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2014 DIGILAW 559 (GAU)

RATHINDRA DEY v. BARODA KUMAR DUTTA

2014-05-23

N.CHAUDHURY

body2014
Judgment This second appeal at the instance of the defendant of Title Suit No. 182 of 1998 of the Court of learned Civil Judge (Junior Division) No. 2, Karimganj is directed against concurrent findings of the learned Courts below. 2. Plaintiff, Baroda Kumar Dutta instituted Title Suit No. 182 of 1998 in the Court of learned Civil Judge (Junior Division) No.2, Karimganj praying for declaration of his right, title and interest with respect to a plot of land measuring 1 Kedar 2 Pawas and also for recovery of khas possession by evicting the defendant and dismantling their structure standing on the suit land. The plaintiff made a prayer for declaring his right as land holder over the land in question. It was the case of the plaintiff that one Sadhan Chandra Das who had been Jotdar of the aforesaid land in question under original proprietor Dewan Manik Chand Court of Wards’ Estate in the district of Karimganj executed two registered sale deeds on 30.12.1966 and 29.12.1986 transferring whole of 1 kedar 2 powa of land in favour of the plaintiff. Pursuant to such transfer plaintiff came into possession of the land and thereby obtained settlement from the Government. Periodic patta was issued in the name of the plaintiff by the Government by way of settlement operation vide Khaitan No. 127. It is the further case of the plaintiff that one Sunil Roy approached him for using the land as permissive occupier and thereafter in the first part of the year 1987, defendant also approached him for giving shelter. The plaintiff permitted him to occupy the land by making temporary structure but when asked to vacate the land within December, 1997, defendant refused to go and later on, raised an unauthorized permanent structure on the land. Under Such circumstances the plaintiff instituted the suit for declaration of his right, title and interest as a land holder and also for recovery of khas possession by evicting the defendant and dismantling the structure made by him over the suit land. On being summoned the defendant appeared and denied the case of the plaintiff. According to the defendant, plaintiff did not have any right over the suit land. The defendant claimed that he was occupying the land adversely to the interest of one Ram Kumar Suklabaidya and neither Sadhan Chandra Das nor the present plaintiff had possessed the land in any point of time. According to the defendant, plaintiff did not have any right over the suit land. The defendant claimed that he was occupying the land adversely to the interest of one Ram Kumar Suklabaidya and neither Sadhan Chandra Das nor the present plaintiff had possessed the land in any point of time. The plea of the plaintiff that the defendant was not a permanent occupier was specifically denied by the defendant. Upon such rival contentions of the parties the learned trial Court framed as many as 7 issues. The learned trial Court, therefore, framed 2 additional issues also. All these 9 issues are quoted below: (1) Is there any cause of action for the suit? (2) Is the suit maintainable in its present form and manner? (3) Is the suit barred by limitation? (4) Whether the plaintiff has right, title, interest over the suit land? (5) Whether the defendant is liable to be evicted from the suit land? (6) Whether the plaintiff is entitled to get decree as prayed for? (7) Any other relief(s) to which the parties are entitled to get under law and equity? ADDITIONAL ISSUES (8) Whether the defendant is occupying the suit land as permissive occupier under the plaintiff? (9) Whether the suit land is property and correctly described in the schedule of the plaint? Out of the 9 issues, issue No. 4 and additional issue No. 2 are the crux of the suit. 3. The plaintiff examined 3 witnesses including himself and defendant examined 2 witnesses including himself. Plaintiff has adduced 8 documents as Ext.-1 to 8. Defendant also adduced 8 documents as Ext.- A to H. After perusal of the evidence and on hearing the argument of the learned counsel for the parties, the learned trial Court by his judgment and decree dated 29.06.2002 decreed the suit declaring right, title and interest of the plaintiff over the suit land on the basis of Ext.-2 and Ext.5 sale deeds and also for recovery of khas possession by evicting the sole defendant. In so doing, the learned trial Court held that defendant could not prove his possession under Ram Kumar Suklaboidya and anybody else and plaintiff being a recorded pattadar proved his prima facie title. Defendant did not have any right, locus standi or authority to challenge the decision of the trial Court. In so doing, the learned trial Court held that defendant could not prove his possession under Ram Kumar Suklaboidya and anybody else and plaintiff being a recorded pattadar proved his prima facie title. Defendant did not have any right, locus standi or authority to challenge the decision of the trial Court. Aggrieved by the aforesaid judgment and decree dated 29.06.2002 defendant preferred Title Appeal No. 17/2004 in the Court of learned District Judge, Karimganj who by judgment and decree dated 16.03.2005 dismissed the appeal. The learned first appellate court considered the pleadings of the parties as well as the documents of title including Ext.-1 (Khaitan) and Ext.-2 & 5 sale deeds. Relying on Ext.-1 Khaitan, the learned First Appellate Court observed at para 11 of the judgment that final Khaitan was in the name of the plaintiff/respondent and the defendant/ appellant could not establish his possession over the land under Ram Kumar Suklaboidya or that Ram Kumar Suklaboidya had any semblance of title to the land. In paragraph 12 of the impugned appellate judgment the finding is in regard to admission of the defendant that he has no land record pertaining to Khaitan No. 127 of Dag No. 498 which is the suit land. Having taken a positive stand that he was possessing the land adverse to the interest of Ram Kumar Suklaboidya it was his burden to prove that Ram Kumar Suklaboidya was the owner. The defendant failed to discharge his burden. The learned First Appellate Court further observed that during trial, plaintiff wanted appointment of survey commissioner to survey the suit land but because of resistance by the defendant no such order could be passed. Under such circumstances, the learned Court confirmed the finding of the learned trial Court as to title of the plaintiff and dismissed the appeal. It is against such concurrent findings of the learned Courts below the defendant has preferred second appeal before this Court. This Court while taking up the second appeal on 19.08.2005 framed two substantial questions of law and the same are quoted below: (i) Whether findings of the Courts below on issue No. 4 are based on assumptions and conjectures since Ext.4, the power of attorney on the basis of which the Ext.5 the Sale Deed in favour of plaintiff executed, was held by the trial court to be inadmissible in evidence? (ii) Whether the findings of the Courts below that plaintiff has title, on the basis of the entry of his vendor’s name in the Khaitan is legally tenable for non consideration of plaintiff’s admission in cross examination that he has not submitted any document of title of his vendor? 