High Court
Case Details
RSA 57/2002 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY 1. This second appeal is preferred by the plaintiffs against the appellate judgment of reversal passed by the learned Civil Judge (Sr. Division), Barpeta o n 16.02.2002 in Title Appeal No. 10/2001 thereby allowing the appeal and modifyi ng the trial Court’s decree dated 09.01.2001 passed by the learned Civil Judge ( Junior Division) No. 1, Barpeta in Title Suit No. 17 of 1998. The learned trial Court had partly allowed the suit of the plaintiffs as well as the counter claim filed by the defendants.
Legal Reasoning
2. The pleaded case of the plaintiffs is that land measuring 3 bighas 3 kat has 16 lechas covered by annual Dag No. 391 (1 bigha 2 kathas) and periodic Dag No. 211 (2 bighas 1 katha 16 lechas) of village Bonbahar originally belonged to the plaintiffs and the proforma defendant Badiurzaman. Plaintiffs No. 1 & 2, nam ely, Bahadur Ali and Samsul Haque and the original proforma defendant, namely, L ate Badiurzaman were brothers. They jointly owned the land in question under Pat ta No. 15 of Mouza Betbari in village Bonbahar. But on 22.01.1998, defendant No. 1 (Omed Ali) and defendant No. 2 (Somed Ali) sought to create obstruction to th em in enjoyment of their fishery situated over the suit land claiming that they had obtained a mutation with respect to the said land and also asked the plainti ffs to vacate the same. Faced with such threat of dispossession, the plaintiffs made enquiry with the settlement office as to the records of rights only to disc over that on 12.8.1981 three mutation orders had been passed by the Revenue Offi cer and thereby 4 kathas of land belonging to the plaintiffs under Dag No. 211 o f the said patta was wrongly recorded in the name of the defendant No. 3 whereas 2 kathas 10 lechas of land of the same dag was recorded in the name of Somed Al i. By another order of the same date the revenue officers recorded names of Omed Ali and Baharjan Nesa with respect to 15 lechas of land. According to the plain tiffs they never sold any land under Dag No. 211 to any of the defendants and as such in view of the aforesaid erroneous endorsement in the records of rights th eir title got clouded. The plaintiffs, therefore, prayed that a decree be passed declaring their right, title and interest over the suit land and also for confi rmation of possession. Prayer has also been made for adjudication and declaring the said mutational entry as illegal inoperative and void and, of course, for de livery of khas possession if the plaintiffs are really dispossessed from the sui t land during pendency of the suit. 3. The defendants submitted a written statement not only denying the case o f the plaintiffs but also put up a case of their own vide paragraph 6 of the wri tten statement. It was stated therein that predecessor of the (defendant) Ahmed Ali purchased 1 bigha of land from Bahadur Ali (Plaintiff No. 1) on 31.7.1968. T hereafter on 17.02.1969 he purchased another plot of land measuring 2 kathas 10 lechas in the same dag and finally on 19.9.1969 he purchased 3 kathas 1 lecha in dag No. 211 although in sale deed it was wrongly shown as Dag No. 212. Accordin g to the defendants in the written statement the sale deed dated 19.9.1969 did n ot contain any boundary at all. However, alongwith the said written statement th e defendants also filed a counter claim and in the counter claim they took a con trary stand saying that there was a boundary in registered sale deed dated 19.9. 1969 and that the boundaries given in the deed justified the inclusion of the de mised land in Dag No. 211 only although it is recited therein wrongly that the l and pertained to Dag No. 212. According to the version of the defendants in the counter claim the demise land is bounded at the North by land of Bahadur Ali, at the South by land of Surendra Saha, at the East by Road and at the West by land purchased by Ahmed Ali himself. With these averments the counter claimant / def endants further stated that they had been in possession of the land till 22.01.1 998 but on the same day plaintiffs forcibly entered into the land and had been e njoying the same thereafter. The defendants, therefore, apart from making a pray er for declaration of their right, title and interest over the land covered by D ag No. 211 they also claimed a partition decree and recovery of possession of th e land by evicting the plaintiffs from the suit land. 4. On the basis of the aforesaid pleadings of the parties the learned trial Court framed as many as 11 issues and the same are quoted below: Whether there is cause of action for this suit? Whether the suit is under valued and plaint is under stamped? Whether the suit is barred by limitation? Whether the plaintiffs have right, title, interest and possession over t (cid:28)1. 