Gauhati High Court
Md Abul Fazal vs Md Kubbas Ali on 5 January, 2017
Equivalent citations: AIR 2017 GAUHATI 76, (2017) 2 GAU LR 295, (2017) 171 ALLINDCAS 716 (GAU), (2017) 3 CIVLJ 101
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: RSA 266/2016
Md. Abul Fazal ...... Appellant
-Versus-
Md. Kubbas Ali ..... Respondent
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
For the Appellant : Mr. MH Choudhury
Advocate
For the Respondents :
Date of Hearing : 05.01.2017
Date of delivery of
Judgment and Order : 05.01.2017
JUDGMENT AND ORDER (ORAL)
Heard Mr. MH Choudhury, learned counsel appearing on behalf of the appellant.
2. Before adverting to the findings of the learned courts below, let us have a look to the facts leading to filing of the suit by the plaintiff respondent. Land measuring 1B 2K out of 60 Bighas covered by dag No. 91 of annual patta No. 5 situated at Kadamoni Pather Kissam under Juria Mouja in the district of Nagaon is the subject matter of the suit filed by the plaintiff respondent. The suit land Page 1 of 9 RSA 266/2016 originally belonged to Adhakhunda Bogoriguri and Kadamoni Pather Srishi Pam Samabai Samiti represented by its President in the suit (Proforma defendant No.
7). The said Samiti was allotted 60 Bighas of land by the Government of Assam for farming. The land was annual patta land. The said Samiti by its joint resolution allotted the said area of 60 Bighas of land to its 39 members cum share holders each getting a share of 1B 2K of land. The father of the plaintiff respondent Late Suhrab Ali also got a share of 1B 2K of land and his name was mutated in the said annual patta land whereafter he used to possess the same till his death. After him, his legal heirs i.e. his wife Msstt. Habirun Nessa, Md. Kubbas Ali (plaintiff/respondent) and another son Md. Harmuj Ali and his daughter Msstt. Ajufa Begum inherited the suit land. The mother of the plaintiff respondent died and his brother and sister relinquished their share in favour of the plaintiff. Since then, the plaintiff respondent has been enjoying the land as the legal heir of Late Suhrab Ali. The defendants appellant are the residents of nearby plot of land and he with an illegal motive in the last part of the December, 2006 tried to grab the suit land measuring 1B 2K. The defendant appellant threatened the plaintiff respondent to vacate the suit land whereafter the plaintiff respondent filed a petition before the learned ADC to draw up a proceeding under Section 145 of the Cr.P.C. Thereafter, again a separate petition was filed against the defendant appellant No. 1 and other defendants alleging that on 20.02.2007 they tried to dispossess the plaintiff respondent. The learned ADC, Nagaon drew up proceeding under Section 145 of the Cr.P.C. and attached the suit land prohibiting both the sides from entering into the suit land vide order dated 09.03.2007. The present appellant defendant No. 1 along with the other Page 2 of 9 RSA 266/2016 defendants preferred a revision petition before the learned District and Sessions Judge, Nagaon on the basis of which the learned District and Sessions Judge was pleased to stay the impugned order dated 09.03.2007 and called for the records of MR Case No. 151/2007. Being impressed by the said order, the defendants including the present appellant forcibly entered into the suit land and constructed one tin roof house thereon on 31.03.2007 and since then they have been illegally occupying the suit land. Hence, the plaintiff has filed the title suit No. 75/2007 for declaration of his right, title and interest and have khas possession in the court of learned Munsiff No. 2, Nagaon.
3. The present appellant along with other defendants in title suit No. 75/2007 contested the suit by filing separate written statement. In the written statement, they denied the case of the plaintiff respondent. However, in the written statement they admitted that the father of the plaintiff respondent had got a share of land measuring 1B 2K under the Samabai Samiti and after him plaintiff respondent got the share as his legal heir and has been occupying the land allotted to his father. It was also pleaded in the written statement that the Samabai Samiti had allotted to each of its members a share of 1B 2K of land. One Abdul Ali was also allotted a share of 1B 2K which is the suit land. After Abdul Ali, the land devolved upon his heir Amiruddin who subsequently orally gifted his share to the present appellant defendant No. 1. The present appellant defendant No. 1 had adhiars over the said land, namely, Abdul Khalek and Abdul Mutalib by constructing dwelling houses over the suit land. Under the said circumstances, the defendant prayed for dismissal of the suit. Page 3 of 9 RSA 266/2016
