Rejia Begum vs Syeda Samsunnehar Choudhury
2021 Latest Caselaw 697 Gua

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GAHC010114572020




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

                                  Case No. : RSA/102/2020

            REJIA BEGUM
            W/O- LATE NAZRUL ISLAM, R/O- VILL.- PAISHARA (KAYAKUCHI),
            MOUZA- BANBHAG, P.O. AND P.S. GHAGRAPARA, DIST.- NALBARI,
            ASSAM, PIN- 781369.



            VERSUS

            SYEDA SAMSUNNEHAR CHOUDHURY
            W/O- TAIZUDDIN AHMED, WARD NO. 8, BARAMA ROAD, NALBARI TOWN,
            MOUZA- BATAHGILA, P.O., PS. AND DIST.- NALBARI, ASSAM, PIN- 781335.



Advocate for the Petitioner   : MR. M K CHOUDHURY

Advocate for the Respondent : MR. U SAIKIA




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                         ORDER

Date : 26-02-2021

Heard Mr. M.K. Choudhury, learned senior counsel, assisted by Mr. P. Bharadwaj, learned counsel for the appellant and Mr. Z. Mukit, learned counsel for the respondent no.1.

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2) By this appeal under section 100 CPC, the appellant has assailed the first appellate judgment and decree dated 06.03.2020, passed by the learned Civil Judge, Nalbari in Title Appeal No. 12/2018, thereby dismissing the appeal and affirming the judgment and decree passed by the Court of learned Munsiff No.1, Nalbari in T.S. No. 26/1998. The appellant is the substituted legal representative of the deceased defendant no.4 in the suit.

3) The respondent no.1 had filed a suit for a decree for declaration of right, title and interest over the land described in Schedule-A of the plaint, confirmation of possession over land described in Schedule-B of the plaint, for declaration that the defendants were unauthorisedly occupying the land described in Schedule-C of the plaint and rooms constructed thereon and for recovery of khas possession of Schedule-C land by evicting the defendants, and other reliefs. The said suit was initially registered and numbered as T.S. No. 26/1998, which was tried before the Court of the learned Munsiff No.1, Nalbari. The defendant nos. 1, 2, 3 and 5 did not contest the suit and only the defendant no.4 had contested the suit. The said suit was decreed on contest. The aggrieved defendant no.4 had preferred an appeal, which was dismissed by the learned first appellate Court and the appellant had filed a second appeal before this Court, which was registered and numbered as RSA No. 144/2004. The said appeal was allowed by judgment and order dated 22.04.2014, thereby allowing the parties to lead further evidence, if so advised, to bring more evidence on record to prove their respective cases and accordingly, the matter was remanded before the learned trial Court.

4) On remand of the suit, while the respondent- plaintiff had examined two additional witnesses, the predecessor- in- interest of the appellant examined three additional witnesses. However, the said TS No. 26/1998 was again decreed on 29.10.2018 by the learned Court of Munsiff No.1, Nalbari and an appeal was preferred against the judgment and decree passed by the learned trial Court, which was registered and numbered as T.A. No. 12/2018. It appears that in the meanwhile the defendant no.4 had died and he was substituted by the present appellant. The said T.A. No. 12/2018 was dismissed vide judgment and decree dated 06.03.2020, passed by the learned Civil Judge, Nalbari. Thus, this appeal against concurrent finding.

