Gauhati High Court
Asgar Ali And Ors vs Goumar Ali And Ors on 2 November, 2015
Author: A.K. Goswami
Bench: A.K. Goswami
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
RSA No.41/2004
1. Md. Asgar Ali,
S/o. Late Jasmat Ali
2. Md. Abdul Hamid,
S/o. Late Jasmat Ali
3. Md. Abdul Aziz
S/o. Late Jasmat Ali
4. Md. Mozibur Rahman,
S/o. Late Jasmat Ali
5. Md. Abdul Mazid,
All are residents of village Rampur, P.S. Baghbar,
Mouza- Titapani, Dist: Barpeta, Assam.
...... Appellants/Defendants
-Versus-
1. Md. Goumar Ali,
S/o. Late Hajrat Ali
2. Md. Omar Ali,
S/o. Late Hajrat Ali
3. Md. Abdul Mazid
S/o. Late Hajrat Ali
All are residents of village Titapani,
Mouza- Titapani, P.S. Baghbar, Dist: Barpeta, Assam.
4. Mustt. Amiran Nessa,
W/o. Late Hajrat Ali
Vill: Titapani, Mouza- Titapani, Dist: Barpeta.
5. Md. Shajahan Ali,
S/o. Late Hajrat Ali
Vill: Chanmama, Mouza- Titapani, Dist: Barpeta, Assam.
6. Mustt. Ayesha Khatun,
W/o. Md. Khaliluddin
Vill: Garalipam, Mouza- Titapani, Dist: Barpeta.
RSA No.41/2004 Page 1 of 8
7. On the death of Musstt. Amina Khatun(Respondent No.7) her legal
heirs-
7(i) Amzad Ali,
7(ii) Anowar Hussain,
7(iii)Anowara Khatun,
7(iv)Sahar Bhanu,
7(v) Aye Bhanu,
7(vi)Tara Bhanu
All are residents of village Garalipam, P.O. Bongugi, P.S. Kalgachia, Dist:
Barpeta, Assam.
8. Mustt. Moriom Nessa,
W/o. Late Abdul Aziz
Vill: Khilli, Mouza- Titapani, Dist: Barpeta.
9. Mustt. Maiful Khatun,
W/o. Md. Abu Siddique
Vill: Kadomtolla, Mouza: Baghbar, Dist: Barpeta, Assam.
...... Respondents/Plaintiffs
BEFORE
THE HON'BLE MR. JUSTICE A.K. GOSWAMI
For the appellants : Mr. N. Dhar,
Mr. B. Hussain, Advocates.
For the respondents : Mr. A. Choudhury, Advocate.
Dates of hearing : 02.11.2015.
Date of judgment : 02.11.2015.
JUDGMENT & ORDER
(ORAL)
Heard Mr. N. Dhar, learned counsel for the appellants/defendants assisted by Mr. B. Hussain and Mr. A. Choudhury, learned counsel appearing for the respondents/plaintiffs.
2. This appeal is preferred against the judgment and decree dated 01.10.2003 passed by the learned Civil Judge (Sr. Divn.), Barpeta, in Title Appeal No.7/2000 allowing the appeal and setting aside the judgment and decree dated 21.02.2000 passed by the learned Civil Judge (Jr. Divn.), Barpeta, in Title Suit No.34/1990, whereby the suit of the plaintiffs was dismissed.
RSA No.41/2004 Page 2 of 83. Initially, by a judgment and order dated 14.08.1992, suit of the plaintiffs was dismissed on the ground of pecuniary jurisdiction. However, in Title Appeal No.4/1993, by an order passed on 12.05.1994, the judgment of the learned Trial Court was set aside and the case was sent back for re-trial. Challenge made to the said order dated 18.05.1994 was negated by an order passed by this Court on 18.05.1994 in Civil Revision Petition No.322/1994.
