HIGH COURT FORM NO. J(2) PRESENT - Tinsukia district · · 2017-06-16HIGH COURT FORM NO. J(2) HEADING OF JUDGMENT IN ORIGINAL SUIT ... R/o. Dhekiajuri, Behind Renuka Cinema Hall,

Title Suit No. 09/2006Page No.1

HIGH COURT FORM NO. J(2)

HEADING OF JUDGMENT IN ORIGINAL SUIT

PRESENT: Md. N. A. Laskar, AJS.

Munsiff No.1, Tinsukia,

District. Tinsukia, Assam.

On this 30th day of November, 2013

Title Suit No. 09/2006.

Smt. Mafiza Begum.

W/O. Lt. Inamuddin Ahmed.

D/O. Lt. Nazmul Hussain.

R/o. Dhekiajuri, Behind Renuka Cinema Hall,

P.O. & Dist. Tinsukia, Assam...........................................

Plaintiff.

Versus.

1. Smt. Jyotsna Begum.

W/o. Md. Harun.

R/o. Paltan Bazar, Dhobipatty.

P.O. Jalan Nagar, Dist-Dibrugarh, Assam.

2. Md. Sadruddin Khan.

S/O. Lt. Azimul Haque Khan. ……......................

Defendants.

3. Hasina Begum.

W/O. Lt. Tajmul Hussain.

4. Anowar Hussain.

S/O. Lt. Tajmul Hussain.

The defendant No. 2, proforma defendant No. 3 and 4


are R/O. Dhekiajuri, Faizul Gorba Road.

P.O. & Dist. Tinsukia, Assam.

5. Hamida Begum.

D/O. Lt. Tajmul Hussain.

R/O. Gelapukuri Road, Tinsukia.

6. Safida Begum.


R/O. Paltan Bazar,

P.O. and District. Dibrugarh.

7. Sahida Begum.


R/O. Mulukabasa.

P.O. & Dist. Dibrugarh, Assam…………..Proforma

Defendants.

This suit coming on final hearing on 22/11/2013, in the

presence of Md. N. A. Laskar, AJS, Munsiff No.1, Tinsukia, and

1. Sri. R. K. Barthakur, Ld. Advocate for the plaintiff.

2. Sri. B. Prasad, Ld. Advocate for the defendants.

3. None appeared for the proforma defendants.

And having stood for consideration on this day the

court delivered the following Judgment:-

JUDGMENT

1. This is a suit for declaration of rights, cancellation of

mutation orders in the revenue records, cancellation of sale deed,

permanent injunction and other relieves.

THE CASE OF THE PLAINTIFF


2. The case of the plaintiff as averred in the plaint is that

originally a plot of land measuring 52 Bighas 0 Katha 07 Lessas

land covered under Old Dag Nos. 1015/1080/1026/1049 and

1048, old periodic patta No. 459 (Hereinafter referred as the

entire land) was in the name of Jamu Mia (Since deceased), who

leaving behind four sons viz, Shekawat Hussain, Siraj Hussain,

Maznur Hussain, and Najmul Hussain and one daughter viz,

Fatejannisha as his legal heir and successors. The plaintiff further

stated that another son of Jamu Mia expired during the life time of

his father and consequently ‘the entire land’ was mutually

divided amongst the legal heirs of Jamu Mia and they came in

occupation of their respective share. The plaintiff further stated

that after the death of Jamu Mia, ‘the entire land’ was mutated

in the name of Siraj Hussain but in the year 1944, ‘the entire

land’ excluding a plot of land measuring 6 Bigha, was mutated in

the name of (i) Siratunisha, W/O. Siraj Hussain, (ii) Dilafroj, W/O.

Najmul Hussain, (iii) Majnur Hussain, S/O. Jamu Mia, (iv) Jainur

Hussain, S/O. Shekawat Hussain, (v) Fatejannisha, D/O. Jamu Mia

and (vi) Abdul Samad, S/O. Abdul Majid vide order dated

06/06/1944 passed in mutation case No. 207 of 1943-44. The

plaintiff further stated that though the Abdul Samad, S/O. Abdul

Majid is a distant relative of Jamu Mia but his name also mutated

in the revenue record without any basis of either title or

possession. The plaintiff further stated that the heirs and

successors of Jamu Mia had been in occupation of their respective

share without any hindrance or interruption and they also sold

some portion of their respective share of the land in favour of

different person.

3. The plaintiff further stated that land measuring 05

Bighas, 04 Kathas, 16 Lessas under Dag No. 2624 (Old Dag No.

1026) of periodic patta No. 85 (old periodic patta No. 459)

situated at Dhekiajury, Tinsukia Town sheet No. 6, Mouja, town

and District. Tinsukia (Hereinafter referred as ‘the total

land’) settled in the share of Nazmul Hussain, S/O. Lt. Jamu Mia

and upon the consent of Najmul Hussain the name of his wife viz,


Dilafroj also mutated in the records of right. The plaintiff further

stated that the Najmul Hussain and Dilafroj leaving behind the

plaintiff and Rafiqul Hussain as their heir and successors and on

the basis of family settlement and mutual consent of the said

Rafiqul Hussain during his life time, ‘the total land’ left by their

parent settled in the name of plaintiff and the plaintiff became the

sole legal heir and successor of her parent.

4. The plaintiff further stated that she and her mother

(during her life time) sold out land to different person and for

convenience the same is reproduced with the help of a table.

Serial Nos. Name of

Seller

Name of purchaser Quantum of land

1 plaintiff Chandrakanta

Sharma

01 katha 5 Lessas

2 Plaintiff Abdul Latif 01 katha 5 Lessas3 Plaintiff Naim Hussain 01 katha 4 Plaintiff Anwari Khatun 01 katha 6 Lessas5 plaintiff Sonmai Begum 01 katha 5 Lessas6 Plaintiff Seikh Niras 01 katha 10 Lessas7 Plaintiff Sishubala Roy 01 katha 5 Lessas8 Dilafruj Sarif Churiwala 02 kathas 9.03

Lessas9 Dilafruj Jai Narayan Sharma 01 katha 5 Lessas

Total land sold by plaintiff and her mother 2 B 2 K 10.03 L 5. The plaintiff further stated that the sale of aforesaid

plots of land by her mother and herself shows that the aforesaid

land settled in the name of plaintiffs. The plaintiff further stated

that on receipt of copy of jamabandi of ‘the total land’ on

23/09/2005, the plaintiff learnt that the defendant No.1 without

any lawful authority, right, title and possession and by way of

misleading and misrepresenting the Circle Officer, Tinsukia

Revenue Circle, recorded her name in the revenue record vide

order dated 23/03/2004, passed in Mutation case No.

446/2003-2004 as daughter of Lt. Samsul Hussain without any

measurement of the land inherited by her and for the first time

the name of Tajmul Hussain and Samsul Hussain also mutated.

