Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 853 (GAU)

Anowar Hussain v. Shajit Hussain

2015-07-16

A.K.GOSWAMI

body2015
JUDGMENT : 1. Heard Mr. P.S. Deka, learned counsel for the appellant/plaintiff. Also heard Mr. B. Banerjee, learned Senior Counsel appearing for the respondents. 2. The case of the plaintiff is that he had purchased land measuring 2 Bigha 3 Katha 13 Lessa covered by Dag No. 437 of Khatian No. 348 and land measuring 3 Bigha 1 Katha 14 Lessa covered by Dag No. 476 of Khatian No. 333 in an auction sale vide order dated 31.12.1970 issued by the Additional Deputy Commissioner, Goalpara, Dhubri and that, finally, he was put in possession of the purchased land by the Nazir on 20.1.1990. His name was accordingly mutated in the land records. Pro-forma defendant Nos. 6 and 7, who are relatives of the plaintiff, were allowed to stay in two houses in schedule-A land. The predecessor-in- interest of the defendants, Altaf Hussain had been suffering from T.B. and he requested the plaintiff in the month of January, 1990 to allow him to stay in one house of the ‘A’ suit land and on compassionate ground, plaintiff allowed him to occupy one house for his treatment at Mancachar. He was subsequently asked to vacate the house on 12.5.1990. However, instead of vacating the house, he filed a title suit being T.S. No. 25/1990 in the Court of Munsiff , Dhubri, claiming that he was a tenant under one Abdul Gani in respect of land measuring 2 Bigha 3 Katha 13 Lessa covered by Dag No. 437 of Khatian No. 348. Altaff Hussain died during pendency of the suit and there being no substitution, the suit was dismissed on 19.1.1991. On 28.6.90, the defendant had also constructed a thatched house. Accordingly, plaintiff prayed for declaration of right, title and interest in respect of ‘A’ schedule land and recovery of khas possession in respect of ‘B’ Schedule , permanent injunction etc. 3. The defendant filed written statement taking various legal pleas like non-joinder of necessary parties, suit being not maintainable in law, etc. A stand was taken denying permissive occupation, as contended by the plaintiff. It is further stated that the suit land was homestead of one Nur Hussain, who alongwith his three sons and his deceased brother’s three sons had been residing in the suit land, and after their death, the defendants, pro forma defendants and many others had been possessing the suit land. It is further stated that the suit land was homestead of one Nur Hussain, who alongwith his three sons and his deceased brother’s three sons had been residing in the suit land, and after their death, the defendants, pro forma defendants and many others had been possessing the suit land. It is also pleaded that their landlord Abdul Gani migrated to Pakistan. 4. In the written statement of pro forma defendant Nos. 1 and 2, stand was taken that the plaintiff, though an auction purchaser, had never got actual possession of the suit land. 5. On the basis of the pleadings, the learned trial Court framed the following issues: “1. Whether there is any cause of action for the plaintiff’s suit? 2. Whether the suit is undervalued and no proper court fees paid as alleged by defendants? 3. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? 4. Whether the plaintiff had acquired right, title, interest and possession over the suit land described in the schedule of the plaint and later dispossessed by the defendants? 5. Whether the suit land is not identifiable and specific?” 6. Whether the plaintiff is entitled to get the decree as prayed for?” 6. During trial the plaintiff examined two witnesses whereas defendant examined four witnesses. A number of documents were exhibited by both the parties. 7. On the basis of Ext.1 and Ext. 3, the learned trial court held that plaintiff has right, title and interest and recorded another finding that the defendant failed to prove rayati status of their predecessor. At the same time, a conclusion was also arrived at by the learned trial court that the plaintiff failed to prove his plea of allowing the predecessor of the defendants to occupy the suit land as permissive occupier. 8. Accordingly, while declaring the right, title and interest of the plaintiff, the prayer for khas possession was declined by the learned trial court. Against the aforesaid judgment and decree, two appeals were preferred- Title Appeal No. 18/1999 by the plaintiff and Title Appeal No. 25/1999 by the defendants in the Court of Civil Judge, Senior Division, Dhubri. 9. 8. Accordingly, while declaring the right, title and interest of the plaintiff, the prayer for khas possession was declined by the learned trial court. Against the aforesaid judgment and decree, two appeals were preferred- Title Appeal No. 18/1999 by the plaintiff and Title Appeal No. 25/1999 by the defendants in the Court of Civil Judge, Senior Division, Dhubri. 9. By a common judgment dated 8.9.2004, the learned lower Appellate Court dismissed T.A. No. 18/1999 and partly allowed T.A. No. 25/1999 thereby, setting aside the decree in respect of title of the plaintiff over the suit land, as passed by the learned trial Court. 10. The result of the judgment of the learned lower Appellate Court is that the plaintiff does not have any right over the suit land and therefore, necessarily, there is no question of eviction of the defendants from the suit land. 11. This appeal was admitted to be heard, vide order dated 2.2.2005 passed by this court, on the following substantial questions of law:- “1. Whether both the learned trial Court and lower appellate court misconstruing the provision regarding acquisition of tenancy right on a land belonging to the estate acquired as a land belonging to the Zamindars under permanent settlement under the present provision of Assam Land Holding (Adoption of Relationship under the Assam Land and Revenue Regulation on 1886 in the acquired permanently settled and Estate) Act, 1974? 2. Whether Article 64 of the Limitation Act is applicable in the instant suit? 3. Whether the appellate Judgment is vitiated for violation of the provision of order 41 Rule 31 of the Code of Civil Procedure 1908 in not framing points for determination of the appeal? 4. Whether the learned lower appellate court misconstrued the exhibit 1 and 3 which are public documents and whether his finding that these documents are not proved under Section 67 of the Evidence Act is correct.?” 12. Mr. P.S. Deka, learned counsel appearing for the appellant has submitted that he will not urge the substantial question of law No. 1. 