Jamaluddin vs Sanowar Hussain And 19 Ors

Prasanta Kumar Deka, J

Heard Mr. M. Dutta, the learned counsel for the appellant. Also heard Mr. N. Dhar, the learned counsel for the respondents.

Title Suit No.09/2005 which was initially filed in the Court of Civil Judge, Senior Division, Barpeta by the plaintiff/respondent was subsequently transferred to Munsiff No.1, Barpeta and registered as Title Suit No. 72/2008. The said suit was filed against the present defendant/appellant alongwith other defendants who are impleaded as the pro-forma respondents in this appeal. The suit is for declaration of right, title and interest of the plaintiff over B Schedule land and for recovery of possession over C Schedule land covered by Dag No.122 of Patta No.80 of Village- Bagudi which is described in the Schedule A of the plaint and originally belonged to late Moslem Seikh son of late Salimuddin. He died leaving behind his sons Abdul Haque, Haidar Ali and Md. Hachem Ali. Land measuring 2 Bighas 10 Lechas covered by Dag No. 122 under Patta No. 80 of village- Bagudi originally stood in the names of the pro-forma defendants and some of their predecessor. The said land is described in the Schedule A of the plaint. The pattadars who were in joint possession of the Schedule A land proposed to sale 1 Katha 10 Lechas of land and the plaintiff/respondent purchased the same vide a registered sale deed No.1312/98 dated 18.05.1998. After the sale, possession was delivered to the plaintiff/respondent within specific boundaries. The said 1 Katha 10 Lechas of land is described in the Schedule B of the plaint. The plaintiff/respondent constructed C.I. Sheet house comprising 3 rooms and his name was mutated. The said rooms are used as shops as the Bagudi Bazar used to run over the B Schedule land. On 20.12.1998, the present defendant/ appellant who was impleaded as defendant No.1 in the suit taking the advantage of his name being recorded in the Jamabandi and accompanied by the other defendants occupied a portion of land out of B Schedule land measuring about 10 Lechas and raised a temporary chali and dispossessed the plaintiff/respondent. The said 10 Lechas of land is described in Schedule C of the plaint. The defendants have no right, title and interest over any part of B Schedule land as such, he sought for declaration of his right, title and interest over B Schedule land, issue a percept to the concerned Circle Officer to issue separate patta of B Schedule land in the name of the plaintiff and thereafter, eviction of the defendant/appellant and recovery of possession of the Schedule C land. In other words, the plaintiff/respondent sought for declaration of his right, title, interest, partition and recovery of possession.

The defendants including the defendant/appellant filed written statement and pleaded that the suit is not maintainable for failure to disclose the source of title of the vendor/vendors of the Schedule B land inasmuch as the said land was sold without affecting partition over the total land under the patta amongst the other co-sharers. The grandfather of the defendant/appellant alongwith the pro-forma respondents and the father of the pro-forma defendant Nos. 1 and 2 namely Kaseruddin Mia had right, title, interest and possession over a part of the Schedule A land measuring 1 Bigha 4 Kathas. The said land was purchased by Kaseruddin Mia from one Moslemuddin Mia by registered sale deed No.3574/43 within specified boundaries and thereafter, it was included in the Schedule A land as per the Jamabandi showing names of Moslem Seikh, Mazam Ali Seikh, Somser Ali Khan and Kaseruddin Mia who had title and possession to the extent of 1 Bigha 4 Kathas of land only out of total Schedule A land. As such, the vendors of the plaintiff/respondent had no exclusive title and possession over the suit land. The defendant/appellant took the plea that late Kaseruddin Mia purchased the land 60 years back and as such, the defendant/appellant could not produce the record of conversion of various dag numbers from the original one in the year 1943 but the said land could be identified on the basis of the boundaries in the sale deed. The pro-forma defendant Nos. 1 and 2 as well as the father of the defendant/appellant mutated their names and sold away the southern part of the land measuring 1 Bigha 1 Katha 10 Lechas to Bagudi Maszid and the rest of the land after the sale was under possession of the defendants letting out to other defendants on monthly rent. The land shown in Schedule B of the plaint is part and parcel of the land belonging to the defendant/appellant and Kaseruddin Mia who purchased the land prior to the plaintiff/respondent and as such, the earlier right, title and interest acquired by defendant/appellant alongwith the pro-forma respondents will prevail over the claim of plaintiff/respondent. Accordingly, they sought for dismissal of the suit. On the basis of the pleadings the following issues were framed:-

"1. Whether there is cause of action for the suit?

