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2015 DIGILAW 169 (GAU)

Harakanta Deka v. Maya Ram Deka

2015-02-12

SUMAN SHYAM

body2015
JUDGMENT : Suman Shyam, J. 1. This Second Appeal is directed against judgment and decree dated 4.7.2003 passed by the Civil Judge (Senior Division), Nalbari, in Title Appeal No. 8/2001 affirming the judgment and decree dated 30.6.2001 and 12.7.2001 respectively passed by the Civil Judge (Junior Division), Nalbari in Title Suit No. 33/97. The facts of the case, as set out in the plaint, is that land measuring 1 Bigha, 3 Kathas, 4 Lechas of K.P. Patta No. 75 of Dag No. 251, originally forms part of an area of land measuring 4 Bighas, 0 Katha, 14 Lechas in respect of which the plaintiff and his two brothers, namely Ganesh and Bongshi were the Khatiandars on the strength of Khatian No. 27. The aforesaid plot of land measuring 4 Bighas 0 Katha, 14 Lechas was amicably partitioned between the plaintiff and his two brothers. Pursuant thereto, an area of land measuring 1 Bigha, 3 Katha, 4 Lechas fall into the share of the plaintiff. The said area of land measuring 1 Bigha, 3 Katha, 4 Lechas are in two plots, i.e., one measuring 4 Katha 4 Lechas and other measuring 4 Katha, both the plots being covered by Dag No. 251 of Patta No. 75 of Village-Balagaon under Mouza-Uperbarbhag in the District of Nalbari. 2. plaintiff's case is that after the amicable partition of the land carried out about 20 years back, the aforesaid plot of land measuring 1 Bigha 3 Kathas, 4 Lechas, which is the suit land, was under the exclusive possession and occupation of the plaintiff and the plaintiff's name had been duly recorded as an occupancy tenant in the records maintained by the Government. The Defendant No. 1 and 2, who are sons of the brother, of the plaintiff, viz. Bongshi, tried to dispossess him from the suit land. On an apprehension of breach of peace, the plaintiff had preferred a proceeding under Sections 145/146 Cr.P.C. bearing number Misc. Case 82/88 whereby and whereunder the disputed land was attached. In the petition filed in connection with Misc. Case No. 82/88, the plaintiff had inadvertently shown the suit land to be covered by one boundary although the same comprise of two plots of land. Taking into account such inadvertent error in describing the suit land, the Executive Magistrate had declared the possession in favour of the Defendants No. 1 and 2 vide order dated 26.5.1997. Case No. 82/88, the plaintiff had inadvertently shown the suit land to be covered by one boundary although the same comprise of two plots of land. Taking into account such inadvertent error in describing the suit land, the Executive Magistrate had declared the possession in favour of the Defendants No. 1 and 2 vide order dated 26.5.1997. Although Criminal Motion C.M. No. 12/97 was preferred against the said order in the Court of District and Sessions Judge, Nalbari by the plaintiff, yet the same was also dismissed. 3. Situated thus, the plaintiff was compelled to institute Title Suit No. 33/97 in the Court of Civil Judge (Junior Division), Nalbari praying for a decree declaring that the plaintiff is the recorded occupancy tenant in respect of the suit land; a decree for confirmation of possession and/or alternately for recovery of khas possession; permanent injunction and for other consequential reliefs. 4. The defendants/appellants No. 1 and 2 contested the suit filed by the plaintiff by filing a joint written statement whereby they have denied the claims made by the plaintiff in the plaint Besides taking formal objection in the written statement, the appellants-defendants No. 1 and 2 had also stated that the plaintiff's name had been included in the Khatian No. 27 in a fraudulent and collusive manner with the help of the revenue officials. The contesting defendants also denied that there was an amicable partition in respect of the land measuring 4 Bighas 14 Lechas jointly held by the three brothers as occupancy tenants. The defendants No. 1 and 2 further claimed to have purchased the suit land from its pattadar Sanjib Barua by means of a registered Deed of Sale. They have denied that the plaintiff was ever in possession of the land. 5. Upon consideration of the pleadings of the parties, the learned Trial Court framed as many as five issues, which are as follows:- "1) Whether there is any cause of action for the suit? 2) Whether suit is maintainable in its present form ? 3) Whether suit land was under possession of plaintiff's ? 4) Whether plaintiff's had wrongly and collusively recorded the name as tenant ? 5) Whether plaintiff are entitled to reliefs as prayed for ?" 6. The plaintiff's side examined three witnesses and also produced documentary evidence in support of their case. The defendants' side had also examined three witnesses. 7. 3) Whether suit land was under possession of plaintiff's ? 4) Whether plaintiff's had wrongly and collusively recorded the name as tenant ? 