Page No.# 1/ vs Md Kamaruz Zaman And 3 Ors
2021 Latest Caselaw 425 Gua

                                                              Page No.# 1/11

GAHC010242592015




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

                            Case No. : RSA/124/2015

         SMTI BAKULI BISWAS @ SAHA and ANR
         W/O LATE NEPAL SAHA, D/O SMTI BHABANI BISWAS

         2: SMTI BHABANI BISWAS

          W/O LATE KALIMOHAN BISWAS
          BOTH ARE R/O J ALI ROAD
          LAKHTOKIA
          GUWAHATI-

         VERSUS

         MD KAMARUZ ZAMAN and 3 ORS
         S/O LATE MAULABI SAMSUL HUDA, R/O JALNUR ALI ROAD, LAKHTOKIA,
         GUWAHATI-1

         2:MD. KHURSHED ALAM

          S/O LATE BODARUDDOZZA
          R/O S.R. ROAD
          LAKHTOKIA
          GUWAHATI-1

         3:INAMUL LATIFF

          S/O LATE IMDADUL LATIFF

         4:GULCHANAR BEGUM

          D/O LATE IMDADUL LATIFF
          BOTH SL. NO. 3 and 4 ARE R/O GOBINDA GANJ
          DIST. RANGPUR
          DHAKA
          BANGLADESH
                                                                                  Page No.# 2/11


Advocate for the Petitioner   : MSK KALITA

Advocate for the Respondent :




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 08.02.2021

Heard Mr. B.K. Bhagawati, learned counsel for the appellant and Mr. Shilditya, learned counsel for the respondents at the stage of hearing under Order XLI Rule 11 of the CPC.

2) This appeal under section 100 CPC is directed against the first appellate judgment and decree dated 31.03.2015, passed by the learned Civil Judge No.1, Kamrup (M), in Title Appeal No. 15/2009, thereby dismissing the appeal and affirming the judgment and decree dated 08.12.2008, passed by the learned Court of Munsiff No.1, Kamrup (M), Guwahati in Title Suit No. 670/2006 (previously numbered as T.S. No. 90/1989).

3) The appellants herein were the defendant nos. 1 and 2 in the suit. The suit was filed by the respondent no.1 for declaration, ejectment and recovery of khas possession of the suit premises. The case of the respondent no.1 in the suit was that Late Moulavi Samsul Huda, his father was the owner of the suit land, who were four brothers, all living jointly in a separate house. It was projected that while the second and fourth brothers, namely, Nurul Huda and Jainal Abedin died without leaving any legal heirs, the third brother died leaving the proforma defendant no.3 as his legal heir. The suit land was received by the father of the respondent no.1 received the suit land from his wife and, as such, the other brothers of the father of the respondent no.1 had no claim over the suit land. The respondent No.1 had stated that he has two sisters, who were married and left to reside in Bangladesh. It was projected that the suit house was let out to one Kusum Kumar Goswami by the uncle of the respondent no.1. After her death, her husband brought the appellants to the suit Page No.# 3/11

premises to look after him. It was stated that the suit land was mutated in the name of the respondent no.1 and patta was issued in his name. The Settlement Officer passed an order to strike out the name of the respondent no.1 from the suit land and against such order, the respondent no.1 preferred an appeal before the Board of Revenue and the Board dismissed the appeal, requiring the respondent no.1 to establish his claim before a Civil Court. It is projected that Prasanna Kumar Goswami left the suit premises after inducting the appellants and his whereabouts are not known. Thus, by stating that cause of action arose on 30.03.1987 and 18.03.1988, the suit was filed for reliefs as indicated herein before.

4) The appellant contested the suit and took a plea that the suit was bad for non- joinder of Imdad Ali Latif, Prasanna Kumar Goswami, Kusum Kumari Gowwami, who were owners of the land and house. It was stated that Monowara Begum was the daughter of Moulavi Samsul Huda, who got the land and house, which is the subject matter of the suit by way of gift and she had let out the suit house to Kusum Kumari Goswami, wife of Prasanna Kr. Goswami. Subsequently, Monowara Begum by executing an agreement to sale, sold the suit land to Prasanna Kr. Goswami, who was in possession of the same since then and acquired right, title and interest by virtue of adverse possession. It was also claimed that the said Monowara Begum and her husband were residing at Bangladesh from where by letter dated 12.04.1973, she had admitted execution of the agreement for sale and receipt of money. It was claimed that Prasanna Kr. Goswami left the land and house in the care of Md. Abdul Jalil by executing a power of attorney and before leaving the appellants were allowed to live in the suit land. The appellants had stated that Jamila Khatun, the wife of the respondent no.1 had previously instituted TS 62/1971 and TS No. 45/1974 and Misc. Case

No. 122m/1984 under section 145 Cr.P.C. against Kusum Goswami, which were dismissed. The appeal filed before the Board of Revenue was also dismissed and it was also claimed that two criminal proceedings instituted by the appellants against Jamila Khatun were pending adjudication. Accordingly, it was prayed that the suit be dismissed.

