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2016 DIGILAW 1026 (GAU)

Chandi Biswas v. Narendra Kumar Rai

2016-11-21

SUMAN SHYAM

body2016
JUDGMENT AND ORDER : Suman Shyam, J. Heard Mr. G.P. Bhowmik, learned Senior Counsel for the appellants. Also heard Mr. A.L. Mondal, learned counsel for the sole respondent. 2. This second appeal has been preferred against the judgment and decree of reversal dated 03.06.2003 passed by the Court of District Judge, Morigaon, in Title Appeal No.15 of 2001 dismissing the Title Suit No.25 of 1999 instituted by the appellants as plaintiffs. This Second Appeal was admitted to be heard on the following substantial question of law: "Whether the learned lower appellate court erred in law in reversing the judgment and decree of the learned trial court by applying the provision of law Assam (Temporary Settled Areas), 1971, more particularly Section 66 thereof?" 3. The case of the appellants/plaintiffs in brief is that their father Late Noai Biswas was the original owner of the suit land measuring 10 Bighas 3 Kathas 11 Lechas which forms part of the larger plot of land measuring 12 Bighas 3 Kathas 11 Lechas covered by Dag No.279/ 264 of Periodic Patta No.67, situated at the Revenue Village of Lcharaibori under Pakarai Mouza in the District of Morgiaon. Noai Biswas died leaving behind his wife Raisundari and 2 sons, namely, the appellant Nos. 1 and 2. Raisundari also died a few years latter leaving behind the appellants as her heirs. During her lifetime the mother of the plaintiffs Raisundari had allowed the defendant No.1 to cultivate the suit land on the basis of "Adhi"' and accordingly, the defendant has been paying "Adhi" regularly. Since, both the plaintiffs were minors at the relevant point of time, hence, taking advantage of their minority and keeping their mother in the dark, the defendant had fraudulently mutated his name in the chitha on 23.03.1979 by taking the help of some of the revenue staff of the Mayong Circle. The chitha mutation was obtained on the basis of right of purchase of the suit land allegedly made by the defendant from the plaintiffs by means of a registered deed of sale. The case of the plaintiffs is that they had never executed any registered deed of sale in favour of the defendants and further that at the relevant point of time, the plaintiffs being minors, could not have executed a registered sale deed on their own. The plaintiffs Nos. The case of the plaintiffs is that they had never executed any registered deed of sale in favour of the defendants and further that at the relevant point of time, the plaintiffs being minors, could not have executed a registered sale deed on their own. The plaintiffs Nos. 1 and 2 had attained majority in the year 1987 and 1990 respectively and thereafter, wanted back the possession of the suit land for the purpose of cultivating the same by themselves but they were dispossessed forcibly by the defendants in the month of March, 1994, with the help of some men, as a result of which, a proceeding under Section 145 of the Code of Criminal Procedure in the form of MR Case No. 55 of 1994 was started and the suit land was attached by an order passed in connection with the said proceeding. The plaintiffs had also instituted MRK Case No. 9 of 1994 in the Court of the Deputy Commissioner, Morigaon, for cancellation of the chitha mutation obtained by the defendant. According to the plaintiffs, the cause of action for filing the suit arose when the defendants had obtained the chitha mutation in respect of the suit land and therefore, the plaintiffs had filed Title Suit No.25 of 1999 in the Court of the Civil Judge (Senior Division), Morigaon, inter alia, praying for a decree declaring their right, title and interest over the suit land; for a decree of permanent injunction restraining the defendant from entering into the Schedule-A of the suit land; for issuance of a precept for cancellation of the chitha mutation and for other consequential reliefs. 4. On receipt of summon in connection with Title Suit No.4 of 1995, the defendant had entered appearance and contested the suit by filing the written statement, inter alia, taking a plea that the suit land originally belonged to Late Noai Biswas but since the year 1966 the defendant has been possessing the land as a Raiyat. In the year 1976, a "Kachchaa Raiyati Patta" was issued in the name of the defendant and thereafter, in the year 1982 a "Pakka Khatian" was issued in his name in respect of the suit land. In the year 1976, a "Kachchaa Raiyati Patta" was issued in the name of the defendant and thereafter, in the year 1982 a "Pakka Khatian" was issued in his name in respect of the suit land. According to the defendant, in the year 1985, his name was mutated on the basis of the sale and thus, he has been continuously possessing the disputed land since 1966 by paying land revenue to the Government and presently, the defendant has dwelling house on the said plot of land wherein, he has been living with his family. On the basis of the aforesaid pleadings the defendant had denied right, title and interest or possession of the plaintiffs over the suit land and prayed for dismissal of the suit. 5. On the basis of the pleadings contained in the plaint and written statement, the trial court had framed the following 7 (seven) issues for trial: "1) Is there any cause of action for the suit? 2) Is the suit barred by Limitation and adverse possession? 3) Whether the suit is bad for mis-joinder and non-joinder of parties? 4) Whether the suit has been properly valued? 5) Whether plaintiff has right, title and interest over the suit land? 6) Whether the plaintiff is entitled to permanent injunction as prayed for? 7) What relief/reliefs the parties are entitled to?" 6. During trial both the parties led evidence in support of their respective cases. On the basis of evidence available on record, the trial court had answered all the issues, more particularly the issue No.5, in favour of the plaintiffs by holding that the plaintiffs were entitled to a decree declaring their right, title and interest over the suit land and also for a decree of permanent injunction. On the basis of such findings recorded by the trial court, the suit filed by the appellants as plaintiffs was decreed by the judgment and decree dated 19.12.2000 passed in connection with Title Suit No.25 of 1999. 7. Being aggrieved and dissatisfied with the judgment and decree dated 19.12.2000 passed by the trial court, the contesting defendant as appellant, had preferred Title appeal No.15 of 2001 before the Court of District Judge, Morigaon. 