5) Whether plaintiff are entitled to reliefs as prayed for ?" 6. The plaintiff's side examined three witnesses and also produced documentary evidence in support of their case. The defendants' side had also examined three witnesses. 7. On a threadbare discussion of the materials available on record, the learned Trial Court decided the issues in favour of the plaintiff and, consequently, the plaintiff's suit stood decreed on contest. Being aggrieved by the judgment and decree passed by the learned Trial Court in Title Suit No. 33/97, the defendants No. 1 and 2, as appellants, preferred Title Appeal No. 8/2001 in the Court of learned Civil Judge (Senior Division), Nalbari. Upon hearing the learned counsel for the parties, the First Appellate Court had dismissed the Title Appeal No. 8/2001 filed by the Appellants-Defendants No. 1 and 2 by affirming the judgment and decree passed by the learned Trial Court. 8. The learned Appellate Court affirmed the findings recorded by the learned Trial Court in respect of all the issues by observing that the plaintiff was in-fact an occupancy tenant in respect of the suit land on the strength of Khatian No. 27 and that he had been in continuous physical possession in respect of the land. On the other hand, the learned Court below held that the plea taken by the defendants in the written statement was contradictory in nature. Having claimed that they had purchased the suit land by means of registered Deed of Sale (Ext. B), the defendants could not prove the same by calling the scribe or any other witness. D. W.2 and D. W.3 also had not supported the case of the appellants-defendants. On the other hand, Ext. 2, Khatian, clearly indicates that the plaintiff was an occupancy tenant along with Bongshi and Ganesh, which fact is also admitted by the defendant No. 2. It was also held that the appellant/defendant had also failed to establish that the name of the plaintiff was entered into the tenancy fraudulently. On the basis of such findings of facts, the appeal filed by the appellants-defendant No. 2 was dismissed by the learned First Appellate Court by affirming the judgment and decree of the Trial Court. 9. It was also held that the appellant/defendant had also failed to establish that the name of the plaintiff was entered into the tenancy fraudulently. On the basis of such findings of facts, the appeal filed by the appellants-defendant No. 2 was dismissed by the learned First Appellate Court by affirming the judgment and decree of the Trial Court. 9. This appeal filed against the judgment and decree dated 4.7.2003 passed in Title Appeal No. 8/2001 was admitted to be heard on the following substantial questions of law, which are quoted herein below:- "1) Whether the Courts below acted within its discretion by giving relief to the plaintiff's on the prayer of the plaintiff and confirmation of possession within a scope of Section 66 of Assam (Temporary Settled Areas) Tenancy Act, 1971 ? 2) Whether the Court below was justified in holding that transaction by virtue of which the Defendants No. 1 and 2 purchased the suit khatian land was a fraudulent transaction which could not effect the right of the plaintiff over the suit land ? 3) Whether the suit is barred for non-joinder of necessary parties by not impleading all the heirs of Goloke Barua ?" 10. I have heard Ms. B. Devi, learned counsel for the appellants and also heard Mr. M.A. Sheikh, learned counsel for the respondent-plaintiff. 11. Ms. B. Devi, learned counsel submits that since the defendants-appellants had made a categorical claim of purchase of the suit land by means of registered deed of sale from its registered owners, as such, the plaintiff's suit could not have been decreed by ignoring the documentary evidence available on record, namely Ext. B, Sale Deed as well as Ext-A, the copy of the Jamabandi. She further submits that the suit filed by the plaintiff/respondent was not maintainable as be failed to implead the remaining pattadars although the prayer in the suit is for a declaration of his right as occupancy tenant. Ms. B, Sale Deed as well as Ext-A, the copy of the Jamabandi. She further submits that the suit filed by the plaintiff/respondent was not maintainable as be failed to implead the remaining pattadars although the prayer in the suit is for a declaration of his right as occupancy tenant. Ms. Devi further submits that even assuming that there was an illegal dispossession of the plaintiff/respondent, even in that case, Section 54-A of the Assam (Temporarily Settled Areas) Tenancy Act, 1971, provides for adequate remedy in such a situation to make an application before the Revenue Officer for restoration of possession: Therefore, in view of the provision contained in Section 66 of the Act of 1971, the suit filed by the plaintiff was barred under the law and, hence, ought to have been dismissed as not maintainable. 