Gauhati High Court
Hasan Ali And Ors vs Hamir Ali Gaoburha on 17 July, 2015
Author: A.K. Goswami
Bench: A.K. Goswami
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
RSA No.30/2005
1. Hasan Ali,
2. Md. Hasmat Ali,
Both are sons of Late Gami Sheikh,
Resident of Village- Maruachuburi,
Mouza- Lokrai, P.S. Sipajhar,
District- Darrang (Assam).
...... Appellants
-Versus-
Md. Hamir Ali Gaoburha,
Son of Late Huti Sheikh,
Resident of Village- Maruachuburi,
Mouza- Lokrai, P.S. Sipajhar,
District- Darrange (Assam).
......Respondent
BEFORE
THE HON'BLE MR. JUSTICE A.K. GOSWAMI
For the appellants : Ms. T. Goswami, Advocate.
For the Respondent : Mr. T. Islam, Advocate.
Date of Hearing : 17.07.2015.
Date of Judgment : 17.07.2015.
JUDGMENT & ORDER
(ORAL)
Heard Ms. T. Goswami, learned counsel for the appellants. Also heard Mr. T. Islam, learned counsel appearing for the respondent.
2. This appeal is directed against the judgment and decree dated 22.09.2004 passed by the learned Ad-hoc Additional District Judge, Darrang, Mangaldoi dismissing the appeal of the principal defendants and affirming the judgment and decree dated 30.06.2000 passed by the learned Civil Judge (Jr. Divn.) No.1, Mangaldoi in Title Suit No.16/1997.
RSA No.30/2005 Page 1 of 63. The second appeal was admitted to be heard by an order dated 28.02.2015 on the following substantial questions of law:
"1. Whether the findings of the learned courts below are perverse on account of non-consideration of Schedule 2 to the plaint and also the evidence of PW-4?
2. Whether the learned courts below were satisfied in passing a decree for about the land measuring 4K, 17L, in Dag No.707(old)/703(new), the area which was only to come 2B 2K 18L and 4/1th that comes only 3K and 4 and half L?
3. Whether the suit is bad for non-joinder of necessary parties?"
4. At the very outset, Mr. T. Goswami, learned counsel for the appellants submits that she will not press substantial question of law No.2 as the same was formulated because of certain typing errors in the plaint, which has now come to her knowledge and that if the correct version of the plaint is considered, such substantial question of law No.2 will not arise for consideration.
5. One Sanibar had 5 sons, namely, Rupa, Gami, Sahabuddin, Manik and Huti. Sanibar had 3 Bigha 4 Katha 7 Lecha of land in Old Dag No.707 and Old Periodic Patta No.183, now numbered as Dag No.703 of Periodic Patta No.101. Sanibar had other land as well. However, the present appeal does not relate to such land. Out of 5 sons of Sanibar, Sahabuddin died as bachelor in the year 1938. Rupa died in the year 1985; Gami died in the year 1989; Manik died in the year 1976 and Huti died in the year 1974.
6. Suit was filed by son of Huti against the principal defendant Nos.1 and 2, who are sons of Gami.
7. Pro forma defendant No.3 is sister of the plaintiff; pro forma defendant Nos.4 and 5 are grand-sons of Manik through his son Saru; pro forma defendant No.6 is also grand-son of Manik through his son Hussain Ali; pro forma defendant No.7 is a son of Manik; pro forma defendant Nos.8, 9 and 10 are sons of Rupa and pro forma defendant Nos.11 and 12 are 2 other sons of Gami.
