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1991 Supreme(Gau) 149
GAUHATI HIGH COURT
S.N.Phukan, J.
On The Death of Rahmat Ali, Firoza Khatun -Appellant
Versus
MD.Suleman -Respondent
Second Appeal No. 51 of 1982
Decided On : 19-08-1991
A.Bhattacharyya, A.Roy, D.N.Barua, A.Devi, N.M.Lahiri
A family arrangement can be oral and does not require registration unless it is used as a document of title.
Headnote:
FAMILY ARRANGEMENT - VALIDITY - REGISTRATION - EVIDENCE - VARIANCE BETWEEN PLEADING AND EVIDENCE - ADMISSIBILITY - CPC ORDER VI RULE 2.
Fact of the Case:
Plaintiff filed a suit for declaration of title, possession, and compensation for wrongful use and occupation of the suit land and house. The plaintiff claimed ownership through inheritance from his grandfather, Munsi Khan, and alleged that the defendants were tenants who refused to vacate the premises. The defendants claimed ownership through purchase and denied the tenancy relationship. The trial court and lower appellate court found in favor of the plaintiff.
Finding of the Court:
The court held that the plaintiff had established his title to the suit land through a valid family arrangement, which was accepted by the courts below. The court also found that the defendants had failed to prove their claim of ownership through purchase. The court further held that the family arrangement did not require registration as it was not a transfer of property but a recognition of a claim. The court also found that there was no variance between the pleading and the evidence, as the plaintiff had pleaded that the suit land devolved upon him by inheritance and was entitled to lead evidence to show that he became the sole owner through a family arrangement.
Issues: 1. Whether the suit was maintainable. 2. Whether the plaintiff had proved his title to the suit land. 3. Whether the defendants had proved their claim of ownership through purchase. 4. Whether the family arrangement required registration. 5. Whether there was a variance between the pleading and the evidence.
Ratio Decidendi: 1. A family arrangement can be oral and does not require registration unless it is used as a document of title. 2. A family arrangement can be inferred from a long course of dealings between the parties. 3. A family arrangement can be made to maintain peace and harmony in the family, even in the absence of a present or future dispute. 4. A plaintiff is entitled to lead evidence to show that he became the sole owner through a family arrangement, even if the specific details of the arrangement were not pleaded in the plaint.
Final Decision: The appeal was dismissed.
2. The suit was filed by the plaintiff-respondent for declaration of right, title and interest over the suit land and the house standing thereon and also for khas possession by evicting the defendants. Plaintiff has also prayed for compensation for wrongful use and occupation of the suit house and the land. The area of the suit land is 1 K. 9 L. and covered by Dag No.458 (Kha), Periodic Patta No. 70 of Doomdooma Mouza. The suit property is situated within Doomdooma town. According to plaintiff, the suit land originally belonged to his grand father late Munsi Khan Seikh and devolved upon him by inheritance. He got his name mutated in the revenue record in the year 1955 with one house on the suit land which has duly been assessed and registered in the year 1955-56 as holding No.86 of C Ward of Doomdooma town, and he has been paying Municipal Tax. There is also a vacant land about 15ft. width to the South of the suit land. According to plaintiff he rented out the suit premises to tenants and ultimately to defendant No.l. It is stated that defendant No.l was a tenant in a house of one Hazi Safiullah and the house is situated in Dag No.484 (Part) covered by Periodic Patta No.96 and is adjacent to the suit premises on the Northern side. Defendant No.l was carrying on business in the said house of Hazi Safiullah. To the further North of the said house one Kasem Ali was residing by building his house on the land belonging to Hazi Safiullah and the land is covered by Dag No.484. Sometime in March 1966, the defendant No. 1 was inducted as a tenant in respect of the suit house at a monthly rent of Rs.150/- and the tenancy was according to English calendar month. Defendant No. 1 did not pay rent in spite of repeated demands and thereafter he sublet a part of the suit premises. Plaintiff asked the defendant No 1 to vacate the suit premises. But he found that his son defendant No.2 initiated a proceeding under section 145 CrPC wherein it was stated that defendant No 2 purchased the suit bouse from Hazi Kasem AH on 23.4.53 and he acknowledged Md. Jalil, son of late Hazi Safiullah to be the owner and landlord of the land and the defendant denied the tenancy between the defendant and the plaintiff. Thereafter after issuing notice to quit and vacate the premises, the present suit has been filed.
3. Defendant Nos.l and 2 filed a joint written statement and averred that the suit land did not devolved on the plaintiff alone, as Munsi Khan had several sons, daughters and grandsons. According to defendants, in the year 1942 defendant No. 1 opened a cycle shop in a house rented out by Haji Safiullah. The holding number of the said house being No. 91 in C Ward of Doomdooma town and he resided there till 1947. Defendant No. 1 took another house from Haji Kasem AH on rent till 1953. Defendant No. 1 purchased the house in the name of his eldest son defendant No. 2 from Haji Kasem Ali by registered sale deed in the year 1953 for valuable consideration and after purchase both the defendants residing in the house and possessing the same. The same house is also situated in Ward No. C and holding No. 42 C in the year 1955 and in the year 1956-57 to 89 C and in the year 58-59 to 91 C and thereafter to 92 C. Defendants have further averred that the suit is not maintainable; it is bad for non-joinder of parties and barred by limitation.
4. The suit was also contested by defendant No. 3 i. e. Md. Jalil. son of Haji Safiullah. It is alleged that Haji Kasem Ali was in occupation of the parts of land under Dag No.484 (Ka) and (Kha) who had houses therein since 1940. In the year 1944 Haji Safiullah after purchase got his name mutated in respect of the above dags and thereafter Haji Kasem Ali attorned to him as tenant. It is further stated that near the house of Haji Kasim Ali late Haji Safiullah had some other houses which were rented out. One bouse was rented to defendant No. 1 as a tenant
