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2015 DIGILAW 1225 (GAU)

Chandan Dutta v. Bhupen Barthakur

2015-09-22

SUMAN SHYAM

body2015
ORDER : 1. This second appeal has been filed against the judgment and decree of reversal dated 15-12-2006 passed by the court of Civil Judge, Sonitpur, Tezpur in Title Appeal No. 12-2006 reversing the judgment and decree dated 04-07-2006 passed by the learned Munsiff, Sonitpur, Tezpur in Title Suit No. 46/2002 dismissing the suit filed by the plaintiff. 2. This second appeal has been preferred by the defendants/appellants, which was admitted to formal hearing by framing the following two substantial questions of law: “(1) Whether, the learned lower appellate court erred in decreeing the suit in absence of the State of Assam, the land being a government land? (2) Whether, the learned lower appellate court erred in declaring the right, title and interest of the respondent plaintiff in the suit land which is a government land on the basis of an unregistered sale deed dated 21.5.2001, Ext.20.” 3. The case of the plaintiff is that the suit land originally belong to one Ratneswar Talukdar who had sold the same to proforma defendant No. 6 i.e. Ram Mohan Pathak in the year 1963. One Kanak Dutta was occupying the land and house standing thereupon as a tenant under the proforma defendant No. 6 by paying monthly rent. After the death of Kanak Dutta in the year 1990 the defendant Nos. 1 to 5, being the legal heirs of Kanak Dutta, continued to remain in occupation of the suit house as a tenant under the proforma defendant No. 6 on condition of paying monthly rent. It is the claim of the plaintiff that on 21-05-2001 the proforma defendant No. 6 had executed one unregistered deed of sale by means of which the suit land and the house standing thereupon had been transferred in favour of the plaintiff. Thereafter the defendants have been paying rent to the plaintiff as per verbal tenancy agreement until the month of May, 2002. But, thereafter the contesting defendants stopped paying rent and on the contrary, entered the name of defendant No. 1 in the chittha by influencing revenue authorities thereby clouding the title of the plaintiff. As such, the plaintiff had to institute the suit for declaration of right, title and interest over the suit land and for confirmation of possession as well as for permanent injunction. 4. As such, the plaintiff had to institute the suit for declaration of right, title and interest over the suit land and for confirmation of possession as well as for permanent injunction. 4. On receipt of summons the defendant No. 1 and 2 contested the suit by filing their written statement, inter alia, alleging that there was no cause of action for the suit and that the suit was bad for non-joinder of necessary party. The answering defendant had also categorically denied the title and possession of the plaintiff over the suit land. The contesting defendants have also questioned the validity of the transaction allegedly made by the proforma defendant in favour of the plaintiff by executing an unregistered deed of sale. 5. The proforma defendant filed written statement whereby he has supported the case of the plaintiff. 6. Based on the pleadings of the parties the learned Trial Court had framed the following issues:- 1. Whether there is cause of action for the suit? 2. Whether the suit is barred by principles of estoppels, waiver and acquiescence? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the sale deed executed in favour of the plaintiff is a valid Sale Deed? 5. Whether the plaintiff has any right over the suit property which is being acquired by virtue of the said Sale Deed? 6. Whether the transfer of holding number to the name of the plaintiff by the Tezpur Municipal Board is a valid one? 7. Whether the plaintiff is entitled to the reliefs claimed for? 8. Whether the plaintiff is entitled to any other relief? 7. On consideration of pleadings as well as evidence available on record, the learned Trial Court had decided the issue No. 3, 4 and 5 against the plaintiff and in favour of the defendant thereby holding that the suit was bad for non-joinder of State of Assam as a party and also that the plaintiff had failed to prove his right, title and interest over the suit land, the same being admittedly a government land. 8. Being aggrieved by the judgment and decree of dismissal passed by the learned Trial Court, the plaintiff had preferred Title Appeal No. 12/2006 before the court of Civil Judge, Sonitpur, Tezpur. 8. Being aggrieved by the judgment and decree of dismissal passed by the learned Trial Court, the plaintiff had preferred Title Appeal No. 12/2006 before the court of Civil Judge, Sonitpur, Tezpur. The learned lower Appellate Court had reversed the judgment and decree passed by the Trial Court by holding that the State of Assam is not a necessary party and that the decree for declaration of right, title and interest of the plaintiff can be passed even in the absence of the State of Assam. As regards issue No. 4 and 5 the learned lower Appellate Court had reversed the findings of the Trial Court without discussing the evidence on record or assigning any reason for doing so. 9. Being aggrieved and dissatisfied with the judgment and decree passed by the learned lower Appellate Court the contesting defendant No. 1 and 2 as appellants has preferred the instant second appeal before this Court. 10. I have heard Mr. S. Ali, learned counsel for the appellant. None appears for the respondent despite the names of the counsel having been reflected in the Cause List. 11. In support of the first substantial question of law framed by this Court, Mr. Ali submits that as would be evident from the pleadings contained in the plaint, it is the admitted position of fact that the suit land, being a touzi land, is a government land in respect of which neither the proforma defendant No. 6 had acquired any title nor could any such title be conveyed to the plaintiff by the proforma defendant. Since the suit land is admittedly a government land, hence, a decree for declaration of right, title and interest in respect of the suit land would not be maintainable in the absence of State of Assam being impleaded as a necessary party. Such being the position, the learned lower Appellate Court has erred in the eye of law in reversing the finding recorded by the Trial Court in respect of issue No. 3. 