Gauhati High Court
Ataur Rahman Choudhury vs Msstt. Safijan Bibi And Anr on 30 January, 2013
Equivalent citations: AIR 2013 (NOC) 300 (GAU.)
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram &
Arunachal Pradesh)
RSA No. 79 of 2000
Ataur Rahman Choudhury,
S/O Lt. Hazi Lal Mia, by caste Hindu, by occupation
Cultivator, resident of village No.1 Dolabari,
Mouza-Bhairabpad, Dist.-Sonitpur,
Assam.
......Appellant/Defendant No.2.
-Versus-
1. Msstt. Safijan Bibi,
W/O Md. Jahar Ali,
by caste Hindu, by profession a house-wife,
resident of village No.1 Dolabari, Mouza-Bhairabpad,
Dist.-Sonitpur, Assam.
......Respondent/Plaintiff.
2. Md. Abdul Mannan, S/O Lt. Fazal Ali, by caste Hindu, Profession-business, Vill-Kariani Nepaligaon, Mouza-Mahabhairab, PS-Tezpur, Dist.-Sonitpur, Assam.
......Respondent.
Advocate(s) for the Appellant :
Mr. P. Mahanta, Mr. T.C. Khatri, Mr. A.S. Choudhury, Mr. H.R.A. Choudhury, Mr. A. Alam, Ms. R. Choudhury.
Advocate(s) for the Respondents :
Mr. M. Mallik, Mr. K.P. Singh, Mr. K. Paul, Mr. S.K. Singh, Mr. B. Pushilal.
RSA 79/2000 Page 1 of 1
BEFORE
THE HON'BLE MR. JUSTICE B.P. KATAKEY
Date of Hearing : 30.01.2013
Date of Judgment & Order : 30th January, 2013
JUDGMENT AND ORDER (Oral)
This appeal by the defendant No.2 is directed against the judgment and decree dated 02.02.2000 passed by the learned Civil Judge (Senior Division), Sonitpur at Tezpur, in Title Appeal No.9/1993, whereby and whereunder the appeal preferred by the defendant Nos.1, 2 and 3 has been dismissed by affirming the judgment and decree dated 11.02.1993 passed by the learned Munsiff No.1, Tezpur, in Title Suit No.9/1990.
2. The plaintiff/respondent Safijan Bibi instituted Title Suit No.9/1990 for declaration of her right, title and interest and for confirmation of possession over the suit land described in the plaint, contending inter alia that the defendant No.1, who was the owner and possessor of the suit land, initially transferred the same in favour of the defendant No.3 by a registered deed of gift dated 13.09.1968, who, thereafter, vide registered deed of sale dated 28.07.1975 transferred the suit land in favour of the plaintiff, thereby the plaintiff has acquired the right, title and interest over the suit land. It has also been contended that though the plaintiff's name, by virtue of such purchase, was initially mutated in the revenue records on 05.03.1981, the said mutation was cancelled at the instance of the defendants vide order RSA 79/2000 Page 2 of 2 dated 19.08.1981, which was set aside vide order dated 22.11.1983 by the Settlement Officer on the basis of the appeal filed and remanded the matter to the Asstt. Settlement Officer for fresh decision. According to the plaintiff, the Asstt. Settlement Officer subsequently passed the order of mutation in favour of the defendants and though the plaintiff filed an appeal before the Settlement Officer, the same has been dismissed on 27.01.1987. It has further been pleaded that the defendant No.2, thereafter, instituted a proceeding under Section 145 Cr.P.C. wherein the learned Executive Magistrate on 15.03.1986 passed an order of attachment. According to the plaintiff the cancellation of the mutation has clouded his title over the suit land, for which the suit has been filed for passing the decree as noticed above.
