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2007 DIGILAW 171 (GAU)

Ram Piyari Chauhan v. Sankar Gowala

2007-02-28

I.A.ANSARI

body2007
JUDGMENT Iqbal Ahmed Ansari, J. 1. This second appeal has arisen out of judgment and decree, dated 28.8.2002, passed by the learned Civil Judge (Senior Division), Nagaon in Title Appeal No. 48 of 2000, dismissing the appeal and affirming thereby the judgment and decree, dated 30.11.2000, passed, in Title Suit No. 73 of 1993, by the learned Civil Judge (Junior Division), Hojai, Sankardev Nagar, decreeing the plaintiff's suit for declaration of his possessory right and continuation of possession over the suit land. 2. The appeal was admitted for hearing on the following three substantial questions of law: 1. Whether a Khatian holder obtaining the Khatian long after purchase of the suit land by a person may succeed in obtaining a declaration of tenancy right within the meaning of the Assam (Temporary Settled Areas) Tenancy Act, 1971, against the purchaser without proving the required formality in the matter of obtaining the Khatian or without proving the legal merit of the Khatian? 2. Whether the Civil Court may act upon a Khatian not granted inter parties for the purpose of giving the benefit of the concerned tenancy Act? 3. Whether in the given facts and circumstances of the case, the presumption of correctness of the Khatian could be raised and made without examining the Revenue records and/or the concerned Revenue Officer? 3. The case of the plaintiffs may, in brief, be set out as follows: The suit land, originally, belonged to Gajen Kalita, who held a periodic patta in respect of the suit land. For more than twenty years, the plaintiff remained in possession of the suit land and enjoyed the usufructs thereof as cultivators. In course of time, Raiyati Khatian No. 58 was issued, on 28.12.81, in favour of the plaintiff in respect of the suit land and from that day, the plaintiff's occupied the suit land as a statutory tenant and used the suit land, in the capacity of a tenant, within the meaning of the Assam (Temporary Settled Areas) Tenancy Act, 1971 (in short, the Act of 1971), under the said Gajen Kalita. In order to grab the suit land, the defendants made several attempts to dispossess the plaintiff. The plaintiff filed several criminal cases against the defendants in order to protect his interest and, eventually, he instituted a proceeding, under Section 145 Cr. In order to grab the suit land, the defendants made several attempts to dispossess the plaintiff. The plaintiff filed several criminal cases against the defendants in order to protect his interest and, eventually, he instituted a proceeding, under Section 145 Cr. P.C., seeking declaration of his possession over the suit land; but the learned Executive Magistrate, on 20.1.88, directed the plaintiff to take recourse to the Civil Court for relief. The plaintiff accordingly instituted the suit seeking, inter alia, declaration of his possessory rights as well as confirmation of his possession over the suit land and permanent injunction, etc. 4. The suit was resisted by the principal-defendant Nos. 1 and 2 (i.e., the appellants herein) by filing their written statement, their case being, briefly stated, thus Tularam Kalita and Gajen Kalita were owners of the suit land. By two registered sale deeds, the contesting defendants had purchased the entire suit land from the said two brothers and, upon purchase of the suit land, these defendants also received possession of the suit land and since then, these defendants remained in possession and enjoyment thereof. These defendants, then, sought for mutation of the suit land in their favour and also for partition thereof, which was also allowed by the revenue authorities. In fact, in the revenue proceeding for partition, which gave rise to NRK Case No. 316/86, the learned Additional Deputy Commissioner passed an order, on 14.5.90, granting mutation and partition in favour of these defendants and in the order, so passed, it was made clear that the plaintiff had not right over the suit land. The defendants accordingly sought for dismissal of the suit. 5. The learned trial Court framed the following issues for determination: 1. Whether there is cause of action for the suit? 2. Whether the suit is barred by provisions of Assam (Temporary Settled Areas) Tenancy Act, 1971? 3. Whether the plaintiff has any right, interest and possession over the suit land? 4. Whether the plaintiff is entitled to the reliefs as prayed for? 6. After recording the evidence adduced by the parties, the learned trial Court decided the issues, framed as above, in favour of the plaintiff and accordingly decreed the suit. Aggrieved by the decree, so passed, the principal-defendants preferred an appeal as indicated hereinabove. 4. Whether the plaintiff is entitled to the reliefs as prayed for? 6. After recording the evidence adduced by the parties, the learned trial Court decided the issues, framed as above, in favour of the plaintiff and accordingly decreed the suit. Aggrieved by the decree, so passed, the principal-defendants preferred an appeal as indicated hereinabove. As the appeal has also yielded no favourable result, the principal-defendants are, now, before this Court with the help of this second appeal. 7. I have heard Mr. P.C. Borpujari, learned Counsel for the defendant-appellants, and Mr. D.C. Mahanta, learned Senior counsel, appearing on behalf of the plaintiff-respondent. 8. While considering this second appeal, what needs to be noted is that it is against the concurrent findings of fact that this second appeal has been preferred by the defendants-appellants. While considering this appeal, it is also imperative to note that Exhibit 1 is the Raiyati Khatian, issued under the Act of 1971, in favour of the plaintiff. This Khatian, which is nothing but a certificate of tenancy, was issued under the provisions of Section 58 read with Rule 35 of the Assam (Temporary Settled Areas) Tenancy Act, 1971. Sub-sections (4) and (5) of the Act of 1971 read as under: 58. Certificate of and presumption as to final publication and presumption as to correctness of record-of-rights- (1) (2) (3) (4) In any suit or other proceeding in which a record-of-rights prepared and published under this Chapter or a duly certified copy thereof, or extract therefrom, is produced such record-of-rights shall be presumed to have been finally published unless the contrary is proved. (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. 