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2009 DIGILAW 601 (GAU)

Sitaram Nunia v. Prabha Bala Das

2009-08-25

H.N.SARMA

body2009
JUDGMENT H.N. Sarma, J. 1. Being unsuccessful in Title Appeal No. 3/99 by which the learned District and Sessions Judge, Nagaon, affirmed and upheld the judgment and Decree passed in Title Suit No. 43/94 passed by the learned Civil Judge, Senior Division, Nagaon, decreeing the suit, the Defendant/Appellant has filed this second appeal. 2. I have heard Mr. P.K. Khataniar and Mrs. K. Devi, learned Counsels on behalf of the Defendant/Appellant and Mr. B.K. Goswami, learned Senior Counsel assisted by Ms. T. Goswami, learned Counsel on behalf of the Plaintiffs/Respondents. 3. The Plaintiffs/Respondents instituted a suit being Title suit No. 43/94 in the court of learned Munsiff, Nagaon, praying for declaration of right, title and interest over the suit land and also for confirmation of possession and permanent injunction. The pleaded case of the Plaintiffs, inter alia, is that the suit land covered by K.P. Patta No. 228, Dag No. 426 described in the Schedule of the plaint, was owned and possessed by the Defendant No. 1 and proforma Defendant No. 2, which was originally acquired by their father. After the death of their father, the Defendants mutually partitioned the land and possessed their respective share measuring 3 bighas each separately and the suit land in question falls within the share of Defendant No. 2. The Defendant No. 2 vide registered Sale Deed No. 256/1989 sold from his share an area of land measuring 2 kathas, 10 lechas in favour of the Plaintiff No. 1. Similarly vide Sale Deed No. 895/1989, another area of 2 kathas, 10 lechas was sold to Plaintiff Nos. 1 and 2. Further, an area of land measuring 1 Bigha was sold in favour of Plaintiffs Nos. 3 and 4 vide sale deed No. 1919/90 and delivered possession of the respective purchasers. Since then, the Plaintiffs are in actual and physical possession over their respective shares. After purchase of the land, the names of the Plaintiffs were also mutated in the revenue record. While the Plaintiffs were enjoying and possessing their respective shares in the manner aforesaid, on 30.6.99 the Defendant No. 1 asked the Plaintiff to vacate the suit land else they were threatened to be evicted by force. On query, the Defendant disclosed that the names of the Plaintiffs have been struck off from the revenue record. While the Plaintiffs were enjoying and possessing their respective shares in the manner aforesaid, on 30.6.99 the Defendant No. 1 asked the Plaintiff to vacate the suit land else they were threatened to be evicted by force. On query, the Defendant disclosed that the names of the Plaintiffs have been struck off from the revenue record. Enquiring the matter, the Plaintiffs came to know that the Defendant No. 1 by filing an application making misleading and incorrect statement that the Defendant No. 2 is not the brother of the Defendant No. 1 got corrected the revenue record striking out the names of the Plaintiffs from the revenue record vide order dated 22.7.94. It is pleaded that the said order dated 22.7.94 is illegal and without jurisdiction and by such an order the right of the Plaintiffs cannot be extinguished. Due to the aforesaid act of the Defendants, the Plaintiffs compelled to file a suit praying for declaration of their right, title and interest over the suit land and for permanent injunction against the Defendants. 4. The Defendant No. 1 contested the suit by filing written statement. Apart from the usual pleas such as want of cause of action and non-maintainability of the suit, the plea of res judicata was also raised in the written statements. It was further pleaded that the suit land was originally annual patta land being patta No. 165 of 1968-69, Dag No. 426 containing 7 bighas, 1 katha in the name of the father of the Defendant No. 1. After the death of his father, wife of the deceased married to one Mahabali Chouhan and the proforma Defendant No. 2 was born out of their wedlock and both Defendant Nos. 1 and 2 are sons of different fathers. Accordingly, the Defendant No. 2 is not entitled to claim the property left by the father of Defendant No. 1 after his death. But Defendant No. 2 raised a claim over the land covered by annual Dag No. 426 and threatened to take possession forcibly. The Defendant No. 1 instituted a Title Suit No. 58/86 in the court of learned Assistant District Judge, Nagaon, which was decreed on 31.8.92 in his favour. During the pendency of the suit, the Defendant No. 2 managed to convert the suit land from annual patta to periodic patta. The Defendant No. 1 instituted a Title Suit No. 58/86 in the court of learned Assistant District Judge, Nagaon, which was decreed on 31.8.92 in his favour. During the pendency of the suit, the Defendant No. 2 managed to convert the suit land from annual patta to periodic patta. It is further pleaded that the proforma Defendant No. 2 procured some vague Sale Deed in favour of the Plaintiffs on the basis of which the name of the Plaintiffs were recorded in the revenue record. The Defendant No. 1 on coming to know about this mischief, filed NRK Case No. 7/94 before the revenue authority and in the said case, the learned Additional Deputy Commissioner, Nagaon, allowing the prayer of the Defendant No. 1 ordered to remove the names of the Plaintiffs and proforma Defendant No. 2 from the patta covering the suit land. Pleading in the aforesaid manner, the Defendant No. 1 has prayed for dismissal of the suit with cost awarding compensation in his favour. 