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IN THE HIGH COURT OF GAUHATI
N. Chaudhury, J.
Md. Idrish Ali – Appellant
Versus
Hassen Ali & Others – Respondents
RSA No. 192 of 2006
Decided On : 26-07-2016
For the Appellants : Mr. D. Mazumdar and Ms. J. Kakoti.
.
Headnote:
Civil Procedure Code,1908 - Order 22, Rule 4 (4) - Assam Land and Revenue Regulation, 1886 - Sections 9, 40 and 41 - Transfer of Property Act - Sections 123, 54 - Assam Land and Revenue Regulation - Section 53 - Indian Succession Act, 1925 - Sale of a land - Suit land measuring - Purchased suit land - Appeal challenging judgment and decree of reversal passed by learned Civil Judge, in Title Appeal No. - Learned Civil Judge decreed Title Suit No. in part - Plaintiff did not challenge judgment passed by learned trial Court but defendants - Court dismissed suit of plaintiff in entirety plaintiff has approached this Court by invoking second appellate jurisdiction - Appellant as plaintiff instituted Title Suit No. in Court of learned stating that land measuring 14B 1K 17L pertaining to PP was originally owned by his predecessor - Upon amicable partition between original pattadars, became absolute owner in possession - Settlement operation land covered by PP No. was comprised in one periodic - Settlement operation, aforesaid PP No. 148 and Dag No. was resurveyed into two pattas, namely dag comprised of land measuring PP No. and Dag No. comprised Out of aforesaid land made sale in of one and upon such sale having been made he was left retained in aforesaid two pattas – He was predecessor in interest of plaintiffs and defendants - He having died about 18 years prior to institution of suit aforesaid property left behind by him was inherited by plaintiffs and proforma defendants and they were peacefully enjoying property by cultivation of different crops and constructing thatched houses thereon - Taking opportunity of absence of plaintiffs defendants in collusion with revenue staff first got the names of plaintiffs struck and dispossessed them from suit land measuring Ls described in Schedule-A to plaint – Held, Defendant No. 5 also made a katcha house over schedule land - Threatened with dire consequences - Court arrived in impugned judgment does not appear to be acceptable - Long continuous name of defendants in revenue record confers good title to the claimant - Title can be transferred by any of the means of transfer of property as prescribed under Transfer of Property Act - Sale of a land having value can be proved only by producing and proving such registered instrument and not otherwise - Defendants claimed to have purchased suit land - He could have acquired title to patta either from original pattadar or from any of vendees of pattadar - Ultimately, it was duty of defendants to establish title so as to establish their acquisition of title - One is duty bound to show that source of title from the original pattadar as it is the pattadar who acquired heritable and transferrable right from Government under Section 9 of Land and Revenue Regulation, 1886 and others can only derive title of pattadar same being heritable and transferrable - Court did not commit any error in holding that could not have transferred title to the defendants in any way as he himself did not have title to suit land - Defendants could not show as to how title was conveyed and this is why learned trial Court refused to take into relied on only four title deeds - The finding of learned trial Court appears to be based on sound logic and law whereas aforesaid findings of learned First Appellate Court, which is basis for his ultimate judgment and decree of reversal, does not appear to be correct as it is contrary to the law laid down by Apex Court and the law of land - Appeal stands allowed
N. Chaudhury, J.
1. Plaintiff of Title Suit No. 47/1995 has preferred this Second Appeal challenging the judgment and decree of reversal dated 11.07.2006 passed by learned Civil Judge (Senior Division), Nagaon, in Title Appeal No. 15/2002. The learned Civil Judge (Junior Division) No. 2, Nagaon decreed Title Suit No. 47/1995 on 11.07.2002 in part. The plaintiff did not challenge the judgment passed by the learned trial Court but the defendants did. The appellate Court dismissed the suit of the plaintiff in entirety and this is how the plaintiff has approached this Court by invoking second appellate jurisdiction.
2. The present appellant as plaintiff instituted Title Suit No. 47/1995 in the Court of learned Munsiff No. 1, Nagaon, stating that land measuring 14B 1K 17L pertaining to PP No. 148 was originally owned by his predecessor Ismaijl Ali and one Kasem Ali. Upon amicable partition between the original pattadars, Ismail Ali became absolute owner in possession of 7B 18½ L. During 1930-31 settlement operation land covered by PP No. 111 and 117 was comprised in one periodic patta, namely, PP No. 148 comprising 14B 1K 17L. But subsequently in 1968-69 settlement operation, aforesaid PP No. 148 and Dag No. 289 was resurveyed into two pattas, namely, PP No. 111 and PP No. 117. PP No. 111 and dag No. 568 comprised of land measuring 8B 10L whereas PP No. 117 and Dag No. 561 comprised 6B 1K 7L. Out of the aforesaid land Ismail Ali made sale in favour of one Khurshed Ali and Hussain Ali and upon such sale having been made he was left with 2B 4K 5L in PP No. 111 and 2B 2K 8½ L in PP No. 117. Thus, Ismail Ali retained 5B 1K 13½ L in the aforesaid two pattas. Ismail Ali was predecessor in interest of the plaintiffs and the proforma defendants no. 18 to 21. He having died about 18 years prior to institution of the suit the aforesaid property left behind by him was inherited by the plaintiffs and proforma defendants no. 18 to 21 and they were peacefully enjoying the property by cultivation of different crops and constructing thatched houses thereon. Taking opportunity of the absence of the plaintiffs the defendants in collusion with revenue staff first got the names of the plaintiffs struck out from both the dags on 16.07.1993 and thereafter dispossessed them from the suit land measuring 5B 1K 13½ Ls described in Schedule-A to the plaint on 13.08.1993. The defendant No. 5 also made a katcha house over the schedule land. Having come to know about the same the plaintiff came back from his place of employment and asked the defendants to vacate the suit land on 14.08.1993 to which the defendants refused, rather threatened with dire consequences. This is how the right, title and interest of the plaintiffs over the suit land got clouded and hence necessity for institution of the suit for declaration of right, title and interest and recovery of khas possession arose. Plaintiffs also made a prayer for permanent injunction along with a decree for precept directing the revenue authorities to correct the revenue records.
3. On being summoned the defendants no. 1, 2, 3 and 4 only appeared and submitted a written statement. The other principal defendants and the proforma defendants did not appear even after service of summons and so the suit proceeded ex-parte against them. The defendants no. 1 to 4 in their joint written statement denied the case of the plaintiffs in entirety and claimed to have purchased the suit land from various owners. According to the contesting defendants, Ismail Ali had transferred his entire title in the suit pattas and so he did not have any right, title or interest left in the aforesaid two pattas. In paragraph 16 of the written statement the defendants stated that the defendant no. 1 purchased 3B 4K 9Ls of land from suit pattas by registered sale deed from Abdul Matalib alias Mata Seikh. One Khurshed Ali purchased 1B 1K of land from Mata Seikh and defendant No. 1 vide deed dated 05.01.1971 purchased this 1B
