Gauhati High Court
Meraj Ali 13 Ors vs Md. Kamal Pasha & 3 Ors on 5 December, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
R.S.A. NO. 161 OF 2011
Meraj Ali & others ... Appellants
-Versus-
Md. Kamal Pasha and others ... Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the appellants : Mr. T.J. Mahanta, Senior Adv., Ms A. Saikia, Adv.
For the respondents : Mr. AR Sikdar, Adv
Date of hearing : 02.11.2017.
Date of judgment : 05.12.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. T.J. Mahanta, the learned Senior Counsel, assisted by Ms. A. Saikia, the learned counsel appearing for the appellant and Mr. A.R. Sikdar, the learned Counsel appearing for the respondent.
2) This second appeal under Section 100 CPC is directed against the first appellate judgment and decree dated 18.08.2010, RSA No.161/2011 Page 1 of 12 passed by the learned Civil Judge No.2, Kamrup, Guwahati, in Title Appeal No. 18/2008, by which the judgment and decree dated 22.04.2008, passed in the original suit i.e. Title Suit No. 712/2006 (old TS 284/2000) by the learned Munsiff No.1, Kamrup, Guwahati, was upheld.
3) This appeal was admitted by order dated 03.03.2014 on the following substantial questions of law:-
1. Whether the suit is barred by limitation?
2. Whether issuance of a new patta in favour of one co-sharer on the basis of actual physical possession and to the exclusion of other legal heirs of the original pattadar of unpartitioned temporarily settled estate can confer exclusive title to the new pattadar?
3. Whether right of heritability and transferability of a temporarily settled estate is confined to the period of the lease mentioned in the patta?
4) The appellants are the plaintiffs in Title Suit No. 712/2006 (old TS 284/2000). There were 14 plaintiffs and 5 defendants in the suit. At the outset is must be stated here that some names including that of Umes Ali (predecessor-in- interest of the parties) as well as other parties like Aiyesha Begum, Gubnara Begum, are found to have been spelt differently in some places in the plaint, written statement and judgment by the learned courts below. Hence, to avoid any confusion, the said names are spelt as Umes Ali, Aiyesha Begum and Gubnara Begum herein.
5) The case projected in the plaint is as follows:-
RSA No.161/2011 Page 2 of 12a. That Late Umes Ali was the full and absolute owner of a plot of land measuring about 39 bigha- 3 katha- 10 lecha (bigha, katha and lecha is hereinafter referred to as "B" "K" "L" in short), covered by Dag Nos. 90, 110, 121, 382, 126, 128/365, 132/166, and 134 of K.P. Patta No. 5 of Village-
Bagharbari, Mouza- Beltola, in the district of Kamrup, which is described in Schedule-A of the plaint, and 2K-14L, covered by Dag No. 125 of K.P. Patta No. 38 of Village- Bagharbari, Mouza- Beltola, in the district of Kamrup, which is described in Schedule-C of the plaint.
b. It was projected that Late Umes Ali, the original landowner had died in the year 1969 leaving behind (i) Kamal Pasha, son (defendant No.1), (ii) Aiyesha Begum, daughter (predecessor in interest of plaintiffs No. 9 to 13), (iii) Musstt. Rukia Begum, daughter (defendant No.2), (iv) Musstt. Gulsanara Begum, daughter (defendant No.3), (v) Musstt. Marina Begum, daughter (predecessor in interest of plaintiffs No. 1 to 8), (vi) Musstt. Rejia Begum, daughter (plaintiff No.14), (vii) Musstt. Gubnara Begum, daughter (defendant No.4), and (viii) Musstt. Nurjahan Begum, daughter (defendant No.5).
c. After the death of Md. Umes Ali, the properties left behind had devolved on his heirs as per Mohammedan law of inheritance. It was projected that defendant No.5 being his wife was entitled to 4B- 4K- 16L in Schedule-A land and 61/2L in Schedule-C land. The defendant No.1 being the only son was entitled to 17B-1K-16L land in Schedule-A and 1.4L in Schedule-C land. The daughters were entitled to the RSA No.161/2011 Page 3 of 12 remaining 17B-1K-16L land in Schedule-A and 1.4L land in Schedule-C. d. It was projected that after the death of Md. Umes Ali, the land was not partitioned and divided amongst his heirs and legal representatives. However, the daughters were given 1B land each, except defendant No.2, who along with her husband Abdul Aziz were given 6B-4K-13L out of land described in Schedule-A. It was projected that each of the daughters of Late Umes Ali were entitled to 2B-4K-8L in Schedule-A land.
