IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)

Transcription

1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh) RSA No. 57/ Bahadur Ali.. Appellants Son of Late Batasu Munshi, Village : Bonbahar, Mouza : Betbari, P.O. Kayakuchi, District - Barpeta, Assam. 2. Samsul Haque Son of Late Batasu Munshi, Resident of Village Bonbahar, Mouza : Betbari, P.O. Kayakuchi, District - Barpeta, Assam. Vs 1. Omed Ali. Respondents Son of late Ahmed Ali, Resident of Village Bonbahar, Mouza : Betbari, P.O. Kayakuchi, District - Barpeta, Assam. 2. Somed Ali Son of Late Ahmed Ali, Resident of Village Bonbahar, Mouza : Betbari, P.O. Kayakuchi, District - Barpeta, Assam. BEFORE HON BLE Mr. JUSTICE N. CHAUDHURY For the Appellants :: Mr. A.M. Buzarbaruah Mr. N. Hoque learned counsel for the appellants For the Respondent :: Mr. S.A. Laskar, Mr. S.K. Deori, Mr. N. Alam learned counsel for the respondents Date of hearing :: Date of delivery of Judgment ::

2 2 JUDGMENT & ORDER(ORAL) 1. This second appeal is preferred by the plaintiffs against the appellate judgment of reversal passed by the learned Civil Judge (Sr. Division), Barpeta on in Title Appeal No. 10/2001 thereby allowing the appeal and modifying the trial Court s decree dated passed by the learned Civil Judge (Junior Division) No. 1, Barpeta in Title Suit No. 17 of The learned trial Court had partly allowed the suit of the plaintiffs as well as the counter claim filed by the defendants. 2. The pleaded case of the plaintiffs is that land measuring 3 bighas 3 kathas 16 lechas covered by annual Dag No. 391 (1 bigha 2 kathas) and periodic Dag No. 211 (2 bighas 1 katha 16 lechas) of village Bonbahar originally belonged to the plaintiffs and the proforma defendant Badiurzaman. Plaintiffs No. 1 & 2, namely, Bahadur Ali and Samsul Haque and the original proforma defendant, namely, Late Badiurzaman were brothers. They jointly owned the land in question under Patta No. 15 of Mouza Betbari in village Bonbahar. But on , defendant No. 1 (Omed Ali) and defendant No. 2 (Somed Ali) sought to create obstruction to them in enjoyment of their fishery situated over the suit land claiming that they had obtained a mutation with respect to the said land and also asked the plaintiffs to vacate the same. Faced with such threat of dispossession, the plaintiffs made enquiry with the settlement office as to the records of rights only to discover that on three mutation orders had been passed by the Revenue Officer and thereby 4 kathas of land belonging to the plaintiffs under Dag No. 211 of the said patta was wrongly

3 3 recorded in the name of the defendant No. 3 whereas 2 kathas 10 lechas of land of the same dag was recorded in the name of Somed Ali. By another order of the same date the revenue officers recorded names of Omed Ali and Baharjan Nesa with respect to 15 lechas of land. According to the plaintiffs they never sold any land under Dag No. 211 to any of the defendants and as such in view of the aforesaid erroneous endorsement in the records of rights their title got clouded. The plaintiffs, therefore, prayed that a decree be passed declaring their right, title and interest over the suit land and also for confirmation of possession. Prayer has also been made for adjudication and declaring the said mutational entry as illegal inoperative and void and, of course, for delivery of khas possession if the plaintiffs are really dispossessed from the suit land during pendency of the suit. 3. The defendants submitted a written statement not only denying the case of the plaintiffs but also put up a case of their own vide paragraph 6 of the written statement. It was stated therein that predecessor of the (defendant) Ahmed Ali purchased 1 bigha of land from Bahadur Ali (Plaintiff No. 1) on Thereafter on he purchased another plot of land measuring 2 kathas 10 lechas in the same dag and finally on he purchased 3 kathas 1 lecha in dag No. 211 although in sale deed it was wrongly shown as Dag No According to the defendants in the written statement the sale deed dated did not contain any boundary at all. However, alongwith the said written statement the defendants also filed a counter claim and in the counter claim they took a contrary stand saying that there was a boundary in registered sale deed dated and that the boundaries given in the

