Gauhati High Court
C. Kharkrang vs Nikhilesh Bagchi And Ors. on 26 July, 1994
Equivalent citations: I(1995)DMC308
JUDGMENT M. Sharma, J.
1. This revision petition has arisen against the judgment and decree dated 26.11.90 passed by the Additional Deputy Commissioner/District Judge, Shillong in Title Civil Appeal No. 7(T) of 1985, against the judgment and Decree dated 1.7.85 passed by the Assistant to the Deputy Commissioner Shillong in Title Suit No. 9(T) of 1976.
2. This revision petition relates to question of title and interest over the suit land by the parties on the basis of claims emerging from right under the customary law. Before going to decide the claim and counter claim over the suit land by the contesting parties on the basis of customary law or general law, the case of the parties has to be traced out from the long past.
3. The opposite party No. 1 as plaintiff No. 1 is the holder of General Power of Attorney and the opposite party No. 2 (Plaintiff No. 2) is the purchaser to whom this plaintiff No. 1 has transferred the property in dispute. The plaintiff No. 1 alongwith his brother was given the General Power of Attorney executed on 1.3.68 with authority jointly and severally to sell, mortgage, lease properties situated at Mawprem measuring' the 915 acre by Smt. H. Debi Choudhury and Shri Memaudri Kishore Acharya Choudhury, wife and son of late Babu H. Kishore Acharya Choudhury respectively. The boundary has been given in the schedule of the plaint with Municipal holding number, being holding No. 158, and house was built for the residence of their Chowkidar (defendant No. 1). The history of the land in dispute originated from 1917.
4. According to the opposite party No. 1 plaintiff, the land originally belonged to Late Mohon Massar, father of defendant No. 2 (since deceased) and it was first occupied by one Padam Lama who sold it to late Rai Bahadur Hemanta Kumar Raha. The then Deputy Commissioner accorded sanction to the sale of the land to Rai Bahabur Kumar Raha and late Mohan Massar who was the father of defendant No. 1 (petitioner) granted Patta in his favour for the said land for a period of 99 years or thereafter any time as perpetual lease. Thereafter the land was transferred by late Rai Bahadur Hemanta Kumar to late Babu Herambha Kishore Acharya with permission of the then Deputy Commissioner, Khasi Hills.
5. The plaintiff No. 1 and his brother, on the strength of Power of Attorney entered into agreement with late U. Riang Pyrbot for the transfer of the above land for "a sum of Rs. 1,00,000/- which amount was received in fully by plaintiff No. 1 and the said Riang Pyrbot obtained a receipt of Rs. 1,00,000/- from the plaintiff No. 1 in presence of proforma defendant No. 3, the elder sister of defendant No. 2 who gave Patta to said Riang Pyrbot, though patta was earlier given by late Massar for the same plot of land.
6. Present petitioner is the daughter of defendant No. 1 in the T.S. No. 9(T)/76 who dies during the pendency of the appeal before the Addl. Deputy Commissioner, Shillong. The plaintiff No. 2 is the youngest sister of late U. Riang Pyrbot and after his death the suit properties were given to plaintiff No. 2 as per family arrangement. In, 1975, plaintiff No. 2 and her son in law U.B. Shallam and other family members went to the suit land and on enquiries, learnt that a new house was built on the said land and when plaintiff No. 2 approached defendant No. 1 she challenged her right. Hence the suit.
7. Petitioner's grand mother late Ka Warila Kharkrang, as claimed, was the owner of a house and landed property situated at lower Mawprem, Shillong. On her death the landed property devolved on late Mrs. T. Kharkrang, who is the youngest daughter (mother of the substituted revision petitioner was entitled to entire proberty according to Khasi custom. The proforma opposite party No. 3 is the elder daughter of the said late Werila Kharkrang and the elder sister of defendant No. 2. The mother of defendant Nos. 2 and 3 died when they were minors. Management of the properties fell on their maternal aunt according to the custom.
8. The land in question was all along in the possession of late Mrs. T. Kharkrang and after her attaining majority she constructed a small house near the residence of her Chowkidar (P.W. 2), opposite party No. 8. The said T. Kharkrang had also granted settlement of operation of the said land to opposite parties 4, 5, 6 and 7 and some other persons who had constructed their respective houses on the land settled with them.
9. D.W. 2 who contested the suit as main defendant denied the status of plaintiff No. 1 as owner of the land and his right to sell the properties to plaintiff No. 2 was challenged on the ground that the said late Mohan Massar had no loaus stanat to sell the land. Therefore the alleged initial sale by Pad am Singh Thapa had no lacus standi to sale without the consent of late Werila Kharkrang who is the actual original owner of the land. The suit was filed before the Assistant to Deputy Commissioner as aforesaid and the same was dismissed. On appeal the Addl. Deputy Commissioner, Shillong set aside the judgment and order of the Assistant to Deputy Commissioner.
10. This being a Civil Revision, under Rule 36 of the Rules for Administration of Justice in Khasi and Jaintia Hills, this Court proposes to proceed with its finding on the materials on record both oral and documentary to find out whether there is any material irregularity and illegality in deciding the case by the Courts below and/or whether the revision petition has been prejudiced due to non-appreciation of the evidence on records in proper perspective and further the aspect of customary law involved in this case also need to be examined as to whether the violation of customary law would make the original sale void.
