High Court
Case Details
RSA 119/2002 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL)
Legal Reasoning
The appellant, who is the defendant No. 1 in Title Suit No. 94/1997, has filed t his present appeal challenging the judgment and decree dated 21.12.2001 passed b y the learned Civil Judge (Sr. Division), Nagaon in Title Appeal No. 32/2000 dis missing the appeal preferred by the appellant by affirming the judgment and decr ee dated 30.6.2000 passed by the Civil Judge (Jr. Division) No. 1, Nagaon, where by and whereunder the suit filed by the respondents/plaintiffs has been decreed. 2. The respondent Nos. 1 and 2 as plaintiffs instituted the suit fo r declaration of their right, title and interest over the land measuring 1 katha 10 lechas, out of 1 bigha 1 katha 16 lechas, covered by dag No. 26 (old) 33(new ) under periodic patta No. 35 (old) 104(new), more fully described in schedule A to the plaint, apart from the decree for permanent injunction. An alternative p rayer has also been made for recovery of khas possession if the plaintiffs are f ound to be dispossessed by the defendants. 3. The pleaded case of the plaintiffs is that Salema Bibi was the o riginal owner of the land measuring 9 bighas 4 kathas 19 lechas covered by dag N os. 25, 26, 29, 31, 33, 40 and 123 of periodic patta No. 35 of Chotta Hoibar, Ki ssan Chakitup, Mouza - Niz Sahar in the district of Nagaon, Assam. The dag Nos. and patta nos. were pertaining to the settlement operation of the year 1930-31. According to the plaintiffs, Musstt. Salema Bibi sold 1 bigha 1 katha 9 lechas o f land i.e. the entire land comprised in dag No. 40 in favour of Rajib Ali and h ence after the death of Musstt. Salema Bibi her son Hatim Pradhani inherited 8 b ighas 3 kathas 10 lechas of land comprised in the aforesaid dags except dag No. 40. It is the further pleaded case of the plaintiffs that Hatim Pradhani sold 2 kathas 10 lechas of land to Abdul Rahman, who in turn sold to Nawab Ali, the fat her of the defendant Nos. 1, 2 and 3. It is also the pleaded case of the plainti ffs that land measuring 6 bighas 1 kathas was transferred by Hatim Pradhani in f avour of Asrab, Sahar, Abbus, Atam and Amaruddin by executing a gift, who have a micably partitioned the land amongst themselves and thereafter Asrab and Sahar s old their share of land measuring 3 bighas in favour of Bipin, Gopal and Monindr a. The further pleaded case of the plaintiffs is that Monindra, out of his share , after partition, sold 1 katha 10 lechas of land to Sushila Sundari Devi, the p laintiffs’ mother, by a registered deed of sale dated 14.5.1969 (Ext. 9) and tha t is how the plaintiffs have acquired right, title and interest over the suit la nd. According to the plaintiffs since the defendants tried to dispossess the pla intiffs initially on 12.12.1996 and thereafter on 28.7.1997, they had to institu te the suit praying for the relief, which has already been noticed above. 4. The defendant No. 1/present appellant has contested the suit by filing written statement, denying the claim of the plaintiffs and contending int er alia that he is possessing the suit land for about 50 years, which he has inh erited from his father Nawab Ali. According to the defendant No. 1 Nawab Ali has purchased the suit land by two registered deed one dated 26.10.1950 (Ext. 5) an d the other dated 12.2.1952 (Ext. 6). The defendant No. 1, therefore, prayed for dismissal of the suit. 5. med the following issues for determination: - The trial court on the basis of the pleadings of the parties fra (cid:28)1. Whether the suit is maintainable in its present form? 2. Whether the plaintiffs have right, title and interest over the suit land? 3. Whether the plaintiffs are entitled for a decree as prayed for? 4. Whether the suit is false, fabricated, fallacy and liable to be rejected? 5. To what relief/reliefs the parties are entitled to? Additional Issue 6. Whether there is cause of action for the suit? 6. The trial court upon consideration of the evidence on record, bo th oral and documentary, adduced by the parties, decreed the suit of the plainti ffs by holding that the plaintiffs have acquired the right, title and interest o ver the suit land by virtue of the purchase by their predecessor-in-interest nam ely Sushila Devi from Monindra vide registered deed of sale dated 14.5.1969 (Ext . 