Gauhati High Court
Jamser Ali Mandal vs Md. Maksed Ali on 15 December, 2016
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: RSA 25/2007
Jamsher Ali Mandal & another ...... Appellants
-Versus-
Md. Maksed Ali & others ..... Respondents
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
For the Appellants : Mr. N Dhar
Advocate
For the Respondents : Mr. N Haque
Advocate
Date of Hearing : 15.12.2016
Date of delivery of
Judgment and Order : 15.12.2016
JUDGMENT AND ORDER (ORAL)
Heard Mr. N Dhar, learned counsel appearing on behalf of the appellants/ defendant and Mr. N Haque, learned counsel appearing on behalf of the respondents / plaintiff.
2. Brief facts of the case of the plaintiff/ respondents is that a plot of land measuring 5 B 1 K 6 Ls covered by annual patta under Dag Nos. 262, 264 and 265 described in Schedule A of the plaint out of which 2 B 2 K 10 Ls described in Page 1 of 15 RSA 25/2007 Schedule B of the plaint is the suit land. The land described in Schedule A of the plaint belonged to the plaintiff and the pro-forma defendants and another brother Nur Mohammad and all the three brothers enjoyed the land by constructing their residential houses. The land was mutated in their names. Nur Mohammad, the brother of the plaintiff and the proforma defendant died three years ago without leaving any legal heirs except the plaintiff and proforma defendant, Md. Ahad Bux. After the death of Nur Mohammad, the plaintiff and the proforma defendant got right, title and interest and possession over the land. On 31.03.1981 and 05.02.1996 the defendants by misleading the Revenue Authority mutated the B Schedule land measuring 2B 2K 10Ls in their names. The defendant/ appellants are not related to the plaintiff/ respondents and the proforma defendant Md. Ahad Bux. On 15.11.1993 the defendant/ appellants forcefully dispossessed the plaintiff/ respondents and the proforma defendant and thereafter they requested the defendants to deliver the vacant possession of the suit land. But on 31.08.1996, the defendants expressed that they would never vacate the suit land. Hence, the plaintiff/ respondents preferred the suit for declaration of their right, title and interest and to deliver the khas possession of the land to them by evicting the defendant/ appellants there-from and also to cancel the illegal mutation standing in the names of the defendant/ appellants and to issue precept to correct the revenue records.
3. The defendant/ appellants contested the suit by filing their joint written statement wherein it was pleaded that there was no cause of action for the suit which is barred by the law of limitation and the suit is bad for non-joinder of necessary parties and accordingly denied the averments made by the plaintiff Page 2 of 15 RSA 25/2007 respondents in the plaint. The case of the defendant appellants is that the land formerly belonged to Nur Mohammad and one Karim Bux who were the brothers as well as the pattadars of the suit land. Nur Mohammad left his share from A Schedule land to his brother Karim Bux and went to Bangladesh. The pattadar Karim Bux relinquished his right over the suit land putting signatures in the Chitha Book of the Lat Mandal. Accordingly, the suit land was mutated in the name of Jamsher Ali, the defendant appellant No. 1. On 05.02.1996, the Revenue Authority of Barpeta allowed mutation of the suit land in place of Nur Mohammad in the name of Chand Mia (the defendant No. 2), son of defendant No. 1, Jamsher Ali. Though the defendant appellants have obtained the mutation irregularly, yet they are recognised as pattadar of the suit land by the Revenue Department at present and as such the defendant appellants became the settlement holder other than the land holder. The right, title and interest and occupation of the defendant appellants accrued over the suit land as they are paying the land revenue of the suit land. the plaintiff respondents are not in possession over the suit land and the suit land is annual patta land. Accordingly, the defendant appellants cannot claim any right over it as because the Government of Assam is the real owner of the suit land and as such the defendant appellants prayed to dismiss the suit of the plaintiffs.
4. On the pleadings of both the parties, the learned trial court framed the following 10 (ten) issues:-
1. Whether there is any cause of action?
2. Whether the plaintiffs have right, title and interest in the Schedule A land?
3. Whether the plaintiffs had disposed from the Schedule B land by the defendants on 15/11/93?Page 3 of 15 RSA 25/2007
4. Whether the plaintiff is entitled to have decree of Khas possession by evicting the defendants from the B Schedule land?