2. 3. 4. he suit land described in the plaint? 5. Whether the chitha mutation dated 12.08.1981 in favour of the defendants is illegal, inoperative and void in law and as such precept may be issued to th e Revenue authority to cancel the mutation made in favour of the defendants? 6. Whether the defendants No. 1 and 2 have right, title and interest to the extend of 2B 0K 14 Ls. of land within the schedule of A land in the counter-cla Whether the defendants No. 1 and 2 are entitled to get a decree of Easme im? 7. nt right over 1 K of land described in schedule of B of the counter-claim? 8. schedule of land on 22.01.1998? 9. Whether the defendants are entitled to get Khas possession as prayed for? Whether the defendants are entitled to decree as prayed for? 10. To what other relief or reliefs if any, the parties are entitled? (cid:29) 11. Whether the defendants were dispossessed from front side of the A and B 5. Both the sides led evidence. From the evidence led by both the parties i t appears that the plaintiffs admitted to have sold land to Ahmed Ali on 17.02.1 961 and 31.07.1968 by Ext.-’ka’ and ’kha’ respectively to the extent of 1 bigha 2 kathas 10 lechas . It is the case of the defendants also that these two plots measuring 1 bigha 2 kathas 10 lechas are covered by Dag No. 212. So, there is no t dispute in regard to Ext.-’ka’ and ’kha’ i.e. in regard to sale deed of 1 bigh a 2 kathas 10 lechas by the plaintiff No. 1 to Ahmed Ali, the father of the defe ndants. The dispute between the parties exists only in regard to sell of 3 katha s 4 lecha of land covered by Dag No. 211 to Ahmed Ali (father of the defendants No. 1 & 2). The defendants have taken a specific stand that they really purchase d land under Dag No. 211 vide sale deed dated 19.9.1969. But it has been shown t o have been sold from Dag No. 212 only. The learned trial Court did not accept t he contention of the defendants that sale deed dated 19.9.1969 (Ext.-’Ga’) in an y way attracted land under Dag No. 211. The learned trial Court found that the s chedule given in Ext.-’Ga’ i.e. sale deed dated 19.9.1969 is vague and land cann ot be identified from the boundary. It appears from the finding of the learned t rial court that the Ext.-’Ga’ brought on record by the defendants contains some overwriting on the dag number to make it seem like 211. On the other hand Ext.-8 which is the certified copy of the same sale deed clearly shows that the land s old to the defendants was covered by Dag No. 212. However, this could not be ver ified at this stage because Ext.-’Ga’ is not available on record. In this view o f the matter, the learned trial Court by its judgment and decree dated 09.8.2001 decreed the suit of the plaintiffs with regard to 3 kathas 4 lechas under Dag N o. 211, declaring the right, title and interest of the plaintiffs over 2 bighas 1 katha 16 lechas in Dag No. 211 and 1 bigha 2 kathas in Annual Dag No. 391. On the other hand the claim of the defendants in the counter claim to the extent of 1 bigha 2 kathas 4 lechas under Dag No. 212 of PP No. 15 out of A Schedule of t he counter claim was also decreed. The learned Court, found that the Chitha muta tion dated 12.08.1981 was illegal, inoperative and void and liable to be rectifi ed by the Revenue Authority. 