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Form no. (J) 2

Heading of judgment in original suit

IN THE COURT OF CIVIL JUDGE (JR. DIVISION)

AT GUWAHATI

Present: Mrinal Newpane

26th day of September 2013

TITLE SUIT NO.298 OF 2008

Hazera Khatun and others

…Plaintiff
Versus

Abbas Ali and others

…Defendant

This suit/ case coming on for final hearing on 18TH Day of September 2013 in the
presence of –

Mr. S.K. Islam , Advocate for the plaintiff; and

Mrs. Rina Das, Advocate for the defendant,

Date of recording evidence

14-02-11, 12-12-11,11-04-12, 03-07-12,01-10-12

and having stood for consideration to this day, the court delivered the following
judgment-

JUDGMENT

The plaintiff has instituted this suit for the declaration of his right, title and
interest over the suit land and for partition of the legitimate share of the
plaintiffs’ in the suit land and for eviction of the defendant fro the land so
partitioned under the decree that may be passed against the defendant.

The brief facts leading to the institution of this suit as is revealed from the plaint
are:

That the plaintiff described a plot of land measuring 1Bigha 1 Katha 2 lessas
covered by Dag No- 576 under K. P. Patta No- 219 at village-Kalahbhanga in the
schedule A of the plaint. And another plot 5 Bighas, 4 Kathas, 11 Lessas covered
by dag no-577,579,580,625,700,832,812 and 814 under PP no-83 at village-
Kalabhanga in the schedule- B of the plaint. The plaintiff further described that
the plot of land measuring 1 Bigha, 1 Katha, 2 Lessas of schedule A and a plot of
land measuring 4 Kathas, 9 Lessas covered by Dag No- 577 under K. P. Patta
No- 83 which is a part of land in schedule B comprising a single plot of 2 Bighas,
11 Lessas in the schedule C.
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The plaintiff then stated that in the last settlement operation of 1958-65 the
Govt. settled the land in schedule A in favour of three(3) brothers namely Somer
Ali @ Saincha Seikh, Hasen Ali and Sekendar Ali. Later the other brother of the
pattadars namely Atar Ali obtained mutation in the revenue records on in
respect of the Schedule A land on 28-03-1982. These four (4) brothers had
other plots of land held jointly elsewhere and all of them were pleased to place
the land in schedule A under the joint title and possession of Hasen Ali and Atar
Ali under oral mutual family arrangement. Accordingly, the revenue mutation
has been effected in the name of the said Hasen Ali and Atar Ali in respect of
Schedule A land. The land described under the schedule B was settled by the
Govt. in favour of Somer Ali @ Saincha Seikh in the same settlement operation.
After the settlement operation the pattadar Somer Ali sold some plot of the land
under schedule B leaving the part of land under dag no-577 for his legal heirs.
But the legal heirs of the said Somer Ali placed the entire land measuring 4
Kathas, 9 lessas covered by dag no-577 under the joint title and possession of
Hasen Ali and Atar Ali. Thus the schedule C land measuring 2 Bighas 11 lessas
became the exclusive property of the said Hasen Ali and Atar Ali.

The plaintiff thereafter stated that the land described under Schedule C of
the plaint was shared by Atar Ali and Hasen Ali in equal shares placing the
eastern half measuring 1 Bigha 5.5 lessas under the exclusive title and
possession of the Hasen Ali.

The said Hasen Ali married 4 wives and the defendants are the sons and
daughters of the first wife, the plaintiffs are fourth wife herself and the sons and
daughter of her and the sons and the daughters from the third wife.

The plaintiff impleaded the second wife of Hasen and her two daughters as
proforma defendants. It has been stated that the proforma defendants took 2
bighas of land under dag no-340 under K.P. Patta no-18 at vill-Jakhlibil Pathar
from Hasen Ali and relinquished their claim in the suit land.

