HIGH COURT OF TRIPURA

AGARTALA

RSA No.12 of 2018

1. Mati Ullah
son of late Ashad Ullah

2. Nazir Ullah
son of late Ashad Ullah

3. Som Ullah
son of late Ashad Ullah

4. Dana Ullah
son of late Ashad Ullah

5(a). Tera Miah

son of late Safi Ullah

5(b). Joynal Miah

son of late Safi Ullah

5(c). Haidar Miah

son of late Safi Ullah

5(d). Sundari Begam

daughter of late Safi Ullah, wife of Arjan Ali

6(a). Montor Ali

son of late Kudrat Ullah

6(b). Kalsuma Bibi

daughter of late Kudrat Ullah, wife of Arkan Ali

6(c). Rodban Bibi

daughter of late Kudrat Ullah, wife of Sunai Miah
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7. Raibun Bibi
daughter of late Ashad Ullah, wife of Abdul Subban

-the appellants No.1 to 7 are the residents of

Sakaibari, P.O.Sakaibari, P.S. Dharmanagar,
District- North Tripura

8. Saibun Bibi
daughter of late Ashad Ullah, wife of Siddeque Ali,
resident of Kanchanpur, Dasda, P.O. Dasda, P.S.
Kanchanpur, District - North Tripura.
……. Appellant (s)
Versus

Habib Ullah
son of late Sowab Ullah, resident of Sakaibari, P.O.-
Sakaibari, P.S. - Dharmanagar, District - North
Tripura.
…..Respondent(s)

For Appellant (s) : Mr. S. Lodh, Adv.

For Respondent (s) : Mr. R. Datta, Adv.
Date of hearing and : 03.05.2021
delivery of Judgment & Order
Yes No
Whether fit for reporting : √

HON’BLE MR. JUSTICE S. TALAPATRA

JUDGMENT & ORDER [ORAL]

Heard Mr. S. Lodh, learned counsel appearing for

the appellants as well as Mr. R. Datta, learned counsel

appearing for the respondent.

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[2] By means of this appeal filed under Section 100 of

the CPC, the appellants have challenged the judgment dated

17.01.2018 delivered in Title Appeal No.11 of 2017 by the

District Judge, North Tripura, Dharmanagar.

[3] The facts which are relevant for appreciating the

grounds of objection as raised in this appeal are that one

Ashad Ullah was the original owner of the suit property

pertaining to CS Plot No.4969/5617 [corresponding to RS Plot

No.6943] under RS Khatian No.2250/2 of Mouja-Baruakandi

along with other lands. The suit property measures at 0.37

acres being tilla class of land. Ashad Ullah, as claimed by the

plaintiffs, died in the year 1973 and Khatian was mutated in

the name of his 8 [eight] legal heirs including his deceased

sons, namely Safi Ulla and Kudrat Ullah. Kudrat Ullah left

4[four] legal heirs being plaintiffs No.6[a] to 6[c] and Prtima

Bibi who died without any issue. The plaintiffs are Sunni

Muslims. Thus, the plaintiffs claimed that being the legal heirs,

they became the owner of the suit property after death of

Ashad Ullah. In the year 2015 [sometime in October] the

defendant of the suit and his associates entered into he suit

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land by ignoring the protest raised by the plaintiffs. They

claimed to become the owner of the suit property by dint of

one order of mutation. On 21.01.2016 and on 02.05.2016, the

plaintiffs obtained certified copies of the order of mutation.

According to them, the gift deeds purportedly executed by

Ashad ullah were fraudulent created on the foundation that

Ashad Ullah died in the year 1973 i.e. after 2 years of

Bangladesh Liberation War which happened in 1971. In reality,

no such gift deed was ever executed by the predecessor of the

plaintiffs. It has been further submitted that the land demised

in the gift deed therefore, cannot be claimed by the defendant.

By means of the suit being Title Suit No.09 of 2016, the

plaintiffs urged for a decree of declaration by declaring the gift

deed dated 10.12.1979 as nullity and the order dated

18.08.2009 of the mutation proceeding being based on such

gift deed is liable to be set aside.