6. The defendants preferred Title Appeal No. 10/2001 in the Court of learne d Civil Judge (Sr. Division) at Barpeta. The learned First Appellate Court frame d two main points for determination in compliance with the provision of Order XL I Rule 31 of the Code of Civil Procedure but without deciding the same, proceede d to decide the appeal issue wise. By judgment dated 16.2.2002, the learned lowe r appellate Court upheld findings of the learned trial Court in regard to issues No. 1, 2, 3 and 7 and the other issues are interfered with. The learned First A ppellate Court took up issues No. 4, 5 & 6 referred to above for decision togeth er and held that PW2 stated in cross-examination that the land sold to Ahmed Ali was butted and bounded at the East by Road, on the West by Lane of Bahadur Ali and, on the South by Lane of S. Saha. According to the learned first Appellate C ourt the finding of the learned trial Court that boundaries given in Ext.-’Ga’ a re vague and mutilated is not correct. Rather a perusal of the boundaries mentio ned in Ext.-’Ga’ would show that land under Dag Nos. 211 and 391 is attracted by it. Proceeding on this finding, the learned First Appellant Court also held tha t plaintiffs dispossessed the defendants from the suit land and so they are enti tled to recover possession. It is this first appellate judgment which is under c hallenge in the present second appeal. This Court while admitting the second appeal on 18.11.2002 framed the fo Whether the learned lower appellate Court committed error in interpretin 7. llowing 5 substantial questions of law: (cid:28)1. g Ext.-’Ga’ which is a document of Title? 2. Whether the learned Civil Judge, Sr. Divn. was justified in coming to th e conclusion that by Ext. ’Ga’ the plaintiff No. 1 sold land to the Defendant No . 1 and 2 in Dags No. 211 and 391 by ignoring the clear recital in the Schedule of the Ext.-’Ga’ that 3K. 4L. out of 17B. 6L. of the land of Dag No. 212 was the property sold? Whether the principle that boundaries are prevail over plot number of da 3. g number could be applied in the instant case? 4. Whether the learned Judge was justified in grating a decree for title ov er 1K of land in Annual Dag No. 391 although the Defendant No. 1 and 2 did not c laim title over the land but merely claim right of way over the same? 5. Whether when a decree for partition of the land of Defendants No. 1 and 2 was passed by the Civil Judge (Sr. Divn.), was it open to him to pass a decree for khass possession over the un-partitioned land? (cid:29) 8. It would appear from a reading of the aforesaid substantial questions of law that the substantial questions No. 1, 2 and 3 are really one substantial qu estion of law regarding interpretation of Ext.-’Ga’. The said three substantial questions of law, therefore, would be answered if the claim of the defendants vi s-à-vis Ext.-’Ga’ is adjudicated. 9. As has been observed above, the dispute between the parties is confined to Ext.-’Ga’ only. Ext.-’Ga’ is sale deed dated 19.9.1969. The same document has been exhibited by the plaintiffs as Ext.-8. Ext.-8 is a certified copy of sale deed dated 19.9.1969. It appears from the findings of the learned trial Court th at the original of the sale deed dated 19.9.1969 being in custody of the defenda nts was really produced and exhibited at the stage of trial as Ext.-’Ga’. Howeve r, the same is not available on record. So, Ext.-8 is the only document availabl e before this Court to adjudicate the claim of the parties in regard to findings of land with respect to 3 kathas 1 lecha made on 19.9.1969. I have gone through the said document. From the recital of Ext.-8 (for that, Ext.-’Ga’) it appears that the vendor Bahadur Ali transferred and sold 3 kathas 1 lecha land to Late A hmed Ali from Dag No. 212 of PP No. 15 out of total land measuring 17 bighas 3 k athas 4 lechas. It is the specific case of the defendants that mentioning of Dag No. as 212 in sale deed dated 19.9.1969 must have been an error and that Bahadu r Ali really sold land from Dag No. 211. Since sale deed dated 19.9.1969 contain s a recital that the demised land was a part of total of 17 bighas 6 lechas of l and in Dag No. 212, I wanted to ascertain from records as to what were the total areas of land in each of these two dags, namely, Dag No. 212 and 211. It appear s from Ext.-1 that the total area of land under Dag No. 211 is 2 bighas 1 katha 16 lechas, and that for dag No. 212 is 17 bighas 0 katha 6 lechas. So, mentionin g of the total area of the Dag No 212 very much confirms that land has been sold on 19.9.1969 in Dag No. 212 only in the sale deed. Hence the contention of the defendants that mentioning of Dag No. 212 was rather erroneous cannot be accepte d. Next question is to be seen as to whether the boundaries mentioned in sale de ed dated 19.9.1969 can in any way attract land under Dag No. 211. As observed by the learned Court below and also as seen from the perusal of the sale deed date d 19.9.1969 (Ext.