7. Being aggrieved and dissatisfied with the judgment and decree dated 19.12.2000 passed by the trial court, the contesting defendant as appellant, had preferred Title appeal No.15 of 2001 before the Court of District Judge, Morigaon. On perusal of the materials available on record and on hearing the learned counsel for both the parties, the lower appellate court had reversed the findings of the trial court by holding that there was no cause of action for the plaintiffs to institute the suit and that the suit filed by the plaintiffs was not maintainable in the eye of law in view of the specific provision contained in Section 66 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971. Being aggrieved by the judgment and decree of reversal passed by the lower appellate court, the appellants have preferred the instant second appeal. 8. Mr. G.P. Bhowmik, learned Senior Counsel appearing for the appellants, submits that the suit land admittedly belonged to the predecessor-in-interest of the appellants and the claim made by the defendant of having purchased the same from the appellants could not be substantiated during trial. The plaintiffs had approached the trial court by filing the suit, inter alia, seeking a decree for declaration of their right, title and interest over the suit land which had been rightly decreed by the trial court. As such, according to Mr. Bhowmik, the lower appellate court had committed manifested illegality in reversing the decree passed by the trial court on the ground that the same was not maintainable in the eye of law by failing to consider that the plaintiffs' suit was not for correction or preparation of any record of right but was one for declaration of right, title and interest over the suit land based on the title of their predecessor-in-interest. 9. Mr. Mondal, learned counsel for the respondent, on the other hand, submits that although the defendant could not produce any document in support of his claim that the suit land was purchased by him from the appellants, yet, in view of the Exhibits-Ka, Kha and Ga i.e. "Rayoti Khatians" brought on record, the lower appellate court was justified in holding that the suit was not maintainable in the eye of law, inasmuch as, the right and interest of the defendant as occupancy tenant would remain protected under the provision of the Act, 1971. Mr. Mr. Mondal submits that the plaintiffs cannot recover the possession of the suit land without instituting a proper proceeding under the Act of 1971 and therefore, the suit itself was not maintainable in the eye of law. 10. I have considered the rival submissions advanced by the learned counsel appearing for both the parties and have also perused the materials available on record. It is the admitted position of fact that the suit land originally belonged to the father of the appellants/ plaintiffs, namely, Noai Biswas. After the death of Noai Biswas, their mother Raisundari and the plaintiffs jointly inherited the property left behind by Noai Biswas which included the Schedule-A land. On the death of Raisundari, the plaintiffs Nos. 1 and 2 became the absolute owners of the property. Although, the defendant had claimed in the written statement that his name was mutated in the chitha on the basis of right of sale/purchase, yet, the defendant has not mentioned anywhere in the pleadings as to by which instrument and/or in what manner he had purchased the land from the plaintiffs. Moreover, the evidence on record also shows that the plaintiffs were both minors at that point of time when the land is claimed to have been purchased by the defendant. During trial, the defendant has failed to produce any sale deed executed in his favour. Such being the position, it is apparent that the defendant has completely failed to substantiate his claim of having purchased the suit land. The defendant has also not made any counter-claim seeking declaration of his right, title and interest over the suit land. Under such circumstances, the trial court, in my opinion, was justified in answering the issue No.5 in favour of the plaintiffs by holding that the plaintiffs had right, title and interest over the suit land. 11. A reading of the impugned judgment rendered by the lower appellate court goes to show that the learned Court below had proceeded on an assumption that the plaintiffs' suit was one for eviction of the defendants from the suit land. However, from a reading of the plaint, I find that there is no prayer for recovery of possession of the suit land or for cancellation of Tenancy Khatian. However, from a reading of the plaint, I find that there is no prayer for recovery of possession of the suit land or for cancellation of Tenancy Khatian. It is not in dispute that the Exhibits-Ka, Kha and Ga are the "Rayoti khatian" whereby, the defendant has been shown to be an occupancy tenant in respect of the suit land. As per the provision of Section 55 of the Act, 1971, the entries contained in the record of rights prepared under the Act, 1971, shall be presumed to be correct unless the contrary is proved. In such view of the matter, as long as the "pakka khatian" remains undisturbed, the defendant's right as an occupancy tenant in respect of the suit land will have to be recognised by the Court and to such extent, protection that may be ensuing to such occupancy tenant under the Act of 1971, would have to be extended to the defendant. 12. A suit for declaration of right, title and interest over immovable property based on ownership would not per se be barred under the provision of Section 66 of the Act of 1971. However, in view of the Khatian standing in the name of the defendant, neither the plaintiffs can evict the defendant from the suit land nor can they pray for a decree for recovery of Khas possession except by way of initiating proper proceeding under the Act of 1971. Such a relief can be claimed by a landlord against any occupancy tenant only in accordance with the provision of Act of 1971. Such being the position, I am of the considered opinion that the lower appellate court did not decide the issue Nos. 1 and 5 correctly while reversing the decree passed by the trial court. Rather, I am of the opinion that the plaintiffs are entitled to a decree declaring their right, title and interest in respect of the suit land. However, in the absence of any prayer for recovery of possession of the suit land, the plaintiffs would not be entitled to disturb the possession of the defendant over the suit land. The substantial question of law framed by this Court is, therefore, answered accordingly. 13. With the above observation this second appeal stands disposed of by affirming the decree passed by the trial court. There would be no order as to costs.