4. I have heard Mr. D. Mazumdar, learned counsel for the appellant and Mr. B.K. Purkayastha, learned counsel for the respondent. 5. Mr. D. Mazumdar, learned counsel for the appellant would argue that the Power of Attorney, Ext.-4 having been found to be not proved in accordance with law, the learned Courts below committed error in not adjudging Ext.-5 to be of no consequence and as such declaration of title of the plaintiff on the basis of Ext.-5 was erroneous. According to the learned counsel, the defendant has been in occupation of the land and constructed permanent structure and thereby he has acquired valuable right, title and interest to the land in question. Per contra, Mr. B.K. Purkayastha would argue that admittedly plaintiff has no semblance of title with regard to land in question. The only claim of the defendant is that he occupied the land to the knowledge of one Ram Kumar Saklaboidya and that his possession was adverse to the interest of Ram Kumar Suklabaidya. But defendant has failed to produce single piece of paper in favour of the claim that Ram Kumar was the owner of the land and that he occupied the land in the knowledge of Ram Kumar Suklaboidya and therefore the plea of adverse possession remained unsubstantiated. On the other hand the plaintiff did not prove Ext.-2 sale deed and Ext.-5 sale deed. Plaintiff has brought on record Ext.-5 Khaitan to show that the land was settled with plaintiff by the Government. The learned counsel argues that originally the land belongs to Dewan Manik Chand Estate which was acquired by State. Subsequently, with the passing of State Acquisition of Zamindari Act, 1951 the land vested on the State of Assam. Mr. Purkayastha further argued that Dewan Manik Chand Estate did not have any legal representatives or legal heirs and it is under such circumstances the Court of Ward was appointed by the Government. Subsequently, with the passing of State Acquisition of Zamindari Act, 1951 the land vested on the State of Assam. Mr. Purkayastha further argued that Dewan Manik Chand Estate did not have any legal representatives or legal heirs and it is under such circumstances the Court of Ward was appointed by the Government. Even after coming into force of the constitution, by the operation of Article 296 of the Constitution of India and on application of the principle of bona vacantia it vested to the State. The State is at liberty to settle land under the provisions of Assam Land Revenue Regulation, 1886 and this having been done during settlement operation khaitan was issued in favour of the plaintiff. Issuance of patta/khaitan in the name of the plaintiff by way of settlement operation conferred right on him under Section 9 of the Assam Land & Revenue Regulation, 1886. Admittedly and apparently transferable and heritable right as land holder had accrued to the plaintiff by operation of law and this is why the learned Courts below decreed the prayer of the plaintiff as land holders with respect to suit land. Mr. Purkayastha would further argue that defendant does not have any locus standi even to challenge the legality and validity of the sale deeds Ext.-2 & 5. 6. The suit land fell in the permanently settled Estate in the district of Karimganj. It was a part of the Dewan Manik Chand Court of Wards’ Estate. The land vested to the Government by acquisition of Zamindars in the year 1951. By adducing certified copy of the records of rights as Ext.-1, plaintiff has succeeded to prove that he was settled with the land by the government and thus consequently transferable and heritable right as land holder accrued to the plaintiff by operation of Section 9 of the Assam Land & Revenue Regulation, 1886. By Ext.-2 & 5 plaintiff did not claim to have purchased title. What he purchased by Ext.-2 & 5 is possession. The title remained with Dewan Manik Chand Court of Wards’ Estate. As held by Salmond title is nothing but vested facts on the basis of which de jure rights spring up. The vested facts in this case are that the land belongs to Dewan Manik Chand Court of Wards’ Estate and subsequently vested in the State of Assam and that the government settled the land with the plaintiff. As held by Salmond title is nothing but vested facts on the basis of which de jure rights spring up. The vested facts in this case are that the land belongs to Dewan Manik Chand Court of Wards’ Estate and subsequently vested in the State of Assam and that the government settled the land with the plaintiff. On these vested facts de jure rights under Section 9 of the Assam Land and Regulation, 1886 was acquired by plaintiff and so the aforesaid vested facts constituted title. This being the position irrespective of whether Ext.-4 was proved or not as required by law but yet on the basis of Ext.-1 plaintiff acquired right as land holder under Section 9 of the Assam Land & Revenue Regulation. In this view of the matter the substantial questions of law No.1 is decided in favour of the Plaintiff/Respondent. 7. Coming to the second substantial question of law, the plaintiff did not produce document of title of his vendor. The said substantial question of law, perhaps, does not arise out of the facts of the case inasmuch as it is not the case of either of the parties to the suit that Sadhan Chandra Das was a title holder. Sadhan Chandra Das was Jotdar as per the case of the plaintiff and so he had no document of title to his possession. Land belonged to Dewan Manik Chand Court of Wards’ Estate and as such there was ownership with the Government pursuant to acquisition of Zamindaries in the year 1951. Under such circumstances the question of failure of the plaintiff to produce his document of title to the vendor of the land does not appear in the case. The contention of Mr. B.K. Purkayastha that substantial question No. 2 does not arise out of the facts of this case, has force. 8. In view of what is stated above the second appeal is devoid of any merit and it is accordingly dismissed. 9. No order as to costs.