Allowed

Md.Nasim v. Md.Jahangir Allam

Orissa HC12 Aug 2016RSA/549/2004

Case brief

AI extract

What is this about?

In this second appeal concerning a title suit, the High Court of Orissa set aside the lower appellate court's judgment that invalidated the plaintiff's title. The apex court correctly interpreted the partition deed and held that the disputed land belonged to the plaintiff's vendor, not the respondent's. The appeal was allowed, restoring the trial court's decree.

What did the court decide?

The judgment and decree of the District Judge in the first appeals were set aside, and the judgment and decree of the Civil Judge in the Title Suit were restored.

Md.Nasim Vs Md.Jahangir Allam — Partition | Orissa HC (2016)

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IN THE HIGH COURT OF ORISSA, CUTTACK R.S.A. NO. 549 OF 2004

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From the judgment and decree dated 19.11.2004 and 01.12.2004 respectively passed by the learned District Judge, Keonjhar in R.F.A. No. 03 of 2004 and R.F.A. No. 10 of 2004.

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……… Md. Nasim -:: VERSUS :	:::: Appellant. :-
Md. Jahangir Allam & others	:::: Respondents.
For Appellant ::::	M/s. S. Mantri, A.N.Sahoo, A.K. Mishra, A.K. Sharma, M.K. Dash, P.K. Dash, Advocates.
For Respondents :::: ………	M/s. S.K. Nayak-2, B.K. Rout, B.K. Sahoo, Miss A. Nayak, M/s. S.P. Misra, S. Mishra, Advocates.

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PRESENT:

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THE HON’BLE MR. JUSTICE D.DASH

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------------------------------------------------------------------------------------------Date of hearing :: 17.05.2016 :: Date of judgment 12.08.2016

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-------------------------------------------------------------------------------------------

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This second appeal has been filed challenging the common judgment followed by decrees in R.F.A. No. 03 of 2004 and R.F.A. No. 10 of 2004 passed by the learned District Judge, Keonjhar

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in setting aside the judgment and decree passed by the learned Civil Judge (Sr. Division), Keonjhar in Title Suit No. 84 of 1999 reversing its findings on crucial issues.

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// 2 //

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The appellant as the plaintiff had filed the above noted suit for declaration of his title over the land described in Schedule-B of the plaint which is the suit land in further declaring the registered sale-deed dated 22.04.1999, Ext. A and dated 24.06.1999, Ext. D-1 as void, clothing the defendant-respondents with no title over the land covered thereunder and for permanent injunction.

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The suit having been decreed, the defendant no. 2 and 3 who are the respondents here in this appeal had filed the first appeal numbered as R.F.A. No. 03 of 2004. The defendant no. 1 had also filed the appeal i.e., R.F.A. No. 10 of 2004 The decree passed by the trial court in granting all the reliefs as prayed for to the plaintiffsappellant having been set aside in the first appeals, this second appeal under section 100 of the Code of Civil Procedure has been filed by the unsuccessful plaintiff as the appellant.

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2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court.

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3. Plaintiff’s case is that as per the record of right of village, Magurgadia of the year 1981, land in total measuring Ac. 1.390 decimals under plot no. 407 stood recorded in the name of late Md. Sirazuddin. After his death in the year 1970, his two sons namely, Md. Mazhurul Haque and Md. Ekramul Haque amicably divided the

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total land and then began selling portions out of their respective

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shares to different persons from time to time. Some land was also acquired by the Central Government for extension of National Highway lying to the adjacent south of the suit plot. Land measuring Ac. 0.07 decimals was inside the Mosque premises used as Wooz Khana adjacent to the West of the suit plot.

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The plaintiff claims to have purchased land measuring Ac. 0.030 decimals by registered sale-deed on 25.08.1992 from Md. Mazhurul Haque. It is said that this suit land is to the adjacent north of National Highway No.6, and to the adjacent south of the land purchased by him as well as his wife and son. The, purchased land extends to Ac. 0.120 decimals. Accordingly the plaintiff, his wife and son in total claim to have purchased Ac. 0.150 decimals. The plaintiff further asserts to have been in possession of the said land by putting boundary wall all around excluding the passage towards the south in order to approach the National Highway. It is further stated that some unauthorized shop rooms were constructed to the north of the National Highway over the Nayanjari and that is in front of the plaintiff’s land which were demolished on 01.01.1999 by the State Government. It has also been averred that one Asfaque Hossain who is the brother of defendant no. 1 was having one such unauthorized shop over the said land. He was also evicted and his shop was demolished in the said drive for removal of encroachment. The unauthorized occupants of those lands,

