Back
GAUHATI HIGH COURT
N. CHAUDHURY, J.
Bilat Ali - Petitioner
Versus
Sainur Ali & Ors. – Respondents
RSA No. 246 of 2005
Decided on : 19-01-2016
For the Petitioner:T. Goswami, Advocate.
For the Respondents:H.R.A. Choudhury, F.U. Borbhuiya, A.S. Choudhury and L. Rahman, Advocates.
Headnote:
Mullas Mahammedan Law - Sections 106, 63 and 65 - Decree - Lechas of land from his entitlement to the plaintiff - Re-possessed the sold out land after one week of the sale - Whether there is cause of action for the suit - Whether the suit is bad for non-joinder of necessary parties - Whether suit is barred by law of limitation - Whether defendant trespassed into suit land and thereby dispossessed the plaintiff on suit land - Whether defendants are liable to be evicted from suit land described in the plaint schedule by demolishing and removing their houses - Whether the plaintiff is entitled for decree as prayed for - what reliefs, if any, the parties are entitled - Alleged that defendant No.1 re-possessed sold out land after one week of sale and, thereafter, both defendant Nos. 1 and 2 constructed house on southern portion of suit land - While plaintiff was in peaceful possession of land described in Plot comprising 2 Katha 8 Lechas, the defendant Nos. 1 and 2 trespassed into Plot No. Z and X measuring 13 Lechas and 11 Lechas respectively - Defendants, thereafter, forcibly constructed one house on suit land - Under such circumstances, plaintiff filed suit for partition of 11 Lechas of homestead land of defendant No.2 from dag as per possession of his predecessor-in-interest - Ultimately, by prayer made in the plaint, plaintiff wanted ejectment of defendants from land described in Schedule-C of plaint by demolishing and removing house described in Schedule-D of plaint - Plaintiff prayed for partition of 11 Lechas of land described in Plot No. X from rest of dag and also for perpetual injunction – Held, Question of law as to Doctrine of Return also cannot arise in present case as evidently there were residuaries of Section 106 of Law, second substantial question of law has to be decided in affirmative and in favour of appellant and same is accordingly decided - Substantial question of law, it is to be seen as to whether there is adequate pleadings as to adverse possession - As per the law relating to adverse possession, a defendant is duty bound to disclose date as to when possession became adverse - Additional written statement, it is stated that the plaintiffs suit is barred by limitation and by adverse possession - It is stated further that defendant No.1 has been possessing suit land as of right since his fathers time peacefully, continuously and adversely against any kind of interest of plaintiff - It is to be noticed that in written statement the defendants made a mention of amicable settlement amongst brothers and on basis of that left place and thus, possession over suit dag and was a permissive one and could not have been described to be adverse by any stretch of imagination - Having claimed that land was given to possession by other two brothers, descendants could not have claimed that land was under adverse possession by them - In that view of matter, third substantial question of law is also decided in affirmative and against respondents - In view of what has been stated above, it appears that plaintiff had some title to property on basis of purchase made from legal heirs of the original owner - Learned First Appellate Court, therefore, committed error in dismissing the suit in entirety - Appeal is accordingly allowed by setting aside impugned judgment of First Appellate Court - Matter is remanded back to First Appellate Court to assess entitlement of all parties within meaning of Order 20, Rule 18 of CPC keeping in mind provisions of Section 63, 65 and 106 of Law - In course of such adjudication if it is found that it is necessary to ask the parties to lead further evidence, learned First Appellate Court shall do so by taking recourse to provisions of Order 41, Rule 27 – Appeal is allowed
- The suit involves a partition dispute over land originally owned by Bali Sk., who died leaving three sons: Thiru Sk., Mana Sk., and Huwa Sk., with defendants claiming a fourth son Bhubura Sk. (!) (!) [14000228050003]
- Plaintiff Bilat Ali purchased portions of the land from legal heirs: 19 Lechas from Abeda Begum (daughter of Huwa Sk.) via Exhibit-1, 8 Lechas from Milik (son of Mana Sk.) via Exhibit-2, 10 Lechas from Merina Begum via Exhibit-3, and 11 Lechas from Nazrul via Exhibit-4, totaling 2 Katha 8 Lechas out of 2 Katha 19 Lechas. (!) [14000228050002]
- Plaintiff alleged defendants trespassed on 18.11.95 into Plots Z and X (13 Lechas and 11 Lechas), constructed a house, and sought ejectment, demolition, partition of 11 Lechas from Plot X(i), and perpetual injunction. [14000228050002]
- Defendants claimed oral family settlement where Thiru Sk. and Huwa Sk. abandoned the land and shifted to another village, leaving possession with Mana Sk.; suit bad for non-joinder of parties and barred by limitation/adverse possession. [14000228050003][14000228050004]
- Trial court initially dismissed suit, but on appeal remanded with additional issue on plaintiff's title; after re-trial, decreed suit for plaintiff. [14000228050006][14000228050007][14000228050008]
- First Appellate Court reversed, dismissing suit entirely. (!) [14000228050008]
