Assam Schedule VII, Form No 132
HIGH COURT FORM NO. (J) 2 HEADING OF JUDGMENT IN ORIGINAL SUIT/CASE
In the Original Court of the Munsiff, Hojai
Present: SHRI. S. DUTTA, A.J.S.
Friday, the 9th day of August, 2019.
Title Suit No-07/2007
1. Musstt. Rukia Begum
W/o. Md. Lutfur Rahaman D/o. Lt. Safiqur Rahman R/o. Laskar Pathar, Mouza- Lanka, Dist. Nagaon (presently Hojai), Assam.
2. Musstt. Asma Begum W/o. Md. Khairul Islam D/o. Lt. Safiqur Rahman R/o. Sadargaon, Mouja Namati, Dist. Nagaon (presently Hojai), Assam. ……………Plaintiffs
Versus
1. Md. Nasir Uddin
2. Md. Amin Uddin
Both S/o. Lt. Safiqur Rahman R/o. Uttar Nilbagan, Mouja Namati, Dist. Nagaon (presently Hojai), Assam. …………Principal Defendants
1 | P a g e 3. Md. Sarif Uddin S/o Lt. Safiqur Rahman R/o. Uttar Nilbagan, Mouja Namati, Dist. Nagaon (presently Hojai), Assam.
4. Musstt. Jaigun Nessa W/o. Md. Mayur Ali D/o. Late Safiqur Rahman R/o. Jamunasit, Mouja Lanka, Dist. Nagaon (presently Hojai), Assam.
5. Md. Abdul Sahid
6. Md. Abdul Mazid
7. Md. Suwa Uddin
8. Md. Abdul Rasid
9. Md. Samad Uddin
10.Md. Ahad Uddin
All Sons of Lt. Rakib Ali
R/o. Nilbagan, Mouja Namati,
Dist. Nagaon (presently Hojai), Assam.
11.Musstt. Manuwara Begum
D/o. Lt. Rakib Ali
R/o. Shibpur, Mouja Kapashbari,
Dist. Nagaon (presently Hojai), Assam.
12.Musstt. Minara Begum
D/o. Lt. Rakib Ali
R/o. Nilbagan, Mouja Namati,
Dist. Nagaon (presently Hojai), Assam.
13.Musstt. Sargul Nessa
2 | P a g e W/o. Lt. Rakib Ali
R/o. Nilbagan, Mouja Namati,
Dist. Nagaon (presently Hojai), Assam.
14.Md. Tayab Ali
15.Musstt. Sunjan Bibi
16.Musstt. Sukiajan Bibi
17.Musstt. Raila Khatoon
All sons & daughters of Lt. Wasir Ali
R/o. Nilbagan, Mouja Namati
Dist. Nagaon (presently Hojai), Assam.
18.Md. Rakman Ali
19.Musstt. Nur Khatoon
Both son & daughter of Habib Ali
20.Md. Saifuddin
S/o. Lt. Faizur Rahman
R/o. Nilbagan, Mouja Namati
Dist. Nagaon (presently Hojai), Assam.
21.Musstt. Ayarun Nessa
D/o. Lt. Farmuz Ali
R/o. Laskar Pathar, Mouja Lanka,
Dist. Nagaon (presently Hojai), Assam .………Pro-forma Defendants
This suit/case coming on for final hearing on 10/06/2019 in the presence of Sri S. R. Choudhury, Advocate for the Plaintiffs and Sri A. Kuddus, Advocate for the Defendants.
And having stood for consideration to this day the Court delivered the following judgment:
3 | P a g e JUDGMENT
1. This is a suit filed by the plaintiffs for declaration of their right, title and interest and recovery of khas possession and permanent injunction.
