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2012 DIGILAW 860 (GAU)

Sukumar Mondal v. Bapuji Samabai Krishi Pam

2012-07-20

ANIMA HAZARIKA

body2012
JUDGMENT Anima Hazarika, J. 1. The appellants, five (5) in numbers, call in question the legality and validity of the judgment and decree passed by the learned Civil Judge (Sr. Div.), Nagaon in Title Appeal No. 5/99 whereby and whereunder the learned first appellate court dismissed the appeal thereby affirming the judgment and decree passed by the learned Civil Judge (Jr. Div.), Kaliabar in Title Suit No. 9(k)/96. Heard Mr. A. Dasgupta, learned counsel appearing for the appellants. Also heard Ms T. Goswami, learned counsel appearing for the respondent Nos. 1 and 2 and Mr. P.S. Deka, learned State counsel appearing for respondent Nos. 3, 4 and 5. 2. Material facts, in a nutshell, are as follows:- The suit was filed by respondents Nos. 2 and 3 herein as plaintiff for declaration of right, title and interest and for khas possession over a plot of land measuring 25 Bighas covered by Dag No. 115 of Uttar Bhelouguri (Belguri) of Lawkhowa Mouza under Rupahi Police Station in the district of Nagaon, wherein it was pleaded that the Government of Assam vide Memo No. RSS. 311/90/28 dated 18.8.1990 made settlement of the said khas land to the plaintiff No. 1, Co-operative Society and on 25.11.1990, the land revenue authority to the Government of Assam delivered possession of the suit land to the plaintiff No. 1, Bapuji Samabai Krishi Pam and accordingly, the plaintiffs have been possessing the suit land and mutated the said plot of land in the name of the plaintiff No. 1 Bapuji Samabai Krishi pam in the record of right. Further pleaded fact as averred in the plaint was that on 3.9.1992 the defendant Nos. 1 and 2 encroached the suit land and dispossessed the plaintiffs from the suit land denying their right, title and interest over the suit land and hence the plaintiffs have filed the suit in the Court of Civil Judge (Jr. Div), Kaliabar being Title Suit No. 9(k)/96 seeking a decree for declaration of right, title and interest over the suit land and recovery of khas possession. 3. On receipt of the summons the defendant Nos. 1, 2, 4, 5, 8, 9, 12, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 26, 28 and 29 contested the suit by filing their written statement taking all the pleas available under Order VIII of the Code of Civil Procedure ('Code' for short). 3. On receipt of the summons the defendant Nos. 1, 2, 4, 5, 8, 9, 12, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 26, 28 and 29 contested the suit by filing their written statement taking all the pleas available under Order VIII of the Code of Civil Procedure ('Code' for short). The pleaded fact of the defendants was that the Government of Assam had never settled the suit land in favour of the plaintiffs and had never delivered physical possession of the suit land to the plaintiff cooperative society, rather the defendants have been possessing the suit land for more than 20 years and they are still possessing the suit land. The case of the defendants are that the plaintiffs are not in occupation of the land and they have no right, title and interest over the suit land and in regard to dispossession, the defendants have averred that the question of dispossession does not arise since the plaintiffs were never in physical possession of the suit land since the paramount title of the suit land remained with the Government of Assam, and they have the possessory right over the suit land as described in the plaint and hence there is no cause of action and the suit is liable to be dismissed. 4. During the trial of the suit, the name of defendant Nos. 3, 6, 23 and 25 were struck off from the plaint. The plaint was, however, allowed to be amended whereby the State of Assam, represented by the Deputy Collector and Sub Deputy Collector ('SDC' for short) of Nagaon district were made parties to the suit as defendant Nos. 30, 31 and 32. 