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2015 DIGILAW 224 (GAU)

Sushila Bala Bora v. Bhagaban Ch. Das

2015-02-24

SUMAN SHYAM

body2015
Suman Shyam, J. 1. This second appeal arises out of judgment and decree dated 01.08.2006 passed by the learned District Judge, Barpeta in Title Suit No. 13/2005 allowing the appeal filed by the defendants by setting aside the judgment and decree dated 31.08.2005 passed by the Civil Judge (Sr. Dn.), Barpeta in Title Suit No. 2/2004. The case of the plaintiff as projected in the plaint is that a land measuring 1B 4K 1L covered by N.K. Patta No. 2 of Dag No. 606 of Mouza Subend, Barpeta Town is standing in the name of "Idol Shyam Rai Bigraha". Ananta Kr. Das was a occupancy tenant in respect of the said plot of land who used to regularly pay tax to the landlord by obtaining receipt. After the death of Ananta Kr. Das the names of legal heirs i.e. the plaintiffs had been recorded on 05.02.2003 only in respect of 2K 10L. However, the remaining portion of the land has not been mutated in the name of the plaintiffs although the entire land ought to have been recorded in their names. It is the claim of the plaintiff that they have been in possession of the land all along. However, on 25.10.2001, the names of Late Hari Das as well as Bhagaban Ch. Das were recorded in respect of the suit land in most fraudulent manner even though plaintiffs were in possession of the land. Being embolden by such order of mutation, the defendants have dispossessed the plaintiffs from 4K 1L area of land and constructed two houses thereupon. The rest 1B land is still under possession of the plaintiff. On 15.01.2004 the plaintiff requested the defendants to deliver and vacate the possession of said area of land measuring 4K 1L, described in schedule-B of the plaint, but the defendants refused to do so. Hence, this present suit. 2. The defendants contested the suit filed by the plaintiffs by filing their written statement wherein they have taken the formal plea such as want of cause of action, suit being barred by limitation as well as under Assam Land and Revenue Regulation Act. Hence, this present suit. 2. The defendants contested the suit filed by the plaintiffs by filing their written statement wherein they have taken the formal plea such as want of cause of action, suit being barred by limitation as well as under Assam Land and Revenue Regulation Act. In their written statement the defendants have also averred that the suit land belongs to the defendant No. 1, 2 and 3 who are the occupancy tenants since long time and hence the names have also been mutated on the basis of which their possession over the land as occupancy tenants. Defendants have denied that Ananta Kr. Das was a tenant in respect of the suit land. It is their pleaded case that despite proper service of notice plaintiffs did not file any objection in MC No. 52/200-01 and therefore they cannot now question the mutation granted in favour of the defendants. It has also been alleged that the mutation has been granted to the defendant No. 2 and 3 and therefore it is apparent that plaintiff do not even have knowledge about the land which has been possessed by the defendant since 1961. The houses had been constructed by the defendants in the year 1961 wherein they have been residing with their families. The defendants claimed that the land has been amicably partitioned and thereafter each of the co-sharers had been put in possession. The plaintiff never objected to such possession of the land by the defendants nor is there any explanation as to why they remained silent for such a long period of time. Defendants have, therefore, prayed that plaintiffs suit is devoid of any merit and hence liable to be dismissed. 3. On the basis of the pleadings of the parties the learned Trial Court had framed as many as 6 issues: "(i) Whether the suit is barred by limitation? (ii) Whether Late Ananta Das was the occupancy tenant of the suit land and as heir plaintiff has right, title and interest upon the suit land? (iii) Whether defendant No. 1 and Late Sri Hari Das occupancy tenant of the suit land and the name of defendant No. 2 and 3 was legally mutated vide M.C. No. 52/2000-01 or the mutation of defendant No. 2 and 3 is illegal? (iii) Whether defendant No. 1 and Late Sri Hari Das occupancy tenant of the suit land and the name of defendant No. 2 and 3 was legally mutated vide M.C. No. 52/2000-01 or the mutation of defendant No. 2 and 3 is illegal? (iv) Whether the defendants constructed the two houses upon the suit land in 1961 or on 25.11.01 as alleged by plaintiffs? (v) Whether the defendants have right, title and interest upon the suit land? (vi) To what relief or reliefs the parties are entitled?" 4. Both parties have adduced oral and documentary evidence in support of the case. In consideration of the pleadings of the parties as well as materials available on record the learned Trial Court decreed the suit filed by the plaintiff by declaring their right title interest and possession of the plaintiffs as occupancy tenants and also granted decree for recovery of khas possession and other consequential relief. 5. Being highly aggrieved by the aforesaid judgment and decree dated 31.08.2005 passed by the learned Trial Court decreeing the suit, the defendants as appellants preferred Title Appeal No. 13/2005 in the Court of learned District Judge, Barpeta. Upon hearing the learned counsel for the parties and on examination of the record the District Judge, Barpeta had passed judgment and decree dated 01.08.2006 thereby allowing the appeal by reversing the judgment and decree passed by the Trial Court. 6. Being aggrieved, the plaintiff as appellant has preferred the instant second appeal which was admitted to be heard on the following substantial question of law: "Whether the learned Court below is justified in dismissing the suit of the plaintiffs as a whole, by allowing the appeal and not decreeing the suit in respect of 4 katha and 10-1/2 lecha of land, in view of the finding recorded by him that the predecessors-in-interest of the plaintiff and the defendant are the occupancy-tenants of the suit land, out of which in respect of 4 katha and 10-1/2 lechas of land, the names of the respondents who are the successors-in-interest of Lakhi Kt. Das were mutated in the revenue record." 7. I have heard Mr. M.U. Mandal, learned counsel for the appellant and also heard Mr. P.K. Kalita assisted by Ms. T. Goswami, learned counsel for the respondents. Mr. Das were mutated in the revenue record." 