5. On the basis of the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is barred by res judicata under Section 11 of Civil Procedure Code, in view of the Title Suit No. 58/86 of this Court, which was decreed on 31.8.92? 4. Whether the Plaintiffs have required any right, title or interest in the suit land? 5. Whether the proforma Defendant Late Mahabali Chouhan, was at all competent to effect sale of the suit land? 6. Whether the sale deeds in favour of the Plaintiffs were just on product of collusion with Rajaram Chouhan? 7. Whether the Plaintiffs' claim is also hit by Section 52 of Transfer of Property Act? 8. What relief, if any, are the Plaintiffs entitled to? 6. During the course of trial, Plaintiffs examined as many as six witnesses whereas the Defendants examined one. Both the parties also adduced documentary evidence in support of their respective claims. 7. 7. Whether the Plaintiffs' claim is also hit by Section 52 of Transfer of Property Act? 8. What relief, if any, are the Plaintiffs entitled to? 6. During the course of trial, Plaintiffs examined as many as six witnesses whereas the Defendants examined one. Both the parties also adduced documentary evidence in support of their respective claims. 7. After conclusion of the trial, the learned trial Court vide judgment and order dated 22.12.97 dismissed the suit of the Plaintiffs holding inter alia that the suit of the Plaintiffs is barred by res judicata in view of the decision rendered in earlier Title Suit No. 58/86 while deciding the Issue No. 3 and in fact the said decision on Issue No. 3 guided the other issues. The said decree was carried into appeal being Title Appeal No. 3/98 before the learned District and Sessions Judge, Nagaon, who in turn vide judgment and order dated 25.8.98 reversing the decision of issue of res judicata, allowed the appeal and remanded back the matter to the trial court for fresh disposal of the suit. After remand, the learned Musiff heard the matter afresh and vide judgment and order dated 8.3.99 decreed the suit in favour of the Plaintiffs which was again challenged by the Defendant/Appellant in Title Appeal No. 3/98 in the Court of learned District and Sessions Judge, Nagaon. The learned District Judge vide impugned judgment and order dated 5.1.2000 dismissed the appeal affirming the decree passed by the learned trial court, which is the subject matter of this present second appeal. 8. This appeal was admitted to be heard on the following substantial questions of law: 1. Whether the appellate Court committed error apparent on the face of the record in deciding issue No. 3 again which was finally decided in T.A. No. 3/98 and holding that any decision in T.A. No. 3/98 cannot be binding on Rajaram Chouhan the promorma Defendant No. 5 in spite of the fact that he was impleaded as a party in T.S. No. 58/86? 2. Whether annual patta land can be converted into periodic during the pendency of a suit relating to the same land? 3. Whether the settlement of annual patta land can made without cancellation of the same and whether the transfer of the suit land by way of sale to the Plaintiff by converting it into periodic patta land was legal and valid? 3. Whether the settlement of annual patta land can made without cancellation of the same and whether the transfer of the suit land by way of sale to the Plaintiff by converting it into periodic patta land was legal and valid? 4. Whether the courts below considered the doctrine of lis pendents in proper perspective in deciding issue No. 7? 5. Whether the courts below failed to consider the judgment passed in T.A. No. 3/98 fin proper perspective? 6. Whether the Plaintiff and the proforma Defendant No. 1 were bound by the decree in T.S. No. 58/86 and whether any decision passed by a competent court can be allowed to be frustrated by means of collusive transfer of the same property during the pendency of T.S. No. 58/86? 9. At the very outset Mr. B.K. Goswami, learned Senior counsel appearing for the Plaintiffs/Respondents, referring to the substantial questions of law so framed, submits that the substantial questions of law Nos. 1, 5 and 6 are virtually one and the same and similarly the substantial question Nos. 3 and 4 also relates to a single issue. Learned Counsel further submits that the substantial question No. 5 in fact is not such a question and in the absence of any allegation of perversity and the same cannot be treated as substantial question of law. 10. Mr. Khataniar, learned Counsel appearing for the Appellant, however puts more emphasis on the issue of lis pendens and permissibility to convert the suit land into periodic patta and thereafter to transfer in favour of the Plaintiffs during the pendency of the Title Suit No. 58/86, and this issued is referable as the substantial questions Nos. 2, 3 and 4 so framed. 