Gauhati High Court
RSA/244/2018 on 24 January, 2025
GAHC010095752018
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
RSA No. 244/2018
1. Md. Kashem Ali,
S/o Late Saheb Ali,
Resident of Vill-Barobilla Part-I,
PS-Dhubri, PO-Dhubri, Dist.-Dhubri,
Assam, Pin-783301.
2. Meherjan Bibi,
W/o Md. Farizan Ali,
Resident of Vill-Barobilla Part-I,
PS-Dhubri, PO-Dhubri, Dist.-Dhubri,
Assam, Pin-783301.
......Appellants.
-Versus-
1. Legal heirs of Late Asiat Ali-
(a) Abu Bakkar Siddique.
(b) Zahidur Rahman.
(c) Sahidul Ali.
(d) Osiman Nessa.
(e) Asiran Nessa.
(f) Shahida Biwi.
(g) Afruza Nessa.
(h) Tahiron Bewa.
(i) Jahiron Bewa.
Sl.Nos.1(a) to 1(c) are sons, Sl.Nos.1(d) to 1(g) are daughters and
Sl.Nos.1(h) and 1(i) are the wives of late Asiat Ali.
All are residents of Vill-Barobilla Part-I,
PS-Dhubri, Dist.-Dhubri, Assam,
Pin-73301.
RSA 244/2018 Page 1 of 20
2. Nur Zamal Sk.,
S/o Late Kamar Uddin,
Resident of Vill-Barobilla Part-I,
PS-Dhubri, Dist.-Dhubri, Assam,
Pin-783301.
3. Legal heirs of Kashmati Bewa-
(a) Babul Ali.
(b) Sabur Ali.
(c) Amir Ali.
(d) Haziron Bibi.
Sl. Nos.3(a) to 3(c) are sons and 3(d) is the daughter of late Hazuddin Sk.
All are residents of Vill-Dharmasala, Part-IV, PS-Dhubri,
Dist.-Dhubri, Assam, Pin-783301.
4. Hamida Khatun,
W/o Late Kamaruddin Sk.,
Resident of Vill-Barobilla Part-I,
PS-Dhubri, Dist.-Dhubri, Assam,
Pin-783301.
5. Legal heirs of Moslem Ali-
(a) Struck off vide order dated 23.01.2019 in IA(C) No.3013/2018.
(b) Struck off vide order dated 23.01.2019 in IA(C) No.3013/2018
(c) Struck off vide order dated 23.01.2019 in IA(C) No.3013/2018
(d) Struck off vide order dated 23.01.2019 in IA(C) No.3013/2018
(e) Struck off vide order dated 23.01.2019 in IA(C) No.3013/2018
(f) Struck off vide order dated 23.01.2019 in IA(C) No.3013/2018
......Respondents.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Appellants : Mr. A. Ikbal. ......Advocate.
For the Respondents : Ms. R. Choudhury. ......Advocate.
Dates of Hearing : 13.08.2024, 29.08.2024, 03.09.2024 &
24.10.2024
Date of Judgment : 24.01.2025
JUDGMENT AND ORDER
Heard Mr. A. Ikbal, learned counsel for the appellants and also
heard Ms. R. Choudhury, learned counsel for the respondents.
2. This regular second appeal, under Section 100 of the Code of Civil
Procedure, 1908 is directed against the judgment and decree dated
15.11.2017 passed by the learned Civil Judge, Dhubri, in Title Appeal
No.113/2013. It is to be noted here that vide impugned judgment and
decree dated 15.11.2017, the learned First Appellate Court has affirmed
the judgment and decree dated 03.12.2013 passed in Title Suit
No.107/2001 by the learned Munsiff No.1, Dhubri.
