Gauhati High Court
Abdul Rahman @ Abdul Rahim vs Mariam Nessa & 19 Ors on 23 November, 2016
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
RSA No. 140/2016
Abdul Rahman @ Abdul Rahim ......Appellant
VERSUS
Mariam Nessa & 19 Ors. ......Respondent
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the Appellant : Mr. M.H. Ahmed, Advocate For the Respondent : None Date of Hearing and Judgment : 23-11-2016 Judgment and Order (Oral) Heard Mr. M.H. Ahmed, learned counsel for the appellant.
2. This second appeal arises out of concurrent judgment and decree dated 05-09-2013 passed by the court of Civil Judge, Nagaon in Title Appeal No. 07/2011 dismissing the appeal and affirming the judgment and decree dated 06-12-2010 passed by the Munsiff No. 1, Nagaon in Title Suit No. 36/1999 dismissing the suit filed by the appellant as plaintiff.
3. Plaintiff's case in brief is that land measuring 2B-2K-17L covered by Dag No. 132 of Patta No. 51 falling in village Patiachapari Kissam, mouza Alitangi originally belong to Dulori Bidhawa (proforma defendant No. 7) who was in possession of the land by paying land revenue.
4. By means of a registered deed of sale bearing No. 1278 dated 21- 06-1982, the plaintiff claims to have purchased the said plot of land from RSA No. 140/2016 Page 1 of 6 the proforma defendant No. 7 where-after he was put in possession in respect of the said plot of land. Besides the above, the plaintiff also claims to have purchased another plot of land measuring 1B-5L covered by Dag No. 67 of Patta No. 51 from its registered owner. The aforementioned land purchased by the plaintiff constitutes the suit land. It is the case of the plaintiff that the defendant Nos. 2 to 6 being the legal heirs of Late Hasan Master does not have any right, title and interest or possession over the suit land but they have forcibly tried to enter the suit land on 20- 01-1999 and thereafter on 21-01-1999, thereby denying the title of the plaintiff over the suit land, as a result of which, the plaintiff was compelled to institute the suit bearing Title Suit No. 36/1999, inter alia, praying for a decree declaring his right, title and interest over the suit land, for confirmation of possession and for other consequential reliefs. According to the plaintiff, he was dispossessed by the defendant No. 1 during the pendency of the suit and the entire land was sold to one Ajijul Haque by delivering possession in respect thereof. As such, the plaintiff had amended the plaint and a prayer for decree of recovery of khas possession of the suit land was included in the plaint.
5. The defendant Nos. 1 and 2 had appeared and contested the suit by raising a formal plea regarding maintainability of the suit on the ground of want of cause of action, non-joinder of necessary parties, the suit being barred by limitation etc. The defendant Nos. 1 to 6 had denied the claim of the plaintiff regarding right, title and interest and possession over 4K-6L RSA No. 140/2016 Page 2 of 6 of land which was stated by the said defendants to have been purchased by the predecessor-in-interest of the defendants from Abdul Manaf.
6. The proforma defendant No. 7 had also filed written statement denying the claim of the plaintiff whereby she had categorically stated that she had never sold any land to the plaintiff but had come to know about the sale deed No. 1278 dated 21-06-1982 only when her nephew had read over the plaint to her. The proforma defendant No. 7 had categorically stated that she is not the owner of the disputed land nor was she ever in possession of the land. On the contrary, she has all along been in possession of the land covered by Dag No. 67. The defendant No. 14 to 20 had also contested the suit by filing written statement, thereby denying the claim of the plaintiff.
7. On the basis of the pleadings of the parties, the learned trial court had framed the following issues for trial in the suit:
1. Whether there is any cause of action for the suit?
2. Whether the suit is barred by limitation?
3. Whether the suit is barred by principle of adverse possession?
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the suit is properly valued for the purpose of jurisdiction and court fees?
6. Whether the plaintiff has right, title, interest over the schedule-A land?
7. Whether the defendants have dispossessed the plaintiff from the suit land after the institution of the suit?
8. Whether the defendant No. 7 was the owner of the suit land prior to the alleged sale in 1982?
9. Whether the plaintiff is entitled to a decree for declaration of right and delivery of khas possession by evicting the defendants there-from?
10. To what relief(s) the parties are entitled to?RSA No. 140/2016 Page 3 of 6
8. During trial, both parties had adduced oral as well as documentary evidence in support of their respective cases. Based on the evidence available on record, the learned trial court had answered the issue No. 6 against the plaintiff by holding that the plaintiff has failed to establish his claim of title over the suit land. In the result, the suit filed by the plaintiff/ appellant came to be dismissed by the trial court.
9. Being aggrieved by the judgment and decree dated 06-12-2010 passed by the trial court, the plaintiff as appellant had preferred Title Appeal No. 07/2011 before the court of Civil Judge, Nagaon which was also dismissed by the lower appellate court by judgment and decree dated 05-09-2013. The instant second appeal has been preferred against the concurrent judgment and decree passed by the lower appellate court.
10. Having regard to the nature of claim and counter claim of the parties, the issue Nos. 6 and 8, in my opinion, would be vital issues, the decision in respect of which would have a significant bearing in the outcome of the plaintiff's suit. From a perusal of the judgment and order under appeal, it appears that although the plaintiff had claimed to have purchased a part of the suit land from the proforma defendant No. 7, yet, he could not prove the sale deed (Exhibit-1) purportedly executed by the proforma defendant No. 7. During trial, the plaintiff's witness (PW-1) had himself admitted that while purchasing the suit land he had inspected the revenue records but did not find the name of proforma defendant No. 7 recorded therein. On the contrary, from the evidence of the PW-1, it RSA No. 140/2016 Page 4 of 6 appears that the name of Abdul Sattar, Hannaf, Abdur Jamal were recorded pattadars in respect of the suit land and the name of Hasan Ali was mutated in respect of the suit land subsequently. Although the scribe of the sale deed was examined by the plaintiff yet, during his cross- examination the plaintiff's witness Mofijuddin admitted that he did not know Dulori Bidhwa himself and hence, cannot identify her signature. None of the plaintiff's witnesses could identify the signature/ thumb impression of Dulori Bidhwa. As a matter of fact, the PW-2 and PW-3 though filed their evidence on affidavit, did not appear before the court to face cross-examination.
11. As has been indicated hereinabove, the plaintiff's vendor has categorically denied of having executed the registered deed of sale (Exhibit-1) in his favour and the learned court below have also recorded a finding of fact that the plaintiff has failed to discharge his burden of proof under Section 101 of the Evidence Act by proving the title deed. Learned court below have also found that the plaintiff was not in possession of the suit land at any point of time and therefore, the question of his dispossession did not arise at all. Learned counsel for the appellant could not deny or dispute the fact that the finding of fact recorded by the court below are based on evidence available on record. It is not the case of the appellant that the findings recorded by the court below are vitiated by perversity.
RSA No. 140/2016 Page 5 of 6
12. It is settled law that in exercise of jurisdiction under Section 100 CPC the High Court cannot record a new finding of fact. I also do not see any reason as to why the concurrent finding of fact recorded by the court below should be disturbed in the present case. Once it is held that the plaintiff has failed to prove and establish his title and possession over the suit land, the plaintiff's suit has to necessarily end in dismissal.
In view of the above, I am of the opinion that no substantial question of law arises in this appeal warranting admission of the same.
The appeal, therefore, stands dismissed.
JUDGE GS RSA No. 140/2016 Page 6 of 6