High Court
Case Details
RSA 124/2012 BEFORE HON’BLE MR JUSTICE B. P KATAKEY JUDGMENT AND ORDER (CAV)
Legal Reasoning
Mr. Ahmed, learned counsel for the respondent. Heard Mr. N. Dhar, learned counsel for the appellant as well as This appeal by the defendant is directed against the judgment an 2. d decree dated 5th of January, 2012 passed by the learned Civil Judge, Barpeta i n Title Appeal No. 5/2001, whereby and whereunder the appeal preferred by the pr esent respondent has been allowed by setting aside the judgment and decree dated 30.9.2010 passed by the learned Munsiff No. 1, Barpeta in Title Suit No. 227/20 08 dismissing the suit of the plaintiff. 3. The aforesaid suit has been instituted by the present respondent , as plaintiff, praying for declaration of his right, title and interest and for confirmation of possession and injunction, contending inter alia that Nabiran N essa wife of late Kalu Khan, who is the grandmother of defendant Nos. 2, 3 and 4 and mother-in-law of defendant No. 1 and mother of Proforma-defendant Nos. 1 an d 3, was the pattadar in respect of Schedule ’A’ land, who got the same from her husband late Kalu Khan. According to the plaintiff, she sold the Schedule ’B’ l and measuring 1B 2Ks 10 Ls. in favour of the plaintiff as well as his mother lat e Moyful Nessa by registered sale deed No. 6060 dated 10.11.70 (Ext. 1) and took possession of the same land and enjoying the same. It is the pleaded case of th e plaintiff that there is an attempt to delete the name of Nabiran Nessa by the defendants from the revenue record and also to dispossess the plaintiff from the suit land, which gave rise to the filing of the suit by the plaintiff. 4. The defendant Nos. 1, 2 and 3 entered appearance and contested t he suit by filing a joint written statement contending inter alia that Kalu Khan had two wives, namely, Farida Khatun and Nabiran Nessa and as such under the Mo hammedan Law of Inheritance, both the wives would inherit 1/8th share of the pro perty left behind by their husband Kalu Khan. Accordingly, Nabiran Nessa inherit ed 1B 0K 10.7 Ls of land by right of inheritance, out of which she sold 2Ks 10 L s of land to late Surat Khan by registered sale deed No. 1860 dated 16.2.73 and late Surat Khan was possessing the said land continuously. It has been further p leaded that only 3Ks of land remained in the share of Nabiran Nessa which she, h owever did not possess and, therefore, she did not have any right to sale the la nd in favour of the plaintiff and accordingly, the plaintiff has not acquired an y right, title and interest over the said land. The defendants, therefore, praye d for dismissal of the suit filed by the plaintiff. 5. amed the following issues for determination :- On the basis of the pleadings of the parties, the trial court fr 1. Whether there is cause of action for the suit ? 2. Whether the plaintiff has any right, title, interest and possession over the Schedule ’B’ land ? 3. Whether the plaintiff is entitled to the decree as prayed for in the suit ? 4. To what other relief/reliefs the parties are entitled for ? 6. The plaintiff in order to proved his case examined six witnesses and proved a number of documents including the sale deed No. 6068 dated 10.11.7 0(Ext. 1), which is however, admitted on objection. The defendants side examined three DWs to prove their case and proved Ext. ’Ka’ certified copy of Jamabandi and Ext. ’Kha’ registered sale deed No. 1860/73. 7. The trial court upon appreciation of the evidence adduced by the parties, dismissed the suit of the plaintiff with cost. Being aggrieved, the pl aintiff has preferred Title Appeal No. 5/2011 which has, however, been allowed b y setting aside the judgment and decree passed by the trial court and consequent ly, decreed the suit of the plaintiff. Hence, the present appeal. 8. It has been submitted by Mr. Dhar, learned counsel for the appel lant that since Kalu Khan had two wives, Nabiran Nessa and Farida Khatun, both o f them would inherit 1/8th share of the property, i.e. 2B 1K 1.4Ls, out of which Nabiran Nessa got 1B 0K 10.7 Ls of land as her share and as such Nabiran Nessa cannot sale more than her share, as has been done in the instant case. It has al so been submitted that Nabiran Nessa has sold 2K 10 Ls of land out of 1 B 0K 10. 7 Ls fell in her share, in favour of late Surat Khan by registered sale deed No. 1860 dated 16.2.73 which he has been possessing since then. It has further been submitted that the plaintiff could not prove his title as the certified copy of the sale deed is not admissible in evidence. 9. Mr. Ahmed, learned counsel, on the other hand, referring to the judgment passed by the First Appellate Court, has submitted that DW 3, during cr oss examination has admitted that Farida Khatun, first wife of Kalu Khan, predec eased him and after her death, Kalu Khan married Nabiran Nessa. It has further b een submitted that the surviving wife of Kalu Khan would inherit 2 B 1K 1.4 Ls o f land being 1/8th share of the property left behind by Kalu Khan. The learned c ounsel also submits that out of the said share of land Nabiran Nessa sold 2K 10 Ls of land to late Surat Khan as well as land measuring 1B 2Ks 10 Ls. to the pla intiff and as such Nabiran Nessa still had land as her share after the aforesaid sale of land to the plaintiff as well as to said Surat Khan. The learned counse l further submits that the defendants in fact have not challenged the sale of la nd by Nabiran Nessa in favour of the plaintiff and only contended that Nabiran N essa could not have transfer more than her share of land. I have considered the submissions advanced by the learned counse 10. l for the parties and also perused the judgments and decrees passed by the learn ed courts below apart from the evidence adduced by the parties. 11. The First Appellate Court in the judgment and decree passed on 5 th of January, 2012 in T.A. No. 5/2011 has recorded that DW 3 during cross exami nation had admitted that Farida Khatun, the first wife of Kalu Khan, predeceased him and thereafter Kalu Khan married Nabiran Nessa. To ascertain as to whether such statement has been made by DW 3, I have gone through the evidence of DWs wh erefrom it appears that DW 2 has corroborated the statement made by DW 3 that Fa rida Khatun predeceased Kalu Khan. 12. It is abundantly clear from the evidence on record that Kalu Kha n had married Nabiran Nessa after the death of first wife, Farida Khatun, who in herited 1/8th share of land left behind by Kalu Khan, out of the land measuring 22Bs 0K 11 Ls. The defendants have admitted that the surviving widow of Kalu Kha n would inherit 2B 1K 1.4 Ls of land, being her share, after the death of Kalu Khan. Even if the defendants story that Nabiran Nessa sold 2K 10 Ls of land to S urat Khan is accepted, she still have 1B 3K 11’4 Ls of land, out of which she s old 1 B 2K 10Ls of land to the plaintiff. It is also appears that the plaintiff has proved the Ext. 1, the certified copy of the sale deed, as discussed above. The defendant in fact has not challenged the execution of the sale deed as the plea taken by the defendant was that Nabiran Nessa had sold more than the land f ell in her share, after the death of her husband Kalu Khan. The First Appellate Court also noticing the judgment passed by the Apex Court as well as by this Cou rt has rightly held that the certified copy of the sale deed is admissible in ev idence.
Decision
13. In view of the above discussion, I do not find involvement of an y substantial question of law in this appeal. Hence, the appeal stands dismissed . 14. No cost.