5. Whether the plaintiff is entitled for a decree of permanent injunction?
6. Whether the plaintiff is entitled for a decree of precept?
7. Whether the suit land was transferred by Karim Bax in favour of defendant No. 1 and the said Karim Box allowed mutation in the name of defendant No. 1?
8. Whether the plaintiff is entitled for a decree to cancel the mutation passed in favour of defendants No. 1 and 2?
9. Whether the plaintiff is entitled for a decree as prayed for?
10. To what other relief or reliefs the plaintiff is entitled?
5. Both the parties adduced their oral and documentary piece of evidence before the learned trial court. The plaintiff respondents exhibited Exhibit-1 (annual Khiraj patta) and the defendant appellants exhibited Exhibit-Ka (certified copy of Chitha of Dags No. 262, 264 and 265). The learned trial court after hearing the parties to the suit decreed the suit of the plaintiff respondents and granted the relief/reliefs as prayed for in the plaint.
6. Being aggrieved by the judgment and decree passed by the learned trial court in Title Suit No. 105/1996, the present defendant appellants preferred Title Appeal No. 9/2006 before the learned Civil Judge, Barpeta. The learned first appellate court after hearing the parties vide judgment and decree dated 09.08.2006 dismissed the appeal upholding the judgment and decree passed by the learned trial court as referred to above.
7. The said judgment and decree is impugned in the present second appeal which was admitted on 16.03.2007 on the following substantial questions of law:-
(1) Whether the impugned judgment and decree passed by the learned court below decreeing the suit filed by the Page 4 of 15 RSA 25/2007 plaintiffs ignoring the evidence of the plaintiff witness in their cross examination on the basis of weaknesses of the defendants witnesses are perverse or not?
(2) Whether the suit is barred by limitation?
8. Mr. N Dhar, the learned counsel for the appellants, submits that there arose absolutely no cause of action in the suit filed by the present plaintiff respondents. There are variations in the evidence of the plaintiffs' witnesses, inasmuch as, the witnesses under no circumstances had deposed that the plaintiff respondents were dispossessed from the suit land on 15.11.1993. Rather, the plaintiff (PW 1) has admitted that the defendant appellants had been possessing the suit land since past 20/22 years from the date of his deposition. Mr. Dhar further submits that the evidence on affidavit of PW 1 who is the son of the original plaintiff, namely, Karim Bux, was submitted on 19.12.2003 and if it is considered that the defendant appellants had been possessing the suit land for the past 20/22 years, then the same would show that the defendant appellants had been possessing the suit land since the year 1981 and/or 1983. Under no circumstances the PW 1 deposed in his cross examination that they were dispossessed on 15.11.1993. As such, submits Mr. Dhar that the suit is also barred by law of limitation. He also submits that PW 3, Md. Kuddus Ali in his evidence on affidavit which was submitted on 19.12.2003 and cross examination deposed that the defendant appellants were possessing the suit land for the past 12/13 years. Mr. Dhar also submits that the learned first appellate court while passing the impugned judgment relied heavily on the evidence of the defendant side without even discussing the evidence on record of the plaintiff side. As such, Page 5 of 15 RSA 25/2007 the first appellate court has failed to appreciate the evidence on record in the proper perspective and wrongly shifted the burden of proof in clear violation of the law holding the field to that effect. As such, Mr. Dhar submits that the judgment passed by the learned first appellate court is perverse and as such the same is liable to be set aside. To buttress the said argument, Mr. Dhar, learned counsel for the appellants, has relied on the following judgments:-
(A) Relying on the judgment passed in Ram Das v. Salim Ahmed and another reported in (1998) 9 SCC 719, Mr. Dhar, learned counsel for the appellants, took this court to paragraph 4 of the aforesaid judgment which is reproduced herein below:-
"4. It, however, appears to us that although the High Court indicated in the impugned judgment that the defendant's claim of easement right and also the claim of title by way of adverse possession could not be accepted, such weakness in the defendant's title to the suit property cannot establish the plaintiff's title. The High Court has failed to consider the specific finding made by the lower appellate court that the plaintiff had failed to establish the plaintiff's title. It may be noted that the plaintiff was not entitled to get declaration of title if such title could not be established by the plaintiff by leading convincing evidence. The lower appellate court had considered the evidence in detail and by giving cogent reasons had come to the finding that the plaintiff failed to establish the title to the property. Such finding was not reversed by the High Court by indicating any reason for such reversal but indicating the weakness of the defendant's title the plaintiff's suit was decreed. Even if it is assumed that the property in question was bequeathed by Bandi Jaan by executing the Will, the title to the suit property cannot be declared in favour of the plaintiff unless the title of the executor of the Will is fully established. In the aforesaid facts, the impugned judgment of the High Court cannot be sustained and the same is therefore set aside by allowing this appeal. The judgment and decree of the lower appellate court are restored. There will be, however, no order as to costs."Page 6 of 15 RSA 25/2007