The plaintiff further stated that the third son of Jamu Mia viz,

Majnur Hussain expired on 10/08/1982, leaving behind the only

son Tajmul Hussain, who also expired on 12/08/1997. The plaintiff


further stated that another son of the Majnur Hussain viz, Samsul

Hussain, was a lunatic who predeceased his father and heir of the

Samsul Hussain, if any had failed to inherit any property from

Majnur Hussain. The plaintiff further stated that during the young

age of Samsul Hussain, his wife Putlinisha left him and remarried

to Md. Sahadulla, Dhobipatty, paltan Bazar, Dibrugarh and both of

them expired there without any issue. The plaintiff further stated

that as the Samsul Hussain predeceased his father, the mutation

of his name in the revenue records in place of his father as per

order dated 23/03/2004 vide Mutation case No. 446 of 2003-2004

is illegal and void and similarly the name of defendant No.1 in

place of Samsul Hussain in also illegal and void.

6. The plaintiff further stated that the defendant No.1 by

virtue of illegal order of mutation not only casted a cloud over the

right, title and interest of the plaintiff in respect of the said land

but also executed and registered sale deed No. 1204/2004 dated

18/10/2004 before the Sr. Sub Registrar, Tinsukia in favour of

defendant No.2 in respect of the land measuring 2 Kathas 2.48

Lessas covered under Dag No. 2624 of periodic patta No. 85,

which is the land involved in this suit. The plaintiff further stated

that the defendant No.2 also fraudulently and for the purpose of

wrongful gain converted vis a vis bifurcated the Dag and Patta

number of the suit land as Dag No. 2815 and periodic patta No.

2135. Hence the plaintiff instituted this suit for cancellation of the

order of mutations, cancellation of sale deed along with other

declaratory relieves including the prayer of permanent injunction.

THE CASE OF THE DEFENDANT NO.1

7. The defendant No.1 contested this suit by submitting

written statement. The defendant No.1 in the written statement

stated inter alia that the suit is not maintainable; the plaintiff has

no right to sue; the plaint is neither properly verified nor the

affidavit sworn in conformity of Order VI Rule 15 of CPC; at the

time of institution of this suit the plaintiff failed to furnish the

original documents to the court and hence the suit is liable to be


dismissed under Order VII Rule 14 of CPC; the suit is barred under

the provisions of Assam Land Revenue Regulation, 1886; the suit

is barred due to non-joinder of Tinsukia Development Authority,

Deputy Commissioner, Tinsukia and all the legal heirs of Jamu

Mia, who are the necessary parties; the suit property is not valued

properly and proper court fee is not paid; the plaintiff has no

prima facie case; the suit is barred by limitation; there is no cause

of action for this suit; the suit is the re-product of malafide

intention of the plaintiff to cause wrongful loss to the defendant

No.1 and for wrongful gain to herself; the suit is barred by

doctrine of waiver, estoppels and acquiescence; the suit is

vexatious to the knowledge of answering defendant; the contents

of the plaint is incomplete, vague, lack of material particulars and

the suit is liable to be dismissed and the suit land is not properly

described. The defendant No.1 admitted the cause title and

address of the parties as mentioned in Para No.1 and 2 of the

plaint. The defendant No.1 denied the statement of the plaint in

respect of the original ownership of Lt. Jamu Mia over 52 Bigha 07

Lessas land, description of his heirs and the mutation of the name

of heirs of Jamu Mia in the revenue record and alleged the same

as vague, lack in materials particulars and not fully correct. The

defendant No.1 submitted that the Jamabandi of Periodic patta

No.85 speaks that Jamu Mia had only one son viz, Majnur Hussain

and on his death his two sons viz, Samsul Hussain and Tajmul

Hussain and on their death the name of legal heirs and

successors became lawful owner and possessor of the respective

property and hence the contention of the plaintiff is not fully

correct. The defendant No.1 further stated that there are 28

numbers of pattadhar in the land pertaining to the periodic patta

No.459, Dag Nos. 1015/1080/1026/1049 and 1048 in total area of

land measuring 52 Bighas 07 Lessas and hence the contentions of

the ownership of land in the name of Jamu Mia is not true and

correct. The defendants No.1 also denied the fact of division of

shares among the heirs of Jamu Mia on mutual consent,

occupation of their respective share, sale of land from their

respective shares in favour of different person and the settlement

of the land measuring 05 Bighas 04 Kathas, 16 Lessas under Dag


No. 2624 (old 1026), periodic patta No.85 (Old Patta No.459),

consent of Najmul Hussain for mutation of the name of his wife

(Dilafruj) in the records of right, ownership of the plaintiff over the

entire estate of Late Najmul Hussain and Lt. Dilafruj, sale of land

by Plaintiff and her mother to the others, being the same is

vague, incomplete and lack of material particulars. The defendant

No.1 further denied the fact of knowledge of the plaintiff on

23/09/2005 as averred in the plaint in respect of mutation of

name of Samsul Hussain, then defendant No.1 and also denied

the alleged suppression or manipulation of the fact in passing the

order dated 23/03/2004 passed in Mutation case No. 446 of

2003-2004 and added that the plaintiff had due knowledge of the

said fact right from its institution. The defendant No.1 also denied

the expiry of Samsul Hussain before his father and further denied

that the heirs of Samsul Hussain lost the right in respect of his

property. The defendant No.1 further denied any alleged illegality

in execution of the sale deed No. 1024 of 2004 and the said sale

deed executed and registered after obtaining due permissions

from Deputy Commissioner, Tinsukia and Tinsukia Development

Authority. The defendant No.1 also denied the alleged fraud play

in conversion and bifurcation of Dag No.2815 and periodic patta

No.2135. The defendant No.1 alleged that the impleading of the

proforma defendants is nothing but the collusion as they are

fighting in other cases against the defendant No.1. The defendant

No.1 added that she had right, title and possession in respect of

the suit land and after completion of all requirements of law she

sold the suit land to defendant No.2. The defendant No.1 prayed

for dismissal of this suit with compensatory cost of Rs. 30,000/-.

THE CASE OF THE DEFENDANT NO.2

8. As like the defendant No.1, the defendant No.2 also

contested the suit by submitting written statement. On careful

reading of the written statement of the defendant No.2, it is found

that the plea raised by the defendant No.2 is the verbatim

repetitions of the same fact as pleaded by the defendant No.1

and hence the same is not repeated again in this judgment. The


defendant No.2 also stood in the same footing as like the

defendant No.1 that the sale deed No. 1024 of 2004 executed and

registered after obtaining due permissions from Deputy

Commissioner, Tinsukia and Tinsukia Development Authority. The

defendant No.2 also denied the alleged fraud play in conversion

and bifurcation of Dag No.2815 and periodic patta No.2135. The

defendant No.2 alleged that the impleading of the proforma

defendants is nothing but the collusion as they are fighting in

other cases against the defendant No.1. The defendant No.2

added that the defendant No.1 had right, title and possession in

respect of the suit land and after completion of all requirements

of law she sold the suit land to him. The defendant No.2 also

prayed for dismissal of this suit with compensatory cost of Rs.

