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2007 DIGILAW 167 (GAU)

Rupan Kishan v. Narayan Das

2007-02-28

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. This second appeal has arisen out of the judgment and decree, dated 30.7.2002, passed by the learned District Judge, Darrang, in Title Appeal No. 02/2000, dismissing the appeal and affirming thereby the judgment and decree, dated 09.12.1999, passed, in Title Suit No. 30/1992, by the learned Civil Judge (Sr. Division), Darrang, whereby the plaintiffs' suit for declaration of their rights, title and interest over the suit land was decreed. 2. The case of the plaintiffs may, in brief, be described thus : The suit land, which was, originally, covered by Dag No. 123 of Periodic Patta No. 73/74, in village Patabill, under Orang Mouza, belonged to, and was owned by, one Smt. Konwar Gaurani, wife of Late Bhagat Singh. The plaintiffs purchased, by way of a registered sale deed, dated 23.1.1974, the suit land from Smt. Konwar Gaurani, on consideration of a sum of Rs.6,000/- and took possession of the suit land accordingly. Having taken over possession of the land, the plaintiffs cultivated the same, grew paddy thereon and paid revenue therefor. On 16.7.1974, the defendant dispossessed the plaintiffs. The plaintiffs, then, initiated a proceeding under Section 145 Cr.P.C. This proceeding ended with declaration of possession in favour of the defendant. The plaintiffs, then, filed a revision and the order, passed by the learned Executive Magistrate, declaring the possession of the suit land in favour of the defendant, was set aside. The plaintiffs could not, however, peacefully remain in possession of the suit land. Left with no alternative, the plaintiffs have instituted the suit seeking declaration of their rights, title and interest over the suit land, recovery of khas possession thereof and permanent injunction. 3. The defendant resisted the suit by filing written statement, his case being, in brief, thus Smt. Konwar Gaurani aforementioned had no saleable right over the suit property. The defendant's father used to be in possession of the suit land on the strength of an annual patta, which had been issued in the name of Ganesh Kishan, father of the defendant No. 1. The plaintiffs had not acquired any title to the land and they had never been in possession thereof. The defendant, therefore, sought for dismissal of the suit. 4. Following issues were framed, in the suit, for determination: 1. Whether there is cause of action for the suit ? 2. The plaintiffs had not acquired any title to the land and they had never been in possession thereof. The defendant, therefore, sought for dismissal of the suit. 4. Following issues were framed, in the suit, for determination: 1. Whether there is cause of action for the suit ? 2. Whether the suit is barred by the principles of waiver, estoppel, acquiescence ? 3. Whether the plaintiffs have right title interest over the suit land ? 4. Whether the defendants illegally dispossessed the plaintiffs from the suit land ? 5. Whether the plaintiff is entitled to the reliefs prayed for? 6. Any other relief/reliefs, the parties are entitled to? Additional issue: 1. Whether the suit is barred by limitation and adverse possession? 5. As the learned trial Court decided the issues framed, as above, in favour of the plaintiffs, the suit was accordingly decreed. Aggrieved by this decree, the defendant preferred an appeal. As the appeal has also failed to yield any favourable result, as indicated above, the defendant has preferred this second appeal. This appeal has been admitted for hearing on the following substantial questions of law: 1. Whether the learned Courts below were justified in holding that the plaintiffs acquired title by the sale deed, Ext. 1 executed by Konwar Gaurani, without giving any evidence that the vendor Konwar Gaurani had title to the land? 2. Whether the transfer of the suit land, which falls within the Tribal Belt, by Ext. 1 is invalid in view of the provisions of Chapter-X of the Assam Land & Revenue Regulation? 3. Whether the learned District Judge was justified in excluding Ext. Ka, the annual patta, from consideration? 6. I have heard Mr. B.K. Goswami, learned Senior counsel, appealing on behalf of the defendant-appellant, and Mr. R. Sarma, learned Counsel for the plaintiffs-respondents. 7. While considering this appeal, it needs to be noted that it is against the concurrent findings of fact that the present appeal has been preferred by the contesting defendants. What is, now, of utmost importance to note is that the plaintiffs' traced their source of ownership from Smt. Konwar Gaurani, who, according to the plaintiffs, was owner of the suit land. What, however, cannot be ignored is that not even an iota of evidence was adduced by the plaintiffs to show that Smt. Konwar Gaurani owned the suit land and had title thereto. What, however, cannot be ignored is that not even an iota of evidence was adduced by the plaintiffs to show that Smt. Konwar Gaurani owned the suit land and had title thereto. In the face of the fact that the defendant had asserted, in his written statement, that Smt. Konwar Gaurani had no saleable right over the suit land and that she had never been in possession thereof, heavy burden rested on the