Md. Sahidul Islam and Ors. Vs on the Death of Abdul Jalil His Legal Heirs and Ors.

ALL ARE SONS OF LATE KERAMAT ALI R/O VILL. MOIRABARI PS. MOIRABARI DIST. MORIGAON ASSAM 8: MRS. ANOWARA BEGUM W/O MD. SHAMUDDIN VILL. DOLOIGAON DIST. MORIGAON

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9: MONOWARA BEGUM W/O MANRUJ ALI VILL. TETIKATA

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10: JOSHNA ARA BEGUM W/O MD. ABDUL JABBAR VILL. MOIRABARI

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11: MAJADA KHATOON

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W/O MD. SAIDUR ISLAM VILL. BARSAPARI

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12: ASMINA BEGUM W/O MD. NURUL ISLAM VILL. BORTHAL KOCHARIGAON

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13: RENU ARA BEGUM D/O LATE KERAMAT ALI VILL. MOIRABARI

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14: ASIA KHATUN W/O LT. KERAMAT ALI 15: SARBAN NESSA W/O LATE KERAMAT ALI BOTH OF VILL. MOIRABARI PS. MOIRABARI DIST. MORIGAO

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VERSUS

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ON THE DEATH OF ABDUL JALIL HIS LEGAL HEIRS AND ORS Represented By-

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1.1:MRS RUKUN NEHAR W/O LATE ABDUL JALIL VILL. MOIRABARI MOUZA-MOIRABARI DIST. MORIGAON.

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1.2:MD ASHIK AHMED S/O LATE ABDUL JALIL VILL. MOIRABARI MOUZA-MOIRABARI DIST. MORIGAON.

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1.3:MISS SALMI SIDDIKA D/O LATE ABDUL JALIL VILL. MOIRABARI MOUZA-MOIRABARI

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DIST. MORIGAON.

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1.4:MISS SAHIN SIDDIKA D/O LATE ABDUL JALIL VILL. MOIRABARI MOUZA-MOIRABARI DIST. MORIGAON.

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2:PRAHLAD BASFOR

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3:ANANDA BASFOR

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BOTH ARE SONS OF LATE LAKHICHAN BASFOR OF VILL. MOIRABARI MOUZA-MOIRABARI DIST. MORIGAON

4:MD. AHMED ALI

S/O LAE MAHMOD ALI

5:MD. ABDUL JABBAR

S/O LATE TAHER ALI

6:MD. HABIBUR RAHMAN

S/O LATE IBRAHIM ALI ALL ARE RESIDENT OF MOIRABARI PS/MOUZA-MOIRABARI DIST. MORIGAON ASSAM

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7:MD. MAFIJUDDIN

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S/O LATE KERAMAT ALIPLAINTIFF NO.8

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8:JAKIRUDDIN S/O LATE KERAMAT ALI PLAINTIFF NO.9 BOTH NO.7 and 8 ARE R/O VILL. MOIRABARI PO. MOIRABARI DIST. MORIGAO

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B E F O R E

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HON’BLE MR. JUSTICE DEVASHIS BARUAH

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Advocate for the appellant(s) : Mrs. T Goswami

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Advocate for the respondent(s) : None appeared

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Date of hearing : 13.05.2025

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& Judgment

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JUDGMENT & ORDER (ORAL)

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Heard Mrs. T Goswami, the learned counsel appearing on behalf of the appellants. None has appeared on behalf of the respondents on call.

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The present appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) is filed challenging the judgment and decree dated 17.03.2008 passed in Title Appeal No.4/2007 by the Court of the learned Civil Judge Morigaon (hereinafter to be referred to as the learned First Appellate Court) whereby the judgment and decree passed by the learned Munsiff No.1, Morigaon dated 09.07.2007 in Title Suit No.34/2006 was affirmed.

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It is relevant to take note of that vide the order dated 30.07.2008, the Coordinate Bench of this Court had admitted the instant appeal by formulating two substantial questions of law, which reads as under:

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(i). Whether the documents marked as Ext.1, 2 and 3 being certified copies are admissible in evidence in the absence of any proof relating to conditions for admission of secondary evidence as enumerated under Section 65 of the Evidence Act, more so, when those documents were

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marked as Ext.1, 2 and 3 under objection.

