IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
PRASANTA KUMAR DEKA, J.
Md. Babar Ali Choudhury and others - Appellants
Versus
On the death of Md. Abdul Mannan Choudhury, His legal heirs, Msstt. Anowara Begum and others - Respondents
RSA 169 OF 2004
Decided On : 01-08-2017
Constitution of India – Learned counsel for the appellants – Appeal has been preferred by the appellants who are the plaintiffs in Title Suit – It is the case of the plaintiffs/ appellants that one Kanu Mia was the original owner of 6B 4K 1Ch of land covered by patta –Said land was resurveyed to R.S. Patta No. 19 under Dags and subsequently resurveyed in the second R.S. Patta No. 36 under Dag – On the death of Kanu Mia, his wife Nabiza Bibi and two sons, namely, Arjan Ali and Amber Ali inherited the property left by him –Held, Borrowed amount by the mortgagors was Rs. 300/- and the consideration shown in Exhibit-Ja is Rs. 500/-; the mortgage was created by way of a registered deed and the possession was delivered accordingly. Similarly, the possession was also redelivered to Ayub Ali by way of the registered deed i.e. Exhibit-Ja and the khas possession had also been delivered, inasmuch as, this can be prepondered because the defendants/ respondents never disputed that they were not possessing the suit land – Accordingly the said question is decided in the affirmative and the redemption of the mortgage created by Exhibit – 8 is effected by acts of the parties – Appeal is allowed.
1. Heard Mr. SK Ghosh, learned counsel for the appellants and Mr. FU Barbhuiya, learned counsel appearing on behalf of the respondents.
2. The present second appeal has been preferred by the appellants who are the plaintiffs in Title Suit No. 54/1998. It is the case of the plaintiffs/ appellants that one Kanu Mia was the original owner of 6B 4K 1Ch of land covered by patta No. 16. The said land was resurveyed to R.S. Patta No. 19 under Dags No. 103, 104, 104/215 and 105 and subsequently resurveyed in the second R.S. Patta No. 36 under Dag Nos. 75, 97 and 98. On the death of Kanu Mia, his wife Nabiza Bibi and two sons, namely, Arjan Ali and Amber Ali inherited the property left by him. Subsequently, on the death of Nabiza Bibi both Arjan Ali and Amber Ali inherited the said land equally measuring 3B 2K 10G each. Arjan Ali died leaving behind his wife Nekjan Bibi, Hamid Ali (son) and three daughters, namely, Potoi Bibi, Arijan Bibi and Kutina Bibi. The said legal heirs of Arjan Ali inherited the properties left by him. Amber Ali and Nekjan Bibi mortgaged 2B 8K 8Ch of land covered by the second R.S. patta No. 19 to one Latai Mia vide registered deed No. 2447 dated 20.03.1944 (Exhibit-8). The said mortgage was for a period of 3 years and after creation of the said mortgage possession was delivered to the mortgagee, Latai Mia. It is the case of the plaintiffs/ appellants that prior to the death of Amber Ali, the mortgage so created was redeemed by way of an unregistered deed of release and also got the possession thereon. Amber Ali died leaving behind his wife Alekjan Bibi and four sons, namely, Ayub Ali, Shayub Ali, Jamir Uddin @ Nendu Mia and Asab Ali and four daughters, namely, Sariful Bibi, Beloi Bibi, Fulenur Bibi and Aroi Bibi. It is stated that Nekjan Bibi and Ayub Ali and other co-sharers subsequently sold excess land by different sale deeds to one Hasan Raja Choudhury. The purchaser got no title over the excess land except the land measuring 8K 6C 10G 1Kora. The plaintiffs/ appellants No. 2 to 4 purchased land measuring 2B 3Ch vide registered deed No. 6144 dated 23.06.1980 from other legal heirs of Amber Ali. Again on 02.04.1982, the plaintiffs/ appellants No. 1, 2 and 3 purchased land measuring 7K from Sariful Bibi vide deed No. 2447 and accordingly became the owner of 2B 7K 3Ch of land in the suit patta and dags described in the first schedule of the land which is the suit land. It is further stated that though the land mortgaged to Latai Mia was released but he managed to get mutated his name in the suit patta and taking advantage of that mutation, Ayub Ali in collusion with Latai Mia prepared a sale deed dated 01.07.1968 (Exhibit-Ja) in respect of the suit land measuring 2B 8K 8Ch and subsequently defendants/ respondents No. 1 to 8 created some collusive sale deeds mentioned in 2nd Schedule of the plaint vide SL. Nos. 4 to 6 and entered into a quarrel with the plaintiffs/ appellants and forcibly dispossessed them from the Part-II of the 1st Schedule land. Hence, the plaintiffs/ appellants filed the suit for declaration of right, title and interest over the suit land with further prayer for recovery of khas possession of Part-II land of the Schedule-I and for cancellation of deeds mentioned in the 2nd schedule of the plaint and for other reliefs.
3. The defendants/ respondents No. 1 to 13 contested the claim of the plaintiffs/ appellants by filing a common written statement. It is the defence taken by them that the predecessor of the defendants/ respondents No. 1 to 8 purchased the suit land along with other land vide registered deed No. 3216 dated 17.04.1978, deed No. 4512 dated 20.05.1975, deed No. 5085 dated 06.06.1978 and deed No. 5568 dated 06.06.1979 from Ayub Ali in the suit patta. After the death of Hasan Raja Choudhury, his legal heirs i.e. defendants/ respondents No. 1 to 8 sold some land to defendants/ respondents No. 10 to 13. The plaintiffs/ appellants created some false documents in respe
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