Abdul Barek, By LRs. and Others Vs. Kuddus Ali and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1181940
CourtGuwahati High Court
Decided OnSep-04-2015
Case NumberRSA No. 183 of 2006
JudgeA.K. Goswami
AppellantAbdul Barek, By LRs. and Others
RespondentKuddus Ali and Others
Excerpt:
oral order: 1. heard mr. a. choudhury, learned counsel for the appellants. also heard mr. m.h. ahmed, learned counsel for the respondents. 2. this appeal is preferred by the defendants against the judgment and decree dated 18.07.2005 passed by the learned civil judge (sr. divn.), barpeta in title appeal no.54/2004, allowing the appeal of the plaintiffs and reversing the judgment and decree dated 21.08.2004 passed by the learned civil judge (jr. divn.) no.1, barpeta in title suit no.93/1998, whereby, the suit of the plaintiffs was dismissed. 3. this second appeal was admitted to be heard by an order dated 21.02.2007 on the following substantial question of law:- whether the suit of the plaintiff for right, title and interest can be decreed only on the ground that the defendant has no right, title and interest over the said land without being any discussion about the right of the plaintiff over the said land ? 4. the learned counsel for the parties submit that in the aforesaid substantial question of law, the word there after the word without and before the word being is inadvertently dropped. the learned counsel for the parties are correct in making that submission. 5. the case projected in the plaint, shorn of details, is to the effect that schedule a land measuring 16 bigha 1 katha 14 lecha belonged to one kadar baksha sheikh and schedule b land measuring 12 bigha 4 katha 4 lecha within schedule a is the suit land. kadar baksha sheikh had 3 sons, namely, sakar uddin, nur mohammad and sirajul haque and 2 daughters, namely, kadhbanu and darbari nessa. plaintiff no.1 to 9 are the heirs of sakar uddin and plaintiff nos.10 to 17 are the legal heirs of shirajul haque. however, in paragraph 1 of the plaint, nothing was mentioned with regard to plaintiff no.10. 6. kadar baksha sheikh had relinquished 4 bigha of land forming part of schedule a to the father of appellant nos.1 to 8 and husband of appellant no.1, namely, banu sheikh. banu sheikh had sold 2 katha 10 lecha of land out of the said 4 bigha to sakar uddin, which land is in schedule b. banu sheikh had sold 1 bigha of land to habibar rahman and therefore, he was in possession of 2 bigha 2 katha 10 lecha of land in the western part of 4 bigha land which was relinquished in his favour by kadar baksha sheikh. nur mohammad had no share left in schedule b land as he had sold his share to abdul jalil, habibar rahman and insar ali. kadhbanu had died unmarried and her share was merged with rest of the sons and daughters of late kadar baksha sheikh. darbari nessa also died leaving no heirs of her own. she, during her lifetime, had taken 2 bigha 2 katha 5 lecha of land and her share was purchased by the plaintiff nos.2,3 and 4. it was also stated that pro forma defendant sold his share to his brothers and accordingly, the plaintiffs were in possession of schedule b land. the further case of the plaintiffs is that banu sheikh illegally obtained mutation in respect of schedule a land on 28.05.1998. on 12.07.1967 also late banu sheikh had got mutation in respect of schedule a land on the ground of relinquishment in place of late sakar uddin, nur mohammad, late sirajul haque, late darbari nessa and late kadhbanu without knowledge of the plaintiffs, though banu sheikh had possession over only 2 bigha of land. accordingly, plaintiffs filed the suit, amongst others, praying for declaration of right, title and interest and confirmation in respect of schedule b land in favour of the plaintiffs. 7. in the written statement, amongst others, plea was taken that suit was barred under section 154 of the assam land and revenue regulation, 1886 (for short, the 1886 regulation ) as well as for non-joinder of necessary parties. the stand taken in the written statement was that during the settlement operation, periodic patta no.67 was issued in the names of late kadar baksha sheikh and late banu sheikh and banu sheikh was in possession of 8 bigha of land. kadar baksha sheikh had relinquished 4 bigha of land in favour of banu sheikh and mutation orders were accordingly passed on 13.05.1959. as the mutation order was passed during settlement period there was no need to record the same in the patta issued in the year 1965. it is further pleaded that the heirs of kadar baksha sheikh relinquished another 4 bigha of land and accordingly, mutation order was passed in favour of banu sheikh on 12.07.1967. subsequently, in the year 1997-98, banu sheikh prayed for recording the mutation order passed on 13.05.1959. the order dated 28.05.1998 of circle officer, kalgachia did not create any further right and was in a way confirmation of the order of his predecessor dated 12.07.1967 which had not been challenged all these years. 