REVIEW PETITION None on 25 November 1982

Arguments

GAHC010207362004

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : RSA 194/2004

1:AMANAT HUSSAIN AND ANR

VERSUS

1:SAHIDA BEGUM AND ORS

Advocate for the Petitioner : MS.M CHOUDHURY Advocate for the Respondent : MR.B K GOSWAMI

B E F O R E

HON’BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 07-01-2020

JUDGMENT & ORDER (ORAL)

Heard Mr. BD Deka, learned counsel for the appellants and Mr. AD Choudhury, learned counselfor the respondent.

2. The respondent herein as plaintiff had instituted the Title Suit 10/1994 with the followingprayers:- “(a) For a declaration that the plaintiff has acquired right and title to the suit landdescribed in the schedule A & B; (b) For a declaration that the plaintiff has/had possession over the suit land prior toher dispossession by the defendants on 7.2.94;

(c) For khas possession of the suit land of Schedule-B by evicting the defendants,their agents, workmen, servants, women etc from the suit land and also by removingand demolishing all structures and houses therefrom;

(c) (i) For a decree for mesne-profits at the rate of Rs.1000.00 (one thousand) permonth with effect from 1-3-94 with interest @ Rs.15% per annum to be recoveredfrom the defendants jointly and severally for which the plaintiff shall pay proper courtfees on the decreetal amount/amounts at the time of execution of the decree; (d) For injunction restraining the defendants from disposing of the suit land by saleor gift or lease or mortgage and also from raising further houses, structures etc. eitherof permanent or temporary nature on the suit land or on any part of it; (e) For costs of the suit and other relief or reliefs to which the plaintiff is entitled tounder law and equity.”

3. According to the respondent/plaintiff they had purchased a land measuring 1K-12L in the years1982 and 1984 by two registered Sale Deeds bearing numbers 4398 dated 25.11.1982 and 1965dated 19.03.1984. It is stated that the two Sale Deeds were executed on behalf of the then minorsnamely Amanat Hussain, Adalat Hussain and Ebadat Hussain all being sons of late Abdul Jabbar, whoare also arrayed as the defendants No.2, 3 and 4 respectively. Having so purchased, theplaintiff/respondent was delivered the khas possession of the land and they have been enjoying theland without any interference. The suit was instituted on the basis of a cause of action, which aroseon 07.02.1994 in which the defendants/appellants were said to have trespassed into the purchasedland and raised two temporary sheds. In the circumstance, a declaration was sought for that theplaintiff/respondent has acquired a right, title and interest over the suit land, along with the otherprayers.

4. The plaintiff/respondent claimed their right, title and interest over the suit land on the basis ofthe two aforementioned registered Sale Deeds. In paragraph-9 of the written statement of theappellants/defendants, amongst others, a stand was taken that at the time when the aforementionedtwo Sale Deeds were executed, the defendants No.1, 3, 4 and 5 were minors. The defendants on theother hand instituted Title Suit 75/1994 claiming for a declaration that the two registered Sale Deedsof 1982 and 1984 are unsustainable in law.

5. Both the Title Suits were analogously decided and by the common judgment dated 23.12.2002,the Title Suit 10/1994 of the present respondent stood dismissed, whereas the Title Suit 75/1994 ofthe present appellants was allowed. Being aggrieved, the respondent preferred Title Appeal 04/2004in the Court of the learned Civil Judge, Senior Division, Goalpara against the judgment in Title Suit10/1994 and Title Apepal 03/2004 against the judgment in Title Suit 75/1994. By the commonjudgment dated 28.05.2004, the judgment of the learned trial Court stood reversed. In respect of Title

Suit 75/1994 preferred by the present appellants, the learned appellate Court dismissed the suit byarriving at a conclusion that under Article 60 of the Limitation Act, 1963, the suit preferred by theappellants against the two Registered Sale Deeds was time barred. In respect of Title Suit 10/1994,the learned appellate Court reversed the judgment of the trial Court and declared right, title andinterest of the respondent/plaintiff based upon the two registered Sale Deeds of 1982 and 1984 aswell as provided for the recovery of possession.