11. Records of the case establish that the issue regarding res-judicata has been settled by the first appellate court in the first round of appeal in deciding the issue No. 3 that the suit is not barred by the principle of res-judicata, which has attained finality. Therefore, impermissibility to challenge the same again in this second appeal has been rightly argued by Mr. Goswami, referring to Section 105(2)Code of Civil Procedure and in view of the ratio of decision rendered by the Apex Court in the case of Sita Ram v. Sukandi reported in 2003 SCC 1612. Therefore, impermissibility to challenge the same again in this second appeal has been rightly argued by Mr. Goswami, referring to Section 105(2)Code of Civil Procedure and in view of the ratio of decision rendered by the Apex Court in the case of Sita Ram v. Sukandi reported in 2003 SCC 1612. The Appellant challenges the decision of the Court below allowing the proforma Defendant No. 2 to get the share of the property left by father of the Defendant No. 1 on the ground that proforma Defendant No. 2 is not his brother, but this is essentially a concurrent finding of facts. The learned Appellate Court in deciding the appeal in the second round, vide judgment and order dated 5.1.2000 while deciding issue Nos. 4 and 5, accepted the claim of the Plaintiffs that the proforma Defendant No. 2 and the Defendant No. 1 are both brothers and while deciding this fact the learned court also proceeded to consider the applications of the Appellant/Defendant No. 1 filed in Title Suit No. 58/86 through which he prayed for impleadment of the present Defendant No. 2 describing him as his own brother. The present suit land, no doubt was part of the subject matter of Title Suit No. 58/86, but during the pendency of the said suit, the character and status of the suit land was changed after conversion of the same from annual patta into periodic patta by paying the premium assessed thereon as per order of the revenue authority. That apart, although the Appellant seeks to raise an issue that the Defendant No. 1 is not the brother but in this appeal he is not a party and his name was deleted from the array of the parties on the prayer of the Appellant himself. Thus, the decision about the relationship between the Defendant No. 1 and 2 being concluded by concurrent finding of fact and in the absence of any objection regarding the perversity of such finding, the same is not permissible to be re-opened in this second appeal. The contention of Mr. Khataniar is accordingly rejected. 12. Referring to substantial question Nos. 2, 3 and 4, it is next urged that the proforma Defendant No. 2 during the pendency of Title Suit No. 58/86 surreptitiously got converted a part of the suit land measuring 6 bighas into periodic patta on 16.12.2008. The contention of Mr. Khataniar is accordingly rejected. 12. Referring to substantial question Nos. 2, 3 and 4, it is next urged that the proforma Defendant No. 2 during the pendency of Title Suit No. 58/86 surreptitiously got converted a part of the suit land measuring 6 bighas into periodic patta on 16.12.2008. But the said conversion into periodic patta was made in the name of both the Appellant/Defendant No. 1 and Defendant No. 2. Although the said Title Suit No. 58/86 was decreed on 13.8.92 declaring the right, title and interest of the Plaintiffs over the suit land covering an area of 7 bighas 1 katha of land, the decree was passed in respect of annual patta land and at no point of time the changed status of the land from annual to periodic patta was not brought on record by the Plaintiffs. At the time of passing of the decree the status of the suit land no longer remained as annual patta and the annual patta No. 165 in respect of which decree was passed was non-existent. 13. In the written statement of the present suit, the Defendants have not challenged the legality and validity of the conversion of the land from annual patta to periodic patta, nor any counter claim claiming right over the suit land has also been filed. On 16.12.88, an application has been filed before the revenue authority of the State Government to convert the said land from annual to periodic patta in terms of the Assam Land and Revenue Regulation, 1886, which appears to have been filed by both the Defendant Nos. 1 and 2 and conversion to periodic patta has also been made in both of their names, jointly. Mr. Khataniar submits that conversion of annual patta to periodic one during the pendency of Title Suit 58/86 and thereafter having been transferred the same to the Plaintiff, such transfer is hit by lis-pendens as per the provisions contained in Section 52 of the Transfer of the Property Act, it being a transfer during the pendency of the lis. 14. The principle of lis pendens is that during pendency of a suit neither of the parties to the litigation can alienate the property in dispute so as to affect his opponent. 14. The principle of lis pendens is that during pendency of a suit neither of the parties to the litigation can alienate the property in dispute so as to affect his opponent. The Apex Court in the case of Bishansingh v. Khajansingh reported in AIR 1958 SC 842 referring to the case of Bellamy v. Sabine(1857) 1 DeG and J 566 (578) has held that the doctrine of lis pendens is based upon the broad principle that litigation would be interminable if any of the parties to an action could create any rights in favour of a third party during the pendency of a suit. Section 52 of the Transfer of Property Act provides that where a litigation is pending between the parties as to the right to a particular estate, the necessities of mankind require that the decision of the Court in the suit shall be binding not only upon the parties, but on those who derive title under them by alienations made during the pendency of the suit whether such alienation had or had not notice of the pending proceedings. Section 52 of the Transfer of Property Act does not bar the transfer but the transfer is subjected to the result of the pending proceeding involving the properties so transferred. The reference of the case of Ganswamy Nadar v. P. Laxmi Amnal reported in (2008) 5 SCC 796 as made by Mr. Khataniar does not help the Appellant in this regard. In the said case the Apex Court has reiterated the public policy inherent under the doctrine of lis pendens which is not in dispute. In order to attract the doctrine of lis pendens the following ingredients must be present: 1. There must be a suit or proceeding in a Court of competent jurisdiction having authority in India, or established beyond the limits of India by the Central Government. 