5. The trial Court on the pleadings of the contested parties, framed the following issues for decision and determination of the suit;- (i) Whether there is any cause of action for the suit? (ii) Whether the suit is bad for non-joinder and mis-joinder of necessary parties and whether the Govt. of Assam is a necessary party? (iii) Whether the plaintiff has right to sue? (iv) Whether the plaintiff has got right, title and interest over the suit land? (v) What relief or reliefs the parties are entitled to? 6. To substantiate their case, the plaintiffs have examined the following witnesses, namely, PW-1 (Thanuram Saikia), Chairman of the plaintiff society, PW-2 (Abdul Kuddus), Lot Mandal, PW-3 (Md. (iii) Whether the plaintiff has right to sue? (iv) Whether the plaintiff has got right, title and interest over the suit land? (v) What relief or reliefs the parties are entitled to? 6. To substantiate their case, the plaintiffs have examined the following witnesses, namely, PW-1 (Thanuram Saikia), Chairman of the plaintiff society, PW-2 (Abdul Kuddus), Lot Mandal, PW-3 (Md. Abdul Kalam), PW-4 (Abdul Sattar), PW-5 (Faroque Hussain) L.D. Assistant in the office of the Assistant Registrar of Co-operative Societies, PW-6 (Mahendra Nath Sharma), U.D. Assistant of Deputy Commissioner's Office, Nagaon, PW-7 (Mahim Chandra Baruah), Secretary of plaintiff Society. 7. The plaintiffs have further proved and exhibited the following documents, viz;- Ext.1- Allotment letter by the Government vide memo No. RSS 311/90/28, Ext.2- order of Section 144 Cr.P.C. proceeding in M.R. Case No. 41/91, Ext.3- Chitha copy relating to the suit land (proved in original), Ext.4- sketch map of the suit land, Ext.5- certificate regarding delivery of possession of the suit land by S.D.C., Ext.6- Section 80 C.P.C. Notice (under objection), Exts.7, 8, 9- postal receipts, Exts.10, 11, 12- A/D cards, Ext.13- Registration certificate (proved in original), Ext.14-Resolution copy, Exts.15, 16- Touzi paying receipts. 8. The defendants on their behalf have examined the following witnesses to dislodge the claim of the plaintiffs viz;- DW1-Pusparanjan Sarkar (co-defendant), DW2- Jatindra Mandal, DW3-Sukumar Sarkar (co-defendant). The defendants have proved and exhibited the following documents viz;- Ext -Ka(1) to Ka(26)- Touzi paying receipts. 9. The learned trial Court after taking into consideration the evidence on record including the pleadings of the parties and documents exhibited, had decided the issue No. 2 in the negative and issue Nos. 1, 3 and 4 in the affirmative and decreed the suit holding that the plaintiffs have right, possessory title and interest over the suit land measuring 25 Bighas covered by Dag No. 115. The trial Court further ordered and decreed for recovery of Khas possession of the suit land by evicting the defendants therefrom. 10. The defendants took up the case on the file of the learned Civil Judge (Sr. Dvn.), Nagaon on appeal, being Title Appeal No. 5/99 against the judgment and decree passed by the learned Civil Judge, (Jr. Dvn.), Kaliabar, in TS No. 9(k)/96. 10. The defendants took up the case on the file of the learned Civil Judge (Sr. Dvn.), Nagaon on appeal, being Title Appeal No. 5/99 against the judgment and decree passed by the learned Civil Judge, (Jr. Dvn.), Kaliabar, in TS No. 9(k)/96. In the appeal, the learned appellate court took up for decision the following two points;- (i) Whether there is defect of serving notice under section 80 of the C.P.C. upon the Government of Assam, if so, whether it will affect the maintainability of the suit against the defendants? (ii) Whether the learned court below has rightly decreed the suit of the plaintiffs declaring right, title and possession in favour of the plaintiffs? 11. The learned appellate Court upon hearing the contesting parties has held that the plaintiffs have not sought any relief against the proforma defendant Nos. 30, 31 and 32 and they were made parties to the suit only to decide the case in their presence. The learned appellate Court has further held that no issue was framed to that effect and even no objection was made by the defendants in the trial of the case for amendment of the issue and it is also an admitted fact as it would reveal from the record of the case that the notices were served upon the proforma defendant Nos. 30, 31 and 32 on 21.12.1995 and they were impleaded as parties to the suit on 24.01.1996 and since no relief has been sought against the proforma defendant Nos. 30, 31 and 32, the appellate Court answered the question in the negative, holding that the suit was maintainable against the other defendants even if there is defect in serving the notice under Section 80 of the Code against the proforma defendant Nos. 30, 31 and 32. 12. 30, 31 and 32, the appellate Court answered the question in the negative, holding that the suit was maintainable against the other defendants even if there is defect in serving the notice under Section 80 of the Code against the proforma defendant Nos. 30, 31 and 32. 