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2015 DIGILAW 685 (GAU)

Kamla Bibi v. On the death of Abdul Khalique

2015-06-04

SUMAN SHYAM

body2015
JUDGMENT : 1. This Second Appeal has been preferred against the judgment and decree of reversal dated 30.08.2001 passed by the learned Civil Judge (Senior Division), Karimganj in Title Appeal No.8/1995 allowing the appeal, thereby setting aside the judgment and decree dated 30.01.1995 passed by the learned Munsiff No.2, Karimganj in Title Suit No.59/1991. 2. The case of the plaintiffs, as set out in the plaint, is that final khatian had been issued in the name of the father of the plaintiffs in respect of land measuring 2.5 Acres and on the basis of the said khatian the father of the plaintiffs had been enjoying exclusive ownership and possession over the said plot of land pertaining to dag No.46. After the death of their father the plaintiffs inherited the land and continued to enjoy possession in respect thereof. On 18.04.1977 the plaintiffs sold the eastern portion of dag No.46 to the defendant No.1 and Suku Bibi measuring 4 ½ kedars. After the sale of the aforesaid area of land, the remaining land covered under dag No.46 was under the possession and occupation of the plaintiffs. The defendant No.1 and Suku Bibi later on transferred the aforesaid 4 ½ kedars of land by way of sale to one Kanak Probha Barua and as such the said defendants ceased to have any right, title, interest and possession in respect of the land covered by dag No.46. It is the case of the plaintiffs that taking advantage of the fact that the plaintiffs reside at a place which is about 1 ½ kms. away from the suit land, in Bengali year 1391, the defendants trespassed into the land mentioned in Schedule-II of the plaint measuring about 2 poas and thereafter constructed house thereupon. The plaintiffs immediately raised objection to such illegal activities indulged by the defendants. away from the suit land, in Bengali year 1391, the defendants trespassed into the land mentioned in Schedule-II of the plaint measuring about 2 poas and thereafter constructed house thereupon. The plaintiffs immediately raised objection to such illegal activities indulged by the defendants. Responding to such objection raised by the plaintiffs, the defendants promised to vacate the same very soon but as months and years went by, the defendants did not vacate the suit land and on the contrary, in Bengali year 1394, the defendants started making arrangement for construction of a permanent structure upon the land mentioned in Schedule-II of the plaint as a result of which the plaintiffs’ right, title and interest over the Schedule-II land got clouded prompting the plaintiffs to institute the Title Suit for declaration of their landholder right and for recovery of possession in respect of the land mentioned in Schedule-II of the plaint which forms part of the land covered by dag No.46 which is daswana land of Mahal No.9741/1796 of Mouza Joom Part VII, Porgonah Chapghat, Police Station Badarpur. 3. The defendants contested the suit by filing written statement contending, inter alia, that the suit land originally belonged to the father of the defendant No.1. After the death of their father the defendant No.1 and the defendant No.2 had inherited the aforesaid plot of land since the other legal heirs had predeceased the defendant No.1. It is further pleaded that after the sale of 4 ½ kedars of land by the plaintiffs to the defendant No.1, the plaintiffs had no interest, whatsoever, in respect of dag No.46 and that the disputed land has been in possession of the defendants since past 50/60 years as a result of which a katcha patta had also been issued in their favour. On the basis of the aforesaid averments the defendants prayed for dismissal of the suit. 4. Upon the pleadings of both the parties the learned trial Court had framed as many as 5 issues which are as follows :- “1. Is there any cause of action for the suit? 2. Is the suit maintainable in its present form? 3. Whether plaintiffs have right, title, interest over the suit land? 4. Whether plaintiffs are entitled to get decree as prayed for? 5. To what relief or reliefs if any plaintiff is entitled to get?” 5. Is there any cause of action for the suit? 2. Is the suit maintainable in its present form? 3. Whether plaintiffs have right, title, interest over the suit land? 4. Whether plaintiffs are entitled to get decree as prayed for? 5. To what relief or reliefs if any plaintiff is entitled to get?” 5. The plaintiffs side examined three witnesses whereas the defendants side examined only one witness. However, both sides had exhibited documentary evidence. Upon evaluation of the materials available on record and on hearing the learned counsel for the parties, the learned trial Court had recorded finding in respect of Issue No.3 against the plaintiffs by holding that the plaintiffs have failed to prove their right, title and interest over the suit land. Consequently, the suit filed by the plaintiffs was dismissed by the learned trial Court by the judgment and decree dated 30.01.1995 passed in Title Suit No.59/1991. 