3. The background facts leading to filing of the present appeal is
briefly stated as under:-
"The respondents herein as plaintiffs instituted one title suit, being
Title Suit No.107/2001, against the present appellants/defendants
and other proforma defendants stating that the plot of land
described in Schedule-A of the plaint is owned and possessed by
Kaismati Bewa along with movable properties described in
Schedule-C land. Kaismati Bewa died on 27.10.2000 leaving behind
her two brothers and sisters. The defendants are not the legal heirs
of Kaismati Bewa and one is allegedly her adopted daughter and
the other is her daughter-in-law. The Schedule-B land of the plaint
originally owned and possessed by Md. Ali, who died on 04.05.2000
and after his death Kaismati Bewa, being the wife of Md. Ali
inherited 1/4th share and the plaintiffs being as her legal heirs
inherited the same and remaining portion of the land was inherited
by brothers and sisters of Md. Ali. The defendants resided with
Kaismati Bewa at her own residence, which is located over a plot of
land measuring 1 katha 6 lechas in Dag No.43 and defendant No.2
looked after the land described in Schedule-„A‟ and „B‟ and the
defendant No.1 being maintained and brought up by Kaismati
Bewa, out of love and affection got her name mutated in Dag
No.42 covering an area of 3 Katha and the plaintiffs being only the
legal heirs of Kaismati Bewa inherited her property and the
defendant No.1 is trying to establish right, title and interest over
Schedule--„A‟ and „B‟ land by filing mutation case and when the
plaintiffs asked the defendants to vacate the Schedule--„A‟ and „B‟
land, they failed to do so. Then being aggrieved, the plaintiffs
instituted the above noted suit.
The defendants/appellants herein contested the suit by filing
written statement and taken the plea of limitation, non-joinder of
necessary parties and denied the averments made in the plaint.
Their case is that Kaismati had not owned 4 Bighas 2 Kathas 2
Lechas of land and Md. Ali had no land as he had already sold and
gifted 5 Bighas of land vide deed No.2005/76 from Dag No.18 and
2 Bighas 2 Kathas 10 Lechas of land from Dag No.40 and delivered
possession to defendant No.1 and she is possessing the same.
Their further case is that their predecessor-in-interest late Saheb
Ali died leaving 28 Bighas 3 Kathas 1 Lecha of land and he survived
by 4 sons, namely, Md. Ali, Kashem Ali, Mozibar Rahman and
Moslem Sk and two daughters, namely, Mohia Bibi and late Saheda
Bibi and Md. Ali and three other brothers named above are entitled
to get 5 Bighas 3 Kathas 12 1/5th lechas of land, but Md. Ali sold 2
Bighas 3 kathas 15 lechas of land to one Soda Nessa and another 5
Bighas to Maherjan Bibi on 11.03.1976 vide deed No.2005/76,
which was in excess of his share and the proforma defendants
brought counter claim also, praying for injunction, declaration,
correction of records in the name of proforma defendants Kashem
Ali and other legal heirs of late Saheb Ali and therefore, they have
prayed for dismissal of the suit with cost and for decreeing the
counter claim.
It is to be noted here that the plaintiffs‟ side submitted their
written statement against the counter claim of proforma
defendants and denied the statement and averments made therein.
Upon the aforementioned pleadings, the learned Trial Court framed
as many as 12 issues as under:-
1. Whether the suit is barred under the law of limitation?
2. Whether the suit is bad for non-joinder of necessary parties?
3. Is there any cause of action for the suit?
4. Whether the suit is not properly valued and no proper Court
fees paid?
5. Whether the plaintiffs have right, title and interest over A and
B schedule land?
6. Whether the plaintiffs are entitled to a decree as prayed for?
7. Whether the counter claim is maintainable?
8. Whether the proforma defendant No.1 has right, title and
interest over the suit land?
9. Whether the sale deed No.2006 dated 11.03.1976 is a forged
one?
10. Whether the proforma defendant is entitled to decree as
prayed for in the counter claim?
11. To what relief, if any, the parties to this suit are entitled to?
12. Whether the plaintiffs have 1/4th share in the Schedule-B
land?
Thereafter, hearing both the parties, the learned Trial Court
has decided the Issue Nos.1, 2, 3, 4, 5 and 12 in affirmative in
favour of the plaintiffs and also Issue Nos.6 and 11 in favour of the
plaintiffs and decided Issue No.7, 8, 9 and 10 in negative against
the plaintiffs and decreed the suit in favour of the plaintiffs
declaring right, title and interest over the Schedule--„A‟ and „B‟ land
and for recovery of khas possession.