4. Whether the learned lower appellate court misconstrued the exhibit 1 and 3 which are public documents and whether his finding that these documents are not proved under Section 67 of the Evidence Act is correct.?” 12. Mr. P.S. Deka, learned counsel appearing for the appellant has submitted that he will not urge the substantial question of law No. 1. According to him, there is total perversity in the appreciation of the evidence of the learned lower Appellate Court inasmuch as Ext 1 and 3, sale certificate and possession certificate, respectively, were discarded and ignored from consideration treating the same to be photocopies and thus, not admissible in evidence, totally overlooking the fact that the said documents were proved in original, as demonstrated by the evidence on record. On this ground alone, according to him, the case is required to be remanded back to the learned lower Appellate Court for fresh consideration, by setting aside the impugned appellate judgment. That apart, the learned lower Appellate Court had also erroneously held that the suit is barred by limitation as according to the learned lower Appellate Court, the suit ought to have been filed within 12 years of confirmation of sale on 5.7.71. According to him, the date is also not correct as the date of confirmation is not 5.7.71 but 1.7.77. He submits that confirmation of sale is of no material consequence and the learned Appellate Court ignored to take into account the fact that the plaintiff was delivered possession only on 6.1.90 because Ext.3 was held to be not an admissible document. Therefore, the learned counsel prays for remanding the matter back to the learned lower Appellate Court for fresh disposal on perusal of evidence on record. 13. Mr. Banerjee, learned Senior Counsel appearing for the respondents, while not disputing that Ext.1 and Ext. 3 were proved in original, argues that the plaintiff failed to prove that he had allowed the predecessor of the defendants to occupy suit land by way of permissive occupation. He has submitted that the plaintiff was never in possession of the suit land and that was recorded by the learned trial court also. 3 were proved in original, argues that the plaintiff failed to prove that he had allowed the predecessor of the defendants to occupy suit land by way of permissive occupation. He has submitted that the plaintiff was never in possession of the suit land and that was recorded by the learned trial court also. In that view of the matter, even if right, title and interest is declared in favour of the plaintiff, he is not entitled to khas possession and as such, no interference is called for with regard to the impugned judgment and decree, he submits. 14. I have considered the submissions advanced by the learned counsel appearing for the parties and have perused the materials on record. 15. Learned trial court held, as noticed earlier, that the plaintiff failed to prove that predecessor of defendants were allowed to reside in the suit land as permissive occupier. At the same time, defendant’s claim of rayati status was also held to be not proved, begging the question regarding the status of the defendants in the suit land. If the defendants are in possession, both the findings cannot go together having regard to the pleas taken by the parties. 16. The learned lower Appellate Court, at first, examined the question of right, title and interest of the plaintiff and it concluded that on the basis of Ext.1 and Ext.3, the trial Court could not have held that the plaintiff acquired title over the suit land. As rightly contended by Mr. Deka, learned counsel for the appellant, the learned lower Appellate Court wrongly proceeded to assume that only photocopies had been exhibited in the evidence. Mr. Banerjee has also not disputed the aforesaid portion. There are endorsements in the evidence on record that the photocopies were proved in original. Therefore, the very basis on which the decision of the learned trial court with regard to the finding of the right, title and interest of the plaintiff was set aside, is not sustainable in law. Case of the plaintiff being that he was dispossessed after he was put in possession in the year 1990 vide Ext.3, the reasoning of the learned lower Appellate Court that suit was barred by limitation, the same having not been filed within a period of 12 years from the date of confirmation of the auction sale, is not sustainable. 17. Case of the plaintiff being that he was dispossessed after he was put in possession in the year 1990 vide Ext.3, the reasoning of the learned lower Appellate Court that suit was barred by limitation, the same having not been filed within a period of 12 years from the date of confirmation of the auction sale, is not sustainable. 17. In view of the aforesaid glaring infirmities in the judgment of the lower Appellate Court, I am of the considered opinion that this case deserves to be remanded back to learned lower Appellate Court for fresh decision in accordance with law. This court is not oblivious of the fact that two appeals were filed before the learned lower Appellate Court. However, the result emanating from them is one and the same. Even though there are some observations of the learned lower Appellate Court regarding the possession of the plaintiff, it is noticed that the entire evidence on record was not discussed and it only referred to the evidence of PW 2. As the appeal is being remanded, it is not considered appropriate to analyse the evidence on record in this regard. As the appeal is decided to be remanded back to the learned lower Appellate Court on consideration of substantial question of law Nos. 2 and 4, answered in favour of the appellant, it is not considered necessary to deal with the substantial question of law No.3. 18. In the result, the impugned judgment of the learned lower Appellate Court is set aside and the matter is remanded to the learned lower Appellate Court for fresh disposal. The learned lower Appellate Court will consider the entire evidence on record and dispose of the appeal in accordance with law. Learned lower Appellate Court is requested to dispose of the appeal within a period of six months from the date of receipt of the records of this case. 19. It is made clear that no conclusive finding is recorded by this Court with regard to right, title and interest or with regard to possession. It is only held by this Court that Ext.1 and Ext. 3 need to be considered as admissible documents on record. No opinion is expressed on their probative value. 20. The appeal is allowed as indicated above. No costs. 21. Registry will send down the records to the learned lower Appellate Court forthwith.