Page No.# 1/9 vs Abu Bokkar Mondal @ Fokir Ali
2021 Latest Caselaw 466 Gua

                                                                      Page No.# 1/9

GAHC010116902020




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

                                   Case No. : RSA/93/2020

            AMIRON NESSA AND 2 ORS
            W/O LATE JAMAL UDDIN, R/O VILL. AOLATOLI, P/S LAKHIPUR, DIST.
            GOALPARA, ASSAM.

            2: JAMIR UDDIN
             S/O LATE JAMAL UDDIN
             R/O VILL. AOLATOLI
             P/S LAKHIPUR
             DIST. GOALPARA
            ASSAM.

            3: SAIDUR RAHMAN
             S/O LATE JAMAL UDDIN
             R/O VILL. AOLATOLI
             P/S LAKHIPUR
             DIST. GOALPARA
            ASSAM

            VERSUS

            ABU BOKKAR MONDAL @ FOKIR ALI
            S/O LATE KALU MONDAL, R/O VILL. AND P.O. AOLATOLI, P.S. LAKHIPUR,
            DIST. GOALPARA, ASSAM.



Advocate for the Petitioner   : MR S HOQUE

Advocate for the Respondent :

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA Page No.# 2/9

: JUDGMENT AND ORDER :

10.02.2021

Heard Mr. S. Hoque, learned counsel for the appellant at the stage of hearing under Order XLI Rule 11 CPC.

2) This appeal under section 100 CPC is directed against the first appellate judgment and decree dated 07.03.2020, passed by the learned Civil Judge, Goalpara, thereby dismissing the appeal and affirming the judgment and decree dated 02.02.2017, passed by the learned Munsiff No.1, Goalpara in Title Suit No. 76/2009. The appellants herein are the defendants in the suit.

3) The respondent - plaintiff had instituted the suit for declaration of right, title and interest over the suit land and for eviction of the appellants. In short, the case projected in the plaint is that late Kalu Mondal was the owner of 4 (four) following plots of land, viz., (i) 3B-2K-5L at village Aolatoli, (ii) 13B-4K-10L at village Niz Kurshakati, (iii) 2B-1K-5L at village Charaikhusuri, and 7B- 0K- 0L at village Padyamari. In the year 1970, prior to his death, he divided the bhiti land at village Aolatoli into 3 equal shares and orally gifted the same to his three sons namely, Taleb Ali, Abdul Jolia and Abu Bokkar. Thereafter, by executing a sale deed no.4074 dated 10.09.1974, the share of Taleb Ali and Abdul Jolia was sold to Mustt. Abeja Bewa, which is referred to as Schedule- A land in the plaint. Mustt. Abeja Bewa sold a part of Schedule-A land to Abdul Aziz vide sale deed no. 3975 dated 27.02.1976, which is referred to as Schedule B land in the plaint. Vide sale deed no.1465 dated 08.04.1980, the Schedule B land was sold by Abdul Aziz to the respondent- plaintiff, namely, Abu Bakkar Mondal. It was stated that the appellant no.1 was the sister of the respondent- plaintiff and after her matrimonial dispute, the respondent had allowed her to stay in a small part of Schedule B land on condition that she would vacate the said land as and when required. The said land is described in Schedule C. It was stated that as the appellants had refused to vacate the land when required, suit was filed.

4) The appellants-defendants had contested the suit. It was claimed that by Page No.# 3/9

registered sale deed No.4074 dated 10.09.1974, Taleb Ali Mondol and Abdul Jolia Mondol, both sons of Kalu Mondal had sold their share of land measuring 2B-0k-15L to Mustt. Abeja Bewa and not 2B-0K-3L as projected in the plaint. The said Mustt. Abeja Bewa was stated to be the wife of late Kalu Mondal and the mother of the respondent no.1 and the appellant no.1. Thereafter, Mustt. Abeja Bewa sold a part of the said land measuring 0B-2K-10L to Md. Kamaluddin Munshi vide Sale deed No.2405 dated 09.06.1981. The said Kamaluddin Munshi vide registered sale deed no. 2549 dated 24.08.24.08.1982, sold his said purchased land to Mustt. Amiron Nessa, the appellant no.1. The appellant nos.2 and 3 are the sons of appellant no. 1. Accordingly, the appellants- defendant had denied that they were staying in Schedule- C land as permissive occupiers and prayed for dismissal of the suit. Although from the plaint, it does not appear that the appellants had preferred any counter-claim, but in their written statement, it was prayed that declaration of the right, title, interest including possession of the appellants be allowed by dismissing the prayer made in the suit.