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(ii). Whether the finding recorded by the learned Court below that Ext.1, 2 and 3 were marked without any objection by the defendant is perverse being contrary to the evidence of P.W.3/plaintiff namely, Abdul Jalil?

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The question which arises in the present proceedings as to whether the two substantial questions of law which were formulated by this Court in terms with Section 100(4) of the Code are involved in the instant appeal.

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For ascertaining the same, this Court finds it relevant to take note of briefly the facts which led to the filing of the instant appeal. For the sake of convenience, the parties herein are referred to in the same status as they stood before the learned Trial Court.

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The principal respondent herein as a plaintiff has instituted the suit being Title Suit No.17/1996 before the Court of the learned District Judge, Morigaon which was later on renumbered as Title Suit No.21/1999 and subsequently renumbered as Title Suit No.34/2006. The said suit was initially filed against one Md. Keramat Ali and 2(two) others as Principal Defendants alongwith some Proforma Defendants were also arrayed. Subsequently, during the pendency of the suit, as Md. Keramat Ali had expired his legal representatives were substituted. The legal representative of Md. Keramat Ali are the appellants before this Court.

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The case in brief in short is that the Schedule-A land originally belonged to one Late Lakhichand Basfore who died leaving behind the proforma Defendant No.1 Genua Basfore as his sole legal heir. The said Lakhichand Basfore during his lifetime sold the suit land to the proforma defendant Nos.2 and 3 and the father of the proforma defendant No.4 by executing a registered sale deed bearing deed No.1148/1958 on 29.01.1958. At the time of the sale, the suit land was an annual patta land. The proforma defendant Nos. 2 and 3 and the father of the proforma defendant No.4 were in possession of the suit land. The proforma defendant No. 4 on his father's death, along with the proforma defendant No.2 sold their shares, i.e. 2 kathas of land to the plaintiff and the proforma defendant No.5 by executing a registered sale deed No.928/1978 and delivered the possession of the land accordingly. Thereafter, the proforma defendant No.5 handed over the share to the plaintiff, taking his share in another place. According to the plaintiff, the proforma defendant No.3 sold his share to the plaintiff verbally, so it is claimed that the plaintiff is the absolute owner and possessor of the suit land since 1958. The plaintiff thereupon constructed a cinema hall and rented house over the suit land. As the suit land was an annual patta land, the plaintiff again purchased the land from Genua Basfore vide the sale deed No. 867/1996, dated 11.07.1996. The case of the plaintiff is that the defendant No.1 obtained a forged sale deed bearing No.1266/1996 from two unknown persons was trying to dispossess the plaintiff from the suit land and it is under such circumstances the suit was filed seeking a decree for confirmation of possession of the plaintiff with his right, title and interest over the suit land described in Schedule-A to the plaint; a decree declaring that the registered sale deed No.1266/1996 executed on 05.10.1996, which is described in the Schedule-B to the plaint as void, inoperative and

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unenforceable in law; for issuance of a precept to the Circle Officer Laharighat directing him to cancel the mutation order; for a decree of permanent injunction restraining the defendant to enter and dispossess the plaintiff from the suit land, etc.

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The legal representatives of the defendant No.1 and the defendant Nos.2 and 3 jointly filed their written statement, wherein various preliminary objections were taken as regards the maintainability of the suit and also denying the contents of the plaint. The case of the defendants was specifically mentioned in paragraph 13 of their written statement, wherein it was stated that the suit land originally belonged to one Lakhichand Basfore. The said suit land was covered by an annual patta. Out of the said suit land, one Kukil Rabidas was possessing 8 lechas of land towards the western side and towards the eastern side of the suit dag one Abdul Mazid was possessing about 2 kathas of land by constructing his dwelling house thereon. Prior to Abdul Mazid, the entire suit land was in possession of the original pattadar Lakhichand Basfore and after his death, his two sons Prahlad Basfore and Ananda Basfore used to reside thereon and the said Abdul Mazid used to possess the said portion of land by taking the same from the said two legal heirs of Lakhichand Basfore. The said Abdul Mazid came into possession of the said portion of the land with prior permission from the patta holders. The remaining portion of the suit land measuring one katha was left vacant. Only one roof is standing there which is claimed by the plaintiff to be the alleged cinema hall. It was denied that there was any cinema house standing over the suit land as alleged.

