Gauhati High Court
Jamaluddin Ahmed vs Anowara Begum on 9 September, 2014
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH )
RSA No. 82 of 2004
Sri Jamaluddin Ahmed,
Son of Late Mansud Ali,
Jail Road, Jorhat Town,
Jorhat.
..... Appellant
-Versus-
1) Smti Anowara Begum,
Wife of Late Nawab Ali,
2) Sri Dadu Mian,
Son of Raja Mian
3) Sri. Naya Mia @ Khan,
Son of Late Bashu Khan,
4) Sri Abbas Ali,
Son of late Bogai Ali,
5) Smti Nasia Begum,
Wife of Sri Dadu Mian,
6) Smti Monowara Begum,
Wife of Sri Naya Khan,
7) Smti Jaida Khatoon,
Wife of Sri Abbas Ali.
All residents of Jail Road, Jorhat Town,
Jorhat, Assam.
........Respondents
BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY For the Appellant : Mr. P. P. Baruah, Advocate.
For the Respondents : Mr. T. J. Mahanto, SC, Mr. A. Bhattacharya, Advocate.
RSA No.82 of 2004 Page 1 of 8Date of hearing & judgment : 09.09.2014 JUDGMENT AND ORDER (Oral) This Second Appeal has been preferred by the plaintiff of Title Suit No. 24 of 1992 in the Court of learned Civil Judge (Senior Division) at Jorhat. The learned trial Court partly decreed the suit of the plaintiff declaring that the plaintiff and the defendants are cosharers in respect to the suit land being legal heirs of Nawab Ali. The prayer for eviction of the defendants being trespasser of the land was refused. The learned trial court also passed preliminary decree for partition although no prayer was made. Situated thus, the plaintiff preferred Title Appeal No. 3 of 2001 in the Court learned District Judge, Jorhat. On being transferred to the Court of learned Additional District Judge, Jorhat, the appeal was partly allowed by setting aside the decree in regard to partition of the suit property. The learned First Appellate Court held that the plaintiff and the defendants are co-sharers with respect to the land of being legal heir of Nawab Ali.
[2] Mansad Ali, the plaintiff instituted Title Suit No. 24 of 1992 in the Court of learned Assistant District Judge (as designated at that time) at Jorhat on 16.03.1992 stating that his father Nawab Ali purchased a plot of land measuring 2 Katha 16 Lechas covered by Dag No. 9201 of Periodic Patta No. 82, out of which 1Bigha1Katha 5 Lechas covered by Dag No. 9159 of Periodic Patta No. 57 of Block No.14 of Jorhat Town described in Schedule-A to the plaint was gifted to the plaintiff orally and the rest 1 Katha was sold to his daughter Anowara Begum. The suit land falls in Dag No. 9159 which is 1Bigha 1Katha 5 Lechas purchased by Nawab Ali in the name of his wife Jarua Bibi who died issueless. Thereafter, Nawab Ali married one Taiban Khatoon @ Tulu Bibi and out of said wedlock 4 RSA No.82 of 2004 Page 2 of 8 daughters, namely, Anowara Begum, Nasia Begum, Monowara Begum & Jaida Khatoon were born. It is the case of the plaintiff that he was born to Jarua Bibi, the first wife of his father Nawab Ali. According to the plaintiff, his father having inherited the property of Jarua Bibi, the defendants being daughter of Nawab Ali's second wife, namely, Taiban Khatoon @ Tula Bibi had no right, title and interest in respect of the land. However, Taiban Khatoon @ Tulu Bibi during her life time was permitted to live in Kutcha house standing on the suit land. After Nawab Ali died the plaintiff made a pucca structure on the same plot of land. Mansad Ali after death of his father Nawab Ali asked Taiban Khatoon @ Tulu Bibi and others to vacate the land. They not only refused to go but started making further construction by inviting other defendants as well. Thus, all the 4 daughters of Nawab Ali born to Taiban Khatoon @ Tulu Bibi and their daughter's respective husbands were impleaded in the suit describing them as trespassers and plaintiff claimed his declaration of right, title and interest exclusively to the suit land and also for recovery of Khass possession for evicting the defendants from the suit land. According to the plaintiff, the defendants were nothing but trespassers in respect to the land.