5) The learned trial Court had framed 9 issues for trial, viz., (1) Whether the Page No.# 4/11

suit is maintainable in the present form?; (2) Whether there is relation of landlord and tenant between the plaintiff and the defendants?; (3) Whether the suit is bad for non joinders of necessary parties?; (4) Whether the suit property was originally belonged to late Moulvi Samsul Huda?; (5) Whether late Moulvi Samsul Huda obtained the suit property from his wife and became the sole owner of the property?; (6) Whether the suit property was given to Kusum Kumari Goswami on rent?; (7) Whether the defendant no. 1 & 2 were brought by Smt Kusum Kumari to look after her and the defendant were employees under the said Late Goswami?; (8) Whether the defendant have got any right, title and interest over the suit property?; and (9) Whether the plaintiff is entitled to get any relief?

6) On a perusal of the LCR, it is seen that the respondent no.1 had examined himself as PW-1 and had exhibited 27 documents, viz., Kacha patta (Ext.1); Final Patta (Ext.2); Notice for Settlement (Ext.3); Certified copy of order passed by Board of Revenue (Ext.4); Electricity bills (Ext.5, 6, 7 and 8); Certificate issued by Lakhtokia Masjid (Ext.9); Land revenue paid receipt (Ext.10 to 15); Certified copy of jamabandi (Ext.16); Certified copy of deposition of Prasanna Kr. Goswami in GR Case No. 597/85 (Ext.17 and 18); Notice by GMC to pay tax (Ext.19 to 22); Municipal tax paid receipt (Ext.23); Water bill (Ext.24); Records relating to correspondence with Municipality for construction of suit house [Ext.25 to 25(6)]; Approved construction plan given by Municipality (Ext.26 and 27). The appellants- defendant nos. 1 and 2 had examined the appellant no.1 as DW-1 and Md. Abdul Jalil was examined as DW-2 and the DW-2 had exhibited Power of Attorney as Ext.Ka (exhibited under objection).

7) The learned trial Court, decided issue no.1 by holding that the suit was maintainable. In respect of issue no.2, it was held that although the issue was framed, but this was not the point of contention between the parties because while the plaintiff states that the defendant nos. 1 and 2 have no right, title and interest over the suit property, the defendant nos. 1 and 2 claim that there was no landlord and tenant relationship, as such, it was held that the question of an issue did not arise. In respect of issue no.3, it was held that Page No.# 5/11

after remand, the plaintiff had amended the plaint and impleaded Prasanna Goswami, Kusum Kumari Goswami, Monowara Begum and Imdadul Latif and summons was served on them but they did not appear and, as such, the bar as to non joinder which was taken in the original written statement stands cured and the suit was not hit by non joinder of necessary parties. In respect of issue nos. 4 and 5, it was held that there was no dispute regarding title of the respondent no.1 and how he derived title was not material. As both the plaintiff and Monowara Khatun were son and daughter of Samsul Huda and as per the stand of the defendant nos. 1 and 2, the suit land was gifted to Monowara Khatun by Samsul Huda, as such, denial of title of Samsul Huda was held to be impermissible. Both issues were decided accordingly. In respect of issue no. 6, it was held that Prasanna Kr. Goswami had inducted the defendant nos. 1 and 2 in the suit premises, who took it from Monowara Begum. However, it was held that DW-2 had deposed about purported gift which took place before his birth, as such, it was held that the plea of gifting of suit land to Monowara Begum fails. Similarly, as no sale deed was executed, the sale of suit land to Prasanna Kr. Goswami also fails. It was held that the money receipts did not establish agreement to sell the suit house by Monowara Begum because it did not contain schedule of property proposed to be sold, as such, the plea of agreement to sale does not stand establish. It was held that possession of Prasanna Kr. Goswami did not establish adverse possession. It was also held that as Prasanna Kr. Goswami did not acquire any title, he could not execute the power of attorney authorizing him to look after the property and to execute sale deed. It was held that the plaintiff and Monowara Begum were co-sharers enjoying equal status as landlord and issue no.6 was decided accordingly. In respect of issue no.8, it was held that without sale deed, Prasanna Kr. Goswami did not acquire title over the property and consequently, the defendant nos. 1 and 2 also did not acquire any title. In respect of issue no. 9, it was held that it was not in dispute that the plaintiff was son of Moulavi Samsul Huda, as such, the plaintiff was held to have right, title and interest over the suit land by inheritance and as the defendant nos. 1 and 2 could not prove their title, they were held to be trespassers. Accordingly, the suit was dismissed on contest.