8. the learned trial court held that the suit was barred by limitation. it was also recorded that suit was bad for non-joinder of darbari nessa, who was a necessary party. in view of vagueness in the pleading and for non-production of any documentary evidence in the form of sale deeds, the learned trial court held that the plaintiffs failed to prove their title over the schedule b land. resultantly, the suit was dismissed by the learned trial court. 9. the learned lower appellate court reversed the findings recorded against the plaintiffs and accordingly, allowed the appeal. the learned lower appellate court held that the defendants claimed the suit land on the basis of mutation, which does not create or extinguish any right in respect of any land. 10. mr. a. choudhury, learned counsel for the appellants has, in tune with the substantial question of law framed, submitted that it is for the plaintiffs to prove the case in order to enable them to get a decree as prayed for and assuming that there is a weakness in the case of the defendants, same will not, per se, entitle the plaintiffs to get a decree. he has submitted that plaint is absolutely vague as recorded by the learned trial court and it was not possible to find out on what basis the plaintiffs had claimed right, title and interest in respect of schedule b land. though they also referred to purchases made in respect of land falling within schedule b, no sale deeds had been exhibited by the plaintiffs. darbari nessa was not dead, as pleaded in the plaint, and during the course of evidence, it came out that darbari nessa was also alive. the learned lower appellate court proceeded as if darbari nessa was no more and it was wrongly held that there is no dispute regarding the sale made by darbari nessa. accordingly, he submits that the second appeal deserves to be allowed. 11. mr. m.h. ahmed, learned counsel for the respondents has, on the other hand, submitted that on the basis of materials on record, the learned lower appellate court found that the plaintiffs had established the case projected by them and accordingly, had decreed the suit. mr. ahmed concedes that kadar baksha sheikh had relinquished 4 bigha of land in favour of banu sheikh and there is no dispute on that score. however, defendants miserably failed to prove the assertion made in the written statement that heirs of kadar baksha sheikh had relinquished 4 more bighas of land in favour of banu sheikh and therefore, no illegality was committed by the learned lower appellate court in decreeing the suit of the plaintiffs. 12. i have considered the submissions of the learned counsel for the parties and have perused the evidence on record. 13. in the plaint, in paragraph 2, the plaintiffs stated that nur mohammad had sold out his share to abdul jalil, habibar rahman and insar ali and thus he had no share left in schedule b land. nur mohammad is pro forma defendant no.1 and it is also averred in a subsequent portion of the plaint that nur mohammad had sold his share to his brothers, i.e., the predecessors of the plaintiffs. as nur mohammad had exhausted his share, he could not have again transferred back properties to the plaintiffs unless there was again transfer by abdul jalil, habibar rahman and answer ali to him. there is no such pleading and therefore, evidently plaintiffs cannot claim any portion of land which earlier formed part of share of nur mohammad. the learned trial court had rightly held that the pleading is ambiguous and vague. 