[4] The defendant-respondent by filing the written

statement has categorically stated that Ashad Ullah was the

lawful owner and allottee of the suit land/property along with

other lands. It has been pleaded in the written statement that

the defendant has been possessing the suit land by virtue of

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the registered gift deed No.1-5195 dated 17.12.1979 executed

by Ashad Ullah during his lifetime by constructing home

thereon and living there with his family members. The suit land

measuring 0.37 acres was mutated in the name of the

defendant in Khatian No.3738, out of total 0.40 acres of land

as demised in the gift deed pertaining to RS Plot No.6943

corresponding to CS Plot No.4969/5617(p) as is covered by the

said gift deed.

[5] On the basis of those rival pleadings, as many as

9[nine] issues were framed including whether the plaintiffs do

have right, title and interest over the suit land, whether the

registered gift deed No.1-5195 dated 17.12.1979 executed by

Ashad Ullah and the order of mutation dated 18.08.2009 in

Case No.0460/2009 are fraudulent, illegal, void and not

binding upon the plaintiffs and whether the plaintiffs’ name

have been wrongly recorded in Khatian No.2250/1,2 and

Whether the defendant had dispossessed the plaintiffs in the

month of October, 2015 etc.

[6] To prove their case, the plaintiffs and the defendant

had adduced witnesses and admitted few documents, such as

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the copies of computerized Khatian, the impugned order of the

mutation proceedings and the certified copy of the registered

gift deed No.1-5195 of 1979 [Exbt.9]. Even the defendant

adduced witnesses [DW-1 to DW-4] and admitted the

documentary evidence [Exbts.A to G] including the certified

copy of the registered gift deed No.1-5195 dated 17.12.1979

[Exbt.E].

[7] The trial court having appreciated the evidence has

returned the findings that there is no dispute regarding the

title of the original owner, namely Ashad Ullah over the suit

land as described in the first schedule of the plaint. This is also

not in dispute that the defendant had applied for mutation of

the suit land, measuring 0.40 acre on 05.06.2009 on the basis

of one registered gift deed No.1-5195 dated 17.12.1979 and

the defendant got mutation of the said land by the order dated

18.08.2009 but for the land measuring 0.37 acres. A new

Khatian being Khatian Non.3736[Exbt.5] has been opened in

the name of the defendant against the plot No.6943,

corresponding to the old plot No.4969/5617. So far the legality

of the gift deed is concerned, it has been held that the said gift

deed No.1-5195 [Exbt.E] contains the thumb impression of

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Ashad Ullah and it was executed in favour of the defendant

[Habib Mia] by transferring a land measuring 0.40 acres. It has

been observed by the trial court that the said gift deed has

been claimed to have been prepared after death of Ashad Ullah

and thus, it cannot be believed as Ashad Ullah was not alive at

the time of execution of the said gift deed. The plaintiffs could

not produce any document that Ashad Ullah died before the

date of execution of the said gift deed or other gift deeds.

Simply some oral testimonies through PWs-1 to 3 have been

placed in the evidence for showing that Ashad Ullah died in the

year 1973. On the contrary, the defendant has proved 2[two]

registered sale deeds being No.1-7016 of 1975 [Exbt.F] and

No.1-4910 dated 25.10.1978 [Exbt.G] which were executed by

Ashad Ullah. As the Exbts. F & G are the registered sale deeds

for more than 30 years, the presumption was taken that those

were genuine and thus, the trial court did not believe the story

of the plaintiffs that Ashad Ullah died in the year 1973.

Accordingly, the suit was dismissed. It has been further

observed that the gift deed executed in favour of the

defendant cannot be stated to be fraudulent or was

manufactured. As a result, the trial court did not find any

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irregularity in mutating the land as demised in the gift deed in

favour of the defendant. Thus, the issues in that respect were

decided against the plaintiffs. However, it has been held that

the suit was maintainable, filed within time but other issues

were negatived as foundation of the challenge against the gift

deed could not be proved.

