Tripura High Court
Md. Soya Mia vs Abdul Chamed on 9 April, 2018
Equivalent citations: AIRONLINE 2018 TRI 311
Author: S. Talapatra
Bench: S. Talapatra
Page 1 of 14
HIGH COURT OF TRIPURA
AGARTALA
RSA. No. 46 of 2014
1. Md. Soya Mia,
son of late Asmat Ali,
2. Abdul Khalek,
son of late Keramat Ali,
3. Sishu Mia,
son of late Tukku Mia,
4. Md. Hanif Mia,
son of Sri Soya Mia
[all are residents of Village & P.O. Shilghati, P.S.
Kakraban, Udaipur, District: Gomati, Tripura]
----Appellant(s)
Versus
1. Abdul Chamed,
son of late Ali Ahmed,
2. Amena Bibi,
wife of Abdul Chamed,
[both are residents of Village & P.O. Shilghati, P.S.
Kakraban, Udaipur, District: Gomati, Tripura]
----Respondent(s)
For Appellant(s) : Mr. D. K. Daschoudhury, Adv For Respondent(s) : Ms. P. Dhar, Advocate Mr. J. Debbarma, Adv Reserved on : 03.04.2018 Judgment pronounced on : 09.04.2018 Whether fit for reporting : YES HON'BLE MR. JUSTICE S. TALAPATRA JUDGMENT AND ORDER Heard Mr. D. K. Daschoudhury, learned counsel appearing for the appellants as well as Ms. P. Dhar, learned Page 2 of 14 counsel and Mr. J. Debbarma, learned counsel appearing for the plaintiff-respondents.
[2] This is an appeal under Section-100 of the CPC from the judgment dated 23.01.2014 delivered in Title Appeal No. 24 of 2013 by the District Judge, South Tripura now Gomati, Udaipur. The appellants were the defendants in the suit being Title Suit No. 21 of 2012, which was instituted by the plaintiff- respondents for declaration of right, title and interest in respect of the suit land as described in the Schedule-A and Schedule-B of the plaint and recovery of possession of the suit land. [3] It has been pleaded in the plaint that by dint of allotment order under No. 33/59 dated 02.08.1987, the plaintiffs acquired right, title and interest over the land measuring 0.32 acre. The plaintiffs have been in the possession on the suit land, but on 12.01.2012, the plaintiffs were dispossessed from the suit land as described in the Schedule-B to the plaint, which is different land, according to the plaintiff- respondents.
[4] The father of the plaintiffs namely Ali Ahmed, since deceased, by means of an oral gift transferred a piece of land measuring 0.34 acre as described in the Schedule-B to the plaint. Such oral gift was made 30 years prior to the institution of the suit. The plaintiffs have also been dispossessed from the suit land by the defendants No. 1, 2 and 4 along with 3(three) others on the same date i.e. on 12.01.2012. They were dispossessed from the suit land.
Page 3 of 14[5] The defendants stiffly contested the suit by filing the written statement and pleaded that the plaintiffs were never in possession over the suit land as described in the schedule-A land and they had been wrongly allotted the said land by the authority. The defendants by raising serious objection have initiated the proceeding for cancellation of the order of allotment. The defendants have denied the incidence of oral gift by Ali Ahmed in favour of the plaintiff No. 1 and the defendants claimed the said land measuring .34 acre under the oral gift, is the part of the joint property. [6] The said property was never partitioned among the other co-parceners but the plaintiffs, in collusion with the settlement officials, managed to get the suit land recorded in their name in the record of rights. Based on the said rival pleadings, the following issues were framed:
"(i) Whether the suit is maintainable in its present form and nature?
(ii) Whether the suit land is identifiable or not?
(iii) Whether the plaintiffs have any right, title and interest over the Schedule-A and Schedule-B of the plaint?
(iv) Whether the plaintiff is entitled for a decree recovery of khas possession of the suit land by evicting the defendants, their men and agents etc.?
(v) Whether the plaintiffs are entitled for a decree of perpetual injunction restraining the defendants, their men, agents etc. not to disturb the peaceful possession of the plaintiffs after handing over khas of the suit land?
(vi) Whether the plaintiffs are entitled for any mesne profit?
