier proceedings that Bibhison Kahar was the owner of the land. As per the ’jamabandi’ of 19-12-1913, the suit land under P.P. No. 6 9 and later on became P.P. No. 458 was recorded in the name of Somdutt Dohotia a s pattadar.

14. It also appears from the findings of T.S. No. 61 of 1958 that the la nd was sold in execution proceeding in Title Execution Case No.129 of 1934 that sale certificate exhibited in the said suit was proved. Bidyadhar Sharma purcha sed the land in public auction and the possession was delivered to the decree ho lder i.e. Bidyadhar Sharma. Neither the trial courts while deciding the T.S. No . 61 of 1958 or T. S. No. 8 of 1997, nor at any point of time held that Late Das iram Dohotia was co-sharer of the land covered by P.P. No. 458 i.e. the suit lan d. The appellant claimed that the inherited property of Dasiram by virtue of pro bate had failed to prove the title of Dasiram at the relevant time in respect of the suit land. The learned counsel for the appellant has submitted that the tri al court as well as the appellate court believed in the entries of the revenue r ecords in favour of the Somdutt Dohotia but it is settled law that the mutation entries did not confer any title of the property. In support of his submissions , he has relied upon case of Durga Das Vs. Collector and Others, reported in 199 6 (5) SCC 618. No doubt, mutation entry did not confer any title to the propert y but the right, title and interest of Dasiram was claimed on the basis of ’jama bandi’ in the year 1935 wherein Dasiram has been shown as co-owner of the land a long with his late brother Somdutt. The fact remains that Somdutt was only the recorded ’pattadar’ when he mortgaged the land. The said land was sold in the e xecution proceeding and again for realising the land revenue. The respondent/ B idyadhar Sharma purchased the land in public auction on 09-06-1934.

15. It is submitted that the appellant was in possession of the suit land all along. The possession of the land was never handed over to the respondent/B idyadhar Sharma. In T.S. No. 61 of 1958, it was observed that in Land Sale Case No. of 1936-37, Somdutt Dohotia himself admitted that Bidyadhar Sharma took pos session of the land but he (Bidyadhar) allowed him to continue to occupy the lan d by paying the govt. land revenue. He also admitted that he was in permissive p ossession of the land under Bidyadhar Sharma. It was the finding of the court i n T.S. No. 61 of 1958 that after the revenue sale in favour of the Dwarikadas, t he original owner shifted to Maithan. The witnesses examined in the said suit s upported the respondent’s case that Somdutt and his family members shifted to Ma ithan village. Late Somdutt admitted himself in his evidence in MC. 258/1958 th at Ratan Singh Dohotia [present appellant] worked in the Military while Modan Do hotia was at Maithan village, which is at a distance of 25-26 kilometres from th e suit land.

16. On the basis of the oral and documentary evidence, the learned trial court in T.S. No. 61 of 1958 held that Bidyadhar Sharma was in possession of the suit land till dispossession of 1953. It was also observed by the learned trial court that the defendant No.1 i.e. present appellant admitted the plaintiff’s t itle over the suit land. The appellant compelled the respondent to file several rounds of litigation since 1932. There must be end to the litigations. The lea rned trial court rightly held that the probate/letter of administration granted in favour of the appellant did not confer title to him. The appellant failed to prove the right, title and interest of Dasirm Dohotia over the suit land. The a ppellant also failed to prove that the suit land was the ancestral property of t heir grandfather.

17. From the evidence on records, it appears that since 1912-13, Somdutt Dohotia was the owner of the suit property. He mortgaged the land to Bidyadhar Sharma in 1924. Bidyadhar Sharma purchased the land in pursuance to execution o f decree. After the revenue auction sale, Bidyadhar Sharma preferred an appeal b efore the Assam Revenue Tribunal and that the revenue auction sale to Dwarika Da s Mudi, was set aside. Thereafter, Bidyadhar Sharma, deposited all land revenue dues and the possession of the land was delivered to him and his name was mutate d in the record of rights.

18. In view of the above, the judgment and decree of the first appellate court dated 09-09-2004 passed by the learned District Judge, Tinsukia in T. A. N o. 10 of 2003 (New) arising out of T.S. No.08 of 1997 passed by the learned Civi l Judge (Junior Division) No.1, Tinsukia, needs no interference and accordingly, the appeal is dismissed. 19 There shall be no order as to cost.

20. Return the LCRs to the courts below forthwith along with a copy of th e judgment and order. UDGE J