Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 796 (GAU)

Tarun Ch. Baishya v. Ramesh Baishya

2014-08-19

N.CHAUDHURY

body2014
JUDGMENT AND ORDER (ORAL) Plaintiff, as appellant, has preferred this second appeal challenging concurrent findings of the learned courts below whereby the suit of the plaintiff was dismissed and appeal there-against also failed. 2. Plaintiff, Tarun Ch. Baishya instituted Title Suit No. 173/2001 in the Court of learned Civil Judge (Jr. Divn.) No. 2 at Guwahati stating that he had purchased a plot of land measuring 1 Katha 17 Lechas under Dag No. 295 of K.P. Patta No. 47 covered by Mouza Pub Bongsar in the district of Kamrup by registered sale deed. He also obtained mutation on 01.02.1990. According to the plaintiff, schedule B land measuring 8 Lechas being adjacent to the schedule A purchased land, he occupied the same uninterruptedly and in consideration of this, the revenue authority included 8 Lechas of land belonging to Government inside his Dag by order dated 22.07.1993 passed by the ADC, Kamrup, leading to correction of the records of rights. Accordingly, schedule B land measuring 8 Lechas has been owned and possessed by him. It is the case of the plaintiff that while revenue record indicates his possession over the land, the sole defendant forcibly entered into it on 10.04.1999 and dispossessed the plaintiff forcefully. Plaintiff approached Hajo Police Station for redressal of his grievance but police did not take any action for which filing of the suit became necessary. Plaintiff claimed a decree for declaration of his right, title and interest over the schedule B land and delivery of khas possession by evicting the defendant and demolishing the structure made by him. 3. Defendant appeared and submitted written statement challenging the claim made by the plaintiff. According to him, he has been in possession of the land for long period and that plaintiff never possessed the same. Upon pleadings of the parties, the learned Trial court framed as many as 5 (five) issues and the same are quoted below:- i) Whether there is cause of action? ii) Whether the suit is maintainable? iii) Whether the defendant forcefully occupied the suit land? iv) Whether the plaintiff has right, title and interest over the suit land? v) To what relief/reliefs the plaintiff is entitled? 4. Plaintiff examined 3 (three) witnesses including himself while defendant also examined 3 (three) witnesses including himself. ii) Whether the suit is maintainable? iii) Whether the defendant forcefully occupied the suit land? iv) Whether the plaintiff has right, title and interest over the suit land? v) To what relief/reliefs the plaintiff is entitled? 4. Plaintiff examined 3 (three) witnesses including himself while defendant also examined 3 (three) witnesses including himself. The learned Trial court after hearing the parties and on perusal of the materials on record found that although both the parties are claiming possession of the land for many years but none of them could produce any evidence to show that there is settlement in their favour. While deciding issue No. 4 the learned Trial court specifically observed that there is no other evidence to show that plaintiff was given settlement of 8 Lechas of Sarkari land by government who is the owner of the land. Mere inclusion of 8 Lechas of Sarkari land in the suit dag and patta by way of correction of Jamabandi cannot in any way confer right, title and interest to the plaintiff. The learned Trial court dismissed the suit of the plaintiff by judgment dated 17.06.2004 which was assailed in Title Appeal No. 52/2004 in the Court of learned Civil Judge (Sr. Divn.) No. 1, Kamrup at Guwahati. The learned first Appellate court considered the submissions of both sides. The learned first Appellate court observed that as per Ext. 2 plaintiff was recorded owner of the suit patta and dag which originally comprised of schedule ‘A’ land only. Plaintiff got ‘A’ schedule land by way of purchase. From the recital in Ext. 2, it is manifest that 8 Lechas of Sarkari land from the adjacent Dag No. 304 was included in the suit dag and patta by causing correction of the jamabandi. But the plaintiff has failed to show as to whether the said land was settled with him by the Government in any way. No evidence having been placed on record to show that 8 Lechas of land was settled with the plaintiff by the Government, the learned first Appellate court did not find any reason to upset the findings of the learned Trial court and consequently the first appeal was dismissed. No evidence having been placed on record to show that 8 Lechas of land was settled with the plaintiff by the Government, the learned first Appellate court did not find any reason to upset the findings of the learned Trial court and consequently the first appeal was dismissed. These two judgments have been brought in challenge before this court by way of second appeal and this court while admitting the same on 16.01.2006 framed following substantial question of law:- “Whether the findings of the Courts below to the effect that the suit land is a sarkari land despite the evidence adduced by the plaintiff showing that the suit land is covered by K.P. Patta are perverse?” 5. I have heard Mr. Sheeladitya, learned counsel for the appellant. None appears for the respondent. 6. Even in the plaint, plaintiff has stated that he purchased 1 Katha 17 Lechas of land covered by schedule ‘A’ land under Dag No. 295 of Mouza Pub Bongsar. Suit land originally belonged to Dag No. 304 adjacent to Dag No. 295. Admittedly Dag No. 304 is Government khas land and was not settled with anybody. Plaintiff of his own showing possessed the land without being settled with it and obtained mutation with respect to schedule ‘A’ land on the basis of purchase. Schedule ‘B’ land was added to Dag No. 295 by revenue staff in recognition of his occupation of the land for long time. This order having been passed by the revenue officer, according to the plaintiff, right, title and interest has devolved on him and as such he is entitled to a decree for declaration as well as consequential relief. A Government land can be disposed of by way of settlement in favour of a private person. Once such a settlement is made, the person getting such settlement acquires title of land holder or settlement holder. Except by way of settlement, Government land cannot devolve on a private party. Government has land policy for the purpose of disposal of government land in favour of private persons and according to the procedure, a proposal is placed before Sub-divisional Level Advisory Board or District Level Advisory Board as the case may be who after due consideration of the matter, if satisfied that the case comes within the mischief of land policy then recommends for settlement of land in favour of the applicant. In that event, the recommendation is referred to the Government who after making assessment proposes the applicant to make payment of premium. Once premium is paid settlement is granted in favour of the applicant. Rule 26 of the Settlement Rules framed under Assam Land and Revenue Regulation, 1886 provides that such settlement is confirmed by the Commissioner. Upon such confirmation, the person with whom the land is settled acquires right under Section 9 of the Assam Land and Revenue Regulation, 1886. In the case in hand, an order has been passed by the Additional Deputy Commissioner as a Revenue Officer carving out 8 Lechas of land from Dag No. 304 to the private land of the plaintiff covered by Dag No. 295 without following the procedure of settlement as prescribed under the Rules and Executive Instructions under the Assam Land and Revenue Regulation, 1886. Power of confirmation of settlement having been given to the Commissioner and not to Additional Deputy Commissioner under Rule 26 of the Settlement Rules of the Assam Land and Revenue Regulation, 1886, such an order as available in Ext. 2 and Ext. 3 cannot confer any right of land holder or settlement holder to the plaintiff. Plaintiff is neither a settlement holder nor a land holder within the meaning of Assam Land and Revenue Regulation and as such the learned courts below have not committed any error in holding that plaintiff did not acquire right, title and interest over schedule ‘B’ land. The action of the Additional Deputy Commissioner in carving out 8 Lechas of land from Government khas land and adding the same to the patta land of the appellant is no exercise of settlement within the meaning of Assam Land and Revenue Regulation and this being the position, the sole substantial question of law has to be decided against the appellant. It is accordingly decided. 7. The second appeal being devoid of any merit is dismissed. 8. Send down the records. 9. No order as to costs.