4 4 deed justified the inclusion of the demised land in Dag No. 211 only although it is recited therein wrongly that the land pertained to Dag No According to the version of the defendants in the counter claim the demise land is bounded at the North by land of Bahadur Ali, at the South by land of Surendra Saha, at the East by Road and at the West by land purchased by Ahmed Ali himself. With these averments the counter claimant / defendants further stated that they had been in possession of the land till but on the same day plaintiffs forcibly entered into the land and had been enjoying the same thereafter. The defendants, therefore, apart from making a prayer for declaration of their right, title and interest over the land covered by Dag No. 211 they also claimed a partition decree and recovery of possession of the land by evicting the plaintiffs from the suit land. 4. On the basis of the aforesaid pleadings of the parties the learned trial Court framed as many as 11 issues and the same are quoted below: 1. Whether there is cause of action for this suit? 2. Whether the suit is under valued and plaint is under stamped? 3. Whether the suit is barred by limitation? 4. Whether the plaintiffs have right, title, interest and possession over the suit land described in the plaint? 5. Whether the chitha mutation dated in favour of the defendants is illegal, inoperative and void in law and as such precept may be issued to the Revenue authority to cancel the mutation made in favour of the defendants?

5 5 6. Whether the defendants No. 1 and 2 have right, title and interest to the extend of 2B 0K 14 Ls. of land within the schedule of A land in the counter-claim? 7. Whether the defendants No. 1 and 2 are entitled to get a decree of Easment right over 1 K of land described in schedule of B of the counter-claim? 8. Whether the defendants were dispossessed from front side of the A and B schedule of land on ? 9. Whether the defendants are entitled to get Khas possession as prayed for? 10. Whether the defendants are entitled to decree as prayed for? 11. To what other relief or reliefs if any, the parties are entitled? 5. Both the sides led evidence. From the evidence led by both the parties it appears that the plaintiffs admitted to have sold land to Ahmed Ali on and by Ext.- ka and kha respectively to the extent of 1 bigha 2 kathas 10 lechas. It is the case of the defendants also that these two plots measuring 1 bigha 2 kathas 10 lechas are covered by Dag No So, there is not dispute in regard to Ext.- ka and kha i.e. in regard to sale deed of 1 bigha 2 kathas 10 lechas by the plaintiff No. 1 to Ahmed Ali, the father of the defendants. The dispute between the parties exists only in regard to sell of 3 kathas 4 lecha of land covered by Dag No. 211 to Ahmed Ali (father of the defendants No. 1 & 2). The defendants have taken a specific stand that they really purchased land under Dag No. 211 vide sale deed dated But it has been shown to have been sold from Dag No. 212 only. The learned trial Court did not accept the contention of the defendants that sale

6 6 deed dated (Ext.- Ga ) in any way attracted land under Dag No The learned trial Court found that the schedule given in Ext.- Ga i.e. sale deed dated is vague and land cannot be identified from the boundary. It appears from the finding of the learned trial court that the Ext.- Ga brought on record by the defendants contains some overwriting on the dag number to make it seem like 211. On the other hand Ext.-8 which is the certified copy of the same sale deed clearly shows that the land sold to the defendants was covered by Dag No However, this could not be verified at this stage because Ext.- Ga is not available on record. In this view of the matter, the learned trial Court by its judgment and decree dated decreed the suit of the plaintiffs with regard to 3 kathas 4 lechas under Dag No. 211, declaring the right, title and interest of the plaintiffs over 2 bighas 1 katha 16 lechas in Dag No. 211 and 1 bigha 2 kathas in Annual Dag No On the other hand the claim of the defendants in the counter claim to the extent of 1 bigha 2 kathas 4 lechas under Dag No. 212 of PP No. 15 out of A Schedule of the counter claim was also decreed. The learned Court, found that the Chitha mutation dated was illegal, inoperative and void and liable to be rectified by the Revenue Authority. 6. The defendants preferred Title Appeal No. 10/2001 in the Court of learned Civil Judge (Sr. Division) at Barpeta. The learned First Appellate Court framed two main points for determination in compliance with the provision of Order XLI Rule 31 of the Code of Civil Procedure but without deciding the same, proceeded to decide the appeal issue wise. By judgment dated , the learned lower appellate Court upheld findings of the learned trial Court in regard to