The said Hasen Ali died 18 years ago leaving the plaintiffs and defendants as
his legal heirs and were residing in the dwelling house left by Hasen Ali. The
plaintiff no-1,2,4 and 5 were residing in the dwelling house left by Hasen Ali
standing upon eastern part of the suit land and the plaintiff no-3 and 6 being
married daughters, were residing in their respective matrimonial home. That on
5-09-06 the defendants drove out the plaintiff no’s-2, 4 and 5 from the suit land
by force saying that they had obtained mutation in respect of the entire suit land
and as such the plaintiffs have no right, title and interest in the suit land.
However the plaintiff no-1 could resist the defendants from dispossession. The
plaintiff no-1 has right, title and interest in the suit land to the extent of 1/8th
standing at 13 lessas, as wife of late Hasen Ali. Thereafter there remains 4
kathas 12.5 lessas to be inherited by the remaining plaintiffs and the
defendants, wherein the plaintiff no-2,4 and 5 each has right, title and interest
to the extent of 2/16th standing at 11.5 lessas, the plaintiff no-3 and 6 has each
1/16th standing at 5.75 lessas. Thus in total the plaintiffs have right interest to
the extent of 2 Kathas 19 lessas of land out of the total land measuring 1 Bigha
11.5 lessas as described under schedule C(1). Alleging that from the conducts of
the defendants the plaintiffs apprehended that their right, title and interest over
the suit land would be in danger of deprivation, the plaintiffs brought the suit
praying for declaration of their right, title and interest to the extent of 2 Kathas
and 19 lessas of land and for partition and for eviction of the defendants from
the land after the decree of partition.
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The defendants appeared and contested the suit by filing written statement.
The defendants have admitted that the suit land originally belonged to Hasen
Ali. The defendants also admitted that the said Hasen Ali married four wives.
They further admitted that the plaintiff and the defendants are the heirs of the
said Hasen Ali. They however denied that the plaintiff no-1, 2, 4 and 5 were
residing in the dwelling house left by the said Hasen Ali on the suit land. The
defendants stated that except the suit land Hasen Ali had another plot of land
near the suit land as well as he had land at Jakhlibil Pathar. During the life time
of Hasen Ali he amicably partitioned his properties among his four wives
alongwith their children. In that partition the suit land fell in the share of the 1st
wife and her sons and daughters, the present defendants, the 3rd wife took 2
Bighas of land at Jakhlibil Pathar, and the 2nd and the 4th wife took their
respective shares, another plot of land near the suit dag and patta at vill-
Kalahbhanga. As per the amicable partition their names were mutated in the
revenue records and were enjoying their possession over their respective shares
of land since the life time of Hasen Ali. The further stated that they have been
possessing the suit land since last 55/60 years openly and peacefully. Under
these facts the defendant pleaded that the plaintiffs have no right, title and
interest over any part of the suit land and prayer for dismissal of the plaintffs’
suit with cost.

Upon perusal the pleadings and the documents submitted by the parties the
following issues are framed-

(1) Whether there is any cause of action for the suit?

(2) Whether the plaintiff has any right title and interest in the suit land to
the extent of 2 kathas 19 lessas?

(3) Whether the plaintiffs are entitled to the decree as prayed for?

(4) Whether the parties are entitled to any other relief/reliefs?

The plaintiff has examined as many as three witnesses in support of their case;
whereas the defendants examined only two witnesses in support of their case.

I have heard the learned counsels for both the parties.

DISCUSSION, DECISION AND REASONS FOR THE DECISION:

Now let us discuss the materials on record and try to arrive at a definite finding
as regards the issues in this suit.

(1) ISSUE NO.1; Whether there is any cause of action for the suit?

The case of the plaintiffs is that they have inherited the share of the suit
land from Hasen Ali and their right, title and interest has been clouded by the
action of the defendants. The defendants denied the plaintiffs’ title to their
share of land and dispossessed them, except plaintiff no-1, therefrom and
threatened to dispossess the plaintiff no-1. On the other hand the defendants
stated that they got their exclusive title over suit land in view of the partition
of land taken place during the lifetime of their predecessor in interest Hasen
Ali. Thus there exist a dispute between the parties which requires
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adjudication by this court and as such I hold that there is cause of action for
the suit. Accordingly I decide this issue in affirmative and against the
plaintiff.

ISSUE No-2. Whether the plaintiff has any right title and interest in the
suit land to the extent of 2 kathas 19 lessas?

From the admitted position of the parties I have no hesitation to hold that
both the parties are claiming their title from their single predecessor in
interest Hasen Ali. The plaintiffs through their evidence and admission of the
defendant could establish that the suit land measuring 1 Bigha 5.5 lessas
was under the exclusive title and possession of Hasen Ali. During the
pleadings as well as during the evidence of the parties it has further been
established that the plaintiff no-1 is the last of the four wives of Late Hasen
Ali, the plaintiff no-2, 4 and 5 are the sons of Late Hasen Ali and the plaintiff
no-3 and 6 are the daughters of the Late Hasen Ali and the defendants are
also sons and daughter of Late Hasen Ali. As such both the plaintiff and the
defendants have right title and interest over the suit land and as such
entitled to their respective share over the suit land unless contrary is proved.