8) It may be mentioned herein that the suit was previously numbered as TS Page No.# 6/11

No. 90/1989, which was decreed in favour of the respondent no1 - plaintiff on 19.08.2000. However, the learned first appellate Court had remanded the matter by virtue of first appellate judgment and decree dated 07.09.2007, passed in TS 14/2007. Thereafter, the suit was renumbered as TS No. 670/2006, which was again decreed.

9) The aggrieved appellants preferred a title appeal, which was registered as T.A. No. 15/2009. The learned first appellate Court formulated a point of determination to the effect whether the findings of learned trial Court is bad in law and facts and as such liable to be set aside/ interfered with by the Court?

10) On consideration of the arguments advanced and materials available on record, the learned first appellate Court found no reason to interfere with the decision of the learned trial on Court on any issues decided by the learned trial Court. In respect of the relevant issues no.4 and 5, the said learned Court held that Ext.2 i.e. the patta, showed that the suit land stood in his name and that Ext.3 to Ext.16 supported the contention of the respondent that he was paying land revenue and municipal taxes. It was also held that after the death of his father, the respondent had become the owner of the suit land. It was held that in his pleadings and evidence, the respondent- plaintiff had disclosed that his father had two daughters, who had shifted to Bangladesh and were not alive, as such, it was held that no one other than the respondent inherited the property left behind by his father. It was also held that the appellants could not contradict the stand of the respondent by adducing any credible and cogent evidence to believe that the contentions of the respondent were false. It was held that the appellants could not prove their plea that the father of the respondent had gifted the suit land to Monowara Begum and that Prasanna Kumar Goswami got the same from her as the appellants could not prove gift. It was held that the stand of the appellants were contradictory because in para 5, 6 and 7 of their written statement, it was stated that Prasanna Kumar Goswami had agreed to purchase the suit land, but no such sale agreement could not be proved. It was held that the appellants could not produce any documentary evidence to prove their stand that the said Prasanna Kumar Goswami had left the suit house Page No.# 7/11

by appointing Md. Abdul Jalil on the strength of power of attorney and then allowed the appellant to live in the suit house and land. The learned first appellate Court had referred to the ratio laid down in the case of Gian Chand & Brothers & Anr. Vs. Rattanlal @ Rattan Singh, (2013) 2 SCC 606. It was held that the appellants had failed to deal with the stand of the respondent, specifically or by necessary implication as required under Rules 3, 4 and 5 of Order VIII of the CPC and accordingly, by upholding the finding in respect of issue nos. 4 and 5, the same was modified to the extent that the suit property belonged to the father of the respondent and in absence of his sisters who are no more, the right of the respondent over the suit land stands as the sole owner of the property. Similarly, in respect of issue no.6, it was held that interference was not required, except the addition that since Monowara Begum was no more, the respondent was the only rightful owner of the suit property. In respect of the issue nos. 7 and 8, it was held that there was no evidence that Prasanna Kumar Goswami purchased the suit land from Monowara Begum and by referring to two cases, decided by the Supreme Court of India, it was held that there was no illegality or impropriety in the finding of the learned trial Court requiring interference. Accordingly, it was held that the decision on issue no.9 also did not warrant any interference. Accordingly, the appeal was dismissed.

11) The learned counsel for the appellant had strenuously argued that the respondent was governed by Mohammedan law of inheritance and, as such, the respondent alone could not have inherited the estate left behind by his father, as sisters had share in the said property. It was also submitted that the respondent had specifically stated in the plaint that hi sisters had left for Bangladesh, yet their respective addresses were shown at Guwahati, for which no notice was actually served on the two sisters of the respondent and, as such, the decree was obtained by the respondent fraudulently and it could be said that the suit was not maintainable for non- joinder of necessary parties. It is submitted that the wife of the respondent, namely, Zamila Khatun had instituted two suits against Prasanna Kumar Goswami and his wife Kusum Kumari Goswami, which were registered as TS No. 62/2071 and TS No. 45/1974 and she had also filed R.A. No. 213(K)/1987 before the Board of Revenue and Case No. 122/84 under section 144/145 Cr.P.C. It is submitted that the wife of the respondent had also instituted Misc. (J) Case No. 11/1976 against Bhabani Biswas, the Page No.# 8/11

mother of the appellant no.1. Accordingly, it is submitted the appellants the present suit filed by the respondent was barred by period limitation as prescribed under Article 64/65 of the Limitation Act.

