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2004 DIGILAW 64 (GAU)

Puspendra Das v. Binu Das

2004-02-03

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. This second appeal is directed against the judgment and decree dated 17.12.96 passed by the Assistant District Judge, Nagaon in Title Appeal No. 24/95. 2. At the time of admission of the appeal the following substantial questions of law were formulated: 1. Whether in spite of Ext. 1 and 2, the Defendants can claim possession over the suit land without any documents by right of alleged purchase. 2. Whether the learned lower appellate Court rightly interpreted Section 41of the Assam Land and Revenue Regulation. 3. Whether the learned lower appellate Court misinterpreted the provision of Section 34 of the Specific Relief Act under the facts and circumstances of the case. 4. Whether the suit is barred by limitation under Article 113 of the limitation Act. 3. The Plaintiff Puspendra Das and 4 others instituted the Title Suit No. 98/93 for declaration of right, title and interest and confirmation/recovery of possession in respect of the suit land measuring 1 bigha 4 kathas 3 lechas which is covered by Dag No. 230 of annual patta No. 18 fully described in Schedule 'A' to the plaint and hereinafter referred as the suit land. 4. The case of the Plaintiffs is that the suit land was enjoyed and possessed by late Bhadra Kanta Das and the Plaintiffs being the heirs in interest possessed the same by right of inheritance. The Defendants tried to dispossess the Plaintiffs, whereupon a proceeding under Section 145 Code of Criminal Procedure in MR Case No. 436/89 was initiated but the final order was passed against the Plaintiffs and in favour of the Defendants and hence the suit. 5. The suit was contested by Defendant Nos. 1 to 6 and it proceeded ex-parte against the Defendant Nos. 7 to 13. The case of the contesting Defendants/Respondents is that the suit land originally belonged to Raheswar Das (since deceased) who sold it to late Dandi Das about 60 years back and the purchasers were put into possession and they were in possession of the same since then. 6. The trial Court framed as many as eight issues and vide judgment and order dated 4.5.95 the suit was decreed as prayed for and also for recovery of Khas possession and the Defendants were restrained by permanent injunction. 6. The trial Court framed as many as eight issues and vide judgment and order dated 4.5.95 the suit was decreed as prayed for and also for recovery of Khas possession and the Defendants were restrained by permanent injunction. Feeling aggrieved, the Defendants/Respondents preferred Title Appeal No. 24/95 before the Assistant District Judge, Nagaon and vide impugned judgment the appellate Court interfered and allowed the appeal by dismissing the suit. Hence the present appeal by the Plaintiffs/Appellants. 7. In the present case, there is no dispute at the Bar that the suit land is covered by annual patta and the original annual patta holder of the suit land was one Raheswar Das. The Plaintiffs are the heirs of Bhadra Kanta Das who was the son of Raheswar Das. On the death of Raheswar Das, the names of two sons of Raheswar Das, namely Bhadra Kanta Das and Lila Kanta Das appear in the draft chitta and draft annual jamabandi. The Respondents/Defendants have also admitted that Raheswar Das was the original patta holder and they also claim the suit land by way of purchase from said Raheswar Das. So far the purchase is concerned, the trial court did not accept the plea of the Defendants, whereas the appellate Court accepted the plea on the ground that the alleged purchase was about 60 years back and hence no formal proof is necessary. However, we find that the Defendants did not produce any set of documents to show that the suit land was sold to them about 60 years back. In case of documents of more than 60 years old, the Evidence Act dispenses the requirement of formal proof but the documents are required to be produced. Admittedly, no such documents have been produced by the Defendants. So far the plea of adverse possession raised by the Defendants is concerned, the appellate Court did not entertain the said plea. 8. The Appellants/Plaintiffs on the other hand has relied on Section 41 of the Assam Land and Revenue Regulation which reads as follows: 41. Entries in record and their effect. So far the plea of adverse possession raised by the Defendants is concerned, the appellate Court did not entertain the said plea. 8. The Appellants/Plaintiffs on the other hand has relied on Section 41 of the Assam Land and Revenue Regulation which reads as follows: 41. Entries in record and their effect. (1) Entries in the record made under Section 40 shall be founded on the basis of actual possession and all disputes regarding such entries, whether taken up by the Settlement Officer of his own motion or on the application of a party concerned, shall be investigated and decided by him on that basis and all persons not in possession, but claiming the right to be so, shall be referred by him to the proper Court (2) Every entry in the record-of-rights made under this section shall, until the contrary is proved, be presumed to be correct. 