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2016 DIGILAW 1148 (GAU)

Watir Ali v. Mustt. Hayatun Nessa

2016-12-20

PRASANTA KUMAR DEKA

body2016
JUDGMENT AND ORDER : Heard Mr. SP Choudhury, learned counsel appearing on behalf of the appellants and Mr. GN Sahewalla, learned senior counsel assisted by Mr. I Mozumdar, learned counsel appearing on behalf of the respondents. 2. This second appeal has been preferred by the defendants-appellants against the plaintiff-respondents being aggrieved by the judgment and decree dated 30.08.2014 passed by the learned Civil Judge No. 2, Cachar at Silchar in Title Appeal No. 30/2002 dismissing the appeal upholding the judgment and decree dated 03.06.2002 and 07.06.2002 respectively passed by the learned Civil Judge (Jr. Divn.) No. 1, Cachar at Silchar in Title Suit No. 195/1999. 3. The plaintiff-respondents while filed Title Suit No. 195/1999 for declaration of title and for recovery of khas possession by eviction of the defendant-appellants on the ground that land measuring 28B 7K 12Ch of R.S. Patta No. 19 of village Lahmali belonged to one Simon Anthony, Loich Anthony and Francis Anthony, all sons of late Dewa Christian and they were in possession of 9B 9K 4Ch of land each by amicable partition amongst themselves. Simon Anthony died leaving his only son Adam Anthony as successor to his properties who got his name mutated in RS patta No. 19 in place of his father. Late Jahir Ali, father of the defendants No. 1 and 2 and Late Wajid Ali, father of the defendants No. 3 to 7 with permission of Adam Anthony began to live in a house situated in the first schedule land with permission to vacate the land within a short period of time. However, they subsequently did not vacate the same in spite of repeated demands of the said owner and thus the defendant-appellants without any valid title and possession as licensee under the owner occupied the said first schedule land. Adam Anthony sold an area of 6K 1Ch in Dag No. 239, an area of 1B 7K 4Ch in Dag No. 237 and 238 (whole) – in total 1B 13K 5Ch of land in second RS patta No. 72 which was derived from the original RS Patta No. 19 to the plaintiff No. 1 and Late Juaid Ali vide registered deed dated 10.04.1970. The said purchasers derived title and possession in the said land and got their names mutated in the second RS patta 72. The said purchasers derived title and possession in the said land and got their names mutated in the second RS patta 72. Further, said Adam Anthony vide another registered Kabala dated 18.02.1988 sold an area of 3B 19K 8Ch 6G 2Kr 2Krt in Dag No. 159, an area of 3B 11K 6Ch 6G 2Kr 2Krt in Dag No. 285 i.e. in total 7B 7K 13G to plaintiffs Faizul Haque (substituted by Lrs. respondents No. 1(a) and 1(b)), the plaintiff respondent No. 2, Abdur Nur, Sahab Uddin, plaintiff respondent No. 3 and Md. Samsuddin, the plaintiff respondent No. 4. The plaintiff respondents No. 2 to 4 further purchased an area of 1K 3Ch in Dag No. 239, 4K 4Ch in Dag No. 240, 1K 7Ch in Dag No. 241, 2K 14Ch in Dag No. 242, 5K 11Ch in Dag No. 243 and 7K 2Ch in Dag No. 164 which comes to a total land of measuring 1B 3K 6Ch in suit patta No. 72 vide registered Kabala dated 10.11.1989 from the said Adam Anthony and got their names mutated in the said land. Juaid Ali by registered Kabala dated 21.10.1981 sold his share of land measuring 16K 10Ch 10G in Dag No. 237, 238, 239 of suit patta No. 72 and delivered possession to his brother. Thus, the plaintiff respondents purchased 9B 9K 4Ch share of land of Adam Anthony in the suit patta and derived lawful title and possession of the said land. The defendant appellants were in possession of the schedule land as previous licensee under the plaintiff respondents of second and third schedule land by cultivating the same. The plaintiff respondents made repeated demands to the defendant appellants to vacate the house of first schedule land but the said appellants did not comply with the request of plaintiff respondents and forcibly came into possession of land described in second and third schedule of the plaint on 08.12.1991. A proceeding under Section 141 of the Cr.P.C. was initiated by the plaintiff respondents Late Faizul Haque against the main defendants which was dropped on 07.12.1991 and the main defendant appellants started digging a pond over the second and third schedule land and constructed permanent structure over the first schedule land. A proceeding under Section 141 of the Cr.P.C. was initiated by the plaintiff respondents Late Faizul Haque against the main defendants which was dropped on 07.12.1991 and the main defendant appellants started digging a pond over the second and third schedule land and constructed permanent structure over the first schedule land. the above illegal action on the part of the defendant appellants led to filing of the suit by the plaintiff respondents for declaration of title and recovery of khas possession by evicting the defendant appellants from the suit schedule land. 4. The principal defendant appellants contested the suit by filing their written statement and besides taking the regular and routine pleas like no cause of action, non-maintainability of the suit, bad for non-joinder of necessary parties etc., they took a specific defence that from the time of their grandfather Arzu Mia, they have been tenants under Adam Anthony and/or his predecessors on payment of rent. Said Arzu Mia constructed permanent house on a portion of the said land and doing cultivation over the said land maintained his family living thereon the suit. Arzu Mia who was an agriculturist, died leaving behind two sons, namely, Wajid Ali, Zahir Ali and one daughter Haru Bibi. Wajid and Zahir lived in the said house and occupied 1B 4K 10Ch of land by cultivating paddy. Wajid Ali and Zahir Ali were granted Khatian No. 3 by the Settlement Department under the provisions of Assam (Temporarily Settled Areas) Tenancy Act, 1971. The said defendant appellants were agriculturists and have been occupying entire suit land along with other lands as occupancy tenants and they were non-evictable. The defendant appellants were ready to pay rents to the actual owners. The defendant appellants are in actual possession of the entire land under Khatian No. 3 5. On the basis of the pleadings of both the parties, the learned trial court framed the following 7 (seven) issues:- 1. Is there any cause of action for the suit? 2. Is the suit maintainable in its present form any manner? 