7 7 issues No. 1, 2, 3 and 7 and the other issues are interfered with. The learned First Appellate Court took up issues No. 4, 5 & 6 referred to above for decision together and held that PW2 stated in cross-examination that the land sold to Ahmed Ali was butted and bounded at the East by Road, on the West by Lane of Bahadur Ali and, on the South by Lane of S. Saha. According to the learned first Appellate Court the finding of the learned trial Court that boundaries given in Ext.- Ga are vague and mutilated is not correct. Rather a perusal of the boundaries mentioned in Ext.- Ga would show that land under Dag Nos. 211 and 391 is attracted by it. Proceeding on this finding, the learned First Appellant Court also held that plaintiffs dispossessed the defendants from the suit land and so they are entitled to recover possession. It is this first appellate judgment which is under challenge in the present second appeal. 7. This Court while admitting the second appeal on framed the following 5 substantial questions of law: 1. Whether the learned lower appellate Court committed error in interpreting Ext.- Ga which is a document of Title? 2. Whether the learned Civil Judge, Sr. Divn. was justified in coming to the conclusion that by Ext. Ga the plaintiff No. 1 sold land to the Defendant No. 1 and 2 in Dags No. 211 and 391 by ignoring the clear recital in the Schedule of the Ext.- Ga that 3K. 4L. out of 17B. 6L. of the land of Dag No. 212 was the property sold? 3. Whether the principle that boundaries are prevail over plot number of dag number could be applied in the instant case?

8 8 4. Whether the learned Judge was justified in grating a decree for title over 1K of land in Annual Dag No. 391 although the Defendant No. 1 and 2 did not claim title over the land but merely claim right of way over the same? 5. Whether when a decree for partition of the land of Defendants No. 1 and 2 was passed by the Civil Judge (Sr. Divn.), was it open to him to pass a decree for khass possession over the un-partitioned land? 8. It would appear from a reading of the aforesaid substantial questions of law that the substantial questions No. 1, 2 and 3 are really one substantial question of law regarding interpretation of Ext.- Ga. The said three substantial questions of law, therefore, would be answered if the claim of the defendants vis-à-vis Ext.- Ga is adjudicated. 9. As has been observed above, the dispute between the parties is confined to Ext.- Ga only. Ext.- Ga is sale deed dated The same document has been exhibited by the plaintiffs as Ext.-8. Ext.-8 is a certified copy of sale deed dated It appears from the findings of the learned trial Court that the original of the sale deed dated being in custody of the defendants was really produced and exhibited at the stage of trial as Ext.- Ga. However, the same is not available on record. So, Ext.-8 is the only document available before this Court to adjudicate the claim of the parties in regard to findings of land with respect to 3 kathas 1 lecha made on I have gone through the said document. From the recital of Ext.-8 (for that, Ext.- Ga ) it appears that the vendor Bahadur Ali transferred and sold 3 kathas 1 lecha land to