(vii) Whether the plaintiffs are entitled for any other relief/reliefs?"Page 4 of 14
[7] Having due regard to the issues, both the plaintiffs and the defendants have adduced their evidence, both oral and documentary. The trial court [the Civil Judge, Sr. Division, South Tripura, Udaipur], based on the judgment dated 03.08.2013 delivered in T.S. 21 of 2012, decreed the suit holding that the plaintiffs have got right, title and interest over the suit land as described in the schedule- A and Schedule-B to the plaint. It has been further observed that as the plaintiffs have proved their right, title and interest, they are entitled to a decree for recovery of the khas possession of the suit land by evicting the defendants, their men and agents etc. The plaintiffs are also entitled to decree of perpetual injunction restraining the defendants, their men and agents from disturbing the peaceful possession of the plaintiffs after handing over of the vacant possession of the suit land. Further, the plaintiffs are declared to be entitled for mesne profit amounting to Rs. 3,000/- from the defendants of the case. [8] Being aggrieved by the said judgment dated 03.08.2013 (Annexure-3 to the memorandum of appeal), the defendants filed an appeal under Section-96 of the CPC being T.A. 24 of 2013 in the court of the District Judge, South Tripura, Udaipur on the several grounds including that a Muslim cannot make gift for the property more than two third of his share and as such, the gift is unlawful and inoperative. The appellants had also reiterated that they were in possession of the suit land as described in the schedule-A. Page 5 of 14 [9] Further, the defendant-appellants raised another ground of objection that since the judgment and order dated 09.07.1998 delivered in T.S. 06 of 1998 was an ex-parte judgment, based thereon, no final inference can be drawn against the defendants (Exbt-6). In the said judgment dated 09.07.1998, it has been observed by the Civil Judge, Junior Division, South Tripura, Udaipur, that " right, title and interest and possession of the plaintiffs over the suit land is hereby declared. The defendants side hereby restrained permanently from entering into the suit land and also from disturbing the possession of the plaintiffs on the same."
[10] According to the plaintiffs, the title suit being T.S. 21 of 2012 pending in the court of the Civil Judge Sr. Division, Gomati District, Udaipur is barred by the principle of res judicata as the similar issue was raised and decided by the said judgment and order dated 09.07.1998. The first appellate court has affirmed the judgment and order dated 03.08.2013 delivered in T.S. 21 of 2012.
[11] Mr. D. K. Daschoudhury, learned counsel appearing for the appellants has restated that there is no incidence of dis- possession. The story is wholly imaginary. He has further contended that the findings as returned by the first appellate court surfaces from non-appreciation of the materials placed on the record.
[12] Mr. Daschoudhury, learned counsel has in particular referred to the following passages from the impugned Page 6 of 14 judgment to say that these findings cannot be sustained as the evidence stands contrary to such position of fact.
"From the allottee khatian No. 1139, it is found that land measuring 1.10 satak was allotted in favour of Abdul Samed, the plaintiff-respondent. 'A' schedule suit land appertained to present dag No. 2410. The land measuring 32 satak. Allotment order was passed by the competent authority on 02.08.1998. it is alleged that defendant-appellant Nos. 1 and 2 forcibly occupied a portion of the suit land under plot No. 2417. But what portion of the suit land is occupied, not clearly stated. 'B' schedule land is appertained to three khatians. Khatian No. 2082 plot No. 2400, khatian No. 1757 plot No. 2400/5616 and khatian No. 1767 plot No. 2401 and 1682. Learned Civil Judge, Senior Division, perused the khatians and concluded that Abdul Samed, the plaintiff-respondent was the owner of both 'A' and 'B' schedule land. On perusal of khatian No. 1767, it is found that one Abdul Samed owned 52 satak land. That Abdul Samed under khatian No. 2082 also owned land measuring 32 satak vide Ext.3 and 4. From Ext.3 and 4 it is transpired that Abdul Samed, plaintiff- respondent, owned total 52+32 = 84 satak land under different dags. Both the khatians, as per comments given in column No. 16, emerged from khatian No. 105. I have gone through that khatian No. 105. It is a joint khatian in the