3. Is the suit barred by limitation? 4. Is the suit barred under the provisions of Assam Land and Revenue Regulation 1886 and Assam Temporarily Settled Areas Tenancy Act? 5. Whether the defendants are the occupancy tenants? 6. Whether the suit is bad for non-joinder of necessary parties and all the co-sharers are the necessary parties? 7. 3. Is the suit barred by limitation? 4. Is the suit barred under the provisions of Assam Land and Revenue Regulation 1886 and Assam Temporarily Settled Areas Tenancy Act? 5. Whether the defendants are the occupancy tenants? 6. Whether the suit is bad for non-joinder of necessary parties and all the co-sharers are the necessary parties? 7. To what relief/reliefs the plaintiffs entitled to? However, at the time of argument, both the parties agreed to modify the Issue No. 5 and accordingly, the new issue replacing the old one was framed by the learned Court below. The new issue is modified as follows:- Issue No. 5:- Whether principal defendants are licensees in respect of first schedule land of the plaint or whether they are tenants in respect of the suit schedule land? 6. During trial, the plaintiff respondents have examined as many as 4 witnesses beside, filing some documents. The defendant appellants side examined 2 witnesses. The learned trial court after having heard both the sides decided the suit by decreeing the suit of the plaintiffs on contest with cost. 7. Thereafter the defendant appellants preferred title appeal No. 30/2002 in the Court of learned Civil Judge No. 2, Cachar at Silchar which was also dismissed vide judgment dated 30.08.2014 upholding the judgment and decree passed by the learned trial court. 8. Being aggrieved, the defendant appellants preferred the second appeal. Mr. SP Choudhury, learned counsel for the appellants, at the hearing of the appeal under Order XLI Rule 11 of the Code of Civil Procedure, submits that the learned courts below erred in law in putting reliance on Exhibit 7 (order dated 10.03.1969 in connection with Revenue Appeal No. 132/1968-69 showing the khatian of the appellant defendants being cancelled) which was under objection and not proved as per Sections 61 and 67 of the Evidence Act. Mr. Choudhury further submits that the learned courts below committed error in arriving at the finding that the defendant appellants could not establish their right over the suit land as a tenant and the learned lower appellate court violated the provisions of Order XLI Rule 31 of the Code of Civil Procedure and Mr. Choudhury further submits that the learned courts below committed error in discarding the evidence of the defendant appellants which remains unrebutted as to their right over the suit land as occupancy tenants. So Mr. Choudhury further submits that the learned courts below committed error in discarding the evidence of the defendant appellants which remains unrebutted as to their right over the suit land as occupancy tenants. So Mr. Choudhury argues that there arose substantial question of law for deciding the real dispute between the parties to this appeal. 9. Mr. Sahewall, learned senior counsel appearing on behalf of the plaintiff respondents, submits that none of the learned courts below have erred in arriving at the finding that the defendant appellants failed to establish their tenancy under the Assam (Temporarily Settled Areas) Tenancy Act, inasmuch as, they even failed to exhibit the khatian No. 3 which was the basis of defence to bring them out from the status of licensee as pleaded by the plaintiff respondents. on Exhibit-7, Mr. Sahewalla, learned senior counsel, submits that it is the case of the defendant appellants that they were the tenants under the Assam (Temporarily Settled Areas) Tenancy Act and as such the plaintiff respondents in order to shift the onus accordingly exhibited the said order dated 10.03.1969 passed in the said Revenue Appeal thereby cancelling the khatian issued to the defendant respondents. On the submissions of Mr. Choudhury that the plaintiff respondents travelled beyond their pleadings by bringing the Exhibit-7 which the learned courts below ought not have taken into consideration and having done so, the same has vitiated the judgments passed by the learned courts below, Mr. Sahewalla submits that in order to discharge the onus, the plaintiff respondents have a duty cast upon them to show that the defendant appellants are nothing more that the permissive occupiers under the plaintiff respondents and as such the same cannot be considered that the plaintiff respondents had travelled beyond their pleadings. So, Mr. Sahewalla, submits that no substantial question of law is involved after the concurrent findings of both the learned courts below and as such the second appeal is liable to be dismissed at the admission stage. 