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2013 DIGILAW 33 (MEG)

Lakshmi Prabha Borah v. Bhagya Devi

2013-08-08

NISHITENDU CHAUDHURY

body2013
Judgment Nishitendu Chaudhury, J. 1. Heard Mr. P.K. Kalita assisted by Ms. T. Goswami on behalf of the appellants. None appears on behalf of the respondents. By order dated 18.05.2012, this Court observed that despite service of notice, no one had put up appearance on behalf of the respondents and accordingly, the matter was directed to be listed for hearing. To-day also, when the matter has been called up for hearing, no one appeared on behalf of respondents. The appeal is taken up ex-parte. 2. This second appeal has been preferred by defendant Nos. 1 to 5 of the main suit, namely, Title Suit No. 206 of 1995. The suit was instituted by one Tarun Ch. Sharma (Predecessor-in-interest of present respondent Nos. 1 to 3) praying for a decree declaring that he was an occupancy tenant on a plot of land measuring (1) 3B, 1K, 10L, under Dag No. 544, (2) 4B, 0K, 3L under Dag No. 637 and (3) 7B, 0K, 5L under Dag No. 702 of K.P. No. 52 of village Teteliguri under Mouza Sanapur in the District Kamrup claiming that the said land was covered by khatian No. 1. The case of the plaintiff as pleaded in the plant is that he became an agricultural tenant under one Pranab Kumar Bora (the predecessor-in-interest Nos. 1 to 5) about 35 years, prior to the institution of the date of the suit on payment of 32 mounds of paddy per bigha per year as annual rent to the landlord. On 30.06.1976, he was given Rayoti Khatian for the said land. As tenant under aforesaid Pranab Kr. Bora (since deceased), he has been cultivating the land for more than 16 years since issuance of Khatian. According to the plaintiff, he filed application for ownership right over the land before the Deputy Commissioner, Kamrup, on 13.03.1995 and the same was pending. At this time the defendant Nos. 1 to 5 in collusion with defendant No. 6 sought to dispossess the plaintiff from the suit land for which the plaintiff had to institute a proceeding before the learned Executive Magistrate under Section 145/146 Cr.P.C. and thereby the land was attached on 25.05.1995. To frustrate the said proceeding, the plaintiff further stated, the defendant Nos. 1 to 5 obtained ex-parte order under Section 144 Cr.P.C. on 08.05.1995 suppressing fact of 145/146 Cr.P.C. proceeding. To frustrate the said proceeding, the plaintiff further stated, the defendant Nos. 1 to 5 obtained ex-parte order under Section 144 Cr.P.C. on 08.05.1995 suppressing fact of 145/146 Cr.P.C. proceeding. Thereupon by order dated 26.05.1995, the attachment order was stayed on representation by the defendant Nos. 1 to 5. The 144 Cr.P.C. proceeding also lapsed in the meantime. Under such circumstances, the plaintiff instituted the suit claiming declaration as aforesaid, along with a prayer for declaration of temporary or permanent injunction restraining defendants, their agents or servants or any other persons claiming under them from entering into the suit land. 3. The defendant Nos. 1 to 5 contested the suit by filing written statement. The stand taken by the defendants in their written statement is that the plaintiff never held or possessed the suit land as tenant or otherwise, that he is not entitled to acquire any right of tenancy over the suit land, that the so-called Khatian was illegal and fraudulent and that the plaintiff managed to procure the same 'surreptitiously by influencing the land records staffs'. The defendants further stated that their predecessors never had any knowledge of getting such Khatian by the plaintiff and there was no field survey for the purpose. However, having come to know about the Khatian for the first time during the pendency of proceeding under Section 145 Cr.P.C. they filed a revision case before the Government vide RRT No. 235 of 1995 and the same was pending. On these facts, the defendants prayed that the suit of the plaintiff be dismissed with cost. 4. Upon such rival pleadings of the parties, the learned Trial Court i.e. leaned Sadar Munsiff No. 1, Guwahati, framed as many as 6 issues and the same are quoted below: "1. Whether there is cause of action for the suit? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether the plaintiff is tenant in possession of the suit land under the defendants? 4. Whether the plaintiff obtained the alleged Khatian No. 1 in respect of the suit land surreptitiously by manipulating revenue staffs? 5. Whether the plaintiff is entitled to declaration and injunction as prayed for? 6. Any other relief to which parties may be entitled to." 5. The plaintiff examined himself as a lone witness where as defendants examined 2 witnesses. 4. Whether the plaintiff obtained the alleged Khatian No. 1 in respect of the suit land surreptitiously by manipulating revenue staffs? 5. Whether the plaintiff is entitled to declaration and injunction as prayed for? 6. Any other relief to which parties may be entitled to." 5. The plaintiff examined himself as a lone witness where as defendants examined 2 witnesses. Defendant No. 4 (Bhupendra Narayan Bora) was examined as D.W. 1 and defendant No. 6 (Pulak Ch. Sarma) was examined as D.W. 2. The plaintiff exhibited khatian dated 30.06.1976 as Exhibit-1 in original. The defendants did not exhibit any document. The learned Trial Court after hearing parties and on perusal of the materials available on record, decided issue No. 3 referred to above in favour of the plaintiff on the basis of Exhibit-1 Khatian. It is the finding of fact of the learned Trial Court that Khatian in respect of the suit land was issued by the competent authority in favour of the plaintiff and the same prima-facie established tenancy rights of the plaintiff over the suit land and as such so long as the said Khatian remained in existence, the plaintiff is to be deemed to be a tenant with respect to the suit land under the landlord. It is necessary to mention here that the issue No. 4 of the suit referred to above was framed on the basis of pleading of the defendant that the Khatian was illegal and fraudulent one created in collusion with the land record staff. The defendants, however, did not examine any land record staff. The minutes of the proceeding leading to issuance of the Exhibit-1 Khatian was also not called for by the defendants. 