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somehow or other entertained a belief in their mind that said drive for removal of encroachment over that Nayanjari was at the instance of the plaintiff. So, in order to take revenge, the brother of defendant no. 1 with the help of other defendants cooked up a plan. In that move although there was no left out land from out of suit plot no. 407 after purchase by the plaintiff on 25.08.1992 and one Mr. Mokinuddin on 10.06.1988 and the entire land under said plot thus stood exhausted, yet to create dispute the defendant no. 1 purported to have purchased Ac.0.05 decimals land from out of said purchased land of the plaintiff measuring Ac. 0.030 decimals. Similarly, defendant no. 2 and 3 also purchased the non-existent land by giving the measure at Ac. 0.05 decimals from two sons of Md. Ekramul Haque on 24.06.1999. These, purchases are after seven years of the purchase of the land by the plaintiff. Being armed with above documents, the defendants then created disturbance over the land of the plaintiff which ultimately drove the plaintiff to file the suit with the reliefs as prayed for.

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4. The defendant no. 1 contested the suit by filing written statement as also defendant no. 2 and 3 jointly by filing written statement came forward to contest the suit. However, in essence the defence of all those defendants more or less remains the same.

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They state that the unauthorizedly constructed five shop rooms were standing over the Government land recorded under Khata No.

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407/709 and on a portion of plot no. 407. It is further stated that by registered partition deed dated 11.12.1961, Md. Ekramul Haque got the total area of land measuring Ac. 0.48 decimals and Md. Mazhurul Haque also got equal extent of land. In the Hal settlement, the plaintiff’s vendor’s land was under plot No. 408, whereas the defendant’s vendor’s father was the recorded owner in respect of the suit plot no. 407. They next state that Md. Ekramul Haque has executed a power attorney on 23.05.1986 appointing Md. Mazhurul Haque as his agent for due management of his properties.

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They have also raised the objection of maintainability of the suit, as the suit land is not identifiable.

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5. The trial court faced with the above rival pleadings framed in total nine issues.

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Upon analysis of the evidence and on evaluation of the same, trial court’s findings as culled out run as under:-

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“a) as per the Commissioner’s report and map plaint schedule-A land has been identified as plot no. 407/1 and the suit land is a part of the plot;

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b) that apart the description of the schedules-A and B lands are as per the requirements of order -7, rule -3 of the Code.

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c) There is no other evidence in regard to the partition after Ext. K-1 and as such it is to be held that the partition which had taken place as per Ext. K-1 has not been proved by the defendant no. 2 and 3 who have placed so;

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d) Ext. 1 is the sale-deed of the plaintiff Ext. A is the saledeed of defendant no. 1 and Ext. D-1 is the sale-deed of defendant Nos. 2 and 3. Recitals of all these sale-deeds indicate that there was amicable separation between the two sons of Md. Sirajuddin;

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e) it is clear from the evidence that defendants do not raise any rival claim in respect of plaintiff’s title and possession of schedule-A land but their claim is restricted to National Highway Plot No. 407/709;

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f) There is no allegation on the part of the defendants that Md. Mazhurul Haque, the vendor of the plaintiff exceeded his share in the suit Khata while making alienation of plot schedule –A land in favour of the plaintiff;

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g) defendants have not assailed the sale-deed of the plaintiff but they have claimed that the lands purchased by them was beyond the plaint schedule-A land. It is forthcoming from the pleadings of the defendants that they do not claim any portion of the plaint schedule-A land. It is not the case of the defendants that they had purchased any portion of the plaint schedule-A land. The defendants have not disputed or denied the title and possession of the plaintiff over plaint schedule-A land;

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h) all the demolished shop rooms were on National Highway plot No. 407/709 and not over any part of suit plot no. 407;

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i) plaintiff’s evidence in T.S. No. 76/93 in Ext. E-1/1 is not relevant in this suit.

