Afroz Jahan v Syed Najmul Hoda and others
Patna High Court
1 November 2013
Second Appeal No. 80 of 2001
The Judgment was delivered by : Mungeshwar Sahoo, J.
1. The plaintiff-appellant has filed this Second Appeal against the judgment and decree dated 19.01.2001 passed by the learned 7th Additional District Judge, Munger in Title Appeal No.19 of 1999/01 of 2000 whereby the learned lower appellate court allowed the appeal and reversed the judgment and decree of the trial court dated 17.09.1999 passed by the learned Subordinate Judge-VI, Munger in Title Suit No.240 of 1987.
2. The plaintiff-appellant filed the aforesaid suit for declaration of title and confirmation of possession and in the alternative for recovery of possession over the suit property appertaining to Tauzi No.461, Ward no.C No.13, Sheet No.20, Municipal Plot No.3448 alleging that Plot No.3448 (ka), (kha) and (gha) Holding No.437 total area 191 decimal was recorded in the name of Sk. Sultan Hassan and others in the Municipal Survey Khesra dated 10.07.1917 and the Zamindar was Babu Damodar Prasad. There was partition between Sk. Sultan Hassan, Sk. Munshi Mian and Sk. Rahmat Ali to the extent of 1/3rd each in the year 1922.
Ultimately the entire suit property came in possession of Sk. Munshi Mian, who orally gifted the property to his wife Bibi Rafiqan on 10 Ramjan 1932. After accepting the gift, she came in possession and on her death her two daughters Madina Khatoon and Zarina Khatoon came in possession. Madina Khatoon also died issueless and her share devolved upon her sister Zarina Khatoon and thereafter on her death the plaintiffs being the daughter and husband of Zarina Khatoon inherited the property and are in possession of the same. The defendant 2nd party having no right, title and interest transferred the suit property to defendant 1st party by registered sale deed dated 26.08.1985. The transferee did not acquire any right, title and interest nor he ever came in possession. For the first time in March, 1987 the plaintiff came to know about the aforesaid sale deed and obtained a certified copy thereof and filed the suit.
3. The defendant 1st party filed contesting written statement denying the entire case of the plaintiff. According to the defendant, the property belonged to one Murad Ali and the defendant 2nd party had purchased the property by registered sale deed dated 26.08.1985 from the heirs of said Murad Ali. Murad Ali executed dower debt with respect to the suit property on 24.05.1904 and transferred the same to his wife Mahidun Nisa.
4. The trial court decided all the issues in favour of the plaintiff recording the finding that the plaintiff inherited the property and came in possession of the entire property. Accordingly, the plaintiff’s suit was decreed. The defendant filed Title Appeal before the lower appellate court. The lower appellate court recorded the finding that the plaintiff failed to prove the origin of title to the suit property because the Municipal Survey Record is inadmissible in evidence and set aside the judgment of the trial court.
5. At the time of admission of the Second Appeal on 15.07.2004 the following substantial questions of law were formulated:-
(i) Whether municipal survey entry of the year 1917 has presumptive value to decide the title between the parties and can be looked into for the purpose of deciding title along with other evidence?
(ii) Whether the lower appellate court is right in setting aside the judgment of the trial court without reversing its findings and reasons?
(iii) And any other substantial question of law which may be considered necessary at the time of final hearing?
6. The learned counsel Mr. Najmul Hoda appearing on behalf of the appellant submitted that the lower appellate court has wrongly held that the Municipal Survey Record of Right of the year 1917 (Ext.9) is inadmissible in evidence which is contrary to the decision of the Hon’ble Supreme Court and this High Court in the decisions referred to before the lower appellate court which is mentioned in the judgment itself. According to the learned counsel, the admitted position is that in the Municipal Survey Record of Right i.e. in the survey of 1917 the names of three persons have been recorded and the plaintiff inherited the property but the lower appellate court disbelieved this case only on the ground that the Municipal Survey Record of Right has not been finally published although still it is not finally published and the suit land is still identified as Municipal Survey Plot No.3448. Moreover, the defendant no.1 himself has purchased this Municipal Survey Plot No.3448 by the registered sale deed of the year 1985.