10. Keeping in view the submissions of both the learned counsel, this court feels it necessary to examine the issue No. 5 as discussed by the first appellate court. From the perusal of the judgment passed by the first appellate court it is noticed that the said learned court below had perused the evidence adduced by both the parties to the suit. From the perusal of the judgment passed by the first appellate court it is noticed that the said learned court below had perused the evidence adduced by both the parties to the suit. The learned first appellate court while deciding the issue No. 5 rightly pointed out that the defendant appellants have raised the plea that they are protected tenants under the Assam (Temporarily Settled Areas) Tenancy Act, 1971, inasmuch as, they were granted khatian No. 3 and as such the burden to show that they were occupancy tenants under the said Act is upon the defendant appellants. More so, when it is the pleading of the plaintiff respondents that the defendant appellants were never tenants under neither them nor their predecessor. The learned first appellate court came to the finding that the DW 1 (Watir Ali), the appellant defendant No. 1 in his cross examination stated that tenancy khatian was issued in their names in respect of the suit land. They have submitted the same in the suit but upon perusal of the case records it appears that no such khatian was found in the records nor the same was proved by the defendant appellants’ side. On the contrary, the plaintiff respondents had proved that the khatian issued to the main defendant appellants on earlier occasion was cancelled by the Assistant Settlement Officer (ASO) vide order dated 10.03.1969 in connection with Revenue Appeal No. 132/1968-69 (Exhibit-7) and the said document is relevant to show that the khatian issued to the defendant appellants were cancelled by the then ASO. It is the finding of the learned first appellate court that the said DW 1 admitted that he had no other paper to show that they took settlement of the suit schedule land on lease. The DW 1 further admitted that they were not paying any rent to any landlord for enjoyment of the said land nor could he state whether his predecessor at any point of time had paid any rent to the landlord. Thus, the learned first appellate court concluded that from the deposition of the appellant defendant No. 1 it clearly shows that they had failed to prove their so called tenancy over the suit schedule land. Thus, the learned first appellate court concluded that from the deposition of the appellant defendant No. 1 it clearly shows that they had failed to prove their so called tenancy over the suit schedule land. This court further has perused the findings of the learned trial court with respect to issue No. 5 and on such perusal no contradictory view taken by either of the learned courts below had been noticed with regard to status of the defendant appellants. 11. On the submission of Mr. Choudhury that the plaintiff-respondents had gone beyond their pleading by producing Exhibit-7 is not sustainable. In an ejectment suit the plaintiff must succeed on the strength of his own title. This can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not. A mere destruction of the defendant’s title in the absence of establishment of his own title carries the plaintiff nowhere. But in the present case in hand the defendant appellant in their written statement admitted that since their grandfather was tenant under Adam Anthony who was the owner of his share. But they denied that they were not the licensee rather they were the occupancy tenants under the Tenancy Act and as such they were not ejectable. So quite naturally having admitted the title of Adam Anthony the appellant defendants wanted to show that they were non evictable tenant. So the onus is upon the plaintiff to bring to the notice of the court that such defence does not stand as the khatian of the defendant appellants were cancelled duly. Proving of the Exhibit-7 (cancellation order of khatian) cannot be held that the plaintiff respondents had went beyond the pleadings. 12. Mr. Choudhury, learned counsel for the appellants, would like to submit that though the defendant appellants have failed to adduce any evidence to prove their status as tenants but production of Exhibit 7 by the plaintiffs would go to show that the defendant appellants were the tenants and that too, under a khatian issued under the provisions of Assam (Temporarily Settled Areas) Tenancy Act and as such the defendant appellants are not licensee but tenant who cannot be ejected and protected under the said tenancy Act. This submission of Mr. This submission of Mr. Choudhury, cannot be accepted, inasmuch as, it is the defence of the defendant appellants that they were tenant and that too, under the tenancy Act which prescribes that a tenant under the said Act would be provided by a khatian and that forms the Records of Right under the said tenancy Act. Section 91 of the Indian Evidence Act prescribes that in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions contained in the Indian Evidence Act. So, the submission of Mr. Choudhury is not at all tenable until and unless a valid tenancy khatian is produced in support of the defence of the defendant appellants. 13. From the aforesaid discussions and on perusal of the judgments passed by the learned courts below, it is very much apparent that none of the learned courts below had relied on Exhibit-7 to discard the defence of the defendant appellants so far the tenancy is concerned. Rather, both the learned courts below had came to a concurrent finding that as the defendant appellants had introduced their defence as a tenant under the aforesaid tenancy Act, so duty was cast upon the said defendant appellants to produce a valid tenancy khatian which they have utterly failed. Thus, both the learned courts below had accordingly came to a proper finding that as there is an admission on the part of the defendant appellants that they are possessing the suit land and they have failed to show their status as a tenant and their defence is not of adverse possession, under such circumstances, the defendant appellants are none other than licensee under the plaintiff respondents. 14. Accordingly, there is no substantial question of law to be formulated in the present second appeal and accordingly the same is dismissed. 15. Interim order, if any, passed earlier stand vacated. No costs.