2. Case of the plaintiffs:
In brief, the case of the plaintiffs is that a plot of the land measuring 5 Bighas out of 36 Bighas 3 Kathas 10 Lessas covered by dag no. 50 P.P. No. 56 of Nilbagan Kissam under Namati Mouja in the district of Nagaon (presently Hojai), Assam, is the subject matter of the suit, more specifically described in the ‘Schedule’ to the plaint and hereinafter referred to as the ‘suit land’. Late Safiqur Rahman, Late Rakib Ali and the pro-forma defendant no. 15, 16, 17, 18 were the original joint pattadars and absolute owners of the land measuring 69 Bighas 19 Lessas covered by dag no. 50, 49, 48, 128, 126, 35 of P.P. No. 56, land measuring 3 Bighas 1 Lessas covered by dag no. 230, 231, 227 of P.P. No. 49 and land measuring 29 Bighas 2 Kathas 10 Lessas covered by dag no. 34, 127, 228, 229, 232, 233 and 234 of P.P. No. 134 of Nilbagan Kissam under Namati Mouja. Pattadar Lt. Safiqur Rahman got possession over 27 Bighas out of 101 Bighas 3 Kathas 12 Lessas covered by Dag No. 34, 127, 233 of P.P. No. 134, Dag No. 50, 126, 128, 129 of P.P. No. 56 and Dag No. 230, 231 of P.P. No. 49 after mutual partition between him and his brothers and enjoyed the land uninterrupted. In their lifetime, the pattadars of Patta No. 56, 49, 134 Lt. Rakib Ali, Lt. Safiqur Rahman and Tayab Ali, being three brothers mutually agreed to take care one sister each. Accordingly Lt. Safiqur Rahman took care of his sister Musstt. Sunajan Bibi offering 3 Bighas of land to her from the aforesaid Pattas as her share out of the 27 Bighas of land which he got after mutual partition of the entire land. Thereafter Lt. Safiqur Rahman retained only 24 Bighas of land as his share. After his
4 | P a g e death, his wife pro-forma defendant no. 5 inherited 1 Bigha 2 Kathas 10 Lessas, his three sons namely defendant no. 1, 2 and pro-forma defendant no. 3 inherited 15 Bighas and his three daughters i.e. the plaintiff no. 1 & 2 and pro-forma defendant no. 4 inherited 7 Bighas 2 Kathas 10 Lessas of land. Accordingly plaintiff no. 1 & 2 inherited in total 5 Bighas of the land. As the plaintiffs have to reside at the house of their husband, so they asked the defendant no. 1, 2 and the pro-forma defendant no. 13 several times to partition their respective shares of land but they refused to do so. On the Contrary, the defendant no. 1 & 2 executed a false and forged Kutcha Deed on 14.01.2005 attesting false signatures of the plaintiffs. Due to the above facts the right, title, interest and possession of the plaintiffs over the suit land has been clouded. Therefore, the plaintiffs have been compelled to file this suit for the declaration of their right, title and interest over the suit land and for the recovery of Khas possession in respect thereof by evicting the defendants and dismantling all the structures thereupon and for permanent injunction against the defendants.
3. Case of the defendants:
The two principal defendants and their mother Lt. Kukila Khatoon who was impleaded as pro-forma defendant no. 5 in the suit filed their joint written statement contesting the suit. Subsequently, the name of the pro-forma defendant no. 5 was struck out due to her death vide order of the Court dtd. 07/06/2012 passed in the Misc (J) case no. 44/2012. The other defendants didn’t contest the suit. The contesting defendants stated that the plaintiff no. 1 & 2 are the sisters of defendant no. 1 & 2 and they are the daughters of Musstt. Kukila Khatoon. The plaintiff no. 1 has been married to one Md. Lutfur Rahman of Laskar Pathar and is residing there with her family members and she has sufficient means of livelihood. The plaintiff no. 2 is also married to one Md. Khairul 5 | P a g e Islam of Sadargaon and she is also well settled at her husband's house having enough source of livelihood. The father of the plaintiff no. 1 & 2 is Lt. Safiqur Rahman who died long ago leaving three sons namely defendant no. 1 Md. Nasir Uddin, defendant no. 2 Md. Amin Uddin and pro-forma defendant no. 3 Md. Sarif Uddin and three daughters namely plaintiff no. 1 Musstt. Rukia Begom, plaintiff no. 2 Musstt. Asma Begam and pro-forma defendant no. 4 Musstt. Jaigun Nessa and his widow namely Musstt. Kukila Khatoon. The rest of the pro-forma defendants are their own relatives. Lt. Safiqur Rahman died leaving behind some landed properties measuring about 14 Bighas 16 Lessas as his share out of total land measuring 101 Bighas comprised in the Periodic Patta nos. 49, 56, 134 covered by dag nos. 230, 231, 227, 34, 127, 228, 229, 232, 233, 234, 50, 49, 48, 128, 126 & 35. The original pattadar of above noted P.P. no. 49, 56 and 134 was one Lt. Wasir Ali and after his death the names of his legal heirs namely Rakib Ali, Safiqur Rahman, Md. Tayab Ali, Sunajan Bibi, Sokia Bibi, Raila Khatoon and Moimun Nessa were mutated as legal heirs. The total land in the P.P. No. 49, 56 & 134 covered by above mentioned dags is 101 Bighas 4 Kathas and 12 Lessas only. Out of aforesaid total land, a plot of land measuring 16 Bighas 2 Kathas, 10 Lessas had been sold by a registered