Abdul Hasem and Others vs Haji Mahiuddin and Others

G. Mehrotra, C.J.—This appeal is by Defendants Nos. 2, 3, 4, 5, 7 and 12. Haji Mahiuddin Plaintiff has been impleaded as the main Respondent and the other Defendants have been impleaded as pro forma Respondents.

Plaintiff-Respondent''s case in brief is that late Osman the predecessor-in-interest of Defendants Nos. 2 to 5 was his step brother and so was Defendant No. 1 Ahammad Ali. Originally they all belonged to the village Basinda, District Mymensing. The Plaintiff being unable to live with his step mother, separated from his brothers and father at Basinda and then he came to a place known as Chamdhara, District Nowgong, Assam. Coming here he acquired the disputed land with his own money and labour about 34 or 35 years ago and since then he has been enjoying the same. The land was an annual patta land and according to the Plaintiff Respondent the patta was issued in his own name in the last resettlement of 1930-31. The number of the Special Annual patta was 108. In 1942-43 the patta No. 108 had been changed into Special Annual Patta No. 110 and was again issued in the name of the Plaintiff. The Defendant No. 1 and late Osman predecessor-in-interest of Defendants Nos. 2 to 5 came to Assam a long time after the Plaintiff had acquired the land, and they were living separately with their father. After the death of Osman the Defendants Nos. 2, 8, 4 and 5 became helpless. The Plaintiff gave them shelter. But they lived in the compound of the Plaintiff separately After some time Ahammad Ali Defendant No. 1 also became financially poor. So the Plaintiff gave him shelter also in his own lands but he was also living separately. They were cultivating his lands. On the 9th January, 1956 Defendant No. 2 Annul Hachem filed a criminal case alleging that the Plaintiff and his sons dispossessed them from the suit land and the Plaintiff and his sons were convicted. On inquiry the Plaintiff came to know that the Defendant in collusion with the Mandal and without the knowledge of the Plaintiff got Chitha mutation, in their favour, in respect of the suit land. The Defendants were denying title of the Plaintiff to the land and thus the Plaintiff brought the suit for a declaration of his title and for confirmation of possession over the disputed land. In the alternative it was also prayed that in case the Defendants were found in possession of the property, the Plaintiff should be, given khas possession over the same.

Mainly the case of the Defendants is that the Plaintiff was living jointly with his father and step brothers and further the property in dispute was a joint property of the Plaintiff and his two brothers Defendant No. 1 and the predecessor-in-interest of Defendants Nos. 2 to 5, late Osman Gani. There were other points raised about the maintainability of the suit. The trial Court decreed the suit.

The contesting Respondents have raised an objection to the maintainability of the appeal on the ground that the trial Court decreed the suit against all the Defendants, but Ahmed Ali Defendant No. 1 has not appealed to this Court and thus even if the appeal is allowed, this will result in two inconsistent decrees. The appeal is, therefore, not maintainable, or at any rate, the Appellants cannot get any relief in the present appeal in their favour. In our opinion this objection has no force. The other Defendants have been impleaded as pro forma Respondents in this appeal. As the decree in favour of the present Respondent is on the ground common to all the Defendants, any one of the Defendants could file an appeal and this Court can grant relief to all the Defendants in this appeal. Order 41, Rule 4, CPC provides:

Where there are more Plaintiffs or more Defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the Plaintiffs or to all the Defendants, any one of the Plaintiffs or of the Defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the Plaintiffs or Defendants, as the case may be.

Coming to the merits of the case, the of the Plaintiff is that the property itself was acquired by the Plaintiff alone and his step brothers, Osman Gani and Defendant No. 1 Ahmed Ali have no interest in the property. The property is an annual patta land and the Plaintiff has alleged that the patta in the old resettlement of 1930-81 was issued in his name. Subsequently in 1942 a patta was again issued-in his name. The Defendants without the knowledge of the Plaintiff got chitha mutation effected m their name. The Plaintiff has not produced any patta. Reliance is placed on the two jamabandis Exts. 1 and 2. Ext. 1 is the copy of the jamabandi of Chamdhara Kisamat in Juris Mauza for 1942-43. In this Jamabandi under the column of "pattadar''s name, his father''s name and residence" the names of Mahiuddin son of Lalmamud, Ahmed Ali son of Golmamud, and Abdul Hassen and Abdul Rofique the two sons of Osman Ali are recorded. In Ext. 2 the copy of annual jamabandi of Chamdhara Kisamat in Juria Mauza for 1931-32 in the column of pattadar''s name, his father''s name and residence the name of Mahiuddin son of Lalmamud is to be found. The entries in the jamabandi for the years 1931-32 are in respect of plot No. 108 while the entries in the jamabandi of 1942-43 are in respect of plot No. 110. In the old settlement of 1930-31 the number of the patta was 108 but in the subsequent settlement of 1942- 43 in the number was changed to 110. In the Jamabandi of 1942-43 in the remarks column there are two entries. The first entry is as follows:

The name of Ahmed Ali is mutated along with Mahiuddin by right of co-sharer in respect of l/3rd share of the entire dags of the patta vide S.D.C''s order dated the 14th December 1947.

The second entry is as follows:

The names of Abdul Hasem and Abdul Rafique are mutated along with Mahiuddin and Ahmed Ali by right of co-sharers in respect of the entire dags in the entire patta vide S.D.C''s Chitha order, dated 21st December, 1950.

The trial Court has held that the entries in the remarks column must have been obtained surreptitiously by the present Defendants without the knowledge of the Plaintiff. In fact the contention is that this was only a Chitha mutation without notice to the Plaintiff and thus it cannot be relied upon by the Defendants. The Court below has entirely ignored the entry in the jamabandi in column No. 3 which contains the names of the pattadars. Ahmed Ali, Abdul Hassem and Abdul Rofique are shown as co-pattadars in column No. 3. Whether the mutation was improperly effected or not is not the question. The document relied upon by the Plaintiff himself shows that the Defendants entered as co-sharers in the disputed land. Undoubtedly in the annual jamabandi of 1931-32 Mahiuddin alone is shown as a pattadar. Mahiuddin was much older than the other two brothers. The land being an annual patta land, it may be that later on the other two brothers became co-sharers in the patta. In the absence of any patta in the name of the Plaintiff alone on the basis of the jamabandi entries of 1942-43 which show the other brothers also as co-sharers, the Plaintiff cannot get a decree. The argument of the Plaintiff is that in view of the entry in the jamabandi of 1931-32 it should be presumed that in the jamabandi of 1942-43 only Mahiuddin''s name was there and that the patta was in his name alone and the names of Ahmed Ali and the sons of Osman Gani were brought surreptitiously in the jamabandi. In fact there was no patta in their name.

Dr. Medhi who appears for the Respondent contends that the jamabandi is the record of rights and the entry in the jamabandi is a conclusive evidence or Plaintiffs title. u/s 40 of the Assam Land and Revenue Regulation, the settlement officer has to frame for each estate a record-of-rights in the prescribed manner. The note appended to this section shows that the record-of-rights is the jamabandi based on the chitha and the field map. Entries in the record-of-rights are to be founded on the basis of actual possession. Undoubtedly at the time of settlement the jamabandi is prepared which records the name of the pattadars on the basis of possession. But in respect of the annual patta the entry is bound to change from year to year. Ext. 2 itself shows that it is an annual jamabandi of the year 1931-32. Dr. Medhi contends that the order of mutation is of the year 1947 and thus in the jamabandi of 1942-43 the name of Mahiuddin alone must be found, and that being the record of rights, the entries should be conclusive to prove the title of Mahiuddin. As I have already said, the land being an annual patta land, the settlement entry of 1942-43 cannot, to my mind, be conclusive proof of the fact that all along the patta was in the name of Mahiuddin.

The jamabandi prepared in 1942-43 settlement represents possession in that year. In the case of annual land the entry is liable to be corrected every year on the basis of the patta and possession.

Section 3(h) of the Assam Land and Revenue Regulation defines a ''settlement-holder'' as any person, other than a proprietor, who has entered into an engagement with the State to pay land revenue, and includes a land-holder. The annual patta-holder will not be a landholder but he will be a settlement-holder. From time to time the settlement operations take place in this area and Section 28 and onwards of the Assam Land and Revenue Regulation deal with the settlement operation. Section 39 provides:

Subject to the provisions of Section 151 of this Regulation the order of a Settlement-officer as to the person to whom a settlement should be offered, the amount of revenue to be assessed, and the nature and term of the settlement to be offered, shall be final, and a settlement concluded with that person shall be binding on all persons from time to time interested in the estate; but, except as provided by Sections 35 and 36, no person shall, merely on the ground that a settlement has been made with him or with some person through whom he claims, be deemed to have acquired any right to or over any estate, as against any other person claiming rights to or over that estate.