[3] On being summoned the defendants appeared and by filing written statement, denied the case of the plaintiff. According to the defendants, Mansad Ali was not son of Jarua Bibi. He was born to Marium Bibi, the first wife of Nawab Ali, who lived in Nowakhali district of Beangaledesh. When Nawab Ali married Jarua Bibi after coming to Rongia, plaintiff was 7 to 8 years old. Thereafter, they came to Jorhat town and settled there permanently after purchasing the said suit. Jarua Bibi died issueless and thereafter, Nawab Ali married defendant No.1 Taiban Khatoon @ Tulu Bibi and out of that wedlock 4 daughters, namely, defendants No.1, 5, 6 & 7 were born. With these averments, the defendants prayed that the suit be dismissed with cost.
RSA No.82 of 2004 Page 3 of 8[4] The learned trial court framed as many as 10 issues which are quoted below:
1) Whether there is cause of action for the suit of the plaintiff?
2) Whether the suit is barred by the law of Limitation?
3) Whether the suit is bad for non-joinder of necessary parties and bad for misjoinder?
4)Whether the plaintiff is entitled to a decree for declaration of his right, title and interest over the suit land and the houses mentioned in the Schedule 'A' and 'B' of the plaint?
5) Whether the possession and occupation of the defendants over the suit land and the houses mentioned in the Schedule 'A', 'B' & 'C' of the plaint is illegal, wrongful and the defendants are the trespassers to the same?
6) Whether the plaintiff is entitled to Khas possession of the suit land and houses as mentioned in the Schedule 'A' & 'B' of the plaint upon eviction of the defendants their agents, servants etc from the suit land and the houses mentioned in the schedule A, B & C of the plaint by demolition of the structure mentioned in the Schedule C of the plaint?
7)Whether the plaintiff is entitled to grant of permanent injunction against the defendants, restraining them from entering into the suit land in future?
8) Whether the plaintiff is entitled to grant of compensation of Rs.10/- per day from the defendant for their illegal and wrongful occupation of the suit land w.e.f. 1.11.1991 till the eviction of the defendants from the suit land?
9) Whether the plaintiff is entitled to decree as prayed for?
10) To what relief, the parties are entitled to?
[5] The Plaintiff examined 4 witnesses and the defendants side also examined 4 witnesses. During pendency of the suit the RSA No.82 of 2004 Page 4 of 8 original plaintiff Mansad Ali died and in his place his son Jalaluddin was substituted. Jalaluddin examined himself as P.W.1. He examined 3 other witnesses also. Similarly, during pendency of this suit Taiban Khatoon @ Tulu Bibi died. Her name was struck off from the array of parties as her legal heirs were already in record.
[6] It is further stated that on behalf of the defendants Anowara Khatoon instituted Title Suit No. 43 of 1991 in the Court of learned Munsiff No.1, Jorhat, for declaring of their right, title and interest over the land in question and for further declaration that Mansad Ali did not have any right of possession whatsoever in respect to the suit land. Title Suit No. 43 of 1991 was returned by the learned Court below for presentation before proper court and accordingly the same was placed before the learned Assistant District Judge at Jorhat. In the meantime plaintiff had instituted Title Suit No. 24 of 1992 but for which the suit filed by Anowara Khatoon was stayed under Section 10 of the Code of Civil Procedure.
[7] After consideration of the rival pleadings and evidence led by the parties, the learned trial court arrived at the findings that plaintiff failed to prove his case being son of Jarua Bibi and plaintiff Mansad Ali came to India with his father Nawab Ali. In that view of the matter plaintiff not being son of Jarua Bibi cannot claim his exclusive right, title and interest to the suit land. The learned trial court found that since Jarua Bibi died issueless her property was divided among legal heirs of Nawab Ali and plaintiff being one of them, inherited right, title and interest in the suit land along with other defendants as per provisions of Mohammedan law. The suit of the plaintiff, therefore, for declaration of exclusive right, title and interest was not decreed but suit for partition was decreed. The aforesaid judgment passed by the learned trial court on 20.12.2000 was challenged by the plaintiff before the learned District Judge at Jorhat vide Title Appeal No. 3 of 2001 on the ground that the plaintiff was the son of Jarua Bibi and so he is her sole legal heir with respect to the suit land. The learned First Appellate Court having RSA No.82 of 2004 Page 5 of 8 considered the evidence a fresh and more particularly after perusal of deposition of D.W.2 conclusively held that the plaintiff was son of Marium Bibi and not of Jarua Bibi. Having held that plaintiff is not the son of the Jarua Bibi, the learned First Appellate Court did not find any reason to exclusive interfere with the findings of the learned trial court in regard to exclusive inheritance of the property. However, preliminary decree in regard to partition of the property being made beyond pleadings was interfered with and that part of the decree was set aside. This judgment of the learned Appellate Court passed on 09.05.2003 has been brought under challenge in this Second Appeal.