14. mr. choudhury is right in his submission that according to the own version of pw-1, darbari nessa was alive. it is significant to note that she was proclaimed dead in the plaint and the learned lower appellate court had also proceeded on the basis thereof in holding that as she did not have any heir, no question arose regarding non-joinder of necessary party for not arraying darbari nessa. the learned lower appellate court wrongly held that there is no dispute with regard to the sale made by darbari nessa measuring 2 bigha 2 katha 5 lecha of land. no sale deed was produced by the plaintiffs demonstrating sale made by darbari nessa. in cross-examination, pw-1 had stated that darbari nessa had got 2 bigha 3 katha of land and she is in possession of the said land. 15. dw-1, in his examination-in-chief, had stated that the defendants, even after death of banu sheikh, are in possession of 6 bigha of land. 16. the right, title and interest of the plaintiffs in respect of the suit land was decided by the learned lower appellate court as follows:- 12. . the plaintiffs/appellants claimed the right, title, interest and possession over 12 bighas 3 kathas 14 lechas of land described in schedule-b of the plaint. it is also found that the suit patta no.67 contained 16 bighas 1 katha 4 lechas of land out of which the plaintiffs/appellants claimed their right, title and interest over 12 bighas 3 kathas 4 lechas of land. the plaintiffs/appellants side admitted in their evidence that their predecessor-in-interest relinquished 4 bighas of land in favour of late banu sheikh out of which sakaruddin purchased 2 kathas 10 lechas of land. the share of late darbari nessa measuring 2 bighas 2 kathas 5 lechas of land purchased by plaintiff/appellant nos.2, 3 and 4. on the other hand the share of nur mohammad sons of kader baksh was purchased by abdul jalil, habibar rahman and inser ali. the defendants/respondents side only claimed the suit land on the basis of mutation granted by the c.o. kalgasia. regarding this the ld. advocate on behalf of the plaintiffs/appellants submitted that mutation cannot create or extinguish any right on any person. regarding this the ld. advocate on behalf of the plaintiffs/appellants cited 1991 (1) gauhati law journal 152 shri lakheswar phukan and others appellants -versus- shri nandeswar buragohain respondents. 17. thereafter, having quoted paragraph 11 of the said judgment, it was again held as follows:- from the ruling of the hon ble supreme court and hon ble gauhati high court it becomes crystal clear that the mutation entries cannot create or extinguish any right, title and interest over the land. accordingly, i am of the opinion that as the defendants/respondents mainly contested the suit on the basis of mutation of the suit land and the mere mutation cannot confer any right, title and interest over the suit land. therefore, it is seen that the plaintiffs/appellants have got their right, title and interest over the suit land. the ld. court below has erroneously decided the issue against the plaintiffs/appellants. in the light of my discussion in issue no.5 i am of the opinion that the decision of the ld. court below in issue no.6 7, 8 and 9 are also erroneous. 18. the argument advanced by mr. ahmed that as the defendants failed to prove the relinquishment of additional 4 bigha of land in favour of the defendants, the plaintiffs are entitled to the decree as prayed for has no merit. it is for the plaintiffs to establish the case in order to enable them to obtain a decree. the learned lower appellate court was right in holding that mutation entries do not establish or extinguish title. however, the learned lower appellate court could not have decreed the suit on the basis of failure of the defendants to establish their case. the portions of the judgment of the learned lower appellate court extracted hereinabove go to show that the suit of the plaintiffs was decreed on that ground alone. it was for the plaintiffs to prove their case regarding right, title and interest in respect of the schedule b land. there was no pleading and proof with regard to share of the plaintiffs on the basis of inheritance. sale deeds on the basis of which the plaintiffs claim some land in the schedule b are also not exhibited. 19. in view of the above discussion, i am of the opinion that considering the state of pleading and the evidence on record, the learned trial court was right in holding that plaintiffs did not succeed in establishing their right, title and interest over the schedule b land. accordingly, the impugned judgment of the learned civil judge (sr. divn.), barpeta is set aside and the judgment of the learned civil judge (jr. divn.) no.1, barpeta is upheld. the substantial question of law is answered in favour of the appellant. no cost. 20. registry will send back the records.
Judgment:

Oral Order:

1. Heard Mr. A. Choudhury, learned counsel for the appellants. Also heard Mr. M.H. Ahmed, learned counsel for the respondents.

2. This appeal is preferred by the defendants against the judgment and decree dated 18.07.2005 passed by the learned Civil Judge (Sr. Divn.), Barpeta in Title Appeal No.54/2004, allowing the appeal of the plaintiffs and reversing the judgment and decree dated 21.08.2004 passed by the learned Civil Judge (Jr. Divn.) No.1, Barpeta in Title Suit No.93/1998, whereby, the suit of the plaintiffs was dismissed.

3. This second appeal was admitted to be heard by an order dated 21.02.2007 on the following substantial question of law:-

Whether the suit of the plaintiff for right, title and interest can be decreed only on the ground that the defendant has no right, title and interest over the said land without being any discussion about the right of the plaintiff over the said land ?

4. The learned counsel for the parties submit that in the aforesaid substantial question of law, the word there after the word without and before the word being is inadvertently dropped. The learned counsel for the parties are correct in making that submission.

5. The case projected in the plaint, shorn of details, is to the effect that Schedule A land measuring 16 Bigha 1 Katha 14 Lecha belonged to one Kadar Baksha Sheikh and Schedule B land measuring 12 Bigha 4 Katha 4 Lecha within Schedule A is the suit land. Kadar Baksha Sheikh had 3 sons, namely, Sakar Uddin, Nur Mohammad and Sirajul Haque and 2 daughters, namely, Kadhbanu and Darbari Nessa. Plaintiff No.1 to 9 are the heirs of Sakar Uddin and plaintiff Nos.10 to 17 are the legal heirs of Shirajul Haque. However, in paragraph 1 of the plaint, nothing was mentioned with regard to plaintiff No.10.

6. Kadar Baksha Sheikh had relinquished 4 Bigha of land forming part of Schedule A to the father of appellant Nos.1 to 8 and husband of appellant No.1, namely, Banu Sheikh. Banu Sheikh had sold 2 Katha 10 Lecha of land out of the said 4 Bigha to Sakar Uddin, which land is in Schedule B. Banu Sheikh had sold 1 Bigha of land to Habibar Rahman and therefore, he was in possession of 2 Bigha 2 Katha 10 Lecha of land in the western part of 4 Bigha land which was relinquished in his favour by Kadar Baksha Sheikh. Nur Mohammad had no share left in Schedule B land as he had sold his share to Abdul Jalil, Habibar Rahman and Insar Ali. Kadhbanu had died unmarried and her share was merged with rest of the sons and daughters of Late Kadar Baksha Sheikh. Darbari Nessa also died leaving no heirs of her own. She, during her lifetime, had taken 2 Bigha 2 Katha 5 Lecha of land and her share was purchased by the plaintiff Nos.2,3 and 4. It was also stated that pro forma defendant sold his share to his brothers and accordingly, the plaintiffs were in possession of Schedule B land. The further case of the plaintiffs is that Banu Sheikh illegally obtained mutation in respect of Schedule A land on 28.05.1998. On 12.07.1967 also Late Banu Sheikh had got mutation in respect of Schedule A land on the ground of relinquishment in place of Late Sakar Uddin, Nur Mohammad, Late Sirajul Haque, Late Darbari Nessa and Late Kadhbanu without knowledge of the plaintiffs, though Banu Sheikh had possession over only 2 Bigha of land. Accordingly, plaintiffs filed the suit, amongst others, praying for declaration of right, title and interest and confirmation in respect of Schedule B land in favour of the plaintiffs.

7. In the written statement, amongst others, plea was taken that suit was barred under Section 154 of the Assam Land and Revenue Regulation, 1886 (for short, the 1886 Regulation ) as well as for non-joinder of necessary parties. The stand taken in the written statement was that during the settlement operation, Periodic Patta No.67 was issued in the names of Late Kadar Baksha Sheikh and Late Banu Sheikh and Banu Sheikh was in possession of 8 Bigha of land. Kadar Baksha Sheikh had relinquished 4 Bigha of land in favour of Banu Sheikh and mutation orders were accordingly passed on 13.05.1959. As the mutation order was passed during settlement period there was no need to record the same in the patta issued in the year 1965. It is further pleaded that the heirs of Kadar Baksha Sheikh relinquished another 4 Bigha of land and accordingly, mutation order was passed in favour of Banu Sheikh on 12.07.1967. Subsequently, in the year 1997-98, Banu Sheikh prayed for recording the mutation order passed on 13.05.1959. The order dated 28.05.1998 of Circle Officer, Kalgachia did not create any further right and was in a way confirmation of the order of his predecessor dated 12.07.1967 which had not been challenged all these years.