This section clearly shows that the settlement concluded with any person will be binding on all persons, but if the settlement has been made with any person, it will not be conclusive evidence of his title to the property. Section 48 provides:

48(1) The Deputy Commissioner of every district shall prepare and keep the following registers:

(a) a general register of revenue-paying estates;

(b) a general register of revenue-free estates;

and

(c) such other registers as the State Government may direct.

This shows that at the time of the settlement operations which take place periodically, the record of rights is prepared which contains the entries of settlements made, but apart from the record of rights u/s 48, the Deputy Commissioner of every District has to maintain certain general registers, Rules have been framed In accordance with the provisions of Section 48 and Rule 108 provides:

The General Register of revenue-paying estates in each district, prescribed by Section 48 of the Land and Revenue Regulation, shall consist of three parts, viz:

Part I - Permanently-settled estates.

Part II - Temporarily-settled estates other than waste land grants.

Part III-Waste land grants other than fee-simple and redeemed leases.

Part I shall be kept in form No. 19 or in such other form as may be specially prescribed by the Provincial Government.

Part II shall be kept in ordinary periodic jamabandi form until the district has been resettled, when it will be the jamabandi Register which is prepared by the Settlement Officer." Obviously, therefore, in respect of the annual patta land a jamabandi is prepared at the time of the settlement operations. But from time to time changes may be made in the register which will be in the form of the periodic jamabandi.

Rule 115 provides:

Whenever it comes to the notice of the Deputy Commissioner that any change has occurred which affects any entry in the General Registers, and renders necessary any alteration therein, the Deputy Commissioner, after making such inquiry as may be necessary, shall make such alteration.

Provided that no such alteration shall be made without giving due notice to the recorded proprietors or land-holders, and managers of the estate which the alteration will affect, and to every person whose name it is proposed to register as proprietor, land-holder or manager of such estate before such registration is effected; and any objections, which may be preferred against the proposed change or registration, shall be duly considered by the Deputy Commissioner before the change or registration is made.

The Deputy Commissioner under Rule 115 thus has power to alter the entries in the general register.

Dr. Medhi contends that Section 50 which talks of mutation only relates to the land-holder and not to a settlement-holder other than the land-holder. Sections 50 and 51 also provide a procedure for mutation and as in the present case the Plaintiff was not a landholder or a proprietor, the question of mutation will not arise and thus the entries in the jamabandi in the remarks column indicating that in 1947 mutation was effected, cannot be binding on the Plaintiff. The right of an annual pattadar is neither heritable, nor transferable and thus the question of mutation of his name by transfer of inheritance would not arise in the case of an annual patta-holder. If any change is made in the general register with regard to an annual patta-holder, Rule 115 will be attracted. The Plaintiff thus cannot get a decree merely on the entry in the jamabandi of the settlement year 1931-32 and as the heading of the document Ext. 2 shows, it is a copy of the annual jamabandi. Ext. 1 also is a copy of a special annual jamabandi of Chamdhara Kismat in Juria Mauza for 1942-43, This also shows that it is a part of the general register which may be corrected from time to time. There is no material to show that the change in the register was effected without any notice to the Plaintiff.

The trial Court is not right in holding that the orders of mutation have been collusively passed at the back of the Plaintiff. The only reason given by the trial Court is that as the orders are void ab initio inasmuch as there was no question of transfer or inheritance of a landholder''s right, Section 50 of the Assam Land and Revenue Regulation was not attracted. The reasoning of the Court below, to our mind, is not correct. As I have pointed out it is not a mutation effected u/s 50, but is a correction of the register done under Rule 115. Besides this, if the order is void, it does not necessarily lead to the inference that it, was obtained collusively and at the back of the Plaintiff. As indicated above, there is no other material to show that this alteration in the register was done without Plaintiff''s knowledge.

The Plaintiff besides these entries has relied upon the oral evidence. As against this, the Defendants have relied upon the other circumstances to show that the Defendant No. 1 and the predecessor of Defendants Nos. 2 to 5 had an interest in the land. They have filed a number of revenue receipts which go to show that the revenue was paid by them, namely revenue receipts Ext. 1(1) to 1(10). Dr. Medhi has pointed out some of the entries in the receipts which go to show that though the payment was made by the Defendants, it was made for Mahiuddin. He refers to entries in Ext. 1(3) dated 4th March, 1951. As all entries in the receipts have not been printed, we have looked into them and it is true that one of the columns is missing in the printed record but it will appear from the perusal of the entries in original that in most of them the payments have been not only made by the Defendants but the payments have been made by them on their own behalf. The payment by the Defendants for Mahiuddin is also consistent with their case. Mahiuddin was admittedly one of the cosharers and it is open to the Defendants to make payments for and on behalf of the other cosharers. But the entries are not consistent with the Plaintiff''s case. The Plaintiff''s case is that the Defendants had, no interest in the property and thus they were not liable to pay the land revenue at all. The entries belie this contention of the Plaintiff.

