H.N. Sarma, J.
1. Challenging the judgment and decree passed in T.A. No. 9/97 by the learned District Judge, Barpeta dated 23.3.1999 dismissing the appeal and affirming the judgment and decree dated 17.5.1997 passed by the learned Civil Judge (Sr. Division), Barpeta in T.S. No. 62/94 decreeing the suit of the plaintiff, the present appeal has been filed by the defendant No. 1.
2. Heard Mr. N. Dhar, learned Counsel for the appellant/defendant No. 1 and Mr. K. Basar, learned Counsel appearing for the respondent.
3. The plaintiff instituted the aforesaid Title Suit on 5.12.1994 pleading inter alia that the land measuring 14 Bigha 2 Katha 18 Lechas covered by Dag No. 543 under K.P. Patta No.6 at village Pakdahbil pathar has been fully described in schedule 'A' of the plaint falls a part of the suit land. The original owner was late Maizuddin who died 50 years ago leaving his son Jonab Ali and wife Mariam Nessa who inherited the said property. Later on both of them where also died leaving behind the plaintiff, defendants and the pro-forma defendants as heirs and successor who were possessing the said land by amicable settlement. During the time of Jonab Ali the land were peacefully possessed by plaintiff and defendant. After his death in 1994 the defendants trespass into the land and created disturbances and inconvenience saying that late Mariam Nessa donated 10 Bigha of land to defendant No. 1 and his name were also mutated on the said land. On 25.11.1994 the plaintiffs came to know about the illegal mutation of the defendant No. 1 over 10 Bighas of land.
4. That in addition to the Schedule 'A' land late Jonab Ali had another plot of land measuring 24 Bigha 4 Lechas covered by dag No. 107 K.P. Patta No. 24 at the same village Pakdahbil Pathar the land described in Schedule 'B' land. Late Jonab Ali sold 10 Bigha 2 Katha 19 Lechas to the pro forma defendant Nos. 1, 3, 4 and plaintiff No. 6 by separate deeds. Thereafter 13 Bigha 2 Katha 5 Lechas has been under the joint title of the plaintiff, defendants and pro forma defendant Nos. 1 and 2 that after mutation of their names the defendants have been disturbing the possession of the plaintiff in the schedule B land since 31.10.1994. In addition to the properties left by Jonab Ali mentioned in Schedules 'A' and 'B' the other properties are also left which has been mentioned in schedule 'C', 'D', 'E' and F' of the plaint and they have been possessing their shares accordingly. The plaintiff have been filed the suit claiming declaration of right, title and interest over the same. The cause of action arose on 24.5.1994 when Jonab Ali died on 31.10.1994 since the disturbance created by the defendants in possessing the suit land by the plaintiff.
5. The suit was contested only by the present appellant/defendant No. 1 and also submitted his written statement. It is the pleaded case of the defendant that the 'A' Schedule land belonged to his grandmother M. Nessa who gifted 10 Bighas out of the total 14 Bighas 2 Kathas and 18 Lechas by executing a registered deed on 30.8.1965 being Gift No. 3741/65. Prior to the execution of the said gift deed his grand mother relinquished the right title and interest in his favour by executing a registered deed of relinquishment on 26.8.57. The possession of the gifted land was also delivered to him and thus he become the absolute owner in respect of the said land. The defendant No. 1, however, admitted that he has no claim of right over the land described in the remaining schedules of the plaint. Upon the pleading of the parties, the learned trial Court framed the following issues:
1. Whether there is cause of action for the suit?
2. Whether the suit is under valued and in sufficient Court fee paid?
3. Whether the suit is barred by law of limitation?
4. Whether the suit is not maintainable in the present form?
5. Whether the plaintiff have right, title and interest and possession over the suit land?
6. To what relief or reliefs are the plaintiff entitled?
6. At the end of the trial, on going through the oral and documentary evidence, the learned trial judge decreed the suit in favour of the plaintiff/respondent which was carried into appeal in the Court of learned District Judge, Barpeta being Title Appeal No. 9/97. The learned District Judge vide impugned judgment and decree dated 20.3.1999 dismissed the appeal. Hence this second appeal.
7. Following substantial questions of law were framed for deciding the appeal.
1. Whether the decree passed by the learned Court below is vitiated by noncompliance of the provisions of Order 20, Rule 18 CPC?
2. Whether in spite of not having claimed for specific right by way of counter claim or otherwise by the defendant appellant, the learned Court below was required to declare right of the defendant appellant?
8. For the convenience let me first ad dress to the substantial question No.2. In support of the aforesaid substantial question of law Mr. Dhar sumits that both the Courts below went on wrong in ignoring, rather refusing, the claim of right of the appellant/defendant No. 1 in respect of 10 Bighas of land out of total 14 Bighas 2 Kathas 18 Lechas as described in the schedule 'A' of the plaint in spite of the plaintiff having acquired valid right, title and interest over the same by virtue of the registered Gift Deed Ext. 'Kha'. The learned Counsel further submits that the grand mother of the defendant No. 1 initially re linquished her right in favour of the appellant by executing registered deed of relinquishment vide Ext. 'Ka', which was duly registered in the Sub-Registry Office at Barpeta, Exbt-'Ka'. Thereafter, her name having been recorded in the revenue record and after the land was converted into the status of periodic, and a separate periodic Patta No.6 having been issued in her favour, 10 Bighas thereafter were transferred in his favour by executing a registered gift deed dated 30.8.1965-Ext. 'Kha' accompanied with delivery of possession. However, during the pendency of the suit, the aforesaid land was further sold by him to different purchasers. The learned appellate Court, not having been considered the aforesaid right so acquired by the appellant over the aforesaid 10 Bigha land and having decreed the suit in its entirety in favour of the plaintiff/respondent, committed grave error of law.