name of Ali Ahmed, Fajar Ali, Asmad Ali and others. Total land under that khatian is 104 satak. Ali Ahmed owned 50% share i.e. 52 satak and others got 50% share. Rejia Khatun, wife of plaintiff-respondent, also owned the share of the property. Even if her share is included, the share of Ali Ahmed, father of plaintiff-respondent, cannot be 84 satak as per two khatians. But as per Ext. 3 and 4, Abdul Samed got 84 satak land. The right, title and interest of Abdul Samed over the 'A' schedule land clearly comes out from the Khatian No. 1139 and also in the allotment order vide Ext. 5. But that land is under dag Nos. 2413, 2409 and 2410. Not the land described in two khatians (Ext. 3 and 4). By the judgment and decree in connection with T.S. 06 of 1998, Abdul Samed got decree measuring 62 acres land under khatian No. 105. That is also considered as a base line for getting the decree but being holder of 50% share including the share of his wife Jamina Bibi, the land may be 62 satak but it cannot be 84 satak as per khatian No. 2082 and 1767. It is true that khatian is the primary proof of the title unless contrary is proved. But there should be basis of the khatian. How Abdul Samed got the property of 84 satak, is to be proved. khatian No. 523 is a joint khatian. Khatian No. 1139 is also a joint khatian in the name of Abdul Samed and Amena Bibi. Same khatian is also produced by the defendant- appellants vide Ext. C and Ext. D. Ext. E is the notice given to Abdul Samed cancellation of the allotment order. The proceeding is going on. Admittedly, the khatian is yet to be canceled. Therefore, it cannot be said that the allottee khatian holds title or interest of Abdul Samed.Page 7 of 14
But over the 'B' schedule land the right, title and interest of the plaintiff-respondents not basxed on proper documentary evidence. The right, title and interest can go to the extent of 62 satak, not 84 satak as per Ext. 3 and 4. But the Court below declared right, title and interest over 84 satak and as per Ext. 3 and 4. Both the kahtians emerged from khatian No. 105, a joint khatian in the name of predecessor in interest of the plaintiff-respondents. As per that khatian No. 105, total land is 104 satak and 50% share only makes out 52 satak and inclusion of the share of wife of Abdul Samed cannot go beyond 62 satak. The matter of gift of property more than one thrid is not challenged by any successor of Ali Ahmed, predecessor in interest of Abdul Samed, plaintiff-respondnets. So, it cannot be said that Abdul Samed did not inherit the property of his father Ali Ahmed. But by inheritance, gift, inclusion of the propery of his wife, the area of the land cannot go beyond 62 satak. It si also confirmed by the decree given by the learned court below in connection with case No. T.S. 06 of 1998. Right, title and interest over 62 satak land was declared by that suit. So, findings of the learned court below in this case given declaration of total 84 satak, is found erroneous and cannot be accepted.
Therefore, right, title and interest over the land measuring 62 satak over the 'B' schedule land can be declared in favour of the plaintiff- respondent and not 84 satak. Total land from which he dispossessed, is shown in the schedule, it is 34 satak in two khatians and area not mentioned. Out of 62 satak the plaintiff- respondent is dispossessed from 34 satak. So, he is entitled to get back the property by dispossessing the appellants.
The matter of dispossession is stated by all the witnesses. But in the matter of mesne profit, there is no specific evidence. How the land was used and income comes out, is not clearly established. Therefore, the findings of the learned court below that the plaintiff-respondent is entitled to get Rs. 3,000/-, cannot be accepted and this issue is decided in negative way. The court below also rightly decided that the plaintiff-respondent is not entitled to get any other relief. Thus, except the issue No. 6, other issues are rightly decided with some modification in respect of right, title and interest."
[13] According to Mr. Daschoudhury, learned counsel appearing for the appellants, the modification in the measurement has not been challenged by the plaintiff- respondents. Mr. Daschoudhury, learned counsel has submitted that the grant of allotment was wholly illegal as when the order of allotment was issued, the said land was under possession of Page 8 of 14 the defendants and as such, the plaintiffs were never able to take possession of the allotted land.
