Dismissed

On the Death of Khalilor Rahman, His Legal Heirs Moon Saikia and 3 Ors. v. on the Death of Makib Ahmed His Legal Heirs Musstt. Salma Begum Wife and Ors.

Gauhati HC3 Dec 2019RSA/50/2004

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against dismissal of a suit for declaratory relief and possession of land. The Court held the suit was barred by limitation and reversed the lower court's finding regarding non-joinder of necessary parties.

What did the court decide?

Appeal dismissed; original judgment and decree upheld.

What the court decided

On the Death of Khalilor Rahman, His Legal Heirs Moon Saikia and 3… — Partition | Gauhati HC (2019)

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Page No.# 1/11

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GAHC010003622004

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : RSA 50/2004

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1:ON THE DEATH OF KHALILOR RAHMAN, HIS LEGAL HEIRS MOON SAIKIA AND 3 ORS.

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RANGIA, MOUZA-PANDURI, WARD NO.4, RANGIA TOWN, PO AND PSRANGIA

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1.1: MOON SAIKIA N.T. ROAD WARD NO.4 RANGIA TOWN PO AND PS-RANGIA

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1.2: ISPAKUR RAHMAN

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N.T. ROAD WARD NO.4 RANGIA TOWN PO AND PS-RANGIA

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1.3: BABUL SAIKIA N.T. ROAD WARD NO.4 RANGIA TOWN PO AND PS-RANGIA

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1.4: MUSSTT. GOLAPJAN BEGUM N.T. ROAD WARD NO.4 RANGIA TOWN PO AND PS-RANGI

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VERSUS

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1:ON THE DEATH OF MAKIB AHMED HIS LEGAL HEIRS MUSSTT. SALMA BEGUM WIFE and ORS MD. KHIJIR AHMED SON MUSSTT. RESMA BEGUM DAU

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Advocate for the Petitioner : MR.N CHAKRABORTY

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Advocate for the Respondent : MS. S BARUA

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B E F O R E

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HON’BLE MR. JUSTICE KALYAN RAI SURANA

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:ORDER:

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03.12.2019

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Heard Mr. A.C. Sarma, learned senior counsel, assisted by Mr. B. Deori, learned counsel for the appellants. None appears on call for the respondents.

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This appeal under Section 100 C.P.C. is directed against the judgment and decree dated 25.11.2003, passed by the learned Civil Judge (Senior Division) No.3, Kamrup, Guwahati in T.A. No. 60/2002, thereby affirming the judgment and decree dated 16.09.2002, passed by the learned Civil Judge (Junior Division), Rangia in T.S. No.3/1996.

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This appeal is by the plaintiff. In course of the proceeding, the sole appellant had died and he was substituted by his legal representatives. The respondent No.1 was arrayed as defendant No.1 in the suit.

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The truncated case projected in the plaint is that Late Purna Saikh and Late Gomla Saikh were two brothers, who were the owners of 4B-2K-13L, land described in Schedule-A of the plaint. The respondent No.1 in the suit is the son of Late Purna Saikh and the appellant No.1 is the son of Late Gomla Saikh. At the time of filing the suit, he projected himself to be 60 years old and that his father is stated to have died about 55 years ago and accordingly, the appellant was under the care of Late Gomla Saikh. It is projected that

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although Late Gomla Saikh had sold of 3B-2K-13L out of the said Schedule-A land to respondent No.2 in the year 1936, claiming it to be actually a gift as the land was sold without any sale consideration. It is also projected that the said land was not sold for the benefit of the appellant to meet his expenses. It is projected that the sold land was mutated in the name of respondent No.2 on 27.05.1963. It is claimed that there was amicable partition between the appellant and the respondent No.1 in the presence of village elders. Thereafter, in connection with Perfect Partition Case No. 8/1981-52 and 22/1951-52, land measuring about 1B-3K-17L, described in Schedule-B of the plaint was apportioned in the share of the appellant. It was claimed that although the respondent No.2 had purchased 3B2K-13L, but vide order dated 23.06.1995 passed by the S.D.C., Rangia, the name of respondent No.2 was mutated in respect of entire 4B-2K-13L of Schedule-A. Claiming that the respondent No.2 had illegally encroached and constructed temporary construction over excess land, which was earlier in his possession. Accordingly, the appellants had prayed for declaration of absolute title in respect of the suit land and for confirmation of possession of Schedule-B land. It was also prayed for cancellation of collusive and fraudulent sale deed executed by Late Purna Saikh, and for correction of land records. The appellant had also prayed for issuance of precept, for direction to defendants No.2 to 7 to deposit rent for temporary shed constructed on Schedule-B land, and for cost.