e. It was also projected that taking advantage of mutation of the land in his favour, the defendant No.1 sold some land in Schedule-A to different persons. The plaintiffs had claimed that they requested the defendant No.1 to give them their land in Schedule-A and Schedule-C, but the defendants had failed and neglected to do so. It was projected that the defendants were trying to dispose of 12B vacant land in Schedule-A along with Schedule-B land.
f. By alleging that the cause of action for the suit arose on 05.06.1999, 01.02.2000, 05.05.2000 and on subsequent dates when the defendants denied the title of the plaintiffs and failed to deliver possession of the land after partition, the suit was filed claiming the following reliefs; viz., (i) decree declaring right, title and interest in respect of Schedule-A and Schedule-C land in favour of the plaintiffs;
(ii) decree declaring that the plaintiffs are entitled to 17B- 1K-16L of Schedule-A land and 1.4L in Schedule-C land; (iii) preliminary decree for partition of land of Schedule-B and Schedule-C be passed; (iv) final decree for partition be RSA No.161/2011 Page 4 of 12 passed; (v) decree for permanent injunction against the defendants restraining from alienating and/or changing the nature and character of Schedule-B and C land; (vi) for ad- interim injunction; (vii) cost; and (viii) any other reliefs.
6) The defendants had contested the suit by filing their joint written statement. While admitting that Late Umes Ali was the owner of land of K.P. Patta No. 5 and 38, it was projected that there was no portion of land of Patta No. 5 as shown in para-1 of the plaint. It was stated that Late Umes Ali died in the year 1958 and after his death, by way of amicable partition, all his heirs had got the land to which they were respectively entitled to, and that all of them had accepted their respective shares of land. Thereafter, by virtue of partition cases, separate pattas were issued to each of the legal heirs of Late Umes Ali, except joint patta in respect of the defendants No.1 and 5. It was stated that during his lifetime, Late Umes Ali had gifted land measuring 5B-4K-14L in Dag No.110 of K.P. Patta No. 5 of Village- Bagharbari, Mouza- Beltola to Md. Abdul Aziz, his son-in-law, whose name was mutated in revenue record vide order dated 09.01.1970 passed in Mutation Case No. 442/1969-70.
7) The further stand of the defendants was that after the entry of the names of all the legal heirs of Late Umes Ali on 01.11.1973, the daughters of Late Umes Ali separated their shares by obtaining separate pattas, which has been recorded in the jamabandi of K.P. Patta No.5 vide remark No. "Unga" to "Jha" dated 24.02.1977 in the name of Gulsanara Begum (Defendant No.3), Merina Begum (predecessor-in-interest of plaintiffs No.1 to 8), Gubnara Begum (defendant No.4), Rejia Begum (Plaintiff No.14), Aiyesha Begum RSA No.161/2011 Page 5 of 12 (predecessor- in- interest of Plaintiffs No.9 to 13), and vide entry "Niya" dated 24.02.1977, the name of Abdul Aziz and Rejia Begum in respect of 6B-4K-13L including the gifted land and out of the remaining land remained in patta No. 5 in the names of defendants No.1 to 5 as per remark "Ta" and a small portion of land measuring 3K-15L was acquired by the State Govt. for the purpose of road for army, owing to which the shares of the legal heirs of Late Umes Ali had been reduced. Another plot of land measuring 3B-3K in Dag No. 134 had been gifted by Defendant No.5 through 10 Registered Gift Deeds to her grand children, who are sons and daughters of defendant No.1. It was stated that whatever land was sold by the defendants No.1 and 5, the same was from their respective shares and the plaintiffs had no share in those land after partition, as such, there was no question for the plaintiff to make any request to the defendants No.1 and 5 as claimed in the plaint. It was projected that the plaintiffs had no share of land left after amicable partition and separation of the respective pattas to each of such shares. Hence, it was stated that the plaintiffs are not entitled to any relief in the suit.
