Musammat Makhduman vs Saiyed Altaf Hussain and Others

Coutts, J.—This appeal is against a decision of the Additional Subordinate Judge of Gaya, dismissing an appeal against the decision of the Munsif in a suit which was brought by one Saiyed Altaf Hussain and others for a declaration of their permanent mokarrari interest in 10 dams and odd share of village Aurapokhar.

The case of the plaintiff is that 8 annas milkiat of the village originally belonged to the ancestors of Saiyid Abdul Rahim and Sayid Fazl Tauhid. These persons granted mokarrari of their 8 annas milkiat to Musammat Hayatan, the widow of Shah Mehdi Ali, by a patta dated the 4th of February 1805. Out of this 8 annas mokarrari 4 annas went to Shah Rahat Hussain, Mehdi''s brother''s son and 4 annas remained with Musammat Hayatan. Saiyed Muhammad Nasir, one of the sons of Rahat, got by inheritance 19 dams and odd out of the 4 annas mokarrari which had gone to Rahat and in respect of this he executed a Bainakasha in favour of his wife Musammat Kubra in 1895. In the following year Musammat Kubra executed a kabala conveying this 19 dams and odd to the plaintiff No. 1 in 1915 executed a darmokarrari deed in favour of his sons, plaintiffs Nos. 2 and 3. During the survey, however, the defendant No. 13 and the defendant No. 6 fraudulently arranged that the defendant No. 1 should get the name of the plaintiff No. 1 recorded only in respect of 1 dam 19 kowris and odd out of the 19 dams as mokarraridar.

The defendant''s main plea was that neither Rahat Hussain nor his sons, including Nazir, nor Musammat Kubra had any interest in the mokarrari. He alleged that the suit was barred by limitation as the plaintiff had not been in possession within 12 years, that out of the 8 annas mokarrari defendant No. 1 got 4 annas from her mother-in-law Hayatan as a present and the other 4 annas was divided amongst the heirs of Hayatan. Her husband gave her 18 dams and odd out of his own inherited share in lieu of her dower. Later on she became possessed of 4 annas 18 dams milkat by virtue of a kabala, dated the 22nd of June 1898, and thus her milkiat and mokarrari right became equal in extent and she was accordingly recorded correctly in the khatian.

The suit was decreed in the Court of first instance, and this decree has been upheld on appeal by the Additional Subordinate Judge. The defendant No. 1 has appealed to this Court.

The first point urged in appeal is that as the Bainukasha deed has not been produced, the plaintiff is not entitled to adduce evidence of this transaction, and this being so the plaintiff has failed to establish his title. This argument is based on a misapprehension of scope of Section 91 of the Evidence Act. All that Section 91 provides is that when the terms of a contract or of a grant or of any other disposition of property have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or disposition of property, except the document itself. This, however, refers only to the method of proof of the terms of contract, grant or disposition of property; it does not exclude either proof of the transaction itself, and this being so, the Courts below were entitled to consider the other evidence which was adduced in proof of the Bainukasha transaction.

The next point urged is that certain documents which have been relied on by the learned Subordinate Judge are not admissible in evidence. These are exhibits 9, 7 and 3. From exhibit 9 it appears that one Saiyed Mehdi Hussain brought a suit for specific performance of contract of sale against Musammat Kubra and the plaintiff No. 1. In that suit it was urged that Musammat Kubra had entered into a contract to sell her mokarrari share to Mehdi Hussain, and in that suit neither the title of Musammat Kubra nor the title of Rahat Hussain was denied, although the defendant No. 13, the husband of defendant No 1, gave evidence against the plaintiff. It is clear that the husband of the defendants No. 1 has for long been trying to disposses the plaintiff No. 1 from the disputed share. That document then is clearly evidence for what it is worth. The next document is exhibit 7. This mentions that Nazir gave an ijara of 14 dams and odd share along with other properties to the defendant No. 13, and what the learned Subordinate Judge says in regard to this is that this share although it is stated to be milkiat evidently refers to the mokarrari interest as it is nobody''s case that Nazir had any share in the milkiat of village of Rampokhar. The inference may perhaps be a wrong one, but it is certainly a legitimate one to draw and here again the document is clearly evidence for what it is worth. Similarly exhibit 3 also shows that defendant No. 13 had knowledge of the plaintiff No. 1''s purchase and this again is evidence. The Courts below were therefore entitled to consider all these documents, and their findings are findings of fact with which we cannot interfere in second appeal.

The last point urged is that the decree which has been granted to the plaintiff contains a declaration that the defendant No. 1 is the proprietor, and it is contended that this is not a declaration to which the plaintiff is entitled. This is admitted by the learned Vakil for the respondents and this declaration should clearly be omitted from the decree.

In the result, then, I would dismiss this appeal except for the slight modification to which I have referred, namely, that that part of the decree, which declares that the defendant No. 1 is the proprietor, should be expunged. The appellant will bear the costs.

Das, J.

I agree.