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j) the total extent of land under suit Khata No. 164 was Ac. 1.390 dec. and both the sons of Md. Sirajuddin have half interest therein;

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k) defendant no. 1 has admitted in the cross-examination that National Highway plot no. 407/709 situates at the adjacent south of the aforesaid entire Ac. 0.15 decimals of land of the plaintiff. He has also admitted that the structures around these Ac. 0.15 dec. exists since his childhood i.e., much prior to the purchase of the plaint Schedule-A land by the plaintiff;

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// 7 //

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l) the sale-deeds relied by both the sides discloses about the amicable partition between the sons of Sirajuddin. Had it been a fact, that there was partition between them as per Ext. K-1, there would have been reference in that regard in the sale-deeds marked as Ext. A and D-1. But recitals of those documents disclose that there was amicable partition;

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m) Ext. J-1 is a draft statement showing the suit plot is a ceiling surplus land, but the final order on the same was not proved. Ext. J-1 cannot be considered as sound basis for substantial piece of evidence to signify that an area of Ac. 0.370 dec. relating to plot no. 407 was owned by Md. Ekramul Haque.

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n) all the transfers and acquisitions mentioned in Schedule –C of the plaint are admitted by the defendants.

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o) an area of Ac. 0.010 dec. purchased by the defendants in Exts. A and D-1 was in excess of the remaining portions of the plot No. 407. The evidence and materials on record indicates that the land sold in the Exts. A and D-1 were non-existent as per the descriptions given in the saledeeds. Property sought to be transferred must be existent and available in alienation, but as it has been established on evidence on records. The land purchased by the defendants under ext. A and D-1 were non-existent and as such there arises no question of conveyance of title in their favour so far as the land described in the deeds are concerned;

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p) the registered sale-deeds marked as Ext. A and D-1 are void; and

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q) so, the plaintiff has the right, title, interest and possession over the suit land.”

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In view of above findings, the suit stood decreed with all

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the reliefs as prayed for being granted to the plaintiffs.

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6. Two appeals having been filed, the lower appellate court

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being the final court of fact, upon hearing the parties and on going through the evidence at its level has held as under:-

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“a) the suit land is identifiable and thus has been properly described;

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b) vital issue of whether suit land belonged to Ekramul Haque or Mazhurul Haque and Ext. L-1 (Power of Attorney) shows that parties are living separately and are dealing with their proportion separately by previous partition among them;

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c) Ext. K-1 (Partition deed of 1961) reveals that suit land fell to the share of Ekramul Haque;

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d) Ext. J-1 is the certified copy of form No. 20 in OLR Case No. 02 of 1992-93. It shows that plot no. 407 was shown to the ceiling surplus land of Md. Ekramul Haque. So, Mazhurul Haque has no right to alienate the same. So, sale-deed in favour of plaintiff by Mazhurul Haque cannot create title or interest in favour of plaintiff; and

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e) evidence of possession over suit land is evenly balanced but plaintiff is not entitled to injunction as he has no title to the suit land.”

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The plaintiff thus having been non-suited is now in this

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second appeal.

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7. The appeal has been admitted on the following

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substantial question of law:-

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Whether the first appellate court misconstrued the documents Ext. L-1 (power of attorney) and Ext. K- 1, the entry in the register maintained in the SubRegistrar Office to come to a conclusion that the

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suit properties fell to the share of Mr. Ekramul Haque?

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8. At this stage, before proceeding further, it is felt the right and ripe time to consider and take up for disposal, the petition under order 41 rule 27 of the Code filed by the respondents as also the additional affidavits on that score. The prayer is to permit these respondents to prove some documents as additional evidence. The documents are the certified copy of three sale-deeds said to have been executed by the Mazhurul Haque, the encumbrance certificate and plot index. It is stated that said documents are necessary for a just decision of the case so as to enable the court to pronounce the judgment and that too in a more satisfactory manner.

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The move is seriously resisted by the appellants and it is urged that the application giving rise to Misc. Case No. 276 of 2012 be rejected. First of all, it is contended that the respondents having all such opportunity when have not adduced said evidence at anytime from 1999 till 2012 and there being absolutely no explanation on that score, the prayer at this highly belated stage does not merit consideration.

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It is next contended that the main point for determination remains in the case as to whether the property purchased by the plaintiff was in the share of Ekramul Haque or it was in the share of Mazhurul Haque, when the plaintiff claims through Ekramul, the

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defendants claim the suit land through Mazhurul. This being the pin pointed issue confining the suit land, the purpose of adduction of additional evidence by the respondents to show that Mazhurul Haque had sold more land than the land in his share so allotted to him in the partition deed, Ext. K/1, is of no significance when the consideration falls is whether that the suit land as described in schedule-A of the plaint was in the share of Mazhurul Haque or not or if so it was in the share of Ekramul Haque.

