Calcutta High Court - Jalpaiguri
Abdul Majid Miya & Ors vs Makbul Hossain Miah & Anr on 17 February, 2026
1
2026:CHC-JP:49
IN THE HIGH COURT AT CALCUTTA
Circuit Bench at Jalpaiguri
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Biswaroop Chowdhury
SAT 15 of 2019
With
IA No: CAN/1/2019
Abdul Majid Miya & Ors.
VERSUS
Makbul Hossain Miah & Anr.
For the appellants: Mr. Momenur Rahman, Adv.
Mr. Debjit Kundu, Adv.
Mr. Bikash Singha, Adv.
For the respondents: Mr. Kunaljit Bhattacharjee, Adv.
Mr. Haider Ali, Adv.
Mr. Satyam Sarkar, Adv.
Mr. Alok Sah, Adv.
Ms. Rajashree Mukherjee, Adv.
Last Heard on: December 23, 2025 Judgment on: February 17, 2026 Biswaroop Chowdhury,J:
The appellants before this Court are plaintiffs in a suit for declaration and permanent injunction being Title Suit No. - 2 of 1998 before the Court of 2 2026:CHC-JP:49 Learned Civil Judge (Junior Division) Mathabhanga District Cooch Behar and respondent in the Appeal being Title Appeal No-20 of 2015 before Learned Additional District Judge 3rd Court Cooch Behar in which the decree passed in Title Suit No- 2 of 1998 by Learned Civil Judge (Junior Division) was reversed. The appellants being aggrieved by the Judgment and order dated 03-10-2019 passed by the Learned Additional District Judge 3rd Court Cooch Behar in Title Appeal No-20/2015 has come up with the instant appeal.
The case of the appellants/plaintiffs before the Learned Trial Court may be summed up thus:
One Tashlimuddin Miah was the recorded owner in respect of whole quantum of land of Mouza-Nalgram, Parganas-Lalbazar Police Station-Sitalkuchi Revenue Survey no: 422 Jl. 6. R.S. Khatian No. 155/264, in the District of Cooch Behar measuring about 8.84 Satak of Land and possessed the same under personal cultivation.
Tashlimuddin Miah died on the last part of Aswin 1383 B.S. leaving behind 3 sons namely Ayup Ali Miah, Abdul Hamid Mia and Abdul Azir Mia and one daughter Majitannecha Bewa. The defendants are the sons of Majitanneeha Bewa as well as the Grandsons of said Tashlimuddin Miah.
The plaintiffs purchased some lands of said Tashimuddin Miah and after the death of Tashlimuddin Miah his three sons sold some lands in favour of the present applicants/plaintiffs and others. 3
2026:CHC-JP:49 In the year 1996 the defendants and their mother namely Majitanneeha Bewa showing false Khaitan demanded that they are the legal heirs and owner of said Tashlimuddin Mia of some portion of land of the present plaintiffs and also trying to disposses the plaintiffs from the said land in question.
The defendant no-1 knowing it fully well of the transfers of the suit land in favour of the plaintiffs and having full and clear knowledge that she did not inherit the properties, left by her father in collusion with the employees of the B.L. and LRO office, Sitalkuchi caused recording of her name in L.R. Khatian no-319 of Mauja-Nalgram with respect to the land left by her father. The BL and LRO his employees without any field survey and disregarding the provision of law recorded 8.84 acre of land of said Tashimuddin Miah in favour of the defendant no 1 describing her as legal heiress of her father Tashmuddin Miah. That the BL and LRO/his employees have recklessly recorded 1/4th share of her father and the recorded land in the name of defendant no-1 whereas total land recorded in Khatian No-156/264 is only 8'84 acres.
That the recording of the portions of the suit plots in favour of the defendant no-1 is wrong illegal inoperative and not binding upon the plaintiffs. The plaintiff's purchased the suit land from the sons of the deceased Tashimuddin Miah and got physical possession of the same by way of purchase. The plaintiff thus acquired right title interest and possession in the suit Land.4
2026:CHC-JP:49 On the pretext of the recording of some portions of the suit Land the defendants since the 3rd part of Agrahayam are declaring that they with the help of their men will harvest the paddy grown in the suit land.
Since the aforesaid date the defendants and their men are declaring that they will harvest the paddy of the Suit Land they may be dispossessed there from and in that case the plaintiffs will suffer irreparable loss and the purpose of the suit will be frustrated.
The plaintiffs are all cultivators and solely dependent upon the agricultural yields of the suit land. The plaintiffs have possession in the suit Land.