3. The defendants have contested the suit by filing the joint written statement, admitting the gift of the suit land by the defendant No.1 in favour of the defendant No.3 by a registered deed of gift and subsequent sale of the suit land by the defendant No.3 in favour of the plaintiff by a registered deed of sale, as contended by the plaintiff in the plaint. The defendants, however, have contended that the plaintiff, thereafter, executed a registered instrument dated 21.11.1975 in favour of the defendant No.3 undertaking to return the possession of the suit land to the defendant No.3 provided the consideration amount mentioned in the sale deed dated 28.07.1975 is returned by the defendant No.3 to the plaintiff within 5 years from the date of execution of the said registered instrument. It has further been pleaded that the said consideration amount having been refunded by the defendant No.3 RSA 79/2000 Page 3 of 3 in favour of the plaintiff on 31.12.1977, the defendant No.3 has been put back into possession and that is how the defendants have been possessing the suit land continuously till the attachment order was passed by the learned Executive Magistrate on 15.03.1986. The defendants, therefore, have pleaded that by virtue of the subsequent registered instrument dated 21.11.1975 executed by the plaintiff in favour of the defendant No.3, the plaintiff has lost her right, title and interest over the suit land.
4. On the basis of the pleadings of the parties, the following issues were framed by the Trial Court for determination:-
(i) Whether there is any cause of action for the suit?
(ii) In the suit barred by the principles of waiver, estoppel and acquiescence.
(iii) Whether the suit is barred by limitation?
(iv) Whether the document No.538 dated 21.11.75 was registered by the plaintiff and her husband in favour of the defendant?
(v) Whether the plaintiff then right, title, interest and possession in the suit land?
(vi) Whether the suit land has been mutated legally in the name of the defendant?
(vii) Whether the suit is properly valued and proper court fee has been paid?
(viii) Whether the defendant acquired right, title and interest in the suit land by adverse possession?
(ix) Whether the plaintiff is entitled to get relief as prayed for?
(x) To what other relief or reliefs the parties are entitled?RSA 79/2000 Page 4 of 4
5. The plaintiff in support of her case has examined 3(three) witnesses and also exhibited a number of documents including the sale deed dated 28.07.1975, by which the defendant No.3 has sold the suit land in favour of the plaintiff, which has been marked as Ext.-1. The defendants have also examined 3(three) witnesses and exhibited certain documents including the revenue records.
6. The learned Munsiff upon appreciation of the evidence on record, both oral and documentary and upon hearing the learned counsel for the parties, has decreed the suit of the plaintiff vide judgment dated 11.02.1993. Being aggrieved all the defendants, namely, the defendant Nos.1, 2 and 3 preferred Title Appeal No.9/1993, which has also been dismissed vide judgment and decree dated 02.02.2000 by affirming the judgment and decree passed by the Trial Court. Hence the present appeal.
7. By order dated 31.05.2000 the appeal has been admitted for hearing on the following substantial questions of law:-
(i) Whether the claims of consequential reliefs of confirmation/recovery of possession and injunction in the suit are unnecessary, superfluous or premature in view of the pendency of proceedings under Section 145 of the Code of Criminal Procedure and attachment of the suit land in such proceedings?
(ii) Whether mere cancellation of mutation or the name of the respondent/plaintiff by the order of Assistant Settlement Officer as upheld on appeal by the Settlement Officer can or could provide any cause of action for the suit and if such cause of action can or RSA 79/2000 Page 5 of 5 could be deemed to have arised on 19.8.81 when the chitha mutation in the name of the respondent/ plaintiff was admittedly cancelled first by the Assistant Settlement?
8. I have heard Ms. R. Choudhury, learned counsel for the appellant and Mr. B. Pushilal, learned counsel appearing for the respondents.