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It was also mentioned that while Abdul Mazid was in possession of the suit

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land, the same was brought under the periodic patta by converting it from annual patta on payment of the requisite premium paid by the legal heirs of Late Lakhichand Basfore. The said annual patta was converted into periodic one by an order dated 20.03.1996 and the land records were corrected on 25.09.1996, and, subsequently, in favour of the principal defendant No. 1 Keramat Ali, the land was mutated.

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It was also mentioned that on 07.10.1996 the suit land was mutated

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in the name of Prahlad Basfore and Anand Basfore, both being the sons of the Late Lakhichand Basfore. It was stated that Late Lakhichand Basfore had no third son like Genua Basfore as alleged by the plaintiff. It was also mentioned that the alleged Genua Basfore was the son of some Monilal Basfore and the said Genua Basfore had no right, title and interest over the suit land and he had no saleable right to sell the suit land in favour of the plaintiff by executing any registered sale deed.

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It was also mentioned that the legal heirs of Lakhichand Basfore after mutation of their names in respect to the suit land sold the suit land to Keramat Ali, the original defendant No.1, by executing a registered sale deed No.1266/1996 dated 05.10.1996 and thus Keramat Ali lawfully acquired all right, title and interest over the suit land and came into possession of the suit land from the said Abdul Mazid prior to the execution of the said sale deed No. 1266/1996.

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It is seen from the records that in the said suit, the issues were framed on

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02.02.2005 after the suit proceedings was remanded back for fresh disposal. The said issues being relevant are reproduced hereinunder:

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“1. Whether there is cause of action for the suit of the plaintiff?

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Whether the plaintiff has right, title, interest over the suit land through Genua Basfor, who was alleged to be son of Lakhi Chand Basfor, the original pattadar of the suit land?

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Whether the plaintiff has been in uninterrupted possession of the suit

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land as such his possession over the suit land can be confirmed?

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Whether sale deed No.1266/96 dated 05.10.1996 is forged, illegal, inoperative and unenforceable at law and as such it can be declared to be cancelled and after declaring it to be cancelled whether precept can be issued on the Circle officer to correct the land Revenue Records?

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Whether the permanent injunction can be granted in favour of the

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plaintiff restraining the defendants or any other man claiming under them from entering into the suit land as if the possession of the plaintiff cannot be disturbed?

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

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To what other relief or reliefs the plaintiff is entitled to?”

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The record reveals that on behalf of the plaintiff, 5(five) witnesses were examined and various documents were exhibited and on behalf of the defendants 9(nine) witnesses were examined and various documents were exhibited.

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At this stage, it is very pertinent to mention that taking into account the substantial questions of law which were formulated by the learned Coordinate Bench of this Court, it is relevant to take note of the documents which were exhibited. Exhibit-1 is the certified copy of the registered sale deed No.867/1996. Exhibit-2 is the certified copy of the sale deed No.928/1978 and Exhibit-3 is the certified copy of the sale deed No.1148/1958 and Exhibit-4 is the registered Volume No.6/1958, Exhibit-4(1) is page No.238 wherein the contents of the Exhibit-3 were entered in Volume No.6 of 1958 wherein the contents of the sale deed being deed No.1148/1958 was noted down. Exhibit-4(2) was the signature of the Sub-Registrar. Exhibit-5 is the Volume No.3 of 1978 in which the sale deed 928/1978 (Exhibit-2) was entered in page Nos.270, 273 and 274. Exhibit-5(1), 5(2) and 5(3) and the relevant pages and Exhibit 5(4) was the signature of the Sub-Registrar. Exhibit-6 is the Volume No.1396, Exhibit 6(1), 6(2), and 6(3) are the relevant entries of the said sale deed being sale deed No.867/1996 entered at pages 166-168.

