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2015 DIGILAW 1054 (GAU)

Dinai Katoni @ Nath v. Bholanteer Katoni

2015-08-19

N.CHAUDHURY

body2015
JUDGMENT : In this First Appeal preferred by the defendants, the judgment and decree dated 29.07.2005 passed by the learned Ad hoc Additional District Judge, Lakhimpur in Title Suit No.10 of 2003 has been challenged. The learned trial court by their judgments, decreed the suit of the plaintiffs for declaration of right, title and interest over Schedule ‘Ka’ land for recovery of possession of the same and also for realization of Rs.7,200/- towards compensation. 2. One Bholanteer Katoni as plaintiff No.1 and Samsuddin as plaintiff No.2 filed a Title Suit No.5 of 1998 in the Court of learned Civil Judge (Senior Division) at North Lakhimpur on 15.05.1988 stating that land measuring 12 Bighas 2 Kathas 4 Lechas under Dag No.818/820/833/834/842/851/852/1077/1384 covered by K.P. Patta No.1542 of Kamalbaria village under Kamalabaria Mouza in the district of Lakhimpur was originally owned and possessed by one Bormukh Katoni. He died leaving behind his two sons, namely, Tileswar Katoni & Dehiram Katoni and so, both the sons became joint owners of the property. After death of Tileswar Katoni, plaintiff No.1 Bholanteer Katoni inherited his share of land and similarly, after death of Dehiram Katoni, defendants of the suit became legal heirs by inheritance. Thus, the plaintiff No.1 became entitled to 6 Bighas 1 Katha 2 Lechas of land under the aforesaid patta and dags and the defendants jointly became owners to the extent of balance 6 Bighas 1 Katha 2 Lechas of land of the same patta. Since, the plaintiff No.1 was minor when his father had died, he was reared by his uncle Dehiram Katoni as a member of the same family and thus, he was jointly possessing the whole property with his uncle. Dehiram Katoni arranged his marriage after he had grown up and even thereafter he stayed in the same family for some more years, continuing to enjoy the suit land and house. Thereafter, the plaintiff No.1 started staying in the house of his in-laws and allowed his uncle Dehiram Katoni to cultivate the land of his share and to give him the usufruct as and when necessary. Accordingly, Dehiram Katoni used to give rice, peddy etc to the plaintiff occasionally for his consumption. Under such circumstances, the plaintiff No.1 got the property partitioned by filing perfect partition Case No.67 of 1986/87 before the Revenue Authority. Accordingly, Dehiram Katoni used to give rice, peddy etc to the plaintiff occasionally for his consumption. Under such circumstances, the plaintiff No.1 got the property partitioned by filing perfect partition Case No.67 of 1986/87 before the Revenue Authority. In the year 1989 being in urgent need of money plaintiff No.1 sold land described in Schedule-‘Kha’ which is a part of the Schedule ‘Ka’ land to the plaintiff No.2 vide registered sale deed No.513/1989 within specific boundaries and handed over the possession to the plaintiff No.2. Accordingly, the plaintiff No.2 got his name duly mutated in the records of rights vide order dated 19.11.1989 passed by the learned Additional Deputy Collector, North Lakhimpur in Patta No.818 Dag No.1384. The Circle Officer of North Lakhimpur by order dated 22.03.1993 partitioned the suit patta into equal two parts and thereby, original patta No.149 measuring 6 Bighas 1 Katha 2 Lechas were given to the defendants jointly and the balance 6 Bighas 1 Katha 2 Lechas was given to the plaintiff No.1 and a separate patta was prepared thereby. The defendants did not prefer any appeal against the order of partition and did not raise any objection as well. According to the plaintiffs, the defendants do not have any right, title and interest with respect to the suit property described in Schedule-‘Ka’ & ‘Kha’ and that the plaintiffs having been exclusive owner in possession in respect to the Schedule ‘Ka’ & ‘kha’ land since 1993 after partitioned. The defendants since that period did not give the share of usufruct to the plaintiffs because of which even if the period beyond limitation is excluded, the plaintiffs would be entitled to compensation to the tune of Rs.7,200/-, inasmuch as, the yield per bigha of the land has at least 2 maunds. 3. In Paragraph-5 of the plaint it is stated that although the plaintiffs are owner of Schedule ‘Ka’ and ‘Kha’ property but the defendants dispossessed the plaintiff in the month of Bahag of 1993 from the Schedule-‘Ka’ & ‘Kha’ land and so, cause of action of suit has arisen. The plaintiffs, therefore, prayed for a decree declaring their right, title and interest with respect to the ‘Ka’ schedule land and for recovery of khas possession and also for compensation to the tune of Rs.7,200/- from the defendants along with other prayers. 4. On being summoned the defendants appeared and submitted a written statement-cum-counter claim. The plaintiffs, therefore, prayed for a decree declaring their right, title and interest with respect to the ‘Ka’ schedule land and for recovery of khas possession and also for compensation to the tune of Rs.7,200/- from the defendants along with other prayers. 