9. From a careful reading of Sub-sections (4) and (5) of Section 58, it becomes transparent that 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. 9. From a careful reading of Sub-sections (4) and (5) of Section 58, it becomes transparent that 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. This shows that it is the duty of the Court to raise a legal presumption in support of correctness of the entries made in the record-of-rights and one, who disputes the correctness of the entries so made, has the onus to prove that the entries are incorrect. 10. Bearing in mind what is indicated above, when one reverts to the facts of the present case, what attracts the eyes, most prominently, is that the plaintiff mentioned, in para 1 of his plaint, that he holds the Khatian in respect of the suit land. While responding to the statement so made at para 1 of the plaint, the contesting defendants stated that the plaintiff's Raiyati Khatian was not admitted by the defendants. What the submission, so made, indicates is that the contesting defendants denied the existence or issuance of the Khatian; but they, nowhere, disputed the correctness of the entries contained therein. This apart, the plaintiff has proved Exhibit 1 as a Khatian issued by the revenue authorities. 11. In the face of the fact that a Khatian, issued by the revenue authorities, was brought on record as Exhibit 1, the onus rested, on the contesting defendants, to show that the Khatian was not obtained in accordance with law and/or that the entries made therein were incorrect. In this regard, the contesting defendants entirely relied on the observations made by the learned Additional Deputy Commissioner, while dealing with the contesting defendants' application for partition of the suit land and mutation of their names as owners of the suit land. Since the contesting defendants' application was for mutation of their names as owner of the suit land, the present plaintiff had no locus standi to oppose the same inasmuch as he was a mere tenant and had only possessory right over the suit land. Hence, the observations, made by the learned Additional Deputy Commissioner, to the effect that the Khatian had not been properly issued to the plaintiff are of no material consequence in the civil suit. Hence, the observations, made by the learned Additional Deputy Commissioner, to the effect that the Khatian had not been properly issued to the plaintiff are of no material consequence in the civil suit. When, in a civil suit, the plaintiff rested his case on the strength of the Khatian issued in his favour and he also gave oral evidence in support of his case that he had been in possession of the suit land, it was the duty of the contesting defendants (i.e., the appellants herein) to adduce adequate evidence to show that the Khatian, issued in favour over the plaintiff as a tenant of the suit land, was not granted to him in accordance with law and/or that the entries made in the Khatian were incorrect. No such evidence was adduced or could be adduced by the contesting defendants. In such circumstances, Exhibit 1 remained wholly unshaken and unassailed. The logical inference, which could be drawn from the Exhibit 1, was that the plaintiff had possession over the suit land and had accordingly been granted Khatian in respect thereof. This apart, the plaintiff adduced oral evidence in support of his assertion that he had been in possession of the suit land. 12. Though the defendants denied that the plaintiff had been in possession of the suit land and adduced their evidence, the evidence, adduced by the plaintiff, has been believed by the learned trial Court and this finding has been upheld by the learned appellate Court too. Nothing could be shown, on behalf of the appellants, to indicate that the plaintiff had not been in possession of the suit land as was claimed by him. In such circumstances, the learned trial Court had no option, but to declare that the plaintiff had possessory right over the suit land and entitled to remain in possession thereof until evicted therefrom in accordance with law. Considered thus, it is clear that the learned appellate Court rightly upheld the decree. 13. As a last resort, it has been contended by Mr. Considered thus, it is clear that the learned appellate Court rightly upheld the decree. 13. As a last resort, it has been contended by Mr. Borpujari, learned Counsel for the appellants, that when the defendants had denied the issuance of Khatian in favour of the plaintiff, an issue ought to have been framed by the learned trial Court on the question as to whether the Khatian had been issued or not and since this has not been done, the impugned decree needs to be interfered with and the suit needs to be remanded for framing of appropriate issues and for disposal of the suit in accordance with law. 14. While considering the above submission, made on behalf of the appellants, it may be pointed out that both the parties to the suit were wholly aware of each other's case. It was within the knowledge of the defendant-appellants that the plaintiff's suit for declaration of his possessory right was based not only on his actual possession of the suit land, but also on the said Khatian (Exhibit 1). The issue, thus, was within the knowledge of the parties concerned and in order to show, in respect of issue No. 3, that the plaintiff had no right, interest or possession over the suit land, the defendant-appellants have adduced whatever evidence they could have adduced. In such circumstances, the omission to frame a specific issue as to whether the Khatian was issued in favour of the plaintiff or not cannot be said to have-caused any prejudice to the defendants. 15. What emerges from the above discussion is that the present appeal is wholly without merit and raises no question of law, far less substantial questions of law, for determination by this Court in a second appeal. 16. In the result and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed. Send back the LCR. Appeal dismissed.