Gauhati High Court
Faizur Rahman & 6 Ors vs Abdul Noor & 3 Ors on 20 November, 2015
Author: N.Chaudhury
Bench: N.Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
RSA No. 220 of 2015
1.Faizur Rahman
2.Mahamadur Rahman
3.Atikur Rahman
All are sons of late Amin Ali @ Amir Ali
4.Md. Hussain Ahmed
S/o Late Late Makadas Ali
5.Azizur Rahman
6.Khalilur Rahman
Both are sons of late Rakib Ali @ Abdul Rakib
7.Saifur Rahman
S/O Late Sunu Miya
All are residents of vill.Kapilipar
Mouza and PS- Lanka
Dist-Nagaon, Assam
.... Appellants/
-Versus-
RSA No. 220 of 2015 Page 1 of 9
1.Abdul Noor
2.Abdul Karim
3.Abdul Malik
4.Abdul Khaleque
All are sons of late Ashab Ali
All are residents of vill.Kapilipar
Mouza and PS- Lanka
Dist-Nagaon, Assam
.......... Respondents/Appellants
PRESENT HON'BLE MR. JUSTICE N.CHAUDHURY For the Appellants : Mr.L Talukdar, Adv.
For the Respondents :
Date of hearing &
Date of Judgment : 20.11.2015
JUDGMENT AND ORDER(ORAL)
The present respondents and their deceased mother Fuloi Bibi as
plaintiffs instituted Title Suit No.44 of 2003 in the court of learned Civil Judge, (Jr. Div,) at Hojai on 10.11.2003 stating that an area of land measuring 5 Bighas RSA No. 220 of 2015 Page 2 of 9 out of 6 bighas 11 lechas covered by dag No.198 of P.P. No.156 of 1968 and 69 of village Kapilipar Mouza Lanka in the District of Nagaon was originally owned by predecessor of proforma respondents. There were originally four pattadars in all out of whom three pattadars, namely, Amin Ali, Makkadas Ali and Rakib Ali sold the aforesaid land measuring 5 Bighas covered by Dag No.198 to the plaintiff No.1 (Fuloi Bibi) by executing registered sale deed No. 307/1981 and delivered possession within specific boundaries. While the plaintiffs were in possession of the suit land and enjoying the same by cultivating, it came to light that in the sale deed dag no was inadvertently mentioned as Dag No.207 instead of 198 but in fact the vendor sold the land covered by Dag No.198 only. The vendee (plaintiff No.1) being an illiterate lady was not aware of this mistake and accordingly she got her name duly mutated in the records of rights with respect of Dag No. 207 only. But really the plaintiffs have been enjoying the land covered by Dag No.198 within the specific boundaries. However, in 1989, the vendor Amin Ali got the mutation cancelled taking opportunity of this error and being emboldened thereby, Amin Ali and legal heirs of other two vendors instituted Title Suit No.67 of 1989 against the plaintiff No.1, claiming decree for declaration of their right, title interest and confirmation of possession in respect of the land measuring 5 Bighas sold out to the plaintiff No.1. The plaintiff contested the suit by filing written statement and ultimately the parties settled the matter out of court. The parties of Title Suit No.67 of 1989 submitted compromise petition on 29.1.1993 laying down some terms and conditions thereon and thereupon RSA No. 220 of 2015 Page 3 of 9 title Suit No.67 of 1989 was decreed by compromise on 17.3.1993. In terms of the compromise decree, the present plaintiffs got 5 Bighas of land covered by Dag No. 198 under periodic patta No. 9. A decree was drawn on the basis of the compromise and accordingly plaintiffs have been possessing and enjoying the land measuring 5 Bighas of land covered by Dag No.198 under periodic patta No.156 of Kapilipar village till date. It is further stated that the principal defendants who did not have any semblance of right, title and interest with respect to the land sought to grab the land on 2.11.2003 and have been giving threat to the plaintiffs for dispossession. Under such circumstances, the plaintiffs became compelled to institute the suit for a decree of permanent injunction against the principal defendants, their men and agents and representatives from disturbing /interfering with the peaceful possession of the plaintiffs over the land described in Schedule-A to the plaint.
On being summoned defendants appeared and submitted written statement and contested the suit on the ground of maintainability as well as on merit. The fact as to sale of the land to the plaintiffs jointly as stated in para-3 of the plaint as well as the fact as to filing of compromise petition was also denied in para-18 of the written statement. The case of the defendants are that of denial in entirety.
On the basis of the aforesaid averments made by the parties, the learned trial court framed the following nine issues:
RSA No. 220 of 2015 Page 4 of 9
(i) Whether the suit is maintainable in the present form?
(ii) Whether the suit has cause of action?
(iii) Whether the suit is barred by the law of limitation?
(iv) Whether the suit is barred by the principle of waiver, estoppels
and acquiescence?
(v) Whether the suit is barred by Order 2 Rule 2 CPC?
(vi) Whether the suit is bad for non-joinder and mis-joinder of
parties?
(vii) Whether the suit is under valued?
(viii) Whether the plaintiff entitles the suit land in view of the decree passed in T.S. 67 of 1989 dated 17.3.93?
(ix) To what relief/reliefs the parties are entitled to ?
Plaintiffs examined one witness as PW-1 and exhibited documents. Defendants examined three witnesses and also adduced some documentary evidence.
