Gauhati High Court
Md. Mokshed Ali vs Anser Ali & Ors on 14 October, 2015
Author: A.K. Goswami
Bench: A.K. Goswami
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
RSA No. 137/2009
Md. Moksed Ali,
S/o late Kanchia Sk.,
Village-Khudia Gaon, P.S. Bilasipara,
District-Dhubri, Assam.
.........Appellant
Defendant No. 1
- Versus -
1. Anser Ali,
2. Sobhan Ali,
3. Shahjahan Ali,
4. Abdul Karim,
5. Monina Bibi,
6. Jeleka Bibi,
7. Maharban Bibi,
Nos. 1 to 4 sons and Nos. 5 to 7 daughters
of Late Mahiruddin Sk.
8. Gazi Rahman,
S/o Late Juram Ali,
All of village-Khudia Gaon,
P.S. Bilasipara,
District-Dhubri, Assam.
9. Gayanuddin,
10. Anowar Hussain,
11. Mir Mosharaf Hussain,
12. Sahjahan Ali,
13. Mobarak HUssain,
14. Tanfique,
15. Safiar Hussain,
16. Monowar Hussain,
17. Miss Tapia Ahmed,
18. Sapia Bibi,
19. Saripa Bibi,
20. Monowara Bibi,
21. Anowara Bibi,
22. Asia Bewa,
23. Suratvan Bewa,
Nos. 9 to 16 sons and Nos. 17 to 21 daughters
RSA 137/2009 Page 1 of 10
And Nos. 22 to 23 wives of late Safi Uddin Ahmed
and all are residents of village-Bilasipara,
District-Dhubri, Assam.
........Respondents
Plaintiffs
24. Hasem Ali,
S/o late Abdul Aziz,
25. Idil Khan,
S/o Late Siraj Khan,
On death of defendant No. 4 his legal heirs:
26. Soban Ali,
S/o Late Jamal Sk.
On death of defendant No. 5, his legal heirs;
27. Nur Ali,
S/o Late Monser Ali,
Nos. 1, 2 & 3 are residents of Khudigaon and
No. 4 of Chokapari both under P.S. Bilasipara,
District-Dhubri, Assam.
28. State of Assam, represented by Collector, Dhubri.
29. Settlement Officer,
Dhubri,
P.S. & District-Dhubri, Assam.
........Proforma Respondents
Defendant Nos. 2 to 7
For the Appellant : Mr. G.P. Bhowmik,
Sr. Advocate.
For the Respondent Nos. 1 to 23 : Mr. D.K. Das,
Advocate.
Dates of hearing : 13.10.2015 & 14.10.2015
Date of judgment : 14.10.2015
BEFORE
HON'BLE MR. JUSTICE A.K. GOSWAMI
JUDGMENT AND ORDER
(ORAL)
Heard Mr. G.P. Bhowmik, learned senior counsel for the appellant. Also heard Mr. D.K. Das, learned counsel appearing for the respondents.
RSA 137/2009 Page 2 of 10
2. This appeal is directed against the judgment and decree dated 8.12.2008 passed by the learned Civil Judge, Dhubri in Title Appeal No. 1/2007 dismissing the appeal and upholding the judgment and decree dated 28.11.2006 passed by the learned Munsiff No. 1, Dhubri in Title Suit No. 40/2000 decreeing the suit of the plaintiffs.
3. Twenty three plaintiffs filed the suit praying for declaration of right, title, interest and possession; correction of record of right; declaration that Title Suit No. 305/1987 as well as the compromise petition filed therein is fraudulent and collusive; declaration that the order passed by Settlement Officer in Misc. Case No. 35/1997 is unjust, improper and illegal; permanent injunction against the defendants restraining them from entering into the suit land and disturbing the possession of the plaintiffs. Declaration of right, title and interest and possession as well as correction of record of right was sought for by the plaintiff Nos. 1 to 7 in respect of Schedule B; by the plaintiff No. 8 in Schedule C and by the plaintiff Nos. 9 to 23 in Schedule D.
3. Plaintiff Nos. 1 to 7 are sons and daughters of one late Mohiruddin. Plaintiff Nos. 9 to 23 are sons, daughters and wives of late Safiuddin Ahmed.