(B) Relying on the judgment passed in Santosh Hazari v. Purushottam Tiwari (deceased) by LRS. reported in (2001) 3 SCC 179, Mr. Dhar submits that the Hon'ble Apex Court has held that where in a suit for declaration of title, recovery of possession and permanent injunction, the learned trial court had decreed the suit expressly holding that the defendant had produced no documentary evidence in support of his plea of adverse possession and that the oral evidence adduced by him was conflict in nature and not reliable, the first appellate court was not within the jurisdiction in simply reversing the trial court findings on possession, dispossession and adverse possession without recording findings and reasons.
(C) Relying on the decision passed in Prataprai N. Kothari v. John Braganza reported in (1999) 4 SCC 403, Mr. Dhar took this Court to paragraph 11 of the aforesaid judgment which is quoted herein below for ready reference:-
"11. We have already extracted the summary of conclusions arrived at by the learned Single Judge of the High Court. That shows that his conclusions were vitiated by his view that the appellant had title and possession followed title. It is quite obvious that the learned Single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to the due process of law."
(D) Relying on the decision passed in Yadarao Dajiba Shrawane (Dead) by lrs. v. Nanilal Harakchand Shah (dead) and Page 7 of 15 RSA 25/2007 others reported in (2002) 6 SCC 404, Mr. Dhar took this court to paragraph 31 which is quoted below for ready reference:-
"31. From the discussions in the judgment it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position is well settled that when the judgment of the final court of fact is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal. Since the parties have been in litigating terms for several decades, the records are voluminous. The High Court as it appears from the judgment, has discussed the documentary evidence threadbare in the light of law relating to their admissibility and relevance."
Thus, relying on the aforesaid decisions of the Hon'ble Apex Court, Mr. Dhar submits that the learned first appellate court had completely ignored law holding the field and never even discussed each of the issues so discussed by the trial court and simply in a casual manner upheld the judgment and decree passed by the trial court which is vitiated with perversity. Accordingly, Mr. Dhar submits that this second appeal is to be allowed by answering the substantial questions of law so formulated in the affirmative.
9. Mr. N Haque, learned counsel appearing on behalf of the plaintiff respondents, submits that the learned first appellate court has in the proper perspective appreciated the evidence on record and there being no perversity in the findings given by the learned first appellate court thereby upholding the judgment and decree of the learned trial court. Mr. Haque took this court to the Page 8 of 15 RSA 25/2007 cross examination of PW 1 wherein the said PW 1 in his cross examination has stated that the defendant appellants mutated their names 20/22 years back. The PW 1 also deposed in his cross examination that the defendant appellants were possessing half of Schedule A land since 22/23 years back. The PW 1 further deposed in his cross examination that he lodged a complaint against the mutation of defendant appellants 7/8 years back which was rejected by the Circle Officer. Mr. Haque further took this court to the cross examination of defendant appellant No. 2, namely, Chand Mia wherein he deposed that a portion of the suit land is still under the possession of the plaintiff respondents. the DW 1 also deposed in his cross examination that he does not know as to how his father has got the possession over the suit land measuring 2½ B. He also pointed out that the DW 1 has got his name mutated in place of Nur Bux on the strength he being the nephew of the said Nur Bux. Mr. Haque took this court to paragraph 7 of the written statement of the defendant appellants and submitted that the defence of the defendant appellants is that on 31.03.1981 Karim Bux gave consent in the Chitha to mutate the name of Jamsher Ali (defendant No. 1) in the Chitha and the Revenue Authority accepted the consent of Chitha mutation and mutated the name of defendant No. 1 who was treated as pattadar. The same Revenue Authority also gave mutation to Chand Mia in place of earlier pattadar Nur Mohammad and further submitted that the defendant appellants themselves pleaded that though their mutation was in a irregular manner yet they were treated as pattadar by the Revenue Authority and they became the settlement holder and accordingly the defendants have acquired right of use and occupation and have been possessing