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2014 DIGILAW 837 (GAU)

KONLORA BEZ v. BAHADUR KAMAN

2014-09-02

N.CHAUDHURY

body2014
ORDER (ORAL) This second appeal is at the instance of 4 (four) defendants of Title Suit No. 1/2000 of the Court of the learned Civil Judge (Jr. Divn.) No. 2 at Jorhat challenging concurrent findings of the learned Courts below. 2. Respondents Dewram Kaman and Bahadur Kaman, as plaintiffs, instituted Title Suit 30/1998 in the Court of learned Civil Judge (Jr. Divn.) at Jorhat on 30th March, 1998. The present appellants were the defendants in the said suit. Plaintiffs claimed therein that a plot of land measuring 10 bighas 2 kathas 5 lechas in Dag No. 1 covered by annual patta No. 78 of Bokajanpam Gaon, Solmora Mouza, Majuli Sub-division of Jorhat district originally stood in the name of the plaintiffs and the same was fit for paddy cultivation. The plaintiffs had been in possession of this land for more than 40 (forty) years growing paddy and vegetables but the defendants having no semblance of right, title or interest in the suit land tried to take possession of the suit land by dispossessing the plaintiffs for which plaintiffs had to institute miscellaneous case No. 28/1992 in the Court of learned Executive Magistrate at Majuli under Section 145 of the Code of Criminal Procedure. The learned Executive Magistrate by his order dated 12.04.1993 declared possession of the plaintiffs over the suit land. The plaintiffs thereafter continued in possession. It is the case of the plaintiffs that defendant Nos. 1 to 4 again trespassed into the suit land in the month of July, 1995 taking chance of helpless condition and poverty of the plaintiffs. Being compelled, plaintiffs instituted the suit for declaration of his right, title and interest over the suit land and for recovery of khas possession by evicting defendants from the scheduled land measuring 10 bighas 2 kathas 5 lechas covered by dag No. 1 of annual patta No. 78 of Bokajanpam Gaon as referred to above. On being summoned, the defendants appeared and submitted written statement denying the story of the plaintiffs. According to the defendants, they have been all along in possession of the suit land for over 40 (forty) years and they did not trespass into the land in the month of July, 1995 as stated in the plaint. The defendants denied the title of the plaintiffs and prayed that the suit be dismissed with cost. According to the defendants, they have been all along in possession of the suit land for over 40 (forty) years and they did not trespass into the land in the month of July, 1995 as stated in the plaint. The defendants denied the title of the plaintiffs and prayed that the suit be dismissed with cost. This suit was subsequently transferred to the Court of learned Civil Judge (Jr. Divn.) No. 2 and thereupon it was renumbered as Title Suit No. 1/2000. 3. The learned trial court upon perusal of the pleadings of the parties framed as many as 8 (eight) issues which are quoted below:- i) Whether there is cause of action for this suit? ii) Whether the suit is properly valued and adequate court fee has been paid? iii) Whether the suit is barred by limitation? iv) Whether the suit land is under the possession of the plaintiff or the defendant for more than 40 years? v) Whether the plaintiff has right, title and interest over the suit land? vi) Whether the suit is hit by principle of adverse possession? vii) Whether the plaintiff is entitled to get khas possession of the suit land and permanent injunction? viii) What relief/ reliefs the parties are entitled to? 4. In course of trial, plaintiff examined 4 (four) witnesses including plaintiff No. 2 as PW 4. Plaintiffs exhibited as many as 4 (four) documents, namely, certificate issued by Circle Officer (Ext.1), revenue paying receipts (Exts. 2 and 3) and certified copy of order passed by the learned Executive Member (Ext. 4). Defendants examined 3 (three) witnesses including defendant No. 2. The learned Trial court after consideration of the materials on record decreed the suit of the plaintiff holding that the annual patta stated to have been washed away in flood in Majuli is believable and that Ext. 1 certificate issued by jurisdictional Circle Officer divulges the fact that plaintiff was the annual pattadar. The learned Court observed, however, that the revenue staff who was examined to prove chitha did not bring Jamabandi with him. This judgment of the trial court passed on 29.09.2001 declaring the right, title and interest of the plaintiff and for recovery of khas possession by evicting the defendant was challenged by the defendants before the learned Civil Judge at Jorhat in Title Appeal No. 38/2001. 5. This judgment of the trial court passed on 29.09.2001 declaring the right, title and interest of the plaintiff and for recovery of khas possession by evicting the defendant was challenged by the defendants before the learned Civil Judge at Jorhat in Title Appeal No. 38/2001. 5. The learned first appellate court by his judgment and decree dated 16.01.2003 dismissed the appeal and upheld the finding of the learned trial court. In so doing, the learned first appellate court considered the plea of the defendants as to adverse possession only and did not enquire into the question of the title delivered. In paragraph 37 of the impugned appellate judgment, the learned first appellate court observed on one hand that under Section 11 of the Assam Land and Revenue Regulation, 1886, a settlement holder is not a land holder and he does not have any right heritable and transferable under the Act but in the following paragraph of 38 he declared that plaintiff has valid right, title and interest over the suit land. The learned trial court considered the right, title and interest of the plaintiff under issue No. 5. Although, the first appellate court considered the appeal issue wise and not by framing points for determination as contemplated under Order XLI Rule 31 of the Code of Civil Procedure but did not take up the issue No. 5 separately for deciding as to whether plaintiff had any right, title and interest to the suit land. Having considered the case of the defendant as to claim of adverse possession and having found that defendant could not prove adverse possession as claimed by them, the learned first appellate court held that plaintiff had right, title and interest. 