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2015 DIGILAW 879 (GAU)

Birchi Nath v. Samir Ali

2015-07-22

N.CHAUDHURY

body2015
JUDGMENT : The judgment and decree dated 30.1.2009 passed by the learned Civil Judge No. 1, Kamrup, Guwahati in Title Suit No. 169 of 2007 has been called in question by the plaintiff of the suit in the present appeal. 2. Plaintiff Smti Birchi Nath instituted Title Suit No.169 of 2007 in the court of learned Civil Judge at Guwahati stating that her deceased husband Late Kuhiram Nath was a recorded tenant with respect to land measuring 1 Bigha 1 katha 7 lechas covered by Dag No.604 and land measuring 2 Bighas 2 kathas 17 lechas covered by Dag No. 598 both belonging to K.P. Patta No.91 of village Saukuchi, Mouza Beltola. Kuhiram Nath was allowed Khatian No. 36 dated 28.5.1983 till the settlement operation and so he acquired all rights of recorded tenant under The Assam (Temporarily Settled Areas) Tenancy Act.1971 (hereinafter referred to as ‘Act’). He died on 12.12.2002 leaving behind plaintiff and her three sons, namely, Umesh Nath, Dinesh Nath and Ramesh Nath as the legal heirs and all of them continued enjoying the aforesaid tenanted land. Thereafter, Umesh Nath and his two sons Dhruba Nath and Gautam Nath purchased the title with respect to 1 Bigha 1 katha of land covered by Dag No.598 of the aforesaid patta from the land owners namely, the defendants No. 6 to 18 on 22.10.2003 by six separate registered sale deeds. However, 17 lechas of land in Dag No. 598 and entire 1 Bigha 1 Katha 7 lechas of land covered by Dag No.604 of the aforesaid patta remained tenancy land under the plaintiff and her aforesaid three sons. Umesh Nath, however, by virtue of internal arrangement among all the tenants including the plaintiff filed application before the Deputy Commissioner, Kamrup(M) under Section 23 of the Act praying for ownership of the land vide Rayati Case No. 57 of 2005 and the same has been pending. In the meantime, defendant No.1, Samir Ali filed case No. 138 of 2007 under Section 145/146 of the Cr.P.C. before the S.D.M. (Kamrup) at Guwahati with respect to the suit land described in the Schedule-A to the plaint and the learned Executive Magistrate by order dated 14.5.2007 attached the land. Although plaintiff and her sons submitted written statement before the Executive Magistrate and prayed for dismissal of the proceeding but the same was not heeded to. Although plaintiff and her sons submitted written statement before the Executive Magistrate and prayed for dismissal of the proceeding but the same was not heeded to. Rather defendant No. 1 became active to evict the plaintiff and her sons from the suit land described in Schedule-A to the plaint without following the due process of law. 3. Plaintiff further submits that in the aforesaid proceeding under Section 145 Cr.P.C., defendant No.1, Samir Ali produced a copy of alleged sale deed No. 8924/03 dated 22.10.2003 claiming that suit land has been sold to him by the three sons of plaintiff on that date. According to the plaintiff, her sons did never execute sale deed and even if their signatures were fraudulently obtained in that event, the sale deed cannot confer any title to the defendant No. 1 inasmuch as it is hit by provisions of the Act. With this averments on facts, plaintiff has prayed for a decree declaring that she along with her three sons are not liable to be evicted from the Schedule-A land save and except by procedure laid down under the Act and that their possession is not liable to be disturbed in any way and that sale deed No.8924/03 dated 22.10.2003 is liable to be adjudged as forged, false and violative of the Act. Plaintiff also made a payer for a decree of permanent injunction restraining the defendants and other men etc from disturbing the possession of the plaintiff and her sons over the suit land. 3. Upon issuance of notice s to the defendants, none of the defendant appeared and submitted written statement and under such circumstances, the learned trial court passed order for proceeding exparte against them. The plaintiff examined as many as three witnesses including herself and submitted examination in chief in the form of an affidavit under Order XVIII Rule 4 of the CPC. Since the defendants did not appear there was no cross-examination of this witness. However, the learned trial court after consideration of this material including the written argument submitted on behalf of the plaintiff dismissed the suit holding that the plaintiff not having produced the subject sale deed No. 8924/03 dated 22.10.2001 no decree can be passed for cancelling the said sale deed. However, the learned trial court after consideration of this material including the written argument submitted on behalf of the plaintiff dismissed the suit holding that the plaintiff not having produced the subject sale deed No. 8924/03 dated 22.10.2001 no decree can be passed for cancelling the said sale deed. However, the learned trial court has not made any mention about the claim of the plaintiff for injunction on the basis of the rights emanating from the Act. This judgment and decree dated 30.1.2009 has been challenged by plaintiff before this court on the ground of facts as well as law. After admission of the first appeal, notices were duly issued to sole respondent who was the defendant No. 1 in Title Suit No. 169 of 2007 and the said respondent has entered appearance by engaging a number of Advocates whose names have been duly shown in the Cause List. But no one has put up appearance when the matter has been called up for hearing. Under such circumstances, this court is constrained to take up the matter for hearing ex-parte even in the absence of the learned counsel for the respondent. 