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5) As per the plaint, the case of the plaintiff, in brief was that Late Piyar Ali Choudhury was the owner of a plot of land and on his death, his widow, Golban Nessa owned and possessed land measuring 10 bigha-3 katha-14 lecha, covered by dag no. 298, 413 and 414 of K.P. Patta No. 32, of village- Barajol under Mouza- Pub Panbhag in the district of Nalbari together with a residential house standing thereon. Golban Nessa had two daughters, Syeda Samsunnehar Choudhury (plaintiff) and Syeda Jinnat Nessa (defendant no.1). Golban Nessa gifted land measuring about 4 katha- 1 katha each to both her daughters vide separate registered gift deeds, bearing deed nos. 1707/88 and 1708/88, both dated 18.07.1988 and that the plaintiff and the defendant no.1 had both accepted the gift and took possession of their part of the land. It was pleaded in the plaint that after such gift, Golban Nessa was having remaining land measuring 2 bigha- 1 katha- 14 lecha together with ancestral dwelling house standing thereon. Thereafter, Golban Nessa further gifted land measuring 1 bigha- 0 katha- 17 lecha along with the ancestral house standing thereon to the plaintiff vide registered deed no. 2123/96 dated 19.06.1996, which was accepted by the plaintiff. It was projected that Golban Nessa had proposed to gift remaining 1 katha-17 lecha land to defendant no.1 and that as ancestral house fell on the land gifted to the plaintiff, in a bid to make the share equal, for her two daughters, a clause was given in the gift deed that the plaintiff would pay to the defendant no.1, 50% of the value of the house to the defendant no.1. It was pleaded that on 11.07.1997, Golban Nessa died and on 30.07.1997, the plaintiff tendered a sum of Rs.5,000/- to the defendant no.1, which she refused to accept and instead, on 07.08.1997, the defendants had unauthorisedly grabbed a portion of the suit property belonging to the plaintiff.

6) The case of the defendant no.4 (predecessor- in- interest of the appellant), in short, in the written statement, was that the gift deed executed by Golban Nessa in favour of the plaintiff was void and not a valid gift and not in accordance with the Mohammedan Law of gift and, as such, the plaintiff did not acquire any right, title, or interest over the gifted property. It was projected that the dag nos. 295, 413, 414 contained a total land measuring 17 bigha- 3 katha- 13 lecha and suit patta no. 32 consisted of land measuring 176 bigha under 45 different dags, and that there were many co-owners and there was no partition Page No.# 4/11

amongst the land- owners, as such, it could not be said that Golban Nessa Begum had become the owner and possessor of entire land of Late Piyar Ali Choudhury and house standing thereon. It was stated that on the death of her husband, Golban Nessa could only

inherit 1/8th share and the two daughters, i.e. plaintiff and defendant no.1 could inherit only

2/ rd share as sharers and remaining 5/24th share as residuary, as such, Golban Nessa Begum

could have only inherited land to the extent of 1 bigha- 1 katha- 14 1/2 lecha and similarly, her

share in the house would be only 1/8th share. Hence, it was stated that Golban Nessa Begum

had no competence to gift land measuring 8 bigha- 2 katha to his daughters and that the plaintiff could not claim to have acquired any title over the land and house standing thereon on the strength of the gift deeds. It was stated that the gift deed was forged and not executed by Golban Nessa. It was stated that at the relevant time, Golban Nessa was residing with defendant no.1 at a distance of about 7 km. away from the suit land and the defendant no.4 was in possession of the ancestral house standing on the suit land for last 30 years, as such, the gift was not accompanied with possession and that the defendant no.4 claimed that he had perfected his title by adverse possession. It was also stated that Golban Nessa never went to the Sub- Registrar's Office to execute and register the sale deed. Accordingly, it was prayed that the suit be dismissed.

7) The learned trial Court had framed the following 9 issues for trial, viz., (a) Whether there is any cause of action for the suit? (b) Whether the suit is maintainable? (c) Whether the suit is barred by limitation? (d) Whether late Golban Nessa executed the alleged deed of Gift and if so whether the said Gift is Valid? (e) Whether the defendant no. 4 has been possessing the suit land adversely to the plaintiff and Golban Nessa? (f) Whether the plaintiff is entitled to right, title and interest in Schedule- A of the plaint? (g) Whether the plaintiff is entitled for confirmation of possession in schedule B of the plaint? (h) Whether the defendant has right, title and interest over the suit land? (i) To what other relief(s), the parties are entitled to?

8) The plaintiff's side had examined 8 (eight) PWs, including 2 (two) PWs who Page No.# 5/11

were examined after remand of the suit and the following documents were exhibited, viz., Original N.K. Patta no.32 (Ext.1), Partition Deed (Ext.2), Certified copy of jamabandi of N.K. Patta no. 32 (Ext.3), revenue receipt (Ext.4), gift deed no. 1707/88 (Ext.5), receipt (Ext.6), certified copy of judgment dated 03.02.1988 in TS 18/1987 (Ext.7), certified copy of gift deed no. 2123/96. The defendant no.4 had examined 6 witnesses prior to the remand of the suit and no document was exhibited.