9. In this case the Plaintiffs have proved Ext. 1 and 2 to show that the annual patta stands in their name. The learned Counsel for the Plaintiffs has referred to the following observations of this Court in the case of Parasanna Ram Pathak v. Balabox Agarwalla AIR 1950 Assam 209 wherein this Court has held: An annual patta, until it is either cancelled or notice of non-renewal given to the patta-holder by the authorities concerned, confers good tile upon the person to whom the patta is issued. The possession of a person other than the annual patta-holder is irrelevant. His possession might be that of a trespasser or a permissive possession emanating from the patta-holder himself in which case obviously he cannot claim the rights of a patta holder and claim that the annual patta be issued to him. 10. The matter was again considered by this Court in the case of Nawab Burul Islam v. Khagaru Sekh(1991) 2 GLR 153 and this Court held: 21. From the aforesaid decisions it is clear that the limited right of user or the possessors right of the patta holder in annual patta land can be transferred and such transfers are valid between the parties. It will only be subject to the paramount title of the State. The right acquired by the transferee would expire with the expiry of the lease in four of the transferor. It will only be subject to the paramount title of the State. The right acquired by the transferee would expire with the expiry of the lease in four of the transferor. So far as the possession of the successors of the deceased pattadar of annual patta land is concerned, the settled legal position appears to be that on the death of an annual pattadar, his successor in interest has to be preferred as against strangers or persons not related to him. This view also gets support from the definition of annual lease given in Rule. 1(c) of the Settlement Rules, more particularly the proviso thereto, which refers to "mortgage of annual patta land to the State Government or to a sponsored Cooperative Society." From this provision, it is clear that the limited right of user can be transferred by the annual patta-holder as otherwise question of mortgage thereof would never arise. 22. It is equally well-settled that an annual patta, until it is cancelled or notice of non-renewal is given to the patta holder by the authorities concerned, confers goods title upon the person whom the patta is issued. That being so, the limited rights of user acquired by a transferee (or successors of patta holders) would also continue until the cancellation of the annual patta in favour of the transferor. The possession of the transferee would be good as against the transferor and all other persons except the State which has the paramount title over the land. 11. The decision in Nawab Burul Islam (supra) was reiterated in the case of Haji Abdul Haque v. Sujit Kr. Das (2003) 1 GLT 376, wherein it was held that the right of inheritance in heir under annual patta percolates to the heirs and successors in interest of the original patta holder during the subsistence of the annual patta or till it is cancelled in accordance with law. 12. In the present case, admittedly, the Plaintiffs/Appellants are the successors of the original patta holder and the said patta has not been cancelled, on the contrary Ext. 1 and 2 shows that the name of predecessor in interest of the Plaintiffs namely Bhadra Kanta Das was recorded. It seems that the appellate Court has misled itself in not relying on the above aspect of the matter and gave unnecessary weightage to the purported purchase of the Defendants. 13. 1 and 2 shows that the name of predecessor in interest of the Plaintiffs namely Bhadra Kanta Das was recorded. It seems that the appellate Court has misled itself in not relying on the above aspect of the matter and gave unnecessary weightage to the purported purchase of the Defendants. 13. During trial, the Plaintiffs have examined three witnesses and the Defendants have examined two witnesses. The Defendant Puspendra Das (since deceased) has examined himself as D.W. 1 and he was age about 65 years at the time of deposition and he has deposed about the alleged purchase by his predecessors in interest about 60 years back. Admittedly, at that time D.W. 1 was aged about 5 years old and he cannot have any knowledge about the said purchase. D.W. 2 Sri Dharma Kanta Das is a man of another village and he has deposed that he has shifted to the present village about 10 years back only and hence his evidence regarding the alleged oral purchase is not at all reliable and convincing. So far possession is concerned, the draft chitta of 1969 gives a complete lie to the claim of the Defendant that they were in possession of the suit land since 1935. Ext. 3 series shows payment of land revenue by the Plaintiffs. 14. On consideration of the evidence on record and the facts and circumstances of the case and law as settled by this Court and referred above, we hold that the findings of the appellate Court are not sustainable as it has failed to interpret the provisions of Section 41 of the Assam land and Revenue Regulations properly. The Plaintiffs had a subsisting right and the Defendants have failed to establish their claim by way of purchase and there was no case of adverse possession as held by the appellate Court. We answer the substantial question of law in favour of the Appellant. 15. Appeal allowed. The judgment and decree passed by the appellate Court is hereby set aside and the judgment and decree passed by the trial Court is restored. 16. The parties shall bear their own cost. Appeal allowed.