N. Chaudhury, J.
1. The appellate judgment and decree dated 7.5.2003 passed by the learned District Judge, Cachar at Silchar in Title Appeal No. 8 of 2001 has been called in question in the present second appeal by the defendant. The learned trial court dismissed the suit holding that Exhibit-1, the document on title of which the suit of the plaintiffs is based, was not acted upon by the purchaser and father of the plaintiffs and consequently the defendant acquired title by way of Exhibits- 2 and 3 which are nothing but records of rights (Zamabandis)
2. The respondents herein as plaintiffs instituted Title Suit No. 58 of 1996 in the court of learned Assistant District Judge, Cachar at Silchar (as was designated at that time) against the sole defendant Mustt. Tamijan Bibi praying for a decree declaring their right, title and interest with respect to the suit land measuring 8 B 19 K 12 Ch. and also for confirmation of their possession as well as injunction. It was stated in the plaint that land measuring 8B 19 K 12 Ch. of Patta No. 252 of Mouza-chiripar Part-II was curved out of RS Patta No. 142 of the same Mouza having an area of 12 B 7K 10 Ch.
The second RS Patta No. 252 was issued in the name of Alim Uddin and his brother Abdul Goni. Abdul Goni died without any issue and thus Alim Uddin became the only land holder. He died leaving behind two sons, namely, Abdul Rahim and Mansur Ali and a daughter, Mustt. Meharbanu. Mansur Ali
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died unmarried and Meharbanu sold her share in the patta to Abdul Rahim by registered sale deed dated 10.10.1944 and handed over the possession. Abdul Rahim died leaving behind the present plaintiffs and another son Sumer Uddin who died issue less. While the present plaintiffs have been enjoying their ancestral property described in the schedule to the plaint, Tamijan Bibi the only daughter of Meherban Bibi started claiming title to the land forgetting that she did not inherit any property to the suit patta in view of the sale deed executed by her mother in favour of Abdul Rahim on 10.10.1944. Hence, plaintiffs were constraint to institute the suit praying for declaration of their right, title and interest and confirmation of possession on the basis of sale deed.3. On being summoned defendant appeared and submitted written statement and claimed that there was no sale of land by Meherban bibi at all and so share of Meherban Bibi devolved on the defendant Tamijan Bibi. The averments made in the plaint were flatly denied by the sole defendant.4. On the basis of the aforesaid pleadings of the parties, the learned trial court framed the following six issues and asked the parties to prove their respective case by adducing evidence :-(i) Have the plaintiffs any cause of action for the suit?(ii) Is the suit maintainable in its present form?(iii) Is the suit barred by estoppels, waiver and acquiescence?(iv) Is the suit bad for non-joinder of necessary parties?(v) Have the plaintiffs' right, title and interest over the suit land?(vi) To what relief, if any, the plaintiffs are entitled?5. Plaintiffs examined four witnesses and placed reliance on three documents. Exhibit-1 is the original sale deed dated 10.10.1944 and Exhibits-2 and 3 are Zamabandis of RS Patta No. 142 and second RS Patta No. 252. The defendant examined two witnesses but did not adduce any documentary evidence.6. Learned trial court after consideration of the evidence led by the parties arrived at the finding that Meherbanu did execute Exhibit-1 sale deed in favour of Abdul Rahim on 18.7.1944 and thereafter she died on 22.7.1944. The Sub-Registrar on being approached for registration of the deed under Section 35 of the Indian Registration Act, 1909 held enquiry and thereafter duly registered the document on 10.10.1944. The learned trial court arrived at the finding that Exhibit-1 was duly executed and registered by Meherbanu transferring her right, title and interest in favour of Abdul Rahim. But thereafter relying on Exhibits-2 and 3, two Zamabandis of RS Patta No. 142 and second RS Patta No. 252 to arrive at the finding that Tamijan Bibi having got her name mutated in the records of rights acquired valid right, title and interest of proportionate share of her deceased mother. The learned trial court further held that Exhibit-1 sale deed though validly and duly executed by Registrar but was not acted upon by the father of the plaintiffs and consequently Tamijan Bibi acquired title by way of issuance of patta. However, it is to be noted that defendant did not adduce any documentary evidence to prove any patta to show that the land was settled with her by the Government. The learned trial court accordingly held that the suit is barred by limitation and that it is bad for non-joinder of necessary parties and accordingly dismissed the suit by his judgment and