9). The case of the defendant No. 1 that he has acquired the right, title and interest over the suit land by virtue of the Ext. 6 sale deed dated 12.2.1952, h owever, has been negated by holding that since Abdul Rahman, from whom Nawab Ali claim to derive title by Ext. 6 sale deed, acquired title in respect of 2 katha 10 lechas by virtue of the sale deed executed by Hatim Pradhani in favour of Ab dul Rahman, the defendant Nos. 1, 2 and 3 cannot claim more than 2 kathas 10 lec has of land. 7. Being aggrieved, the defendant No. 1 preferred Title Appeal No. 32/2000 which having been dismissed by the first appellate court by upholding th e judgment and decree passed by the trial court, the defendant No. 1 has preferr ed the present appeal. 8. on the following substantial questions of law : - The appeal was admitted for hearing vide order dated 20.12.2002 1. Whether the learned courts below erred in law in coming to the conclu sion on the basis of Ext. 9 that the plaintiffs have inherited the suit land fro m their mother? 2. Whether the Ext. 8 and 9 are legally proved and the learned courts be low erred in deciding the case relying on the said documents?
Legal Reasoning
9. I have heard Mr. KK Mahanta, learned senior counsel for the appe llants as well as Mr. Talukdar, learned counsel appearing for the respondent Nos . 1 and 2. None appears for the other respondents despite service. 10. It has been contended by the learned senior counsel for the appe llant that it is evident from the Ext. 6 sale deed that Abdul Rahman sold 2 kath as 15 lechas of land in favour of Nawab Ali, the predecessor-in-interest of the defendant Nos. 1, 2 and 3, and as such the learned court below ought not to have held that the defendant Nos. 1, 2 and 3 have not acquired the right title and i nterest in respect of 2 kathas 15 lechas of land. It has also been contended tha t it being the case of the plaintiffs that Rajib Ali had purchased the entire la nd covered by dag No. 40, the learned courts below ought not to have decreed the suit of the plaintiffs when the sale deed (Ext. 9) executed by Monindra in favo ur of Sushila Devi, predecessor-in-interest of the plaintiffs, mentioned about t he sale of the land covered by dag No. 40 also. The learned counsel, therefore, submits that the judgments and decrees passed by the courts below need to be set aside and the plaintiffs’ suit accordingly be dismissed. 11. The learned counsel appearing for the respondent Nos. 1 and 2/pl aintiffs, on the other hand, supporting the judgments and decrees passed by the learned courts below has submitted that as the defendants have claimed that thei r father Nawab Ali purchased the land from Abdul Rahman, who purchased the land from Hatim Pradhani, the son of the original owner Salema Bibi, neither Nawab Al i nor the defendant Nos. 1, 2 and 3 could have any right over the land in excess of 2 kathas 10 lechas, in view of the fact that the defendants themselves have admitted that Hatim Pradhani sold only 2 kathas 10 lechas of land to Abdul Rahma n, the vendor of Nawab Ali. It has been submitted that both the courts below, th erefore, have rightly refused to place reliance on Ext. 6 sale deed by which, ac cording to the defendant Nos. 1, 2 and 3, their predecessor-in-interest Nawab Al i have purchased 2 kathas 15 lechas of land from Abdul Rahman. The learned couns el referring to Ext. 9 sale deed has also submitted that the plaintiffs could pr ove that Monindra had sold 2 kathas 10 lechas of land in favour of Sushila Devi, the predecessor-in-interest of the plaintiffs, out of his share, due execution of which sale deed has also been proved. The learned counsel further submits tha t it is evident from Ext. 1, 2 and 3, the revenue records, which has been proved that the land which was gifted by Hatim Pradhani in favour of Asrab, Sahar, Abb as, Atam and Amaruddin is not covered under Dag No. 40 and as such mere mention of the dag No. 40 in the sale deed (Ext. 9) cannot be the ground for refusing to pass the decree in favour of the plaintiffs, when in the schedule to the sale d eed what has been described are the dag nos. in which Salema Bibi had the land. 12. I have considered the submissions advanced by the learned counse l for the parties and perused the judgments and decrees passed by the courts bel ow apart from the materials available on record. 