-8 = Ext.-’Ga’) that the demised land is butted and bounded on the East by Road. Ext.-4 is a map of the suit land and its adjoining lands. Peru sal of Ext.-4 shows that the road in question is not in adjacent vicinity of Dag No. 211 or 212. The road runs along the eastern border of Dags No. 391 and 210. Dags No. 211 and 212 are away from road. This being the position so far as boun daries are concerned, the land sold on 19.9.1969 cannot be near the road. Moreov er even if it is near the road then the demised land cannot be covered by Dag No . 211 or 212. So the findings of the learned trial Court that the boundaries men tioned in Ext.-8 (equal to Ext.-’Ga’) is vague cannot be faulted. So, applicatio n of the case law reported in AIR 1963 Supreme Court 1879 Sheodhyan Singh and ot hers v. Mst. Sanichara Kuer and others does not have relevance in the present ca se. Here, boundaries do not lead the parties in any way. Rather the dags number mentioned in the sale deed is supported by the area of the dag mentioned therein and so the finding of the learned trial Court that land measuring 3 kathas 4 le chas covered by Dag No. 212 of PP No. 15 has been sold to the defendants is acce pted. Once this findings of fact by the learned trial court is accepted, the sub stantial questions No. 1, 2 & 3 referred to above are to be decided in favour of the appellants holding that the learned trial Court did not commit any error in considering Ext.-’Ga’ as a document of title that land under Dag No. 211 was no t sold to the defendants vide Ext.-’Ga’ or for that by any other document. 10. So as far as claim of the defendants regarding Dag No. 391 are concerned , the same is based on Ext.-’Gha’. This Ext.-’Ga’ is an unregistered document by which 1 katha land was sold to the defendant. The schedule of the said unregist ered deed does not contain dag no., patta no. or even boundaries. Moreover the c ost of the land sold is shown as Rs. 100/-. Obviously any immovable property hav ing value of Rs. 100/- and above can be sold by way of registered deed in as muc h as Section 17 of the Registration Act requires registration of such document c ompulsory. The effect of non-registration of a document which is compulsorily re gistrible and the effect of non-registration of a document has been laid down in Section 49 of the Registration Act. Section 49 of Rigistration Act provides tha t such a deed shall not affect any immovable property unless it is registered an d the same shall not be admissible in evidence except being used as evidence in a suit for specific purpose of contract. In this view of the matter Ext.-’Gha’ i s not admissible in evidence and consequently no title has flown to the defendan ts because of execution of Ext.-’Gha’. The findings of the learned trial Court, therefore, that the defendants have not acquired any title to Dag No. 391 by Ext .-’Gha’ also cannot be interfered with. In that view of the matter, the substant ial question No. 4 in regard to allowing the claim of the defendants over Dag No . 391 is answered in the negative. The learned First Appellate Court committed e rror in decreeing the impugned order as to claim of the defendants over Dag No. 391. Once the aforesaid four substantial questions of law are decided in favour of the plaintiffs holding that the plaintiffs have right, title and interest ove r Dag No. 211 and that defendants do not have any claim over any land over Dag N o. 211, the claim of partition of the defendants of said Dag No. 211 cannot aris e. Consequently, the substantial question No. 5 also has become redundant on the background of the said finding. 11. In the result, the first appellate judgment and decree dated 16.02.2002 in Title Appeal No. 10/2001 is hereby set aside and the trial Court’s decree dat ed 09.01.2001 passed in Title Suit No. 178 of 1998 is hereby uphold. 12.
Decision
No order as to costs. 13. 14. Draw up decree accordingly. Sent down the records immediately after drawal of decree.