deed to the legal heir of Late Hazi Habib Ali and out of the remaining land measuring 85 Bighas 1 Katha 2 Lessas, a plot of land measuring 2 Bighas was sold to Paschim Nilabagan Zame Maszid. A plot of land measuring 3 Bighas was acquired by the department of irrigation and another plot of land measuring 2 Bighas was taken by the water level. Thus the total land that remained will be divided as per share amongst the legal heir of deceased Lt. Wasir Ali as per Muslim Personal Law. As per Muslim Personal Law the three sons of Lt. Wasir Ali namely Rakib Ali, Safiqur Rahman, Taiab Ali will be owner and shareholder of land measuring 14 Bighas 16 Lessas each and accordingly the father of the plaintiffs Lt. Sofiqur Rahman 6 | P a g e became the shareholder of land measuring 14 Bighas 16 Lessas. In his life time, the father of the plaintiffs took a loan of Rs. 22,000/- for his Medical treatment and to repay the loan a plot of land measuring 1 Bigha was separated to meet the loan. The mother of the plaintiffs Musstt. Kukila Begam was also suffering from mental disease and for her treatment a plot of land measuring 2 Bighas was also separated in her name from the original Patta. So after deduction of the aforesaid 3 bighas, the plot of land that remained is 11 Bighas 16 Lessas which will be distributed amongst the legal heirs of Lt. Safiqur Rahman. Late Safiqur Rahman had three sons and three daughters as his legal heirs and as per Muslim Personal Law the sons of Late Safiqur Rahman will each get 2 Bighas 10 lessas and each daughter will get 1 Bigha 5 Lessas from the three Periodic Pattas. The contesting defendants have stated that they have no objection to give the share of their ancestral property to the plaintiffs but they denied that the plaintiff no. 1 & 2 both inherited a total of 5 Bighas of land. The defendant no. 1 & 2 lastly denied executing a false and forged Kutcha Deed on 14.01.05 by attesting false signatures of the plaintiffs and stated that they never objected to make partition of their paternal property and that they never tried to grab the plaintiff’s land. Hence under the above facts & circumstances the suit of the plaintiffs is liable to be dismissed with costs.
Issues:
On the basis of rival pleadings the following issues had been framed for determination: 1. Whether there is cause of action for this suit? 2. Whether the suit is maintainable in the present form? 3. Whether suit is undervalued and adequate ad valorem Court fee is not paid? 4. Whether the plaintiffs have right, title and interest over the suit land?
7 | P a g e 5. Whether the plaintiffs are entitled to get recovery of Khas possession over the suit land? 6. Whether the plaintiffs are entitled to get a decree as prayed for? 7. To what relief(s) the parties are entitled to?
4. During the course of trial the plaintiff side had examined 3 (three) witnesses and had exhibited 4 (four) documents in support of their case. The defendant side on the other hand had examined 2 (two) witnesses but exhibited no documents.
5. Discussions, decisions and reasons thereof:
Issue no 1:
It is clear from the pleadings of the parties that there are averments made by the plaintiffs in their plaint which are denied by the defendants in their written statement and they have made their own assertions therein which demands adjudication by the Court. Therefore there exists dispute between the parties and hence there is cause of action for the suit.
Hence this issue is decided in affirmative in favour of the plaintiffs.
Issue No 2 & 3:
These two issues are taken up together for the sake of convenience and also because they are interrelated. The defendants have stated that the present suit is not maintainable in the present form. However there are no specific pleadings in their written statement as to why the suit is not maintainable. Mere pleadings does not take the form of proof. However, on the point of Court fee, it appears from the plaint that the plaintiffs have valued this suit at Rs. 50,000/-. In the present suit it is admitted by the plaintiffs that they are not in possession of the suit land and as such
8 | P a g e a mere declaration of their right, title & interest is not enough and the consequential relief of recovery of Khas possession is necessary. Hence the plaintiffs should have paid the ad valorem Court fees on Rs. 50,000/- according to Section 7(iv)(c) of the Court Fees Act, 1870, which they have failed to do. As such the Court is of the opinion that the plaintiff’s suit is undervalued and adequate ad valorem Court fees is not paid. However the non-payment of the ad- valorem Court fees is an irregularity which can always be cured on payment of Court fees and a person cannot be denied the relief on the ground of non-payment of Court fees unless he is given an opportunity to make good the same. Therefore, on such ground itself the suit cannot be held as not maintainable.
Hence while the issue no. 2 is decided in affirmative in favour of the plaintiffs, the issue no. 3 is decided in affirmative in favour of the defendants.