Upon consideration of the materials on record, the learned trial court held that the suit is maintainable in its present form , that there is cause of action, that the suit is not barred by limitation and that the suit is not bad for defect of parties and that the suit is not bad for waiver, estoppels and acquiescence The principal issue which is the crux of dispute between the parties is Issue No. 8 and the same was decided in favour of the plaintiffs holding, inter alia, that Exhibit-2(3) is the compromise decree passed in the earlier suit i.e. Title Suit RSA No. 220 of 2015 Page 5 of 9 No.67 of 1989 on the basis of compromise petition filed by the parties. It was held that Amin Ali, predecessor of the defendant was surviving at that time and that he had signed the compromise petition. Accordingly, it was held that on the basis of compromise decree,Exhibit-2 (3) plaintiffs of the present case had acquired right, title and interest to the suit land. Thereafter, it was held that there is nothing on record to disbelieve the evidence of PWs to the fact that they are possessing the suit land by virtue of purchase of the suit land and defendants are trying to disturb their right of peaceful enjoyment of the suit land. Accordingly, Issue No.8 was decided in favour of the plaintiff and consequently the suit of the plaintiff was decreed in entirety by judgment and decree dated 27.6.2012.
Aggrieved by aforesaid judgment and decree, the principal defendants No. 1 to 5 preferred Title Appeal No.56 of 2012 in the Court of learned Civil Judge, Nagaon . The learned Civil Judge after considering the respective case of the parties framed three points for determination as follows:
I. Whether Amin Ali died prior to filing of compromise
petition and drawing of compromised decree dated
17.3.1999 in TS 67/89?
II. Whether late Amin Ali with other plaintiff of TS 67/89 filed
a joint compromise petition and if so, whether as per the joint compromise petition Fuloi Bibi was given 5 bigha of the land in suit dag and compromised decree drawn up?
RSA No. 220 of 2015 Page 6 of 9 III. Whether plaintiffs has legal right in respect of the suit land and defendant given any threatening to dispossess them from the suit land and plaintiff entitled permanent injunction as prayed for in TS 44 /2003?
The first appellate court having considered the evidence led by the parties decided the first point for determination in favour of the respondents holding that Amin Ali did not die prior to filing of compromise petition and decree of the suit on 17.3.1999 in Title Suit No.67 of 1989. In so doing, the evidence led by both the sides including oral and documentary evidence of DW-1 Md. Faizur Rahman was taken into consideration. Coming to the second point for determination , the learned first appellate court found that Amin Ali along with other plaintiffs of Title Suit No.67 of 1989 filed a joint compromise petition in the earlier suit and thereby Fuloi Bibi, plaintiff No. 1 of the present suit was given 5 Bighas of land described in Schedule to the plaint. To arrive at this finding, the learned first appellate court has considered the evidence of PW-1, the documents exhibited as Exhibit-2 to Exhibit-2(7), the evidence of DW-1 and the records of Title Suit No.67 of 1989. Considering the aforesaid records including the compromise petition filed by Amin Ali and other plaintiffs of Title Suit No.67 of 1989, the learned first appellate court exercised power under Section 73 of the Evidence Act and compared signatures of the parties in all these pleadings and thereupon arrived at the finding that the compromise petition was really signed by Amin Ali leading to compromise decree and thereby the plaintiff No.1 (Fuloi Bibi) became RSA No. 220 of 2015 Page 7 of 9 owner of the suit land measuring 5 Bighas. Ultimately, the third point for determination was also decided in favour of the respondents holding that the defendants were giving threat to the plaintiffs for dispossessing them from the suit land and legal right of the plaintiffs are required to be protected. With such findings in all the three points for determination, the first appellate court has passed impugned judgment dismissing the appeal and upholding the judgment and decree passed by the learned trial court. These concurrent findings of facts have been challenged in the present second appeal by defendants.
I have heard Mr. L Talukdar, learned counsel for the appellants. I have perused the pleadings of the parties and the two judgments challenged before this court. Having gone through the memorandum of appeal, I do not come across any grounds whereby the finding of facts of the learned courts below as to possession of the plaintiffs and or as to filing of the compromise petition by Amin Ali have been challenged to be perverse. A second appeal challenging the concurrent findings of facts may be entertained if the concurrent findings of the fact are not based on materials on record or otherwise if those findings are perverse . In the absence of any challenge to the correctness or otherwise to the concurrent findings of fact, there is no scope to interfere with same in an appeal under Section 100 of the Code of Civil Procedure. If the findings of facts that Amin Ali had submitted compromise petition along with other plaintiffs of Title Suit No. 67 of 1989 and that the said title suit No. 67 of 1989 was accordingly decreed on compromise are correct and moreover if the findings of the learned RSA No. 220 of 2015 Page 8 of 9 trial court that plaintiffs are in possession of the suit land and that the defendants have been giving them threat for dispossessing from the suit land are neither challenged nor shown to be perverse, in that event there is no scope to interfere with such concurrent findings of the learned courts below. Having perused the grounds of the memorandum of second appeal and the two judgments and decree challenged before this court and also after considering the argument of Mr. L Talukdar, I do not find any substantial question of law does arise in the present one. Accordingly, the second appeal is not admitted. It is dismissed. No order as to cost.
JUDGE Nivedita RSA No. 220 of 2015 Page 9 of 9