8. Case of the plaintiff, in a nutshell, is that there was an oral family settlement by virtue of which each of the four surviving sons of Sanibar got 1/4th share in each of the Old Dag Nos.703 and 707, which measures 4 Katha 17 Lecha. It was also stated that share of Rupa was also purchased by Gami. The land falling in share of Huti was possessed by him and on RSA No.30/2005 Page 2 of 6 his demise, in view of an oral settlement, the suit land fell in the share of the plaintiff and accordingly, he was in possession and enjoyment of the suit land which is described in Schedule 2 of the plaint. A site plan showing how 3 Bigha 4 Katha 7 Lecha of land had been allotted to the 4 (four) brothers is also made a part of the plaint. According to the plaint, westernmost plot had fallen in the share of Gami and the easternmost plot fell in the share of Manik. Plaintiff's plot was next to Gami and Rupa's plot was in between the plot of the plaintiff and that of Manik. Case projected in the plaint is that on 1st of April, 1995, the principal defendant Nos.1 and 2 dispossessed the plaintiff from the suit land by ploughing and cultivating paddy. Accordingly, suit was filed for declaration of right, title and interest in respect of Schedule 2 land and for recovery of possession.
9. The principal defendants in their written statement admitted the oral settlement in respect of the land in question amongst the 4(four) brothers. However, they had raised a dispute with regard to the location of land that fell in the shares of Huti and Rupa. It is admitted by them that the westernmost side had fallen in the share of Gami and the easternmost side had fallen in the share of Manik. They say that Rupa's share was next to Gami and Huti's share was in between Rupa and Manik. It is also pleaded that Rupa had sold by a registered sale-deed dated 26.02.1960 some plots of land including his share in suit Dag and thus, Gami had acquired the share of Rupa thereby forming one compact plot. It is pleaded that Huti's share is being occupied by Sattar and Afazuddin and it is also pleaded that by a registered sale-deed dated 10.05.1983, successors of Manik had sold the share of Manik to Gami. They have denied in their written statement that they had illegally dispossessed the plaintiff.
10. On the basis of the pleadings, learned Trial Court framed the following issues:-
"1. Whether there is cause of action for the suit ?
2. Whether the suit is maintainable in its present form ?
3. Whether the proper court fee is paid for the suit ?
4. Whether the plaintiff got right, title and interest over the suit land ?
5. Whether the defendant got right, title and interest over the suit land as alleged in the suit ?
6. Whether the plaintiff is entitled for a decree as prayed for ?
7. To what relief/reliefs parties are entitled ?"
11. Subsequently, one additional issue was framed, which is as follows:-
RSA No.30/2005 Page 3 of 6"1. Whether the suit land fell in the share of the plaintiff in the family arrangement ?"
12. During trial, the plaintiff examined 5 witnesses and the defendants examined 2 witnesses.
13. Initially, it appears that suit was dismissed by a judgment and decree dated 04.08.1998. However, Title Appeal No.22/1998 preferred by the plaintiff was allowed by the learned Civil Judge (Jr. Divn.), Darrang remanding the case to the learned Trial Court suggesting an issue which, subsequently, as noted above, was framed by the learned Trial Court as an additional issue.
14. The learned Trial Court after remand, on consideration of the evidence on record, recorded the finding that suit land fell in the share of the plaintiff as per family arrangement as portrayed by them and also held that plaintiff has right, title and interest in respect of the suit land. It was also noticed that PW-3, who was aged about 80 years, was present at the time of amicable settlement amongst 4 brothers and that DWs-1 and 2 had no personal knowledge regarding settlement. The learned Trial Court also held that when the defendants had taken the plea of purchase of land of Rupa, the sale-deed ought to have been produced by the defendants as the same would have demonstrated in clear terms the land belonging to Rupa. The learned lower Appellate Court also, on an independent appraisal of the evidence on record, concurred with the findings of the learned Trial Court and dismissed the appeal. It was also categorically held by the learned lower Appellate Court that the plaintiff was dispossessed by the defendant Nos.1 and 2 from the suit land. The learned lower Appellate Court further held that defendant Nos.1 and 2 intentionally did not produce the sale-deed as because if it had been exhibited, it would have brought evidence in support of the plaintiff's case.