9. The learned counsel for the appellant referring to the impugned judgments and decrees passed by the Courts below have submitted that since the plaintiff by the registered instrument dated 21.11.1975 undertook to return the possession of the suit land in favour of the defendant No.3 on receiving the consideration amount mentioned in the sale deed 28.07.1975 (Ext.-1), pursuant to which the possession of the suit land was redelivered to the defendant No.3 on 31.12.1977 on receiving the consideration amount, the plaintiff has lost the right, title and interest over the suit land, which earlier she acquired by right of purchase vide registered sale deed dated 28.07.1975 (Ext.-1). The learned counsel further submits that the proceeding under Section 145 Cr.P.C. having been instituted by the defendant No.2, wherein the order of attachment of the property has been passed by the learned Executive Magistrate, the claim of the consequential relief for confirmation of possession by the plaintiff is premature. It has also been submitted that cancellation of the mutation of the name of the plaintiff by the Assistant Settlement Officer cannot provide a cause of action for filing the suit RSA 79/2000 Page 6 of 6 and the suit being based on such cause of action, the same needs to be dismissed.
10. The learned counsel for the respondent, per contra, supporting the judgments and decrees passed by the Courts below has submitted that since the defendants have failed to prove execution of any registered instrument dated 21.11.1975, as contended, no illegality has been committed in decreeing the suit of the plaintiff on the basis of the Ext.-1 sale deed dated 28.07.1975, execution of which has also been admitted by the defendants in the written statement filed.
11. I have considered the submissions advanced by the learned counsel for the parties. I have also perused the judgments and decrees passed by the Courts below.
12. As noticed above, the plaintiff/respondent No.1 claims right, title and interest on the basis of the sale deed dated 28.07.1975 (Ext.-
1) executed by the defendant No.3 in favour of the plaintiff. The plaintiff also claims that the defendant No.3 got the suit land from the defendant No.1, who is the owner and possessor, by virtue of the registered deed of gift dated 13.09.1968. The defendants in the written statement filed have admitted that the defendant No.1 was the original owner and possessor of the suit land and he has gifted the property in favour of the defendant No.3 by a registered deed of gift dated 13.09.1968. The sale of the property by the defendant No.3 in favour of the plaintiff by a registered sale deed dated 28.07.1975 has also been RSA 79/2000 Page 7 of 7 admitted by the defendants in the written statement filed. Despite such admission, the plaintiff has proved the sale deed dated 28.07.1975 (Ext.-1) executed by the defendant No.3 in her favour. Hence by virtue of such purchase the plaintiff has acquired the right, title and interest in respect of the suit land.
13. The defendants in the written statement filed has pleaded that the plaintiff lost the right, title and interest over the suit land because of the execution of a registered document on 21.11.1975 by the plaintiff in favour of the defendant No.3, whereby and whereunder the plaintiff undertook to return the possession of the suit land to the defendant No.3 on return of the consideration amount within 5 years. According to the defendants the defendant No.3 was put back into possession by the plaintiff on 31.12.1977 on refund of the consideration amount. The defendants though pleaded so, have failed to produce and prove the registered instrument dated 21.11.1975. The defendants, therefore, have failed to prove their pleaded case in the written statement filed. The claim of possession by the defendants has also not been accepted by the Courts below. The finding of fact relating to the possession recorded by both the Courts below cannot be disturbed in the second appeal in the absence of demonstration of any perversity in recording such finding.
14. The proceeding under Section 145 Cr.P.C. being a summary proceeding relating to the possession, a suit for declaration of right, title and interest and for confirmation of possession, despite existence of an RSA 79/2000 Page 8 of 8 order of attachment is maintainable. The confirmation of possession has to be with relation to the date of attachment of the property, which has been declared by both the Courts below.
15. It appears from the plaintiff's case that according to the plaintiff the cause of action arose due to cancellation of the mutation as, by such cancellation of mutation the plaintiff's title over the suit land has been clouded. As discussed above, the defendants have admitted the transfer of the land by the defendant No.3 in favour of the plaintiff by a registered instrument i.e. Ext.-1. It is also the pleaded case of both the plaintiff and the defendants that though initially the plaintiff's name was recorded in the revenue record, the same, however, was subsequently cancelled on 19.08.1981, which naturally has clouded the plaintiff's right, title and interest requiring institution of the suit for the declaration.
16. That being the position, I do not find any merit in the appeal and hence the same is dismissed. No cost.
17. The Registry is directed to send down the records forthwith.
JUDGE Roy RSA 79/2000 Page 9 of 9