Gauhati High Court
On The Death Of Mokdam Ali Khan His Legal ... vs Md. Abdur Rashid Mia on 7 February, 2017
Equivalent citations: AIR 2017 (NOC) 323 (GAU.)
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
RSA 229/2005
1. Mr. Mokdam Ali Khan, son of Late Sahadat Ali Khan of
village- Kamandanga, PO- Tamarhat, Kokrajhar and
others.
...........Appellants/ Defendants
-Versus -
1. Md. Abdur Rashid Mia, son of late Oahad Ali Mia, resident
of village- Kamadanga, PO- Tamarhat, District-
Kokrajhar.
..........R espondent/ Plaintiff
For the Appellant : Ms. B. Sarma Adv.
For the Respondents : Mr. A. A. R. Karim, Adv
BEFORE
THE HON'BLE MR. JUSTICE SUMAN SHYAM
Date of hearing and judgement : 07/02/2017
JUDGEMENT AND ORDER (ORAL)
Heard Ms. B. Sarma, learned counsel for the appellant. Also heard Mr. A. A. R. Karim, learned counsel appearing for the respondent.
2. This second appeal is directed against the judgement and decree of reversal dated 21/07/2005 passed by the Court of Learned Civil Judge (Senior Division), Kokrajhar in Title Appeal No. 5/2004, allowing the appeal filed by the respondent by reversing the judgement and decree of dismissal dated 30/09/2004 passed by the RSA 229/2005- oral dt. 7-2-17 Page 1 of 7 learned Civil Judge (Junior Division), Kokrajhar in Title Suit No. 60/99, dismissing the suit filed by the respondent/plaintiff.
3. The case of the plaintiff, as projected in the plaint, is that his father late Oahad Ali was the absolute owner in possession of the suit land measuring 1 Bigha which forms part of the land measuring 3 Bigha 3 Kathas covered by Dag No. 174 of Patta No. 12, situated at Village- Kamandanga Kuti, Gossaigaon Revenue Circle in the district of Kokrajhar, which is the suit land. The name of the plaintiff's father was also mutated in respect of the suit land and he has been possessing the same by paying the land revenue. After the death of his father, the plaintiff being his legal heir had inherited the suit land and since then, has been enjoying the peaceful possession of the same by cultivating the land and by growing bamboo and other trees thereupon. According to the plaintiff, the defendant No.1 is his western boundary man and while constructing a house upon the said land, the defendant No. 1 had threatened to dispossess the plaintiff in the month of April, 1997, as a result of which a proceeding under Section 107/145 Cr.P.C. had to be initiated by the plaintiff before the Court of Executive Magistrate, Gossaigaon, who had finally passed an order dated 24/09/1998 directing the parties to seek relief before the Civil Court. In view of the order passed by the Executive Magistrate, the plaintiff had instituted the Title Suit bearing No. 60/99 seeking a decree declaring his right, title and interest and for confirmation of possession over the suit land.
4. On receipt of summons in connection with the aforementioned Title Suit, the defendants had appeared and contested the same by filing joint written statement. Besides questioning the maintainability of the suit by raising various technical plea, the defendants have denied the averments made in the plaint. In their written statement, the defendants have also categorically pleaded that the suit land forms part of a larger plot of land measuring 3 Bighas 3 Kathas covered by Dag No.174/175, Patta No. 12, RSA 229/2005- oral dt. 7-2-17 Page 2 of 7 originally belonging to late Sahadat Ali Khan i.e. the father of the defendants. Sahadat Ali Khan during his life time i.e. about 40-45 years back, had allowed the plaintiff's father to possess the said land but the possession was again taken back after about 3 years and since then, Sahadat Ali Khan has been possessing and occupying the land as its registered owner until his death. Thereafter, his son Mokdam Ali Khan had been continuing in possession of the entire area of land measuring 3 Bighas 3 Kathas by constructing dwelling house therein. According to the defendants, the plaintiff's father had managed to get his name recorded in the Jamabandi by concealing material facts and also by misleading the Revenue Authorities and it was on account of sheer mistake that the defendants could not take proper steps for cancellation of the mutation granted in favour of the father of the plaintiff. The defendants had also questioned the maintainability of the suit on the ground of non-joinder of the sisters of the plaintiff.
5. The learned Trial Court had framed the following issues :-
"1. Whether there is any cause of action of the present suit?
2. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?
3. Whether the plaintiff has got right, title and interest on the suit l and?
4. Whether the plaintiff is entitle for the decree as prayed for in the present suit?
5. To what relief/reliefs parties are entitle to?"
6. During trial, both parties adduced evidence in support of their respective cases. The plaintiff had produced a certified copy of the Jamabandi (Ext-1) whereinthe name of his father was recorded as one of the pattadar along with the defendants. That apart, the plaintiff had also produced Revenue Clearance Certificate (Ext-2) as well as certified copy of the order sheet in case No. 1(m)/98 registered under Section 107/145 RSA 229/2005- oral dt. 7-2-17 Page 3 of 7 of the Cr.P.C. (Ext-3) in support of the claim that he is the rightful owner in possession of the suit land.
7. Opposing the claim made by the plaintiff, the defendants had produced Ext-A certified copy of the Jamabandi of the entire land covered by Patta No. 12 besides other documentary evidence to show that the land originally belonged to their father Sahadat Ali Khan and the claim of title and ownership raised by the plaintiff in the suit was totally baseless.