4. On being summoned the defendants appeared and submitted a written statement-cum-counter claim. Without denying the essential facts that the original owner was Barmukh Katonia and that plaintiff’s father and Dehiram were the two sons of the said original owner, it is the case of the defendants that plaintiff No.1 had been out of possession of the land for more than 23 years. In paragraph-4 of the written statement it is stated that after the plaintiff had grown up he went out of the home and started working in the houses of others either as a cook or as agricultural worker to earn his livelihood. Defendants denied that plaintiff did not stay jointly with them in any point of time. According to the averments made in Paragraph 4 of the written statement, having understood that he does not have any title to the property, plaintiff himself shifted to his in-laws house immediately after 1 ½ year after his marriage and started living with his mother-in-law and for last 23 years the plaintiff has not been living in his paternal land. The plaintiff never took care of the paternal land and did not show any interest for the same. Under such circumstances, the defendants became the owner because of continuous and long possession of the same. According to the defendants, they have acquired title to the land by way of adverse possession and so, they are entitled to a decree to that effect and for that purpose the defendants also instituted a counter claim praying for declaration of their adverse possession. In the written statement-cum-counter claim the defendants also questioned the validity of partition and sale made by the plaintiff No.1 in favour of the plaintiff No.2. 5. Plaintiffs submitted a written statement against the counter claim denying the claim of adverse possession of the defendants. 6. In the written statement-cum-counter claim the defendants also questioned the validity of partition and sale made by the plaintiff No.1 in favour of the plaintiff No.2. 5. Plaintiffs submitted a written statement against the counter claim denying the claim of adverse possession of the defendants. 6. On the basis of the aforesaid rival contention of the parties, the learned trial court framed following 7 (seven) issues and thereafter, framed 2 (two) re-casted issues and 1 (one) additional issue: (1) Whether plaintiffs inherited the suit land described in Schedule-‘Ka’ of the plaint as such plaintiff acquired right, title and possession over the said land? (2) Whether the plaintiffs are entitled to get declaration that they are the exclusive owners in possession of the ‘Ka’ schedule land and that defendants have no right, title and interest over the suit land? (3) Whether the defendants have acquired title over ‘Ka’ schedule land by law of adverse possession and as such defendants are entitled to get declaration of their title over the suit land? (4) Whether the plaintiffs are entitled to get delivery of Khas possession of ‘Ka’ schedule land by evicting the defendants from the said land? (5) Whether the defendants had been adversely possessing the ‘Kha’ schedule land as such they are entitled to get a decree of confirmation of their possession over the suit land? (6) Whether the suit is hit by limitation? (7) To what relief the plaintiff are entitled? Recasted Issue: (1)Whether the defendants are entitled to a decree for declaration of title over the suit land by right of adverse possession? (2) To what relief or reliefs the party/parties are entitled? Additional Issue: (1)Whether the issue of separate patta of the suit land after revenue partition was illegal? 7. Plaintiff examined 2 witnesses, namely P.W.1 and P.W.2 and exhibited 2 documents namely, the patta and the sale deed. The defendants examined as many as 4 witnesses including 2 defendants but did not exhibit any document. They did not call for even the records of the partition proceeding and the validity of which was doubted by them in the written statement. 8. The defendants examined as many as 4 witnesses including 2 defendants but did not exhibit any document. They did not call for even the records of the partition proceeding and the validity of which was doubted by them in the written statement. 8. After considering the arguments of both sides and on perusal of the pleadings as well as evidence, the learned trial court held that the plaintiff No.1 inherited title to the suit land from Barmukh Katoni who was none other than his grandfather and accordingly, decided issue No.1 in favour of the plaintiff No.1. The issues No.3 & 5 and recasted additional issues were considered and decided together. In so doing, the learned trial court considered the merit of defendants’ claim in regard to adverse possession. The learned trial court noticed that DW1 Ganesh Nath in his cross examination had admitted that suit land was ancestral property of the plaintiff No.1 and the defendants and that after attaining the age of 10, the plaintiff No.1 continued working outside, in the house of others till attainment of 20/25 years when he was married. Afterwards, he was driven out in connection with the dispute of bamboo cutting but DW 1 admitted that incident