8) On the basis of the pleadings of the parties, the following issues were framed for trial :-
1. Whether there is any cause of action for the suit?
2. Whether the suit is maintainable in its present form?
3. Whether the suit is barred by limitation?
4. Whether the plaintiff's have right, title interest over the suit land?
5. Whether the plaintiffs are entitled to partition in view of the fact that a written mutual partition is made between the parties?RSA No.161/2011 Page 6 of 12
6. Whether the plaintiffs are entitled to the relief as prayed for?
7. To what reliefs the parties are entitled?
9) In support of their respective cases, while the plaintiff's side had examined plaintiff No.1 as their only witness, the defendants' side had examined 2 witnesses. The plaintiff's exhibits are - (i) Certified copy of Jamabandi of K.P. Patta No.5 (Ext.1), (ii) Certified copy of Jamabandi of K.P. Patta No. 38 (Ext.2), (iii) Certified copy of Jamabandi of K.P. Patta No. 2 (Ext.3), (iv) Certified copy of Jamabandi of K.P. Patta No. 9 (Ext.4). The defendants' exhibits are - (i) Deed of Partition (Ext. Ka), (ii) Land Revenue paid receipt (Ext. Kha), (iii) Certificate by ASO (Ext. Ga), Certificate by ASO (Ext. Gha).
10) Upon perusal of the pleadings and evidence on record, the learned trial court had observed that the plaintiffs did not challenge the land gifted to Abdul Aziz and did not make him a party to the suit and, as such, whether title passed on to Abdul Aziz cannot be questioned now. On the perusal of the Jamabandi (Ext.1), the learned trial court observed that by various orders the names of Ayesha Begum, Rukia Begum, Gulshanara Begum, Marina Begum, Rejia Begum, Gubnara Begum were struck of and separate pattas were issued against their names. The learned trial court by relying on the case of Roshan Singh Vs. Zila Singh, AIR 1966 SC 881, held that the Ext. Ka did not recognize any previous partition and, as such, the same being an unregistered document, was not admissible in evidence. However, as per the entries made in the jamabandi (Ext.1 & 4), it was held that on the principles of balance of probabilities, the plea of the defendants are more probable and the plaintiffs are not entitled to any partition and, RSA No.161/2011 Page 7 of 12 as such, the issue No.5 was decided in the negative by holding that the claim for partition of land described in Schedule-A and C could not be established. In respect of Issue No.3, by appreciating the cross examination of the PW-1, the learned trial court held that the plaintiff was aware of the Ext.1 in the year 1984. It was observed that the PW- 1 could not state in his cross- examination what happened on the dates of cause of action. Hence, the issue No.3 was decided in the affirmative by holding that the suit was filed beyond limitation. As regards issue No.4, it was held that the plaintiffs had acquiesced to the allotment of shares and as per entries made in jamabandi (Ext.4), recording names of Aiyesha Khatun and Rejia Begum as separate pattadars by order dated 16.07.1988, and that such those entries in the jamabandi were allowed to remain in force without any objection. Hence, those orders were held to be impeccable as valid orders and, as such, by deciding the said issue No.4 in the negative, it was held that the plaintiff was not entitled to any relief. As regards issue No.1 and 2, the said issues were decided in the affirmative by holding that there was cause of action for the suit but it could not be enforced in court as such right had become an imperfect right. However, in view of the discussions on issue No. 3 and 5, the issues No. 6 and 7 were decided in the negative and the plaintiffs were not found entitled to any relief. Therefore, the suit was dismissed.
11) The said judgment and decree was assailed by filing appeal, which was numbered as TA No. 18/2008. On appreciating the pleadings and evidence on record, the learned first appellate court had formulated the following point of determination - "Whether the properties of Late Umes Ali were mutually partitioned on 09.05.1973 amongst all the legal heirs." The learned first appellate court held that RSA No.161/2011 Page 8 of 12 Meraj Ali (PW-1) had admitted that his grandfather Late Umes Ali had donated 10 bigha land to Rukia Begum and her husband Abdul Aziz. The said PW-1 had also admitted that there was a partition of the estate left behind by Late Umes Ali. Consequently, it was held that although Ext. Ka was found to be not admissible, but in view of clear admission of partition of the estate of Late Umes Ali on 09.05.1973, the appellants were not entitled to another partition and thus, the said Issues No.4 and 5 were answered in the negative. Similarly, by relying on that part of the evidence of the PW-1, wherein he had admitted that he became aware of the Ext. Ka in the year 1984, the suit was held to be barred by limitation and, as such, the Issue No. 3 was also decided in the negative. Resultantly, the appeal was dismissed.