5) The learned trial Court, formulated the following issues for trial, viz., (i) Whether there is any cause of action? (ii) Whether the suit is maintainable in its present form and manner? (iii) Whether the suit is barred by law of limitation? (iv) Whether the suit is bad for nonjoinder and misjoinder of parties? (v) Whether the defendant no.1 is permissive possessor of the suit land? (vi) Whether plaintiff has any right, title and interest over the suit land? (vii) Whether the plaintiff is entitled to khas possession of the suit land by evicting defendant? (viii) Whether the plaintiff is entitled to the relief as prayed for?

6) The respondent- plaintiff had examined 6 PWs including himself as PW-1 and exhibited the following documents, viz., certified copy of registered sale deed no.4074/1974 (Ext.1); certified copy of registered sale deed no.3975/1976 (Ext.2); certified copy of registered sale deed no.1645/1980 (Ext.3), Registration Volume Register no. 22/74 from 27.08.1974 to 20.07.1976 (Ext.4), relevant pages of volume register where sale deed no. 4074/74 was recorded Ext.4(1) and 4(2), relevant entries of volume book Ext.4(3) and Ext.4(4), Registration Volume Register no. 20/76 from 01.01.1976 to 04.11.1978 (Ext.5), relevant pages of volume register where sale deed no. 3975/76 was recorded Ext.5(1) and 5(2), relevant entries of volume book Ext.5(3) and Ext.5(4), Volume Register no. 9 of 1980 Page No.# 4/9

from 21.03.1980 to 24.08.1980 (Ext.6), relevant entry of sale deed no. 1645/1980 at page no. 202-203 Ext.6(1). The appellants had examined 3 (three) witnesses including the appellant no.1 as DW-1 and exhibited the following documents, viz., certified copy of registered sale deed no.4074/1974 (Ext.A); certified copy of registered sale deed no.2405/1981 (Ext.B); certified copy of registered sale deed no.2549/1982 (Ext.C); land holding certificate (Ext.D); copy of jamabandi (Ext.E); land revenue receipt (Ext.F).

7) In respect of issue nos. (i) and (ii), the learned trial Court had held that there was cause of action for the suit and that the suit was maintainable in its present form and manner. In respect of issue no. (iii), it was held that as the respondent had asked the appellant no. 1 to vacate the suit land in the month of April 2009 and on 01.06.2009, and as the suit was filed on 16.07.2009, it was not barred by limitation. In respect of issue no. (iv), it was held that the suit was not bad for non-joinder of Dilijan Nessa, the other sister of the respondent and appellant no.1, because the said Dilijan Nessa appeared as PW-2, and had deposed to the effect that she along with other siblings had received their respective shares in the property at Niz Kurshikati and they had sold their respective shares of land to one Bajez Ali and Khalek, as such, it was held that the suit was not bad for mis-joinder of proper and necessary parties. In respect of issue nos. (v) and (vi), the learned Court held that the appellant no.1 claimed to have purchased the land from one Kamaluddin Munshi, who had purchased the said land from Mustt. Abeja Bewa, the mother of the appellant no.1, but the appellants had not examined the said witness. Later on, the appellant's side vide petition no.623/2015 informed the learned trial Court that the said witness had expired, but the said petition no.623/15 was not supported with a death certificate. Moreover, in her cross- examination the DW-1 had stated that she had affixed her thumb impression in her evidence- on-affidavit and does not know how to read and write and had no knowledge of what was written in her evidence-on-affidavit. The DW-2, in his cross-examination, denied selling land in question to defendant no. 1 vide sale deed no.2549/1982. The DW-3 who had made claim on the suit land on the basis of the registered sale deed, had stated that he does not know that for how many years he was living in the suit land. The learned trial Court held that on perusal of the evidence of PW-5 and PW-6, who were official witnesses, the contention of the plaintiff was found more trustworthy and believable, leading to a strong presumption that the Page No.# 5/9