Whether the suit is maintainable?

Whether the plaintiffs is entitled for declaration of right, title and interest over the "B" schedule land and for recovery of khas possession over "C" schedule land by evicting the defendants there from?

Whether the plaintiff is entitled for a decree as prayed for?

To what other relief or reliefs the parties are entitled?"

The plaintiff/respondent examined 5 witnesses alongwith some documents and the defendant/appellant examined 6 witnesses and also exhibited some documents. The learned trial court decided the right, title and interest over the Schedule B land in favour of the plaintiff/respondent but held that the plaintiff/respondent was not entitled for recovery of possession as he failed to prove the dispossession from 10 Lechas of land which is C Schedule land. However, the suit was decreed to the extent of Schedule B land for drawing up a preliminary decree for affecting the partition.

Being aggrieved Title Appeal No. 28/2008 was filed by the defendant/appellant in the court of learned Civil Judge, Barpeta. The plaintiff/respondent also filed a cross-objection thereby seeking the decree of recovery of possession. The first appellate court vide judgment and decree dated 18.12.2009 dismissed the appeal however, allowing the cross-objection thereby decreeing the relief of recovery of possession in favour of the plaintiff/respondent. The second appeal is preferred by the defendant/appellant against the judgment and decree of the first appellate court which was admitted on 09.05.2011 on the following substantial questions of law:-

"1) Whether the learned lower appellate Court erred in decreeing the suit of the Respondent No.1/ plaintiff by departing from his pleaded case in the plaint?

2) Whether the learned Court below erred in decreeing the right, title and interest of the Respondent No.1/plaintiff in the suit land on the basis of the registered sale deed, Ex-2 by leaving out of consideration the plea of invalidation of the transaction mentioned therein for want of partition of the land amongst the co-pattadars?"

Mr. Dutta submits that Ext-A is the registered sale deed No.3574/43 vide which Kaseruddin Mia purchased 1 Bigha 4 kathas of land from Moslem Mia one of the original pattadars of the suit patta. The said land was out of total 10 Bighas and odd land covered by K.P. Patta No.31 with specified boundaries. After such purchase Kaseruddin Mia became one of the co-sharers alongwith the other pattadars including the present defendant/appellant and his purchaser. The said fact is supported by the Ext-C, copy of 'chitha' and Ext-B, copy of Jamabandi for the settlement period 1958-65 wherein the names of the legal heirs of Kaseruddin Mia was recorded vide order dated 01.10.1976 by way of inheritance. Further the said Jamabandi of K.P. Patta No.80 shows the name of Moslem Seikh, Mazam Ali Seikh and Somser Ali Khan as the co-sharers alongwith Kaseruddin Mia. From the said Ext-B it is very much clear and apparent that the defendant/appellant alongwith the other defendants and vendors of the plaintiff/respondent are the co-sharers of the said K. P. Patta No. 80.

The case of the plaintiff/respondent as pleaded that he purchased the Schedule B land by way of registered sale deed No.1312 dated 18.12.1998 from Md. Abdul Haque, Haidar Ali and Hasem Ali sons of late Moslem Seikh and the legal heirs of the other co-sharers. The said land admittedly covered by K. P. Patta No. 80 and there are other co-sharers including the legal heirs of Kaseruddin Mia. Accordingly, the court below declared the right, title and interest of the plaintiff/respondent when admittedly there is no plea taken by the plaintiff/respondent that there was a partition amongst the co-sharers more specifically amongst the legal heirs of Kaseruddin Mia who purchased land by way of registered sale deed from the common vendor of the plaintiff/respondent. As regard to the relief of recovery of possession granted to the plaintiff/respondent, Mr. Dutta relied the cross-examination of PW-3 who deposed that over the suit land Korin, Ajmat, Nasiruddin are having their shops and the defendants took on rent the suit land and refused to vacate the same. As against the said evidence, it is the plea of the plaintiff/respondent that over the suit land, there are some sheds where some businessmen occupied as tenants who run their shops during the market days. The plaintiff/respondent had suppressed the fact that the defendants are the tenants and there was no dispossession of the plaintiff/respondent requiring the relief of recovery of possession but the learned first appellate court came to the finding that the plaintiff not only has his right, title and interest of the Schedule B land but also entitled for recovery of khas possession over C Schedule land by evicting the defendants who are mere trespassers and illegal occupiers. Accordingly, Mr. Dutta sought for allowing the second appeal on the substantial question of law so formulated.