Being aggrieved, the appellants herein (hereinafter First
Appellate Court) preferred an appeal before the Court of learned
Civil Judge, Dhubri, being Title Appeal No.113/2013. Thereafter,
hearing both the parties, the learned First Appellate Court vide
impugned judgment and decree dated 15.11.2017 has affirmed the
judgment and decree so passed by the learned Trial Court dated
03.12.2013."
4. Being aggrieved, the appellants approached this Court by filing the
present appeal, which was admitted on the following substantial
questions of law:-
(i) Whether the judgment and decree suffers from
misreading, non-reading of the pleadings and
evidence as well as misinterpretation of the
documents adduced by the parties and as such,
resulted in wrong and perverse findings in
deciding the vital issue No.5?
(ii) Whether the respondents failed to discharge their
burden under Section 101 of the Evidence Act that
their predecessor was the owner and possessor of
the suit lands and as such, the learned Courts
below erred in law in decreeing the suit of the
respondents?
(iii) Whether the learned Courts below erred in law in
holding that the plaintiffs-respondents are the
only surviving legal heirs of late Kaismati Bewa
in view of the admission made by the plaintiffs-
respondents that the appellant No.2 is the
adopted daughter of late Mahammad Ali and late
Kaismati Bewa?
(iv) Whether the suit of the respondents is bad for
non-joinder of necessary parties?
5. Mr. Ikbal, learned counsel for the appellants, submits that the
respondents herein failed to establish how Kaismati Bewa become the
owner of the Schedule-A plot of land as there is no evidence to that
effect and further, there is no evidence to show that the appellant No.2 is
the adopted daughter of Md. Ali and Kaismati Bewa. Mr. Ikbal, further
submits that the three conditions which are required to be fulfilled under
the Assam Temporarily Settled Areas Tenancy Act, 1971 has not been
complied with and the learned Courts below had not considered at all
Exhibit-3 and both the Courts below failed to consider the names of the
appellants and also considered that the names of the appellants appeared
in the Khatian and the name of appellant Meherjan appeared along with
her father and in support of his submission, Mr. Ikbal has referred
following decisions:-
(i) Union of India & Ors. v. Vasavi Co-op. Housing Society
Ltd. & Ors., reported in (2014) 2 SCC 269;
(ii) Bachhaj Nahar v. Nilima Mandal & Anr., reported in (2008)
17 SCC 491; and
(iii) Philips Alfred Malvin v. Y.J. Gonsalvis & Ors., reported
in AIR 1999 Ker 187.
6. Per contra, Ms. Choudhury, learned counsel for the respondents
submits that the land described in Schedule-B is the 1/4th part of the
share of Kaismati Bewa, who inherited the same after the death of her
husband Md. Ali and that Meherjan Bibi is not entitled to any relief and
the plaintiffs by examining 8 witnesses and 10 documents, have clearly
established their case and that they are the legal heirs of late Md. Ali and
they are entitled to inherit the property after the death of Kaismati Bewa.
6.1 Further, Ms. Choudhury submits that the appellants had failed to
exhibit any document and the appellant Meherjan Bibi, being the adopted
daughter, is not entitled to inherit any property as per Section 347 of the
Muslim Act and it has been proved that Meherjan Bibi is the adopted
daughter.
6.2 Ms. Choudhury, further submits that the counter claim, preferred
by the appellants herein was rejected by the learned Trial Court and no
appeal is preferred against the dismissal of the counter claim. It is also
the further submission of Ms. Choudhury that this appeal is not
maintainable and that all the necessary parties were impleaded in the
title suit and that there is no substantial question of law involved in this
appeal and as such, Ms. Choudhury contended to dismiss the appeal. In
support of her submission, Ms. Choudhury has also referred the following
decisions:-
(i) Hemareddi (Dead) Through LRs. v. Ramachandra Yallappa
Hosmani & Ors., reported in (2019) 6 SCC 756;
(ii) Jannat Rahman (Mustt.) & Ors. v. Amjad Ali & Ors.,
reported in 2017 (2) GLT 414;
(iii) Abdul Maleque (Md.) & Ors. v. Abdul Matin (Md.) &
Ors., reported in 2014 (5) GLT 269; and
(iv) Thakur Bhim Singh (Dead) By LRs & Anr. v. Thakur Kan
Singh, reported in (1980) 3 SCC 72.