decree dated 9.7.2001.7. As against the findings of the trial court that Exhibit-1 was duly and validly executed and registered by Meherbanu, defendant did not make any challenge before the first appellate court. On the other hand, plaintiffs filed Title Appeal No. 8 of 2001 before the learned District Judge, Cachar, Silchar challenging the dismissal of their suit. The learned first appellate court did neither frame points for determination under Order41, Rule31of the Code of Civil Procedure nor did it re-decided the issues but considered the judgment of the trial court in entirety. In the judgment and decree dated 7.5.2003, the learned first appellate court upheld the finding of the trial court that Exhibit-1 was duly and validly executed and registered by Meherbanu, the predecessor in interest of defendant Tamijan Bibi. The first appellate court further held that even if Tamijan Bibi remained in possession that would not result in rendering the suit barred by limitation as the suit is based on title. He further held that Exhibits- 2 and 3 are nothing but Zamabandis and so they being mere mutation entries, cannot confer title on the defendant. Consequently, upholding the finding of the trial court that there was a valid transfer of title by Meherbanu in favour of the predecessor of plaintiffs, the learned trial court decreed the suit holding that the defendant could not have acquired title merely by mutation entries in her favour. This judgment and decree dated 7.5.2003 has been called in question in the present second appeal.8. This court while admitting the second appeal on 29.9.2003 appears to have been confronted with the submission from the side of the learned counsel for the appellant that the Exhibit-1 sale deed itself was not validly executed or registered and there being no occasion on the part of this court to see that such finding of the trial court was not challenged by the defendant before the first appellate court, framed the following three substantial questions of law:-(i) Whether the mother-in-law of the deceased could act as representative of the deceased within the meaning of Section 35(1) of the Indian Registration act, 1908?(ii) Whether the impugned judgment and decree is legally valid in view of the settled principle of law that transfer of immovable property within the meaning of Section 54 of the Transfer of Property Act is complied without delivery of possession?(iii) Whether mere production of an ancient document Ext.1 can be presumed as genuine under Section 90 of the Evidence Act?9. I have heard Mr. N. Hoque, learned counsel for the appellant and Ms. R Choudhury, learned counsel for the respondents. I have perused the lower court records which does not include the exhibits.10. Mr. N. Hoque, learned counsel for the appellant submits that the learned trial court found Exhibits- 2 and 3 to be patta and accordingly arrived at the finding that the suit land was settled with Tamizan Bibi along with plaintiffs and so she was also held to be co-sharer of the land. Mr. N. Hoque in his usual fairness submits that Exhibit-1 has never been challenged to be forged or fabricated. He also admits that the finding of the learned trial court as to validity and legality of Exhibit-1 was not challenged by the defendant at the first appellate stage either by taking recourse to the provision of Order41, Rule22of the CPC or otherwise and thus the finding of the trial court as to validity of execution and registration of the Exhibit-1 sale deed attained finality. His only submission is that the learned trial court found Exhibits- 2 and 3 to be pattas and since none of these documents are available in the record there is nothing on record to hold the contrary.11. Per contra, Ms. R. Choudhury, learned counsel for the respondent would argue that although Exhibits- 2 and 3 are not available on record as the same were withdrawn by the plaintiffs by filing application in accordance with law before the first appellate court, yet from the deposition of PW-1, it is clear that Exhibits- 2 and 3 are nothing but Zamabandis of RS Patta No. 142 and second RS Patta No. 252 respectively. None of the witness has described these documents to be pattas and so such finding of the learned trial court not being based on any material whatsoever is vitiated by perversity. She further submits that once the learned trial court found that Exhibit-1 registered sale deed was duly executed and validly registered, in that event consequence of Section 47 of the Indian Registration Act automatically followed and so title was acquired by vendee of Exhibit-1. She further argued that it is an established law that mutation entries cannot confer any title on anyone. Having heard the learned counsel for the parties and on perusal of the material available on record, it appears that both the sides rely on common fact upto