Before discussion of the evidence in this respect let me discuss the law
relating to burden of proof in this aspect.

Section 102 of the Indian evidence Act states that the burden of proof in a
suit or proceeding lies on the person who would fail if no evidence at all were
given on either side.

Now in view of the admitted facts of the respective parties the burden lies
upon the defendants to prove the contrary. With this view in mind I have
carefully gone through the pleading of the defendants and the evidence
adduced on their behalf. The defendants stated in their written statement
that except the suit land Hasen Ali had another plot of land near the suit land
as well as he had land at Jakhlibil Pathar. That during the life time of Hasen
Ali he amicably partitioned his properties among his four wives along with
their children. In that partition the suit land fell in the share of the 1st wife
and her sons and daughters, the present defendants, the 3nd wife took 2
Bighas of land at Jakhlibil Pathar, and the 2nd and the third wife took in their
respective share another plot of land near the suit dag and patta at Vill-
Kalahbhanga. As per the amicable partition the defendants’ names were
mutated in the revenue records and were enjoying their possession over
their respective shares of land since the life time of Hasen Ali. The further
stated that they have been possessing the suit land since last 55/60 years
openly and peacefully. In the affidavit in lieu of Examination-in chief filed by
the defendant no-2 as DW-1, stated that after the death of Hasen Ali his four
wives alongwith their children amicably partitioned the landed properties of
Hasen Ali. And in the said amicable partition the suit land fell into the share
of 1st wife Hazera Khatun with her son and daughters, the defendants. The
3rd wife Afjan Nessa, took 2 Bighas of land at Vill- Jakhlibil Pathar from her
husband Hasen Ali and have relinquished her claim in the suit land forever.
The 2nd and the 4th wives took in their shares another plot of land near the
suit dag and patta at Vill- Kalahbhanga, from their husband Hasen Ali and
relinquished their claim in the suit land. And that as per the said amicable
partition the name of the defendants were mutated in the revenue records
and as such they became pattadar of the suit land without any objection
from the plaintiffs’ and the defendants has been in possession of the suit land
since 65/70 years. Md. Anser Ali, the DW-2 also stated the same in his
affidavit file before this court in lieu of the examination- in chief.
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The Dw-1 during his cross examination stated that the partition between
the plaintiffs and the defendants was not effected by any written document.
This witness made one contradictory statement stating that they have taken
their share of land after the death of Hasen Ali whereas they pleaded that the
partition was made during the life time of Hasen Ali. This witness further
admitted that the defendants are in possession of 1 Bighas of land and the
plaintiffs are also in possession of 1 Bighas of land but could not speify the
land possessed by the plaintiffs. This witness admitted that there is no
document showing that the plaintiffs have relinquished their share of the suit
land.

The Dw-2 has not been cross examined by the plaintiffs except on the
point of time of partition. This witness clearly stated that he does not know if
any partition has been made after the death of Hasen Ali. He knew that the
partition took place during the lifetime of late Hasen Ali.

Now so far as the evidence of these two witnesses examined on behalf of

the defendant is concerned both has contradicted in material particular i.e.
the time of partition. Further the defendant could not bring on record the
description of the land fallen in the share of the plaintiffs in the said amicable
partition nor could bring on record the details of the shares possessed by
each of the heirs of Late Hasen Ali and more particularly the plaintiffs share.

Defendants also exhibited three documents vide Ext-A, Ext-B and Ext-C
but those document does not help the defendants to substantiate that during
the life time or even after the death of the said Hasen Ali any partition of the
suit land was made.

Further the defendants’ cross- examined the plaintiffs’ witnesses at length

but I found nothing which inspires the confidence of this court to believe that
any partition of the land of Late Hasen Ali had taken place as alleged by the
defendants in the written statement. Further I am of the opinion that the fact
of partition if alleged by any party to establish their exclusive share over the
ancestral property to the exclusion of the other sharer’s the same must be
proved clearly by cogent evidence. However the defendant’s could not bring
such evidence on record and in such event the defendant can not be allowed
to take aid of the weakness of the plaintiffs to strengthen their pleas.