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The respondents No.1 and 2 had filed their separate written statement and denied the statements made in the plaint. The respondent No.1 had also filed a counter-claim along with his written statement, praying for declaring and confirming right, title, interest and possession over the land measuring 4K-10L covered by Dag No. 1243, 1244 and 1246 of K.P. Patta No. 109; to uphold the order dated 30.03.1995 passed by Circle Officer in M.C. 6/94-95; and confirmation of right, title, interest and possession over 10L land covered by Dag No. 1245 of K.P. Patta No. 121; and for cost.

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On the basis of pleadings, the learned trial Court had framed the following issues and additional issues for trial:-

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Is there any cause of action for the suit?

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Whether the suit is maintainable in its present form?

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Whether the suit is barred by law of limitation?

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Whether the suit is bad for non-joinder and mis-joinder of necessary parties?

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Whether the plaintiff has got right, title and interest over the suit land by right of perfect partition as per perfect partition case Nos.8/51-52 and 22/51-52?

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Whether the father of the defendant No.1 was the absolute owner and possessor of 3 bigha, 2 kahta, 13 lecha land, and if so, whether the said deed No.2514 dated 1-8-36, purported to have been executed by the father of the defendant No.1 in favour of the defendant No.2 is valid?

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Whether the defendant No.2 got mutation over the suit land in the year 1963 fraudulently and collusively on the strength of the alleged sale deed executed by the father of the defendant No.1 in the year 1936 when the plaintiff was a minor?

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Whether the main defendants and the proforma defendants are liable to be ejected being illegal, trespassers and occupiers of the suit land and khas possession over the suit land be restored to the plaintiff?

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Whether the defendant No.2 has got absolute title and possession over the suit land since 1-8-36?

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Whether the plaintiff is entitled to a decree as prayed for?

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What relief(s), if any, the parties are entitled to?

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Additional Issues

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Whether the suit is properly valued?

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Whether the defendant No.1 is entitled to claim right, title and possession over the suit land?

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In support of the plaint, the appellants had examined two witnesses and

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exhibited the following documents, viz., (i) Certified copy of Power of Attorney by appellant in favour of his son Lutfur Rahman (Ext.1); (ii) Periodic Khiraj Patta No. 228 (Ext.2); (iii) Draft jamabandi of 1959-64 of Patta No. 88 & 137 (Old) (Ext.3); (iv) Certified copy of Sale Deed bearing Registered Deed No. 2514 dated 01.08.1936 (Ext.4); (v) Jamabandi of year 1923-28 in respect of Patta No. 88 (New) (Ext.5); (vi) Land revenue paid receipt (sic., it is actually a Statement List of Estate to be sold for land revenue arrear) [Ext.6(1)]; (vii) Land revenue paid receipt (sic., it is actually a Statement List of Estate to be sold for land revenue arrear) [Ext.6(2)]; (viii) Hospital admission receipt dated 29.09.1958. The respondents No.1 and 2 examined 6(six) witnesses and exhibited the following documents, viz., (i) Draft Chitha of Dag No. 1244 (Ext.Ka); (ii) Draft Chitha of Dag No. 1243 (Ext.Kka); (iii) Draft Chitha of Dag No. 1247 and 1246 (Ext.Ga); (iv) Draft Chitha of Dag No. 1242 (Ext.Gha); (v) Draft Chitha of Dag No. 1264 (Ext.Unga); (vi) Draft Chitha of Dag No. 1227 (Ext.Cha); (vii) Jamabandi of Patta No. 121 (Ext.Chha); (viii) Jamabandi of Patta No. 109 (Ext.Ja); (viii) Jamabandi of Patta No. 61 (Ext.Jha); (ix) Patta No. 236 (Ext.Ya); (x) Order dated 23.03.1995 in Misc. Case No. 6/9495 (Ext.Ta); (xi) Order dated 26.03.1999 in RA 13/95-96 (Ext.Tha); (xii) Patta of land of Madrassa (Ext.Da); (xiii) Jamabandi of Patta No. 109 of Madrassa (Ext.Dha); (xiv) Sale Deed (Ext.Niya); (xv) Sale Deed [Ext.Niya(1)]; (xvi) Draft Chitha of Dag No. 573/574 of Patta No. 179 (Ext.Taa); (xvii) Land Revenue paid receipt (Ext.Thaa).