7. In reply to the submission of Ms. Choudhury, Mr. Ikbal, learned
counsel for the appellants submits that the learned First Appellate Court
has not adhered to the principle laid down in Order 20 Rule 18 CPC and
that the plaint is not supported by any affidavit as required by Hon‟ble
Supreme Court in the case of Salem Advocate Bar Association,
T.N. v. Union of India, reported in (2005) 6 SCC 344.
8. Having heard the submission of learned Advocates of both the
parties, I have carefully gone through the memo of appeal and the
grounds mentioned therein and also the impugned judgment and decree
dated 15.11.2017 passed by the learned First Appellate Court in Title
Appeal No.113/2013 and also the judgment and decree dated
03.12.2013, passed by the learned Trial Court in Title Suit No.107/2001.
9. The first substantial question of law relates to right, title and
interest of the respondents/plaintiffs over Schedule „A‟ and „B‟ land. The
question is, whether the judgments and decrees of the learned Courts
below suffers from perversity for misreading, non-reading of the
pleadings and evidence as well as misinterpretation of the documents
adduced by the parties while deciding issue No.5.
9.1. It appears from the impugned judgments and decrees, so passed
by the learned Trial Court as well as by the learned First Appellate Court
that it has taken into account the pleadings of the parties, the counter
claim of the defendants and also the evidence, both oral and
documentary, of the plaintiffs as well as defendants. And having taken
note of all the facts and circumstances on the record had passed the
impugned judgments and decrees.
9.2. Having gone through the records of the learned Trial Court, I find
that the respondents/plaintiffs had examined 8 witnesses and exhibited
10 documents to establish that they are the brother and sister of Late
Md. Ali, who had possessed the land described in Schedule-„A‟ and „B‟ of
the plaint. And being legal heirs of Md. Ali they are entitled to inherit his
land.
9.3. But, at the time of hearing, the learned counsel for the appellants
had failed to demonstrate from the impugned judgment and decree
passed by the learned Courts below as to which part of the evidence and
pleadings had not been considered and taken into account and which
part of the evidence was misread by the Courts below in respect of the
Issue No.5. On the other hand, it appears that the learned Trial Court
had discussed the Issue Nos.5 along with Issue No.12 in detail and
considered all the pleadings and the documents exhibited by the parties
and thereafter, arrived at a reasonable finding that the defendants‟ side
had failed to prove their case and consequently, dismissed their counter-
claim. Notably, no appeal was preferred by the appellant for dismissal of
their counter-claim.
9.4. It appears from the evidence of the parties and also from the
documents that the respondent herein preferred the title suit claiming
their right, title and interest over the suit land on the ground Kaismati
Bewa, who had the right, title and interest over the suit land, was the
wife of Md. Ali, who died issue less. Further, it appears that the
respondents/ plaintiffs had examined as many as 8 witnesses and
exhibited 10 numbers of documents, have established their right, title and
interest over the suit land.
9.5. It appears that after the death of Md. Ali, his wife Kaismati Bewa
had inherited the suit land and her name was recorded over the suit land
and as per Final Khatian No.74- Exhibit-3, the name of Md. Ali and
Kaismati Bewa recorded over the same and the certified copy of
Jamabandi - Exhibit-4 shows that the name of Kaismati Bewa was
recorded over land of Patta No. 108 under Dag Nоs. 8, 21, 38, 43 which
is described in Schedule - „A‟ of the plaint. Similarly, another certified
copy of Jamabandi- Exhibit-5 also indicates that the name of Kaismati
Bewa recorded over Dag No. 17, 45, and another certified copy of
Jamabandi - Exhibit-6, shows that the name of Kaismati Bewa was
recorded over Schedule - „B‟ land of the plaint. Exhibits-7 & 8, the
certified copy of Mutation Orders, dated 05.07.2001 and 05.08.2001
which indicates that vide D.M.(PS) No. 247/2000 and 249/2000, the
prayer made by the appellant/defendant No. 1 for mutation of her name
over suit land was cancelled and against that order no appeal was
preferred by appellant. Further, the Exhibit-9, certified copy of sale deed
shows that the name of late Kaismati Bewa and the same was proved by
P.W.6, the official witness. The same also shows that a land measuring
1B-2K-3L under Dag No. 18, 39 and 40 over Khatian No. 74 was
purchased by Kaismati Bewa from Moslem Ali. The Exhibit-10-the certified
copy of the Mutation Order shows that the names of
respondents/plaintiffs recorded over the land described in Schedule - „A‟
land of the plaint, which is covered by Dag No. 8, 21, 38, 43 and 89 and
against Exhibit-10, no appeal has been preferred by the appellants
herein.