The plaintiffs purchased their respective land from the legal heirs of the deceased Tashimuddin Miah and possessing their respective portions which is described in schedule 'A' of the plaint. The defendants and their men in a single transaction or single act invaded the rights of plaintiffs jointly. The reliefs which the plaintiffs have claimed jointly against the defendants arose out of the same act of the defendants. The common question of law and fact will arise if the plaintiffs bring their suit separately against the defendants.
The cause of action of the suit against the defendants arose on 11.12.97 corresponding to 25th Agrahayan 1404 B.S. at Mouja-Nalgram, P.S.-Sitalkuchi Dist-Cooch Behar.
The defendants filed written statement denying the allegations contained in the plaint. The defendants contended that the suit is not maintainable in law 5 2026:CHC-JP:49 and fact and has no cause of action. It is further contended that the suit is barred by limitation and u/s-34 of Specific Relief Act. The specific case of the defendant is that on 01.07.80 when Muslim Personal Law (Shariat) Application Act, came into force the Cooch Behar Muslims were guided by above act and not governed by Hindu Dayabhgaga Law in case of succession and inheritance as Tashimuddin Mia died 1st day of Baisakh 1388 B.S. It is also contended that after the death of the father of defendant no-1 the defendant no-1 along with her brothers became the owner and possessors of the suit land. The plaintiffs willfully suppressed the fact in the plaint. The defendant no-1 has been recorded in LR Khatian no. 319 in respect of the scheduled Land on the basis of ownership and possession. The transfer by the sons of Tashimuddin Mia is not within the Knowledge of defendant no-1.
The following issues were framed by the Learned Trial Court.
Whether the suit is maintainable in facts law and in present form? Whether the plaintiffs have in a right title and interest over the suit property as prayed for or not?
Whether the plaintiffs have any cause of action to file this present suit?
Whether the suit is bad for non-joinder of the necessary parties? Whether the suit is hit by principle of Section 34 of specific Relief Act?
6
2026:CHC-JP:49 Whether the suit is barred by law of limitation or any other provision of law?
Whether the date of death furnished by the plaintiff regarding Tashlimuddin Mia is correct or not?
Whether plaintiffs are entitled to get the decree as prayed for? What other relief/reliefs if any the plaintiff is entitled to get? The Learned Trial Court was pleased to dispose of the suit being T.S. 2/98 by observing as follows:
'The plaintiffs are hereby declared the owner and possession of the 'A' schedule property with right title and interest except the property mentioned in schedule 'A' (iv) 'A' (v) (a) and (b).
The defendants are hereby restricted from entering into the (A) schedule property perpetually except all the property mentioned in schedule 'A' (IV) 'A' (V) (a) and (b) and disturb the peaceful possession of 'A' schedule property except the property mentioned in schedule 'A' (IV) 'A' (V) (a) and (b).' The defendants/respondents being aggrieved by the Judgment dated 27-
04-2015 passed by the Learned Trial Court preferred an Appeal before the Learned District Judge Cooch Behar, which was later transferred to Learned Additional District Judge 3rd Court Cooch Behar being Title Appeal No- 20/2015.
7
2026:CHC-JP:49 By Judgment dated 3rd day of October 2019 the Learned First Appellate Court disposed of the Title Appeal No-20/2015 by observing and directing as follows:
'Hence it is ORDERED that the Title Appeal being no-20/15 be and the same is allowed on contest but without cost.
The impugned judgment dt. 27-04-15 passed by Ld. Civil Judge Junior Division Mathabhanga is hereby set aside.' The appellants being aggrieved by the Judgment and Order passed by the First Appellate Court has preferred this second Appeal.
By Order dated 12-09-2022 this appeal was admitted on the following substantial question of law:
A. Whether the plaintiffs and the defendants were governed by the Mohammedan Law of inheritance or Dayabhaga School of Hindu Law at the time of the death of the father of the plaintiffs. B. Whether the deeds on the basis of which the plaintiffs have claimed their declaration of title have been proved in accordance with law?
Subsequently another issue was framed as follows:
c. Whether suit is barred under Section 34 of the Specific Relief Act.8
2026:CHC-JP:49 Heard Learned Advocate for the appellants and Learned Advocate for the respondents. Perused the materials on record.