6. It is established law that failure on the part of the defendant to prove his case cannot amount to proof of the case of the plaintiff. Plaintiff has to stand on his own legs and has to prove his claim of title by adducing cogent and acceptable evidence. In the case in hand, the learned first appellate court does not appear to have exercised the jurisdiction duly. The first appellate court is the last court of fact and law and it cannot shirk responsibility by merely dittoing the finding of the learned trial court. In the case in hand, the learned first appellate court does not appear to have exercised the jurisdiction duly. The first appellate court is the last court of fact and law and it cannot shirk responsibility by merely dittoing the finding of the learned trial court. The law, laid down by the Hon’ble Supreme Court in the case of Santosh Hazari v. Purushottam Tiwari reported in (2001) 3 SCC 179 , is that the first appellate court being the last court of law and fact is duty bound to independently consider the pleadings and evidences of the parties and thereafter should arrive at finding on the basis thereof. Here in this case learned first appellate court does not appear to have exercised the jurisdiction in accordance with law and this being the position, the impugned first appellate judgment cannot be considered to be a judgment in the eye of law. 7. I have heard Mr. N Dhar, learned counsel for the appellants and Ms. P Bhattacharya, learned counsel for the respondents. 8. This Court while admitting the second appeal on 18.07.2003 framed as many as 3 (three) substantial questions of law which are quoted below:- (A) Whether the suit filed by the plaintiff for declaration of their Title and khas possession of the suit land without having paid the Court fees under Section 7(5)(d) of the Court Fees Act read with Section 8 of the Suit Valuation Act is maintainable in law? (B) Whether the impugned judgment, order and decree passed by the learned Court below declaring title of the plaintiffs over the suit land without any document e.g. Patta Sale Deed etc. in support of title of the plaintiffs having been exhibited in the case is sustainable in law? (C) For that the substantial question of law arises as to whether Ext. 1, Ext. 2 and Ext. 3 e.g. Chitte, Revenue Receipts etc., create title of the plaintiffs over the suit land? 9. Mr. N Dhar, learned counsel for the appellants, submits at the threshold that substantial questions of law No. (A), as referred to above, does not really arise from the facts and circumstances of the case. The question as to Court fee is a matter between the Court and the plaintiff and non-payment or under payment of Court fee may be compensated by directing the parties to pay. The question as to Court fee is a matter between the Court and the plaintiff and non-payment or under payment of Court fee may be compensated by directing the parties to pay. In that view of the matter, the first substantial question of law does not require any adjudication. So far as the substantial questions of law No. (B) and (C) are concerned, according to Mr. Dhar, the learned first appellate court has not considered the exhibits and has not touched the merit of the case at all. The learned first appellate court having confined itself to the plea of adverse possession raised by the defendants in their written statement, fell into error in not considering the documents placed by the plaintiffs in support of their purported claim of title. There is really no adjudication by the learned first appellate court on title. Both the learned counsel agree that substantial questions of law vide Sl. No. B and C above are requested to be reformulated. Accordingly and as suggested by the learned counsel for the parties, both the substantial questions of law are reframed as one substantial question as follows:- “Whether the first appellate court committed error in not complying with the provision of Order XLI Rule 31 of the Code of Civil Procedure?” 10. Plaintiff filed a suit for declaration of right, title and interest and recovery of possession. In course of evidence he exhibited Ext. 1 certificate issued by Circle Officer (Revenue) of Majuli Circle to show that land measuring 10 bighas 2 kathas 5 lechas under Dag No. 1; 4 kathas 19 lechas under Dag No. 51 and 4 bighas 4 kathas 10 lechas under Dag No. 52 of annual patta No. 78 of Bokajanpam Gaon under Solmora Mouza stood in the name of Dewram Miri. To show that the aforesaid annual patta land stood in the name of Dewram Miri or anybody else has not been proved by producing primary evidence. A certificate given by Circle Officer must have been based on revenue records. Plaintiffs made no attempt to bring on records relevant proceedings to establish the facts as to conversion of annual patta land. Exts. 2 and 3 are nothing but revenue paying receipts and they cannot establish title over a plot of land. A certificate given by Circle Officer must have been based on revenue records. Plaintiffs made no attempt to bring on records relevant proceedings to establish the facts as to conversion of annual patta land. Exts. 2 and 3 are nothing but revenue paying receipts and they cannot establish title over a plot of land. The learned first appellate court in spite of considering the case of the plaintiffs in the light of evidence led by the plaintiffs on title, unnecessarily placed importance on orders passed by the learned Executive Magistrate in proceeding under Section 145 of the Code of Criminal Procedure. The judgment passed by the learned first appellate court, therefore, not having been based on the evidence led by the parties on the issue of title but by laying undue emphasis on order of the learned Executive Magistrate in proceeding under Section 145 of the Code of Criminal Procedure, cannot be said to be a proper and valid first appellate judgment. It is established law that a first appellate court being the last court of facts and law, is duty bound to consider relevant evidence on entirety by framing point for determination. The points formulated for determination in appeal is to be considered in the light of evidence led by the parties and thereupon a decision is to be arrived at. 11. The course of action prescribed by Rule 31 of Order XLI of the Code of Civil Procedure needs to be substantially but scrupulously followed. The impugned first appellate judgment does not stand test of Order XLI Rule 31 of the Code of Civil Procedure. The first appellate judgment cannot be said to be in due compliance of Order XLI Rule 31 of the Code of Civil Procedure. Consequently, the sole substantial question of law as re-cast in course of hearing upon suggestion of the learned counsel for both sides, is decided in favour of the appellant. The first appellate judgment stands set aside. The learned first appellate court shall decide the appeal as expeditiously as possible preferably within a period of 6 (six) months from the date of receipt of records. 11. Send down the records immediately.