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Gauhati High Court · body

1990 DIGILAW 235 (GAU)

Bhangalu Sau v. Boloram Baruah

1990-11-01

S.N.PHUKAN

body1990
This second appeal is by the defendant. Facts are as follows :- The plaintiff claims to be absolute owner and possessor of the suit land. According to the plaintiff, defendant who is a ploughman cultivated the suit land under him for about two years on wages basis and thereafter plaintiff himself occupied the said land and cultivating the same through his ploughmen. In the re settlement operation in the year 1959-64, a kutcha khatian was issued in the name of the defendant which was surrendered by the defendant. After coming into force of the Assam (Temporarily Settled Areas) Tenancy Act, 1971, for short, 'the Act', the defendant in collusion with the local Revenue Officer obtained a draft khatian by making false and fraudulent allegations though he had no possession of the suit land. Defendant also filed a case under section 145 Cr. P. C. wherein the learned criminal Court rejected the prayer of the defendant that he was in possession of the land. Plaintiff filed objection to the kutcha khatian which was accepted by the Assistant Settlement Officer by rejecting the private khatian. An appeal was preferred before the learned Settlement Officer, Kamrup who set a side the order of the Assistant Settlement Officer. According to the plaintiff this order is bad in law as it was passed in absence of his counsel and without taking fresh evidence. The appeal by the plaintiff was rejected by the Director of Land Records, Assam. Hence, the present suit. In the suit, the plaintiff has prayed for a declaration, inter alia, that defendant is not a tenant under him in respect of the suit land and also for confirmation of possession. It has also been prayed for a decree for sending a precept to the revenue authority to correct the revenue records. 2. The suit was contested by the defendant and according to him he is a tenant in respect of the suit land long before 1959 and accordingly khatian was granted. Defendant has further pleaded that he has got right of occupancy over the land in view of the provisions of the Act. According to the defendant civil Court has no jurisdiction to question the record-of-right of a tenant. 3. Defendant has further pleaded that he has got right of occupancy over the land in view of the provisions of the Act. According to the defendant civil Court has no jurisdiction to question the record-of-right of a tenant. 3. The learned trial Court, namely, Sadar Munsiff, Gauhati by order dated 26.6.79 passed in this suit being Title Suit No. 32 of 1978 relying on the provisions of the section 66 of the Act held that civil Court has no jurisdiction to entertain this suit. This order was set aside by the learned Assistant District Judge No. 1 at Gauhati in Title Appeal No. 25 of 1979 by the impugned judgment dated 18.12 81. The learned lower appellate Court held that the present suit is basically for determination of the relationship of the landlord and tenant and as such section 66 of the Act is not applicable. 4. I have heard Mr. Bhuyan, learned counsel for the appellant and Mr. Sarma, learned counsel for the respondents. Mr. Bhuyan has placed reliance on a decision of this Court in Second Appeal No. 35 of 1979 which was disposed of on 5.3.87. On the other hand Mr. Sarma has urged that this is a dispute between the landlord and tenant and in view of section 68 of the Act, a civil Court has jurisdiction. 5. Sections 58 (5), 66 and 68 of the Act which are relevant for the present purpose are quoted below :- "58 (5). Every entry in a record-of rights finally published shall be conclusive evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect. ! 66. Matters exempted from cognizance of Civil Court- Except where otherwise expressly provided for in this Act or the Rules made thereunder, no Civil Court shall exercise jurisdi­ction in any of the following matters, - (a) Claims to enhancement, reduction or alteration of rent of holdings ; (b) Claims to deposit rent ; (c) Preparation of record-of-rights under Chapter X and preparation, signing, or alteration of any document contained therein ; (d) Maintenance of record-of-rights. 68. Jurisdiction of Civil Court-Except as provided in Section 66 and 67 the Civil Court shall have jurisdiction in all suits between landlord and tenant as such. 6. This matter came up for consideration before this Court in Mustt. 68. Jurisdiction of Civil Court-Except as provided in Section 66 and 67 the Civil Court shall have jurisdiction in all suits between landlord and tenant as such. 6. This matter came up for consideration before this Court in Mustt. Sunaban Bewa & others vs. Sri Manehab Ali Sekh, 1990 GHC 99 : 1990 (1) GLJ NOC 4 and it was held that the jurisdiction of the civil Court is barred by section 66 of the Act in respect of preparation of record-of-rights and preparation, signing, or altera­tion of any documents therein. This Court further held that there may be cases between tie landlord and tenant relating to eviction of a tenant, wherein the entries made in the record-of-rights may be challenged and such a challenge would be entertainable by "a civil Court though the burden of proving that the entry is incorrect shall lie on the party so asserting. It was further held relying on the decision of this Court in Nur Islam & others vs. Troloikhya Nath Hazarika, (1989) 1 G.L.R. 187(1989 (1) GLJ 86) that the question of relationship between the landlord and tenant, can be decided by civil Court and not barred under section 65 of the Act. While coming to the above conclusion, this Court also considered the decision of this Court in Second Appeal No. 35 of 1979 on which reliance has been placed by Mr. Bhuyan. 7. I may reiterate that reading sections 58(5), 66 and 68, the intention of the legislature is clear that civil Court shall not entertain inter alia, in preparation of record-of-rights under Chapter X of the Act and preparation, signing, or alteration of any document contained therein, and maintenance of such record-of-rights. Every entries in record-of-rights finally published shall be a conclusive evidence of the matter referred to in such entry and shall be presumed to be correct unless it is proved by evidence to be incorrect. The burden of proving that entry is incorrect shall be on the person so asserting. The legislature has clearly laid down in section 68 of the Act that civil Court shall have jurisdiction in all suits between the landlord and tenant as such. 8. The burden of proving that entry is incorrect shall be on the person so asserting. The legislature has clearly laid down in section 68 of the Act that civil Court shall have jurisdiction in all suits between the landlord and tenant as such. 8. On going through the plaint including the prayer of the case in land, it is clear that plaintiff has denied the relationship of landlord and tenant, between him and defendant and has prayed for a decree that the defendant is not a tenant. Plaintiff has also prayed for confir­mation of his possession. Thus, this is a dispute between the landlord and tenant and accordingly under section 68 of the Act, the civil Court has jurisdiction and section 66 of the Act shall not apply to the present case. If the record-of-rights prepared under the Act is chall­enged by the plaintiff, the burden would be on him- to prove this fact. 9. In the plaint, plaintiff has prayed also for sending a precept to the revenue authority to correct the revenue records. As this is the question of preparation and maintenance of record-of-rights under Chapter X of the Act, civil Court has no jurisdiction to examine this point and send a precept as prayed for in view of the provisions contained in section 66 of the Act. I therefore, hold that this prayer, namely, prayer No. 4 in the plaint is not within the jurisdiction of the Court. Plaintiff shall amend the plaint accordingly. 10. In the result, the appeal is dismissed with the modification that civil Court shall not entertain prayer No. 4 of the plaint and plaintiff shall amend the plaint accordingly. Parties to bear their own costs.