12. Ms. Devi further submits that being a recorded pattadar in respect of the suit patta, Sanjib Barua was entitled to transfer the suit land by executing registered deed of sale and such rights of the pattadar cannot be restricted except in accordance with Rule 9 of the Assam Land and Revenue Regulations, 1886. In support of her contention, Ms. Devi, learned counsel has also relied upon a decision of this Court reported in 1998(4) GLT 137: (1999) 1 GLR 229 (Amiya Bala Dutta v. Mukut Adhikari). 13. Per contra, Mr. M.A. Sheikh, learned counsel for the respondent submits that the defendants have admitted the fact that the plaintiff and defendants No. 1 and 2 were in- fact joint tenants in respect of the land measuring 4 Bighas 14 Lechas under Khatian No. 27. Once it is admitted that the plaintiff is an occupancy tenant whose name has been duly entered in the tenancy Khatian, such tenant would acquire the status of non-evictable tenant and, therefore, would be protected by the provisions of the Act of 1971. Mr. Seikh submits that non-evictable tenant cannot be ousted from the land except by way of a decree of the Civil Court obtained in a proceeding instituted in accordance with Sections 50 and 51 of the Act, 1971. Mr. Mr. Seikh submits that non-evictable tenant cannot be ousted from the land except by way of a decree of the Civil Court obtained in a proceeding instituted in accordance with Sections 50 and 51 of the Act, 1971. Mr. Sheikh further submits that under Section 55 of the Act of 1971, there is a presumption of correctness of the record of rights prepared and maintained under Chapter X of the said Act and such record of right shall be conclusive evidence regarding the right of an occupancy tenant. 14. In the instant case, submits Mr. Sheikh, it is the case of the Defendants No. 1 and 2 themselves that their earlier attempt to cancel the name of the plaintiff from the Khatian No. 27 had resulted into failure. In that view of the matter, the registered deed of sale (Ext. B) cannot take away the protection that is available to the plaintiff as an occupancy tenant under the Act of 1971. He further submits that the suit of the plaintiff is for confirmation of possession and since both the Courts below have found the plaintiff to be in possession of the suit land, hence, there cannot be any question of invoking the provisions of Section 54-A of the Act of 1971. He further submits that even assuming that Ext. B had validly transferred any right in respect of the suit land upon the appellants/defendants No. 1 and 2, even then, the defendants can at best step into the shoes of the pattadars who in any case did not have any right to interfere with the possession of the occupancy tenant in respect of the land. 15. I have considered the rival submissions made by and on behalf of the parties and have also perused the records. 16. On an analysis of the findings recorded by the learned First Appellate Court, it appears that the learned Courts below have recorded categorical findings of fact on a meticulous examination of the pleadings as well as the evidence available on record. It has been found that the plaintiff was in-fact an occupancy tenant on the basis of Khatian No. 27 which has not been altered or cancelled by the authorities. It has been found that the plaintiff was in-fact an occupancy tenant on the basis of Khatian No. 27 which has not been altered or cancelled by the authorities. The learned Courts below had also found that the plaintiff was in- fact in possession of the suit land and that on being threatened of dispossession, the plaintiff/respondent was compelled to file the title suit. The learned First Appellant Court also recorded a finding of fact concurring with the Trial Court that the Defendants No. 1 and 2 were the joint tenants along with the plaintiff in respect of the land covered by the Khatian No. 27 including the suit land and, therefore, would not be entitled to interfere with the possession of the plaintiff on the basis of purported sale deed (Ext. B). 17. Order 1, Rule 9 of the Code of Civil Procedure provides that no suit shall be defeated by reasons of mis-joinder and non-joinder of parties except in case of necessary party. Since the cause of action of the plaintiff's suit was on account of threat of illegal dispossession by the Defendants No. 1 and 2, hence, it cannot be said that the reliefs prayed for in the suit could not have been granted in the absence of other pattadars who can at best be proper parties to the proceedings, but not necessary parties. 18. Section 54-A of the Act of 1971 provides for a remedy to the tenant and/or under tenant for quick restoration of possession in case of dispossession or in case where the cultivation is prevented. The section itself makes it clear that the said remedy is without prejudice to any provisions in any other law for the time being in force relating to restoration of possession. The section itself makes it clear that the said remedy is without prejudice to any provisions in any other law for the time being in force relating to restoration of possession. Section 54-A of the Act of 1971, is quoted below:- "54-A. Restoration of possession to tenant or under tenant ejected or whose cultivation is prevented.