4. The case projected in the plaint is that Mohiruddin was the owner and possessor of land measuring 14 bigha 3 katha 1 lecha at village-Khudigaon, Part-II in the district of Dhubri and the said 14 bigha 3 katha 1 lecha of land is the Schedule A land. During his lifetime, he allowed defendant No. 1 to possess Schedule C land measuring 6 bigha and he also allowed one Usab Ali to possess 3 bigha of land described in Schedule D. Usab Ali had remained untraced for long 20 years. Mohiruddin continued to retain possession of land measuring 5 bigha 3 katha 1 lecha (though in the prayer in respect of Schedule B, it is mentioned as 5 bigha 2 katha 1 lecha). The further case of the plaintiffs is that Schedule C land was sold by defendant No. 1 to defendant No. 5 by a registered deed dated 8.6.1984 RSA 137/2009 Page 3 of 10 and defendant No. 5, in his turn, sold the said Schedule C land to defendant No. 8 by a registered deed dated 22.12.1992. The defendant No. 1 purchased the Schedule D land from Usab and later on, by a registered sale deed dated 14.10.1968, defendant No. 1 had sold the Schedule D land to the predecessor-in-interest of plaintiff Nos. 9 to 23. The defendant No. 1 filed Title Suit No. 305/1987 in collaboration with defendant No. 2 to 4 and the suit was dismissed on compromise on 5.9.1992 and on the basis of the compromise petition, defendant No. 1 had managed to record his name over the suit land. Objection filed was rejected by the Settlement Officer in Misc. Case No. 31/1987 as the issue raised was of civil nature. On 25.7.1997, the defendants threatened the plaintiffs to dispossess them from the suit land and as such, the suit was filed with the prayers which have already been noticed.
5. The defendant No. 1 filed written statement stating that as he is in possession of the entire Schedule A land, he had no occasion to threaten the plaintiffs to dispossess them. It is averred that the suit land was recorded in his name in the record of rights. Filing of the title suit and its dismissal on compromise was admitted but all other allegations attributed to the defendant No. 1 was denied. The Settlement Officer also filed a written statement stating that as per the decree in Title Suit No. 305/1987, the defendant is presumed to be the owner and possessor of the suit land and that he would act in accordance with the decision of the learned Civil Court and make necessary corrections in the record of rights, if so directed.
6. On the basis of the pleadings, the learned trial court framed the following issues:
"1. Is the suit barred by limitation?
2. Is the suit undervalued?
3. Whether the plaintiffs have right, title, interest and possession over the suit land?
4. Whether the T.S. 305/1987 is fraudulent and liable to set aside?
5. Whether the plaintiffs are entitled to get any decree as prayed for?RSA 137/2009 Page 4 of 10
6. What reliefs, if any, the parties are entitled to?"
7. Subsequently, another issued was framed, which is as follows:
"7. Whether the order passed by Settlement Officer (the defendant No. 7) in Misc. Case No. 31/97 is illegal, unjust and improper?"
8. The plaintiffs examined seven witnesses and exhibited a number of documents. The defendant examined three witnesses.
9. The learned trial court recorded a finding on the basis of Ext. 8, a certified copy of Khatian No. 184 in respect of Schedule B land, that the name of the predecessor-in-interest of the plaintiff Nos. 1 to 7 stands recorded therein. The learned trial court also held on the basis of Ext. 3 (sale deed executed in favour of the defendant No. 5 by defendant No. 1) and Ext. 4 (sale deed executed in favour of plaintiff No. 8 by defendant No. 5) that the plaintiff No. 8 acquired right, title and interest over Schedule C land. On the basis of Ext. 2 (sale deed executed by defendant No. 1 in favour of predecessor-in-interest of plaintiff Nos. 9 to 23), the learned trial court held that the plaintiff Nos. 9 to 23 have right, title and interest over Schedule D land. On the basis of the evidence on record, the learned trial court recorded the finding that the plaintiffs are in possession of the suit land and that on the basis of the compromise petition, Ext. 7, without obtaining any decree, the defendant No. 1 got his name mutated in respect of the suit land. Accordingly, the suit was decreed.
10. The learned appellate court also dismissed the appeal preferred by the defendant No. 1 and upheld the judgment and decree passed by the learned trial court.
11. The appeal was admitted to be heard by an order dated 10.11.2009 on the following substantial questions of law:
"1. Whether the suit filed by the plaintiff/respondent is barred under Order 1 Rule 1 CPC as one composite suit by several plaintiffs and hit by 'Multifariousness'?