9) In respect of issue no.(a), it was held that there was a cause of action for the suit. In respect of issue no. (b), it was held that the suit is within the period limitation. In respect of issue no. (c), it was held that the suit was maintainable. In respect of issue no. (d), it was held that the execution of gift deed (Ext.5) by donor (Golban Nessa) was duly proved by exhibiting the signature of the donee [Ext.5(1) to 5(4)]. The plaintiff had accepted the gift by putting her signature in the gift deed [Ext.5(5)]. It was proved that the defendant no.4 had put his signature as attesting witness, which was exhibited as [Ext.5(6)]. The scribe of the gift deed was also examined as PW-4, whose signature was exhibited [Ext.5(7), 5(8) and 5(9)]. PW-4 had proved that the donee had gone to the Sub- Registrar's Office to execute and register the gift deed. PW-7, in his additional evidence recorded after remand of the suit had stated that Golban Nessa, his mother-in- law had gifted land measuring 5 bigha- 1 katha- 17 lecha to the plaintiff. PW-6 had also stated that Golban Nessa had equally divided her land to her two daughters. It was proved that Ext.8 contained boundary of the gifted land measuring 1 Bigha- 17 lecha. PW-3 was the employee of Sub- Registrar's office. PW-1 had stated that her mother, Golban Nessa had proposed to gift her land equally to her and defendant no.1. It was held that Golban Nessa had made equal distribution of her land and the defendant no.4 (i.e. the predecessor- in- interest of the appellant) had put his signature in the gift deed [Ext.5 (6)]. Accordingly, it was also held that it can be safely presumed that

the gift was executed by Golban Nessa. It was held that Golban Nessa had inherited 1/8th

share to the estate of the deceased i.e. 1 bigha- 1 katha- 4 lecha, and the two daughters,

being the plaintiff and defendant no.1 inherited 2/3rd share, i.e. 3 bigha- 3 katha- 0 lecha

each out of the estate of their deceased father. It was held that residuary was entitled to inherit 2 bigha- 1 katha land out of the estate of Late Piyar Ali. However, the defendant no.4 Page No.# 6/11

who was the grandson of Late Piyar Ali and Golban Nessa was neither a sharer nor a residuary during the presence of defendant no.1, as such, it was held that he would become entitled to get share in the estate only if there are no sharers of residuaries. The learned trial Court took note of the fact that all the sons of brothers of Late Piyar Ali were made parties in the suit, but none of them contested the suit or claimed any share in the estate of Late Piyar Ali after his death in the year 1988. It was also held that the three essential conditions of a valid gift were fulfilled including constructive possession of the ancestral dwelling house. Accordingly, the issue was decided in the affirmative and in favour of the plaintiff. In respect of issue no.(e), it was held that the land was mutated in the name of Golban Nessa and thereafter in the name of the plaintiff and defendant no.1 and that the defendant no.4 was residing as permissive possessor, which did not confer any title, as such, the said issue was decided in the negative. In respect of issue no.(f) and (g) and (i), it was held that the plaintiff had right, title and interest over the Schedule-A land and that she was entitled to confirmation of possession over land described in Schedule-B, which contained rooms of ancestral house gifted to the defendant no.4, and that the plaintiff was entitled to recover khas possession of land and rooms described in Schedule-C and to the relief of permanent injunction. In respect of issue no. (h), it was held that suit land was the only land left with Late Piyar Ali and Golban Nessa and after his death, Golban Nessa had gifted all her land to her daughters, as such, neither Piyar Ali nor Golban Nessa were left any land in the name of the defendant no.4 and accordingly, the issue was decided. Accordingly, in respect of issue no. (i), it was held that the plaintiff had right, title and interest over the land described in Schedule-A and her possession over land described in Schedule-B was confirmed and it was held that the plaintiff was entitled to recover khas possession of the suit land and rooms described in Schedule-C and the defendant was liable to be restrained from disturbing peaceful possession of the rooms and land of Schedule-B. The suit was decreed accordingly.

10) It appears from the cause title of the impugned judgment in TA No. 12/2018 that the defendant no.4 had expired and the appeal was preferred by the wife of the deceased defendant no.4. The learned first appellate Court had revisited all the issues framed for trial by examining the evidence on record.