Mr. Dhar, on the other hand, submits that there is no bar in selling joint property by one of the co-sharers and as such, the plaintiff/respondent has rightly sought for partition of the Schedule B land. The court below rightly decreed the suit. Regarding the relief of recovery of possession allowed by the first appellate court, Mr. Dhar submits that it is the pleaded case of the plaintiff/respondent that over the suit land Bagudi market used to run and during the market days some tenants occupy the sheds constructed by the plaintiff/respondent. Even if the said tenants are the defendants including the appellant the reasoning of the first appellate court that the said defendants on demand to vacate the land refused and as such, they are trespassers and not only that the first appellate court also took note of the fact that the defendants failed to substantiate the title over the suit land even as a tenant. Accordingly, Mr. Dhar supports the findings of the first appellate court.

I have given due consideration to the submissions made by the learned counsel. It is the case of the plaintiff/respondent that he purchased the Schedule B land from the co-sharers who sold jointly leaving aside the legal heirs of Kaseruddin and thereafter, he raised some sheds and as the Bagudi market used to run over the suit land some tenants used to run their shops from the sheds so constructed. On a particular date, the defendant dispossessed the plaintiff/respondent and as such, he sought for the relief of declaration of his right, title, interest, recovery of possession and partition. Against the said pleading, the PW-3 and PW-5 deposed that the defendants took rent and running their shops from the suit land which as per Mr. Dutta is not the pleaded case inasmuch as if the defendants including the defendant/appellant are tenants then the question of dispossession does not arise at all. The trial court held that the plaintiff/respondent failed to prove the fact of dispossession and as such confined the relief of the plaintiff/respondent to the extent of declaration of his right, title and interest over the suit, Schedule B land and for partition. The first appellate court interfered the said finding so far the fact of dispossession is concerned and accordingly, considering the evidence of PW-3 and PW-5 came to the finding that as they have failed to vacate the suit land so they are trespasser and the plaintiff/respondent has the title over the suit land so right to possess and as such he is entitled for recovery of possession.

The principal burden in order to prove the fact in issue lies upon the plaintiff/respondent. He proved his right, title and interest over the suit land by proving the sale deed which the defendant/appellant did not dispute but it is with respect to the issue that there was no partition amongst the co-sharers which include the legal heirs of Kaseruddin who were not the vendors of the Schedule B land purchased by the plaintiff/respondent. Accordingly, the defendant/appellant raised the defence that without partition the possession of Schedule B land cannot be affirmed in favour of the plaintiff/respondent moreover, the suit land also cannot be identified.

