High Court
Case Details
RSA 164/2003 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL) This appeal by the defendants in Title Suit No. 110/1985 is directed against the judgment and decree dated 23.6.2003 passed by the learned Civil Judge (Senior D ivision), Goalpara in Title Appeal No. 26/1999 (earlier numbered as Title Appeal 8/1989) dismissing the appeal preferred by the present appellants by upholding the judgment and decree dated 12.4.1989 passed by the learned Munsiff No. 1 in t he aforesaid suit, whereby and whereunder the suit of the plaintiff has been dec reed.
Legal Reasoning
The predecessor-in-interest of the present respondent Nos. 1 to 2. 8, namely, Hafejuddin Mullah, instituted the aforesaid suit against the predeces sor-in-interest of the present appellant Nos. 1(i) to 1(x), 2(i) to 2(viii) as w ell as the appellant No. 3, praying for declaration of his right, title and inte rest in respect of the land described in schedule to the plaint and for recovery of khas possession by evicting the defendants therefrom, apart from praying for a decree for mesne profit, contending inter alia that the father of the plainti ff Ainullah Munchi and the father of Danesh Ali Mulla and Jabbar Ali Mullah join tly possessed the lands in equal shares as tenants under different landlords and obtained khatians. It has further been pleaded that after the death of Ainullah Munchi the plaintiff being the sole successor in interest has inherited the sha re of land of Ainullah and Danesh and Jabbar inherited the remaining half of the land, they being the sons of Aiyethullah. The further pleaded case of the plain tiff was that there was amicable partition between Danesh and Jabbar and accordi ngly they possessed … of the total land each. The plaintiff further pleaded that he was possessing the land which fell in the share of his father Ainullah and a lso purchased some land from Baser, the adopted son of Danesh by registered sale deed dated 10.2.1965, who has acquired the right, title and interest in respect of the land on acceptance of gift by Danesh in his favour. According to the pla intiff while he was enjoying the possession of the land he, however, was disposs essed from the part of the suit land by the defendants initially in July 1979 an d thereafter from the remaining portion of the land in the month of July 1980 wh ich necessitated filing of the suit. 3. The suit has been contested by the legal heirs of the defendant Nos. 1 and 2 by filing the written statement contending inter alia that the suit is not maintainable for want of necessary parties, namely, the successor in int erest of Amina, sister of Hafejuddin Mullah (original plaintiff) and daughter of Ainullah. It has further been pleaded that out of the land which fell in the sh are of Aiunullah, Amina being his daughter inherited 1/3 of the land, which port ion of the land was transferred to the defendant Nos. 1 and 2 by registered sale deed by the successors in interest of Amina, namely, Abdul Kayum, Abdul Barek a nd Md. Mainul Haque and as such the plaintiff alone cannot file the suit. It has also been pleaded that the right, title and interest of the said land according ly vest on the defendant Nos. 1 and 2. The further claim of the defendant Nos. 1 and 2 is that Danesh had one daughter through the second wife, namely, Rupsi, w ho is the mother of Baser and Rupsi sold 3 bighas of land in favour of Taher Ali Pramanik, who in turn sold the said land to the defendant Nos. 1 and 2 by regis tered instrument and hence they have acquired the right, title and interest in r espect of 3 bighas of land out of the land fell in the share of Danesh. 4. Based on the pleadings of the parties the trial court framed the following issues for determination : - (cid:28)1. Whether there is a cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the suit is barred by limitation? 4. Whether the suit is bad for misjoinder and nonjoinder of defendants? 5. Whether this court has jurisdiction to try the suit? 6. Whether the plaintiff has right title to the suit land? 7. Whether the plaintiff is dispossessed from the suit land as alleged i n the plaint? 