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11) The learned first appellate Court had taken up the issue no. (d) first and on examining the evidence on record, arrived a conclusion that it could be assumed that there was an amicable understanding amongst the plaintiff and defendant no.1 by which they abandoned their interest in the property of Piyar Ali for the well being of their mother and thus, Golban Nessa became the owner of the entire 10 bigha- 3 katha- 17 lecha land. By virtue of evidence of PWs no. 1, 4, 5 and 7, and on the basis of Ext.5, Ext.6 and Ext.8, it was held that Golban Nessa had gifted the suit land to the plaintiff and that it was held that the deeds of gift were not forged or fabricated. The learned first appellate Court accepted revenue paying receipt as proof of possession of the plaintiff over the suit land. Thus, it was concluded that the three essentials of gift by Golban Nessa in favour of the plaintiff was fulfilled and accordingly, the decision of the learned trial Court on issue no. (d) was not interfered with. In respect of issue no. (e), on examining the evidence on record, it was held that the defendant no.4 had failed to show on what date he came into possession, what was his nature of possession, factum of possession was not shown adversely to the plaintiff, and it was held that the defendant no.4 had not stated in his written statement from where his 12 years' possession should be counted. The plea of adverse possession and inheritance was held to be contradictory as the mother of defendant no.4 was still alive. It was held that the defendant no.4 was with Golban Nessa, his grand-mother at the time of her death. As per evidence of DW-1, at the time of death, Golban Nessa was at Village- Poirara. Thus, it was held that here was contradictory evidence of DW-1 because if the defendant no.4 was with Golban Nessa at the time of her death, then the defendant no.4 came to the suit land after her death in the year 1997 and dispossessed the plaintiff. Accordingly, it was held that the defendant no.4 was not in possession of the suit land adversely to Golban Nessa and the plaintiff. In respect of issue no. (f), it was held that as the gift deeds were valid, the plaintiff had right, title, and interest over the suit land and the issue was decided in the affirmative. In respect of issue no. (c), it was held that the gift deed was executed in the year 1988 and the suit was filed on 23.04.1998, and as period of limitation under Article 65 of the Limitation Act was 12 years, it was held that the suit for possession based on title was not barred by limitation. In respect of issue No. (a) regarding cause of action and (b) regarding maintainability of the suit, it was held that there was cause of action for the suit and the suit was maintainable. As regards issue no. (g) and (i) relating to relief, it was held that the Page No.# 8/11

plaintiff was entitled to relief as prayed for. Accordingly, the appeal was dismissed.

12) The aggrieved appellant, who is the defendant no.4 in the suit is in appeal. The learned counsel for the appellant has submitted that both the learned courts below had committed gross illegality in deciding the suit without adjudicating whether Late Golban Nessa had the competence to gift the suit land to the respondent no.1. Referring to the principles of Mohammedan law, it is submitted that Golban Nessa, being the wife of Piyar Ali could not have inherited his entire land and in this regard, elaborate submissions was made on law of inheritance under the Mohammedan law. Therefore, the substantial question of law which is pressed by the learned senior counsel for the appellant is whether in Mohammedan Law gift deed can be held to be valid without ascertaining the competence of the donor. At the outset, it is seen that in terms of Section 149 of the principles of Mohammedan law, there is a concurrent finding of fact that the three ingredients of a valid gift was present in this case. In this regard, the appellant has not been able to demonstrate from the record that such concurrent finding of fact is perverse. The learned first appellate Court had returned a finding that as per evidence of DW-1 (appellant), at the time of death, Golban Nessa was at Village- Poirara. Thus, the appellant has proved that Golban Nessa had relinquished the actual physical possession of the gifted property in favour of the respondent no.1. As regards competence of Golban Nessa to gift her entire property to the respondent no.1 and defendant no.1, it is seen that the appellant has not challenged the gift deeds which he questions. The reason is obvious, because his own mother, i.e. the defendant no.1 is the beneficiary of one gift deed. Moreover, under the Mohammedan law of inheritance, the appellant does not inherit the property of his maternal grand-mother, i.e. Golban Nessa during the lifetime of his mother, i.e., the defendant no.1. Therefore, at the behest of a stranger (i.e. appellant) to the estate left behind by Late Piyar Ali and Late Golban Nessa, the question of ascertaining the competence of Golban Nessa to gift her land to the respondent no.1 does not arise. Therefore, when through his mother, the appellant has been reaping the benefit of the property gifted to his mother, the appellant has rightly not assailed the legality of the gift deeds, otherwise, he would be deprived of the benefit of such gift in favour of his mother (i.e. defendant no.1). Moreover, when the validity of the two deeds of gift has not been challenged, there is no requirement for the Court to determine whether or not Golban Nessa Page No.# 9/11

had the competence to gift her land. Therefore, in other words, when the mother of the appellant (defendant no.1) is found to have accepted the gift from Golban Nessa, the question of competence of the donor to gift the land does not arise for determination in this case.