defendant no.1 was a permissive possessor of the suit land and both the issues were decided in favour of the plaintiff. It may appears that two clerical errors have crept in respect of the said finding. Firstly, because there are two paragraphs with same serial number 18. Secondly, although the issues were decided in favour of the plaintiff, but sentence used is as follows - "Therefore it can be said that both this points are decided in favour against the plaintiff". Thus, it appears that the word "against" had erroneously crept in the sentence, as such, the said clerical error is ignored. Accordingly, in respect of issues no. (vii) and (viii), it was held that the respondent was entitled to khas possession by evicting the appellants along with a cost of Rs.50,000/-.

8) In the first appeal preferred by the appellants, the learned first appellate Court had formulated the following point of determination - Whether the judgment and decree dated 02.02.2017, passed by the learned trial Court in TS No. 76/2009 is sound in law and facts or whether the same lacks propriety warranting interference in appeal?

9) On revisiting the issues as decided by the learned trial Court, the issue nos.

(i) and (ii) were taken up together and held that the suit was maintainable and that there was cause of action for the suit. In respect of issue no. (iii), it was held that in the case the possession of the appellants became adverse to the respondent on 01.06.2009 and the suit was instituted on 16.07.2009, as such, the suit was filed within the prescribed period of limitation. In respect of issue no.(iv), regarding non- joinder of Rahima Khatun, Dilijan Nessa and Abdul Aziz, it was held that the respondent claimed title over the suit land on the basis of registered sale deed and he was not claiming property as legal heir of his father. Moreover, it was held that Dilijan Nessa appeared as PW-2 and had stated that she along with other siblings had received their respective shares in the landed property of her father. Accordingly, it was held that the sisters of the appellant No.1 and the respondent were nt necessary parties to the suit. In respect of issue nos. (v) and (vi), it was held that the respondent had exhibited registered sale deed (Ext.3), which fortified his claim of purchasing the suit land. It was also held that Ext.C, produced by the DW-1 was a copy and not admissible. Accordingly, it was held that while the appellants could not prove their plea, the respondent had proved his title to the suit land. It was further held that although no issue was framed as to whether Page No.# 6/9

the appellants were residing on land claimed to have purchased vide registered sale deed no. 2549, but in view of the discussions made, the said point is implicit in issue nos. (v) and (vi), as such, there was no infirmity in this regard. In respect of issue nos. (vii) and (viii), in view of decision on other issues, it was held that the suit was rightly decreed in law and on facts and did not warrant any interference. Accordingly, the point of determination was answered against the appellants and the appeal was dismissed.

10) The learned counsel for the appellants had pressed all the substantial questions as formulated in the memo of appeal. It was submitted that the respondent could not prove the identity of the suit land, as such, the decree passed by the learned Courts below were not sustainable. It was strenuously submitted that the appellants had produced copies of all their title deeds and land revenue records to show that the land of the appellant no.1 was different from the suit land claimed by the respondent, as such, the learned Courts below had wrongly shifted the burden of proof on the appellants. Accordingly, it was urged that this was a fit case where the learned Courts below ought to have appointed a Commission to determine the boundaries of the suit land as well as the land of the appellants, which was covered by Ext.C. In this regard, it is submitted that the learned courts below had committed grave error in not framing any issue as to whether the suit land was different from the land of the appellant no.1. It is further submitted that the respondent had referred to self-contradictory boundaries of the suit land, however, the Courts below failed to consider that because of inconsistent boundaries of the suit land, the decree was inexecutable.