Issue no 4:
The perusal of the pleadings of both the plaintiffs and the contesting defendants make is very clear that the main dispute between the parties is in respect of the share which the two plaintiffs are supposed to get. The two plaintiffs claim that they shall get a total of 5 Bighas of land from the three Suit Pattas i.e. 2 Bighas 2 Kathas 10 Lessas each. On the other hand the contesting defendants claim that as per Muslim personal law the two plaintiffs shall get only 1 Bigha 5 Lessas each from the three Suit Pattas. The plaintiffs have exhibited a family settlement vide Ext- 4 which was facilitated by the Hojai District Jamiat Ulama and which was executed by both the plaintiffs no. 1 & 2 and the contesting defendants no. 1 & 2. Under the said settlement the three brothers name Md. Nasir Uddin, Md. Amin Uddin & Md. Sarif Uddin shall each get 2 Bighas 3 Kathas 15 Lessas of land and the three sisters
9 | P a g e namely Musstt. Jaigun Nessa, Musstt. Asma Begum and Musstt. Rukia Begam shall each get 1 Bigha 1 Katha 5 Lessas of land from their ancestral property. The said settlement also bears the signatures of both the plaintiffs no. 1 & 2 and defendants no. 1 & 2 which is not denied. On the admissibility of the aforesaid document, the Court would like to refer to the case of Thulasidhara v. Narayanappa, (2019) 6 SCC 409 wherein the Hon’ble Supreme Court opined as follows; “As held by this Court in Subraya M.N. [Subraya M.N. v. Vittala M.N., (2016) 8 SCC 705 : (2016) 4 SCC (Civ) 163] even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties.” The Hon’ble Supreme Court also stated that “As observed by this Court in Kale [Kale v. Director of Consolidation, (1976) 3 SCC 119] that such a family settlement, though not registered, would operate as a complete estoppel against the parties to such a family settlement. The Hon’ble Apex Court further held that “As observed by this Court in T.V.R. Subbu Chetty's Family Charities case [T.V.R. Subbu Chetty's Family Charities v. M. Raghava Mudaliar, AIR 1961 SC 797], that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open.”
The above precedent of the Hon’ble Apex Court completely settles the question as to the admissibility of the Ext-4. The plaintiffs have already agreed that their share in their ancestral lands shall be 1 Bigha 1 Katha 5 Lessas each which shall amount to a total plot of land measuring 2 Bighas 2 Kathas 10 Lessas and not
10 | P a g e 5 Bighas as pleaded by the plaintiffs. Hence, now they are estopped from claiming any more land than that they have already agreed to. This makes it clear that the plaintiffs are not entitled to 5 Bighas of the suit land as claimed by them. Therefore it is held that the plaintiffs do not have right, title and interest over the suit land.
Hence this issue is decided in negative in favour of the defendants.
Issue no 5:
It is an established principle of law that possession follows title. The decision in the aforesaid issue no. 4 makes is crystal clear that the plaintiffs have failed to prove their title over the 5 Bighas of the suit land. Hence, on account of such failure, it is held that the plaintiffs are not entitled to get the recovery of Khas possession over the suit land.
Hence this issue is decided in negative in favour of the defendants.
Issue no 6:
What appears from the evidence on record is that the two plaintiffs are entitled to a total plot of land measuring 2 Bighas 2 Kathas 10 Lessas but
the plaintiffs did not seek a decree in respect of the same. Rather they sought for the declaration of their right, title and interest and recovery of Khas possession over the 5 Bighas of the suit land and described the schedule in the plaint accordingly, which they are not entitled to. Therefore, the Court is of the considered opinion that the plaintiffs are not entitled to get a decree as prayed for.
Hence this issue is decided in negative in favour of the defendants. 11 | P a g e Issue no 7:
In light of the decisions in the foregoing issues no. 4, 5 & 6, it is held that the plaintiffs are not entitled to get any reliefs in this suit.
Hence this issue is decided accordingly in favour of the defendants.
ORDER
In the result, the plaintiff’s suit is dismissed on contest with costs.
Given under my hand and seal of this Court on this the 9 th day
of August, 2019, at Hojai, Nagaon.
Munsiff,
Hojai, Nagaon.
12 | P a g e Appendix
Plaintiff’s witness:
1. Musstt. Rukia Begum (PW-1) 2. Md. Khairul Islam (PW-2) 3. Md. Montaz Ali (PW-3)
Defendant’s witness:
1. Md. Maram Ali (DW-1)
2. Md. Nasir Uddin (DW-3)
Plaintiff’s Exhibits:
1. Ext-1 is the certified copy of Jamabandi of P.P. no. 56.
2. Ext-2 is the certified copy of Jamabandi of P.P. no. 49.
3. Ex-3 is the certified copy of Jamabandi of P.P. no. 134.
4. Ex-4 is the compromise agreement before the Hojai Jamiat Ulama.
Defendant’s Exhibits:
Nil
Munsiff,
Hojai, Nagaon.
13 | P a g e