13) The next issue raised by the learned senior counsel is regarding non- compliance of the provisions of Order XLI Rule 31 CPC by the learned first appellate Court. In this regard, it is seen that the provisions of Order 41, Rule 31 CPC mandate that the appellate judgment shall state the points of determination and also the decision thereon. If any authority is required on the same, the judgment by the Supreme Court of India in the case of C. Venkata Swamy v. H.N. Shivanna (Dead) by LRs & Anr., (2018) 1 SCC 604 as well as the case of Simanta Jyoti Baruah v. Chairman, ASEB., 2017 (1) GLT 294 may be referred to. In the present case in hand, the learned First Appellate Court had not formulated any points of determination. Hence, following the two authorities cited above, this Court is of the unhesitant opinion that the learned first appellate Court has committed grave jurisdictional error of not formulating points of determination while passing his judgment. The same is in total disregard to the said provisions of Order 41, Rule 31 CPC. Nonetheless, having regard to the fact that in the present case in hand, the respondent had instituted suit in the year 1998 and the decree passed therein was assailed in first appeal and again in second appeal, being RSA 144/2004, and the suit was remanded back for fresh consideration. Thereafter, the suit was again heard after giving the parties a chance to adduce additional evidence and the suit was again decreed, and after unsuccessfully assailing the decree, the present second appeal has been preferred. Therefore, this Court had re-examined all the issues for trial in this second appellate stage. It is seen that the real issue in controversy are issues no. (c) to (f), which was re-visited by the learned first appellate Court and its finding thereon has been given after thorough appreciation of pleadings and evidence on record. Although by revisiting the issues framed by the learned trial Court, the defect of non- compliance of Order XLI Rule 31 cannot be cured, but the glaring fact is that this Court had remanded the suit back to the learned trial Court by judgment dated 22.04.2014, passed in RSA 144/2004, by permitting the parties to lead further evidence so as to bring more evidence on record to prove their respective case. However, while additional evidence was given by the respondent by Page No.# 10/11

examining two additional witnesses, the appellants did not adduce any additional evidence and did not prove any further document. Therefore, in this case, non- adherence of the provisions of Order XLI Rule 31 CPC is not found to have caused any prejudice to the appellant. In any event, the appellant could not show any semblance of right, title or interest over the suit land, as such, no purpose would be served to remand the matter for a fresh decision at her instance after complying with the provisions of Order XLI, Rule 31 CPC, which would be just an academic and a futile exercise. Moreover, by carving out an exception in this case, which is not to be treated as a precedent, this Court has also revisited the issues framed for trial and no infirmity is found with regard to concurrent finding of facts by both the learned Courts below.

14) Thus, it is seen that no substantial question arise for determination in this appeal. It could not be demonstrated that the finding of fact was vitiated by perversity in appreciating the pleadings or evidence on record. It is not the case of the appellants that the suit was decreed by incorrect application of law. 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 appellant had been succeeded to show that the respondent had no right, title or interest over the suit property. It could not be shown that the claim of the respondent for eviction based on title was barred by limitation. Moreover, it could not be shown that the appellant, including her predecessor- in- interest would inherit any share in the property left behind by Late Piyar Ali and Golban Nessa during the lifetime of the defendant no.1. Accordingly, viewed from all angle, this appeal fails and the same is dismissed. The appellant is left to bear her own cost.

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



16)             As required under the provisions of Order XLI Rule 11(3) CPC, the Registry
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shall notify the dismissal of this appeal to the Court of the learned Civil Judge, Nalbari in connection with Title Appeal No. 12/2018, disposed of vide judgment and decree dated 06.03.2020.

JUDGE

Comparing Assistant