[14] Mr. Daschoudhury, learned counsel appearing for the appellant has further submitted that 'B' schedule land in the plaint has been described in three parts viz, khatian No. 2082, Khatian No. 1767 and Khatian No. 1767. The plaintiff No. 1 in his cross-examination has clearly stated that he had not instituted the suit relating to any land under khatian No. 1767. Mr. Daschoudhury, learned counsel has given adequate emphasis on such statement to destabilize the claim of the plaintiff in the suit and as such, the judgment as returned by the trial court, is not tenable.
[15] The entire B schedule land has been claimed to have acquired under an oral gift from his father, Ali Ahmed about 30 years back and he got the land recorded in his favour in the record of rights.
[16] Mr. Daschoudhury, learned counsel appearing for the appellants has submitted that the fact of oral gift was not proved and as such, that land as described in the schedule-B shall be treated as the part of the joint property. Mr. Daschoudhury, learned counsel has further submitted that the plaintiffs did not adduce any evidence to probabolize the incidence of dispossession at all, whereas, the defendants by adduction of the evidence has sought to prove that the plaintiffs were never in possession over the suit land. Thus, there is no corroborative evidence.
Page 9 of 14[17] According to Mr. Daschoudhury, learned counsel, the findings as returned are absolutely perverse as those emerge against the evidence on record. He has relied on a decision of the Apex Court in Jattu Ram v. Hakam Singh & Others, reported in AIR 1994 SC 1653, where the Apex Court has held as under:
"It is settled law that the Jamabandi entries are only for fiscal purpose and they create no title. It is not the case that the appellant had any knowledge and acquiesced to it. Therefore, it is a classic instance of fabrication of false interest."
[18] Mr. Daschoudhury, learned counsel appearing for the appellants has also relied on a decision of the Apex Court in State of Himachal Pradesh v. Keshav Ram and Others, reported in AIR 1997 SC 2181, where the Apex Court has observed as under:
"But at any rate such an entry in the Revenues papers by no stretch of imagination can form the basis for declaration of title in favour the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over the disputed land, the learned counsel for the plaintiffs- respondents could not point out any other document apart from the alleged correction made in the register pursuant to the order of the Assistant Settlement Officer."
[19] Mr. Daschoudhury, learned counsel appearing for the appellants has submitted that by (Musha) gift, an undivided share can be perfected by the subsequent partition and delivered to the donee of the share granted to him. In this case, that aspect was not taken care by the plaintiffs or the other persons in interest.
[20] Ms. P. Dhar, learned counsel appearing for the respondents has submitted that the claim as raised by the Page 10 of 14 defendant-appellants has been settled by an ex-parte judgment and order dated 09.0701998 as delivered in T.S. 06 of 1998. By the said judgment, it has been declared that the right, title and interest of possession of the plaintiffs over the suit land were declared and the defendants were restrained permanently from entering into the suit land and also from disturbing the possession of the plaintiff.
[21] From a reading of the said judgment, it would be apparent that the suit land in that suit pertains to khatian No. 105 of Mouza Shilghati. The said land is attracted by the said oral gift which the plaintiff No. 1 received by way of oral gift. It has been observed further in the said judgment that by way of oral gift. The plaintiffs became the absolute owner and possessor of the suit land. He is residing on the suit land in one portion and in the rest portion, he is growing fruit bearing trees. The rest portion of the land of khatian No. 105 used to be possessed by his uncle, Samir Uddin and after his death, his legal heirs exchanged the properties with one Sri Sunil Ch. Dey and other, and left for India. It has been clearly observed that the defendants had never possessed the suit land and they have no right, title and interest over the said land. [22] In view of the said finding, Ms. Dhar, learned counsel appearing for the plaintiff-respondents has categorically stated that no contrary position can be taken by the civil court in the form of suit. Thus, it appears that the plaintiffs were in the possession and as such, the possession by the defendants cannot be believed. Further, the incidence of Page 11 of 14 dispossession has to be believed by the court. The said judgment dated 09.07.1998 was never challenged and it has been allowed to reach to its finality.
[23] Ms. Dhar, learned counsel appearing for the plaintiff-respondents has submitted that the defendant's witness namely, Soya Miah (DW-1) has made a clear statement that it is a fact that the plaintiffs were possessing the land which they got, by way of allotment.