[8] This Court while admitting the second appeal on 28.02.2005 framed one substantial question of law as follows:
"1) Whether under the muslim law, the property of the mother of the deceased plaintiff could be partition amongst the defendants, who are the second wife of the father of the deceased and the daughters of the said second wife?"
[9] I have heard Mr. P.P. Baruah, learned counsel for the petitioner and Mr. T.J. Mahanta, learned Senior Counsel assisted by Mr. A. Bhattacharya, learned counsel for the respondent.
[10] Mr. P.P. Baruah in his usual fairness submitted at the threshold that substantial question of law that is framed by this Court needs modification. According to the learned counsel the sole substantial question of law on which this appeal can be heard should be as follows:
"Whether finding of the learned Courts below that Mansad Ali was not son of Jarua Bibi is perverse?"
Submission of Mr. Baruah has force. The sole substantial question of law accordingly stands modified and substituted. Both the learned counsel are heard on this new substantial question of law.
RSA No.82 of 2004 Page 6 of 8[11] The argument of Mr. P.P. Baruah is based on evidence led by the parties. According to him, nowhere any of the witnesses has deposed that Marium Bibi was the mother of plaintiff Mansad Ali. According to him, there are sufficient materials on record to come to a finding that Mansad Ali was son of Jarua Bibi. When his attention was drawn to evidence of P.W.1 who deposed that he was only told about Jarua Bibi being mother of Monsad Ali, the learned counsel replies that neither original plaintiff Mansad Ali nor present plaintiff Jalaluddin had any reason to know as to whether Jarua Bibi gave birth to Mansad Ali. The 4 witnesses examined by the plaintiff nowhere have staked firm claim in regard to Jarua Bibi being mother of Mansad Ali. On the other hand, P.W.2 categorically stated that he knew Nawab Ali the time from the time when Nawab Ali had come to Assam from Nowakhali district. This witness stated that at the time of coming to Assam from Nawakhali district, Nawab Ali was accompanied by his son Mansad Ali who was about 8/10 years of old. At this stage Nawab Ali married Jarua Bibi at Rangia and thus, Jarua Bibi became his second wife. As on the date second marriage of Nawab Ali with Jarua Bibi, Monsad Ali was 8 to 10 years old. This witness (DW2) has not been cross-examined in regard to that statement that D.W.2 had no occasion to know Nawab Ali in the year 1936 or about his coming to Rangia with Mansad Ali and thereafter, married Jarua Bibi when Mansad Ali was 8 to 10 years old.
[12] The judgment of the learned Courts below, therefore, cannot be said to have been based on no material whatsoever. While arriving at the finding that Mansad Ali was not the son of Jarua Bibi, the learned Courts below had relied on at least some evidence. The question of finding being perverse can only arise if such finding is not based on any material at all. If there is some material which the Courts of facts relied on, in that event Second Appellate Court in exercise of jurisdiction under Section 100 of the Code Civil RSA No.82 of 2004 Page 7 of 8 Procedure cannot unsettle such finding of fact. Sufficiency of evidence cannot be questioned under Section 100 of the Code of Civil Procedure. On the fact of such factual circumstances, including pleadings and evidence of the parties, the sole substantial question of law as to finding that Mansad Ali is not a son of Jarua Bibi cannot be said to be perverse. The sole substantial question of law is decided against the appellant and in favour of the defendants. Consequently the second appeal is fails. Accordingly it is dismissed.
[13] No order as to cost.
JUDGE
sumita
RSA No.82 of 2004 Page 8 of 8