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In respect of issue No.1, the learned trial Court had held that there was cause of action for the suit. In respect of issue No.2, it was held that the suit was maintainable. In respect of issue No.3, it was held that the sale deed was executed on 01.08.1936, but the appellant herein had not stated about his age on the date of execution of the sale deed and the date of attaining majority, but considering his age to be 60 years on the date when the suit was filed, it was held that the suit was barred under Article 59 of the Schedule to the Limitation Act. In respect of issue No.4, it was held that the Madrassa and the State of Assam were necessary parties and, as such, the suit was bad for non- joinder of necessary parties. In respect of issue No.5, it was held that the appellant could not prove his share by way of Perfect Partition Case Nos. 8/51-52 and 22/51-52 by calling for such records and, as such, it was held that the appellant herein did not get the suit land by said partition

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cases. In respect of issue No.6, it was held that the appellant herein could not prove that the sale deed was fraudulent, and it was held to be valid. Issue No.7 was held to be beyond jurisdiction of the Court and, as such, it was left undecided. In view of decision in issues No. 3, 4 and 5, it was held in respect of issue No.8 that the respondent No.2 was not liable to be ejected. In respect of issue No.9, it was held that the respondent No.2 had subsisting title over the suit land. In respect of additional issue No.12, it was held that the suit was valued for jurisdiction and by holding that the suit was not properly valued and the said issue was decided in the negative. Additional issue No.13 was decided against the respondent No.2 because the counter-claim was not valued and no court fees had been paid thereon. In view of the finding in respect of issues No.3, 4, 5 and 9, the appellant was not found to be entitled to any relief. Accordingly, the suit and the counter-claim by the respondent No.1 was both dismissed.

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The aggrieved appellants preferred an appeal against the judgment and decree passed in the suit. However, the respondent No.1 did not file any cross objection of any independent appeal against dismissal of his counter- claim.

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Notwithstanding that the learned first appellate Court had not formulated any points of determination, but it had re-visited all the issues decided by the learned trial Court by going through the pleadings and the evidence on record. In respect of issue No.4, the learned first appellate Court had held that the suit was not bad for non- joinder of the Madrassa and State of Assam and accordingly, the decision of the learned trial Court on the said issue was reversed. Except for the reversal of finding on issue No.4, the decision of the learned trial Court on all the other issues was affirmed and resultantly, the appeal was dismissed.

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This appeal was admitted by order dated 13.05.2004 on the following two substantial questions of law; viz., (1) whether the decision of the Court below in dismissing the suit for not impleading the State of Assam as defendant? and (2) whether a purchaser of

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land can enforce his right in respect of any part and parcel of property as a whole after partition?

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The learned senior counsel for the appellant has meticulously read the plaint, the written statement by the respondents No.1 and 2, the examination in chief and crossexamination of all the witnesses and the judgment by both the learned courts below. It is submitted that the learned Courts below had failed to appreciate that the appellant was a minor when his uncle had sold one portion of the suit land described in Schedule-A of the plaint. It is also submitted that no one had disputed or denied that at the time when the said sale deed was executed on 01.08.1936, the appellant was not a minor. It is also submitted that no one had disputed that the appellant was not suffering from tuberculosis since 29.09.1958. Accordingly, it is submitted that the appellant was suffering from legal disability for which he could not file the suit earlier. Moreover, it is submitted that prior to the year 1995, the appellant was in possession of Schedule-B land and that he was never aware of the alleged sale of part of suit land to the respondent No.2 by his uncle, namely, Purna Saikh and that in the year 1995, only when the respondent No.2 had trespassed into the suit land and illegally constructed temporary shed in the land under his possession, he had made an enquiry and came to know about the existence of the illegal and fraudulent sale deed and, as such, it is submitted that the learned Courts below had erred in appreciating the facts and evidence in its correct perspective for which the appeal deserved to be allowed.