30,000/-.

THE CASE OF THE PROFORMA DEFENDANTS

9. The proforma defendant Nos. 03 to 07 also submitted

written statement in this suit. The proforma defendants admitted

the facts in respect of the original ownership of Jamu Mia over the

land measuring 52 Bighas 07 Lessas in Periodic Patta No. 459,

Dag No. 1015, 1080, 1026, 1049 and 1048, the insertion of name

of the heirs of Jamu Mia in the revenue record as legal heirs and

successors, settlement of land measuring 05 Bighas 04 Kathas

16 Lessas of Dag No. 2624( old 1026), Periodic Patta No. 85 in the

name of Nazmul Hussain and Dilafruj and upon the death of

Nazmul Hussain and Dilafruj in the name of plaintiff. The proforma

defendant also admitted the sale of different plot of land to

different person by plaintiff and her mother (Dilafruj). The

proforma defendants denied the right, title and interest of

defendant No.1 over the suit land and added that Samsul

Hussain, S/O. Majnur Hussain, expired during the life time of his

father without any legal heir and successors. The proforma

defendants prayed for dismissal of the instant suit against them.

ISSUES


10. Upon the pleading of the parties, the then Ld. Munsiff

No.1 vide order dated 06/03/2007 framed as many as 8 (eight)

issues for determination of this suit. The issues are reproduced as

follows:

(1) Whether the suit is maintainable in law with fact?

(2) Whether Plaintiff has right to sue?

(3) Whether the plaintiff is the owner of the disputed

land?

(4) Whether the defendant No. 1 by manipulating

entered her name in the record of right vide order dated

23/03/2004 in mutation case No.446/2003-2004?

(5) Whether the defendant inherited the suit property

from Late Samsul Hussain?

(6) Whether sale deed No. 1204 dated 18/10/2004 is

void and illegal?

(7) Whether the plaintiff is entitled to the reliefs as

prayed for?

(8) To what other relief/reliefs, the parties are entitled

to?

11. To substantiate the issues framed in this suit the

plaintiff side has examined three witnesses viz, Mafiza Begum

(the plaintiff), Hasina Begum (Proforma defendant No.3) and

Mujibur Rahman. The defendant No.1 side examined Md. Afroj

Khan, who is the attorney of the defendant No.1. The defendant

No.2 and the proforma defendant side not examined any witness

in this suit.

ARGUMENT

12. Initially, the suit was fixed on 19/08/2013 for

argument. On 19/08/2013 the defendant side sought adjournment

but completed their part of argument on 21/09/2013 and

25/09/2013. The plaintiff side sought adjournment on 09/09/2013,

24/09/2013, 27/09/2013, 10/10/2013 and 13/11/2013. The

grounds are also considerable in nature and there was no other

option to the court except to allow the prayers of adjournments.


Finally, the hearing of argument of this suit has been completed

on 22/11/2013.

13. Before entering into the issue wise discussion and

decisions, this court finds it necessary to reproduce the few points

raised by the parties during the course of argument. Ld. Counsel

for the plaintiff submitted that DW-1 has been cross examined as

his evidence was taken on record and the evidence of DW-1 is

cannot be accepted as because the power of attorney submitted

by him was not accepted and the said order has been upheld by

the Hon’ble Gauhati High Court. On the contrary, Ld. Counsel for

the defendant side submitted that it is true that the attorney

cannot depose in place of principal and it is also equally true that

the attorney can depose in respect of the facts, which is within his

knowledge. Ld. Counsel for the defendant further submitted that

Section 85 of the Evidence Act provides that the court shall

presume the existence of a document which is purported to be a

power of attorney, executed and authenticated before the

respective authority as was so executed and authenticated. Ld.

Advocate for the defendant side further submitted that the sale

deed (Ext-4), which is under challenge has been executed by the

DW-1 as attorney of the defendant No.1 and executed in favour of

the defendant No.2, who is the father of the DW-1 and hence the

DW-1 have the knowledge about the execution and registration of

the Ext-4 and the same is within his knowledge and he is the best

witness in this respect. It is also admitted position in this case

that the DW-1 also appeared in other cases for and on behalf of

Defendant No.1. The defendant side also placed reliance on the

decisions of Hon’ble Supreme Court, in Jugraj Singh and

another Vs. Jaswant Singh and others, reported in AIR 1971

SC 761 and in Janki Vashdeo Bhojwani and another Vs.

Indusind Bank and others, reported in 2005 (2) SCC 217;

Hon’ble Gauhati High Court, in Md. Sona Mia Vs. Kebal

Kanti Nandi and others, reported in 2012 (6) GLJ 289. On

careful reading of the judgment passed by Hon’ble Gauhati High

Court in exercise of revisional jurisdiction against the order of

refusal of the acceptance of power of attorney and the decisions


placed on reliance by the defendant side, it appears that the

knowledge of the DW-1 in the suit in hand is more than the

defendants and being the position his evidence is to be

considered as best than the principal who appointed him as

attorney. Ld. Counsel for the plaintiff side further submitted that

the present suit is the glaring example of grabbing the land of

others. Ld. Counsel for the plaintiff side further submitted that

the defendants though submitted written statement none of both

appeared in the witness box for their cross examination and no

evidence adduced by them, which in other words can be said that

the defendants accepted the pleadings of the plaintiff, mere

submission of written statement is not enough to probe one’s plea

in a suit. Ld. Counsel for the defendant submitted that the plaintiff

alleged his grievances in this suit and the initial burden lies on the

plaintiff to stand over the same. Ld. Counsel for the defendant

further submitted that the settled law is that the plaintiff has to

prove his own case and the plaintiff cannot take the benefit of

weakness of the defendant side, where the plea of defendant is

denied by the plaintiff. It appears that even in a decision of suit in

ex-parte, the court may decline to grant relief to the plaintiff

where he failed to establish his case. The alleged collusion, fraud,

manipulation raised by the plaintiff and the burden lies on her to

prove the plea, what she asserted. The non-production of rebuttal

evidence will be arisen when the plaintiff suit stands in its own

footing. Ld. Counsel for the plaintiff side further submitted that

the Advocate of Tinsukia Development Authority and the Jyostna

Begum are same and the document produced from Tinsukia

Development Authority is also doubtful. The power of attorney

executed on 29/01/2004 and the name of Jyostna Begum mutated

in the revenue record on 23/03/2004 and on the same day the

name of defendant No.2 also mutated. The plaintiff side further

submitted that the plea of defendant is that the mutation order

was done lawfully and in compliance of the formalities required

and hence the burden lies on the defendants to prove the fact

that it was done legally. It appears that the defendants in this suit

neither filed any counter claim nor set off, for declaration of any

such legality in their favour and as such the burden lies on the


plaintiff to prove the fact first that it was done illegally. Ld.