Learned Advocate for the appellants submits that the crux of the plaintiffs' case was that one Tashlimuddin Miah son of Late Ajimuddin Sarkar who was the recorded owner having 16 Annas share in the Land Comprised in RS Khaitan No. 155/264 (Exhibit-1) of Mouza-Nalgram under P.S. Sitalkuchi District Coochbehar sold and transferred 33 decimals of land in R.S. Plot No. 4650 to the plaintiff no-6 (wrongly written in the plaint as plaintiff no. 9 by Sale Deed No-2649 dated 25/05/1976).
Learned Advocate further submits that Tashlimuddin Miah died in the last part of the Bengali month of Aswin 1383 B.S. i.e. in the year 1976 A.D. He was a Cooch Behari Muslim who as per the law prevalent in the district of Cooch Behar (erstwhile Princely State of Cooch Behar) was guided by the Dayabhaga School of Hindu Law in matters of inheritance and succession. He left behind him three sons namely. 1) Ayub Ali Miah. 2) Abdul Hamid Miah and
3) Abdul Ajij Miah and one daughter namely Majitannechha Bewa (Defendant no-1 in the suit.) Learned Advocate also submits that the law relating to inheritance among Mahammedan subjects of Cooch Behar has been laid down by the Judgment of the Hon'ble Court in the matter of Anisur Rahaman and Anr. VS Jalihar Rahaman reported in AIR-1981 Cal-48. As per the said Judgment in the absence of a declaration made in the manner prescribed under the Mahammedan Inheritance Act, being made any Mohammedan 9 2026:CHC-JP:49 subject of Cooch Behar state is to be governed by the Hindu Law in matters of inheritance. The said judgment also lays down that though the provisions of Section 3(1) of the Cooch Behar (Assimilation of Laws) Act 1950 came into force on 01/01/1951, the Muslim Personal Law (Shariat) Application Act 1937 did not apply to the Mohammedan subjects of Cooch Behar district till 01/07/1980 i.e. the date which was appointed by the state Government by a Notification under Section 3(2) of the Cooch Behar (Assimilation of Laws) Act 1950. It is submitted that in the instant case no such declaration has been made under the provisions of Mohammedan Inheritance Act 1897 by Tashlimuddin Miah during his lifetime, and he would be governed by the Dayabhaga School of Hindu Law and the Defendant No. 1.
(Majitannecha Bewa) and her sons namely the Defendant/Respondent Nos. 2 and 3 would therefore not be entitled to inherit any share in the property left behind by the said Tashmiddin Miah and as a result the three sons of the deceased Tashimuddin Miah would be entitled to inherit and succeed to all immoveable and moveable properties left behind by their father. Since Tashlimuddin Miah died in the year 1976 A.D. corresponding to Bengali Month of Aswin 1383BS i.e. before 1st July 1980 the Muslim Personal Law (Shariat) Application Act 1937 would not be applicable to him but he would be governed by the Dayabhaga School of Hindu Law as applicable to Cooch Beharis Hindus therein under the customary law applicable to Hindus in the erstwhile princely State Cooch Behar prior to its' merger with the State of West Bengal in the dominion of India. Female heirs of a Cooch Behari Hindu had limited rights to 10 2026:CHC-JP:49 inheritance compared to male heirs, meaning they were not regarded as coparceners i.e. (inheritors by birth in ancestrial property) a right primarily reserved for male heirs.
Learned Advocate submits that Abdul Hamid Miah one of the sons of Tashlimuddin Mia sold and transferred 33 Decimals of land in RS Plot No. 4621 and 6 Decimals of Land in RS plot No. 4624 in favour of the plaintiff No. 1/Appellant No. 3 vide a sale Deed No. 4783 dated 07/09/1981 i.e. after the death of Tashlimuddin Miah. The other two sons of Tashlimuddin Miah namely Abdul Ajij Miah and Ayub Ali Mia sold and transferred 39 Decimals of Land in R.S. Plot Nos. 4621, and 4624 in favour of the plaintiff No. 1/Appellant No. 3 vide a sale Deed No. 4765 dated 07/09/1981 on the same dates being the lands described in schedule 'A' (i) (a) and (b) of the plaint. On 14/10/1980, Ayub Ali Miah son of Late Tashlimuddin Miah sold and transferred 25 decimals of land in R.S. plot Nos. 4622 and 4623 in favour of the plaintiff no. 4, 5 and 6 vide Sale Deed No. 4855 of 1980 dated 14/10/1980. On 17/04/1978 Abdul Ajij Miah sold and transferred 38 ½ Decimals of Land in RS Plot No-4650 in favour of the plaintiff No. 6 (wrongly written in the plaint as plaintiff No. 9) vide sale Deed No. 1006 dated 17/04/1978 (Exhibit-4) on 25/04/1980 Ayub Ali Miah Sold and transferred 23 decimals of land in RS plot No. 4643 and 4644 in favour of plaintiff No.-6 (wrongly written in the plaint as plaintiff no-9) vide a sale Deed No. 1445 dated 25/04/1980. (Exhibit 5).