12) Assailing the concurrent finding of facts, the learned Senior Counsel for the appellant has submitted that under Section 17 of the Registration Act, 1908 the Deed of Partition was required to be compulsorily registered. Therefore, in the present case in hand, as the partition deed gets vitiated by its non- registration, the said partition deed was not admissible and the same could not have been read in evidence. However, by ignoring the said provisions of law, both the learned courts below had erred in law by referring to partition, notwithstanding that the alleged partition was no value and, as such the right of the appellant/ plaintiff to seek partition would survive and it cannot extinguished. It is submitted that the learned courts below had committed grave illegality in not allowing partition despite concurrent finding of fact that the partition deed was not admissible due to defect of non- registration. It is further submitted that the learned trial court had incorrectly referred to the provisions of Article 58 of the Schedule appended to the Limitation Act, 1963 as the RSA No.161/2011 Page 9 of 12 provisions of Article 110 of the Schedule to the Limitation Act, 1963 would apply and, as such, once the appellants/ plaintiffs claimed that they were the shareholders in respect of the suit land and asserted that they were seeking enforcement of their right to partition, the burden would shift on the respondents to claim adverse possession, assuming that such a right existed at all.
13) Per contra, the learned Counsel for the respondents has referred to the decision by both the learned courts below and submits that the finding of facts by both the learned courts below were concurrent and therefore, the said findings are not liable to be disturbed. It is submitted that if the documents exhibited by the appellants/ plaintiffs is perused, then it can be seen that the Certified copy of Ext.1 was issued on 19.07.1984, certified copy of Ext.2 was issued on 02.11.1991, certified copy of Ext.3 was issued on 27.04.1985 and certified copy of Ext.4 was issued on 29.06.1992 and, as such, there can be no doubt that the plaintiffs were aware of the amicable partition of the suit land in the year 1984-85 and the suit filed on 29.09.2000 was filed beyond the period of limitation prescribed under Article 58 and 110 of the Schedule of the Limitation Act, 1963.
14) Considered the submissions made by the learned counsels for both sides and also perused the lower court records.
15) As regards the substantial question of law No.1, as to whether the suit is barred by limitation, it is seen that both the learned courts below have held that the suit is barred by limitation. A perusal of entries made in the jamabandi (Ext.1) shows that it covers the land described in Schedule-A. The certified copy of the jamabandi (Ext.1) was issued on 19.09.1984 and jamabandi (Ext.3) was issued on RSA No.161/2011 Page 10 of 12 27.04.1985, as such, the suit filed on 29.09.2000 is barred by limitation both under Article 58 and Article 110 of the Schedule of the Limitation Act, 1963. On the other hand, the PW-1 i.e., Meraj Ali had admitted that his grandfather Late Umes Ali had donated 10-B land to Rukia Begum and her husband Abdul Aziz and he had also admitted that there was a partition of the estate left behind by Late Umes Ali. Hence, when the alienation of land by Late Umes Ali during his lifetime to his daughter and her husband is admitted by PW-1, in the absence of proof of the specific date of knowledge, the plaintiffs must be deemed to be aware of gift of land by Late Umes Ali, the predecessor-in- interest of the plaintiff on and from the date of such alienation. It must be mentioned that the basic requirement of gift under the Principles of Mohammedan Law are that there must be relinquishment by donor of ownership and dominion (S.148) and the other essentials of a valid gift are - (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the done, and (3) delivery of possession of the subject of the gift by the donor to the done and if such conditions are complied with, the gift is complete (S.149). Hence, as the PW-1 while proving jamabandi (Ext.1 & 3), had admitted his knowledge about the said document as in the year 1984-85 as already indicated above, the suit is ex- facie barred by limitation. Hence, the substantial question of law No.1 is answered in the affirmative by holding that the suit is barred by limitation and, as such, the concurrent finding by both the learned courts below is liable to be affirmed.
16) In that view of the matter, nothing survives for decision in respect of the substantial questions of law No.2 and 3, as it would be a merely an academic exercise. In the opinion of this Court, even if RSA No.161/2011 Page 11 of 12 the said two substantial questions of law No.2 and 3 are decided in favour of the appellant, yet, in view of the decision in respect of substantial question of law No.1, whereby it has been held that the suit filed by the appellant/ plaintiff is barred by limitation, the appellant would not be entitled to any relief whatsoever. Therefore, the said two substantial questions of law No.2 and 3 on which this appeal was admitted have been rendered infructuous and need not be answered in the present appeal.
17) As a result, this appeal fails and, as such, the appeal stands dismissed with cost. Resultantly, the judgment and decree passed by both the learned courts below stands affirmed.
18) Decree be prepared accordingly.
19) Send back the LCR.
JUDGE
MKS
RSA No.161/2011 Page 12 of 12