4. The second appeal was admitted to be heard by an order dated 16.03.2004 on the following substantial questions of law:
"(1) Whether the Chitta (Ext-1) is admissible in evidence in support of the claim of title and possession of the plaintiffs over the suit land ? (2) Whether the suit filed by the plaintiffs for confirmation of their possession over the suit land is maintainable in view of the findings of the learned lower appellate Court that the defendants are in possession of the suit land as per evidence of DW 2 in the case record ?
(3) Whether the findings of the learned lower appellate Court that the plaintiffs are in possession of the suit land without taking consideration of the evidence of PW 3 regarding possession and identity of the suit land are sustainable in law ?"
5. At the outset, it will be necessary to state the essential facts as emerging from the pleadings of the parties.
6. The case of the plaintiffs is that suit land measuring 6 Bigha 1 Katha 12 Lecha covered by Dag No.266 under Periodic Patta No.216 of Village- Rampur originally belonged to Lalmahmud Dewani, who died in the year 1976, leaving behind his wife- Pinjira Begum, son- Hajarat Ali and two daughters- Ayesha Khatun and Amena Khatun and on his death, his heirs took possession of the land with the homestead therein. Pinjira Khatun died in the year 1977. In the later part of 1977, Hajarat Ali also died leaving behind his wife Amiran Nessa and four sons, namely, Gumar Ali, Omar Ali, Abdul Hamid and Sahjahan Ali and two daughters, namely, Mariyam Nessa and Mayful Nessa. When Hajarat Ali died, Ayesha and Amena were already married and the sons and daughters of Hajarat were all minors. On 27.11.1989, the defendant Nos.2 to 6 who are sons of defendant No.1, demanded the plaintiffs to vacate their possession failing which it was threatened that they would be forcefully dispossessed as they RSA No.41/2004 Page 3 of 8 have a patta in respect of the suit land. Immediately, plaintiffs made enquiries in the office of the Sub-Deputy Collector and applied for the relevant documents and on 19.03.1990, on receipt of the certified copy of the chitha, they came to learn that the defendant No.1 had his name mutated on 23.05.1978 on the basis of right of inheritance and that subsequently, the land was converted into periodic patta land on 06.06.1981. It is pleaded that defendant No.1 is not a legal heir of Lalmahmud Dewani and no notice was served upon the plaintiffs, either at the time of grant of mutation or at the time of conversion of the land into periodic patta land. Accordingly, suit was filed for declaration of right, title, interest and for confirmation of possession, injunction and also for a declaration that the defendant No.1 did not acquire any right, title and interest on the strength of mutation order dated 23.05.1978 and the conversion order dated 06.06.1981; to issue precept to the Revenue Authority to remove the name of defendant No.1 from the patta and to include the name of the plaintiffs in the patta; to deliver khas possession if dispossessed during the pendency of the suit, etc.
7. In the written statement, various legal pleas, such as suit is barred by limitation, suit is barred by non-joinder of necessary parties, etc. were taken. It is, however, admitted that the suit land originally belonged to Lalmahmud Dewani. While denying other allegations made in the plaint, it is pleaded that Lalmahmud Dewani had come to Assam along with his two brothers- Alef Sheikh and Kalu Sheikh as well as their sister Amiran Nessa and they jointly purchased land at Titapani and at Rampur out of funds generated from their ancestral property. The defendant No.1 remained joint with his maternal uncles for about 14 years even after death of his mother and the share of his late mother was given to him during the life time of Lalmahmud Dewani. Mutation and conversion of land were stated to be done with full knowledge of the plaintiffs. Subsequently, an amendment to the written statement was filed, which included a counter-claim. It is pleaded therein that during the pendency of the suit, on 14.11.1991, the plaintiffs tried to take away the paddy which was, however, prevented. Reference was also made to various cases filed. Their being sustained threatening to dispossess the defendants, it was necessary for the defendants to pray for declaration of right, title and interest and confirmation of possession.