4. On the basis of the pleadings of both the parties, the learned trial court framed the following 5 (seven) issues:-
1. Whether there is any cause of action for filing the suit?
2. Whether Suhrab Ali, father of the plaintiff was allotted land measuring 1B and 2Ks?
3. Whether the plaintiff was in possession of the suit land and whether he was dispossessed?
4. Whether the plaintiff has right, title and interest over the suit land?
5. Whether the plaintiff is entitled to the relief/reliefs as prayed for?
5. The plaintiff respondent examined 4 witnesses and exhibited three documents. The defendant side examined 3 witnesses as DWs and exhibited two documents. After hearing the arguments of both the parties the learned trial court decreed the suit on contest vide judgment and decree dated 07.04.2015.
6. Being highly aggrieved by the judgment and decree dated 07.04.2015 passed by the learned trial court in title suit No. 75/2007, the appellant defendant No. 1 preferred title appeal No. 14/2015 in the court of learned Civil Judge, Nagaon. The learned first appellate court after hearing the parties dismissed the appeal vide judgment dated 05.07.2016.
7. The present appellant defendant No. 1 being aggrieved by the said judgment passed by the learned first appellate court has preferred the second appeal challenging the judgment and decree dated 05.07.2016 passed by the said learned court of Civil Judge, Nagaon.
8. Mr. MH Choudhury, learned counsel for the appellant, submits that both the learned courts below failed to appreciate the evidence on record in proper perspective following which the impugned judgment and decree passed by both the learned courts below are bad in law. It is also submitted that the learned Page 4 of 9 RSA 266/2016 courts below were unjustified in decreeing the suit land measuring 1B 2K under Dag No. 91 of annual patta No. 5 occupied by the appellant defendant No. 1, inasmuch as, the respondent plaintiff was also occupying 1B 2K of land under the same Dag and patta only because the respondent plaintiff had mentioned the boundary of the appellant defendant's land erroneously. It is also submitted further that the finding with regard to the dispossession of the plaintiff respondent and that of possession of the appellant defendant No. 1 are wrong. Mr. Choudhury submits that there evolved substantial question of law to be formulated and decided in this second appeal.
9. Perused judgment and decree passed by both the learned courts below. The learned first appellate court on the basis of the submissions of the present appellant defendant No. 1 has correctly picked up the point for determination as to whether the judgment and decree passed by the learned trial court was sustainable in law. Having picked up the correct point for determination, the learned first appellate court has decided all the issues on its own by appreciating the evidence on record and the exhibits therein. Considering the submissions of Mr. Choudhury, learned counsel for the appellant, this court has gone through the findings recorded by the learned first appellate court. From the discussions, the learned first appellate court came to the conclusion that the father of the plaintiff respondent was allotted 1B 2K of land, inasmuch as, the same are admitted by the appellant defendant in his pleadings. Leaving aside the said findings, the learned first appellate court also considered the evidence on record and finally arrived at a conclusive finding that the suit land measuring 1B 2K was allotted to the father of the plaintiff respondent. With regard to the issue of Page 5 of 9 RSA 266/2016 possession on the part of the plaintiff respondent over the suit land and his subsequent dispossession, the learned first appellate court while going to give a conclusive finding in the affirmative of the said issue, discussed that the suit land as per the claim of the defendant was not the same which was allotted to the father of the plaintiff respondent. The appellant defendant claimed that the suit land was allotted to Abdul Ali who died leaving his only son Amiruddin. The said Amiruddin during his life time gifted his share to the appellant defendant No. 1 and as such according to the appellant defendant No. 1 (DW 1), the suit land belongs to him by virtue of oral gift by Amiruddin who in turn derived the suit land by way of inheritance from his deceased father Abdul Ali. The said DW 1, however, admitted the mutation of the name of Suhrab Ali, the father of the plaintiff respondent. So far the oral gift is concerned on the basis of which the appellant defendant No. 1 claimed his derivation of the title from Amiruddin, no cogent evidence was introduced by the defendant side. The learned first appellate court appreciated the evidence of the appellant defendant No. 1 (DW
1) to the effect that the said DW 1 though gifted the land to him in the year 1991 but his name was mutated in the year 2002. DW 1 further made it clear that over the suit land the father of the plaintiff respondent used to reside and after his death the plaintiff respondent is in possession over the suit land by constructing house. Moreover, the DW 1 was not clear with regard to the boundaries of the suit land and the land claimed by him. The DW 1 further admitted that there was a dispute going on over the suit land since last 6 years between both the parties. So, the learned first appellate court came to the conclusion so far the appellant defendant No. 1 (DW 1) that he was not in Page 6 of 9 RSA 266/2016 possession of the suit land meaning thereby that the plaintiff respondent was possessing the suit land.