6. Being aggrieved by the two judgments of the learned appellate Court in TA 04/2004 and TA03/2004, the RSA 193/2004 was preferred against the judgment rendered in TA 03/2004 and RSA194/2004 in respect of the judgment rendered in TA 04/2004. By an earlier common judgment of thisCourt dated 29.07.2015 in RSA 193/2004 and RSA 194/2004, both the appeals stood dismissed andthe judgments of the learned appellate Court were upheld. Against the part of the judgment dated29.07.2015 in RSA 194/2004, a review petition being Review Petition No.44/2017 was preferred by theappellants. By the judgment dated 14.09.2018 in Review Petition 44/2017, the common judgmentdated 29.07.2015 stood modified to the extent that in spite of the dismissal of the TS 75/1994claiming for cancellation of the two Registered Sale Deeds of 1982 and 1984, the appellants hereinwould be at liberty to take any such stand that may be available to them against the two registeredSale Deeds as defendants in Title Suit No.10/1994. In other words, the plaintiff in Title Suit 10/1994would have to prove their case on their own merit.

7. As a result of the judgment dated 14.09.2018 in Review Petition 44/207, the RSA 194/2004 hascome up for its fresh consideration.

8. Heard the learned counsel for the parties.

9. Without going into the details of the rival contentions being raised by the parties, it is taken noteof that Title Suit 10/1994, which resulted in RSA 194/2004 is for a declaration of right, title andinterest of the respondent/plaintiff in respect of the land purchased by them through the tworegistered Sale Deeds of 1982 and 1984.

10. Fundamentally in order to claim a declaration of right, title and interest over any plot of landbased upon a registered Sale Deed, it would be a requirement of the plaintiff concerned to firstlyprove the registration and existence of the Sale Deed, by which the land in question was purchased.Ordinarily, without there being any further issue, if the plaintiff establishes the execution of therespective Sale Deeds and proves its existence, would be sufficient for a declaration in their favour asregards the right, title and interest over the land involved in the registered Sale Deeds.

11. But when the land purchased in the registered Sale Deeds also involves a question of law whether under the relevant law such sale would be permissible or such sale would be a valid sale,there would also be a further requirement for the plaintiff to prove before the Court that the sale ofthe land incorporated in the registered Sale Deeds were a valid and acceptable under the law.

12. In the instant case, through the evidence on record, the plaintiff in Title Suit 10/1994 had provedto the satisfaction of the Court that the two respective registered Sale Deeds were executed and theyare in existence. But as the defendants No.2 and 3 in their written statement had taken a definite pleathat when the two registered Sale Deeds were executed, they were minors and under the principle ofMohammadan law by which the parties are governed, a sale of land of the minors are regulated bythe relevant provisions of law, we are of the view that apart from proving the registration andexecution of the two respective Sale Deeds, a further requirement would also be there to establishthat the respective sales incorporated in the two Sale Deeds were also permissible under the law or inother words that the two sales were a valid sale under the relevant provisions of law.

13. As the subsequent question as to whether the sale incorporated in the two registered Sale Deedswere a valid sale or that they were permissible under the relevant provisions of the law governing theparties were not gone into by the learned trial Court as well as by the learned appellate Court, we areof the view that an appropriate adjudication for a declaration of the right, title and interest of theplaintiff over the suit land cannot be made without adjudicating the said question.

14. For the aforementioned reason, we are of the view that the matter requires to be remandedback to the trial Court for a proper adjudication on the question whether the sale of the landincorporated in the two registered Sale Deeds bearing numbers 4398 dated 25.11.1982 and 1965dated 19.03.1984 were otherwise permissible and valid under the law, which governs the respectiveparties. It is clarified that if the total land purchased by the plaintiff was beyond the respective sharesof the then minors, such land, which would be beyond the shares of the minors would not begoverned by the requirement of this order and for the purpose the learned trial Court shall determinethe respective shares of the minors.

The appeal stands allowed to the extent indicated above.

JUDGE