Bodoi Mia and Another vs Raib Ali and Others

A.P. Singh, J.—The present second appeal u/s 100/101 of the Code of Civil Procedure, 1908 has been filed by the Plaintiffs/Appellants questioning the legality of concurrent judgments and decree passed by the Assistant District Judge No. 2, Nowgong in Title Suit No. 75 of 1978 and Sri D. Biswas, the then District Judge, Nowgong (now Hon''ble Mr. Justice D. Biswas) in Title Appeal No. 10 of 1987.

Vide order dated 9.1.92 this Court admitted the appeal on following substantial questions of law which was raised by the Appellants in the Memo of Appeal.

Whether the ground of estoppel would be available for raising the question of invalidity of Exhibits--''Kha'' (Deed of Relinquishment) in respect of annual patta land purporting to confer right, title and interest in the suit land in favour of Defendants/Respondents in spite of the statutory bar that the right in annual patta is neither heritable nor transferable?

Whether in view of such invalidity of transfer of the land which renders the transfer non est, all consequential orders passed by revenue authorities in favour of Defendants/Respondents on the basis of the said relinquishment deed would stand inoperative and unenforceable?

Sri B.K. Das, learned senior advocate who appeared on behalf of the Appellants in this appeal, however, did not chose to press any of the aforementioned grounds of the Memo of Appeal. He, however, raised a new ground to the following effect:

The judgment and decree of the Courts below are vitiated on account of absence of a finding that the Deed of Relinquishment also created title in favour of the Defendants/Respondents. For the reason that even if it was presumed that the Plaintiffs/Appellants had relinquished his title over the suit land by means of the aforesaid Deed of Relinquishment Ex. ''Kha'', then it would not confer title or right of possession over the suit land in favour of Defendants/Respondents without there being a specific intension expressed in that deed by the executant for transferring title in Defendants favour.

In support of his above plea, Sri Das argued that in absence of evidence to the effect that apart from relinquishing their title from the suit land Plaintiffs/Appellants also created title by way of transfer in favour of the Defendants/Respondents, no title on account of relinquishment of title of the Appellants could be deemed to have been created in favour of the Defendants/Respondents. The argument has been raised on the premise that there is nothing on the record to suggest that the deed of relinquishment actually created title in the land in favour of the Defendants/Respondents. For substantiating his argument Sri Das wanted to read the deed of relinquishment Ext. ''Kha''. The document, however, could not be found out from the records which has been made available to the Court. Sri Das accordingly prayed that hearing of the appeal may be deferred till relevant record in particular, the Ext. ''Kha'' is made available for perusal by the Court.

Though there may not be any difficulty in the adjournment of the case, if it is considered necessary in the circumstances of the case. I however, find in the present case that adjournment of the case for enabling the Court to pursue Ext. ''Kha'' the deed of relinquishment, for finding out as to whether the said deed of relinquishment contains the requisite clause is not at all necessary. In that respect, it is necessary to notify the observations of the trial Court which made while deciding Issue Nos. 3 and 6 at page 21 of the Paper Book. Observations are as follows:

Now the moot question is to see if the deed of relinquishment confers any title to the Defendants. The contention and intention of the parties as is revealed from the evidence on record clearly shows that the executant of the deed of relinquishment has the intention to transfer title in respect of the suit land to the predecessor-in-interest of the Defendants. In view of the above discussion I am declined to hold that even if the said deed of relinquishment cannot confer any legal right or interest over the suit property of the predecessor-in-interest of the Defendants but at the same time the Plaintiffs are also not entitled to question the title of the (Defendant) as he is estopped by the above document even though it is not specifically pleaded. Hence the Plaintiffs are legally estopped from questioning the right, title and interest of the successor of Md. Muzammal Ali, Md. Rayab Ali, and Mustt. Habai Bibi. The issues are, therefore, accordingly decided against the Plaintiffs in favour of the Defendants.

From the aforesaid observation of the trial Court, it would appear that the trial Court had dealt with both the aspects of the arguments advanced on behalf of the Appellants before it. The Plaintiffs-Appellants, did not challenge the findings recorded by the trial Court on the above question in their appeals either before the first appellate Court or in this Court. Hence, finding recorded by the trial Court on the question which is based on the reading of the deed of relinquishment cannot be questioned at the time of hearing. The second aspect of the case proceeds on the assumption that even if no title was created by the said deed of relinquishment in favour of the predecessor-in-interest of the Defendants by means of the said relinquishment deed, Plaintiffs/Appellants having themselves relinquished their title over the land in suit would be estopped by the rule of estoppels from questioning Defendants right over it. This aspect of the case was fully pressed on behalf of the Appellants before the lower appellate Court and the lower appellate Court too rejected it. Sri Das, however, has not dealt with this aspect of the case in his argument which he has advanced in support of the appeal. Therefore assuming the deed in question did not positively create title over the suit land in Defendants favour the question in this regard could be raised only by a person who has title over the land and not by Plaintiffs who admittedly have relinquished their title over it.

In the above view of the matter, I do not find any justification for allowing prayer for the adjournment to verify from Ext. ''Kha'' as to whether it created title over the land in suit in Defendants favour. I am of the opinion it is not at all necessary first on the ground that the finding recorded in that regard by the trial Court was never challenged by Appellants at any stage and secondly because the Appellants having relinquished their title over it cannot be allowed to plead the point. No Ors. point was argued. I find no merit in this appeal which is accordingly dismissed with costs.