10. Appreciating another piece of evidence of one Nurul Amin (DW 2), the learned first appellate court observed that the said DW 2 deposed that the plaintiff respondent had land measuring 1B 2K which was inherited by him from his father. The DW 2 further deposed that the land of the plaintiff respondent is situated on the eastern side of his land and the appellant defendant was in possession of the suit land since last 20/22 years. The boundary as deposed by the said DW 2 does not tally with the boundaries of the land claimed by the plaintiff respondent. DW 3, as per the appreciation of the evidence by the learned first appellate court, observed that the father of the plaintiff respondent got the share of 1B 2K of land and the plaintiff respondent inherited the same from his father. The said DW 3 also deposed that since last 5/6 years Abdul Khalek and Abdul Mutalib (adhiars of appellant defendant No. 1 as per the written statement) were residing over the suit land by constructing houses. Thus, the learned first appellate court considering the date of evidence concluded that the plaintiff respondent was dispossessed from the suit land in the year 2007. Thus, the learned first appellate court concluded that the possession of the plaintiff respondent over the suit land and his dispossession therefrom was well proved. Finally, the learned first appellate court while deciding the right, title and interest of the plaintiff respondent also sieved through the evidence on record and conclusively came to the finding that the mode of acquisition of land by the appellant defendant No. 1 remained unproved. It was also concluded by the learned first appellate court that from the evidence of DW 1 if the suit land was Page 7 of 9 RSA 266/2016 transferred to him by oral gift in the year 1991 but his name was not mutated over the said land till 2002. DW 3 clearly deposed that the defendant appellant was in possession of the suit land since last 5/6 years. DW 1 also admitted that the dispute between him and the plaintiff respondent started about 6 years ago. Accordingly, the learned first appellate court calculating the said 6 years from the date of deposition of DW 1 conclusively held that the plaintiff respondent was dispossessed from the suit land in the year 2007. Another startling revelation by the learned first appellate court is that the name of the appellant defendant was mutated and separate Miyadi patta was issued vide order dated 06.07.2009 and the learned first appellate court came to the finding that the separate patta was issued in favour of the appellant defendant after dispossessing the plaintiff from the suit land in the year 2007 though no specific plot was allotted to the appellant defendant No. 1. Accordingly, the learned first appellate court came to the finding that the plaintiff respondent has got right, title and interest over the suit land.
11. From the discussions made hereinabove with regard to the findings of the learned first appellate court, it is found that there is no illegality in coming to the conclusion with regard to the facts. Rather, the learned courts below have correctly come to the finding that the appellant defendant has failed to prove the oral gift, inasmuch as, in order to prove an oral gift under the Mahomedan Law, it is the burden on the person claiming to be the person who has accepted the gift from the donor that the person making the gift had divested himself from the right, title and interest of the property included in the gift and the said act must be proved by witnesses. Similarly, the fact of delivery of possession to the person Page 8 of 9 RSA 266/2016 accepting the gift must also be proved by witnesses. In the case in hand, more specifically in the written statement, there is no single whisper with regard to the person who witnessed the whole episode of the oral gift by Amiruddin t o the appellant defendant No. 1. Regarding the fact of possession and dispossession, the learned first appellate court has conclusively held on the basis of proper preponderance of the evidence and the materials on record and no perversity can be attributed to the learned courts below while passing the impugned judgment and decree. Accordingly, the submission of Mr. Choudhury, learned counsel for the appellant, that this second appeal gives rise to substantial question of law is not accepted, inasmuch as, from the discussions made herein above, this court finds that the findings of the learned courts below do not involve any substantial question of law to be decided by this court. Accordingly, this second appeal is dismissed at the admission stage.
No costs.
JUDGE BiswaS Page 9 of 9 RSA 266/2016