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In view of rival case of the parties as described in earlier paras, when in the second appeal, this Court is called in question to answer the substantial question of law as afore-stated which in turn would lead to examine the correctness of the finding of the lower appellate court that the suit land as described in Schedule-A of the land was not in the share of Mazhurul Haque, I am of the considered view that these documents are not necessary to be brought into evidence to enable the Court to pronounce the judgment as in their absence it can be so done on the basis of available evidence. Looking at the scope of examination, the requirement of those are not found so necessary to pronounce the judgment in a more satisfactory manner so as to come within the purview of ‘any other substantial cause’. In view of the aforesaid, the petition under order 41 rule 27 of the Code is rejected and the

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Misc. Case stands accordingly dismissed.

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9. Learned counsel for the appellants submits that the lower appellate court has not at all considered the oral and documentary evidence let in by the plaintiff in their proper perspective and without due and proper analysis and by not taking a view over the impact of the same on the case, the well reasoned findings of the trial court arrived at on just and proper appreciation have been reversed.

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It is next submitted that the lower appellate court in para-9 at page-7 of the judgment has recorded a finding that Ext. K-1, reveals that the suit land fell to the share of Md. Ekramul Haque. This, according to him is an error of record because Ext. K- 1 never reveals that the suit land had fallen to the share of Md. Ekramul Haque. He has drawn the attention of the land schedule – G of that Ext. K-1, indicated at page 14 for showing that the suit land does not find mention there as of the share of Md. Ekramul and that sabik plot no. 154 and 157 which according to the major settlement of the year 1981 is plot no. 407 does not remain in schedule –G, describing the particulars of the land falling in Md. Ekramul’s share.

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10 . On this pin pointed submission of the learned counsel for the appellant, the reply of the learned counsel for the respondents comes in an indirect manner where he contends that in the said partition deed of the year 1961, Ext. K-1, schedule –G property had

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been allotted in the share of Md. Ekramul Haque. From out of three khatas consisting of three plots; from out of that Khata No. 79 of 1941-42 (Naya) corresponding to plot no. 89/1 was measuring Ac. 0.13 decimals and from that Ac. 0.02 decimals was allotted to Md. Ekramul Haque with the rest being allotted to Md. Mazhurul Haque. Similarly, it is submitted that from out of Ac. 0.18 decimals of land under Khata no. 106 of 1942-43 corresponding the plot no. 89/1, Ac. 0.08 decimals was allotted to Md. Ekramul Haque that the rest Ac. 013 decimals going to one Khalilur Rahman, another co-sharer. It is further submitted that from out of Ac. 0.070 decimals of land under Khata no. 9/01 corresponding to plot no. 89/157, Ac. 0.035 decimals was allotted to Md. Ekramul Haque and rest Ac. 0.035 decimals had gone to Md. Mazhurul Haque. Similarly, in the deed of partition Ext. K-1, land under sabik plot no. 89/157 under Khata no. 9/01 being in total Ac. 0.070 decimals was divided between them in two equal part each getting Ac. 0.035

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decimals. So, when as per the partition deed Ext. K-1, Md. Mazhurul Haque had got Ac. 0.046 decimals and Md. Ekramul Haque had got the land measuring Ac. 0.045 decimals, it is argued that said Md. Mazhurul Haque had sold the land exceeding his share which is from out of the share of Md. Ekramul. Next, he has gone to describe those alienation so as to impress upon this Court

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to accept his submission of sale of land in excess of the share of Md. Mazhurul Haque.

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11 . In the present suit for declaration of title, the plaintiff

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claims to have purchased the suit land from out of the share of Md. Mazhurul Haque and the dispute is raised by the defendants that it had been in the share of Md. Ekramul Haque. Admittedly, in the deed of partition Ext. K-1, this plot does not find mention in the schedule –G dedicated showing the allotment of the land in favour of Md. Ekramul. The lower appellate court, thus, having said that the suit land had been allotted in favour of Md. Ekramul Haque, the same clearly appears to be without proper verification and examination and this is an error apparent on record. The other documents that the defendants strongly rely upon is the notice in Form No. 30 containing the draft statement dated 29.01.1993 in O.L.R. Case No. 2/92 initiated under section 43(2) of the O.L.R. Act whereby objections were invited in so far as the ceiling surplus land are concerned. This suit land was shown as ceiling surplus land of Md. Ekramul Haque. Admittedly, after such draft publication inviting objections and upon receipt of objections, if any, the said statement must have been made final as mandated under the provision of OLR Act. However, in the present case, when the defendants have so much relied upon Ext. J-1, they have not proved the final statement from which it could have been