Counsel for the plaintiff further submitted that no notice was

issued to the plaintiff and without any notice to the plaintiff the

order of mutation of defendants is not valid. Ld. Counsel for the

plaintiff further added that mere fact of mutation does not confer

any right, title, interest and possession of the land and no record

of mutation produced by the defendants. The plaintiff side further

argued that the defendant No.1 was not in possession of the suit

land and no witness examined to prove the fact. The plaintiff side

further argued that the suit land is a low lying land and the

plaintiff is in constructive possession and where the existence of

principal is not proved how the attorney will be believed. The

plaintiff side further argued that the power of attorney executed

without any right, title and interest over the land and the

possession of the suit land is not lost and for which the prayer of

recovery of possession is not made by the plaintiff.

14. The defendant side also put forward various points

during the course of argument, amongst which a few are

mentioned here. The ad-volerem court fee was no paid; Jamu Mia

has five legal heirs and the defendant No. 1 is the granddaughter

of Jamu Mia and all heirs of Jamu Mia are not made parties in this

suit; the record of Mutation case No. 207/1943-44 is not produced

by which the name of the mother of the plaintiff entered in the

revenue record and it was not explained under what law and basis

the name of mother was recorded in the revenue record; under

what status and law Najmul Hussain consented for insertion of

name of his wife in the revenue record; The notes (tha), (dhaha)

and (pa) of Ext-1 reflected that the mother of the plaintiff also

sold land and the plaintiff failed to prove the title of her over land

measuring 05 Bighas 04 Kathas 16 Lessas.

15. The defendant side further argued that no mutual

settlement, deed of relinquishment is produced to prove such

fact; the heirs of Rafiqul Hussain (Since deceased) were not made

parties in this suit; the plaintiff alleged the non-existence of

Jyostna Begum, alleged the play of fraud in mutation and the


burden lies on them to prove the fact; original plaint signed by

Mofiza and the evidence filed by Mofida; PW-1 and PW-2 denied

the existence of Mofiza; lunacy of Samsul Hussain is not proved

and the same cannot be a ground to defeat one’s claim to inherit

property; the relief claimed by the plaintiff is barred under the

provision of Assam Land and Revenue Regulations and the

existence of DW-1 is admitted by the plaintiff in her evidence and

as like any other witness the evidence of DW-1 can be accepted.

According to the plaintiff side the evidence of DW-1 is no evidence

in this suit.

16. Heard the arguments of the parties at length and on

consideration of the pleadings, both ocular and documentary

evidence and other materials on record this court comes to the

issue wise findings as follows:

DETERMINATION OF THE ISSUES, DISCUSSION,

DECISION AND REASONS THEREOF:

17. Issue No. Whether the plaintiff is the owner of

the disputed land?

AND

Issue No. 5. Whether the defendant inherited

the suit property from Lt. Samsul Hussain?

18. Both the issues are the rival plea of the plaintiff and

principal defendants and hence taken together. The plaintiff claim

is that the disputed plot of land mentioned in the schedule of the

plaint is her paternal property inherited by her. On the contrary,

the defendant No.1 also pleaded that the suit property is also the

paternal property inherited by her and she sold it to the

defendant No.2. The defendant No.2 came in picture due to his

purchase of the suit property from defendant No.1. At the outset,

it is found that this is purely a dispute in respect of acquiring of

title and the same is to be the basis of determination of both the

issues. Admittedly, the suit property is an ancestral property and

in such cases it is a bit difficult to curve out the title of the person


being there is no title documents like sale deed, gift deed etc. The

plaintiff claimed that she is entitled to get a declaration that to

inherit the entire share of Lt. Najmul Hussain and Lt. Dilafruj as

sole and only legal heir and successor. Therefore, the first

question is to be determined as to the property owned by Najmul

Hussain and Dilafruj. PW-1 deposed that ‘the total land’ stands

settled in the share of Najmul Hussain and upon the consent of

Nazmul Hussain, the name of his wife (Diafruj) mutated in the

records of rights. PW-1 exhibited the Jamabandi of periodic patta

No. 459 as Ext-1 and Jamabandi of Periodic Patta No.85 as Ext-2.

Ext-1 reflects that the name of Dilafruj along with five others

mutated as co-pattadhar in place of Siraj Uddin as heirs and

successors of Jamu Mia. The explanation given in the plaint by the

plaintiff that in place of all heirs initially and after the death of

Jamu Mia, ‘the entire land’ mutated in the name of Siraj Uddin

and upon the consent of Najmul Hussain, the name of Dilafruj was

mutated in the revenue record alongwith other heirs of Jamu Mia.

Dilafruj was the daughter in law of the Jamu Mia and the fact of

consent by the husband of Dilafruz as averred by the plaintiff is

found lack of support either in Ext-1 or the notes appeared

thereto. The general course of conduct is that the property left by

the father is to be inherited by son, daughter or other successors

as per the law followed and prevailed over them. The burden lies

on the person to prove the fact, if it is exception to the general

rule. The plaintiff and her witnesses in cross examination stated

about their ignorance to explain the exception and the plaintiff

also failed to prove the fact by documentary evidence or

otherwise. Hence, the property inherited by Dilafruj in place of her

husband as an exception to the general rule of inheritance is not

proved. Similarly, the Ext-2 i. e. the Jamabandi of Patta No. 85

does not disclose anything in respect of sole ownership of the

plaintiff over the entire land of Dag No.2624. The notes appeared

in the Ext-2 supported the fact that the plaintiff and her mother

(Dilafruj) sold land to other person and irrespective of sale by

plaintiff and her mother there are other person also found

inherited and owned the landed property of said Dag No. 2624.

The Ext-2 further speaks that in the dag No. 2624, the total land


is measuring 05 Bighas 04 Kathas 16 Lessas, which the plaintiff

claimed as her sole inherited property. PW-1 though deposed that

she and her mother sold various plots of land to others but such

sale could not be taken as a proof that the plaintiff is the owner of

‘the total land’ shown in Dag No.2624 of periodic patta No.85.

In the said Ext-2 there are name of other person as sharer and

owner of said dag, and if those lands are subtracted from the total

area of the land appeared in dag No. 2624, the total land of the

plaintiff as claimed as 5 Bighas 4 Kathas 6 Lessas lost its

existence. The name of person other than the plaintiff who had

also land as appeared in Ext-2 in dag No. 2624 (amongst which

the pattadhar No.14 and 18 sold their share to others but

Pattadhar No.22 and 47 are still have share), which are shown

below with the help of following table:

Serial No. in

Ext-2

Name of the person Quantum of the land

14. Zafarbin Ahmed 1 Katha-5 Lessas

18. Smti. Maya Kar 1 Katha- 5 Lessas

22. Smt. Mayarani Dey 1 Katha-4 Lessas

47. Zamiruddin 1 Katha-5 Lessas

Total Land 4 Kathas-20 Lessas

19. In support of the title, the plaintiff side further

exhibited the revenue receipt as Ext-3 but the same also found

silent in respect of the dag number, patta number and the

quantum of land inherited by her. In the plaint, the plaintiff further

mentioned that her brother Rafiqul Hussain (since deceased)

during her life time settled his share of land in favour of plaintiff.