9.6. It also appears that the „B‟ schedule land of the plaint was originally
owned and possessed by the Md. Ali and he died on 04.05.2000 and after
his death, Kaismati Bewa inherited 1/4th share and the plaintiffs being her
legal heirs inherited the same and remaining portions of the land was
inherited by brothers and sisters of Md. Ali. It also appears that the
appellants reside with the Kaismati Bewa in her residence in Dag No. 43
with area 1K-6L and the appellant No. 2 look after suit land of Schedule
„A‟ and „B‟ and she died on 27.10.2000 and being the only legal heirs of
Kaismati Bewa, the respondents/plaintiffs have inherited her property and
her name has been recorded duly over Schedule -„A‟ land vide Exhibit-10.
9.7. In view of the evidence of the witnesses examined by the
respondents herein and the documents exhibited by them, the learned
Trial Court had arrived at a finding that they have succeeded in
establishing their right, title and interest over the suit land.
9.8. It also appears that the appellants/defendants also examined three
witnesses and exhibited two documents Exhibit- „A‟ and Exhibit-„B‟ the
Rent Receipt. Exhibit- „A‟ shows the name of Saheb Ali. It also appears
that the defendant No.1 had, though in chief supported his case, yet he
failed to withstand the cross-examination. He had no knowledge about
the suit land. D.W 2 was the assistant of (RKG) Dhubri and he proved the
Exhibit-„A‟. D.W.3 is Extra Deed Writer of Sub-Registry Office, Dhubri and
deposed about gift deed executed by Md. Ali, he even failed to state in
whose possession the suit land is.
9.9. In the given factual backdrop, it cannot be said that judgments and
decrees of the learned Courts below suffers from any perversity for
misreading, non-reading of the pleadings and evidence as well as
misinterpretation of the documents adduced by the parties while deciding
issue No.5.
9.10. Though Mr. Ikbal, the learned counsel for the appellants, relied
upon the decision of Hon‟ble Supreme Court in the case of Vasavi Co-
op. Housing Society Ltd. & Ors.(supra), submits that the revenue
records are not documents of title and the plaintiffs have to prove their
own case by adducing evidence and they cannot succeed on the
weakness of the case of the defendants, yet, from the aforesaid
discussion and finding, it cannot be said that they have failed to prove
their own case. As such, the ratio laid in the said case would not come
into his assistance. Further, in the case of Corpn. of the City of
Bangalore v. M. Papaiah reported in (1989) 3 SCC 612 Hon‟ble
Supreme Court has also held that:
"5. ... the question of interpretation of a document
not being a document of title is not a question of
law."
9.11. Thus, it cannot be said that the learned Trial Court as well as the
learned First Appellate Court has misread, non-read of the pleadings and
evidences as well as misinterpret of the documents adduced by the
parties and as such there is no perversity in the finding recorded by both
the Courts below in respect of issue No.5.
9.12. It is to be noted here that this substantial question of law relates to
facts and there is concurrent finding of fact by both the learned Courts
below. And this Court, being the second appellate Court, is not entitled
to re-appreciate the facts. Reference in this context can be made to a
decision of Hon‟ble Supreme Court in Chandrika Singh (Dead) by LRS
& Anr. v. Sarjug Singh & Anr., reported in (2006) 12 SCC
49, wherein it has been held that the High Court under Section 100 CPC
has limited jurisdiction. To deal with cases having a substantial question
of law, Hon‟ble Supreme Court observed as under:-
"12. ... While exercising its jurisdiction under
Section 100 of the Code of Civil Procedure, the
High Court is required to formulate a substantial
question of law in relation to a finding of fact.