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ascertained with absolute certainty that the suit land stood exempted from the purview of the proceeding. So in that situation, instead of relying upon Ext. J-1, rather adverse inference drawn down that had it been so proved, the matter would have least been seen otherwise for which it has been withheld. Thus, Ext. J-1 cannot lead to hold that this land under plot no. 407 measuring Ac. 0.070 decimals was that of Md. Ekramul Haque. The lower appellate court in my considered view has unjustifiably attached importance to this document and it has thus clearly been misconstrued in taking a view in favour of the case of the defendants.

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12 . The other document is the power of attorney, Ext. L-1. This power of attorney is not in specific with respect to property described in Schedule-A of the plaint. So, the view taken by the lower appellate court that by the said deed of attorney, Md. Mazhurul Haque was authorized to deal with the property of Md. Ekramul Haque is of no such importance in the case in hand so as to resolve the instant dispute.

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The extent of suit plot no. 407 was Ac. 0.37 decimals. The plaintiff describes in schedule-C of the plaint, the alienation and acquisition of different portions from out of it, showing the same to be Ac. 0.363 decimals which are not denied by the defendants. Plaintiff’s purchase of the suit land is in the year 1992 and after the

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alienation and acquisition as described in Schedule –C, left out area under plot no. 407 comes to Ac. 0.007 decimals. However, the extent of land purchased by the defendants as shown in Ext. A and D-1 measures Ac.0.010 decimals. The trial court has come to a conclusion upon examination of evidence on record more importantly in view of the evidence of Civil Court Commissioner deputed during suit and his report and the sketch map proved in the suit that the land sold under Ext. A and D-1 as described in those deeds are non-existent. This finding is not shown in any way either contrary to the evidence on record or to have been so rendered overlooking some material evidence on record. For the purpose, the sale-deed Ext. A evidencing the so called purchase of the suit land by defendant no. 1 from heirs of Mr. Ekramul Haque has been very much pressed into service in support of the case of the defendants with emphasis upon the particular fact that Md. Mazhurul Haque is a signatory to the sale-deed to be taken note of against plaintiff’s case. It is significant to note that here we are concerned with the very description of the land. So unless it is positively proved that Md. Mazhurul Haque had full knowledge with regard to the specification of the land given in the said sale-deed or that it can be so derived from his prior and later conduct in that light, his remaining a signatory to the said sale-deed in the facts and circumstances of the case does not come to the aid to the case

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of the defendants. Had it been a case of recital of a particular fact having material bearing, the matter would have been different and it would have well stood for consideration in appreciating the truth or falsity or correctness of said factual aspect telling upon said signatory. Here, that is not the case. When the very land is found to be non-existent, in that way the same can’t bind Md. Mazhurul Haque. Further he having sold the said land to the plaintiff long prior to the sale-deed in favour of the defendants, wherein he is the signatory, the same in no way can stand as a legal impairment for the plaintiffs case to stand. This being so the lower appellate court’s finding that the sale-deed executed by Md. Mazhurul Haque in favour of the plaintiff does not create any right, title or interest over the suit land is held unsustainable .

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The aforesaid discussion and reasons, while providing necessary answer to the substantial question of law going in favour of the appellant thus finally leads this Court to set aside the judgment and decree passed by the lower appellate court and restore those as passed by the trial court.

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In the result, the appeal stands allowed. The judgment and decree passed by the learned District Judge, Keonjhar in R.F.A. No. 03 of 2004 and R.F.A. No. 10 of 2004 are set aside and the judgment and decree passed by the learned Civil Judge (Sr.

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Division), Keonjhar in Title Suit No. 84 of 1999 in decreeing the suit

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granting the reliefs to the plaintiff are hereby restored.

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In the facts and circumstances, there shall however be no

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order as to cost.

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…………………….. D. Dash, J.

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Orissa High Court, Cuttack Dated, the 12^th August, 2016/ Narayan .

Md.Nasim v. Md.Jahangir Allam

Case brief

What is this about?

What did the court decide?

Md.Nasim v. Md.Jahangir Allam

Case brief

What is this about?

What did the court decide?

What the court decided

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