- (1) Without prejudice to any provision in any other law for the time being in force relating to restoration 6f possession, whenever a tenant or under-tenant referred to in Section 20 of this Act is ejected or caused to be ejected from his holding except in execution of a decree for ejectment passed by a competent Civil Court or whenever the cultivation of land by a tenant or under-tenant is terminated or caused to be terminated by the landlord or by anybody else, then the tenant or under-tenant concerned may apply to the Revenue Officer having jurisdiction in the area within 90 days of such ejectment or termination as the case may be, or in case where such ejectment or termination has taken place after the coming into force of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 but before the coming into force of the Assam (Temporarily Settled Areas) Tenancy (Amendment) Act, 1974, within 90 days from the date of coming into force of the Assam (Temporarily Settled Areas) Tenancy (Amendment) Act, 1974, for restoration of possession and the Revenue Officer may after such enquiry as he may find it necessary and after issuing notice to the landlord or the person preventing the cultivation of land by the tenant or under-tenant, order or direct that the tenant or under-tenant be restored to the possession of the land. (2) On the order passed under the preceding sub-section becoming final under sub-section (2) of Section 67, the landlord or any other person against whom the order is passed shall immediately restore possession to the tenant or under-tenant, as the case may be. If the landlord or the person against whom the order is directed does not restore the possession within 7 days from the date of the order becoming final then the Revenue Officer, on application by the tenant or under-tenant concerned, shall himself take possession of the holding and deliver it to such tenant or under tenant, as the case may be." 19. A bare reading of the said section would go to show that the same does not constitute an ouster of jurisdiction of the Civil Courts to entertain any dispute pertaining to dispossession of a tenant in respect of the land under his occupation, but the same rather provides an alternative forum for such an aggrieved tenant to seek quick remedy. In any event, the plaintiff's case being one for protection of his possession as a tenant and both the Courts below having found the plaintiff as a tenant in possession of the suit land, Section 54-A of the Act of 1971, would not have an application in the facts and circumstances of the present case. 20. Now coming to the question as to whether the appellants/defendants No. 1 and 2 could have ousted the plaintiff from the suit land on the strength of Ext. B, sale deed, it is to be noted that under the provisions of the Act of 1971, once the name of a tenant is recorded in the Khatian as an occupancy tenant, the pattadar/landlord would not be entitled to disturb the possession of such occupancy tenant over the land. The remedy, if any, for such landlord/pattadar would be to bring in a civil proceeding in accordance with Section 51 of the Act of 1971. 21. From the materials available on record, it is not clear as to whether Sanjib Barua was in-fact the landlord in respect of the land in question since admittedly his name was not recorded in the original Jamabandi pertaining to the said patta. The learned Courts below did not attach much credibility in the correction of the Jamabandi whereby the name of Sanjib Barua was subsequently included. 22. Be that as it may, even assuming that Sanjib Barua was the pattadar in respect of the land under his ownership including the suit land and even if it is presumed that the suit land was validly transferred in favour of the appellants/defendants No. 1 and 2 by means of Ext. B, the sale deed, even in that case, the defendants No. 1 and 2 would at best step into the shoes of the pattadar and no further. B, the sale deed, even in that case, the defendants No. 1 and 2 would at best step into the shoes of the pattadar and no further. Such being the position, they would not be entitled under the law to disturb the possession of an occupancy tenant over the land in respect of which his name has been duly recorded and a khatian is issued. I find force in the argument of Mr. M.A. Sheikh on this point. Such being the position, I find no justifiable ground to disturb the concurrent findings of fact record by the Courts below warranting interference by this Court. As such, there is no merit in this appeal and the same stands dismissed. The questions of law framed by this Court stand answered in the manner indicated above. Stay order passed earlier shall stand vacated. However, having regard to the facts of the case, there would be no order as to cost. Registry to send back the LCR forthwith.