in regard to bamboo cutting was not mentioned in the written statement. He claimed that they have been possessing the suit land for a long time and the plaintiff did not have any possession thereon, although plaintiff paid land revenue for whole portion of the land. In reply to a pointed question as to whether the plaintiff No.1 was ousted from the suit land property, D.W.1 Ramesh Nath could not give any reply and admitted that he could not show as to when the plaintiff was ousted. On the other hand, the plaintiff laid foundation in the plaint that he had inherited the property left behind by his father and grandfather and thereafter, he lived in a joint mess with the defendants. He also proved patta to show that a separate patta has been issued by the revenue authority in his name after the original ancestral land was partitioned in the year 1986-87. The two documents, namely, patta land, sale deed only go to show that the plaintiff had prima facie title and possession over the land but for which his name was duly mutated and even the state issued patta to him. The two documents, namely, patta land, sale deed only go to show that the plaintiff had prima facie title and possession over the land but for which his name was duly mutated and even the state issued patta to him. Consequently, he acquired right as landholder under Section 9 of the Assam Land and Revenue Regulation Act, 1886. The learned trial court considered the law involving adverse possession and relying on the judgment of the Hon’ble Supreme Court in the case of Parwatabi vs. Sonabi ( AIR 1997 SC 381 ) held that the defendants claiming adverse possession is duty bound to plead and establish that his possession was open and hostile to the interest of the original owner and thereafter, by referring to the case of Mohd. Zainulabudeen Vs. Syed Ahmed Mohideen and Others ( AIR 1990 SC 507 ), the learned court arrived at the finding that in view of the pleadings made in the written statement and the counter-claim defendants could not make out a case of adverse possession and so there being no foundation of claim of adverse possession in the pleadings its claim could not be sustained and accordingly, all the issue No.3 & 5 and recasted Issue No.1 were decided in favour of the plaintiffs. In Paragraph-19 of the judgment the learned trial court specifically held that the defendants could not acquire title over the ‘Ka’ Schedule land by law of adverse possession and hence, they were not entitled to get any declaration or decree as prayed for over Schedule-Ka and Schedule-Kha land. 9. Coming to issue No.2 the learned trial court considered the case of the plaintiff that the name of the plaintiff No.2 was mutated in the records of right on 19.11.1989. Learned trial court also noticed that partition Case No.67 of 1986-87 was instituted by the plaintiff No.1 for partition of his ancestral property and the Additional Deputy Collector passed an order on 18.03.1993 followed by the order of a Circle Officer on 22.03.1993, whereby the original patta No.149 was divided into two equal half each measuring 6 Bighas 1 Katha 2 Lechas. The Schedule ‘Ka’ land measuring 6 Bighas 1 Katha 2 Lechas stood in the name of the plaintiffs as plaintiff No.1 had sold 2 Bighas 2 Kathas of land infavour of the plaintiff No.2 and got his name duly mutated in the records of rights on 19.11.1989. The Schedule ‘Ka’ land measuring 6 Bighas 1 Katha 2 Lechas stood in the name of the plaintiffs as plaintiff No.1 had sold 2 Bighas 2 Kathas of land infavour of the plaintiff No.2 and got his name duly mutated in the records of rights on 19.11.1989. Although a feeble attempt was made by the defendants challenging the mutation and the partition but even thereafter they neither made any prayer for adjudging the same as illegal but also failed to call for documents and to lead any evidence to establish that partition or mutation were not done in accordance with law. Having so found the learned trial court presumed the official acts to be correct by applying the Section 114(e) of the Evidence Act and thereupon, decided that plaintiffs are entitled to get declaration of title in regard to ‘Ka’ Schedule land and that defendants do not have any right, title and interest in respect thereto. 10. Coming to issue No.6, it is the finding of the learned trial court that while in the plaint, the plaintiffs claimed of getting a separate patta in the month of March, 1993, it is the pleaded case of the plaintiffs that they were dispossessed in the month of Bahag, 1993 and the suit was instituted on 18.05.1998 and so it was well within the period of limitation. Issue No.6 was decided in favour of the plaintiffs and against the defendants. With all these findings, namely, claim of the defendants of adverse possession and the claim of inheritance of the plaintiffs associated with a plea of partition, the learned trial court decided issue No.4 in favour of the plaintiffs holding that they are entitled to get khas possession of the land by evicting the defendants, inasmuch as, their title to Schedule ‘Ka’ land is established and that of the defendants with respect to the said land could not be