In this regard, I have perused the evidence of the parties to the suit and the Ext-B, copy of the Jamabandi of K.P. Patta No.80 covering the suit land which is also relied by the plaintiff/respondent as Ext-1. From the said Ext-B it shows that the legal heirs of Kaseruddin i.e. one Taijuddin sold 2 Katha 10 Lechas of land to Bagudi Maszid Committee. It is the defence plea of the defendant/appellant that Kaseruddin purchased land measuring 1 Bigha 4 Kathas covered by Dag No.61 of K.P. Patta No.31 wayback in the year 1943 vide Ext-A from Moslem Mia whom the defendant/appellant claims to be Moslem Seikh shown in Ext-B. Ext-B shows the total land of Dag No.122 as 2 Bighas 0 Katha 10 Lechas. It is pleaded in the written statement that since the year 1943 till the date of filing written statement they were unable to trace out documents in order to show that the Dag and Patta number shown in the Ext-A (sale deed of 1943) was subsequently converted to the one shown in Ext-B. Ext-B does not show the total land as 10 Bighas as recited in Ext-A out of which Moslem Mia sold 1 Bigha 4 Kathas of land to Kaseruddin. Moreover, from the Ext-B it is also found that as hereinabove stated that Taijuddin one of the legal heirs of Kaseruddin sold 2 Katha 10 Lechas of land to Bagudi Maszid. DW-5 deposed that the said Bagudi Maszid is about a furlong away from the suit land. There is no pleading to the effect that the said Maszid has any other land by the side of the suit land moreso when the persons representing the Maszid are impleaded as pro-forma defendants. Accordingly, the basis of the 2 sale deeds i.e. Ext-2 by way of which the plaintiff/respondent purchased 1 Katha 10 Lechas, Schedule B land and on the other hand, Kaseruddin who purchased land measuring 1 Bigha 4 Kathas cannot be held to be covered by the same patta i.e. Patta No. 80. Accordingly, the question of partition does not come amongst the co-sharers who are legal heirs of Kaseruddin inasmuch as all the co-sharers leaving aside the legal heirs of Kaseruddin sold the Schedule B land to the plaintiff/appellant. The land purchased by the plaintiff/respondent cannot be held to be from any share of Kaseruddin or his legal heirs. This is because the land sold to the plaintiff/respondent is much after the one sold to Kaseruddin. Record of rights (Jamabandi) as the name itself indicates is a record of history of a particular plot of land covered by a specific patta under various dag numbers showing the devolution of title to various recorded pattadars starting from the original land holder. It records the total area of land a patta covers under various dag numbers. In the present case, Ext-B shows only 2 Bighas 10 Lechas of land covered by Patta No.80 under Dag No.122. But as hereinabove stated Kaseruddin purchased land from Moslem in the year 1943 out of total land measuring 10 Bighas and odd which belonged to Moslem Seikh. But if the recital in the sale deed of 1943 of Kaseruddin is to be belileved then the onus lies on the defendant/appellant to show that the Dag and Patta numbers recited in the sale deed of 1943 converted to the present one as shown in Ext-B during various settlement operation. This part is missing and as such Kaseruddin or his legal heirs cannot be held to be co-sharers with the plaintiff/respondent leaving aside the legal heirs of Moslem Seikh. However as the total area of land shown in Ext-B does not conform as to the one recited in Ext-A, sale deed of 1943 so I am constrained to hold that the land under Ext-A and the Schedule B originates from separate patta and even if Ext-B shows names of legal heirs Kaseruddin they have no right to claim as co-sharers with plaintiff/respondent. This fact is established from the pleading that legal heirs of Kaseruddin sold 2 Kathas 10 Lechas to the Bagudi Mazid much before purchase by the plaintiff/respondent from Moslem Seikh. Accordingly, the substantial question of law No.2 is decided against the defendant/appellant.

With respect to the substantial question of law No.1, the fact of dispossession is not proved by the plaintiff/respondent when his own witness deposed that the defendants are tenants over the suit land and they refused to vacate on being demanded. The relief sought by the plaintiff/respondent for recovery of possession is only after partition. The said relief itself goes to show that there is hazy notion with respect to the possession of the plaintiff/respondent himself so far the Schedule C land is concerned. Accordingly, the courts below ought to have declared the title and only after partition the recovery of possession ought to have been decreed as sought for by the plaintiff/respondent irrespective of the status of the defendant/appellant because after partition if the defendant/appellant is found to be in possession then the same amounts to possession without any right. If we go by the pleadings of both the parties it is not the case of plaintiff/ respondent that defendant/appellant is possessing the suit land as tenant but trespassed after dispossession on the other hand, it is the possession of co-sharers as per the defendant/appellant. Both the courts below failed to take note of the relief sought for by the plaintiff/respondent and as such, invoking the jurisdiction under Section 103 of the CPC, I am of the opinion to grant the relief of recovery of possession only after partition as sought for by the plaintiff/respondent. Thus, the substantial question of law No.1 held in the affirmative as the actual prayer was not considered by both the courts below. However, the finding of the first appellate court is modified to the extent mentioned hereinabove.

Accordingly, this second appeal stands dismissed subject to the observation made therein while deciding the substantial question of law No.1. Prepare decree accordingly.

Send back the LCR. No cost.