PW-1 in her cross examination admitted that there was no

settlement or partition of land between her and her brother

Rafiqul Hussain (Since deceased). PW-3 in cross examination also

admitted that the Rafiqul Hussain (Since deceased) got share of

land measuring 02 and half Bighas and the same is in possession

of his heir and successors at present. PW-3 also added that she


cannot say exactly the measurement of land in possession of

Rafiqul Hussain (Since deceased) at present. The Ext-2 is also

silent about such settlement and there is no other reliable

evidence to support the fact. Hence the settlement of share of the

brother of the plaintiff in her favour is found yet to be proved.

Coming back to the title of the plaintiff, it appears that as per

averments of the plaint, the plaintiff stated that as heir and

successor her father viz, Nazmul Hussain (Since deceased) she

inherited ‘the total lnad’. The parties are Mohammedan and

upon the demise of Najmul Hussain, the three heirs and

successors viz, Dilafruz (wife), Rafiqul Hussain (son) and Mofiza

Begum (Plaintiff) are generally entitled to inherit the share as

follows:

Serial No. Name of heir Relation Share of land1 Dilafruz wife 03 Katha 14.5

Lessas2 Rafiqul Hussain son 03 Bigha 02 Kathas 7.67

Lessas3 Mafiza Begum daughter 01 Bigha 03 Kathas 13.83

Lessas

20. The plaintiff in the plaint as well as in her evidence

stated that she and her mother sold out land measuring 02

Bighas 02 Kathas 10.03 Lessas to the different person. The table

drawn above reflects that the mother of the plaintiff entitled to

the share of land measuring 03 Katha 14.5 Lessas land and she

sold out the entire share of her land to Sarif Churiwala and Jai

Narayan Sharma as described in Para No.4 of the plaint and

nothing left in her share to be inherited by the plaintiff. In the

same way, the plaintiff is found entitled to the share of land

measuring 01 Bigha 03 Kathas 13.83 Lessas and from which she

sold land measuring 01 Bigha 03 Kathas 16 Lessas (i. e. more

than her share) in several plots to Chandrakanta Sharma, Abdul

Latif, Naim Hussain, Anwari Khatoon, Sonmai Begum, Sekh Niras

and Sishubala Roy. Hence, the share of property inherited by the

plaintiff is found already sold by her. PW-1 and PW-3 in their cross

examination admitted that existence of share of Rafiqul Hussain

(Since deceased) till the date of their cross examination in this


suit. Hence, the tile derived and acquired in the name of plaintiff

in respect of any more land in addition to her share under the Dag

No. 2624 and periodic patta No. 85 is yet to be proved. Being the

title of the plaintiff over the property left by her parent is not

curved out, it is found hard to decide any sort of title or ownership

of the plaintiff in respect of the disputed land.

21. The defendant No. 1 pleaded that she inherited the

property from her father and defendant No.2 pleaded that he

purchased the property from defendant No. 1. The plaintiff

alleged that the father of the defendant No. 1 (Samsul Hussain)

expired during the life time of Maznur Hussain and for which his

right to inherit the property of his father has been lost. The

plaintiff side in the plaint as well as in the evidence of plaintiff

witnesses mentioned that Maznur Hussain expired on 10/08/1982.

The burden lies on the plaintiff to prove the fact that the Samsul

Hussain is the predeceased son of his father. No documentary

evidence produced by the plaintiff side in support of the fact. Let

us see, the oral evidence adduced by the plaintiff side how far in

support of the fact. PW-1 in her cross-examination stated that

Samsul Hussain died in the year 1979 and who was 5/6 years

older than her. It appears that PW-1 deposed in the year 2009 and

she is 65 years old and hence Samsul Hussain might have born on

or before 1930. PW-2 in cross examination deposed that Samsul

Hussain died at the age of 35 years and if the year of death is

taken as 1979, then the Samsul Hussain might have born on

1944. It appears that the PW-1 and PW-2 contradicted the age of

Samsul Hussain of about 14 years at the time of his death. PW-3

stated in cross examination stated that Samsul Hussain died at

the age of 35-40 years. According to PW-3, Samsul Hussain might

have to born on 1934-1939, if he died on 1979. Hence, the

evidence of the plaintiff witnesses in respect of the age of Samsul

Hussain at the time of death is found contradictory. PW-2 in cross

examination further stated that Samsul Hussain married earlier

than her and she married in the year 1965 at the age of 13 years.

The gap in between the 1965 and 1979 is 14 years. The evidence

of PW-2 reflects that she is totally unknown about the marital life


of Samsul Hussain as it was passed away during her

pre-adolescence period. Obviously, the plaintiff and her witnesses

unable to say the exact date of birth or year of a relative of them

but it is also true that it should not varied like 14 years from one

another.

22. The plaintiff asserted further that Samsul Hussain have

no issue and during his young age the wife of Samsul Hussain viz,

Putlinisha left him and got re-married with Md. Sahadulla. The

defendant denied the fact. The plaintiff and her witnesses

deposed the said fact that Samsul Hussain was though married

with Putlinisha but Putlinisha left her and got re-married with one

Sahadulla. DW-1 in his cross-examination deposed that Jyotsna

Begum is born at Tinsukia in the house of her grandfather viz.

Maznur Hussain but he has no personal knowledge about the said

fact and heard it from others. The trend of cross-examination of

DW-1 by the plaintiff side shows that the plaintiff side disputed

the place of birth of Jyotsna Begum at Dekhiajuli, Tinsukia and

also stated that she born at Dibrugarh. It is also challenged by the

plaintiff side that Jyotsna Begum has no right to sale the landed

property by virtue of Ext-G and Jyotsna Begum is not the

daughter of Samsul Hussain. It is also suggested by the plaintiff

side that the Jyotsna Begum has been projected as daughter of

Samsul Hussain for the purpose of mutation and to grab the suit

land. In cross-examination of DW-1 the plaintiff side denied the

existence of Jyotsna Begum. PW-2 in her cross-examination

admitted that her son preferred a criminal revision before the

Hon’ble Guwahati High Court and the said criminal revision

petition as marked as Ext-A in this suit. It appears from the

contents of the said criminal revision petition and particularly in

Para No. 7 and 9 the existence of Jyotsna Begum is found. In the

Annexure-F of Ext-A i.e. the copy of order dated 07/05/2002 in

connection with case No. 34/2002 U/S. 144 Cr. P.C. and in

Annexure-F(1) i. e. sale deed the name of Jyotsna Begum is

mentioned, hence the challenge in respect of existence of Jyotsna

Begum cannot be accepted. If the plea of non-existence of the

Jyostna Begum is taken as true then the name of defendant No.1


is required to be struck of being the suit is instituted against a

person, who has no existence. The plaintiff side further pleaded

about the mental disability of Samsul Hussain. The evidence of

the plaintiff witnesses are found contradictory and the mental

disability of a person cannot be a hindrance to inherit the

property form his ancestor. The evidence of the plaintiff witnesses

and the pleadings of the plaintiff is not specific for determination

of the fact that when the Samsul Hussain married with Putlinisha,

when Putlinisha went to Dibrugarh after abandoning her husband

and when she got married with Sahadulla. Mere assertions of the

facts in the pleadings have no value unless substantiated by

evidence. The allegation of abandoning husband by Putlinisha and

her remarriage with Sahdulla is not the consideration and the

question only to be proved in this suit by the plaintiff side is that

the defendant No.1 is the daughter of the Samsul Hussain (since

deceased) vis a vis Samsul Hussain died during the life of his

father. The plaintiff side failed to bring reliable evidence in

support of both plea.