The Defendants have further relied upon a number of sale deeds executed by Ahmed Ali Defendant No. 1 some in favour of the strangers and some in favour of the Plaintiff''s son. The contention is that the sale deed executed by Ahmed Ali Mia in favour of one Siraj Ali dated 22nd December 1954 Ext. E has been identified by the Plaintiff himself. Plaintiff thus had full knowledge of the fact that Ahmed Ali Mia was dealing with the property which was the subject matter of the patta. The same is the case with Ext. F the sale deed excented by Ahmed Ali Mia in favour of Hasen Ali. The question was put to the Plaintiff when he was in the witness box and he has stated that he does not know Siraj Ali son of Abdul Jaffar Chamdhara. He cannot say if Ahamed sold and of dag No. 242 to Siraj. He does not remember if he identified Ahamed before Sub-Registrar. He says, "I had been to Rupahi Sub-registry office to register a mortgage-deed by which I borrowed money. I know Haji Mirali Munshi. He is my uncle. Hasen Ali may be the name of his son. I do not remember if I identified Ahamed before Sub-Registrar". The reading of this statement shows that the witness avoided to answer the question whether he had identified Ahmed Ali before the Sub-Registrar.

Dr. Medhi contends that the identification does not necessarily mean that the identifier knew the contents of the sale deed. It is true that legally the witness only identifies the executant and need not be fastened with the knowledge of the contents of the document. But in the circumstances of the present case where the Plaintiff was related to Ahmed Ali, where he knew that Ahmed Ali had no interest in the property and still he goes to identify Ahmed Ali and his conduct in trying to avoid the answer to questions relating to the document, it can legitimately be inferred that he had full knowledge of the fact that Ahmed Ali was selling the property to Siraj Ali.

Through Haripada Ghose witness No. 1 for Defendants, Defendants have produced two sale deeds, one dated the 4th January, 1956 by Ahammad Ali in favour of Md, Abdul Kadir and the other dated the 4th January, 1956 by Ahammad Ali in favour of Abdul Mannaf. Abdul Kadir and Abdul Mannaf are the sons of the Plaintiff. The Defendants case is that the conduct of the Plaintiff in getting the properties sold by Ahammad Ali to his own sons also shows that the Plaintiff knew that Ahmed Ali had interest in the property. The contention of the Plaintiff Respondent is that these sale deeds were lying in the registration office and have been produced through the clerk. There is, "however, no evidence to show that the consideration was not paid by the sons of the Plaintiff. The mere fact that the documents were not taken possession of by the vendees from the Registration office does not show that the vendees had no knowledge of the sale and they did not pay consideration for the sale deed. Plaintiff has examined Ashar Ali P.W. 1 who supports case that Mahiuddin came to Chamdhara first alone and the land was cultivated by him and was acquired by him alone. P.W. 2 Sahed Ali is a tailor, whose evidence has been discarded by the Court below. The Plaintiff has further examined himself. As against that, the Defendants have examined Abdul Hussain one of the Defendants. He is no doubt young and he can''t have a personal knowledge of the thing D.W.4 Haji Sabad Ali and D.W. 5 Iman Ali who is aged seventy years a cousin of the Plaintiff have also supported Defendants'' case. D.W. 4 is also aged 75 years and there is no reason to discard their evidence. They have clearly stated that all the brothers jointly acquired the property and that there was partition in the sense that they were occupying separate lands and were in possession of the land separately. D.W. 6 Haji Abbas Ali has also stated that Mahiuddin, Osman Gani and Ahmed and their father came together to this place. The discrepancies pointed out by the Court below are not such that the statements of these witnesses .can be discarded on that ground. The Plaintiff has filed two pattas one for the year 1923-24 and the other for 1924-25. But he has not filed the patta for the subsequent period. Having considered the evidence, documentary and oral, on the record, we are of opinion that the Plaintiff has failed to prove that he was the exclusive owner of the land and thus the suit must fail. In the result, therefore, the appeal is allowed. The decree of the Court below is set aside and the suit of the Plaintiff Respondent stands dismissed with cost throughout.