High Court
Case Details
RSA 104/2003 BEFORE THE HONBLE JUSTICE MR. N. CHAUDHURY This second appeal has been preferred by the plaintiffs of Title Suit No. 6/1995 of the Court of learned Civil Judge (Junior Division), Barpeta against the conc urrent findings of the learned Court below. The suit of the plaintiffs was dismi ssed by the learned Trial Court on 29.05.1999 and an appeal there-against also f ailed on 26.03.2003. This second appeal is against the aforesaid judgment of the learned Court below.
Legal Reasoning
2. Plaintiff Abdus Sattar Khan and 2 (two) others as plaintiffs instituted Title Suit No. 6/1995 in the Court of learned Civil Judge (Junior Division), No. 1 at Barpeta praying for declaration of their right, title and interest and conf irmation of possession over schedule ’A’ land, recovery of possession of ’B’ sch edule land from where the plaintiffs are alleged to have been dispossessed and a lso for partition of suit land described in schedule ’C’ to the plaint. Accordin g to the plaintiff, out of 59 Bighas of land in the Patta in question, their pre decessor Sahed Ali Khan inherited 15 Bighas 1 Katha 2 ‰ Lechas and thereafter on 07.03.1984 plaintiffs purchased another plot of 3 Bighas out of the said Patta and thus the plaintiffs became owner of a total of 18 Bighas 1 Katha 2 ‰ Lechas of the land under the suit Patta covered by Dag No. 662. According to the plaint iffs, the defendants dispossessed them on 17.02.1993 forcefully. The plaintiffs claimed recovery from the schedule B land and confirmation of schedule ’A’ land accordingly. 3. Again in the case, the defendants submitted a written statement denying the case of the plaintiffs. According to the defendants, the land in the suit Pa tta measuring 35 Bighas 2 Kathas originally belonged to 3 (three) persons namely , Sahed Ali Khan (predecessor of the plaintiff), Idrish Ali Khan (defendant No.1 ) and one Magal Khan and all of them equally owned aforesaid 35 Bighas 2 Kathas and as such predecessor of the plaintiff was really owner of 11 Bighas 2 Kathas of land only and not 15 Bighas 1 Katha 2 ‰ Lechas as claimed by the plaintiffs. Upon such pleadings of the parties, the learned Trial Court framed follo 4. wing issues: (cid:28)I) II) paid? whether there is cause of action for this suit? Whether the suit is properly valued and whther proper court fee has been Whether the suit is bad for non-joinder of necessary parties and mis-joi Whether the suit is barred by law of limitation? Whether the suit is maintainable in its present form? Whether the plaintiffs have right, title, interest and possession over t III) nder of parties? IV) V) VI) he ’A’ schedule land of the plaintiffs? VII) Whether the plaintiffs were dispossessed from suit land i.e. ’B’ schedul e land of the plaint by the defendants on 17.06.1993 and whether they are entitl ed for khas possession in respect of this land? VIII) IX) X) Whether the plaintiffs are entitled to a decree as prayed for? To that other relief or reliefs if any the plaintiffs entitled? Whether this Court has pecuniary jurisdiction to try this suit? (cid:29) 5. The plaintiffs examined 5 witnesses and proved 3 documents, namely, the sale deeds Exbt. 1 and 2 and Chittha Exbt. 3. The defendants examined 3 witnesse s. 6. The learned Trial Court on perusal of Exbt.3 found that there are 35 Big has 2 Kathas of land in the suit Patta and admittedly the said land was jointly owned by the aforesaid 3 (three) persons. The plaintiffs and the defendants are first cousins. On perusal of Exbts. 