23. Ld. Counsel for the plaintiff side also placed reliance on

the decision of Hon’ble Supreme Court, in Vidhyadhar Vs.

Mankikrao and another, reported in AIR 1999 SC 1441. On

careful reading of the said decision it is found that in that suit the

one of the defendant failed to appear in the witness box to rebut

the evidence appeared against his plea. The relevant Para No.15

and 16 of the judgment is reproduced as under:

“15. It was defendant No. 1 who contended that the

sale deed, executed by defendant No. 2 in favour of the

plaintiff, was fictitious and the whole transaction was a

bogus transaction as only Rs. 500 were paid as sale

consideration to defendant No. 2. He further claimed that

payment of Rs. 4,500 to defendant No. 2 at his home before

the registration of the deed was wholly incorrect. This plea

was not supported by defendant No. 1 as he did not enter into

the witness box. He did not state the facts pleaded in the

written statement on oath in the Trial Court and avoided the


witness box so that he may not be cross examined. This, by

itself, is enough to reject the claim that the transaction of

sale between defendant No. 2 and the plaintiff was a bogus

transaction.

16. Where a party to the suit does not appear into the

witness box and states his own case on oath and does not

offer himself to be cross examined by the other side, a

presumption would arise that the case set up by him is not

correct as has been held in a series of decisions passed by

various High Courts and the Privy Council beginning from

the decision in Sardar Gurbakhsh Singh v. Gurdial Singh

and Anr. This was followed by the Lahore High Court in

Kirpa Singh v. Ajapal Singh and Ors and the Bombay High

Court in Martand Pandharinath Chaudhari v. Radhabai

Krishnarao Deshmukh: (1930)32BOMLR924. The Madhya

Pradesh High Court in Gulla Kharagjit Carpenter v.

Narsingh Nandkishire Rawat: AIR1970MP225 also followed

the Privy Council decision in Sardar Gurbakhsh Singh's

case (supra). The Allahabad High Court in Arjun Singh v.

Virender Nath and Anr: AIR1971All29 held that if a party

abstains from entering the witness box, it would give rise to

an inference adverse against him. Similarly, a Division

Bench of the Punjab & Haryana High Court in Bhagwan

Dass v. Bhishan Chand and ors, drew a presumption under

Section 114 of the Evidence Act against a party who did not

enter into the witness box.”

24. The aforesaid decision is based on the principle where

one of the defendants raised a plea and failed to prove it by way

of rebuttal evidence. It is true that in this case the Jyotsna Begum

not appeared in the witness box to face the cross-examination to

substantiate her plea that she is the daughter of Samsul Hussain.

But the rule of evidence prescribed that the burden lies on the

person who alleged the existence or non-existence of a fact. The

evidence of plaintiff witnesses is found akin to free firing about


the marital life of Samsul Hussain and existence of Jyostna Begum

and unless and until the plaintiff succeeded to discharge the

primary burden it cannot be shifted to the defendant to

substantiate their plea by way of rebuttal evidence. Ld. Counsel

for the defendant side also placed reliance on the decision of

Hon’ble Gauhati High Court, in Paramesh Sharma Vs. Islam

Ali and others, reported in 2000 (3) GLT 453, wherein the

presumption of possession and title on the basis of the entry of

revenue record has been discussed. The Para No. 6 of the said

decision is reproduced as under:

“6. Let us take up the first question of law

formulated in this case, the is, non-consideration of Exhibit-2,

3, 6, 6(1) to (14), Exhibit-2 is the certified copy of the

Jamabandi. Entry Cha shows that the name of Banshidhar was

mutated to this land by endorsement dated 24.11.1956 on the

strength of a regular mutation and it is mentioned there that

this is by way of sale. Exhibit-3 is the Chitha for the land and

that also shows that the name of Bangshidhar Sarma was

recorded there. Exhibit-4 is the patta for the land and that also

shows that the land stood in the name of Bangshidhar Sarma.

Exhibit-5 is another patta for the land. Exhibit 6(1) to 6(14) are

the land revenue paying receipts for the land. Exhibit-7 is the

order by which the mutation order was cancelled. That was

vide order dated 1.9.1998, that is, after about 30 years of the

order of the mutation. Section 40 of the Assam Land and

Revenue Regulation provides for record of rights. The

Settlement Officers has to frame for each estate a record of

right in the prescribed manner. The note appended to the

section shows that the record of rights is the Jamabandi based

on the Chitha and the Fieldmap. Entry is the record of rights

are to be founded on the basis of actual possession.

Undoubtedly at the time of settlement the Jamabandi is prepare

which records the name of the pattadar on the basis of

possession (see AIR 1967 gau 9 Abdul Hasen and Ors.,


appellants v. Haji Mahiuddin and Ors., respondents).

Section 4(1)(2) read with Section 53 of the Assam Land and

Revenue Regulation raises a presumption regarding possession

in favour of recorded pattadar unless rebutted (See 1952 Gau

34, Pratap Chandra Sarma v. Abannth Sarma). The learned

Judge in deciding the matter did not consider this aspect of the

matter and I find that non-consideration of these documents

with regard to presumption of possession and title is an error of

law. I hold that these documents raise a valid presumption in

favour of the plaintiff and that has not been rebutted by the

defendant and as such this will be deemed to be correct as

provided in the statute as indicated above.”

25. The materials on record found that the plaintiff failed

to substantiate the fact by reliable evidence that Jyotsna Begum

has no right to inherit any property from her father Samsul

Hussain or Jyostna Begum is not the daughter of the Samsul

Hussain. Being the position, we have no other option to decide

the issue No.5 in affirmative. In view of the above the issue No. 3

is decided against the plaintiff and issue No. 5 is decided in favour

of the defendants.

26. Issue No. 4: Whether the defendant No. 1 by

manipulating entered her name in the record of right vide

order dated 23/03/2004 in mutation case No.446/2003?

AND

Issue No. 6: Whether sale deed No. 1204 dated

18/10/2004 is void and illegal?