established. This is because, the defendants could not plead and prove their adverse possession. The additional issue in regard to validity of the separate patta and revenue partition was also decided in favour of the plaintiffs by taking presumption under Section 114 (e) of the Evidence Act coupled with the fact that the defendants did not lead any evidence not to speak of calling of the documents of partition case and mutation to prove the same to be illegal. The learned trial court thereafter proceeded to decide as to whether the plaintiffs are entitled to compensation as prayed for. The learned trial court took note of the pleading that the agricultural products available from the suit land would justify compensation of Rs.7200/- in 3 years excluding the period beyond limitation. This is because the plaintiffs claimed that yield of peddy per bigha of suit land would not be less than 12 mounds and so, that would fetch Rs.2,400/- per year to the plaintiff which if calculated for 3 years, the amount comes to Rs.7,200/- and accordingly, the learned trial court decreed that part of the prayer as whole for realization of Rs.7,200/- from the defendants. It is this judgment and decree dated 29.07.2005 which has been brought under challenge in the present appeal. 11. I have heard Mr. T.C. Khatri, learned Senior Counsel assisted by Mr. S. Biswas, for the appellant. None appears for the respondents although names have been shown in the cause-list. 12. The sole point for determination in this case is: Whether the impugned trial court judgment declaring title of the plaintiffs and decreeing the suit for realization of money is correct? 13. Mr. T.C. Khatri, learned Senior Counsel would argue that the learned trial court committed error in not deciding the counter claim and so, there has been substantial non compliance of the provision of Order VIII Rule 6 A of the Code of Civil procedure. He further argues that in the absence of possession of the counter claim, the judgment passed by the learned trial court even in the suit cannot be sustained, inasmuch as, the Code of Civil Procedure contemplates of giving the decision of the suit and the counter claim together. He further argues that the plaintiffs having instituted suit for declaration as well as for recovery of Khas possession made an erroneous valuation of suit and also payment of Court fees and so, the same should be an additional ground for setting aside the impugned judgment and decree and for remanding the case for retrial. 14. I have considered the submission of the learned Senior Counsel and perused the pleadings and evidence available on record. The paper book does not contain translated version of the depositions. Substantial parts of the depositions were written in ineligible hands. Even thereafter with the assistance of the learned counsel, the evidence could be perused. 14. I have considered the submission of the learned Senior Counsel and perused the pleadings and evidence available on record. The paper book does not contain translated version of the depositions. Substantial parts of the depositions were written in ineligible hands. Even thereafter with the assistance of the learned counsel, the evidence could be perused. P.W.1 in his evidence reiterated the evidence made in plaint and stated that original owner of the suit land was Barmukh Katoni who died leaving behind his two sons, namely, Tileswar Katoni and Dehiram Katoni. Tileswar Katoni died early leaving behind plaintiff No.1 when he was still a minor and so, he was reared by Dehiram Katoni and other sons of Barmukh Katoni. Plaintiff No.1 claimed that during his infancy he used to work in the firm of Dehiram Katoni and after he had grown up a little bit, he was sent for working in the house of others either as cook or as agricultural workers and this is how he spent nearly first 20 years of his life. However, thereafter it is Dehiram Katoni who arranged his marriage and permitted him to stay on a part of the land. But subsequently, he was driven out and then he shifted to the house of his mother-in-law in the same village. The plaintiff No.2 supported the plaintiff No.1 in regard to acquisition of title and joint possession of the land and both these witnesses were cross-examined at length by the defendants. Plaintiffs brought on record the periodic patta in original to show that the suit land covered by Schedule ‘Ka’ was settled by the state in their favour and so, they became landholder with respect to the said land. Landholder within the meaning of Section 8 of the Assam land and Revenue Regulation Act, 1886 have heritable and transferable right to the land during period of settlement and so, Exhibit-2 sale deed executed by the plaintiff No.1 in favour of the P.W.2 cannot be questioned. Mr. Khatri argued that the plaintiff No.1 being in possession of the land executed by Exhibit 2 sale deed in favour of the plaintiff No.2 and so, the plaintiff No.2 virtually was never in possession of the land and so, the very mutation granted by the Revenue Authority in his favour is illegal. Mr. Khatri argued that the plaintiff No.1 being in possession of the land executed by Exhibit 