2. The suit or proceeding must not be collusive 3. The litigation must be one in which right to immovable property is directly and specifically in question. 4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. 5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. 4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. 5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. On happening of the above circumstances, the transfer or dealing otherwise with the property would be subject to the decree passed in the suit or order in the proceeding. But, nonetheless the transfer is not void. It is noteworthy that the provision regarding claim for resisting or obstructing possession of immovable property in execution of a decree as contained in Order 21 Rule 97 and 100 and adjudication of claim is not allowable in respect of a pendetilite transferee as per Order 21 Rule 102, which recognize the principle that a transferee pendetilite is bound by the decree. 15. The other limb for consideration in the context of the submission of the Appellant is as to whether the "revenue authority" which passed the order converting the part of the suit land is a 'court' within the meaning of Section 52, to attract the principles of lis-pendens. 16. An annual patta is a lease in respect of certain land granted for one year only and confers no right on the soil beyond a right of user for the year for which it is given. It confers no right of inheritance beyond the year of issue. It also confers no right of transfer or of subletting and is liable to cancellation for any transfer or subletting even during the year of issue. However, after expiry of the year, the State Government may waive their right to cancel an annual lease and may allow its renewal automatically till such time as the State Government may direct in those cases in which the land is mortgaged to Government or to a State-sponsored Co-operative Societies. Periodic lease on the other hand means a lease granted for a period longer than one year. Periodic lease on the other hand means a lease granted for a period longer than one year. Such periodic lease, the term of which is not less than ten years, conveys to the lessee the rights of a landholder as defined under Section 9 of the Assam Land and Revenue Regulation according to which a landholder gets a permanent, heritable and transferable right of the use and occupancy in his land, subject to payment of all revenue, taxes, cesses and rates from time to time legally assessed or imposed thereon. However, the Government reserves the right over all quarries and of all mines, mineral and mineral oils, and of all buried treasure, with full liberty to search and work for the same, paying to the landholder only compensation for the surface damage as may be estimated by the Deputy Commissioner. The State Government is also entitled to incorporate certain conditions of any engagement into which land holder may have entered. The Assam Land and Revenue Regulation confers specific, definite and different status to both the classes of annual and periodic patta-holders. An annual patta can be converted into a periodic one by the revenue authority. When there is a conversion of annual patta land into periodic patta land there is a change of status in respect of 'estate' covered under such patta. Such conversion or change of status can be made only after fulfillment of certain conditions, as per policy laid down by the Government. The Government has also the right to confer such periodic patta to a person other than the person who is holding annual patta if such annual patta holder does not fulfill the criteria to be conferred with the status of a landholder. The status of landholder that may be conferred under the Assam Land and Revenue Regulation may be acquired as per provisions of Section 8 of the Assam Land and Revenue Regulation. 17. In view of the underlying principles and legal status acquired by an annual pattaholder upon conversion of the land in question to periodic one thereby conferring the status of a landholder, it is difficult to accept that such conversion and creation of a higher status to that of landholder amounts to 'transfer of property' within the meaning of Section 5 of the Transfer of Property Act. On the other hand, there is no statutory restriction or bar of conversion of annual patta to a periodic patta during the pendency of the suit. However, such restriction may be provided by way of a restrictive order that may be passed in the suit itself. No such restrictive order having been passed in Title Suit No. 58/86, there was no bar for the revenue authority to convert the annual patta into periodic one during the pendency of the suit. Record disclosed that in Title Suit 58/86 there was an ex-parte ad-interim order of injunction passed on 3.11.86, the same was vacated on 15.7.87 after recording statements of witnesses and having found that the Plaintiff in that suit failed to prove his possession over the suit land. The State and the Deputy Commissioner also not having impleaded as party Defendant, they are free to convert the suit land into periodic. Accordingly, the submission of Mr. Khataniar that by such conversion from annual patta to periodic patta and granting periodic patta of suit property during the pendency of Title Suit No. 58/86 would attract the provision of Section 52 of the Transfer of Property Act, is not tenable, more so in converting the land to periodic patta there was no decision rendered by any 'court' within the meaning of Section 52 of the Transfer of Property Act and the act was nothing but an administrative one. That apart, the Appellant himself also is a beneficiary of the said conversion and it is not on record that the Appellant has refused to accept the said status of the land landholder conferred upon him along with the proforma Defendant No. 1. 