8. Whether the plaintiff is entitled to get the relief prayed for? 9. To what other relief the parties are entitled? (cid:29) 5. The trial court upon appreciation of the evidence on record, bot h oral and documentary, decreed the suit of the plaintiff vide judgment dated 12 .4.1989 by holding that the suit is not bad for want of necessary parties and th at the plaintiff could prove that he has inherited the property after the death of Ainullah and that after the sale by Baser in favour of the plaintiff, Rupsi c ould not have sold the property in favour of Pramanik and subsequently by Praman ik in favour of the defendant Nos. 1 and 2. The trial court, however, did not go into the question as to whether Amina was the sister of the plaintiff and if so the extent of her share over the land left by her father Ainullah. The trial co urt also did not go into the question whether Rupsi was the daughter of Baser an d as such inherited any property out of the land fell in the share of Danesh. 6. Being aggrieved the defendants preferred Title Appeal No. 8/1989 before the first appellate court which was allowed by refusing to accept the pr ayer for amendment of the plaint made by the respondent plaintiff in the said ap peal, against which the plaintiff preferred Second Appeal No. 33/1992 before thi s Court which was allowed vide order dated 11.2.1999 by setting aside the judgme nt and decree passed by the first appellate court and allowing the prayer for am endment and also remanding the case to the first appellate for fresh decision. T he first appellate court, after remand, renumbered the said appeal as Title Appe al No. 26/1999 and decided the same by dismissing the appeal preferred by the de fendants and affirming the judgment and decree passed by the trial court. The fi rst appellate court also did not go into the questions, as noticed above. Hence the present appeal. 7. During pendency of the suit the original plaintiff Hafejuddin di ed and in his place the present respondents were substituted. The original defen dant Nos. 1 and 2, namely Md. Sobhan Khan and Md. Sohrab Khan, died during pende ncy of the Title Appeal and in their place the present appellant Nos. 1(i) to 1( x) and 2(i) to 2(viii) were substituted. 8. n the following substantial questions of law: - The appeal was admitted for hearing vide order dated 10.9.2003 o 1. Whether the judgments of the courts below suffer from the infirmity o f non consideration of the admission by the plaintiff that Rupsi Khatun is the d aughter of Danesh? 2. Whether the learned courts below without first determining the share of Rahiman widow of Abdul Jabbar in their joint property were justified in holdi ng that the plaintiffs acquired title over 1B 15K 15 dhars vide sale deed dated 7.5.1059 executed by Rahiman? 3. Whether the judgments of the courts below suffer from, error in misre ading Ext. 11 by which Baser sold 7 b of land to the plaintiff though on his own admission he got only 3 bighas by the alleged deed of gift? 4. Whether the learned courts below put wrong construction on Ext. 1 to 8, Ex. 11, Kah, Kha, Ga, Gha etc. which are basic documents for deciding the cas e?
Legal Reasoning
9. as well as Mr. MA Sheikh, learned counsel appearing for the respondents. I have heard Mr. B Banerjee, learned counsel for the appellants Mr. Banerjee, learned counsel appearing for the appellants, refe 10. rring to the impugned judgment and decree passed by the first appellate court ha s submitted that two main questions, which require determination, have not been answered by any of the courts below, namely whether Amina was the daughter of Ai nullah, father of Hafejuddin, the original plaintiff, and whether Rupsi was the daughter of Danesh, if so, whether the defendant Nos. 1 and 2 have acquired righ t, title and interest in respect of the part of the suit land by virtue of purch ase from Abdul Kayum, Abdul Barek and Moinul, heirs of Amina, and by Taher Ali P ramanik, who purchased land from Rupsi, daughter of Danesh. It has also been sub mitted that since Amina was the sister of Hafejuddin, the original plaintiff, sh e has got share of the property left by Ainullah and the defendant Nos. 1 and 2 having got right, title and interest over the part of the suit land by virtue of the purchase from the successors in interest of Amina, the suit of the plaintif f is bad for non joinder of necessary parties, which aspect of the matter has al so not been considered. 11. Mr. Sheikh, learned counsel appearing for the respondents, on th e other hand supporting the judgments and decrees passed by the courts below has submitted that it is apparent from the judgment passed by the first appellate c ourt that though the defendant has set up the plea that Amina being the sister o f Hafejuddin got certain land after the death of Ainullah and Rupsi has been cla imed to be the daughter of Danesh, the defendants could not adduce cogent and re liable evidence to substantiate such claim and hence the court below has rightly passed the decree which does not require interference in appeal. 