1 and 2, the learned Trial Court came to a f inding that the plaintiffs have purchased 3 Bighas of land of the suit Patta des cribed in schedule 1. Apart from that they inherited 11 Bighas 2 Kathas of land out of the total of 35 Bighas 2 Kathas land available in the suit Patta and thus the plaintiffs are entitled to 14 Bighas 4 Kathas of land only and thus the sui t of the plaintiffs was partly allowed. The learned Trial Court allowing the pra yer of the plaintiffs for partition issued direction for precepts to the Revenue Authority under Section 54 of the C.P.C. A preliminary decree was accordingly d rawn up. 7. The aforesaid judgment of the learned Trial Court delivered on 29.05.199 9 was brought under challenge by the plaintiffs before the learned Civil Judge ( Senior Division), Barpeta in Title Appeal No. 15/1999 and claimed 18 Bighas 1 Ka tha 2 ‰ Lechas including 3 Bighas of land purchased by them. The same appeal was dismissed on 26.03.2003. The learned First Appellate Court did not find any gro und as to how there is any error of calculation of the area of the land of the p laintiffs. The learned First Appellate Court accepted the findingS of the learne d Trial Court that out of the 35 Bighas 2 Kathas of land in the suit Patta, the plaintiffs being owner of 1/3 share by inheritance were entitled to 11 Bighas 2 Kathas only. However, since the plaintiffs purchased 3 Bighas of land on 17.03.1 984 by Exbt. 1, their entitlement became 14 Bighas 4 Kathas only and thus the Tr ial Court’s decree was upheld by the learned First Appellate Court. Thus there a re concurrent findings in regard to the plaintiffs in the suit Patta. This is br ought under challenge in the presence of the second appeal. 8. This Court by order dated 12.08.2003 issued notice calling upon the resp ondents to show cause as to why the impugned lower Court judgments are not to be set aside and quashed. Subsequently, the records were also called for but no su bstantial question of law was previously formulated. Further, by order dated 12. 09.2008, the appeal was fixed for hearing. 9.
Legal Reasoning
Today, Mr. M.U. Mahmud, learned counsel for the appellants has submitted that the substantial question of law involved in this appeal may be as follows: (cid:28)Whether on the basis of the documents available on record, the learned Court be low committed error in not declaring the title of the plaintiffs over the suit l and? (cid:29) Mr. Mahmud has placed reliance in the case of Neelu Narayani and Others 10. vs. Lakshmanan reported in (1999) 9 SCC 237 and has submitted that the same is a valid substantial question of law. Having heard the learned counsel for the par ties I framed the aforesaid substantial question of law accordingly and the same is taken up for hearing today. 11. The plaintiffs in this case have adduced 3 (three) documents in all. Exb t. 1 is the sale deed dated 17.03.1984 whereby they purchased 3 Bighas of land f rom one Mufajjal who on turn had purchased the land on 29.03.1980 vide Exbt. 2 ( registered sale deed) from Idrish Ali, the defendant No.1 herein. Thus the plain tiff has succeeded to prove his title in regard to his 3 Bighas of land and the learned Court has rightly held in regard thereto. But so far as the claim of inh eritance of 15 Bighas 1 Katha 2 ‰ Lechas of land is concerned, the plaintiff cou ld not bring anything on record to show that the total land held in ejmali by S ahed Ali Khan, Idrish Ali Khan and Mughal Khan was 59 Bighas of land as claimed in plaint. By adducing Exbt. 3, the plaintiffs themselves admitted that the suit Pa 12. tta contains only 35 Bighas 2 Kathas of land. Apart from these 3 (three) exhibit s, there is no other exhibit on record from the side of the plaintiff to prove t hat they acquired right, title and interest to the land over 11 Bighas 2 Kathas of land. That being the position, it is to be held that on the basis of the docu ments available on record the plaintiffs could prove their right of inheritance with respect to 11 Bighas 2 Kathas only and not 15 Bighas 1 Katha 2 ‰ Lechas. Th us the sole substantial question of law has to be decided in the negative holdin g that on the basis of the documents adduced, the plaintiff could not prove titl e for land more than 14 Bighas 4 Kathas of land and that is the findings on fact as well by the learned Courts below. 11. appeal is dismissed. Decree may be drawn up accordingly. Situated thus, the second appeal is devoid of merit and accordingly the 12. Send down the Lower Court’s Records. 13. are left to bear their own cost. Further considering the facts and circumstances of the case the parties