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The learned senior counsel for the appellant had submitted that from the date of knowledge of execution of the fraudulent and illegal sale deed, the suit was filed well within the period of limitation. By referring to the evidence on record, it is submitted that there was a perfect partition and thereafter, the land described in Schedule-A and B was held to fall in the share of the appellant and that the sale of schedule-A land was not mentioned therein, as such, it must be held that the sale deed dated 01.08.1936 was a farce and, as such, the respondent No.2 never took any initiative to get the purchased land mutated in his favour or in favour of the Madrassa concerned. Moreover, it is submitted that although the respondent No.2 had purchased 3B-2K-13L, but vide order dated 23.06.1995 passed by the

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S.D.C., Rangia, the name of respondent No.2 was mutated in respect of entire 4B-2K-13L of Schedule-A, which was illegal and passed in connivance with the concerned land revenue staff, as such, by dint of continuous actual physical possession over the land described in Schedule-A and Schedule-B, the right of the respondent No.2 had extinguished and, as such, the respondent No.2 had no lawful power or legal authority to enforce his right in respect of any part and parcel of the land covered by registered sale deed dated 01.08.1936.

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Having heard the learned senior counsel for the appellant, perused the lower Court records as called for and received from the learned Courts below. Having appreciated the pleadings and evidence on record, it is observed that the appellant had not made any statement in the plaint about the date of his birth. The suit was instituted on 24.01.1996 and the appellant had declared his age to be 60 years, as such, his year of birth would be 1936. Yet there is no evidence before the Court to hold that the appellant was born prior to 01.08.1936. Nonetheless, it has been pleaded in the plaint that the father of the appellant had died 55 years ago, which would be sometime in the year 1941. However, there is nothing on record to show that the father had raised any objection against the sale of Schedule-A land or part thereof to respondent No.2. If the appellant is taken to be born in the year 1936, he had attained the age of majority, i.e. 18 years in the year 1954. As per clause (a) of Article 60 of the Schedule of the Limitation Act, 1963 the period of limitation to set aside a transfer of property made by the guardian is within three years when ward attains majority. The said period would expire in the year 1957. Therefore, considering the projection made by the appellant through Ext.7 that he was admitted in Reid Chest Hospital on 29.09.1958, and he was suffering from legal disability, however, by that time, the period prescribed to assail the sale deed had already lapsed. Therefore, the appellant cannot take advantage of order passed in the two perfect partition cases, where no reference is made about transfer of Schedule-A land by Sale Deed dated 01.08.1936.

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The appellant had not tendered any documentary evidence to show that he was enjoying actual physical possession of any portion of the land described in Schedule-A or Schedule-B of the plaint. The appellant had exhibited Ext.6(1) and Ext.6(2) by referring it to

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be land revenue receipt, but on a plain reading thereof, it is seen that the said exhibits are actually a “Statement List of Estate to be sold for land revenue arrear”.

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Moreover, it is seen that in paragraph 1 of page- 3 of the plaint, the appellant has made a specific statement that he had mutually separated from the main defendants, apportioning their respective share. However, neither the date of such separation had been pleaded nor any written memorandum of such separation had been exhibited. The appellant has also not examined any independent witnesses in whose presence the partition had been done. It is also not specifically pleaded that during the amicable partition, the existence of sale deed dated 01.08.1936 was not disclosed to him.

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Thus, it is found that both the learned Courts below had rightly held that the suit was barred by limitation.

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It is reiterated at the cost of repetition that the appellant had exhibited the certified copy of Sale Deed bearing Registered Deed No. 2514 dated 01.08.1936 (Ext.4). Thus, there is no reason why title should not prevail over entries in the land revenue records like (i) Periodic Khiraj Patta No. 228 (Ext.2), and (ii) draft jamabandi of 1959-64 of Patta No. 88 & 137 (Old) (Ext.3). Admittedly, the entry in the jamabandi (Ext.5) is of the year 1923-28 in respect of Patta No. 88 (New), which was prior to the execution and registration of the sale deed (Ext.4). The late mutation of purchased land by the respondent No.2 may be an irregularity, but not illegal under any Act, Rules or Regulation in force, which does not affect or cloud the title of the respondent No.2, which flows from the sale deed (Ext.4).

