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1995 DIGILAW 151 (GAU)

Gokul Chandra Das v. Satish Chandra Das

1995-07-18

M.SHARMA

body1995
This appeal has been preferred by the appellants against the judgment and decree dated 3.12.86 decree signed on 8.1.87 passed by the Assistant District Judge, Barpeta in Title Appeal No.31 of 1985 setting aside the judgment and order dated 22.5.85 and decree dated 22.5.85 in Title Suit No. 15 of 1984 passed by Shri B. Barman, Munsiff No.2, Barpeta. 2. The opposite party as plaintiff filed the Title Suit No. 15 of 1994 for declaration of title and recovery of khas possession contending in the plaint that he got settlement of the land measuring about 7 bighas and had been dispossessed by the defendant (appellant) on 4.3.83 and took away mustard seeds etc grown by him and therefore filed the suit as stated above. The appellants/defendants contested the suit, denying all along the title of the plaintiff opposite party as well as his possession and took the plea of adverse possession over the land in their written statement as well as in their evidence. 3. The trial Court dismissed the suit and on appeal the lower appellate Court decreed the suit by reversing the judgment and decree of the trial Court. Hence this appeal preferred by the defendant. 4. As many as seven issues were framed and for the decision of this Court issue No.4 is material which has been quoted as below : “Whether the plaintiff has his right title interest and possession over the suit land ?” 5. As stated above plaintiff's suit was for declaration of title and recovery of possession and defendant denied plaintiffs title over the suit land taking the plea of adverse possession. In that view of the matter as the plaintiffs title is in dispute Court has to give its finding on the question of title. 6. Admittedly opposite party/plaintiffs case for recovery of possession on the basis of title which he attempted to establish in plaint that 'many years back' as a landless person he got allotment and possession of the suit land from the Government by paying revenue regularly possessing the land by cultivating or by his own people. Admittedly no specific date of allotment and possession has been given nor any allotment order has been filed and the chitha (Ext 1) produced by him has not shown any date of allotment. Regarding possession no witness in evidence adduced by him; Mandal's evidence as PW 2 also proved defendant's possession. Admittedly no specific date of allotment and possession has been given nor any allotment order has been filed and the chitha (Ext 1) produced by him has not shown any date of allotment. Regarding possession no witness in evidence adduced by him; Mandal's evidence as PW 2 also proved defendant's possession. Evidence of PW 1 (plaintiff) failed to prove that he was in possession till dispossessed by defendants by engaging one Akbar and then by one Karim and these two persons were not examined. After appreciating the evidence on record the trial Court rejected the claim of title. The first appellate Court's re-appreciation of evidence is not sustainable on the ground that discussion of evidence on record by the lower appellate Court found mis-appreciation of evidence regarding title. The finding of the first, appellate Court was that the documents such as certified copy of Jamabandi (Ext 1) and land revenue receipts (Ext 2 (1) to (7) and certified copy regarding demarcation of boundary of the suit land by Revenue Authority, are the documentary evidence which established the title of the plaintiff. In view of a series of decisions the established position of law is that claim of title on the basis of Jamabandi and Chitha, records of right which has no evidentiary value are not proof of title. 7. In the case of Guru Amarjit Singh vs. Rattan Chand ( AIR 1994 SC 226 ) wherein the appellant as plaintiff claimed recovery of possession claiming title on the basis of entries in the Jamabandi. The Apex Court held that it is settled law that entries in the Jamabandi are not proof of title. They are only statement for revenue purpose. 8. In the case of Nagarpalika Jind vs. Jagatsingh, (1995) 3 SCC 426 the Apex Court held that when the suit is based on title, burden to prove the same falls on the plaintiff, though the Court cannot decree a suit merely on the basis of entries in the revenue records. 9. Mr. They are only statement for revenue purpose. 8. In the case of Nagarpalika Jind vs. Jagatsingh, (1995) 3 SCC 426 the Apex Court held that when the suit is based on title, burden to prove the same falls on the plaintiff, though the Court cannot decree a suit merely on the basis of entries in the revenue records. 9. Mr. Choudhury, learned counsel for the respondent has fairly conceded that in view of the settled law enunciated by the Apex Court in a series of decisions he is not pressing the claim of title of the opposite party/plaintiff over the suit land, but he has submitted that the suit fired by the plaintiff should be treated as a suit based on possession and dispossession in terms of section 6 of the Specific Relief Act, 1963. He has invited this Courts attention to para 8 of the plaint wherein the plaintiff prayed that he be given khas possession over the suit land upon removal of the defendant's illegal possession therefrom. 10. As discussed above, the admitted position is that plaintiffs suit is based on declaration of title and recovery of khas possession and apparently possession was claimed on the strength of existing title based on the documents exhibited in the trial. Further the fact remains that against the dismissal of suit the plaintiff preferred appeal before the lower appellate Court who entertained the appeal and decreed the suit accordingly. Section 6 (3) of the Specific Relief Act specifically bars entertainment of appeal which quoted below : “Section 6. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.” Section 5 of the Act provides that - A person who has a right to the possession of any specific immovable property, may recover the same by instituting a suit in the manner provided by the CPC ie a suit for ejectment on the basis of title. But suit is incompetent after expiry of six months after dispossession. 11. Section 6 of the Act, contemplates a summary suit for possession of immovable property and question of title is outside its scope. Therefore proof of possession is sufficient evidence for right as against a trespasser. But suit is incompetent after expiry of six months after dispossession. 11. Section 6 of the Act, contemplates a summary suit for possession of immovable property and question of title is outside its scope. Therefore proof of possession is sufficient evidence for right as against a trespasser. In this aspect an analogy can be made between section 145 CrPC regarding declaration of possession as contemplated under the said section and sections and 6 of the Specific Relief Act. In that view of the matter in a suit under section 6 of the Act, the points for determination are - Whether the plaintiff was in possession of the disputed property and whether he has been deprived of that possession by the defendants otherwise than in due course of law and in that view of the matter the question of title is immaterial. 12. As stated above plaintiff/opposite party's case was not on mere possession and dispossession but recovery of possession on the basis of title. May be plaintiff/opposite party has a case for under section 6 of the Specific Relief Act, but he can not claim relief at the stage of second appeal more so when no plea has been taken by the plaintiff in the plaint no issue was framed on this point. 13. In the case of Nagar Palika vs. Jagat Singh (supra) their Lordships held that once a suit has been filed by the plaintiff claimed to be the owner and being possession of the land in question, the suit can be treated as a suit based on possession and dispossession without reference to title, that disputed question of title are to be decided under the process of law, but the peaceful possession is to be protected from a trespasser under section 6 of the Act. Without regard to the question of or gin of the possession. 14. In view of my above discussion I can not agree with the submission made by Mr. Choudhury that the case can be decided under section 6 of the Specific Relief Act, 1963. Accordingly, the impugned judgment and decree passed by the appellate Court is set aside and the judgment of the trial Court is restored and affirmed. Respondent/plaintiff is directed to pay of Rs.500/-towards the costs of the appeal.