The learned counsel further submitted that the evidences were adduced by the plaintiff in support of the fact that the other co-sharers relinquished their share by registered relinquishment deed in favour of the plaintiff and then the plaintiff came in possession of the property and after that there was some dispute between the co-sharers and the suit was filed with respect to the suit property which was disposed of by the trial court as well as the High Court. The judgments were produced which have been marked as Exts.7 and 7/A. These documents have been produced to show that since the Municipal Survey Khatiyan of the year 1917 which was recorded in the name of Sk. Sultan Hassan, Sk. Munshi Mian and Rahmat Ali, the plaintiffs are in possession and in fact the three brothers were the owners of the property. The lower appellate court disbelieved the case on wrong assumption and presumption relying on the deed of the year 1904 produced by the defendant marked as Ext.B/1 which is not related with the suit property. The C.S. Khatiyan (Ext.D) is also not related with the suit property. According to the learned counsel, the lower appellate court without meeting the reasonings of the trial court reversed the judgment of the trial court without recording any finding as to whether the C.S. Khatiyan (Ext.D) and the deed (Ext.B/1) of the year 1904 are with respect to the suit property.
7. The learned counsel further submitted that the defendant no.1 is claiming to have purchased the property for the first time in the year 1985 from the heirs of Murad Ali but the documents produced by the defendant no.1 do not relate to the suit property. There is no pleading even by the defendant that the property which was recorded in the name of Murad Ali in Cadastral Survey Khatiyan (Ext.D) is renumbered as Municipal Survey Plot No.3448 in Municipal Survey Khatiyan in the year 1917 and moreover only 3 katha and 2 dhoor is only shown in the name of Murad Ali in Ext.D, whereas Municipal Survey Plot No.3448 measures 191 decimals. No explanation has been given by the defendant no.1 regarding as to whether the property of Murad Ali has wrongly been recorded in the name of three aforesaid persons or how there is discrepancy in the area of Ext.D and area of Ext.9.
8. On these grounds, the learned counsel for the appellant submitted that the impugned judgment and decree of the lower appellate court be set aside after answering the substantial questions of law in favour of the appellant and the judgment of the trial court be restored.
9. On the other hand, learned counsel Mr. Durgesh Kumar Singh appearing on behalf of the respondent no.1 submitted that the lower appellate court has rightly held that Ext.9, the Municipal Survey Khatiyan of the year 1917, is inadmissible in evidence because it is not final publication. If it is inadmissible then there is no document of title of the plaintiff. The subsequent document either Ext.5 or Ext.7/A is with respect to Municipal Survey Plot No.3448. The entry in the Municipal Survey Khatiyan cannot be said to be conclusive proof of title. The property in fact was the property of Murad Ali but it was wrongly recorded in the name of three brothers in the Municipal Survey Record of Right but they never came in possession of the property otherwise the plaintiff would have produced the documents of possession and the return filed by the ex- landlord at the time of vesting of Zamindari.
The defendant-respondent no.1 after purchase came in possession of the property and his name has also been mutated and is paying tax to the municipality against the grant of rent receipts which have been produced by the defendant-respondent no.1. The judgment and decree of the trial court as well as the appellate court i.e. Ext.7 series are not between the plaintiff and the defendant-respondent no.1, therefore, the same is not binding on the defendant no.1. The learned lower appellate court considering all aspects of the matter has, therefore, set aside the judgment of the trial court because the trial court gave much emphasis on Ext.7 series. In view of the above facts, the substantial questions of law formulated at the time of admission be answered against the appellant and the appeal be dismissed with cost.
10. It is the specific case of the plaintiff that the suit plot being Municipal Survey Plot No.3448 measuring 191 decimal was recorded in the name of three persons, namely, Sk. Sultan Hassan, Sk. Munshi Mian and Rahmat Ali in Municipal Survey Khatiyan. This fact is not disputed by the defendant-respondent no.1. The only dispute raised by the defendant-respondent no.1 is that the property was recorded in the name of Murad Ali in Cadastral Survey Record of Right. Ext.D has been produced. The area of the land in Ext.D is only 3 katha 2 dhoor. There is no pleading of the defendant-respondent no.1 that this property of Ext.D has been wrongly recorded in the name of the aforesaid three persons and this land is included in Municipal Survey Khatiyan (Ext.9). The lower appellate court nowhere recorded any finding regarding as to whether the property recorded in Ext.D is the same property comprised in Municipal Survey Plot No.3448. The defendant-respondent no.1 further produced Ext.B/1, the so-called deed executed by Murad Ali in favour of his heirs but the property mentioned in Ext.B/1 do not relate to the suit property. The boundary mentioned therein do not tally with the boundary mentioned in the present suit. The lower appellate court also observed that by this Ext.B/1 a house was gifted in that locality by Murad Ali. Can it be said that because in that locality Murad Ali had property which he gifted to his heirs, he is the owner of Municipal Survey Plot No.3448? The lower appellate court has not recorded the finding that this deed also is with respect to the suit plot no.3448.