8. The learned Trial Court held that the suit was barred by limitation. It was also recorded that suit was bad for non-joinder of Darbari Nessa, who was a necessary party. In view of vagueness in the pleading and for non-production of any documentary evidence in the form of sale deeds, the learned Trial Court held that the plaintiffs failed to prove their title over the Schedule B land. Resultantly, the suit was dismissed by the learned Trial Court.

9. The learned lower Appellate Court reversed the findings recorded against the plaintiffs and accordingly, allowed the appeal. The learned lower Appellate Court held that the defendants claimed the suit land on the basis of mutation, which does not create or extinguish any right in respect of any land.

10. Mr. A. Choudhury, learned counsel for the appellants has, in tune with the substantial question of law framed, submitted that it is for the plaintiffs to prove the case in order to enable them to get a decree as prayed for and assuming that there is a weakness in the case of the defendants, same will not, per se, entitle the plaintiffs to get a decree. He has submitted that plaint is absolutely vague as recorded by the learned Trial Court and it was not possible to find out on what basis the plaintiffs had claimed right, title and interest in respect of Schedule B land. Though they also referred to purchases made in respect of land falling within Schedule B, no sale deeds had been exhibited by the plaintiffs. Darbari Nessa was not dead, as pleaded in the plaint, and during the course of evidence, it came out that Darbari Nessa was also alive. The learned lower Appellate Court proceeded as if Darbari Nessa was no more and it was wrongly held that there is no dispute regarding the sale made by Darbari Nessa. Accordingly, he submits that the second appeal deserves to be allowed.

11. Mr. M.H. Ahmed, learned counsel for the respondents has, on the other hand, submitted that on the basis of materials on record, the learned lower Appellate Court found that the plaintiffs had established the case projected by them and accordingly, had decreed the suit. Mr. Ahmed concedes that Kadar Baksha Sheikh had relinquished 4 Bigha of land in favour of Banu Sheikh and there is no dispute on that score. However, defendants miserably failed to prove the assertion made in the written statement that heirs of Kadar Baksha Sheikh had relinquished 4 more Bighas of land in favour of Banu Sheikh and therefore, no illegality was committed by the learned lower Appellate Court in decreeing the suit of the plaintiffs.

12. I have considered the submissions of the learned counsel for the parties and have perused the evidence on record.

13. In the plaint, in paragraph 2, the plaintiffs stated that Nur Mohammad had sold out his share to Abdul Jalil, Habibar Rahman and Insar Ali and thus he had no share left in Schedule B land. Nur Mohammad is pro forma defendant No.1 and it is also averred in a subsequent portion of the plaint that Nur Mohammad had sold his share to his brothers, i.e., the predecessors of the plaintiffs. As Nur Mohammad had exhausted his share, he could not have again transferred back properties to the plaintiffs unless there was again transfer by Abdul Jalil, Habibar Rahman and Answer Ali to him. There is no such pleading and therefore, evidently plaintiffs cannot claim any portion of land which earlier formed part of share of Nur Mohammad. The learned Trial Court had rightly held that the pleading is ambiguous and vague.

14. Mr. Choudhury is right in his submission that according to the own version of PW-1, Darbari Nessa was alive. It is significant to note that she was proclaimed dead in the plaint and the learned lower Appellate Court had also proceeded on the basis thereof in holding that as she did not have any heir, no question arose regarding non-joinder of necessary party for not arraying Darbari Nessa. The learned lower Appellate Court wrongly held that there is no dispute with regard to the sale made by Darbari Nessa measuring 2 Bigha 2 Katha 5 Lecha of land. No sale deed was produced by the plaintiffs demonstrating sale made by Darbari Nessa. In cross-examination, PW-1 had stated that Darbari Nessa had got 2 Bigha 3 Katha of land and she is in possession of the said land.