- High Court framed three substantial questions: (1) misconstruction of Hanafi Mahomedan inheritance for shares of plaintiff's vendors; (2) error in applying Section 106 of Mulla's Mahomedan Law (Doctrine of Return) ignoring Sunni status; (3) error on adverse possession based on pleadings/evidence. (!) (!) (!) [14000228050008]
- No proof of oral gift or agreement making Mana Sk. sole owner; sales by Abeda, Nazrul, etc., valid to extent of their shares under Sections 63 and 65 of Mulla's Mahomedan Law (sharers/residuaries), e.g., daughters entitled to half as sharers, balance to residuaries. [14000228050012] (!) (!) (!) (!) (!) [14000228050013]
- Doctrine of Return under Section 106 inapplicable as residuaries existed for Huwa Sk. and Thiru Sk.; first and second questions decided for appellant. [14000228050013][14000228050014]
- Adverse possession plea failed: no specific date of adverse possession pleaded; possession initially permissive via alleged family settlement, cannot be both permissive and adverse. [14000228050015]
- Plaintiff has some title via valid purchases; suit is for partition, requiring assessment of all parties' entitlements under Order 20 Rule 18 CPC. [14000228050010][14000228050016][14000228050017]
- Appeal allowed; first appellate judgment set aside; remanded to First Appellate Court for re-adjudication, allowing further evidence under Order 41 Rule 27(b) CPC if needed, considering Sections 63, 65, 106 of Mulla's Mahomedan Law. [14000228050017][14000228050018]
N. Chaudhury, J. - The First Appellate judgment and decree dated 30.9.2005 passed by the learned District Judge, Darrang at Mangaldai in T.A. No. 1/2004 has been called in question by the plaintiff of T.S. No. 26/97 in the present second appeal. The learned Trial Court by his judgment and decree dated 15.12.2003 decreed the suit of the plaintiff and the learned First Appellate Court while reversing the Trial Court decree, dismissed the suit in entirety.
2. The brief but necessary facts involved in the present case are required to be stated at the threshold.
The present appellant Bilat Ali as plaintiff instituted T.S. No. 26/97 in the Court of learned Civil Judge, Darrang at Mangaldoi stating that the suit land originally belonged to one Bali Sk. who died leaving behind three sons, namely, Thiru Sk., Mana Sk. and Huwa Sk. After the death of Bali Sk., his three sons made family settlement amongst themselves and thereupon Thiru Sk. got land measuring 1 Katha 1 Lecha, Mana Sk. got 19 Lechas and Huwa Sk. also got 19 Lechas of land. Thiru Sk. died leaving behind his only daughter Mariam Begum who on turn died leaving behind one daughter Marina and her husband Nasiruddin Ahmed. Nasiruddin died leaving behind his son Nazrul born through his second wife Bogi Sekhani. Mana Sk. died leaving behind Milik and Kalimuddin. While Kalimuddin is surviving, Milik died leaving behind his son Jainur Ali. The third brother Huwa Sk. died leaving behind his only daughter Abeda Begum. Abeda Begum later on sold 19 Lechas of land belonging to her father by executing a sale deed dated 9.7.95 (Exhibit-1) in favour of the plaintiff. Similarly, Milik sold 8 Lechas of land from his entitlement to the plaintiff on 16.8.72, Merina Begum sold 10 Lechas to the plaintiff on 1.2.80 vide Exhibit-3 and Nazrul sold 11 Lechas of land to the plaintiff on 12.4.98 vide Exhibit-4. Thus, the plaintiff purchased 2 Katha 8 Lechas out of the whole land of 2 Katha 19 Lechas owned by Bali Sk.
3. It is stated that out of 19 Lechas of land owned by Mana Sk, as above, Kalimuddin occupied 11 Lechas of land and the remaining 8 Lechas remained with Milik, father of the defendant No.1 and this 8 Lechas of land was sold by Milik on 16.8.72 vide Exhibit-2. The plaintiff alleged that the defendant No.1 re-possessed the sold out land after one week of the sale and, thereafter, both the defendant Nos. 1 and 2 constructed house on the southern portion of the suit land. On 18.11.95, while the plaintiff was in peaceful possession of the land described in Plot No. X, Y, Y(i), Z, Z(i) and Z(ii) comprising 2 Katha 8 Lechas, the defendant Nos. 1 and 2 trespassed into Plot No. Z and X measuring 13 Lechas and 11 Lechas respectively. The defendants, thereafter, forcibly constructed one house on the suit land. Under such circumstances, the plaintiff filed the suit for partition of 11 Lechas of homestead land of the defendant No.2 from the dag as per possession of his predecessor-in-interest. Ultimately, by the prayer made in the plaint, the plaintiff wanted ejectment of the defendants from the land described in Schedule-C of the plaint by demolishing and removing the house described in Schedule-D of the plaint. The plaintiff prayed for partition of 11 Lechas of land described in Plot No. X(i) from the rest of the dag and also for perpetual injunction.
4. The defendants after appearance filed written statement and contested the suit, both on maintainability as well as on merit. In Paragraph No. 32 of the written statement, the defendants stated their own facts. The defendants claimed that Bali Sk. had in fact four sons and not three as alleged in the plaint. Apart from Thiru, Huwa and Mena, another son Bhubura Sk. was also there and all the four sons acquired right, title and interest to the property left behind by Bali Sk. According to the defendants, Thiru and Huwa abandoned their property and shifted to village Maruachowki, where they had some paternal properties and started living th
