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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
PRASANTA KUMAR DEKA, J.
Md. Abul Fazal – Appellant
Versus
Md. Kubbas Ali – Respondent
Case No: RSA 266 of 2016
Decided On : 05-01-2017
Criminal procedure Code,1973 - Section 145 – Land dispute – Possession - Declaration of his right, title and interest and have khas possession - Plaintiff respondent Land measuring 1B 2K out of 60 Bighas covered by dag No. 91 of annual patta No. 5 situated at under in district of Nagaon is subject matter of suit filed by plaintiff respondent - Suit land originally belonged to represented by its President in suit - Said was allotted 60 Bighas of land by Government for farming - Plaintiff respondent has been enjoying land as legal heir of Lae - Defendants appellant are residents of nearby plot of land and he with an illegal motive in last part tried to grab suit land measuring 1B 2K - Defendant appellant threatened plaintiff respondent to vacate suit land whereafter plaintiff respondent filed a petition before the learned ADC to draw up a proceeding - Thereafter, again a separate petition was filed against defendant appellant No. 1 and other defendants alleging that on they tried to dispossess plaintiff respondent - Learned ADC, drew up proceeding and attached suit land prohibiting both the sides from entering into suit land vide order dated - Being impressed by said order, defendants including present appellant forcibly entered into suit land and constructed one tin roof house thereon on and since then they have been illegally occupying suit land - Hence plaintiff has filed title suit for declaration of his right, title and interest and have khas possession in court of learned Munsiff No. 2 – Held, Accordingly, learned first appellate court calculating the said 6 years from date of deposition of DW 1 conclusively held that plaintiff respondent was dispossessed from suit land in year - Another startling revelation by learned first appellate court is that name of appellant defendant was mutated and separate was issued vide order dated and learned first appellate court came to finding that the separate patta was issued in favour of appellant defendant after dispossessing plaintiff from the suit land in year though no specific plot was allotted to appellant defendant - Appellant defendant has failed to prove oral gift inasmuch as in order to prove an oral gift under Mahomedan Law it is burden on person claiming to be person who has accepted gift from the donor that the person making the gift had divested himself from right, title and interest of property included in gift and said act must be proved by witnesses - Similarly, fact of delivery of possession to person accepting the gift must also be proved by witnesses – Accordingly submission learned counsel for appellant that this second appeal gives rise to substantial question of law is not accepted, inasmuch as from discussions made herein above this court finds that the findings of learned courts below do not involve any substantial question of law to be decided by this court - Accordingly, this second appeal is dismissed.
Heard Mr. MH Choudhury, learned counsel appearing on behalf of the appellant.
2. Before adverting to the findings of the learned courts below, let us have a look to the facts leading to filing of the suit by the plaintiff respondent. Land measuring 1B 2K out of 60 Bighas covered by dag No. 91 of annual patta No. 5 situated at Kadamoni Pather Kissam under Juria Mouja in the district of Nagaon is the subject matter of the suit filed by the plaintiff respondent. The suit land originally belonged to Adhakhunda Bogoriguri and Kadamoni Pather Srishi Pam Samabai Samiti represented by its President in the suit (Proforma defendant No. 7). The said Samiti was allotted 60 Bighas of land by the Government of Assam for farming. The land was annual patta land. The said Samiti by its joint resolution allotted the said area of 60 Bighas of land to its 39 members cum share holders each getting a share of 1B 2K of land. The father of the plaintiff respondent Late Suhrab Ali also got a share of 1B 2K of land and his name was mutated in the said annual patta land whereafter he used to possess the same till his death. After him, his legal heirs i.e. his wife Msstt. Habirun Nessa, Md. Kubbas Ali (plaintiff/respondent) and another son Md. Harmuj Ali and his daughter Msstt. Ajufa Begum inherited the suit land. The mother of the plaintiff respondent died and his brother and sister relinquished their share in favour of the plaintiff. Since then, the plaintiff respondent has been enjoying the land as the legal heir of Late Suhrab Ali. The defendants appellant are the residents of nearby plot of land and he with an illegal motive in the last part of the December, 2006 tried to grab the suit land measuring 1B 2K. The defendant appellant threatened the plaintiff respondent to vacate the suit land whereafter the plaintiff respondent filed a petition before the learned ADC to draw up a proceeding under Section 145 of the Cr.P.C. Thereafter, again a separate petition was filed against the defendant appellant No. 1 and other defendants alleging that on 20.02.2007 they tried to dispossess the plaintiff respondent. The learned ADC, Nagaon drew up proceeding under Section 145 of the Cr.P.C. and attached the suit land prohibiting both the sides from entering into the suit land vide order dated 09.03.2007. The present appellant defendant No. 1 along with the other defendants preferred a revision petition before the learned District and Sessions Judge, Nagaon on the basis of which the learned District and Sessions Judge was pleased to stay the impugned order dated 09.03.2007 and called for the records of MR Case No. 151/2007. Being impressed by the said order, the defendants including the present appellant forcibly entered into the suit land and constructed one tin roof house thereon on 31.03.2007 and since then they have been illegally occupying the suit land. Hence, the plaintiff has filed the title suit No. 75/2007 for declaration of his right, title and interest and have khas possession in the court of learned Munsiff No. 2, Nagaon.
3. The present appellant along with other defendants in title suit No. 75/2007 contested the suit by filing separate written statement. In the written statement, they denied the case of the plaintiff respondent. However, in the written statement they admitted that the father of the plaintiff respondent had got a share of land measuring 1B 2K under the Samabai Samiti and after him plaintiff respondent got the share as his legal heir and has been occupying the land allotted to his father. It was also pleaded in the written statement that the Samabai Samiti had allotted to each of its members a share of 1B 2K of land. One Abdul Ali was also allotted a share of 1B 2K which is the suit land. After Abdul Ali, the land devolved upon his heir Amiruddin who subsequently orally gifted his share to the present appellant defendant No. 1. The present appellant defendant No. 1 had adhiars over the said land, namely, Abdul Khalek
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