the suit land. Mr. Haque further submits that there is Page 9 of 15 RSA 25/2007 no specific averment in the written statement with regard to the flow of title to the defendant appellants and the manner in which the title from Nur Mohammad had passed both to the defendant appellants. Karim Bux, the original plaintiff, claimed his right, title and interest on the basis of an annual patta so far as the suit land is concerned and this fact is admitted by none other than the defendant No. 2 as DW 1 in his evidence. On the other hand, Mr. Haque submits that Karim Bux filed the suit as the sole plaintiff against the present defendant appellants and as such the fact that Karim Bux had relinquished his right, title and interest in favour of the defendant appellant No. 1 is not at all believable. Mr. Haque, therefore, submits that the original plaintiff, Karim Bux, as the rightful owner, has filed the suit to get back the possession through due process of law and accordingly the question of long possession of defendant appellants cannot be pressed into service as the original plaintiff Karim Bux had filed the suit after his mutation petition was rejected. Mr. Haque further submits under no circumstances the suit can be held to be barred by law of limitation, inasmuch as, there is no such pleading on the part of the defendant appellants regarding the date of dispossessing the plaintiff-respondents, the long and continuous possession with hostile attitude rather the defendant appellants pleaded in their written statement that their entry to the suit land was after relinquishment both by Karim Bux and Nur Mohammad. Thus, Mr. Haque submits that the present second appeal is liable to be dismissed.
10. Perused the case records, the evidence on record and the judgment passed by the learned first appellate court as well as by the learned trial court. From the judgment of the first appellate court it is apparent that the point for Page 10 of 15 RSA 25/2007 determination has been correctly recorded, inasmuch as, the first appellate court has decided as to whether any interference was required with regard to the facts and of course the questions of law as held by the learned trial court. After correctly pin pointing the point for determination, the learned first appellate court has entered into the finding on its own and while doing so, it was observed by the said court below that from the documents exhibited that on 31.03.1981 and 05.02.1996, the names of the defendant appellants were mutated on the suit land initially in the name of the defendant appellant No. 1 and as the successor in the name of defendant appellant No. 2, however, the fact that on 15.11.1993, the defendant appellants forcefully dispossessed the plaintiff respondents from the suit land is not supported from the evidence of the plaintiff side. Rather, as already pointed out by Mr. Haque, the learned counsel for the respondents, the PW 1 in his cross examination deposed that the defendant appellants were possessing a portion of the Schedule A land. On the other hand, the DW 1 in his cross examination, as referred earlier, deposed that the plaintiff respondents are have possession on a portion of the suit land. From the plaint it is apparent that the Schedule A land belonged to the plaintiff (Karim Bux) and proforma defendant (Ahad Bux) and they were possessing the same. The land is admittedly covered by annual patta issued against the original plaintiff and his brothers including Nur Mohammad. The fact that Nur Mohammad and Karim Bux were the original pattadar of the suit land is admitted by the defendant appellants. The fact that the plaintiff respondents were dispossessed on 15.11.1993 or any other date has no support from the evidence on record. However, the claim of the plaintiff respondents is on the basis of title i.e. they Page 11 of 15 RSA 25/2007 were the pattadar under annual patta. On the other hand, the claim of the defendant appellants is on the basis of mutation which they on their own had admitted in their written statement is an irregular one. The submission of Mr. Dhar, learned counsel for the appellants, that there is perversity in the finding of the learned first appellate court cannot be ignored at all, inasmuch as, as pointed out by Mr. Dhar, nowhere in the cross examination of the plaintiff witnesses it is deposed that on that particular date, as pleaded in the plaint, the plaintiffs were dispossessed by the defendants. However, the fact that the defendants are possessing the suit land since 20/22 years back from the date of deposition of the PW 1 also shows that their possession on the suit land is long and continuous. On the other hand, the claim of the plaintiff respondents over the suit land is on the basis of a title which is an admitted fact by both the defendant appellants. Under such circumstances, a person who has been in long and continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. The submission of Mr. Dhar that the first appellate court ignored the evidence of the plaintiff side is correct, inasmuch as, the fact of dispossession of the plaintiff respondents by the defendant appellants cannot be held to be true. Accordingly, the substantial question No. 1 is decided in the affirmative.