27. The issue No. 6 is the follow up action of issue No. 4

and accordingly both the issues are taken together. The plaintiff

side alleged that the defendant No. 1 by way of manipulating the

record of the right muted her name vide order dated 23/03/2004

in mutation case No. 446/03-04. It appears that the alleged

manipulation has been done in the Jamabandi by virtue of

Mutation case No. 446/03-04. During the course of argument Ld.


Counsel for the plaintiff submitted that being a pattadhar the

plaintiff was quite unknown to the mutation of name of defendant

No. 1 in the revenue record and no notice was given to the

plaintiff. It is further submitted by the Ld. Counsel for the plaintiff

that since the defendants stated in the written statement that the

mutation was legally done and with due following of the

procedure the burden lies on them to prove the fact that it was

done in accordance with law. Ld. Counsel for the plaintiff further

argued that to issue notice to the co-pattadhar is the mandate of

legal mutation and the defendants failed to prove the fact that

the notice was issued to the plaintiff before mutation of the name

of defendant No.1 in the revenue record. On the other hand the

defendant side submitted that it is alleged as manipulated or

illegal or fraud or collusive, as the case may be the initial burden

lies on the plaintiff to prove the fact. In order to arrive at a

conclusion of rival submission, this court find its necessary to

reproduce the illustration (b) as laid down in section 101 of the

Evidence Act. This is as follows:-

“(b) A desires a court to give judgment that he

is entitled to certain land in the possession of B, by

reason of facts, which he asserts, and which B denies, to

be true.

A must prove the existence of those facts.”

28. The mutation of records of right generally conducted

by the revenue authority and it is within layman knowledge that

no individual have any authority to manipulate the record of

revenue authorities. For the sake of argument, it can be said that

anybody at best supply some false information to the revenue

authority and on the basis of such information the revenue record

may be prepared. The allegation of collusion with the revenue

authority and the alleged manipulation asserted by the plaintiff

and hence the initial burden lies on the plaintiff. The decision of

issues No. 03 and 05 reveals that the plaintiff failed to prove her

title in respect of suit property and also failed to nullify the title of

defendant No. 1 in the suit property. No document or record of

mutation case No. 446/03-04 has been produced before the court


for examination by the court itself and the plaintiff also failed to

specify the facts as to how the manipulation was made. Moreover,

the mutation on the revenue record is certainly not the easy

process and usually done after compliance of the requirement. In

absence of such record this court finds it hard to accept the oral

evidence against the rule of preparation of a document by a

public authority and the same is not permissible under the law.

The regularity of performance of an official act is presumed to be

done in a common course of conduct as per illustration (e) of

section 114 of Indian Evidence Act. The evidence brought before

the court by the plaintiff is found insufficient to rebut the

presumption of law in respect of common performance of an

official act. In view of the above discussion and decisions of

earlier issues the non-ownership of the defendant No.1 over the

suit land, illegal mutation of the name defendant No.1 in the

revenue record is not proved and hence it is found that the

defendant No.1 has the authority to sale the land vide sale deed

No. 1204 of 18/10/2004. Hence both the issues are also decided

in favour of defendant and against the plaintiff.

29. Issue No. 1:- Whether the suit is maintainable in

law with fact?

30. The point of dispute started from the fact alleged in

this suit that the defendant No. 1 mutated her name in the

revenue record by way of manipulating the revenue record and

the same is illegal and void. The revenue record is always

prepared as per the provision of Assam Land Revenue Act, 1886.

Regulation 154 (1) (c) of The Assam Revenue Regulation 1886

barred the jurisdiction of the civil court in respect of the formation

of the record of rights or the preparation, signing or alteration of

any documents contained therein. The Regulation 154 (2) also

prescribed that in all the cases mentioned in clause (1),

sub-clause-(a) to (n), the jurisdiction rest with the revenue

authority only. The Regulation 147 also prescribed the name of

authorities before whom an appeal lies and the revenue board is

the final authority under the said regulation. The Regulation 148


also prescribed the period of limitation. As per the averments of

the plaint the plaintiff got the knowledge of such mutation on

23/09/2005 and without preferring appeal before the revenue

authority within the prescribed period of limitation i.e. within 60

days the plaintiff turned up to the civil court on 12/04/2006 by

way the institution of this suit. It is evident that the plaintiff for

the reason best known to her jumped to the civil court without

following the provisions of Assam Land and Revenue Regulation

Act, 1886. Hence it is found that the suit of the plaintiff is not

maintainable on that score alone. Ld. Counsel for the defendant

submitted that all the heirs of Najmul Hussain was not impleaded

in this suit and the suit is barred U/S. 34 of the specific relief Act,

1963 as the recovery of possession was not prayed for. Ld.

Counsel for the defendant side relied on the decisions of Hon’ble

Gauhati High Court, in Legal Heirs of Md. Badar Uddin

Ahmed and another Vs. Md. Sirajul Hoque Kahn, reported in

2013 (1) GLJ 316, wherein it was held that the legal

representative of a sharer is the necessary party in the suit in

respect of claim of entire share from a common ancestor and on

this sole ground the suit must be failed.

31. Ld. Counsel for the defendant side further relied on the

decision of Hon’ble Supreme Court, Union of India Vs.

Ibrahim Uddin and others, reported in 2012 (8) SCC 148,

wherein it was held that the suit seeking declaration of title

without seeking possession, when the plaintiff is not possession is

not maintainable. The Para No. 43 to 46 of the said judgment is

reproduced as hereunder:

“43. The Section provides that courts have

discretion as to declaration of status or right, however, it carves

out an exception that a court shall not make any such

declaration of status or right where the complainant, being able

to seek further relief than a mere declaration of title, omits to

do so.


44. In Ram Saran and Anr. v. Smt. Ganga Devi :

AIR 1972 SC 2685, this Court had categorically held that the

suit seeking for declaration of title of ownership but where

possession is not sought, is hit by the proviso of Section 34 of

Specific Relief Act, 1963 (hereinafter called 'Specific Relief

Act') and, thus, not maintainable.

45. In Vinay Krishna v. Keshav Chandra and

Anr. : AIR 1993 SC 957, this Court dealt with a similar issue

where the Plaintiff was not in exclusive possession of property

and had filed a suit seeking declaration of title of ownership.

Similar view has been reiterated observing that the suit was not

maintainable, if barred by the proviso to Section 34 of the

Specific Relief Act. (See also: Gian Kaur v. Raghubir Singh :

(2011) 4 SCC 567).

46. In view of above, the law becomes crystal clear that it

is not permissible to claim the relief of declaration without

seeking consequential relief. In the instant case, suit for

declaration of title of ownership had been filed though, the

Plaintiff/respondent No. 1 was admittedly not in possession of

the suit property. Thus, the suit was barred by the provision of

Section 34 of the Specific Relief Act and, therefore, ought to

have been dismissed solely on this ground. The High Court

though framed a substantial question on this point but for

unknown reasons did not consider it proper to decide the

same.”