11
2026:CHC-JP:49 Learned Advocate further submits that on 11/05/1981 Abdul Ajij Miah sold and transferred 5 decimals of land in R.S. plot No. 4641 in favour of the plaintiff no-6 (wrongly written in the plaint as plaintiff no-9) vide a sale deed no-1695 dated 11/05/1981. On the same date Abdul Hamid Miah and Abdul Ajij Miah jointly sold and transferred 20 Decimals of Land in RS plot No. 4643 in favour of plaintiff No-6. (wrongly written in the plaint as plaintiff No-9) vide sale deed No-1694 dated 11/05/1981 (Exhibit 7). Again on 08/03/1983, Ayub Ali Miah sold and transferred 23 Decimals of land in RS. Plot Nos. 4625, 4626, 4628 and 4629, in favour of plaintiff No. 6 (wrongly written in the plaint as plaintiff No. 9). On 22/04/1983 Abdul Hamid Miah sold and transferred 21 decimals of land in R.S. plot No. 4651 in favour of plaintiff No. 6 (wrongly written in the plaint as plaintiff No.9). vide sale deed no. 205 dated 14/01/1985 (Exhibit-11). On 17/11/1980 Abdul Hamid Miah sold and transferred 16 Decimals of land in RS. Plot No. 4648 in favour of plaintiff No. 6. (wrongly written in the plaint as plaintiff No.9) vide sale Deed No. 5129 dated 17/11/1980. (Exhibit-6). The said lands are described in the schedule -A(iii)
(a)-(j). [wrongly written in the plaint as Schedule A (VI). Learned Advocate submits that on 28/04/1987, Abdul Hamid Miah sold and transferred 05 Decimals in R.S. Plot No. 4644 in favour of plaintiff no. 7 (wrongly written in the plaint as plaintiff No. 10) vide Sale Deed No. 1120 dated 28/04/1987 (Exhibit X/10) described in schedule A (VII) (a) of the plaint. It is further submitted that by virtue of several deeds Tashlimuddin Miah and his sons sold 12 2026:CHC-JP:49 all lands except their Homestead Land of 33 Decimals out of 8.84 Acres of land in RS. Khatian No-155/264.
It is also submitted that defendant no-1 in collusion with BL and LRO officials recorded her name in respect of the entire 8.84 Acre of Land of Tashlimudsdin Miah vide a LR. Khatian No-319 (Exhibit-2) by describing herself as the sole legal heir.
It is submitted that the defendants in the suit contended that Tashimaddin Miah died on 1st day of Baisakh 1388 B.S. (i.e. 1981 AD) thereby contradicting the plaintiffs' version. The defendants claimed inheritance since according to them Tashlimuddin Miah was not guided by Hindu Dayabhaga Law but by the Muslim Personal Law as his death was after 01/07/1980 AD. This contention of the defendants is countered by the very fact that the Sale Deed No. 1006 of 1978 mentions the name of Tashlimuddin Miah as Late Tashlimuddin Miah. No documents have been exhibited by the defendants.
Learned Advocate submits that the Learned 1st Appellate Court in its Judgment dated 03/10/2019 in Title Appeal No-20 of 2015 solely relying on the L.R. Khatian No. 319 and the admission on the part of the plaintiffs that the name of the Defendants have been recorded in the said LR Khatian and that plaintiffs did not pray for any consequential relief to this effect, held the suit to be hit by section 34 of Specific Relief Act 1963. Learned Advocate further submits that the Learned 1st Appellate Court while deciding so absolutely lost sight of established principle of law that a Khatian' or 'revenue 13 2026:CHC-JP:49 record' is only a document for assessment of revenue which in itself is not capable of granting any legal right and/or title to any property. Learned Advocate also submits that the Learned 1st Appellate Court while so deciding completely lost sight of the Law prescribed under Section 51 C and Section 61 of the West Bengal Land Reforms Act 1955 which bars the jurisdiction of any Civil Court in respect of any entry in the Record of Rights.
Learned Advocate relies upon the following judicial decisions:
Gian Kaur VS Raghubir Singh.
