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2015 DIGILAW 760 (GAU)

KALBASI GOALA v. RAM NARESH GOALA

2015-06-16

A.K.GOSWAMI

body2015
JUDGMENT : Arup Kumar Goswami, J. Heard Ms. R. Devi, learned counsel for the appellants/defendants. Also heard Mr. B. Banerjee, learned senior counsel appearing for the respondents/plaintiffs. This appeal is directed against the judgment and decree dated 30.5.2003 passed by the learned District Judge, Cachar at Silchar in Title Appeal No. 18/2000 dismissing the appeal and affirming the judgment and decree dated 18.9.2000 passed by the learned Civil Judge (Senior Division), Cachar at Silchar in Title Suit No. 29/1982 decreeing the suit of the plaintiffs. 2. The second appeal was admitted to be heard by an order passed on 26.9.2005 on the following substantial questions of law: "1. Whether the learned Courts below were justified in negating the claim of the appellants on the basis of interpretation given by them in respect of Ext. 2, 3 and 4? 2. Whether the appellants are entitled to a decree particularly in respect of the IIIrd schedule land on the basis of the above interpretation?" 3. The plaintiffs filed a suit for declaration of right, title and interest in respect of Schedule I land, confirmation of possession in respect of Schedule II land within Schedule I land and recovery of possession in respect of Schedule III land which is also within Schedule I land. 4. The case set out by the plaintiffs is that the defendants were licencees under them and they refused to vacate Schedule III land when requested. On enquiries made, it was also found that the defendants had mutated their names in the Record of Rights. 5. The case projected by the defendants in the written statement was that ancestor of the plaintiffs and the defendants, was one Gunraj Goala. His son Nunhat Goala had five sons, namely, Ramsaran, Rameswar, Tileswar, Bisheswar and Parasuram @ Ashram, out of whom Bisheswar Goala died during the lifetime of his father. The surviving sons of Nunhat left their ancestral place kathar in Uttar Pradesh and came to the district of Cachar and settled as a Hindu Joint Family and cultivated the suit land by clearing the jungles. The plaintiffs' father Thoga Goala was eventually given settlement and he accepted the Schedule I land on behalf of Hindu Mithakshara Joint Family. The surviving sons of Nunhat left their ancestral place kathar in Uttar Pradesh and came to the district of Cachar and settled as a Hindu Joint Family and cultivated the suit land by clearing the jungles. The plaintiffs' father Thoga Goala was eventually given settlement and he accepted the Schedule I land on behalf of Hindu Mithakshara Joint Family. He also divided the Schedule I land amongst his four brothers equally in four parts and all the names of the members of the joint family were recorded in the Record of Rights by the order of the Sub-Deputy Collector dated 11.9.1923. Thus, a plea was taken that they were joint owners of the Schedule I property as coparceners of Hindu Joint Family. One additional written statement was also filed stating that they were exercising their rights in Schedule III land jointly, peacefully and without any interruption and in denial of title of others by cultivating paddy and therefore, title of plaintiffs, if any, was extinguished by operation of law. Thus, in essence, a plea of adverse possession was sought to be raised by the additional written statement. 6. The following issues were framed by the learned trial Court: "1. Is there any cause of action for this suit? 2. Is there any case of non-joinder of necessary parties? 3. Whether the plaintiffs and the defendants were the members of Joint Hindu Family, governed by Mithakshara School? 4. Whether the defendants are licencees over part of the suit land, as claimed by the plaintiffs? 5. Are the plaintiffs entitled to the relief? 6. Is the suit barred by limitation? 7. Whether the plaintiffs have right, title and interest over the suit property? 8. Whether the defendants acquired any right, title and interest over the suit property?" 7. The plaintiffs had examined two witnesses and had proved certain documents. The defendants also adduced evidence of four witnesses. The suit was initially dismissed. However, in appeal, the suit was remanded back to the learned trial Court for fresh disposal. After remand, the plaintiffs examined one more witness. 8. The plaintiffs had examined two witnesses and had proved certain documents. The defendants also adduced evidence of four witnesses. The suit was initially dismissed. However, in appeal, the suit was remanded back to the learned trial Court for fresh disposal. After remand, the plaintiffs examined one more witness. 8. The Courts below, on appreciation of evidence on record, recorded a finding that both the parties do not belong to members of a Joint Hindu Family governed by Mithakshara School of Hindu Law and consequently, there was no basis of the claim of the defendants in respect of right, title and interest in Schedule I property, in view of the fact that Ext. I Periodic patta was issued in the name of Thoga Goala, the predecessor-in-interest of the plaintiffs. The learned Courts below also held that the mutation entries, such as Ext. 2 and 3, do not confer title. The learned Courts below also noted that defendants failed to prove on what basis their names were mutated in the Record of Rights. The learned trial Court had noted that no specific plea as such was taken in the written statement regarding adverse possession but during arguments stand was taken with regard to acquisition of right, title and interest on the plea of being coparceners in the joint family and also on the plea of adverse possession. The learned Courts below also held that the defendants failed to prove partition of the suit land in four equal parts as contended by the defendants. 9. The learned lower appellate Court recorded a finding that defendants had failed to prove their stand of continuous possession of the land adversely to the interest of the plaintiffs and that they are not entitled to the benefit under Article 65 of the Limitation Act. 10. Ext. 4, which finds mention in the substantial question of law No. 1, is a revenue receipt which is not a document of title. The position that has emerged is that the plaintiffs could prove right, title and interest on the basis of Ext. 1, the Periodic patta, which was issued solely in the name of the predecessor-in-interest of the plaintiffs. There is no material on record to indicate that patta was issued in the name of the predecessor-in-interest of the plaintiffs on behalf of a Hindu Joint Family. 1, the Periodic patta, which was issued solely in the name of the predecessor-in-interest of the plaintiffs. There is no material on record to indicate that patta was issued in the name of the predecessor-in-interest of the plaintiffs on behalf of a Hindu Joint Family. Concurrent finding of fact as recorded by the learned Courts below are to the effect that defendants failed to prove that they belong to a joint family and that patta was issued in the name of the eldest brother of the joint family and that there was no partition amongst the four brothers. The plea of adverse possession was also rejected. 11. This Court in Manmatha Ranjan Trivedi v. Gopal Krishna T.E. Co. (P) Ltd., & Ors., reported in (2006) (Supp) GLT 718, had held that mutation of a property in the revenue record does not create or extinguish title and it also does not have any presumptive value of title. In Amiya Bala Dutta and Others Vs. Mukut Adhikari and Others, (1998) 4 GLT 137, this Court had held that patta must be considered to be a document of title. In order to have title over land apart from mutation something more is necessary, which may be by way of transfer or by way of inheritance. Merely, on the basis of entries in the revenue records, the defendants cannot claim right, title and interest and therefore, the substantial questions of law have to be answered against the appellants/defendants. 12. Another significant aspect is that in the instant case the defendants had set up a plea of title by way of inheritance as well as by way of adverse possession. As held in Arundhati Mishra (Smt) Vs. Sri Ram Charitra Pandey, (1994) 2 SCC 29 , the plea based on title and adverse possession is mutually inconsistent and the latter does not begin to operate until the former is denounced. The defendants never denounced their character as the owners asserting adverse possession openly to the knowledge of the respondents/plaintiffs. 13. In view of the above, there is no merit in this appeal and accordingly, the same is dismissed. No cost. The Registry will send back the records. Appeal dismissed.