8. On the basis of the pleadings, the learned Trial Court framed the following issues:
"(1) Whether there is cause of action for this suit ? (2) Whether the suit is bad for non-joinder of necessary parties ? (3) Whether the suit has been properly valued ?
(4) Whether the suit is hit by law of limitation ?RSA No.41/2004 Page 4 of 8
(5) Whether the plaintiffs have right, title and possession over the suit land ? (6) Whether mutation in favour of the defendants in respect of the suit land was illegal, void and inoperative ?
(7) Whether the plaintiffs are entitled for a decree as prayed for ?"
9. Plaintiffs examined 3 witnesses and the defendants examined 4 witnesses in respect of their respective cases.
10. Mr. Dhar, learned counsel for the appellants has submitted that learned lower Appellate Court below committed manifest illegality in decreeing the suit of the plaintiffs for right, title and interest on the basis of a chitha (Ext-1) as chitha is not a document of title. It is also submitted that the plaintiffs' suit for confirmation of possession was not maintainable in view of the fact that materials on record have disclosed and which was also noted by the learned lower appellate Court that the defendants are in possession of the suit land. It is submitted that the learned lower Appellate Court abruptly recorded findings in respect of Issue No.5 relating to right, title and interest of the plaintiffs and the first Appellate Court being the last court on facts, the impugned judgment of the learned lower Appellate Court, which is a judgment of reversal, is not in conformity with Order XLI Rule 31 CPC. It is also submitted by him that finding as regards possession of the plaintiffs over the suit land was arrived at without considering the evidence of PW-3. He has submitted that the defendant No. 1 being a nephew of Lalmahmud Dewani, as his mother was a sister of Lalmahmud Dewani, she was entitled to a share in the ancestral property and that is what was given to him by Lalmahmud Dewani and therefore, when the patta was issued in the name of defendant No.1, learned lower Appellate Court was not justified in decreeing the suit of the plaintiffs.
11. Mr. A. Choudhury, learned counsel for the respondents, on the other hand, has submitted that in view of admission by the defendants that the suit land originally belonged to Lalmahmud Dewani, there was no lis or dispute with regard to the right, title and interest of Lalmahmud Dewani over the disputed land. The issue was as to whether the defendant No.1 was entitled to step into the shoes of Lalmahmud Dewani. He has submitted that though feeble pleading was advanced in the written statement that the property was joint, the defendants miserably failed to prove the burden cast on them to prove that the suit land was purchased for the joint family though such a joint family concept is not recognized in Mahomedan Law or that suit property was purchased from any such joint family fund. Therefore, the contention advanced by Mr. Dhar that the mother of the defendant No.1 was RSA No.41/2004 Page 5 of 8 entitled to a share which, on her death, was given to the defendant No. 1 is without any foundation, he submits. He has submitted that the defendant No.1 had his name fraudulently mutated as legal heir of Lalmahmud Dewani and subsequently, in the evidence, he had taken the plea that by virtue of a gift deed, which was not produced, suit land was given to him. He has also submitted that plaintiffs are in possession and therefore, prayer for confirmation was made and immediately after an attempt to dispossess the plaintiffs was made, the suit was filed after verification of the land records, which revealed illegal mutation and conversion of land in favour of defendant No.1. Accordingly, he submits that there is no merit in this appeal and the same is liable to be dismissed.