12. On the question as to whether the learned trial Court has rightly decreed the suit in favor of the plaintiff, the appellate Court after taking into consideration the evidence of PWs 1, 3, 4, 6 and 7 along with Exts.1 and 3 has held that the Government of Assam gave settlement of a plot of land measuring 25 Bighas covered by Dag No. 115 of Uttar Bhelouguri (Belguri) Kissam of Lawkhowa Mouza within the district of Nagaon vide Government memo No. RSS 311/90/28 dated 18.08.1990 and delivered possession of the suit land to the plaintiff No. 1 on 25.11.1990 by the revenue authority and on 03.09.1992 the defendants dispossessed the plaintiffs from the suit land denying their right and title though the land was mutated in favor of the plaintiffs on 16.11.1990, whereas, the defendants have averred that they have been possessing the suit land for the last 20 years and in support of the statements they have exhibited documents vide Ext Ka(1) to Ka(26) which relates to Touzi Bahira revenue receipts which, however, would disclose that these receipts are not the revenue payment receipt of the suit land covered by Dag No. 115 and hence, answered the question in favour of the plaintiffs holding that the plaintiffs have right, possessory title and interest over the suit land thereby decreed the suit affirming the judgment and decree passed by the learned trial Court. 13. The legality of the judgment and decree passed by the learned appellate Court in T.A. No. 5/99 has been assailed under Section 100 of the Code where this Court on 23.5.2001 has admitted the appeal formulating the following substantial questions of law. (i) When the suit land was a Government khas land, whether the Government of Assam was a necessary party in the suit and in the absence of the Government of Assam, whether the suit could have been decreed in favor of the plaintiffs? (i) When the suit land was a Government khas land, whether the Government of Assam was a necessary party in the suit and in the absence of the Government of Assam, whether the suit could have been decreed in favor of the plaintiffs? (ii) Whether the Court could decree the suit for right, title and interest in favor of the plaintiffs merely on the basis of allotment order of the Government of Assam (Ext1), chitha copy (Ext3) and Touzi paying receipt (Exts 15 and 16)? (iii) Whether the courts below have ignored material documents produced by the defendants, namely, Touzi paying receipt Ext- Ka(1) to Ka (26)? 14. Challenging the legality and validity of the judgment and decree passed by both the courts below and in support of the substantial questions of law formulated by this Court, Mr. Dasgupta, learned counsel appearing for the appellants/defendants has contended that the pleaded facts as averred in the plaint would disclose that the land measuring 25 Bighas as described in the schedule of the plaint was admittedly khas land of the Government of Assam. Therefore, in absence of Government of Assam and/or its officers, the suit could not have been decreed in favor of the plaintiffs which requires interference under Section 100 of the Code. 15. Mr. Dasgupta would further contend that admittedly the land measuring 25 Bighas was settled in favour of the plaintiff No. 1 by the Government of Assam and on the basis of the allotment order coupled with Exts. 13, 15 and 16 can not be a basis for holding that the right, title and interest of the plaintiffs have been established, inasmuch as, the defendants' Exts Ka(1) to Ka(26) have been turned down though the defendants are in possession of the land for more than 20 years which require interference under Section 100 of the Code. 16. Countering the arguments advanced by Mr. Dasgupta, Ms. Goswami, learned counsel appearing for the respondent Nos. 16. Countering the arguments advanced by Mr. Dasgupta, Ms. Goswami, learned counsel appearing for the respondent Nos. 1 and 2 would contend that the substantial questions of law as formulated by the court are not substantial questions of law, since the questions have been extensively dealt with by both the courts below and findings being concurrent findings of facts and there being no perversity in arriving at the question of issues dealt with by the courts below, it would not require to be interfered with under the guise of Section 100 of the Code. 17. Considered the submissions made by the learned counsel appearing for the parties, perused the evidence on records including the oral and documentary evidence alongwith the pleadings of the parties. admittedly the plaintiffs brought the suit contending that the Government of Assam has settled the land measuring 25 Bighas pertaining to Dag No. 115 of Uttar Bhelouguri (Belguri) of Lawkhowa Mouza in the district of Nagaon with the plaintiffs on 18.08.1990 vide Government Memo No. RSS.311/90/28 dated 18.08.1990. The possession of the land was delivered to the plaintiffs on 25.11.1990 by the land revenue authority to the Government of Assam. Consequently thereupon, a separate dag was curved out for the suit land and revenue record was amended accordingly and the Dag No. 115 has been corrected relating to land measuring 25 Bighas which was settled by the Government of Assam in favour of the plaintiff No. 1. 