7. I have heard Mr. M.U. Mandal, learned counsel for the appellant and also heard Mr. P.K. Kalita assisted by Ms. T. Goswami, learned counsel for the respondents. Mr. Mahmud submits that the original khatiyan will go to show that the name of predecessor of the plaintiffs Late Ananta Das was recorded as sole occupancy tenant in respect of the entire area of land measuring 1B 4K 1L including the schedule-B land. Therefore the names of the defendants could not have been recorded on 25.10.2001 in respect of the said land as there was no basis for doing so. He submits that said entry has been made fraudulently without following due process and law and as such calls for a declaration to that effect from this court. If the mutation of the name of the defendants by the order dated 25.10.2001 is not in accordance with law then the illegal disposition of the schedule-B land by the defendants is also not tenable in the eye of law and as such the relief prayed for in the suit are the rightful claim of the plaintiff. He submits that learned First Appellate Court misconstrued the documentary evidence brought on record by the plaintiffs and erroneously dismissed the suit by ignoring relevant and cogent materials available on record. 8. Mr. P.K. Kalita, learned counsel appearing for the respondents submits that documentary evidence more particularly Exhibit-A and Exhibit-5 would clearly show that the names of Lakhi Kt. Das, the predecessor of the defendant is also recorded as occupancy tenant in respect of the land in dispute. Therefore, to say that the entire land was belonging to Ananta Das is wholly without any basis. He submits that Ananta Das and Lakhi Kt. Das both being sons of Ghamaru were recorded as joint occupancy tenants in respect of the land in question. Therefore, after their death names of the respective legal heirs have been recorded in accordance with law. He submits that the plaintiffs never raised any objection to the recording of the names of the defendants in the khatiyan which had happen several years back. It is, therefore, not open to the plaintiffs to raise any questions regarding entries made in the record of right at this distant point of time since they have never questioned the same before the appropriate authority in accordance with law. It is, therefore, not open to the plaintiffs to raise any questions regarding entries made in the record of right at this distant point of time since they have never questioned the same before the appropriate authority in accordance with law. He, therefore, submits that appeal is without any merit and deserves to be dismissed. 9. I have considered the rival submissions made by the parties and have also examined the records. It is not in dispute that Ananta Das and Lakhi Kt. Das were brothers and therefore the claims of the respective parties is obviously in capacity as being legal heirs of said two persons. The learned Appellate Court after examining the material evidence on record came to a finding that Exhibit-4, which is the certified copy of the chitha mutation of the suit land, the names of Ananta Das, Bhagaban Das, Sakuntala Das, Kamakhya Das had been entered. Exhibit-5 is the certified copy of the chitha mutation standing in the name of the plaintiffs. In Exhibit-4 the name of Sri Hari Das had been struck of with red ink and in his place names of Bhagaban Das, Sakuntala Das and Kamakhya Das had been entered. In Exhibit-A i.e. certified copy of the original khatiyan the names of both Ananta Das and Lakhi Kt. Das have been shown as sons of Ghamaru. 10. PW3 i.e. Lat Mandal of Sahar Barpeta Circle 9 too had been examined both by the plaintiffs side as well as by defendant side and PW3 and DW3 respectively, has deposed that the plot of land measuring 1B 4K 1L under Dag No. 606 of N.K. Patta stood in the name of Idol Shyam Rai Bigraha wherein the names of Ananta Das and Sri Hari Das and Bhagaban Das had been recorded as riyats. The said witnesses had also deposed that by the order dated 06.12.1978 the then Sub-Deputy Collector had mutated the name of Sri Hari Das and Bhagaban Das in place of Lakhi Kt. Das in respect of 4K 10L of land which is the schedule-B land. The learned First Appellate Court recorded that from the aforementioned material evidence on record it is clear that the names of Sri Hari Das and Bhagaban Das had been recorded as occupancy tenants in the said khatiyan in their capacity as legal heirs of Lakhi Kt. Das. Das in respect of 4K 10L of land which is the schedule-B land. The learned First Appellate Court recorded that from the aforementioned material evidence on record it is clear that the names of Sri Hari Das and Bhagaban Das had been recorded as occupancy tenants in the said khatiyan in their capacity as legal heirs of Lakhi Kt. Das. Therefore, the question raised by the plaintiffs as to the basis on which names of Sri Hari Das and Bhagaban Das were recorded in records of rights stands answered from the aforementioned materials alone. 11. The basic allegation made by the plaintiffs is that the mutation of the names of the defendants recorded by the order dated 25.10.2001 is fraudulent appears to be completely untenable as it is evident from the records that the names of Hari Das and Bhagaban Das had been entered into the records of rights as legal heirs of Lakhi Kt. Das. Since the plaintiffs have not made any attempt to challenge the orders of mutation before the appropriate forum and having regard to the fact that the entire basis of the claim made by the plaintiff is nothing else but orders of mutation, as such they cannot be allowed to raise this plea in civil suit for the first time without challenging the said orders before the appropriate authorities in accordance with law. There is presumption of correctness of the entries made in the record of rights. The Appellants/Plaintiffs have not been able to show by leading any evidence, that such entries were illegal or fraudulent. Such being the position, I do not find any infirmity in the decision and conclusion recorded by the learned court below warranting interference by this court. The second appeal is devoid of any merit and hence same is dismissed. It is, however, made clear that notwithstanding the judgment and order passed in this case, it will be open to the parties to apply for correction of the records maintained by the revenue authority if the same is otherwise permissible under the Law. The records be send back. Having regards to the facts and circumstances of the case that there is no order as to cost.