2. Whether the suit is barred under Section 34 of the Specific Relief Act and Section 6 of the Transfer of Property Act, as no decree of declaration of right, title RSA 137/2009 Page 5 of 10 and interest could be passed in favour of the plaintiff Nos. 8 & 9 to 23 who are admittedly permissive occupants?
3. Whether the suit is barred under the proviso of Section 34, Specific Relief Act, when the defendant/appellant is under occupation of the suit land, but no consequential relief for khas possession were sought for?
4. Whether the decision of the learned courts below suffers from perversity?"
12. During hearing, Mr. Bhowmik, learned senior counsel for the appellant has submitted that he will not urge substantial question of law No. 3 and will confine his argument to the other three substantial questions of law.
13. It is submitted by him that three set of plaintiffs in a joint suit claimed separate and distinct reliefs and therefore, the suit is hit by the principles of multifariousness. He has urged that the defendant No. 1 being in possession of the suit land and no consequential relief of khas possession having been prayed for, the suit is barred under Section 34 of the Specific Relief Act, 1963. It is also submitted that the finding of the learned courts below that the plaintiffs have right, title, interest and possession is utterly perverse. Mr. Bhowmick has submitted that the defendant No. 1 could not have transferred right, title and interest to the vendor of plaintiff No. 8 or to the predecessor-in-interest of plaintiff Nos. 9 to 23 and similarly, Usab Ali also could not have transferred 3 bigha of land to defendant No. 1. The learned courts below had totally ignored this aspect of the matter, he submits. He further submits that no document of right, title and interest in respect of entire Schedule A land is proved by the plaintiffs though he is gracious enough to concede that the plaintiff Nos. 1 to 7 proved a document of title by way of Ext. 8, Khatian, in respect of 5 bigha 2 katha 1 lecha of land in the name of Mohiruddin. The learned trial court wrongly recorded Ext. 7 to be a compromise petition whereas the same was only the order of the court. Even without having the compromise petition on record, the same being not exhibited by the plaintiff, a declaration was given by the learned trial court and affirmed by the learned lower appellate RSA 137/2009 Page 6 of 10 court that the compromise petition was fraudulent. Even the decree passed by the learned court below is not in consonance with the prayers made in the plaint and therefore, the appeal deserves to be allowed.
14. Mr. Das, on the other hand, submits that the plea regarding multifariousness was not pleaded in the written statement and in fact, the defendants also did not raise any issue relating to maintainability of the suit and therefore, at this stage it will not be permissible to allow the appellant to argue that the suit is liable to be dismissed on the ground of multifariousness. So far as substantial question of law No. 3 is concerned, the plaintiffs have possession over the suit land and therefore, confirmation of possession was prayed for. It is a different matter that the case projected by the defendant No. 1 is that he is in possession of the suit land. The courts below have found that the plaintiffs are in possession of the suit land and the plaintiffs having prayed for consequential relief, the suit cannot be held to be barred under Section 34 of the Specific Relief Act, 1963. With regard to substantial question of law No. 4, Mr. Das submits that on the strength of Ext. 3 and 4, the plaintiff No. 8 and on the basis of Ext. 2, plaintiff Nos. 9 to 23 duly acquired right, title and interest in respect of Schedule C and Schedule D land, respectively.
15. On a pointed query raised by the court as to whether the plaintiffs had brought on record any document of title like khatian, patta to demonstrate right, title and interest of Mahiruddin in respect of the entire 14 bigha 3 katha 1 lecha of land, the learned counsel submits that no such document was exhibited in respect of entire 14 bigha 3 katha 1 lecha of land.
16. I have considered the submissions of the learned counsel for the parties and have perused the materials on record.
RSA 137/2009 Page 7 of 10
17. In the context of adversarial litigation, the parties must disclose their case by their respective pleadings and cannot take the opponent by surprise. No plea was taken in the written statement with regard to the suit being not maintainable because of improper joining of parties. No arguments were also advanced before the courts below on this score. Therefore, I am inclined to hold substantial question of law No. 1 against the appellant. Even otherwise, it appears to the Court that if separate suits were filed, common question of law or fact would have arisen.
18. With regard to substantial question of law No. 3 also, there is merit in the submission of Mr. Das. Confirmation of possession is a form of consequential relief envisaged under Section 34 of the Specific Relief Act. In the case in hand, prayer was made for confirmation of possession. Section 34 of the Specific relief Act provides that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere direction of title, omits to do so. In the instant case, along with the right, title and interest, confirmation of possession had been prayed for and therefore, it cannot be said that the suit is barred under Section 34 of the Specific Relief Act.