Reported in 2011(4) SCC-567.
Gyarsi Lal VS Gopal and ors.
Reported in 2022 Supreme (Raj) 3012.
Ranjeet Alias Bhaiya Mahite VS Nandita Singh and ors. Civil Appeal No. 3253 of 2025 before the Hon'ble Supreme Court of India. Anisur Rahaman VS Jalilar Rahaman.
Reported in AIR-1981 Cal)-48.
Learned Advocate for the Respondents/Defendants submits that it is the Specific case of the respondent/defendant that Tashlimuddin Miah was the father of the original defendant no. 1 namely Majitennechha Bewa and the 14 2026:CHC-JP:49 maternal grandfather of the original defendant no-2 and 3 namely Mak Bul Miah and Majamael Miah respectively.
The said Tashlimuddin Miah during his lifetime was governed by Dayabhaga School of Hindu Law as he was a resident of Cooch Behar.
Learned Advocate further submits that it is the case of the defendant that the said Tashlimuddin Miah died on 1st day of Baishak 1388 B.S. leaving behind three sons and one daughter. The appellant/plaintiff had stated in the plaint that the said Tashlimuddin Miah had died in the Last Part of Ashwin 1383 BS.
It is submitted that the case of the defendant is that since the said Tashlimuddin Miah died on 1st day of Baishak the defendants will be governed by the Muslim Personal Law (Shariat) application act 1937 and not by the Dayabhaga. After 1st July 1980 the Mohammedan subjects of the District of Cooch Behar will be governed by the Muslim Personal Law (Shariat) application act 1937 and not by the Mohammedan Inheritance Act 1897.
The Learned Advocate further submits that the Learned Trial Court while deciding the inheritance of the original defendant no-1 took into consideration that in the Sale Deed no. 1006 dated 17/04/1979 and Sale Deed no. 1445 dated 25/04/1980 clearly stated that the date of death of said Tashlimuddin Miah was before 1979, as it was mentioned in the said deeds as Late Tashlimuddin Miah.15
2026:CHC-JP:49 Learned Advocate also submits that the said Sale Deed no 1006 and 1445 were neither exhibited nor the contents of the same proved only signatures of Abdul Aziz Miah, Akramul Haque Masunia, Amir Hussain Miah, and signature of deed writer in deed no. 1006 and signature of seller Ayub Ali Miah witness Abdul Aziz Miah and Md. Kabul Miah and of deed writer in deed no. 1445 were exhibited as exhibit no. 4 and 5 respectively. The Learned Court relied on Khatian No-319 which was exhibited as exhibit no. 2 in the name of the defendant no. 1 wherein it was stated that the said Tashlimuddin Miah died in the year 1975 AD.
Learned Advocate also submits that the Learned Trial Court erred in law by not considering that PW-5 namely Abdul Kader Basunia who was the deed writer in respect of Sale Deed in respect of Sale Deed no-1106 dated 17/04/1978 and the Sale Deed No-1445 dated 25/04/1980 and is also the nephew of the said Tashimuddin Miah had deposed in his cross examination that the date of death of the said Tashlimuddin Miah was 1388 BS.
It is submitted that the plaintiffs could not established that daughters could not inherit property of their father under the Dayabhaga School of Hindu Law. It is settled principle that pre codification of Hindu law, daughters had inheritance right over properties of their fathers.
It is further submitted that the Learned Trial Court while deciding the issue no. 2 (whether the plaintiffs have any right title and interest over the suit property) held that the three sons of said Tashlimuddin Miah have transferred 16 2026:CHC-JP:49 their property vide registered Sale Deeds being No. 4783 dated 07-09-1981, 215 dated 19-01-1980, 3748 and 3749 both dated 14-08-1980, 1983 dated 04-
05-1982, 3766 dated 29-08-1986 and transferred 1.22 acres of land to plaintiff No. 2 and 3 but except deed being no. 4783 other deeds were neither produced before the Learned Court nor exhibited and the defendants did not produce any kind of document or any evidence relying upon which the Learned Court can come to the conclusion that the deeds are forged or vague.
Learned Advocate also submits that while deciding issue-no-5 the Learned Trial Court did not consider that Khatian no-319 was recorded in the name of the original defendant no-1 wherein it was mentioned that the defendant no. 1 had acquired the property by way of inheritance. The Learned Court also ignored the fact that the plaintiffs did not take any steps to challenge the said Khatian no-319 in accordance with law and therefore the contents of the said Khatian no. 319 remains valid in the eyes of law. The Learned Trial Court further erred in disregarding the deposition of P.W. 5 wherein P.W. 5 had deposed that the original defendant no. 1 has been living in the land of her father after constructing a house.