6. Being aggrieved by the judgment and decree dated 30.01.1995 passed by the learned trial Court, the plaintiffs as appellants had preferred Title Appeal No.8/1995 before the Court of Civil Judge (Senior Division), Karimganj on the grounds taken in the memorandum of appeal. After hearing the parties the learned First Appellate Court had reversed the finding of the trial Court as regards Issue No.3 by holding that the plaintiffs have been able to prove and establish their title over the suit land on the basis of Ext-1 final khatian. Based on such finding the learned First Appellate Court had decreed the suit filed by the plaintiffs by the judgment and decree dated 30.08.2001. 7. Being aggrieved and dissatisfied with the judgment and decree dated 30.08.2001 passed by the learned Lower Appellate Court, the defendants, as appellants, had approached this Court by filing the present Second Appeal which was admitted to formal hearing by framing the following three substantial questions of law :- “1. Whether the suit filed by the respondent-plaintiff is maintainable under Article 65 of the Limitation Act in view of the admission made by PW 2 in his evidence regarding possession of the defendants over the suit land? 2. Whether the revenue records, namely Khatian (Ext-1) would confer title of the plaintiffs over the suit land under Section 41 of the Assam Land and Revenue Regulation as entries made therein was itself rebutted by PW 1 in his evidence and by Ext-A in the case record? 3. 2. Whether the revenue records, namely Khatian (Ext-1) would confer title of the plaintiffs over the suit land under Section 41 of the Assam Land and Revenue Regulation as entries made therein was itself rebutted by PW 1 in his evidence and by Ext-A in the case record? 3. Whether the impugned judgment, order and decree passed by the learned lower appellate Court ignoring the evidence of PW 1, PW 2 and Ext-A is maintainable in law?” 8. I have heard Mr. N. Dhar, learned counsel for the appellants. Also heard Mr. B. R. Dey, learned Senior Counsel assisted by Mr. S. Dey, learned counsel representing the respondents. 9. While drawing the attention of this Court to the findings and observations recorded by the learned First Appellate Court, Mr. Dhar, learned counsel for the appellants, submits that although the First Appellate Court had proceeded on the basis that the land owned under the Khatian Ext-1 by the predecessor-in-interest of the plaintiffs was more than 8 kedars, yet a perusal of the evidence of PW 1, more particularly the cross-examination, would go to show that he had admitted that the land under their possession was only 7½ kedars. Since it is the admitted position of fact that 4½ kedar land covered by dag No.46 under Ext-1 khatian had been sold to the defendant No.1 and Suku Bibi by the plaintiffs on an earlier occasion, hence, in view of the admission made by PW 1, only 3 kedars of land could have remained under the occupation of the plaintiffs. If that be so, then the question of granting a decree for recovery of possession in respect of the Schedule-II land cannot arise since that would amount to recognizing plaintiffs right, title and interest in respect of the 3 ½ kedars of land which is far and excess of what had been claimed by the PW 1 in his cross-examination. 10. Mr. Dhar further submits that although there is no dispute about the proposition of law that a final khatian would give rise to a presumption of title in respect of the khatiandar over the land mentioned therein, yet such a presumption would be rebuttable in nature. By producing the katcha patta (Ext-A) the defendants had displaced the presumption arising in favour of the plaintiffs on the basis of Ext-1 final khatian. By producing the katcha patta (Ext-A) the defendants had displaced the presumption arising in favour of the plaintiffs on the basis of Ext-1 final khatian. However, the learned First Appellate Court committed manifest illegality in decreeing the suit of the plaintiffs by ignoring the effect of the Ext-A katcha patta which is document of title having a higher probative value. In that view of the matter, submits Mr. Dhar, the judgment and decree passed by the learned lower appellate Court is not sustainable in the eye of law and hence liable to be set aside. 11. Per contra, Mr. B. R. Dey, learned Senior Counsel appearing for the respondents, submits that if the correct conversion table is applied to the facts of this case then it would be seen that 2.5 Acre of land measures upto more than 8 kedars of land. Therefore, submits Mr. Dey, the finding recorded by the learned First Appellate Court to the effect that the plaintiffs had the title and possession over more than 8 kedar land based on the final khatian (Ext-1) cannot be faulted and the same is a correct finding based on materials available on record. As regards Ext-A katcha patta, Mr. Dey submits that a perusal of the said document would go to show that the names of as many 10 pattadars have been mentioned in the said document (Ext-A). However, the aforesaid katcha patta does not indicate as to what quantum of land has been allotted to which of the pattadars. He submits that under the Land Revenue Regulations, objections can be raised as to the entries made in a katcha patta and it is only after resolving all the disputes and claims of title that a final patta is usually issued by the revenue authorities. In the instant case, the defendants have failed to produce any final patta nor have they succeeded in showing that the Ext-A records their name in respect of any land beyond the 4½ kedars of land which they had already