8. After hearing the learned counsel for the parties and on consideration of materials available on record, the learned trial Court while discussing the issue no. 2, was of the view that the suit filed by the plaintiff was bad for non-joinder of two of his sisters and also the legal heirs of the third sister, who had already expired, inasmuch as, they were necessary parties to the proceeding. The Trial Court had also decided the issue no. 3 against the plaintiff/respondent by holding that the plaintiff has failed to produce any document of title in support of his case and, therefore, he had failed to discharge the burden of proof, which was casts on the plaintiff to establish his title and possession over the suit land.
9. Being aggrieved by the judgement and decree dated 30/09/2004 passed by the learned Trial Court, the plaintiff as appellant, has preferred Title Appeal No. 5/2004, which was allowed by the First Appellate Court by the impugned judgement and decree dated 21/07/2005 by inter-alia holding that the copy of Jamabandi produced by the plaintiff would be a valid basis to declare his title and possession over the suit land. Aggrieved by the said judgement and decree dated 21/07/2005, the present appeal has been preferred by the defendants.
10. The second appeal was admitted by this Court to be heard on the following substantial questions of law :-
"1. Whether the impugned judgement of the learned Appellate Court suffers from illegality and/irregularity due to finding of both the Courts RSA 229/2005- oral dt. 7-2-17 Page 4 of 7 below to the effect that the suit was bad or non-joinder of necessary parties?
2. Whether the findings of the learned Appellate Court are based on no evidence?"
11. Ms. B. Sarma, learned counsel for the appellants has argued that the plaintiff has failed to produce any document of title in support of his claim and, therefore, the learned Trial Court had rightly dismissed the suit on such count. According to Ms. Sarma, the learned Lower Appellate Court had committed grave error in law in reversing the decree of the Trial Court and declaring the title of the plaintiff merely on the basis of Jamabandi by ignoring the settled law that mutation entries cannot be sole the basis for declaration of title over immovable property. She further submits that since the plaintiff was seeking declaration of title over the ancestral land, hence, the other legal heirs of Oahad Ali were also necessary parties to the proceeding and, therefore, the findings recorded by the Learned Lower Appellate Court is regards issue No. 2 is also not sustainable in the eye of law.
12. Mr. Karim, on the other hand submits that the plaintiff has succeeded in bringing sufficient materials on record to show his possession and title over the land since the past several decades and hence, the Learned Lower Appellate Court was justified in decreeing the suit filed by the plaintiff.
13. I have considered the submissions advanced by the learned counsel for both parties and have also perused the materials available on record. A reading of the plaint goes to show that the plaintiff is seeking a declaration of his right, title and interest over the suit land measuring 1 Bigha which he claims to have inherited from his father. The case set out by the plaintiff in the plaint has been categorically denied by the defendants in their written statement and a plea has been taken by the defendants that the original owner of the land is their father Sahadat Ali Khan, who had permitted the plaintiff's father to occupy the land for three years. They have also denied the RSA 229/2005- oral dt. 7-2-17 Page 5 of 7 allegation of illegal dispossession of the plaintiff from the suit land. In the teeth of such pleaded stand of the defendants, it was incumbent upon the plaintiff to lead cogent evidence not only to establish the fact that the father of the plaintiff had acquired clear marketable title over the land but also the fact that the plaintiff had been illegally dispossessed from the suit land by the defendants. However, as has been mentioned above, the plaintiff has failed to adduce any document of title in support of his claim made in the suit nor could he prove that the defendants had dispossessed him from the suit land.
14. In a catena of decisions rendered by the Hon'ble Supreme Court as well as of this Court, it has been held that an order of mutation is not a title document and hence, no title can be declared on the basis of such document. It is no doubt true that the entries made in the Jamabandi, if found to be made properly, cannot be brushed aside while considering the claim of title and that the same must receive due consideration from the Court. However, when there is a serious title dispute over the suit land and the defendants have also produced documentary evidence in the form of Ext. A, B, C and D to show that the name of their ancestor was recorded as Pattadars in respect of the entire plot of land, a heavy burden was cast upon the plaintiff to lead cogent evidence so as to establish his father's title over the land, which burden he has failed to discharge in this case. The title of the plaintiff over the suit land, in my opinion, could not have been declared by the Lower Appellate Court merely on the basis of Jamabandi entry. Therefore, the Lower Appellate Court had committed an error in reversing the decree of the trial Court merely on the ground that the defendants have failed to produce sufficient material to dispute the plaintiff's case.
15. Law is by now firmly settled that the plaintiff must succeed on the strength of his pleaded case and not based on the deficiency in the case of the defendants. A scrutiny of the record reveals that there was no evidence available on record to RSA 229/2005- oral dt. 7-2-17 Page 6 of 7 declare the title of the plaintiff over the suit land. As such, I am of the considered opinion that there was no valid basis of the Lower Appellate Court to reverse the findings recorded by the learned Trial Court as regards issue no.3. The second substantial question of law noted above, is accordingly answered in favour of the appellants and against the respondent.
16. Having answered the second substantial question of law in favour of the appellant, I do not deem it necessary to embark on a detail discussion on the first substantial question of law framed on the point of non-joinder of necessary parties since it has already been held that the plaintiff has failed to establish his case on merit.
17. This second appeal, therefore, succeeds and is hereby allowed. The judgement and decree passed by the Lower Appellate Court is hereby set aside. However, having regard to the facts and circumstances of the case, the parties are left to bear their own cost.
Send back the LCR.
JUDGE Sukhamay RSA 229/2005- oral dt. 7-2-17 Page 7 of 7