2 sale deed in favour of the plaintiff No.2 and so, the plaintiff No.2 virtually was never in possession of the land and so, the very mutation granted by the Revenue Authority in his favour is illegal. A joint owner of an unpartitioned property can transfer his share and transfer by co-owner of a share in a common property is recognized under Notice 47 of the Transfer of Property Act, 1882. Be that as it may, the right, title and interest of the plaintiffs emanating from Exhibit-1 shows that plaintiff No.1 is a landholder within the meaning of Section 9 of the Assam Land and Revenue Regulation Act, 1886 and so, unless and until the status of plaintiff as a landlord is not adjudged as illegal or void, defendants cannot be denuded of their right as landholder. This could have been done by the defendants by establishing that mutation was void for non-compliance of the essential procedure prescribed under the statute. Although under Section 154 of the Land and Revenue Regulation Act, jurisdiction of Civil Court is excluded in regard to matters covered by the regulation, yet if the procedure prescribed by the statute is not followed by the authority in making necessary order, such an order can be challenged in a competent Civil Court. Under Section 9 of the Code of Civil Procedure, Civil Court has jurisdiction to try and decide any matter involving suits of civil nature but the same can be excluded by express or implied provision. The ouster jurisdiction of Civil Court in regard to such matter came up for consideration in the case of Daulat Ram Lakhani vs. State of Assam reported in 1989 (1) GLR 131 and law has been laid down in this regard. So, there is no doubt that defendants were at liberty to challenge the order and thus, it is clear that the defendants were not only challenging for mutation but also, the acquisition of landholder’s right by the 15. So, there is no doubt that defendants were at liberty to challenge the order and thus, it is clear that the defendants were not only challenging for mutation but also, the acquisition of landholder’s right by the 15. Coming to the finding of the learned trial court that the plaintiffs are entitled to get compensation to the tune of Rs.7,200/-, it is to be noticed that the plaintiffs did not lead any evidence to show that the land in question was put in use by the defendants to raise agricultural products and that they used to yield 2 maunds per bigha from those land. Unless the essential facts that the defendants actually derived income of 2 maunds per bigha from that land can be established, learned trial court could not have decreed the suit for compensation of Rs.7,200/- merely at the ipse dixit of the plaintiffs. Having made the pleadings to that effect the plaintiffs did not lead any evidence and so, that part of the judgment for realization of Rs.7,200/- from the defendants cannot be sustained. This part of the judgment and decree is accordingly set aside. As pointed out above in Paragraph-19 of the impugned judgment, the learned trial court has arrived at a specific finding that the defendants did not set up required pleading for the purpose of a case of adverse possession. The learned trial court found that the defendants were duty bound to plead and establish that they were in possession of the suit land openly and hostile to the interest of the plaintiffs over the period of limitation and that their possession become hostile to that of the plaintiffs from a particular date. Not only did the defendants fail to mention the date of their hostile possession but defendant No.2 himself admitted in course of his cross examination that he could not say on which date the plaintiff No.1 was ousted from the suit land. Basing on these materials, the learned trial court held in paragraph-19 of the judgment that the defendants could not establish their plea of adverse possession with respect to the suit land. But having so observed, it was not stated in so many words that the counter claim was dismissed. Basing on these materials, the learned trial court held in paragraph-19 of the judgment that the defendants could not establish their plea of adverse possession with respect to the suit land. But having so observed, it was not stated in so many words that the counter claim was dismissed. The learned Senior Counsel argues that unless the Court declares that a counter-claim has been dismissed or allowed, it cannot be said to have been dismissed and it would not amount to compliance of Order VIII Rule 6 A (2) of the Code of Civil Procedure. 16. It is settled law that procedure is handmade of justice. A Court of law is to decide a case between the parties on the basis of materials available on records and in so doing if some technical errors are committed that cannot vitiate the decision of the Court. By holding in Paragraph-19 of the judgment that the defendants failed to plead their case of adverse possession, the learned trial court really and substantially had dismissed the counter-claim of the defendants. This implies dismissal of the counter claim. In the result, the appeal is partly allowed. 17. Send down the records. 18. No order as to costs.