32. Ld. Counsel for the defendant side further relied the

decision of Hon’ble Supreme Court, in Venkataraja and

others Vs. Vidyane Doureradjaperumal and others, reported

in 2013 (AIAR) Civil 555, wherein it was also held that mere

declaration without consequential relief is not maintainable. The

Para No. 17 and 18 of the said decision is reproduced as under:


“17. A mere declaratory decree remains

non-executable in most cases generally. However, there is no

prohibition upon a party from seeking an amendment in the

plaint to include the unsought relief, provided that it is saved by

limitation. However, it is obligatory on the part of the

Defendants to raise the issue at the earliest. (Vide: Parkash

Chand Khurana etc. v. Harnam Singh and Ors.: AIR 1973 SC

2065; and State of M.P. v. Mangilal Sharma : AIR 1998 SC

743).

In Muni Lal v. The Oriental Fire and General

Insurance Co. Ltd. and Anr. : AIR 1996 SC 642, this Court

dealt with declaratory decree, and observed that "mere

declaration without consequential relief does not provide the

needed relief in the suit; it would be for the Plaintiff to seek

both reliefs. The omission thereof mandates the court to refuse

the grant of declaratory relief."

In Shakuntla Devi v. Kamla and Ors: (2005) 5

SCC 390, this Court while dealing with the issue held:

...a declaratory decree simplicitor does not attain finality if it

has to be used for obtaining any future decree like possession.

In such cases, if suit for possession based on an earlier

declaratory decree is filed, it is open to the Defendant to

establish that the declaratory decree on which the suit is based

is not a lawful decree.

18. In view of the above, it is evident that the suit

filed by the Appellants/Plaintiffs was not maintainable, as they

did not claim consequential relief. The Respondent Nos. 3 and

10 being admittedly in possession of the suit property, the

Appellants/Plaintiffs had to necessarily claim the consequential

relief of possession of the property. Such a plea was taken by

the Respondents/Defendants while filing the written statement.

The Appellants/Plaintiffs did not make any attempt to amend

the plaint at this stage, or even at a later stage. The declaration

sought by the Appellants/Plaintiffs was not in the nature of a

relief. A worshipper may seek that a decree between the two


parties is not binding on the deity, as mere declaration can

protect the interest of the deity. The relief sought herein, was

for the benefit of the Appellants/Plaintiffs themselves.”

33. As discussed in the foregoing issues, it is found that

the brother of the plaintiff viz., Rafiqul Hussain (Since deceased)

leaving behind the heirs and successors and they are in

possession of the part and parcel of the land of the original owner

viz., Jamu Mia @ Jamu Guti. The admission of the PW-1 in cross

examination reveals that no settlement or partition took place in

between the plaintiff and the Rafiqul Hussain (Since deceased). It

is apparent that they have yet some sort of interest and

possession also in the total land left by Nazmul Hussain (Since

deceased). Further, in the Para No. 10 of the plaint it is

mentioned by the plaintiff that the defendants enjoying the fruits

of their fraud and the same shall not be allowed to be continued.

In the Para No. 11 of the plaint, it is also mentioned that the

defendants are required to be restrained from changing the status

of the suit land, raising any construction over the suit land and

from further acts which is prejudicial to the interest of the plaintiff.

The non-mention of restraining the defendants from entering into

the suit land by way of prohibitory injunction and mentioning the

prayer to restrain from changing the nature and feature of the

suit land and from raising any construction over the suit land

reflects in other words that the defendants entered into the suit

land and tried to change the status of the suit land and also tried

to raise construction over the suit land. The case of the plaintiff is

not that the defendant with the help of alleged forged deed trying

to dispossess the plaintiff. Be that the position, plaintiff ought not

to institute the suit as the sale of immovable property without

delivery of possession remained incomplete. Hence, it is apparent

that the plaintiff is not in possession of the suit land. The decision

of earlier issues reveals that the right of the plaintiff over the suit

land in any form or character is yet to be established and hence

her possession over the suit land without any right is out and out

an assumption only. The basis of right and title accrued over the


suit land of the plaintiff is doubtful and yet to be traced out. The

non-impleading of the heirs of Rafiqul Hussain (Since deceased),

the absence of prayer of recovery of possession and untraced title

of suit land of the plaintiff constrained me to hold that the suit is

not maintainable. This issue is also decided in negative and

against the plaintiff.

34. Issue No. 2. Whether the plaintiff has right to

sue?

35. Every person, irrespective of natural or artificial have

the right to sue, if his or her civil right of any extent has been

invaded. In the instant suit, the plaintiff alleged that by way of

wrong and manipulated entry in the revenue record her right over

the suit land has been infringed by the defendants. As discussed

and decided in the foregoing issues, it appears that the plaintiff

failed to prove the existence of her any right over the suit land.

Where the right which alleged as infringed is not in existence how

the right to sue be accrued on the plaintiff. Accordingly, this issue

also decided against the plaintiff.

36. Issue No. 7. Whether the plaintiff is entitled to a

decree as prayed for?

AND

Issue No. 8. To what other relief/reliefs the

parties are entitled to?

37. From the discussions and decisions made in issue No.

01 to 06, it appears that the plaintiff is not entitled to any relief in

this suit. Both the issues are decided accordingly.

CONCLUSION AND ORDER

38. In fine, it is concluded that the suit of the plaintiff is

dismissed with cost.

39. Let a decree may be prepared accordingly.


40. The Judgment is written, corrected, signed, sealed,

tagged with case record, pronounced and delivered in the open

court on this 30th day of November, 2013.

Munsiff No.1

Tinsukia.

APPENDIX

The Name of witnesses of plaintiffs side :-

PW-1. Smti.Mofiza Begumn.

PW-2. Hasina Begum.

PW-3. Mujibur Rahman.

The documents exhibited by the plaintiffs side :-

Exhibit-1/2. The certified copies of Jamabandi.

Exhibit-3. The revenue receipt.

Exhibit-4. The certified copy gift deed No. 540/1970.

The Name of witness of defendants side :-

DW-1. Md. Afroz Kahn.

The documents exhibited by the defendants side :-

Exhibit-A. Petition etc. of Criminal Revision No.41/2004.

Exhibit-B. Power of Attorney.

Exhibit-C. The copy of cadastral map.


Exhibit-D. The permission to transfer the land.

Exhibit-E/F. The permission of Tinsukia Development Authority.

Exhibit-G. The sale deed No. 1204/2004.

Exhibit-H. The Jamabandi and entry No.51.

Exhibit-I. The new patta No. 2135.

Exhibit-J. The Mutation certificate.

Exhibit-K. The cadastral map.

Exhibit-L/M. The permissions of construction.

Munsiff No.1 Tinsukia.

*****

Documents

HIGH COURT FORM NO. J(2) PRESENT - Tinsukia district · · 2017-06-16HIGH COURT FORM NO. J(2) HEADING OF JUDGMENT IN ORIGINAL SUIT ... R/o. Dhekiajuri, Behind Renuka Cinema Hall,