certain stage. Both the parties agree that Alim Uddin and Abdul Goni are brothers and Abdul Goni died issueless and so Alim Uddin became the sole land holder of the suit patta measuring 8 B 19 K 12 Ch. Both the parties admit that Alim Uddin died leaving behind two sons, namely, Abdul Rahim and Mansur Ali and a daughter, Mustt. Meharbanu. The parties also agree that Mansur Ali unmarried and that Abdul Rahim left behind two sons and a daughter. While one of his son Sumer Ali died unmarried his another son Md. Abdur Rahman and daughter Mustt. Jamila Khatun are the only surviving legal heirs and they are the plaintiffs in this case. On the other hand, Tamizan Bibi is the sole legal heir of Meherbanu. The parties, however, contradict each other only on the question as to execution of sale deed by Meherbanu. While plaintiffs urged that Meherbanu had executed sale deed dated 10.10.1944 (Exhibi-1) in favour of Abdur Rahim, this averment was denied in the written statement. The plaintiffs, therefore exhibited the documents in original and thereupon the trial court arrived at the finding that Exhibit-1 was duly executed by Meherbanu during her life time and it was subsequently registered on 10.10.1944 within the prescribed period and thus the sale deed conferred title on the vendee w.e.f. the date of execution under Section 47 of the Indian Registration Act. This finding of the learned trial court has not been challenged before the first appellate court and so it attained finality. The defendant also did not adduce any documentary evidence to show that there was any patta in her favour. Defendant solely relied on the documents adduced by plaintiffs. Defendant relied on Exhibit -2 and 3 which are nothing but Zamabandis as is disclosed in the deposition of PW-1. None of the witnesses has stated that Exhibits- 2 and 3 are pattas. If Exhibit-1 was duly and validly executed by a land holder in that event her right, title and interest would have been validly transferred. Under Section 9 of the Assam Land And Revenue Regulation, right of land holder is heritable and transferrable.This continues until and unless the patta is cancelled under Rule 26 of the Settlement rules under the Assam Land And Revenue Regulation by Commissioner after affording opportunity of hearing to the land holder. In the case in hand, no material whatsoever has been placed on record to show that original patta granted to Alim Uddin and his brother was subsequently cancelled by the competent authority. No pleading has been made in the written statement to that effect. That being the position, the title conferred on Alim Uddin and Abdul Goni devolved on their legal heirs in accordance with the provision of Section-9 of the Assam Land And Revenue Regulation. Such right is not only heritable but also transferrable. Such sale by by Meherbanu was also valid inasmuch as execution of sale deed has been found to be valid and lawful by the learned courts below. Having so found, there is no material on record to arrive at the finding that a fresh patta was issued in favour of Tamizan Bibi and other legal heirs, name of Tamizan Bibi and the plaintiffs appeared in Exhibits- 2 and 3 are by way of inheritance and not by way of direct settlement . The learned first appellate court has arrived at the finding that revenue authority was duty bound to enquire as to whether there was any transfer of title by any legal heir of the original land holder and the same not having been done, inclusion of the name of defendant in the records of right became possible. It is established law that mutation entries cannot confer title on anyone. If any reliance is necessary, one can take help from the case ofBalwant Singh v. Daulat Singh reported in (AIR 1997 SC 2719). The same view has been taken by this court in the case ofBipin Chandra Kalita v. Sarama Kalita reported in 2007 2 GLT 399.12. As it has already been observed that the learned trial court held Exhibit-1 to have been duly executed and legally registered and that the defendant did not challenge this finding by way of Order41, Rule22of the CPC or otherwise and so there was no occasion for the learned first appellate court to make any adjudication to that effect.Defendant, therefore, is not permitted to raise this issue for the first time at the second appellate stage. Once it is so held, the substantial question of law framed by his court at the time of admission of the second appeal cannot arise under the facts and circumstances of the case and accordingly these questions do not require to be decided. No other substantial question of law does arise in the present appeal and consequently, the second appeal is devoid of any merit. It is accordingly dismissed.13. No order as to cost. Interim order, if any, stands automatically vacated.14. Send down the records after framing of the decree.
"2016 (2) GauLT 537,"