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GAUHATI HIGH COURT
N. CHAUDHURY, J.
Tamijan Bibi - Petitioner
Versus
Abdur Rahman (MD.) and others – Respondents
RSA No. 137 of 2003
Decided on : 06-01-2016
For the Petitioners:B. Ahmed, N. Haque and M.H. Borbhuiya, Advocates.
For the Respondents:H.R.A. Choudhury, A.S. Choudhary, A. Begum and F.U. Borbhuiya, Advocates.
Headnote:
Civil Procedure Code,1908 - Order 41, Rule 22 - Indian Registration Act, 1909 - Sections 35, (1) (c) and 47 - Transfer of Property Act - Section 54 - Evidence Act - Section 90 - Sale deed - Suit patta - Confirmation of possession - Title Suit - Appellate judgment and decree passed by learned District Judge, at Silchar in Title Appeal No. has been called in question in present second appeal by defendant - Court dismissed suit holding that Exhibit-1, document on title of which suit of plaintiffs is based, was not acted upon by purchaser and father of plaintiffs and consequently defendant acquired title by way of Exhibits- 2 and 3 are nothing but records of rights - Respondents as plaintiffs instituted Title Suit No. 58 in court of learned Assistant District Judge against sole defendant - Praying for a decree declaring right, title and interest with to suit land measuring 8 B 19 K Ch. and also for confirmation of possession as well as injunction - It was stated in plaint land measuring 8B 19 K 12 Ch. of Patta No. of Part-II was curved out of RS Patta No. of same having an area of 12 B 7K 10 Ch - Second RS Patta No. was issued in name of and his brother - Died without any issue and thus became only land holder - He died leaving behind two sons and a daughter - Died unmarried and sold her share in the patta by registered sale deed and handed over the possession - Died leaving behind present plaintiffs and another son died issue less - Plaintiffs have been enjoying their ancestral property described in schedule to plaint - Only daughter started claiming title to land forgetting that she did not inherit any property to suit patta in of sale deed executed by her mother in favour of - Plaintiffs were constraint to institute suit praying for declaration of their right, title and interest and confirmation of possession on basis of sale deed – Held, This continues until and unless patta is cancelled under Rule 26 of Settlement rules under Land And Revenue Regulation by Commissioner after affording opportunity of hearing to land holder - In case in hand, no material has been placed on record to show that original patta granted to and his brother was subsequently cancelled by competent authority - No pleading has been made in the written statement to effect - That being position, title conferred on and devolved on their legal heirs in accordance with provision of Section-9 of Land And Revenue Regulation - Such right is not only heritable but also transferrable - Such sale by by was also valid inasmuch as execution of sale deed has been found to be valid and lawful by learned courts below - Having so found, there is no material on record to arrive at finding that a fresh patta was issued in favour of and other legal heirs, name of and plaintiffs appeared in Exhibits- 2 and 3 are by way of inheritance and not by way of direct settlement - Learned first appellate court has arrived at finding that revenue authority was duty bound to enquire as to whether there was any transfer of title by any legal heir of the original land holder and same not having been done inclusion of name of defendant in records of right became possible - It is established law that mutation entries cannot confer title on anyone - If any reliance is necessary, one can take help from the case of reported in - Same has been taken by this court in case in 2 GLT 399 - As it has already been observed that learned trial court held Exhibit-1 to have been duly executed and legally registered and that defendant did not challenge finding by way of Order 41, Rule 22 of CPC or otherwise and so there was no occasion for learned first appellate court to make any adjudication to that effect - Appeal is devoid
N. Chaudhury, J. - The appellate judgment and decree dated 7.5.2003 passed by the learned District Judge, Cachar at Silchar in Title Appeal No. 8 of 2001 has been called in question in the present second appeal by the defendant. The learned trial court dismissed the suit holding that Exhibit-1, the document on title of which the suit of the plaintiffs is based, was not acted upon by the purchaser and father of the plaintiffs and consequently the defendant acquired title by way of Exhibits- 2 and 3 which are nothing but records of rights (Zamabandis)
2. The respondents herein as plaintiffs instituted Title Suit No. 58 of 1996 in the court of learned Assistant District Judge, Cachar at Silchar (as was designated at that time) against the sole defendant Mustt. Tamijan Bibi praying for a decree declaring their right, title and interest with respect to the suit land measuring 8 B 19 K 12 Ch. and also for confirmation of their possession as well as injunction. It was stated in the plaint that land measuring 8B 19 K 12 Ch. of Patta No. 252 of Mouza-chiripar Part-II was curved out of RS Patta No. 142 of the same Mouza having an area of 12 B 7K 10 Ch.
The second RS Patta No. 252 was issued in the name of Alim Uddin and his brother Abdul Goni. Abdul Goni died without any issue and thus Alim Uddin became the only land holder. He died leaving behind two sons, namely, Abdul Rahim and Mansur Ali and a daughter, Mustt. Meharbanu. Mansur Ali died unmarried and Meharbanu sold her share in the patta to Abdul Rahim by registered sale deed dated 10.10.1944 and handed over the possession. Abdul Rahim died leaving behind the present plaintiffs and another son Sumer Uddin who died issue less. While the present plaintiffs have been enjoying their ancestral property described in the schedule to the plaint, Tamijan Bibi the only daughter of Meherban Bibi started claiming title to the land forgetting that she did not inherit any property to the suit patta in view of the sale deed executed by her mother in favour of Abdul Rahim on 10.10.1944. Hence, plaintiffs were constraint to institute the suit praying for declaration of their right, title and interest and confirmation of possession on the basis of sale deed.
3. On being summoned defendant appeared and submitted written statement and claimed that there was no sale of land by Meherban bibi at all and so share of Meherban Bibi devolved on the defendant Tamijan Bibi. The averments made in the plaint were flatly denied by the sole defendant.
4. On the basis of the aforesaid pleadings of the parties, the learned trial court framed the following six issues and asked the parties to prove their respective case by adducing evidence :-
(i) Have the plaintiffs any cause of action for the suit?
(ii) Is the suit maintainable in its present form?
(iii) Is the suit barred by estoppels, waiver and acquiescence?
(iv) Is the suit bad for non-joinder of necessary parties?
(v) Have the plaintiffs' right, title and interest over the suit land?
(vi) To what relief, if any, the plaintiffs are entitled?
5. Plaintiffs examined four witnesses and placed reliance on three documents. Exhibit-1 is the original sale deed dated 10.10.1944 and Exhibits-2 and 3 are Zamabandis of RS Patta No. 142 and second RS Patta No. 252. The defendant examined two witnesses but did not adduce any documentary evidence.
6. Learned trial court after consideration of the evidence led by the parties arrived at the finding that Meherbanu did execute Exhibit-1 sale deed in favour of Abdul Rahim on 18.7.1944 and thereafter she died on 22.7.1944. The Sub-Registrar on being approached for registration of the deed under Section 35 of the Indian Registration Act, 1909 held enquiry and thereafter duly registered the document on 10.10.1944. The learned trial court arrived at the finding that Exhibit-1 was duly executed and registered by Meherbanu transferring her right, title and interest in favour of Abdul Rahim. But thereafter relying on Exhibits-2 and