[24] Even Abdul Khalek (DW-2), in his cross- examination has admitted that the plaintiffs are possessing the land which they got by way of allotment. Thus, the defendants are estopped from raising fresh claim in respect of the status of this land. However, the plaintiffs have, after having located that the defendants had dispossessed them from a part of the land proved the case beyond the preponderance of probability. The first appellate court has affirmed the said finding. On scrutiny of the records, this Court does not find any infirmity in the impugned judgment.
[25] Ms. Dhar, learned counsel appearing for the respondents has further submitted that the substantial question of law that has been formulated by the order dated 30.09.2015 cannot be stated to be a substantial question of law within the meaning of Section-100 of the CPC. By the said order dated 30.09.2015, the following substantial question of law was formulated:
"Whether the judgment and decree passed by the trial Court and affirmed by the appellate Page 12 of 14 Court suffers from perversity for non-reading and/or misreading of the pleadings and evidence on record."
[26] According to Ms. Dhar, learned counsel, leaving loose ends, no substantial question of law should be framed. In this regard, Ms. Dhar, learned counsel has relied on a very recent decision of the Apex Court in Shivaji Balaram Haibatti v. Avinash Maruthi Pawar, reported in 2017 AIR(SCW) 5494, where it has been held as follows:
"21. Reading of the aforementioned question shows that the only question, which the High Court was required to consider in the appeal, was whether the Trial Court and First appellate Court decided the case contrary to the pleadings and evidence and especially contrary to the recitals of EX-P.15.
22. The High Court, however, did not frame any other question of law to examine the legality and correctness of any specific finding recorded by the Courts below on the issues framed.
23. In the absence of any question of law framed on any of the adverse findings recorded by the two Courts below against the respondent, those findings attained finality. In other words, since no error was noticed in any of the findings of the two Courts below, the High Court did not frame any substantial question in relation to such findings, which became final for want of any challenge.
24. The High Court, however, framed one general question of law as to whether the findings of the two Courts below were contrary to the pleadings and evidence and especially to Ex-P-15 and held, by placing reliance on Ex.P-15, that the respondent was occupying the suit shop as tenant and, therefore, the remedy of the appellant was in filing a tenancy suit against the respondent and to claim his eviction from the suit shop under the State tenancy laws or/and Transfer of Property Act in such suit but not in the present suit which is based on the strength of his title. The High Court, with this finding, accordingly allowed the appeal and dismissed the appellant's suit as being misconceived.
25. In our considered opinion, the aforesaid finding of the High Court is wholly illegal and unsustainable in law besides being against the pleading and evidence. This we say for following reasons:
26. First, the respondent (defendant) had not raised such plea in his written statement. In other words, the respondent did not set up such defense in the written statement. Second, the Page 13 of 14 Trial Court, therefore, had no occasion to frame any issue on such plea for want of any factual foundation in the written statement. Third, the Trial Court and First Appellate Court, in these circumstances, had no occasion to record any finding on this plea either way. Fourth, in the light of these three reasonings, the High Court ought to have seen that such plea really did not arise for consideration because in order that any question is involved in the case, the party concerned should lay its factual foundation in the pleading and invite finding on such plea.
Fifth, the High Court failed to see the case set up by the respondent in his written statement. As mentioned above, the defense of the respondent was that he had denied the appellant's title over the suit shop and then set up a plea of adverse possession contending that he has become the owner of the suit shop by virtue of adverse possession, which according to him, was from time immemorial."
[27] Further reliance has been placed on Kashmir Singh v. Harnam Singh and Another, reported in (2008) 12 SCC 796, on the scope of the appeal under Section-100 of the CPC. In Kashmir Singh (supra) it has been observed as under:
"24. The principles relating to Section 100, relevant for this case, may be summarized thus:-
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(ii). The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the Page 14 of 14 well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
[28] This Court is of the opinion that the trial court and the first appellate court have made due inquiry into the factual aspect of the matter, particularly in respect of the right, title and interest over the suit land by the plaintiffs. The first appellate court has returned the concurrent finding on fresh appreciation of the evidence holding that the said land belongs to the plaintiffs and they were ousted from a part of the said land. They are entitled to recover the land wherefrom they were dispossessed.
In the result, this appeal fails. The appeal is dismissed. Prepare the decree accordingly. Send down the LCRs thereafter.
JUDGE A. Ghosh