19. With regard to Substantial question No. 4, it appears that the plaintiff Nos. 1 to 7 had proved the document of title in the form of Ext. 8. There is no document of title encompassing the entire Schedule A land in the name of the predecessor-in-interest of the plaintiff No. 1 to 7. That apart, the case of the plaintiffs being that the defendant No. 1 and Usab Ali were only allowed to possess Schedule C and Schedule D land, respectively, by the predecessor-in-interest of the plaintiff Nos. 1 to 7, it defies comprehension as to how the plaintiff Nos. 1 to 7 can accept that the defendant No. 1 transferred right, title and interest in respect of Schedule C land to defendant No. 5, who in turn executed a sale deed in respect of the said land in favour of the plaintiff No. 8. Same is the case in respect of transfer made by Usab Ali to the defendant No. 1, who then, according to the plaintiffs, RSA 137/2009 Page 8 of 10 sold the Schedule D land to the predecessor-in-interest of the plaintiff Nos. 9 to 23. On the face of the pleadings of the plaintiffs, the defendant No. 1 or Usab Ali had no right, title and interest over Schedule C and Schedule D land, respectively, and therefore, on the basis of Ext. 3 and 4, no right, title and interest can legitimately flow to the plaintiff No. 8, and on the strength of Ext. 2, plaintiff Nos. 9 to 23 cannot derive any right, title and interest. That apart, most importantly, as has been noticed above, there is no document of title exhibited by the plaintiffs to demonstrate right, title and interest of Mahiruddin in respect of the entire Schedule A land and therefore, it cannot be said that Mahiruddin had any right, title and interest over land in Schedule C and Schedule D.
20. A perusal of Ext. 7 shows that suit of the defendant No. 1 being Title Suit No. 305/1987 was dismissed. Compromise petition was not exhibited by the plaintiffs. When the suit is dismissed on the basis of such compromise petition, it is not understood how the suit or the compromise petition be held to be fraudulent. A perusal of Ext. 6, copy of the plaint of Title Suit No. 305/1987, goes to show that the plaintiff had prayed for a declaration of title in respect of Schedule A therein which is also the same very Schedule A land in the instant suit. On the basis of the dismissal of the suit, defendant No. 1 did not derive right, title and interest in respect of Schedule A land in the suit and if wrongly, on the basis of said Ext. 7, as stated by the Settlement Officer in the written statement, defendant No. 1 was considered to be the owner and possessor of the suit land, it will be for the authorities to take such steps as may be considered appropriate.
21. The learned trial court had made the following order:
"ORDER In the result, the suit is decreed on contest against the defendant No. 1 and defendant No. 7 and ex parte against defendant Nos. 2 to 6.
It is hereby declared that the plaintiffs have got right, title, interest and possession over the suit land and their possession thereon is hereby confirmed.RSA 137/2009 Page 9 of 10
The plaintiffs are also entitled to get correction of the record of right of the suit land as prayed for in para 14(b) of the plaint.
Title suit 305/87 is hereby declared as collusive and fraudulent and consequently the compromise arrived therein is also declared as illegal and fraudulent and set aside.
The defendants are perpetually restrained from interfering the possession of plaintiffs over the suit land.
The defendant No. 1 shall bear the cost of the plaintiffs.
Prepare the decree.
Signed sealed and delivered on this 28th day of November, 2006."
22. A perusal of the above order goes to show that the learned trial court proceeded on the premise as if all the plaintiffs collectively had prayed for declaration of right, title and interest in respect of the entire Schedule A land, which is not the case in hand.
23. For what had been discussed in the foregoing, I am inclined to allow this appeal partly. Decree of right, title, interest and possession made in favour of the plaintiff No. 8 in respect of Schedule C and in favour of plaintiff Nos. 9 to 23 in respect of Schedule D along with the direction for correction of records in their favour are set aside. The suit of the plaintiff Nos. 1 to 7 in respect of Schedule B land is decreed along with a direction for correction of records in respect of Schedule B land. Possession of the plaintiff Nos. 1 to 7 is confirmed in respect of Schedule B land. Permanent injunction is issued directing the defendant No. 1 not to interfere with the possession of plaintiff Nos. 1 to 7 in Schedule B. Impugned judgments of the learned courts below stand modified as indicated above. No cost.
24. Registry will send back the records.
JUDGE madhu RSA 137/2009 Page 10 of 10