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2001 Supreme(Cal) 634
High Court Of Calcutta
Tarun Chatterjee, Asit Kumar Bisi
AKBAR ALI MOLLA - Appellant
Versus
SONARGAON HOUSING CO-OPREATIVE SOCIETY LTD - Respondent
FIRST APPEAL 84 Of 2000
Decided On : 09/27/2001
BIMAL CHAKRAVARTY, JOYTIRMOY BHATTACHARJEE, NIRMALANSU ROY, SAKYA SEN, Sudhis Das Gupta
An oral heba (gift) under Mohammedan law must be proved by cogent and reliable evidence, and the presumption of entry in the R. S. record of rights can be rebutted by evidence to the contrary.
Headnote:
ADVERSE POSSESSION - PROPERTY - TITLE - ORAL HEBA - R. S. RECORD - PRESUMPTION - INTERPRETATION - BURDEN OF PROOF - ADMISSION - REBUTTAL - JUDICIAL ADMISSION - RECTIFICATION OF RECORDS - EVIDENCE ACT, 1872 - WEST BENGAL ESTATES ACQUISITION ACT, 1954 - MAHOMMEDAN LAW - ADVERSE POSSESSION - TITLE - ORAL HEBA - R. S. RECORD - PRESUMPTION - INTERPRETATION - BURDEN OF PROOF - ADMISSION - REBUTTAL - JUDICIAL ADMISSION - RECTIFICATION OF RECORDS - EVIDENCE ACT, 1872 - WEST BENGAL ESTATES ACQUISITION ACT, 1954 - MAHOMMEDAN LAW:
Fact of the Case:
Plaintiff/respondent, a housing cooperative society, purchased land from various vendors, including the heirs of Bibijan Bibi, who had inherited the property from her husband, Dilbahar Molla. The defendants/appellants claimed title to the property through an alleged oral heba (gift) made by Bibijan Bibi to Dilbahar Molla. The plaintiff/respondent filed a suit for declaration of title and permanent injunction, which was decreed in their favor by the trial court.
Finding of the Court:
The High Court upheld the trial court's decision, finding that the defendants/appellants had failed to prove their case of oral heba. The court noted that the evidence adduced by the defendants/appellants was contradictory and unreliable, and that the recitals in a sale deed executed by Dilbahar Molla rebutted the presumption of entry in the R. S. record of rights. The court also held that the plaintiff/respondent had proved their title and possession of the property through the registered sale deeds and other evidence.
Issues: 1. Whether the defendants/appellants had proved their case of oral heba made by Bibijan Bibi in favor of Dilbahar Molla. 2. Whether the plaintiff/respondent had proved their title and possession of the property.
Ratio Decidendi: 1. The court held that the defendants/appellants had failed to prove their case of oral heba. The court noted that the evidence adduced by the defendants/appellants was contradictory and unreliable, and that the recitals in a sale deed executed by Dilbahar Molla rebutted the presumption of entry in the R. S. record of rights. 2. The court held that the plaintiff/respondent had proved their title and possession of the property through the registered sale deeds and other evidence.
Final Decision: The High Court dismissed the appeal and affirmed the judgment and decree of the trial court.
( 1 ) THIS appeal has been preferred by the defendant/appellant against the judgment and decree passed by Shir Abdul Quader the learned Civil Judge (Senior Division), Baruipure, South 24-Parganas on 9th July, 1999 in Title Suit No. 144 of 1993.
( 2 ) AS per the plaint case the plaintiff Sonargaon Housing Co-operative Society Ltd. purchased a base area of agricultural land in Mouza Tegharia and Kamarabad, P. S. Sonarpur with a view to develop the same as Township for comfortable living of its members in congenial atmosphere with all civil amenities and facilities of modern Society. The property of the society has been developed under the name and style of "sonargaon Park". The Township area is duly demarcated by the boundary pillars. The suit properties measuring total area of 2. 09 acres comprise R. S. Plot Nos. 340, 341, 342, 343 and 344 of Mouza Tegharia. By the registered sale deed dated 27. 1. 68 the plaintiff purchased 1. 39 acres out of the suit properties from Niyamat Ali Molla and his three sister Juhara Khatoon, Alekjan Bibi and Neharganu Bibi who proclaimed to be in exclusive Khas possession of the demarcated area by inheritance through their mother. By another registered sale deed dated 27. 1. 68 the plaintiff purchased the remaining 70 dec. of land of the suit properties from Malekjan Bibi the widow of late Dilbahar Molla. Since after purchase the plaintiff is in khas possesion of the suit properties. The plaintiff has been maintaining khas possession of the property in suit by exercising all sorts of proprietary rights upon mutation of name, by enjoyment of usufructs therefrom and by changing the nature and character of the property of its discretion as of right. The plaintiff has been in actual physical possession of the suit property as of right for more than 25 years openly and adversely against all others and has acquired good and indefeasible title and ownership over the property by adverse possession as well. All on a sudden, the defendants being armed with deadly weapons with the help of some musclemen trespassed upon the suit property on 30. 3. 93 and broke down some of the boundary pillars of the township, removed bricks and also ploughed a portion of the suit property. The total loss caused to the plaintiff on that date was estimated at about Rs. 30,000/ -. The matter was duly reported to the police but the local police did not take any action except making of G. D. Entry No. 1641 dated 30th March, 1993. The plaintiff also filed a petition under section 144 (2) of Cr. PC and obtained favourable order but no action was taken by the police. On 19th April, 1993 the defendants held out serious threat of grievious hurt and murder to the security supervisor of the plaintiff. On 20th April, 1993 a large scale raid was made by the defendants being armed with deadly weapons and substantial damage was caused by them to the suit property. By such illegal acts of the defendants the plaintiff's title to the suit property has been clouded. Hence the suit for declaration of title to the suit properties and permanent injunction has been instituted by the plaintiff against the defendants.
( 3 ) THE defendants contested the suit by filing the written statement wherein the material allegations contained in the plaint have been denied. The specific case of the contesting defendants is that the suit property originally belonged to Alta Bibi. After death of Alta Bibi the same was inherited by Bibijan Bibi, wife of Dilbahar Molla. While in possession of 1. 85 acros of land Bibijan Bibi transferred 1. 36 acres of land by oral heba in favour of the husband Dilbahar Molla and possession of the said property in suit was delivered by Bibijan Bibi in favour of Dilibahar Molla. The R. S, record was made accordingly in favour of Dilbahar Molla in respect of the said property. After demise of his first wife Bibijan Bibi, Dilbahar Molla acquired th share of the remaining 49 decimals of land and thereby he became owner