12) The point of the suit being filed by disclosing incorrect address of the sisters of the respondent is taken up first. In this regard, it is seen that the said plea was not taken at the Court of first instance and no effort was taken to inform the learned trial Court about the same, as such, the trial Court had no occasion to pass appropriate orders as envisaged under Sub Rule (5) of Rule 14A of Order VI of the CPC. Therefore, this plea is not sustainable at the second appellate stage when such plea was waived before both the learned Courts below. Unless the plea of fraud is specifically urged and proved, the Court is unable to accept the unfounded plea of the decree being obtained fraudulently at the second appellate stage and that too when the plea was raised for the first time before this Court. Moreover, it may be mentioned that in respect of issue no.3, the learned trial Court had returned a finding that after remand, the respondent had impleaded Prasanna Kr. Goswami, Kusum Kumari Goswami, Monowara Begum and Imdadul Latif proforma defendants, and that summons was served on them, but they did not appear. Hence, it was held that plea of non- joinder taken in the written statement stood cured. Thus, the plea fails.

13) It was urged that the respondent was governed by Mohammedan law of inheritance and, as such, the respondent alone could not have inherited the estate left behind by his father, as sisters had share in the said property. In this regard, it is seen that with the return of such finding, the only persons who could be aggrieved would be such persons who would have any bona fide claim over the estate left behind by the father of the respondent. But, it is not open to the appellants to assail such a finding of fact when both the learned Courts below had returned concurrent finding of fact that the respondent was the only inheritor of the estate left behind by his father. The finding of fact cannot be held to be perverse at the instance of the appellants.

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14) It was submitted that the wife of the respondent, namely, Zamila Khatun had instituted two suits against Prasanna Kumar Goswami and his wife Kusum Kumari Goswami, which were registered as TS No. 62/2071 and TS No. 45/1974 and she had also filed R.A. No. 213(K)/1987 before the Board of Revenue and Case No. 122/84 under section 144/145 Cr.P.C. It is submitted that the wife of the respondent had also instituted Misc. (J) Case No. 11/1976 against Bhabani Biswas, the mother of the appellant no.1, as such, it was contended that the present suit filed by the respondent was barred by period limitation as prescribed under Article 64/65 of the Limitation Act. In this regard, the learned counsel for the appellants could not show any pleading wherein such a plea had been taken. Nothing could be shown to the Court from which it can be appreciated that the appellants had proved the date on and from when they claimed hostile title against the true and lawful owner of the suit property. The plea that there was previous litigation between the parties, remained as a mere statement and the appellants did not take any pain to prove the existence of previous litigation between the parties. Thus, though the plea sounds attractive, but the same is not found sustainable to interfere with the concurrent finding returned by both the learned Courts below.

15) The Court is reminded of the ratio laid down by the Supreme Court of India in the case of Bachhaj Nahar Vs. Nilima Mandal, AIR 2009 SC 1103 , wherein it was held as under:-

"(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.

(ii) A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.

(iii) A factual issue cannot be raised or considered for the first time in a second appeal. Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a Page No.# 10/11

time, fulfillment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation, should not be a ground to float the settled fundamental rules of civil procedure. Be that as it may. We will briefly set out the reasons for the aforesaid conclusions ."

16) Thus, in light of the discussions above, the Court is constrained to hold that no substantial questions of law arise for adjudication in this case in hand. It could not be demonstrated that the finding of fact was vitiated by perversity in appreciating the pleadings on record. It is not the case of the appellants that the suit was decreed by applying incorrect interpretation of law. The grounds strenuously agitated by the learned counsel for the appellants appears to be squarely covered by concurrent finding of facts which warrants no interference in exercise of jurisdiction under section 100 CPC. The findings recorded by the learned This is not a case where the findings have been arrived at by wrongly casting the burden of proof on a wrong party. This is also not a case where any finding recorded by the learned Courts below is contrary to evidence on record or by ignoring material evidence on record. This is also not found to be a case where the Courts below had arrived at a finding despite lack of admissible evidence. This is also not a case where the evidence as a whole, does not lead to preponderance of probability that the appellants had succeeded to show that the respondent had no right, title or interest over the suit property or that he had no right of inheritance to the property left by the father of the respondent. The appellants had made an attempt to project that they were inducted by a third party, but the appellants could not prove devolution of title upon Prasanna Kumar Goswami, though whom they claim their purported right. Accordingly, this appeal fails and the same is dismissed. The appellants are left to bear their own cost.

17)             Let the decree of dismissal of the appeal be prepared.



18)           The Registry shall return the LCR and shall also notify the dismissal of this

appeal to the Court of the learned Civil Judge No.1, Kamrup (M), Guwahati in connection with Page No.# 11/11

Title Appeal No. 15/2009, disposed of vide judgment and decree dated 31.03.2015.

JUDGE

Comparing Assistant