[8] Being aggrieved by the said judgment of the trial

court dated 25.02.2017 [delivered in Title Suit No.9 of 2016],

the plaintiffs filed an appeal under Section 96 of the CPC, being

Title Appeal No.11 of 2017, in the court of the District Judge,

North Tripura, Dharmanagar. The said appeal was dismissed

by the impugned judgment by affirming the finding of the trial

court.

[9] The first appellate court has clearly observed that

the plea of the plaintiff-appellants that the deed was forged

and was not executed by Ashad Ullah cannot be accepted in

view of trustworthy documentary evidence [Exbts. F & G]. It

has been further observed that the existence of the registered

deeds executed much after 1973 and its reference to the other
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documents has established that Ashad Ullah was alive at the

time of execution of the gift deed.

[10] The present appeal has been filed against the said

appellate judgment dated 17.01.2018 and the said appeal was

admitted by the order dated 14.06.2018 on the following

substantial questions of law:

[i] Whether the learned Courts below have mis-interpreted,

misunderstood and mis-construed the gift deed bearing No.1-
5195 dated 17.12.1979 [Exbt.9, Exbt.D & Exbt.E] ?

[ii] Whether the findings of both the Courts below on Exbt.1,

Exbt.D & Exbt. E are perverse?

Any other substantial question of law will be considered at the

time of hearing.

[11] When this court has confronted Mr. Lodh, learned

counsel appearing for the appellants that how the substantial

questions of law are relevant in the face of the grounds of

challenge as raised by the plaintiff-appellants in their plaint. It

is unambiguously clear that the plea as raised in the case is

that the gift deed bearing No.1-5195 dated 17.12.1979,

[Exbt.9, Exbt.D and Exbt.E] was not executed by Ashad Ulla,

the original owner. But according to the plaintiff-appellants,

the said deeds are forged. Mr. Lodh, learned counsel has

submitted that the substantial questions of law ought to have

been-whether the evidence as laid, has been read perversely

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to hold that on 17.12.1979 Ashad Ullah was alive. The case of

the plaintiffs is that sometime in 1973 [no specific date has

been asserted] Ashad Ullah died and his Janaja was attended

by PWs-1 & 2. But Mr. Lodh, learned counsel has submitted

that two registered sale deeds bearing No.1-7016 [Exbt.F] and

No.1-4910 [Exbt.G] have been placed in the evidence and on

their basis, both the courts below inferred that on 17.12.1979

when the gift deed was executed, Ashad Ullah was alive. He

has been candidly admitted that no forensic evidence has laid

to show the imprints of the original owner as available in the

registered deeds are not genuine.

However, Mr. Datta, learned counsel appearing for

the respondent has strongly raised objection against the said

submission of Mr. Lodh, learned counsel appearing for that the

appellants that one of the attesting witnesses has submitted

that no such gift deed was executed on the date of as claimed.

But that witness did not deny signature on the gift deed.

According to him, the plaintiffs’ case is very definite. Ashad

Ullah did not give the suit land in favour of the defendant

inasmuch as Ashad Ullah died in the year 1973 whereas the

gift deed has been executed in the year 1979. Both the courts
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below disbelieved the evidence that two registered deeds were

executed by Ashad Ullah. Subsequently, the gift deed was

executed.

[12] Having appreciated the submission of the learned

counsel appearing for the parties, this court is of the view that

the concurrent finding of fact is not tainted by any perversity,

inasmuch as those findings are structured on solid foundation.

Even presumption as drawn suffers from no illegality.

Apparently, the story as implanted by the plaintiffs has not

been found believable by the fact-finding courts and as such,

this court will not disturb the concurrent finding of fact as

returned by the courts below. The substantial questions of law

thus fall flat, and in the result, this appeal stands dismissed.

Draw the decree accordingly and thereafter, send

down the LCRs.

JUDGE

Sujay