11. As many as ten issues were framed by the Trial Court and for judicial review, the issue Nos. 2, 4, 5, 8 and 9 are found necessary.
12. The locus standi of the opposite party No. 1 plaintiff, to sell the land in dispute to opposite party No. 2 (plaintiff No. 2) has been challenged by the petitioner (Defendant No. 2) on the ground that the original owner of the disputed land was not late Massar her father, under whom said Padam Thapa was possessing the land and sold the same to late Babu Hemanta Kumar Raha. Late Massar granted Patta to said late Raha on such sale and a registered sale deed was executed on 28.3.1917 and the same was accorded by the then Deputy Commissioner. In 1928 this land was sold again to late Herambu Kishore Acharya by registered sale deed on 12.11.78 (Ext. 16). Legal heirs of late Acharya executed General Power of Attorney in favour of opposite party No. 1 (plaintiff No. 1) and to his brother authorising jointly and severally to sell, mortgage, lease the said property situated at Mawprem. The lower Appellate Court accepted the legality of the General Power of Attorney after accepting the affidavit of the daughter of the executor who relinquished her rights and interest over the suit land. In view of the matter, opposite party's right to sale is accepted by the lower Appellate Court.
The Khasis being matrilineal society, the customary law followed in succession matter is that succession is traced through the females, usually the youngest daughter (Ka Khadduh). in the suit (defendant No. 3) proforma opposite party No. 3 disputed the locus standi of petitioner (DW 2) as the Ka Khadduh of the family and her claim of ownership on the suit property. But Courts below found claim of petitioner as the inheritor of Kharkrang's property, being the youngest daughter (Ka Khadduh) of the family. Concurrent finding is that the defendant No. 2 is the real owner of Ka Kharkrang property left by Ka Werila, but the property in dispute has not been found in her possession as owner. Evidence on record shows that the property was sold on 28.3.1917. Ka Werila Kharkrang died in 1917 and her husband late Massar died in 1941. There is no evidence no record to show that Ka Werila died before or after the sale of the said land to late Raha on 28.3.1917. The custom prevalent in this matrilineal society is that though the property is in the custody of the matrilineal head Ka Khadduh the male members of the family lookafter the property as manager. Being the husband of Ka Werlia, Massar issued Patta to late Raha though the propriety to issue Patta was in dispute. Lower Appellate Court found late Mussar as not the owner of the disputed laud but as the sale was executed by registered sale as far back as 1917, its legality was accepted. Evidently the same land was transferred to late Babu H. Acharyya in 1928 and the same plot was entered in Municipal holding as Holding No. 158 in the name of late Acharyya (Ext. 18/1, 18/2). Evidence on record (evidence of P.W. 5) also shows that it was on record that in 1978, the name of defendant No. 1 (petitioner) has been entered in place of late Acharya and on the basis of local inspection made by Court, the holding No. 158 found related to the suit land and holding No. 159(B) stood in the name of defendant No. 4 Donbor Jyrwa which is contiguous to the suit land. Evidence on record further shows that this holding No. 158 is a separate independent holding contiguous to holding No. 159(B) and is identifiable with its boundaries as given in the plaint.
14. Petitioner's claim over the disputed land when examined from the above materials on record found to be not sustainable. There is no material on record to show that after the death of Ka Werila land was managed by any male member of the maternal side. Averments in the written statement that land was looked after by maternal aunt have not been established by any evidence. The land in dispute, is Ri Kinti land but there is no evidence to establish that the land in dispute was not self acquired land of late Massar. As it appears Court presumed that land in dispute was Ka Werila's land and late Massar has no locus standi to sale the same which is not the accepted position in the Khasi son. The status of the father/husband in a Khasi family cannot be compared with an outsider, having no say in his wife's family. He has a undisputable status in his family and always near at hand to be philosopher, guide and Counsellor. In that view, the right of late Massar to dispose of his wife's property on her behalf cannot be disputed, as no tenable evidence could be proved to take a negative decision against late Massar's status to negotiate his wife's puberty. The property in dispute was transferred to late Raha in 1917 when the defendant No. 1 was an infant and her elder sister, who allegedly issued Patta and collected rent from the property of Ka Werila, was 3 years old. Property sold in 1917 by Massar can be presumed to be a legal sale with consent of his wife in his managerial authority. In that view of the matter the right of the opposite party No. 1 to sale the property is held to be legal on the strength of the General Power of Attorney. The disputed property is already identifiable as the holding No. 158 under the Municipality. However, defendant No. 1 claim over the other land except holding No. 158 is maintainable and her transfer by lease or sale is sustainable as the owner of the property (Ka Khadduh), Proforma defendant No, 3 cannot issue Patta in any other proof when the petitioner's mother (defendant No. 2) was in custody of Werila's property as the Ka Khadduh of the property left by their ancestor. In that view of the matter proforma opposite party's claim on the property of petitioner cannot be an issue for decision in the suit.
15. In view of my above discussion I found the finding of the lower Appellate Court has been arrived after proper appreciation of evidence. Therefore, I find no material on record as well as under the law to interfere with the decision of the Court below.
In the result the revision is dismissed.