18. Thus the second and fourth substantial questions of law are answered against the Appellant. 19. As regards the first substantial question of law which relates to decision on issue No. 3 is in fact has been concluded by the earlier decision arrived at by the First Appellate Court on the first round of litigation. The observation made therein by the learned Appellate Court subsequently does not affect the merit of the decision on Issue No. 3 which attained its finality. Accordingly, this substantial question of law is also answered in negative and against the Appellant. As regards third and fifth substantial questions of law as framed in this appeal, in view of the foregoing discussions, are also answered against the Appellant. Accordingly, this substantial question of law is also answered in negative and against the Appellant. As regards third and fifth substantial questions of law as framed in this appeal, in view of the foregoing discussions, are also answered against the Appellant. 20. Regarding the sixth substantial question of law, as discussed above, the decree passed in Title Suit No. 58/86 is in respect of the suit land while it was annual patta land. The State is the ultimate owner of landed property. Various categories of land are leased out by the State Government by way of the process of settlement. In case of such settlement invariably a lease document is issued which is known as 'patta'. Such patta issued after settlement of earlier operation is only a periodic patta. An annual patta can be granted by the authority even without any settlement operation as prescribed in the Regulation. The status of both the pattas are remarkably different conferring different categories of right upon the pattaholders. Consequently, upon conversion into periodic lease in respect of land which was previously covered by annual patta, the rights of the pattaholder also changes. The character and status of the suit land which was annual patta having been lost during the pendency of the suit by its conversion into periodic patta, the decree passed in Title Suit 58/86 could not be placed into service by the Defendant/Appellant to nullify the rights crystallized after conversion into periodic patta granted in favour of Defendant No. 2. The Defendant No. 2 after obtaining the periodic lease in respect of 6 bighas covering the suit land in his favour by executing three different registered Sale Deed such vide Ext. 1, 2 and 3 sold the suit land in favour of the Plaintiffs and this is not in dispute. After conversion of the annual land into periodic the separate periodic patta No. 228 was issued. Although the Plaintiff obtained the decree in the said suit, the subject matter of the suit was not in existence at the time of passing the decree and without bringing on record the subsequent facts claiming rights over the new periodic patta No. 228, the right of the Defendant No. 2 over the suit land accrued upon conversion would not be affected. In such a situation, the Plaintiff acquired good title over the suit land enforceable in law upon purchase of the same vide Exts-1, 2 and 3 from Defendant No. 2 and have acquired substantial right and title. In view of the above discussions, the sixth substantial question of law is also answered against the Appellant. 21. Although Mr. Khataniar referring to the decisions reported in AIR 1997 SC 2181 and (2007) 13 SCC 182 /565, submits that an order of mutation does not confer the title while not disputing principle of laws enunciated in the said case. In the instant case, the right of the Defendant No. 2, and for that matter that of the Plaintiff, who derived their right, title and interest from Defendant No. 2 acquired not by mutation alone but respectively on the basis of granting periodic patta and execution of registered Sale Deed vide Ext. 1.2 and 3. 22. The reference of Section 39 of the Assam Land and Revenue Regulation as may by Mr. Khataniar is equally not applicable. Section 39 falls under Chapter III of the Assam Land and Revenue Regulation, 1886 and deals with the settlement and resumption but the periodic patta in question in favour of Defendant No. 2 was not issued during the period of settlement. Section 39 deals with a situation where settlement is made wrongly in favour of persons in the settlement operation, there having no semblance of right upon such person and on the basis of the proved facts of this case, the same is not available to the present Appellant to invalidate the concurrent decree passed by the learned Court below. 23. In view of the above discussions and decisions, I am of the view that this appeal is devoid of merit. In the result, this appeal stands dismissed. No costs.