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2012 Supreme(Gau) 585
IN THE HIGH COURT OF GAUHATI
Brojendra Prasad Katakey, J.
On the death of the Hazarat Ali, his legal heir Md. Fakaruddin Ali Ahmed – Appellants
Vs.
On the death of Jamiruddin his heirs and legal representatives - Abdul Razzak and other – Respondent
RSA No. 6 of 2000
Decided On: 14.05.2012
For Appellant/Petitioner/Plaintiff: Mr. A.C. Sarma and Mr. P. Chakraborty
For Respondents/Defendant: Mr. S. Sarma and Mrs. J. Deka
The plaintiffs must prove their title in respect of the land, and the admissibility of secondary evidence is subject to the requirements of the Evidence Act.
Headnote:
Inheritance - Mohammedan Law - Evidence Act
Fact of the Case:
The plaintiffs claimed right, title, and interest in a piece of land and sought confirmation of possession and recovery of khas possession. The Trial Court decreed the suit in favor of the plaintiffs, but the First Appellate Court set aside the judgment and decree, holding that the plaintiffs failed to prove their title over the land.
Finding of the Court:
The Court found that the plaintiffs failed to prove their title in respect of the land and dismissed the appeal.
Issues: Cause of action, maintainability of the suit, non-joinder of necessary parties, adverse possession, right, title, and interest over the land, possession, right of purchase, entitlement for the decree, relief for the parties.
Ratio Decidendi: The plaintiffs failed to prove their title in respect of the land, and the secondary evidence of the sale deeds was held inadmissible due to the lack of explanation for non-production of the original documents.
Final Decision: The appeal was dismissed.
Brojendra Prasad Katakey, J.
1. This appeal by the plaintiffs is directed against the judgment and decree dated 18.11.1999 passed by the learned Civil Judge (Senior Division), Nagaon in Title Appeal No. 7/1998 allowing the appeal preferred by the defendants by setting aside the judgment and decree passed by the Trial Court dated 29.01.1998 in Title Suit No. 126/1993. The appellant as plaintiff instituted Title Suit No. 126/1993 in the Court of the learned Civil Judge (Junior Division) No. 1, Nagaon, (now Munsiff) claiming right, title and interest, by purchase, in respect of 7 bighas 1 katha 8 lechas of land covered by Dag No. 216(old)/ 413(new) of periodic patta No. 12(old)/168(new), more fully described in Schedule-A to the plaint and also for confirmation of possession in respect of Schedule-B land measuring 4 bighas 1 katha 8 lechas and for recovery of khas possession by evicting the defendants from Schedule-C land measuring 3 bighas, both part of the Schedule-A measuring 7 bighas 1 katha 8 lechas, contending inter alia that the land measuring 10 bighas 2 kathas 19 lechas originally belonged to Ali Sheikh, who died leaving behind his wife Kadarjan Bibi, 4 sons and 3 daughters, who have inherited the land belonging to Ali Sheikh. It has also been pleaded in the plaint that as during the lifetime of Ali Sheikh, his 3 daughters were married away and started living separately, they abandoned their claim over their father's property and hence the land measuring 10 bighas 2 kathas 19 lechas covered by Dag No. 216(old)/413(new) of periodic patta No. 12(old)/168(new) was mutated in the names of Ali Sheikh's wife Kadarjan Bibi and his 4 sons, namely, Subed Ali, Fajar Ali, Najar Ali and Samed Ali. It is also the contention of the plaintiffs that subsequently Fajar Ali, Najar Ali and Samed Ali, 3 sons of Ali Sheikh sold 7 bighas 1 katha 8 lechas of land to the plaintiffs by 12 registered deeds of sale (Exts.-1 to 11A) between the years 1959 to 1972 and delivered possession. The further contention of the plaintiffs is that by virtue of such purchase though they have acquired the right, title and interest in respect of 7 bighas 1 katha 8 lechas of land, the defendant Nos. 1 and 2 with an ulterior motive of grabbing a portion of the suit land of the plaintiffs, tried to mutate their names, which, however, was not granted by the revenue authority and thereafter in the year 1990 they made the first attempt for dispossession, which eventually they succeed in respect of 3 bighas of land, which is described in Schedule-C to the plaint. The plaintiffs further contended that the remaining land was sold by the 4th son of the proforma defendant Nos. 3 and 4.
2. The defendant Nos. 1 and 2 have contested the suit filed by the plaintiffs by filing the joint written statement. While admitting the averments made in the plaint that the land measuring 10 bighas 3 kathas 19 lechas originally belonged to Ali Sheikh, who died leaving behind his wife, 4 sons and 3 daughters, they, however, denied the contention of the plaintiffs that 3 daughters relinquished their right over the land as they were married away and started living separately. It has been contended by the defendant Nos. 1 and 2 in the written statement that after the death of Ali Sheikh, 1/8th share of the land devolved on his widow and remaining portion devolved on 4 sons and 3 daughters and they had been possessing their respective shares of land. The further contention of the defendants is that during the lifetime of the wife of Ali Sheikh, she purchased the share of Subed Ali, one of the sons of Ali Sheikh, which was later on alienated to one Kubdul Khan. The further contention of the defendants is that after the death of Ali Sheikh's wife, her share devolved on her 4 sons and 3 daughters and accordingly the daughters became the owner of more than 4 kathas 17 lechas of land each, and the 3 daughters thereafter sold 2 bighas 4 kathas 11 lechas of land in their favour by two registered