15. Ms. Goswami, learned counsel for the appellants very strenuously argues that the finding recorded by the learned courts below that Huti's share of land was to the east of Gami and Rupa's share was next to Huti in the eastern side is perverse. The learned counsel submits that evidence on record would disclose that Rupa's share was to the east of Gami and Huti's share was to the next of Rupa in the east and Huti's share, in terms of the above, was in possession of Afazuddin and Abdul Sattar, who have not been made parties to this proceeding and therefore, the suit is also bad for non-joinder of necessary party. Learned counsel assiduously urges that evidence of PW-4, on which much reliance was placed by the RSA No.30/2005 Page 4 of 6 learned courts below, runs counter to the case of the plaintiff and if such evidence is considered in the right perspective, it would appear that conclusions derived by the learned courts below cannot be sustained.
16. Mr. Islam, learned counsel for the plaintiff has submitted that both the courts below have concurrently held that the plaintiff, by bringing on record reliable and acceptable evidence, proved that suit land fell in the share of Huti on the basis of an oral settlement. It is submitted that at the time when the settlement had taken place, PW-1, the plaintiff was only 8 years old and the defendant No.2 (DW-1) was also around 8 to 10 years old. According to him, PW-3, who was present at the time when settlement had taken place, had fully supported the case of the plaintiff. It is also submitted by him that PW-4 also fully supported the case of the plaintiff and his evidence was not at all demolished in cross-examination. Plea of non-joinder of necessary party is a mere after thought and in the written statement, no such plea had been taken and therefore, the substantial questions of law No.1 and 3 may be answered against the appellants, he submits
17. I have considered the submissions of the learned counsel for the parties and have perused the evidence on record.
18. The case of the plaintiff in the plaint rests on an oral settlement which was admitted by the defendants in the written statement. PW-1 and DW-1 were about 8 to 10 years old when the village "Samaj" where the settlement between the brothers had taken place with regard to property in question. Though PW-1 had indicated in his cross-examination that "Samaj" had made some written document, PW-3, who was present in the "Samaj" at the time of settlement, categorically stated that there was no written document. He had also clearly deposed that demarcation of the plots, each measuring 4 Katha 17 Lecha, was in the manner as described in the plaint. He had also stated that after such settlement, the predecessor of the plaintiff was in occupation in his plot of land. PW-4 is also a neighbouring witness and he has his land in the southern portion of the suit land. He also fully corroborated the plaintiff's plaint story as well as the evidence of PWs-1 and 3. Though Ms. Goswami has submitted that in his cross-examination, PW-4 had not supported the case of the plaintiff, it does not appear to be so. His evidence discloses that he had denied the suggestion given that two plots in the western side are land in occupation of the defendants and east of that is the land of the plaintiff and to the east of the same is again land of the defendants. Nowhere had he stated that Rupa's plot of land was next to Gami and Huti's plot of land was next to Manik.
RSA No.30/2005 Page 5 of 619. That apart, the learned courts below are also correct in holding that having regard to the fact that the settlement had taken place on the basis of an oral understanding, the sale- deed executed by one of the brothers in favour of another brother way back in the year 1960 would have amplified the position and removed any ambiguity and production of the same would have thrown light to decide the controversy either way.
20. Even if burden of proof does not lie on the defendants, when, admittedly the defendants were in possession of best evidence, they ought to have produced the sale-deed, at least, of Rupa, which would have demonstrated the plot and location of land of Rupa.
21. In M urugesam P illai -vs- Gnana Sam bandha P andara Sannadhi , reported in AI R 1917 P C 8 , it was observed as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough - they have no responsibility for the conduct of the suit, but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
22. There is also no substance in the argument that the suit is bad for non-joinder of necessary party. In the first place, such a plea was not even taken in the written statement and consequently, no issues were also framed. Furthermore, evidence on record discloses that the persons named in substantial question of law No.3 are occupying same portion of land which earlier belonged to Rupa. The plaintiff has no reason to make them parties in his suit.
23. In view of the above, the substantial questions of law are answered against the appellants. In find no merit in this appeal and, accordingly, the same is dismissed. No cost.
24. Registry will send back the records.
JUDGE Benoy RSA No.30/2005 Page 6 of 6