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In light of the discussion above, the substantial question of law No.1 is taken up now. The said question is related to issue No.4 as framed by the learned trial Court. In this regard, it is already discussed above that the learned first appellate Court had held that the suit was not bad for non- joinder of the Madrassa and State of Assam and accordingly, the decision of the learned trial Court on the said issue was reversed. Thus, in view of the

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said finding by the learned first appellate Court, the first substantial question of law has become redundant and is not required to be answered on being already settled by the learned first appellate Court.

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The substantial question of law No.2 is taken up now. In this regard, the case projected by the appellant in the plaint is that taking advantage of his absence, the respondent No.2 had trespassed into the suit land and built a temporary shed thereon. It is seen that the appellant had not pleaded any specific date when the respondent No.2 had allegedly trespassed into the suit land and the date when the purported temporary shed had been constructed. The appellant had not pleaded in the plaint as to whether he had made any attempt to lodge an ejahar before the police against the alleged trespass and purportedly illegal construction. Moreover, it is seen that the appellant (i.e. the original plaintiff) himself did not give any evidence. During the pendency of the suit, the appellant had constituted and appointed the substituted appellant No.1 herein as his attorney by registering a Power of Attorney on 11.07.2001. The said attorney examined himself as PW-1 on 21.01.2002. On the said date, the PW-1 was 35 years of age and, as such, his year of birth would be 1967 and he would have attained adulthood age of 18 years in the year 1985. The PW-1 had merely exhibited a hospitalization receipt dated 29.09.1958 (Ext.7) to show that the appellant (i.e. father of PW-1) was advised hospitalization and that he had paid the hospital charges. However, the said Ext.7 is not a proof that the appellant was suffering from any illness as on the date of execution of Power of Attorney (Ext.1) which prevented him from being examined as PW, either in Court or on Commission. It is too well settled that the attorney can depose only in respect of acts done by the attorney holder in exercise of powers granted by the instrument, but cannot depose on facts to which he was not a party and the instrument would not empower him to depose in place of the principal. If one needs any authority on the point, the case of JankiVashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors., (2004) 3 SCC 584. Moreover, it is seen that in course of cross examination of DWs, the appellant had not been able to demolish the case as projected by the respondent No.2. Rather, in his cross examination, the PW-2 had stated that he was not aware who had constructed houses standing over the suit land. In view of the discussions above, it is seen that although for

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different reasons, the learned trial Court as well as the learned first appellate Court had rightly decided issues No. 3, 4 and 5 to hold that the appellant could not prove his right, title, interest and possession in respect of the suit land. In light of the evidence on record, in respect of issue No.6, it was rightly held that the appellant herein could not prove that the sale deed was fraudulent. Accordingly, the other issues including the issue No.4 was rightly decided by the learned first appellate Court. Similarly, except for issue No.4, all other issues are found to be rightly decided by the learned trial Court. Thus, as the appellant had not been able to establish his subsisting right, title, interest and possession over the suit land or any portion thereof, there appears to be no impediment for the respondent No.2 to enforce his right in respect of any part and parcel of property as a whole after partition. The second substantial question of law is answered accordingly.

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Thus, in view of the finding recorded in respect of both the substantial questions of law, this appeal fails and is dismissed with cost. Resultantly, the judgment and decree dated 25.11.2003, passed by the learned Civil Judge (Senior Division) No.3, Kamrup, Guwahati in T.A. No. 60/2002, thereby affirming the judgment and decree dated 16.09.2002, passed by the learned Civil Judge (Junior Division), Rangia in T.S. No.3/1996 is upheld.

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Let the decree be drawn up.

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The LCR’s be returned.

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JUDGE

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Comparing Assistant

On the Death of Khalilor Rahman, His Legal Heirs Moon Saikia and 3 Ors. v. on the Death of Makib Ahmed His Legal Heirs Musstt. Salma Begum Wife and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

On the Death of Khalilor Rahman, His Legal Heirs Moon Saikia and 3 Ors. v. on the Death of Makib Ahmed His Legal Heirs Musstt. Salma Begum Wife and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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