12. I have considered the submissions of the learned counsel for the parties and have perused the materials on record.
13. Mr. Choudhury is correct in submitting that the defendants had admitted that originally the suit land belonged to Lalmahmud Dewani. However, during the life time of Lalmahmud Dewani, the suit land was not a periodic patta land. Ext-1 reveals that name of defendant No.1 was inserted in place of original pattadar, namely, Lalmahmud Dewani as his heir. When the defendants admitted that the suit land originally belonged to Lalmahmud Dewani and when the defendant No.1 had his name mutated as an heir of Lalmahmud Dewani, it defies comprehension as to how the suit property could be contended to be joint family property of Lalmahmud Dewani, Alef Sheikh, Kalu Sheikh and Amiron Nessa. The learned Trial Court, though dismissed the suit, had recorded the finding that admittedly the plaintiffs are the legal heirs of Lalmahmud Dewani and that there is no material to indicate that the property was purchased from the sale proceeds of the ancestral property. The learned Trial Court also noted that though admittedly the plaintiffs are legal heirs of Lalmahmud Dewani, defendant No.1 had his name mutated in respect of the suit land as legal heir of Lalmahmud Dewani. There is no dispute that the defendant No.1 was not a legal heir in respect of property of Lalmahmud Dewani.
14. Defendant No.1, who examined himself as DW-1, had stated in his evidence that patta was also issued in favour of Lalmahmud Dewani. It is to be noted that in the written statement, the defendants did not disclose their relationship with Lalmahmud Dewani. But from the evidence, it transpires that mother of defendant was a sister of Lalmahmud Dewani, Alef Sheikh and Kalu Sheikh. DW-1 had also stated in his evidence that he was gifted the plot of land by executing a deed of gift and at that point of time, the land was an annual patta land.
RSA No.41/2004 Page 6 of 815. PW-3, who is a Mondal (Revenue Staff), had stated in his evidence that the suit land originally belonged to Lalmahmud Dewani and the name of defendant No.1 was recorded as legal heir of Lalmahmud Dewani. When there was no dispute with regard to right, title and interest of Lalmahmud Dewani and the defendant No.1 also had his name mutated as an heir of Lalmahmud Dewani, and when the plaintiffs are also undisputedly the legal heirs of Lalmahmud Dewani, it is the considered opinion of the Court that it was not necessary for the plaintiffs to have proved any document of title. PW-3, who is an official witness, has also confirmed that the suit land belonged to Lalmahmud Dewani and therefore, it is not a case where the plaintiffs had sought to sustain their plea with regard to title on the basis of Ext-1.
16. The learned Trial Court opined that presumption is in favour of the defendants that mutation and conversion of periodic patta was correctly made. On the face of the materials on record such a finding of the learned lower Trial Court is not sustainable as mutation was accorded holding defendant No.1 to be the heir of Lalmahmud Dewani, though he was not and the learned lower Appellate Court, on the basis of materials on record, had held that the defendant No.1 had fraudulently got his name mutated as legal heir of Lalmahmud Dewani and also converted the same to a periodic patta.
17. I am unable to agree with the submission of Mr. Dhar that the learned lower Appellate Court having recorded the finding on the basis of evidence of DW-2 that the defendants were in possession for the last seven years, it is inconceivable how the learned lower Appellate Court could have granted a decree of confirmation of possession. A perusal of the judgment of the learned lower Appellate Court would indicate that the learned lower Appellate Court noted that though the DW-1 had stated that he was in possession of the suit land for last 30/40 years, DW-2 had stated about possession of the defendants for seven years. It is not that any finding was recorded holding the defendants to be in possession for seven years. The learned lower Appellate Court relied on the evidence of PWs-1 and PW-2 to come to the conclusion that the plaintiffs are in possession of the suit land. PW-3 did not say anything about possession. Nothing hinges on the evidence of PW-3 as regards possession or identity of the suit land. The learned lower Appellate Court held that while being in possession, the plaintiffs were threatened with dispossession and on coming to know about the fraudulent mutation and conversion of land, suit was filed within the period of limitation. The submission of Mr. Dhar that the impugned judgment of the learned lower Appellate Court does not fulfill the requirement of Order XLI Rule 31 CPC, is also found to be without any merit.
RSA No.41/2004 Page 7 of 818. In view of the above discussions, I find no merit in this appeal and accordingly, the same is dismissed. Substantial questions of law are answered in terms of the above. No costs.
19. Registry will send back the records.
JUDGE Benoy RSA No.41/2004 Page 8 of 8