11. With regard to the next substantial question of law, this court finds that the defendant appellants have admitted that the suit land is covered by an annual patta standing in the name of the plaintiffs (Karim Bux and his brother Nur Mohammad). Further the defendant appellants have taken the defence that their names were mutated at the insistence of the plaintiff (Karim Bux) so far as Page 12 of 15 RSA 25/2007 defendant appellant No. 1 is concerned and the legal heirs of Nur Mohammad so far as defendant appellant No. 2 is concerned. The written statement also never disclosed the specific date on which the defendants entered into the possession of the suit land and there is no whisper with regard to any hostile attitude of the defendant appellants in maintaining their possession over the suit land. It is only on the rejection of the mutation petition of the plaintiff (Karim Bux), the plaintiff was compelled to prefer the suit for declaration of their right, title and interest over the suit land and that too, within a period of 7 years from the date of rejection. Mr. Dhar accordingly submitted that for any declaration the prescribed limitation under Limitation Act under Article 58 is 3 years from the date when the right to sue first accrues and as such the suit is barred by limitation. But the present suit is for declaration of right, title and interest and recovery of possession. The claim of the plaintiff is for recovery of possession on the basis of title and as such the period prescribed under Article 65 is 12 years when the possession of the defendant becomes adverse to the plaintiff. As already pointed out herein above that the defendant appellants are not claiming the possession over the suit land on the basis of adverse possession rather they are claiming the same on the basis of the mutation which was well within the knowledge of the plaintiff (Karim Bux). There is no mention in the written statement of the defendants with regard to the specific date of their possession over the suit land and that too, with adverse intention so far as the interest of the plaintiff respondent is concerned over the suit land. Under such circumstances, the period of 12 years from the date of possession adversely by the defendants over the suit land and/or had become adverse to the interest of the plaintiff respondents Page 13 of 15 RSA 25/2007 cannot be found both from the pleading and from the evidence of the defendant side. This suit which governed by the Article 65 of the Limitation Act, 1963 cannot be held to be barred under the law of limitation and accordingly, the substantial question of law No. 2 is decided against the appellants.
12. This court after having heard the learned counsel of both the sides and on perusal of the case record including the evidence on record finds that though the defendant-appellants have been possessing the suit land but they on their own claimed their title on the basis of mutation that too by Chitha transfer only and on their own they had admitted that their names were mutated irregularly. But so far the plaintiff-respondents (legal heirs of original plaintiff, Karim Bux) are concerned, their source of title is on the basis of settlement of the suit land to Karim Bux under the Annual patta which the defendant appellants had admitted. Thus in the true sense the plaintiff-respondents and their predecessor- in-interest Karim Bux had a lawful title upon the suit land though the appellant defendants had a long continuous possession upon the suit land which they had failed to prove that right for recovery of possession of the plaintiff-respondents over the suit land had been lost owing to ripening of their title by way of adverse possession.
13. Now relying the principles laid down in Prataprai N. Kothari v. Jhon Braganza (supra), this court invoking the jurisdiction under section 103 of the CPC, 1908 and having found that the evidence on record to be sufficient which had already been gone into by this Court and in view of the decision in the second substantial question of law, do hereby hold that the plaintiff-respondents are the true owner of the suit land and hence they are entitled for recovery of Page 14 of 15 RSA 25/2007 khas possession of the suit land by ejecting the appellant-defendants though their possession is long and continuous thereon the suit land. Accordingly, the judgment and decree so passed by the learned courts below are modified with the findings made hereinabove. Accordingly, this second appeal fails. Prepare a decree accordingly.
14. Send down the LCRs.
No costs.
15. Interim order, if any, passed earlier stands vacated.
JUDGE BiswaS Page 15 of 15 RSA 25/2007