13. It is evident from the judgments and decrees passed by both the courts below and the materials available on record that Salema Bibi was the orig inal owner of 9 bighas 4 kathas 19 lechas of land covered by Dag Nos. 25, 26, 29 , 31, 33, 40 and 123, out of which she sold 1 bigha 1 katha 9 lechas of land i.e . the entire land comprised in Dag No. 40 to Rajib Ali. Hatim Pradhani had inher ited the remaining land measuring 8 bighas 3 kathas 10 lechas comprised in Dag N os. 25, 26, 29, 31, 33 and 123 of periodic patta 35 and not the land comprised u nder dag No. 40. Hatim Pradhani subsequently transferred 2 kathas 10 lechas of l and in favour of Abdul Rahman, who in turn sold the said land measuring 2 kathas 10 lechas in favour of Nawab Ali by sale deed dated 14.5.1950 (Ext. 5). The def endant Nos. 1, 2 and 3 are the sons of Nawab Ali. Out of the land measuring 8 bi ghas 1 kathas left with Hatim Pradhani he gifted 6 bighas 1 kathas of land in fa vour of Asrab, Sahar, Abbas, Atam and Amaruddin, who amicably partitioned the la nd amongst themselves. Thereafter, Asrab and Sahar sold 3 bighas of land falling in their share to Bipin, Gopal and Monindra. There was also amicable partition amongst those three persons. Monindra vide Ext. 9 sale deed dated 14.5.1969 sold 1 katha 10 lechas of land, out of his share, in favour of Sushila Devi, the pre decessor-in-interest of the plaintiffs, who was put into possession by Monindra. The learned counsel appearing for the parties have not disputed the aforesaid f actual position as revealed from the evidence adduced by the parties. The disput e relates to the claim of the defendant No. 1 that Abdul Rahman vide sale deed E xt. 6 dated 12.2.1952 transferred 2 kathas 15 lechas of land in favour of Nawab Ali, the predecessor-in-interest of the defendant Nos. 1, 2 and 3, based on whic h the defendant No. 1 has claimed that he has acquired right, title and interest over the suit land. 14. As noticed above, it is not in dispute that Hatim Pradhani sold only 2 kathas 10 lechas of land in favour of Abdul Rahman who, therefore, cannot transfer more than 2 kathas 10 lechas of land in favour of Nawab Ali, the prede cessor-in-interest of the defendant Nos. 1, 2 and 3. There is no other evidence on record to demonstrate that Hatim Pradhani also sold another 5 lechas of land in favour of Abdul Rahman. 15. That being the position, both the courts below have rightly held that the defendant Nos. 1, 2 and 3 cannot claim right, title and interest based on Ext. 6 sale deed dated 12.2.1952. 16. It also appears from the records, more particularly the Ext. 1, 2 and 3 i.e. the revenue records and also the evidence of Lat Mandal that the na me of the plaintiffs have been mutated in respect of Dag Nos. 26 (old) of patta No. 35(old) which, however, has been changed during resettlement to Dag No. 33 a nd patta No. 104. In the sale deed i.e. Ext. 9 dated 14.5.1969 what has been men tioned are the dag Nos. in which Salema Bibi originally had the land. The plaint iffs could prove that what was transferred in favour of their predecessor-in-int erest was the land covered by dag No. 26 (old)/33(new) under patta No. 35(old)/ 104(new). The plaintiffs have not claimed that the land covered by Dag No. 40 wa s transferred by Monindra in favour of their predecessor-in-interest. The plaint iffs also by adducing evidence and examining PW 2, the officer of the Registrati on Officer could prove due execution of Ext. 9. 17.
Decision
In view of the above, I am of the view that the appeal is devoid of merit and hence the same is dismissed. No cost. 18. The Registry is directed to send down the records forthwith.