The High Court exercises a limited jurisdiction
in that behalf. Ordinarily unless there exists a
sufficient and cogent reason, the findings of
fact arrived at by the courts below are binding
on the High Court..."
9.13. Again, in the case of Chacko & Anr. v. Mahadevan, reported
in (2007) 7 SCC 363, while dealing with the jurisdiction under Section
96 and 100 CPC, Hon‟ble Supreme Court has held as under:-
"6. It may be mentioned that in a first appeal
filed under Section 96 CPC, the appellate court
can go into questions of fact, whereas in a
second appeal filed under Section 100 CPC the
High Court cannot interfere with the findings of
fact of the first appellate court, and it is
confined only to questions of law."
9.14. In the case of Hero Vinoth v. Seshammal, reported in
(2006) 5 SCC 545, the principles relating to Section 100 CPC is
summarized as under:-
(i) An inference of fact from the recitals or
contents of a document is a question of fact.
But the legal effect of the terms of a
document is a question of law. Construction of
a document involving the application of any
principle of law is also a question of law.
Therefore, when there is misconstruction of a
document or wrong application of a principle
of law in construing a document, it gives rise
to a question of law.
(ii) The High Court should be satisfied that the
case involves a substantial question of law,
and not a mere question of law. A question of
law having a material bearing on the decision
of the case (that is, a question, answer to
which affects the rights of parties to the
suit) will be a substantial question of law,
if it is not covered by any specific
provisions of law or settled legal principle
emerging from binding precedents, and,
involves a debatable legal issue. A
substantial question of law will also arise in
a contrary situation, where the legal position
is clear, either on account of express
provisions of law or binding precedents, but
the court below has decided the matter, either
ignoring or acting contrary to such legal
principle. In the second type of cases, the
substantial question of law arises not because
the law is still debatable, but because the
decision rendered on a material question,
violates the settled position of law.
(iii) The general rule is that High Court will not
interfere with the concurrent findings of the
courts below. But it is not an absolute rule.
Some of the well-recognised exceptions are
where:-
(i) the courts below have ignored material
evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences
from proved facts by applying the law
erroneously; or
(iii) the courts have wrongly cast the burden
of proof. When we refer to "decision
based on no evidence", it not only refers
to cases where there is a total dearth of
evidence, but also refers to any case,
where the evidence, taken as a whole, is
not reasonably capable of supporting the
finding.
9.15. In view of above factual and legal position, this substantial
question of law has to be answered in negative, and accordingly, the
same stands answered.
10. The second substantial question of law discharging of burden under
Section 101 of the Evidence Act by the respondents/plaintiffs that their
predecessor was the owner and possessor of the suit lands. It appears
that the learned Trial Court as well as the learned First Appellate Court
had discussed the issue in detail in the impugned judgments and decrees
and arrived at a reasoned finding that by examining 8 witnesses and 10
documents, the plaintiffs had discharged their burden in establishing that
they are the brother and sister of Late Md. Ali, who had possessed the
land described in Schedule--„A‟ and „B‟ of the plaint and being legal heirs
of Md. Ali they are entitled to inherit his land. Thus, this substantial
question of law has to be answered in negative and accordingly, the
same stands answered.
11. Now, coming to the third substantial question of law, it appears that
the same also relates to appreciation of facts. It also appears that the
learned Courts below had discussed the same in detail and arrived at a
finding that the plaintiffs are the surviving legal heirs of Late Kaismati
Bewa and after the death of Kaismati Bewa, who had inherited the suit
land from her deceased husband Md. Ali.