Thus the defendants failed to discharge their burden of establishing the

contrary by adducing evidence on their behalf.

Now the plaintiff has stated that the plaintiff no-1 has right, title and
interest in the suit land to the extent of 1/8th standing at 13 lessas, as wife of
late Hasen Ali. Thereafter there remains 4 Kathas 12.5 lessas to be inherited
by the remaining plaintiffs and the defendants, wherein the plaintiff no-2,4
and 5 each has right, title and interest to the extent of 2/16th standing at
11.5 lessas, the plaintiff no-3 and 6 has each 1/16th standing at 5.75 lessas.
Thus in total the plaintiffs have right interest to the extent of 2 Kathas 19
lessas of land out of the total land measuring 1 Bigha 11.5 lessas as
described under schedule C(1). Now on the failure of the defendant to
establish to the contrary, plaintiffs’ claim of right, title and interest over the
suit land remained intact. Thus, I am of the opinion that the plaintiffs have
right, title and interest over the 2 kathas 19 Lessas of land out of the land
described in schedule C(1) of the plaint.

Considering all these aspect I am satisfied that the balance of probability

lies in favour of the plaintiffs and as such I hold that the plaintiffs have
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proved that they have right, title and interest over 2 Kathas and 19 Lessas of
land out of the total suit land. Accordingly this issue is decided in affirmative
and in favour of the plaintiffs.

ISSUE NO-3:- Whether the plaintiffs are entitled to the decree as prayed
for?

In view of the finding on issue no-2 the plaintiffs have right, title and
interest over 2 Kathas and 19 Lessas of the suit land. Further the plaintiffs
stated in their plaint as well as in the affidavit filed by plaintiff no-5 as PW-1,
in lieu of his examination-in-chief that the defendants forcefully dispossessed
the plaintiffs on 05-09-2006 from the suit land. Thus the above evidence of
dispossessing the plaintiffs from the suit land on 05-09-2006 by the
defendants remains unchallenged rather the defendant themselves admitted
that they are in possession of the suit land over which the plaintiff has right,
title and interest. Further in AIR 1991 the Hon’ble Supreme Court held that
where the fact of dispossession has been specifically pleaded and the right,
title and interest is established Court need not to go into the ascertaining
whether the fact of dispossession has been proved or not. As such, I hold
that the defendants have illegally dispossessed the plaintiffs from their share
of the suit land. Accordingly this issue is decided in affirmative and in favour
of the plaintiffs.

(5) ISSUE NO-4:- Whether the parties are entitled to any other
relief/reliefs?

The act of the defendants as alleged and proved, is beyond the procedure
set by law and as such, plaintiffs are entitled for the reliefs as prayed for
particularly relief of declaration of their right, title and interest over 2 Kathas
and 19 Lessas of land out of the suit land. Further the plaintiffs are entitled
to a decree of partition of their share of land out of the total suit land and
further a decree for eviction of the defendants from their share of land so
partitioned.

In the result, the suit deserves to be decreed, which I do accordingly.

ORDER

In view of the discussions and decision made above the plaintiff could
prove that the balance of probability lies in favour of decreeing the suit and
hence the plaintiffs' suit is decreed on contest with cost with the following
reliefs,

a) Plaintiffs have right, title and interest over 2 Kathas 19 Lessas of land
out of the total suit land.

b) Plaintiffs are entitled to enforce partition of their share in the suit land
and eviction of the defendant from the land so partitioned.

Prepare a preliminary decree and send it to the Collector, Barpeta, for

partition. After receipt of partition papers from the Collector, Barpeta, the
final decree will prepared.
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Given under my hand and the seal of this court on this the 26th day of
September, 2013 at Guwahati.

Sd/-
Mrinal Newpane,
Munsiff No.2, Barpeta

APPENDIX

Plaintiffs’ witnesses

1. Md. Nizamuddin

2. Mantaz Ali

3. Nitul Talukdar

Defendants’ witnesses

1. Shorhab Ali

2. Anser Ali

Plaintiffs’ Exhibits:-

1. Certified copy of the Jamabandi of PP no-83

2. Certified copy of the Jamabandi of PP No-219

Defendants’ Exhibits:-

A. Certified Copy of the Jamabandi of PP no-83

B. Certified Copy of the Jamabandi of PP no-219
C. Certified Copy of the Chitha Book of Dag no 576 & 577