9. Per contra, Mr. Basar, learned Counsel submits that the defendant has failed to show and establish that the doner Mariam Nessa has in fact acquired any right title and interest over the said land having right to transfer by way of gift, the part of the 'A' schedule land in favour of the appellant/defendant No. 1. He further submits that there is no basis or proof as to how Mariam Nessa become the owner of the aforesaid 'A' schedule land to confer valid title in favour of the appellant/ defendant No. 1. It is further submitted that the findings in this respect rendered by the both the Courts below are valid and proper and the same is not to be disturbed at the second appellate stage. 10. To appreciate the rival contentions made by the learned Counsel for the parties, I had to travel through the record of the case, more particularly Exts.' A and 'B'. Ext. 'A' is the original deed of relinquishment No. 4151 dated 26.8.1957. By the aforesaid deed of relinquishment the right in respect of 10 Bigha of land was relinquished in favour of the appellant while the land in question was annual Patta land. When the annual patta was converted into periodic Patta No. 6 in the name of the Mariam Nessa, she executed the registered deed of gift on 30.8.1965 donating the said 10 Bigha of land covered by the K.P. Patta No. 6 Dag No. 543 out of the total 14 Bighas 2 Kathas 18 Lechas in favour of the appellant. The documents are original and more than 30 years old. That apart, these two documents were exhibited without any objection. The learned trial Court while deciding the issue No. 5 has only recorded the submission made by the learned Counsel appearing for the respective parties without giving any independent decision of his own and decided the issue No. 5 in favour of the plaintiff/respondent and against the defendant/appellant. The learned appellate Court while scrutinizing the findings on issue No. ,5.. has categorically held that Mariam Nessa inherited the same from her husband and accordingly the appellant could not have acquired any right over the said land to the extent of 10 Bigha under the Mohammedan Law out of the total 14 Bigha 2 Katha 18 Lechas. The learned appellate Court also found that this subsequent transfer of the gifted land by the appellant discloses his intention to be dubious one. It is further held that Section 52 of the T.P. Act imposes legal bar in the matter of transfer of the landed property during the pendency of any suit. On such count, the learned appellate Court confirmed the decision of the trial Court against issue No. 5.
11. The issue No. 5, being the main issue, the suit was decided on the basis of the findings on issue No. 5. In fact, the learned Counsel for the appellant has not attacked the findings of the other issue except issue No. 5 and issue No. 6 which is consequential to the other issues.
12. Ext. 4 which is the Jamabandi in respect of the land described in the Schedule 'A' of the land recorded in the K.P. PattaNo. 6. Ext. 4 contains the Dag No. 543 and the total area of the land is 14 Bighas 2 Kathas 18 Lechas. Endorsement in Ext. 4 discloses that 10 Bigha of land out of the total patta land has been mutated in the name of the appellant on acquiring his right by way of gift deed. Thus, Ext. 4 discloses that separate K.P. Patta No. 6 was issued in the name of Mariam Nessa, before execution of the gift deed, by which she acquired absolute right over the same. The aforesaid patta has not been challenged by the plaintiff at any point of time. Issuance of patta give rise to a definite and specific right to the pattaholder under the Revenue Law.
13. A person following the Moham medan faith can transfer his property by way of gift or Hiba. A gift may be made for whole of the donor's property and it also may be made to an heir. Moham medan Law permits a pattadar to give away his entire property during his life time so as to disentitle his heirs. The contention of Mr. Basar would have been valid had it been a case of inheritance, as under the Mohammedan Law the different shares of property goes to different persons of different category, which is not in the case of a will. In view of the above discussion, I hold that the appellant acquired the valid right, title and interest over 10 Bighas of the suit land described in Schedule 'A' of the plaint by way of aforesaid deed.
14. In deciding the right of the plaintiff in a suit, the Court is duty bound to consider the right of the defendant as may be propounded in the pleading. The appellant having pleaded his right over 10 Bigha of land in Schedule 'A' property, the learned Court below ought to have considered the same on the basis of the documents and materials available on record and its facts.
15. In view of the above discussion, the second substantial question of law is answered in favour of the appellant/defendant No. 1 and the decision in issue No. 5 stands reversed. Learned counsel for the appellant does not press the other substantial questions of law.
16. The matter is remanded back to the learned trial Court for proper decision to be rendered in terms of the above discussion, in accordance with law.
17. Both the parties are directed to appear before the learned appellate Court on 17th March, 2008 on which date the learned appellate Court shall intimate the next date to the parties.
18. Since the appeal arises out of a suit filed in the year 1994, the learned trial Court shall dispose of the appellate as early as possible.
19. In the result, the impugned judgment and decree stands set aside and the appeal is allowed to the extent as indicated above.