11) Perused the materials on record. Moreover, the learned counsel for the appellant has also shown to the Court the certified copy of evidence- in- chief of PWs 5 and 6, evidence- on- affidavit of all other witnesses and their cross examination. The learned counsel for the appellants have not been able to show whether any part of the evidence of the respondent's side could be effectively demolished during cross- examination of PWs no. 1 to 6. However, in course of her very short cross- examination, the DW-1 (appellant no.1) had stated that "I do not know to read and write. I had put by thumb impression on the affidavit. I know the exhibits. I do not know what is written in affidavit." In the evidence- on- affidavit, Page No.# 7/9

there is no statement to the effect that the contents had been read over and explained to her, thus, there can be no other presumption, except that the DW-1 (i.e. appellant no.1) was not aware of the contents of her evidence- on- affidavit, which demolishes her evidence.

12) In page-2 of her written statement, the case projected by the appellants was that one Kamaluddin Munshi vide registered sale deed no. 2549 dated 24.08.24.08.1982, sold his said purchased land to Mustt. Amiron Nessa, the appellant no.1. However, in para-4 of his evidence- on- affidavit, the DW-2, namely, Abdul Kalam Kazi, son of Late Mujaffar Kazi claimed that he had sold the land in question to the appellant no.1 vide registered sale deed no. 2549 dated 24.08.1982 and that it was further specifically stated that the vendee of the said registered sale deed was the appellant no.1. However, in his cross examination, the DW- 2 had denied that he had sold any land to Amiron (appellant no.1). Although the DW-3 had stated in his evidence- on- affidavit, that the appellant no.1 had purchased land from Md. Kamaluddin Munshi vide sale deed no. 2549 dated 24.08.1980, but he did not exhibit the said sale deed. Thus, the entire defence of the appellants regarding passing of a valid title of the suit land in favour of the appellant stood demolished.

13) The respondent had claimed title over the suit land, seeking eviction of the appellants from Schedule-C land. It was the appellants who had set up theri defence that the appellant no.1 had title over the said land. In terms of section 102 of the Evidence Act, 1872 if no evidence is tendered from both sides, it is the plea of the appellant that would fail, as such, the plea urged by the learned counsel for the appellants that the burden of proof was put on the appellants by the learned trial Court cannot be faulted with. Notwithstanding that the appellants had not been prove their title in respect of land described in Schedule-C, the appellants had not made any prayer before the learned trial Court for appointment of a Commission to ascertain whether the land occupied by the appellants was different from the land claimed by the respondent. No such prayer was made even at an appellate stage, as such, it is too late in the day at the second appellate stage for the appellants to wake up and claim appointment of Commission. The plea fails because as per Rule 10(2) of Order XXVI of the CPC, the report of the Commission becomes evidence. Moreover, the purpose of appointing a Commission is not to fish out evidence for the parties, as such, when the Page No.# 8/9

appellants could not prove their title, no case is made out for admitting this appeal on the ground that had the learned Courts below appointed a Commission, the issue in controversy could have been effectually determined.

14) 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 by erroneous appreciation of the pleadings or evidence on record. This is not the case of the appellants that the suit was decreed by incorrect appreciation 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. None of the finding recorded by the learned Court below is vitiated by 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 based on inadmissible evidence or that any finding is contrary to evidence on record or by ignoring material evidence on record. 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. This is, rather, a case where the appellants had miserably failed to establish the title of the appellant no.1 over the suit land. Accordingly, this appeal fails and the same is dismissed without issuance of notice on the respondent. The appellants are left to bear their own cost.

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



16)             The Registry shall notify the dismissal of this appeal to the Court of the

learned Civil Judge, Goalpara in connection with Title Appeal No. 2/2017, disposed of vide judgment and decree dated 07.03.2020.

17) The Court Master shall return the certified copy of the evidence- in- chief of PWs 5 and 6, evidence- on- affidavit of all other witnesses and their cross examination after retaining a photocopy thereof on record.

Page No.# 9/9

JUDGE

Comparing Assistant