Learned Advocate relies upon the following Judicial decisions:
Ananda Lal Ghosh Mazumder and ors. VS Guru Gobind Shaha Mondal and ors.
Reported in 1870 Supreme Cal-99.17
2026:CHC-JP:49 Anisur Rahaman and Anr. VS Jalilar Rahama.
Reported in AIR-1981 Cal-48.
Saij Tarajee Khmihand and ors. VS Yelamarti Satyam and ors. Reported in AIR 1971 S.C.-1865.
The ground of claim between the plaintiffs and the defendants of the suit property rests on the two laws of inheritance namely Muslim Personal (Shariat) Application Act 1937 and the Dayabhaga School of Hindu Law. As per the plaintiffs they are the owners of the suit property on the ground they purchased from the sons of Tashlimuddin Miah who became absolute owners of the suit property on the death of Tashlimuddin Miah in the year 1976 being governed by Dayabhaga School of Hindu Law.
As the law with regard to inheritance is settled by the decision of this Hon'ble Court in the case Anisur Rahaman VS Jalilar Rahaman reported in AIR-1981. Cal-48, any inheritance prior to 1st July 1980 would be under Dayabhaga Hindu Law and inheritance and after 1st July 1980 would be under Muslim Personal Law Shariat Application Act 1937.
The plaintiffs/appellants have claimed their right on the suit property by virtue of purchase from the sons of Tashlimuddin Miah, and it is the case of the appellants/plsintiffs that the sons of Tashlimuddin Miah were owners of suit property having inherited the property under Dayabhaga Law. 18
2026:CHC-JP:49 On the other hand defendant no-1 claimed to have inherited the property under Muslim Personal Law Shariat Application Act 1937.
According to the plaintiffs, Tashlimuddin Miah died on 1383 B.S. i.e. in the year 1976 A.D. thus he was governed by Dayabhaga School of Hindu Law and his sons inherited the suit property and became owners. According to the defendants Tashlimuddin Miah died on 1388 B.S. (i.e. 1981 AD), and defendant no-3 inherited the suit property.
As the death certificate of Tashlimuddin Mia could not be produced before trial Court by either parties, parties adduced oral evidence and relied upon relevant documents to prove the death of Tashlimuddin Miah.
Upon considering the findings of the Learned Trial Judge with regard to the year of death of Tashimuddin Mia it appears that the Learned Trial Judge has come to the following findings:
'After considering the documents evidences and materials available on record it appears to me that date of death of Tashimuddin Mia is last part of Aswin 1383 B.S. on the ground that after perusing series of deeds and Khatian being No. 319 which the defendants ought to have produced the date of death of Tashlimuddin Mia, is last part of Aswin 1383 B.S. P.W. 5 who is the nephew of Tashlimuddin Mia being a deed writer written in the deed that the date of death of Tashlimuddin Mia, is prior to 1979 A.D. but he willfully suppressed this fact and stated in cross examination that the date of death of Tashlimuddin Mia is 1383 B.S. to save the interest of his defendants sister and 19 2026:CHC-JP:49 nephew. In this way the plaintiffs have discharged their liability and now the burden of proof shift upon the defendants to establish the exact date of death of Tashlimuddin Mia because the defendant has taken a specific plea in para 10 of the written statement that the date of death of Tashlimuddin is 1st day of Baishak 1388 B.S. As the defendants have taken a specific plea, so they shall have to establish the date of death of Tashlimuddin Mia but they have failed to produce a single W.S. as such the plea taken by the defendant shall be treated as vague and evasive plea.
The principle that the plaintiff have to stand on his own feet shall not be applicable here on the ground that the plaintiff very successfully discharged their liability of burden of proof but defendants failed to do so.
Hence this issue has been decided in favour of the plaintiff.' Learned first appellate Court allowed the appeal and set aside the Judgment and Decree passed on the ground that Schedule of the plaint is not properly described, secondly the registered sale deeds on which reliance is placed is not marked exhibits. Thirdly some properties were transferred to plaintiff no-9 but there is no whisper that plaintiff no-9 has been subsequently impleaded in the suit. Fourthly the defendants name being recorded in LR. Khatian No. 319 is admitted by the plaintiffs and the plaintiffs did not pray for any consequential relief so instant suit is hit u/s-34 of specific relief Act. With regard to the Schedule of Property the observation of the Learned Judge is not specific.