9 9 Late Ahmed Ali from Dag No. 212 of PP No. 15 out of total land measuring 17 bighas 3 kathas 4 lechas. It is the specific case of the defendants that mentioning of Dag No. as 212 in sale deed dated must have been an error and that Bahadur Ali really sold land from Dag No Since sale deed dated contains a recital that the demised land was a part of total of 17 bighas 6 lechas of land in Dag No. 212, I wanted to ascertain from records as to what were the total areas of land in each of these two dags, namely, Dag No. 212 and 211. It appears from Ext.-1 that the total area of land under Dag No. 211 is 2 bighas 1 katha 16 lechas, and that for dag No. 212 is 17 bighas 0 katha 6 lechas. So, mentioning of the total area of the Dag No 212 very much confirms that land has been sold on in Dag No. 212 only in the sale deed. Hence the contention of the defendants that mentioning of Dag No. 212 was rather erroneous cannot be accepted. Next question is to be seen as to whether the boundaries mentioned in sale deed dated can in any way attract land under Dag No As observed by the learned Court below and also as seen from the perusal of the sale deed dated (Ext.-8 = Ext.- Ga ) that the demised land is butted and bounded on the East by Road. Ext.-4 is a map of the suit land and its adjoining lands. Perusal of Ext.-4 shows that the road in question is not in adjacent vicinity of Dag No. 211 or 212. The road runs along the eastern border of Dags No. 391 and 210. Dags No. 211 and 212 are away from road. This being the position so far as boundaries are concerned, the land sold on cannot be near the road. Moreover even if it is near the road then the demised land cannot be covered by Dag No. 211 or 212. So the findings of the learned trial Court that the boundaries mentioned in Ext.-8 (equal to Ext.- Ga ) is vague

10 10 cannot be faulted. So, application of the case law reported in AIR 1963 Supreme Court 1879 Sheodhyan Singh and others v. Mst. Sanichara Kuer and others does not have relevance in the present case. Here, boundaries do not lead the parties in any way. Rather the dags number mentioned in the sale deed is supported by the area of the dag mentioned therein and so the finding of the learned trial Court that land measuring 3 kathas 4 lechas covered by Dag No. 212 of PP No. 15 has been sold to the defendants is accepted. Once this findings of fact by the learned trial court is accepted, the substantial questions No. 1, 2 & 3 referred to above are to be decided in favour of the appellants holding that the learned trial Court did not commit any error in considering Ext.- Ga as a document of title that land under Dag No. 211 was not sold to the defendants vide Ext.- Ga or for that by any other document. 10. So as far as claim of the defendants regarding Dag No. 391 are concerned, the same is based on Ext.- Gha. This Ext.- Ga is an unregistered document by which 1 katha land was sold to the defendant. The schedule of the said unregistered deed does not contain dag no., patta no. or even boundaries. Moreover the cost of the land sold is shown as Rs. 100/-. Obviously any immovable property having value of Rs. 100/- and above can be sold by way of registered deed in as much as Section 17 of the Registration Act requires registration of such document compulsory. The effect of non-registration of a document which is compulsorily registrible and the effect of non-registration of a document has been laid down in Section 49 of the Registration Act. Section 49 of Rigistration Act provides that such a deed shall not affect any immovable property unless it is registered and the same shall not be

11 11 admissible in evidence except being used as evidence in a suit for specific purpose of contract. In this view of the matter Ext.- Gha is not admissible in evidence and consequently no title has flown to the defendants because of execution of Ext.- Gha. The findings of the learned trial Court, therefore, that the defendants have not acquired any title to Dag No. 391 by Ext.- Gha also cannot be interfered with. In that view of the matter, the substantial question No. 4 in regard to allowing the claim of the defendants over Dag No. 391 is answered in the negative. The learned First Appellate Court committed error in decreeing the impugned order as to claim of the defendants over Dag No Once the aforesaid four substantial questions of law are decided in favour of the plaintiffs holding that the plaintiffs have right, title and interest over Dag No. 211 and that defendants do not have any claim over any land over Dag No. 211, the claim of partition of the defendants of said Dag No. 211 cannot arise. Consequently, the substantial question No. 5 also has become redundant on the background of the said finding. 11. In the result, the first appellate judgment and decree dated in Title Appeal No. 10/2001 is hereby set aside and the trial Court s decree dated passed in Title Suit No. 178 of 1998 is hereby uphold. 12. No order as to costs. 13. Draw up decree accordingly. sds 14. Sent down the records immediately after drawal of decree. JUDGE

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