15. DW-1, in his examination-in-chief, had stated that the defendants, even after death of Banu Sheikh, are in possession of 6 Bigha of land.

16. The right, title and interest of the plaintiffs in respect of the suit land was decided by the learned lower Appellate Court as follows:-

12. .

The plaintiffs/appellants claimed the right, title, interest and possession over 12 Bighas 3 Kathas 14 Lechas of land described in Schedule-B of the plaint. It is also found that the suit patta No.67 contained 16 Bighas 1 Katha 4 Lechas of land out of which the plaintiffs/appellants claimed their right, title and interest over 12 Bighas 3 Kathas 4 Lechas of land. The plaintiffs/appellants side admitted in their evidence that their predecessor-in-interest relinquished 4 Bighas of land in favour of late Banu Sheikh out of which Sakaruddin purchased 2 Kathas 10 Lechas of land. The share of late Darbari Nessa measuring 2 Bighas 2 Kathas 5 Lechas of land purchased by plaintiff/appellant Nos.2, 3 and 4. On the other hand the share of Nur Mohammad sons of Kader Baksh was purchased by Abdul Jalil, Habibar Rahman and Inser Ali. The defendants/respondents side only claimed the suit land on the basis of mutation granted by the C.O. Kalgasia. Regarding this the Ld. Advocate on behalf of the plaintiffs/appellants submitted that mutation cannot create or extinguish any right on any person. Regarding this the Ld. Advocate on behalf of the plaintiffs/appellants cited 1991 (1) Gauhati Law Journal 152 Shri Lakheswar Phukan and Others appellants -Versus- Shri Nandeswar Buragohain respondents.

17. Thereafter, having quoted paragraph 11 of the said judgment, it was again held as follows:-

From the ruling of the Hon ble Supreme Court and Hon ble Gauhati High Court it becomes crystal clear that the mutation entries cannot create or extinguish any right, title and interest over the land. Accordingly, I am of the opinion that as the defendants/respondents mainly contested the suit on the basis of mutation of the suit land and the mere mutation cannot confer any right, title and interest over the suit land. Therefore, it is seen that the plaintiffs/appellants have got their right, title and interest over the suit land. The Ld. Court below has erroneously decided the issue against the plaintiffs/appellants. In the light of my discussion in issue No.5 I am of the opinion that the decision of the Ld. Court below in issue No.6 7, 8 and 9 are also erroneous.

18. The argument advanced by Mr. Ahmed that as the defendants failed to prove the relinquishment of additional 4 Bigha of land in favour of the defendants, the plaintiffs are entitled to the decree as prayed for has no merit. It is for the plaintiffs to establish the case in order to enable them to obtain a decree. The learned lower Appellate Court was right in holding that mutation entries do not establish or extinguish title. However, the learned lower Appellate Court could not have decreed the suit on the basis of failure of the defendants to establish their case. The portions of the judgment of the learned lower Appellate Court extracted hereinabove go to show that the suit of the plaintiffs was decreed on that ground alone. It was for the plaintiffs to prove their case regarding right, title and interest in respect of the Schedule B land. There was no pleading and proof with regard to share of the plaintiffs on the basis of inheritance. Sale deeds on the basis of which the plaintiffs claim some land in the Schedule B are also not exhibited.

19. In view of the above discussion, I am of the opinion that considering the state of pleading and the evidence on record, the learned Trial Court was right in holding that plaintiffs did not succeed in establishing their right, title and interest over the Schedule B land. Accordingly, the impugned judgment of the learned Civil Judge (Sr. Divn.), Barpeta is set aside and the judgment of the learned Civil Judge (Jr. Divn.) No.1, Barpeta is upheld. The substantial question of law is answered in favour of the appellant. No cost.

20. Registry will send back the records.