12. Coming to the second substantial question of law framed by this Court, Mr. Ali submits that there is no landlord-tenant relationship between the plaintiff and the contesting defendant nor is the suit filed under the provision of Assam Urban Area Rent Control Act, 1972. 12. Coming to the second substantial question of law framed by this Court, Mr. Ali submits that there is no landlord-tenant relationship between the plaintiff and the contesting defendant nor is the suit filed under the provision of Assam Urban Area Rent Control Act, 1972. As such, the plaintiff’s suit being one for declaration of right, title and interest, it was incumbent upon the plaintiff to produce document of title in support of his claim for declaration of title. However, the land in question admittedly being a government land and in view of the fact that there is no document of title produced by the plaintiff, there was no scope for the learned lower Appellate Court to decree the suit of the plaintiff by reversing the judgment passed by the Trial Court. Mr. Ali further submits that it is settled law that no person can acquire right and title over a touzi land unless settlement is made by the authority in accordance with provisions of the settlement rules. Any person found to be in possession of a sarkari land otherwise than in pursuance of the settlement rule would be deemed to be an encroacher and hence the question of declaration of right, title and interest of such person over the government land cannot arise. In support of his argument Mr. Ali has relied upon the following decisions: 1. State of Assam & Others vs. Radha Kanoo & Others, 1997 (2) GLT (SC) 35 2. Khargeswar Choudhury & Another vs. Isafaque Hussain, 2001 (1) GLT 692 3. Sakhina Khatun & Others vs. Sheikh Suleman & Others, 1999 (1) GLT 447 13. A perusal of the pleadings contained in the plaint as well as written statement goes to show that the relationship of landlord and tenant between the plaintiff and the contesting defendant is not an admitted fact. Notwithstanding the same, neither any issue has been framed on the said point nor has the plaintiff led evidence to establish landlord-tenant relationship between the plaintiff and the defendant No. 1 to 5. It is also evident from the record that the plaintiff has not prayed for any decree of eviction of the defendant No. 1 to 5 from the suit premises on the ground being defaulter. Therefore, the suit filed by the plaintiff was evidently not a suit within the meaning of Assam Urban Area Rent Control Act, 1972. 14. It is also evident from the record that the plaintiff has not prayed for any decree of eviction of the defendant No. 1 to 5 from the suit premises on the ground being defaulter. Therefore, the suit filed by the plaintiff was evidently not a suit within the meaning of Assam Urban Area Rent Control Act, 1972. 14. On the contrary the plaintiff’s suit is one for declaration of right, title and interest over the suit land and for confirmation of possession. It is settled law that when a decree for declaration of right, title and interest is prayed for in a suit, it is the burden of the plaintiff to lead evidence so as to prove and establish his claim of title over the suit land. In the instant case the plaintiff has apparently claimed title over the suit land on the basis of the purchase made by him from the proforma defendant No. 6 by means of Exhibit-20, which is an unregistered document. It is also the admitted position of fact that the land in question is valued more than Rs. 100/- and, therefore, under Section 54 of the Transfer of Properties Act, 1882 read with Section 17(1)(b) of the Registration Act, 1908, such unregistered document cannot create or extinguish title over any immovable property. 15. That apart, the land in question admittedly is a piece of government land which has not been settled either with proforma defendant No. 6 or with the plaintiff in accordance with the provisions of Assam Land Revenue Regulation, 1886. In such view of the matter, neither the proforma defendant No. 6 had acquired any title over the suit land nor could he have conveyed title by virtue of Exhibit-20. Hence, the learned lower Appellate Court had committed an error in declaring the right, title and interest of the plaintiff over the suit land on the basis of Exhibit-20. The decision recorded by the lower Appellate Court in respect of issue Nos. 4 and 5 were also without assigning any reason or based on any discussion of the evidence on record and, therefore, the findings stood vitiated on account of being in contravention of Order 41 Rule 31 CPC. 16. In view of what has been discussed hereinabove, I am of the unhesitant opinion that the plaintiff has failed to prove and establish his right, title and interest over the suit land. 16. In view of what has been discussed hereinabove, I am of the unhesitant opinion that the plaintiff has failed to prove and establish his right, title and interest over the suit land. That apart, since the plaintiff had admitted that the contesting defendant were in possession of the tenanted premises, hence, the question of granting a decree for confirmation of possession in favour of the plaintiff also cannot arise in the facts and circumstances of the case. Therefore, I find force in the submissions made by Mr. Ali, learned counsel for the appellant inasmuch as the authorities cited by him in support of his argument are also found to be applicable in the facts and circumstances of the case. As such the substantial questions of law framed by this Court stand answered in favour of the appellant/ defendant and against the plaintiff/ respondent No. 1. In the result this second appeal must succeed and is hereby allowed. The judgment and decree passed by the lower Appellate Court is hereby set aside. The judgment and decree passed by the Trial Court is hereby affirmed. No order as to cost. Registry to send back the LCR.