11.1. It is, however, a fact that the appellant No.2 is the adopted
daughter of late Md. Ali and Kaismati Bewa. But Ms. Choudhury, learned
counsel for the respondents herein, vehemently submits that in view of
Section 347 of the Muslim Act, the adopted daughter is not entitled to
inherit any property from her father. There appears to be substance in
the submission of Ms. Choudhury as Hon‟ble Supreme Court has
authoritatively settled this issue in the case of Dagadabai v. Abbas,
reported in (2017) 13 SCC 705, as under:
"20. Fifth, the defendant having failed to prove
that he was the adopted son of Rustum, had no
option but to suffer the decree of dispossession
from the suit land. It is a settled principle of
Mohammadan Law that Mohammadan Law does not
recognise adoption (see Section 347 of Mulla
Principles of Mahomedan Law, 20th Edn., p. 430)."
11.2. Though this contention of Ms. Choudhury, is however, disputed by
the learned counsel for the appellants by referring to a decision of Kerela
High Court in the case of Philips Alfred Malvin vs. Y.J.
Gonsalvis and Ors., reported in AIR 1999 Ker 187, wherein it has
been held as under:-
"9. Mohammaden Law also recognise adoption if
there is custom prevailing among Mohammaden
communities. The custom is accepted to have the
force of law, as is held in AIR 1936 Lahore 465.
Section 29 of the Oudh Estates Act, 1869 permits
a Mohammedan Talukdar to adopt a son. In the
State of Jammu & Kashmir, the existence of local
custom regarding adoption has been recognised by
virtue of Sri Pratap Jammu & Kashmir Laws
Consolidation Act, 1977. The right of the couple
to adopt a son is a constitutional right
guaranteed under Article 21. The right to life
includes those things which make life meaningful.
Correa couple might have thought of making their
life more meaningful by adopting a son."
11.3. But, in view of the decision of Hon‟ble Supreme Court in the case
of Dagadabai (supra) the contention of Mr. IKbal, learned counsel for
the appellants cannot be accepted and the decision of Kerela High Court,
in the case of Philips Alfred Malvin (supra) lost its significance.
11.4. Thus, this substantial question of law is also to be answered in
negative and the same stands answered accordingly.
12. Coming to the fourth substantial question of law as to whether the
suit of the respondents is bad for non-joinder of necessary parties, this
Court finds that the learned Trial Court had dealt with the same in Issue
No.2 and arrived at the finding that though the defendants had taken
such a plea, but in their evidence, they failed to prove the fact as to why
the suit is bad for non-joinder of legal heirs of Late Mazabe Rahman and
Md. Ali and having gone through the oral and documentary evidence of
both the parties, the learned Trial Court has held that it did not find any
one left who are necessary parties to the suit and the same was not
argued at the time of hearing.
13. The law relating to joinder and non-joinder of necessary parties is
well settled in catena of decisions of Hon‟ble Supreme Court. Basically
two tests are to be satisfied for determining the question who is a
necessary party. Reference in this context can be made to decision of
Hon‟ble Supreme Court in Ramesh Kundanmal vs. Municipal
Corporation of Greater Bombay reported in (1992) 2
SCC 524. In the said case, wherein, in Paragraph 6, Hon‟ble Supreme
Court has observed thus:-
"6.......................A necessary party is one
without whom no order can be made effectively. A
proper party is one in whose absence an effective
order can be made but whose presence is necessary
for a complete and final decision on the
question involved in the proceeding. The addition
of parties is generally not a question of initial
jurisdiction of the Court but of a judicial
discretion which has to be exercised in view of
all the facts and circumstances of a particular
case."
13.1. Thus, these tests are -
(i) there must be a right to some relief against
such party in respect of the controversies
involved in the proceedings;
(ii) no effective decree can be passed in the
absence of such party."
13.2. Herein this case, though Mr. Ikbal, learned counsel for the
appellants submits that the legal heirs of late Mazebur Rahman and
Saheba Bibi were not impleaded in the suit, though Mazebur Rahman and
Saheba Bibi, both were the brother and sister of Late Md. Ali, yet, it
appears that the respondents herein, as plaintiffs of the title suit, had not
sought for any relief against them. And it appears that without their
impleadment also in the said suit, it is possible to pass an effective
decree and that being so, this Court is of the view that this substantial
question of law is not involved herein and even if it is there, the same has
to be answered in negative.
14. In the result, I find no merit in this appeal and accordingly, the
same stands dismissed.
15. Send down the record to the learned Courts below with a copy of
this judgment and order. The parties have to bear their own costs.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