20
2026:CHC-JP:49 Moreover the purpose of giving the schedule is to identify the suit property, and the point of schedule was not argued before the first appellate Court thus the question of schedule ought not to have been addressed by the Learned 1st Appellate Court.
It further appears that the Learned First Appellate Court failed to take into consideration the amendment of plaint and the discussion of the Learned Trial Judge with regard to ISSUE No-2.
As Second Appeal is to be considered on the substantial questions of law framed the findings of the Learned Trial Court and 1st Appellate Court on questions of fact is not vital thus the question of law framed as to whether the deeds on the basis of which plaintiffs have claimed their declaration of title have been proved in accordance with law and whether the plaintiffs and defendants were governed by Mohammedan Law of inheritance or Dayabhaga School of Hindu Law and whether Section 34, of the specific relief Act is applicable in this case, is to be considered.
With regard to the 1st question framed it is necessary to consider as to whether sale deeds relied upon by the plaintiffs were proved in accordance with law, as on the basis of sale deeds the plaintiffs claimed their right to suit property and in the sale deed there is indication about year of death of Tashlimuddin Mia.
It appears from record that Deed no-2649 dated 25/05/1976 was exhibited along with signature of Deed writer P.W. 5 Abdul Kader Basumia. 21
2026:CHC-JP:49 With regard to Deed No-1006 dated 17/01/1979. Deed No- 1445 dated 25/01/1980. Deed No-5129 dated 18-11-8-. Deed No-1694 dated 11-05-1980. Deed No-5358 dated - 11/10/1982 Deed No. 959 dated 8/03/1983, Deed No. 1695 dated 11/05/1980, Deed No-205 dated 22-01-1985, when the deed writer is examined and he states specifically that he has prepared the deed the said deed can be said to be proved. In many cases where the parties to the deed are not available the deed writer can be examined as to the preparation of the deed and execution of the same. As P.W.-5 has stated that he drafted the deed being Deed No-2649 dated 25/05/1976 Deed No. 1006 dated 17/01/1979 and deed No-1445 dated 25/01/1980 as per instruction of the Seller and read over to the parties who signed in their presence the said deeds stand proved in accordance with law. Learned Trial Judge while recording his findings with regard to date of death of Tashlimuddin Mia observed as follows:
'On the other hand the plaintiffs have stated that at the time of death of Tashlimuddin Mia no death certificate or any document as of like nature was preserved as he died more than 35 years ago. But from the circumstantial evidence they are able to succed and establish the exact period of death of Tashlimuddin Mia. They submitted that Tashlimuddin Mia died in the last part of Aswin 1383 B.S. as deed being No. 2649 dated 25-05-1976 clearly stated that Tashlimuddin was alive till 25-05-1976 as he himself transferred the property but in deed no-1006 dated 17-04-1979 and deed no. 1445 dated 25- 04-1980 clearly stated that the date of death of Tashlimuddin Mia was before 1979 as it was mentioned in the deed that Lt. Tashlimuddin Mia.' 22 2026:CHC-JP:49 Now the question for consideration is whether the statement made by P.W. 5 Deed Writer in cross examination about date of death of Tashlimuddin Mia on 1388 B.S. should be accepted inspite of the contrary made in the deed no-1006 dated 17-04-1979 and deed no-1445 dated 25-04-1980 written by him.
A deed writer is a licensed professional authorized to draft legal documents, such as sale deeds mortgage deeds and agreements specifically for registration. They are not merely typists but are responsible for preparing drafting and often verifying the legality of non-testamentary documents. They investigate titles draft deeds ensure compliance with registration laws and engross documents on stamp paper. They play crucial role in preventing fraudulent transactions by ensuring documents are property drafted and legally complied. Thus when a deed writer prepares a deed he does on the instruction of the parties and on verification of necessary documents. Hence he acts with responsibility. In some cases the deed writer may also have knowledge about certain facts on the basis of which he prepares the deed. Hence there is no scope to presume that deed writer will incorporate certain facts knowing it to be false.' In the instant case P.W. 5 has deposed that he prepared the deed on the instruction of the seller. As the deed writer is also a relation of the seller Ayub Ali Mia in Deed No. 1445 dated 25/01/1980 he has knowledge of death of 23 2026:CHC-JP:49 Tashlimuddin Mia, father of Ayub Ali Miah. Hence he will not prepare a statement in the deed knowing to be false.