11. The only defence of the defendant-respondent no.1 is that the property was recorded in the name of Murad Ali in Ext.D and he gave it to his heirs by Ext.B/1 in 1904 and he purchased the property by registered sale deed in the year 1985. Now if Ext.D and Ext.B/1 do not relate to the suit property i.e. Municipal Survey Plot No.3448, how the defendant-respondent no.1 purchased Municipal Survey Plot No.3448 from the heirs of Murad Ali because as stated above neither there is any pleading nor there is any finding recorded by the lower appellate court that Ext.D and Ext.B/1 relate to the Municipal Survey Plot No.3448.
12. It may be mentioned here that it is the case of the plaintiff that the other co-sharers have relinquished their 1/3rd share in Municipal Survey Plot No.3448 in favour of Sk. Munshi Mian. Ext.5 has been produced by the plaintiff in support of his case. The heirs of Rahmat Ali disputed subsequently, therefore, the suit was filed giving rise to Title Appeal No.41 of 1966/03 of 1967, the judgment of which is Ext.7 and the judgment of the High Court in Second Appeal No.608 of 1968 has been marked as Ext.7/A. These documents produced by the plaintiff in support of the case that he was in possession of the suit plot no.3448.
13. From perusal of the trial court judgment, it further appears that municipal tax was also paid on 26.07.1934 in the name of Bibi Rafiqan. The trial court found that the defendant no.1 also produced the rent receipts but all the rent receipts, the certified copy of Register-II (Ext.F), and order sheet of Mutation Case (Ext.G), all are with respect to the suit property but only after the sale deed obtained by the defendant-respondent no.1 in the year 1985.
14. From perusal of the lower appellate court judgment, it appears that the lower appellate court although referred the judgment of the Patna High Court in the case of Murli Prasad Gupta Vs. Sheo Kishore Narain and others reported in A.I.R. (37) 1950 Patna 432ย 1950 Indlaw PAT 654ย wherein it has been held that the survey entry prepared under the Survey Act which is not finally published is not conclusive proof of right but the lower appellate court held that the Municipal Survey Khatiyan is inadmissible in evidence because it is not finally published. No doubt, it is settled principles of law that the entry in the Municipal Survey Record of Right is not conclusive proof of title but in the present case the specific case of the plaintiff is that the property was acquired by three persons and names were recorded in Municipal Survey Khatiyan in the year 1917 and thereafter they are continuing in possession and in support of that the documents were produced.
15. The cumulative effect of the above documents cannot be discarded only on the ground that the title documents have not been produced. It may be mentioned here that it is the case of the plaintiff that the property was acquired prior to 1918-1920 and moreover, there is no contrary evidence produced by the defendant- respondent no.1. One case was pleased by the plaintiff that it is the plaintiff’s property acquired by three persons who were recorded with respect to the Municipal Survey Plot No.3448 in the year 1917. The other case of the defendant-respondent no.1 is that the property belonged to Murad Ali. The plaintiff produced the documentary evidences in support of his case since from 1917. On the other hand, the defendant-respondent no.1 failed to prove any relation of Murad Ali with respect to the suit property.
16. In my opinion, therefore, the Municipal Survey Khatiyan (Ext.9), the subsequent relinquishment by the two co-sharers in favour of Sk. Munshi Mian, the rent receipt paid by the plaintiff’s ancestor to the municipality in the year 1934 and the oral evidences discussed by the trial court clearly prove the case of the plaintiff. The judgments and decree of the lower appellate court and the second appellate court, Ext.7 and Ext.7/A, no doubt are not between the plaintiff and the defendant-respondent no.1 but they are with respect to the suit property till the year 1966. There is no denial that Ext.7 and Ext.7/A are not with respect to the suit property. As stated above, the defendant-respondent no.1 never pleaded that the names of three persons were wrongly recorded in the Municipal Survey Khatiyan in the year 1917. No steps were taken.
The defendant-respondent no.1 or his vendors never challenged the judgments and decree passed by the lower appellate court as well as by the High Court with respect to the suit property in Ext.7 and Ext.7/A and kept mum. Considering all these aspects of the matter, the trial court has decreed the plaintiff’s suit but the lower appellate court without assigning or explaining of these reasonings of the trial court and without recording any finding regarding the relation of the land in C.S. Khatiyan (Ext.D) and the deed (Ext.B/1) with respect to the suit property, set aside the judgment of the trial court. In view of my above discussion, the substantial questions of law are answered in favour of the appellant and against the respondents.
17. Accordingly, this Second Appeal is allowed and the impugned judgment and decree of the lower appellate court is set aside. The judgment and decree of the trial court is restored. There shall be no order as to costs.
Appeal allowed