18. The plaintiffs in order to substantiate their claim, have examined 7 witnesses during the trial. PW 1, Thanuram Saikia and PW 7, Mahim Chandra Baruah, who were the Chairman and Secretary of the plaintiff society, have deposed that the suit land measuring 25 Bighas out of total land measuring 55 Bighas, 3 Kathas, 16 Lechas was settled with the plaintiff society on 18.08.1990 which was marked as Ext-1. PWs 1 and 7 have also stated that the suit land was demarcated with concerned revenue record marked as Exts. 3, 15 and 16 would further disclose their long possession over the suit land. PWs 2, 3, 5 and 6 supported the case of the plaintiffs to prove that the Government of Assam has made settlement of the suit land in favour of the plaintiffs but the defendants have dispossessed the plaintiffs on 03.09.1992 which has resulted the cause of action for the suit. 19. PWs 2, 3, 5 and 6 supported the case of the plaintiffs to prove that the Government of Assam has made settlement of the suit land in favour of the plaintiffs but the defendants have dispossessed the plaintiffs on 03.09.1992 which has resulted the cause of action for the suit. 19. The defendants, on the other hand, claimed that they are possessing the land for the last 20 years by paying Touzi Bahira Revenue vide Touzi receipts Ext.-ka (1) to Ext.-ka(26) but miserably failed to prove that the Touzi revenue receipts vide Ext.-ka(1) to Ext.-ka(26) have been received for occupation of the suit land comprised of Dag No. 115 or related to the suit land. Moreover, DW-1, Pusparanjan Sarkar, in his examination-in-chief, has stated that the plaintiff society cultivated the suit land with the engaged men on "Adhi - Sukti". He has also stated that no revenue receipt is filed in respect of the said Dag No. 115. He has further stated that the suit land was settled with the plaintiff's Society. DWs-2 and 3 have stated that the plaintiffs used to cultivate the pit jute on the suit land and, therefore, Exts-ka(1) to ka(26), namely, Touzi receipts, do not support the case of the defendant which is not related to Dag No. 115 of the suit land. 20. A close reading of the plaint and the decision rendered by both the courts below would disclose that plaintiffs have sought the relief praying for declaration of right, title and khas possession in respect of the suit land since the defendants have dispossessed them on 03.09.1992 after the settlement of the suit land by the Government of Assam on 18.08.1990 and no relief has been sought for against the State of Assam, though the State of Assam was made party along with the officers as proforma defendant Nos. 30, 31 and 32. The question of necessary party and notice under Section 80 of the Code have gone into by the courts below and answered the questions in negative and it is a concurrent findings of facts arrived at by both the courts below. This Court seems it fit to hold that since no relief has been sought for against the State of Assam, the State of Assam is not a necessary party as held by both the courts below and answered the question accordingly. 21. This Court seems it fit to hold that since no relief has been sought for against the State of Assam, the State of Assam is not a necessary party as held by both the courts below and answered the question accordingly. 21. It is well settled that concurrent findings shall be subjected to interference if the same is vitiated due to perversity of the reasoning and also due to surmises and mis-reading of the materials available on record. But in the instant case, I do not find any such perversity or mis-reading of the materials available on record that need interference. Accordingly, I am of the considered view that the courts below correctly and fairly dealt with all the issues in its proper perspective. 22. For the foregoing discussions, reasons and observation, I have no hesitation to hold that the appeal deserves dismissal which I hereby do. In the result, the second appeal fails. No costs. Send down the records to the court below forthwith. Appeal dismissed.