12. and decrees passed by the courts below. I have considered the submission and also perused the judgments 13. It appears from the aforesaid judgments that part of the suit la nd has been claimed by Hafejuddin, the original plaintiff by right of inheritanc e and part of the suit land by right of purchase. According to the plaintiff he got the land described in plot No. 1 by right of purchase from Rahimon Bewa by r egistered deed of sale dated 17.5.1959 as well as from Baser, the adopted son of Danesh by registered deed of sale dated 10.2.1965, who got the suit property by way of gift from Danesh. The plaintiff also claimed that the land described in plot Nos. 2, 3 and 4 is his ancestral property, which he has inherited after the death of his father Ainullah. The defendant Nos. 1 and 2 on the other hand have pleaded that the plaintiff had a sister named Amina, who also after the death o f their father Ainullah acquired right over 1/3 of the land and Amina’s successo r in interest, namely Abdul Kayum, Abdul Barek and Moinul transferred their shar e of land in favour of defendant Nos. 1 and 2 by registered deed of sale dated 2 9.3.1980 (Ext. Ga). The further case of the defendants is that Rupsi was the dau ghter of Danesh through the second wife, namely, the mother of Baser, who vide E xt. Ka dated 23.5.1979 sold the plot of land fell in her share in favour of Tahe r Ali Pramanik and Taher Ali vide Ext. Kha sale deed dated 19.10.1979 sold the s aid land in favour of the defendant Nos. 1 and 2. It is also the case of the def endants that Rupsi has sold another plot of land in favour of the defendant Nos. 1 and 2. 14. Though the trial court framed issues relating to non joinder of necessary parties and whether the plaintiff has acquired any right, title and in terest over the suit land, being issue Nos. 4 and 6, respectively, none of the c ourts below have gone into the most vital aspect of the matter namely whether th e original plaintiff had a sister namely Amina and Danesh had a daughter namely Rupsi. The said questions assume importance because of the claim made by the def endants that Amina’s successor in interest sold the land fell in her share, in f avour of the defendant Nos. 1 and 2, and Danesh’s successor in interest, namely Rupsi, sold part of the land fell in her share to Pramanik who in turn sold it t o the defendant Nos. 1 and 2, apart from the part of land sold by Rupsi in favou r of defendant Nos. 1 and 2. 15. The trial court rejected the case of the defendants despite prov ing the sale deeds since those sale deeds were subsequent to the sale deed execu ted by Baser by holding that no right can be conferred in favour of the defendan t Nos. 1 and 2 by such sale, without going into the aspect whether Amina and Rup si had any share over the property left by their predecessor in interest and tra nsferred their share in favour of the defendants. In view of the aforesaid discussion, the judgment and decree pas 16. sed by the first appellate court is set aside and the matter is remanded to the first appellate court to decide the aforesaid issue Nos. 4 and 6 afresh, based o n the evidence already on record. The first appellate court shall record definit e finding as to whether Amina was the daughter of Ainullah, if so, the extent of her share in the property after the death of Ainullah and whether Rupsi was the daughter of Danesh, if so, what is the extent of her share over the land left b y Danesh. If those question of facts are decided in favour of the defendants the first appellate court then shall decide whether Amina’s successor in interest s old the land in favour of the defendant Nos. 1 and 2, meaning thereby whether th e defendant Nos. 1 and 2 could prove such sale and whether Rupsi sold any land i n favour of Pramanik, who in turn sold the land in favour of the defendant Nos. 1 and 2 and whether the defendant Nos. 1 and 2 purchased another plot of the lan d from Rupsi and whether the defendants could prove such sale and whether the sa id land fell in the share of Amina and Rupsi. 17. Since the suit was instituted in the year 1985, the first appell ate court shall decide the appeal within two months from the date of appearance of the parties. 18. urt on 30.11.2013. The parties are directed to appear before the first appellate co 19. The Registry is directed to send down the records so as to reach the said court on or before 25.11.2013. 20. No cost. The appeal is accordingly allowed to the extent indicated above.