transferred in favour of Kanak Prabha Barua. Mr. In the instant case, the defendants have failed to produce any final patta nor have they succeeded in showing that the Ext-A records their name in respect of any land beyond the 4½ kedars of land which they had already transferred in favour of Kanak Prabha Barua. Mr. Dey further submits that notwithstanding the Ext-A katcha patta, the remaining pattadars neither have any right, title or possession over the 3 ½ kedar of land retained by the plaintiffs nor has any such indication being given in the Ext-A. As such in the absence of any cogent evidence to the contrary, the Ext-1 final khatian has to be read in harmony with the entries made in Ext-A katcha patta so as cull out the actual factual position in the case. 12. Mr. Dey further submits that the role of the Court in the ultimate analysis is to find out the truth and thereafter dispense justice to the litigants. In the instant case, since the learned Court below did not record any categorical finding on the effect and impact of the Ext-A katcha patta in so far as the competing claims of the parties is concerned, hence, the title of the plaintiffs over the land retained by them cannot be extinguished merely on the basis of the Ext-A katcha patta. Mr. Dey, therefore, submits that the present is a fit case where a local inspection within the ambit of Order XXVI Rule 9 CPC is required to be made so as to ascertain the actual position at the ground level as regards possession of the parties. 13. I have considered the submissions made by and on behalf of the parties and have also perused the materials on record. On an examination of the evidence available on record it appears that the final khatian (Ext-1) mentions an area of land measuring 2.5 Acres standing in the name of father of the plaintiffs. From application of the conversion table it appears that 2.5 Acres of land measures upto more than 8 kedars of land in total. As such, the conclusion recorded by the learned First Appellate Court to the effect that the predecessor-in-interest of the plaintiffs were in occupation of a total area of land measuring more than 8 kedars appears to be prima facie correct. 14. As such, the conclusion recorded by the learned First Appellate Court to the effect that the predecessor-in-interest of the plaintiffs were in occupation of a total area of land measuring more than 8 kedars appears to be prima facie correct. 14. From a perusal of the Ext-A katcha patta, it is apparent that the said document has been issued in respect of a total area of land measuring 2.5 Acres pertaining to dag No.46(old)/55(new). Ext-A mentions the names of as many as 10 pattadars with a further endorsement that the names in Serial No.1 to 5 are not in possession. However, there is nothing on record to show as to how much area of land stands in the name of which of the pattadar as no copy of jamabondi has been produced by either of the parties. Although the defendants claimed to have inherited the suit land covered by dag No.46 from their father, yet the defendants have not been able to produce an iota of evidence so as to establish that their predecessor-in-interest was ever in occupation of any land covered by dag No.46. Be that as it may, since a katcha patta in the form of Ext-A has been brought on record by the defendants, the same being a document of title, naturally therefore, a presumption as regards title will arise in favour of the pattadars. As has been mentioned herein before, the learned Court below did not make any attempt to make a proper enquiry as to the relevancy of the Ext-A katcha patta or to find out as to what impact the said patta would have over the claim of the plaintiffs in respect of the suit land which was originally under their occupation in terms of the final khatian (Ext-1). On the contrary, the learned First Appellate Court seems to have brushed aside the Ext-A katcha patta by holding that the final khatian would prevail over the katcha patta, which, in my considered opinion, is an erroneous view and hence cannot be sustained in the eye of law. 15. In view of the discussions made in the foregoing paragraphs, I am of the opinion that the judgment and decree passed by the First Appellate Court is not sustainable in the eye of law and as such the same is hereby set aside. 15. In view of the discussions made in the foregoing paragraphs, I am of the opinion that the judgment and decree passed by the First Appellate Court is not sustainable in the eye of law and as such the same is hereby set aside. Since sufficient evidence is not available on record so as to decipher as to the quantum of land allocated to the respective pattadars’ by Ext-A katcha patta and having regard to the fact that a factual determination of the said aspect would have a material bearing in the outcome of the plaintiffs’ suit, this Court has no option but to remand the matter for a fresh decision of the Title Appeal by the learned First Appellate Court after recording appropriate findings on the aforesaid aspect of the matter. In view of the above, the Title Appeal No.8/1995 would stand restored to file. The parties would now appear before the Court of Civil Judge (Senior Division), Karimganj on 13.07.2015. An attempt may be made for expeditious disposal of the appeal, if necessary by holding day to day hearing. Registry to send back the LCR immediately.