Although a contrary statement has come out in cross examination of P.W.-5 about year of death of Tashlimuddin Miah but considering his official function as deed writer and incorporation of certain fact in the sale deed, the statement made in the sale deed should be accepted.
Thus the Learned Trial Judge rightly refused to accept statement in cross-examinations. In the event sale deed is accepted the date of death of Tashlimuddin Mia is prior to 1979.
The decision of Sait Tarajee Khimchand (supra) relied upon by Learned Advocate for the respondents is not applicable to the facts of the case.
As it is proved that the death of Tashlimuddin Miah was before 1979, it is well settled that the inheritance to his property will be under Dayabhaga School of Hindu Law and not under Shariat Act.
In the decision of Ananda Lal Ghosh Mazumder and ors. (supra) the Hon'ble Court observed as follows:
15. "Lastly, it has been urged that the precise position which the son of a paternal uncle's daughter would be entitled to hold according to the principle of spiritual benefit would interfere with that which has been assigned, by the author of the Dayabhaga, to some of the heirs specified in the earlier part of Chapter XI. Whether this is really the case or not, we need not pause to enquire, 24 2026:CHC-JP:49 for what we have to determine in the present case is not the precise position which the son of a paternal uncle's daughter is entitled to occupy in the category of heirs, but whether he is entitled to inherit at all. If the author of the Dayabhaga has in fact given to any particular heir or heirs a position which, if not strictly consistent with the principle which he has himself laid down for our guidance, the utmost that can be said is that that particular heir or heirs should be allowed to retain that position. But the circumstance, even if true, cannot be accepted as a sufficient reason to justify the total exclusion of one single individual who is really competent to satisfy all the requirements of that principle. If in any case which may arise hereafter, it should become necessary for us to determine the precise position which the son of a paternal uncle's daughter is entitled to hold in the order of succession, the question would fairly arise whether the details of a work like the Dayabhaga ought to be permitted to override the principle upon which it is admittedly based. We have already shown that, according to the author's own interpretation of Menu, the nearest heir is he who is competent to confer the greatest amount of spiritual benefit on the deceased proprietor. But if, in any case, we are bound to depart from that interpretation, merely because he himself has done so, we do not see any reason whatever why we should add to the inconsistency by pushing it further than the requirements of that particular case. "Decision must not be made." says Vrihaspati, "solely by having recourse to the letter of written codes; since if no decision were made according to the reason of the law, there might be a failure of justice." That this rule of construction is perfectly consistent with the dictates 25 2026:CHC-JP:49 of god sense and natural justice framer is repeatedly acknowledged in the Dayabhaga itself, to be one the present case, is evident from the fan that the authority of its of the very highest on all questions relating to the Hindu law of succession.
16. For the foregoing reasons, we are of opinion that the son of a paternal uncle's daughter is entitled to be recognized as an heir according to the Hindu Law current in the Bengal school.
Barnes Peacock, C.I."
Before considering the decision above it is to be remembered that the case relied upon was right of son of paternal uncles daughter. Moreover the said decision dealt with Dayabhaga Hindu Law with regard to the nearest heir who is competent to confer the greatest amount of spiritual benefit on the deceased proprietor and his right of inheritance. The facts do not apply in this case, thus it cannot be held that the daughter of Tashlimuddin Mia is entitled to inheritance. As a decision is a precedent on what it decides and not what can be logically inferred from it the said decision cannot be made applicable in this case.
Considering the prayers made in the plaint it can be held that the suit is maintainable u/s-34 of the Specific Relief Act.
In the facts and circumstances this Court is of the view that the first question of law framed as to whether the deeds on which the plaintiffs claimed 26 2026:CHC-JP:49 their right to suit property as well as the date of death of Tashimuddin Mia prior to 1979 is decided in favour of the appellants being proved. As the death of Tashimuddin Mia was prior to 1979, he as well as his children was governed by Dayabhaga School of Hindu Law, hence on his death his sons from whom plaintiffs purchased suit property became absolute owners of the said property.
Hence this Appeal SAT-15 of 2019 succeeds. Judgment and Order dated 27/04/2015 passed by Learned Additional District Judge 3rd Court Cooch Behar in Title Appeal No. 20/2015 is set aside. The Judgment and Decree passed in Title suit No 2 of 1998 by Learned Civil Judge Junior Division Mathabhanga is restored. The interlocutory applications also stand disposed.
Let the decree be drawn up.
(Biswaroop Chowdhury, J)