4. I have heard Mr. Sheeladitya, learned counsel for the appellant and perused the LCR. 5. From perusal of the plaint as well as the evidence of the witnesses examined on behalf of the plaintiff, it is seen that the case of the plaintiff is based on the right of occupancy tenant with respect of Schedule-A land. Both the plot of land covered by Dag Nos. 604 and 598 were under the occupation of Kuhiram Nath as recorded tenant and so he was granted a pucka khatian with respect to both the plots of land. On his death on 12.12.2002, the plaintiff and three sons, namely, Umesh Nath, Dinesh Nath and Ramesh Nath stepped into the shoe of the recorded tenant and they also became tenant under the original owners. Under section -6 of the Act, an occupancy tenant has permanent, heritable and transferable right of use and occupancy in the land of his holding subject to other provision of this Act. Section-7 provides that in case of death of tenant, his right of tenancy shall descend on his legal heirs in the same manner as other immovable property . Under section -6 of the Act, an occupancy tenant has permanent, heritable and transferable right of use and occupancy in the land of his holding subject to other provision of this Act. Section-7 provides that in case of death of tenant, his right of tenancy shall descend on his legal heirs in the same manner as other immovable property . That being the position, once it is brought on record that Kuhiram Nath was occupancy tenant with respect to the suit land plaintiff prima-facie has inherited the right alongwith her sons with respect to the suit land upon death of Kuhiram Nth on 12.12.2002. 6. The right of occupancy tenant to transfer a land under his tenancy is permissible only with prior permission of the Government in the manner prescribed and Section -8 of the Act provides that a notice of such transfer is required to be serve on the landlord in the prescribed manner. However, there is prohibition that such land cannot be transferred to non-agricultarist. Plaintiff raised this issue in particular in para-15 of the plaint. Plaintiff has pleaded that there was no prior permission of the Deputy Commissioner for the purpose of execution of sale deed No. 8924/03 dated 22.10.2003. The plaintiff as well as her son PW-2 (Umesh Nath) have denied execution of the sale deed. But the aforesaid sale deed has not been brought or called for and no evidence has been adduced by plaintiff to show that there was no prior permission of the Deputy Commissioner prior to execution of sale deed. It is on this consideration, the learned trial court did not decree the suit. But the learned trial court failed to take into consideration that the plaintiff was basically aggrieved at her imminent eviction from the suit land because of unlawful activity of defendant No.1. According to her, she cannot be evicted save and except by way of compliance of the procedure prescribed under the Act. The learned trial court has not considered that aspect of the matter although it was prayer of the plaintiff in the suit. 7. Mr. Sheeladitya arguing for the appellant has vehemently projected that the learned trial court did not consider the prayer of the plaintiff in the plaint and committed injustice because of such non application of mind. The learned trial court has not considered that aspect of the matter although it was prayer of the plaintiff in the suit. 7. Mr. Sheeladitya arguing for the appellant has vehemently projected that the learned trial court did not consider the prayer of the plaintiff in the plaint and committed injustice because of such non application of mind. It cannot be lost sight of that it is ex-parte proceeding against defendant No.1 who despite service of notice has failed to contest the suit of the plaintiff by filing written statement or otherwise. Of course, the plaintiff could have called for the certified copy of the sale deed and could have proved the same by calling documents from the Sub-Registry. Plaintiff also could have proved by necessary evidence that the aforesaid sale deed was not executed by all the owners and that, too, without obtaining prior permission of the Deputy Commissioner. By making averments in para-6 of the plaint, plaintiff claimed that there is a report of the A.D.C., Kamrup(Metro) on 15.6.2005 stating that Umesh Nath has been occupying and cultivating the land as recorded tenant. After all there is prima-facie evidence that plaintiff and her sons is in possession of the suit land, in that event, the very basis of surrendering the possession by Umesh Nath and others in favour of defendant No.1 becomes untenable. However, after making averment in para-6 plaintiff did not call for that document from the concerned authority. Of course, PW-3 has stated in so many words about possession of Kuhiram and his legal heirs over the suit land for all these years. Considering all these aspects of the matter in entirety , it is apparent that the learned trial court has failed to take into consideration the prayers in entirety made in the plaint. The learned trial court has failed to decide as to whether plaintiff being occupancy tenant is entitled to protection against eviction. Accordingly, the impugned judgment and decree is set aside and the matter is remanded to the trial court with direction to afford adequate opportunity to the plaintiff to lead appropriate evidence to prove her case by pre-ponderance of probability. It is needless to say that though the matter has been taken up ex-parte against defendants yet defendants shall be at liberty to cross-examine the witnesses of the plaintiff, if so desires. It is needless to say that though the matter has been taken up ex-parte against defendants yet defendants shall be at liberty to cross-examine the witnesses of the plaintiff, if so desires. After receipt of the records, the learned trial court shall issue fresh notices to the defendants and thereafter shall take up the matter for disposal in accordance with law. Since the matter is of the year 2007, trial court shall make an endevour to dispose of the same expeditiously preferably within a period of 6(six) months from the date of receipt of the records. 8. Send down the records after framing of the decree. Plaintiff shall appear before the trial court on 1.9.2015 to receive necessary order.