6. Be that as it may, it is the finding of the learned Trial Court that no evidence was led by the defendants to establish the allegations that Khatian was procured by collusion. The finding of the learned Trial Court in this regard is quoted below: "But no evidence is adduced to prove that the Khatian is a fraudulent one. Therefore, mere statement is not enough to come to conclusion that the Khatian was obtained by the plaintiff by manipulating revenue staffs. The finding of the learned Trial Court in this regard is quoted below: "But no evidence is adduced to prove that the Khatian is a fraudulent one. Therefore, mere statement is not enough to come to conclusion that the Khatian was obtained by the plaintiff by manipulating revenue staffs. Considering the facts and circumstances of the case as transpired from the record and in view of the above, this issue is decided in the negative." Thus, having decided both the issues, namely, issue No. 3 & 4 in favour of the plaintiff the learned Trial Court decreed the suit, declaring tenancy right of the plaintiffs, over the suit land and thereby allowing the prayer of permanent injunction restraining the defendants to enter into the suit land. The said judgment of the learned Trial Court was passed on 25.06.1999. 7. The defendant Nos. 1 to 5 challenged the learned Trail Court's decree before the learned Civil Judge (Senior Division) No. 3, Kamrup, Guwahati vide Title Appeal No. 30 of 1999. The learned Appellate Court discussed the deposition of P.W. 1 and D.W. 1 in detail and thereafter relying on Exhibit-1 Khatian upheld the findings of the learned Trial Court and thereby dismissed the Title Appeal on 30.03.2002. 8. It is this judgment which has been challenged in the present second appeal. While admitting this appeal on 16.07.2002, this Court framed one substantial question of law and the same is quoted below: "i) Whether the learned Courts below misread the evidence of plaintiff P.W. 1 in arriving at the decision relating to the possession of the plaintiff?" 9. Mr. P.K. Kalita, learned Counsel for the appellants, has made submissions as follows: i) That the plaintiff was never a tenant and this is evidenced from his cross-examination, wherein he admitted that there was no agreement with the landlord, although he could not produce any receipt in acknowledgement of payment of rent to the landlord. ii) That the P.W. 1 himself stated in the cross-examination in the Criminal Proceeding instituted by him under Section 327/379 IPC, alleging theft of paddy against defendants, he had named Bhaben Bora as his landlord. However, the said judgment or certified copy of the deposition was not brought on record. iii) That the so-called Khatian was claimed to have been issued by Kanungo and was not issued by competent authority. 10. However, the said judgment or certified copy of the deposition was not brought on record. iii) That the so-called Khatian was claimed to have been issued by Kanungo and was not issued by competent authority. 10. Having gone through the materials available on record and after hearing learned counsel for appellant, it appears that here is an appeal challenging concurrent findings of the two Courts below holding that the plaintiff is a tenant under the defendant Nos. 1 to 5 and the said finding is based on tenancy Khatian No. 1/1976. This khatian is on record as Exhibit-1. Khatian is the certificate as to final publication of the records of rights and under Section 58(4) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 which provides that such records of rights prepared and published under the Act is to be presumed to have been finally published unless the contrary is proved. The Section 58(5) of the same Act mandates that every entry in the records of rights finally published is conclusive evidence of the matter referred to in any such entry and the same shall be presumed to be correct until it is proved by evidence to be incorrect. The exhibit-1, therefore, is to be presumed to be correct and the same is conclusive evidence as to tenancy of the plaintiff over the suit land until the same is proved to be incorrect by leading evidence. The purport of Section 58(5) is that it shall be the burden of the person challenging the Khatian to lead evidence so as to prove khatian to be incorrect. It cannot be the burden of the plaintiffs to establish that khatian was duly published. As long as the Khatian has been brought on record from the custody of the plaintiff in the capacity of the occupancy tenant, it was the burden of the defendants to lead evidence to prove the same to be incorrect. No attempt has been made by the defendants in this case to lead any evidence against the said Khatian as required under Section 58(5) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971. 11. Mr. P.K. Kalita, learned counsel for appellants, has pressed the deposition of the P.W. 1 in entirety in course of his argument. No attempt has been made by the defendants in this case to lead any evidence against the said Khatian as required under Section 58(5) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971. 11. Mr. P.K. Kalita, learned counsel for appellants, has pressed the deposition of the P.W. 1 in entirety in course of his argument. Nowhere any material exists in the said evidence to hold that the Khatian Exhibit-1 was not issued, by following the provisions established by law and/or that fraud was perpetrated in issuing the same although that was the specific case of the defendant pleaded in the written statement. Having taken a specific stand in the written statement that Khatian was procured by 'manipulating the land record staff it was the burden of the defendants to prove the said allegations. Having miserably failed to discharge their burden as referred to above, the learned Trial Court below concurrently held that the plaintiff is entitled to a declaration on the basis of Khatian Exhibit-1 as tenant under the defendants (Appellants herein) with respect to the suit land. 12. Learned counsel for the appellant even after strenuous argument could not succeed to show that the said concurrent findings of the learned Trial Court below are perverse and/or were vitiated by non-reading or misreading of any evidence, not to speak of the evidence of plaintiff. 13. In that view of the matter, I do not find any reason to hold the aforesaid substantial question of law in the affirmative and consequently this Second Appeal stands dismissed. Send down the records immediately after drawl of decree. No order as to cost.