plaintiffs to prove that Smt. Konwar Gaurani owned the suit land and had title thereto. The plaintiffs, however, completely failed to prove the fact that Smt. Konwar Gaurani was title-holder of the suit land. 8. Confronted with the above situation, Mr. R. Sarma, learned Counsel for the respondents, submits that the plaintiffs also had periodic patta in their name, which has been proved as Ext. 3. While considering this aspect of the submission, what needs to be carefully noted is that ordinarily, a periodic patta would be enough to declare title of the patta-holder in respect of the land for which the patta has been issued. In the case at hand, however, the specific and clear case of the plaintiffs was that it was on the basis of their purchase of the suit land, by way of a sale-deed from Smt. Konwar Gaurani, that they had acquired title to the suit land and got their mutation done. What is, now, material to note is that the plaintiffs miserably failed to prove, as already indicated above, that Smt. Konwar Gaurani had any title to the suit land. In the absence of any evidence, in this regard, merely because of the fact that the land stands mutated in favour of the plaintiffs, a declaration of title could not have been given in their favour. 9. One needs to bear in mind that aperiodic patta may be issued on the basis of right of inheritance or on the basis of title derived by way of purchase or on the basis of direct settlement of the land given by the Government. There are, thus, several modes of obtaining periodic patta. In the present case, the patta was obtained not by way of direct settlement from the Government nor by way of inheritance, but by way of sale from a person, whose saleable interest over the suit land could not be proved. There are, thus, several modes of obtaining periodic patta. In the present case, the patta was obtained not by way of direct settlement from the Government nor by way of inheritance, but by way of sale from a person, whose saleable interest over the suit land could not be proved. In these circumstances, the fact that the patta stood in the name of the plaintiffs could not have been made the basis for granting title in their favour. Indeed, it has not been done by the learned Courts below. What the learned Courts below had done is that they have treated Smt. Konwar Gaurani as the title-holder of the land and this fact, supported by issuance of patta, in the name of the plaintiffs, has been taken into account for decreeing the suit in favour of the plaintiffs. In view of the fact, however, that the plaintiffs had failed to prove that Smt. Konwar Gaurani had any saleable interest over the suit land, mere existence of patta, in the name of the plaintiffs, was not sufficient to entitle them to obtain declaration of title in their favour; particularly, when their case, if I may reiterate, was that they had obtained mutation of the land, in question, in their names on the basis of the purchase of the land by the original owner thereof. 10. Coupled with the above, it is also worth noticing that the defendant proved Ext. Ka as the annual patta, which had been issued in the name of his father. The learned trial Court has assigned no cogent reason for not accepting the fact that such an annual patta was issued in the name of the father of the defendant No. 1. As far as the learned first appellate Court is concerned, it has held that the annual patta was not readable. This, unfortunately, is not correct, for, the relevant portions of the annual patta are legible and can be properly read. When the attention of Mr. R. Sarma, learned Counsel for the plaintiffs-respondents, was drawn to this fact, it could not be disputed that the essential particulars, mentioned in the annual patta, can be read. 11. Besides what have been indicated above, it is also worth pointing out that in the said sale deed, the schedule of the land does not mention any dag number or patta number. 11. Besides what have been indicated above, it is also worth pointing out that in the said sale deed, the schedule of the land does not mention any dag number or patta number. The sale deed, in fact, gives no indication at all as to which land was really purchased by the plaintiffs from Smt. Konwar Gaurani. 12. In view of the fact that the plaintiffs suit was for declaration of their rights, title and interest over the suit land and also for recovery of possession thereof by ejecting the defendant therefrom, it is clear that the plaintiffs' suit was not only for declaration of title, but also recovery of possession and this recovery of possession was sought on the basis of their title to the suit land. In view, however, of the fact that the plaintiffs failed to prove that they had derived any title to the suit land and in view also of the fact that there was ample evidence, on record, showing the defendant’s possession over the suit land, the decree could not have been granted, in the suit, in favour of the plaintiffs. All these relevant and important aspects of the suit appear to have escaped the attention of the learned Courts below. 13. In the result and for the reasons discussed above, this appeal succeeds. The impugned judgment and decree are hereby set aside. The suit shall accordingly stand dismissed. Send back the LCR. Appeal allowed.