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On behalf of the defendants, 9 witnesses were examined and the defendants exhibited 4(four) documents. Exhibit Kha was the original of the sale deed No.1266/96 dated 05.10.1996.

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The learned Trial Court vide the judgment and decree dated 09.07.2007 decreed the suit in favour of the plaintiff. In doing so, the learned Trial Court while deciding the Issue Nos.2 and 4 held that the plaintiff had right, title and interest over the suit land through Genua Basfore who was the only son of Lakhichand Basfore, the original pattadar of the suit land. The learned Trial Court also held that the sale deed No.1266/1996 dated 05.10.1996 was a forged one and liable to be cancelled and, therefore, a precept was required to be

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issued to the Circle Officer to correct the land records. The other issues were decided on the basis of the Issue Nos.2 and 4.

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Being aggrieved, the appellants herein preferred an appeal before the Court of the learned Civil Judge, Morigaon which was registered as Title Appeal no.4/2007. The learned First Appellate Court after framing the four points for determination decided the said appeal in favour of the plaintiff thereby dismissing the appeal.

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It is under such circumstances that the present appeal has been preferred.

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Mrs. T Goswami, the learned counsel appearing on behalf of the appellants submitted that Exhibit Nos.1, 2 and 3 which were the certified copy of the registered deeds of sale which were put under objection as would be apparent from a perusal of the evidence of the PW-3 who was the plaintiff and under such circumstances, the learned Trial Court as well as the learned First Appellate Court could not have relied upon the said exhibits as the mandate under Section 65 of the Indian Evidence Act, 1872 was not fulfilled. She, further submitted that both the substantial questions of law are inter-connected inasmuch as, the second substantial question of law pertains to as to whether there was perversity as the learned First Appellate Court did not take into consideration that Exhibit Nos. 1, 2 and 3 were put under objection. The learned counsel, therefore, submitted that when these exhibits are put under objection, it was the duty of the learned Trial Court to decide as regards the admissibility of the said evidence at the time of passing of the judgment. She, therefore, submitted

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that this very aspects were not taken into consideration by the learned Trial Court as well as the learned First Appellate Court, for which, the two substantial questions of law, which have been formulated are involved in the instant appeal.

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This Court had duly taken note of the said submissions and had perused the materials on record.

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From the said materials on record, it is seen that though the certified copies of the registered deeds of sale were exhibited as Exhibit Nos. 1, 2 and 3, but the plaintiff have duly stated during the course of the proceedings in the trial that he had lost the originals of the deeds of sale and, therefore, sought permission of the Court to prove the same through the PW-4 and PW-5. The evidence of PW-4 and PW-5 have been duly taken note of by both the learned Trial Court as well as the learned First Appellate Court who had exhibited the Exhibit Nos.4, 5 and 6 which contained the relevant entries in the books maintained by the Sub-Registry wherein the contents of Exhibit Nos. 1, 2 and 3 were duly reduced into writing.

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In view of the same, merely on the basis that there is an objection being raised to the admissibility of the Exhibit Nos. 1, 2 and 3 did not preclude the learned Trial Court as well as the learned First Appellate Court to rely upon the Exhibit Nos. 1, 2 and 3 when by Exhibit Nos. 4, 5 and 6, details of which this Court mentioned in paragraph 14 hereinabove, the plaintiffs had proved the Exhibit Nos.1, 2 and 3. The judgment and decree passed by the learned Trial Court which was affirmed by the learned First Appellate Court, therefore, calls

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for no interference.

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Consequently, in view of the above findings, the two substantial questions of law so formulated by this Court vide the order dated 30.07.2008 in the opinion of this Court are not involved in the instant appeal, for which, the instant appeal stands dismissed with costs quantified at Rs.11,000/-.

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The Registry shall return back the records.

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JUDGE

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Comparing Assistant

Md. Sahidul Islam and Ors. v. on the Death of Abdul Jalil His Legal Heirs and Ors.

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Md. Sahidul Islam and Ors. v. on the Death of Abdul Jalil His Legal Heirs and Ors.

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