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2016 DIGILAW 678 (GAU)

Madhab Ch. Das v. Dipak Bhuyan

2016-07-25

N.CHAUDHURY

body2016
JUDGMENT AND ORDER : N. Chaudhury, J. The two judgments and decrees passed by the learned courts below have been called in question in the present second appeal at the instance of the principal defendant. The suit of the plaintiffs for recovery of possession was decreed by the learned trial court and a first appeal preferred there-against having failed, the defendant has approached this court challenging the concurrent findings. 2. Dipak Bhuyan and 6 others, as plaintiffs, instituted title suit No. 40/1989 in the court of learned Munsiff No. 2 at Barpeta stating that their predecessor-in-interest Late Apurba Kumar Bhuyan was settled with the suit land measuring 2B 1K 10L covered by dag No. 834 and 828 at Metuakuchi by way of short lease by the Government and accordingly patta was issued. The whole land was described in schedule A to the plaint. It is alleged in paragraph 3 of the plaint that in the month of January, 1987, the principal defendant Sri Madhab Ch. Das without having any semblance of right, title and interest encroached 1K 11L of land at the northern part of the schedule 'A' land. This encroached land has been described in schedule B to the plaint. The plaintiffs further alleged that the Sub Deputy Collector by order dated 10.01.1990 recommended for cancellation of patta of the short lease and the Additional Deputy Commissioner by his order dated 27.02.1990 accordingly cancelled the patta. The plaintiffs, therefore, also made a prayer that aforesaid orders dated 10.01.1990 and 27.02.1990 passed by the Sub Deputy Collector and the Additional Deputy Collector respectively are liable to be adjudged illegal, inoperative etc. The State of Assam, the Deputy Commissioner and the Sub Deputy Collector were impleaded as proforma respondents as no specific prayer was made against them. 3. On being summoned, the principal defendant Madhab Ch. Das appeared and submitted a written statement. According to him, the plaintiffs were never in possession of the suit land and he had been in possession for time immemorial. He come to know that a patta was issued in the name of the plaintiffs and the plaintiffs also made a prayer for conversion of the short lease into a periodic patta. He objected to it and ultimately the SDC by order dated 10.01.1990 recommended for cancellation of the patta in N.R. Case No. 5/1987-88 and the ADC approved cancellation by order dated 27.02.1990. He objected to it and ultimately the SDC by order dated 10.01.1990 recommended for cancellation of the patta in N.R. Case No. 5/1987-88 and the ADC approved cancellation by order dated 27.02.1990. With these averments, the principal defendant prayed for dismissal of the suit with cost. The proforma defendants, namely, the State of Assam, the Sub Deputy Collector and the Additional Deputy Collector did not file any written statement even after being served with summons. 4. On the basis of the averments made by the parties in their respective pleadings, the learned trial court framed as many as 8 issues which are quoted below:- 1. Whether there is any cause of action for that suit? 2. Whether the suit is barred by limitation? 3. Whether the suit is undervalued and plaint is under stamped ? 4. Whether the suit is not maintainable u/s 154 of the Assam Land and Revenue Regulation? 5. Whether the Govt. of Assam and the D.C. are necessary parties and if so whether the suit is bad for non-joinder of them? 6. Whether the plaintiff has right, title and interest over the suit land? 7. Whether the plaintiff is entitled to the reliefs as prayed for? 8. To what relief or reliefs the plaintiff is entitled under the law and equity? 5. The learned trial court after hearing the parties and on perusal of the materials available on record passed the impugned judgment and decree dated 30.09.1993 thereby holding that there is no necessity for declaration of right, title and interest of the plaintiffs over the suit land as the plaintiffs did not make any prayer for declaration of title in their favour. However, while deciding issue No. 7 as to relief available to the plaintiffs, the learned trial court was of the view that the plaintiffs entered into the suit land on being settled with it by way of short lease. The evidence on record vide depositions of PWs 2, 3 and 4 established that the plaintiffs were in possession of the suit land and only 6/7 years back the defendant occupied the same. Even the defendant admitted issuance of patta in favour of the suit land but since it was a short lease, the defendant denied the title of the plaintiffs. Even the defendant admitted issuance of patta in favour of the suit land but since it was a short lease, the defendant denied the title of the plaintiffs. Since the plaintiffs were in the possession of the land pursuant to issuance of the short lease, the learned trial court decided issue No. 7 accordingly holding that plaintiffs are entitled to recover possession from defendant who does not have any semblance of title to the suit land. The prayer of the plaintiffs for adjudging the orders dated 10.01.1990 and 27.02.1990 as referred to above illegal, however, was not decided as an appeal was pending before the learned Assam Board of Revenue at that time. This judgment and decree dated 30.09.1993 passed by the learned trial court was called in question before the learned Civil Judge, Barpeta in title appeal No. 29/1993. 6. The learned first appellate court having considered the appeal, dismissed the appeal by his judgment and decree dated 30.09.1993. Aggrieved, the sole defendant approached this court vide RSA No. 71/1995 and this court by judgment and order dated 23.08.2004 allowed the appeal and remanded the matter to the learned first appellate court for deciding the matter afresh, if necessary, by examining any other question raised before it by the parties. After receipt of the records, the learned first appellate court framed three more issues and they are numbered as additional issue No. 9, 10 and 11. The additional issues No. 9, 10 and 11 are quoted below for ready reference:- Additional Issues:- 9. Whether the suit land is covered by short lease land? 10. Whether any right followed to the plaintiff to recover the khas possession of the suit land? 11. Whether the plaintiff is entitled to get injunction restraining the defendants from entering into the suit land? 7. The learned first appellate court after consideration of the materials available on record and after hearing the parties held the view that the land was under annual lease land and so, the question of right, title and interest does not arise. The plaintiffs/ respondents were lease holders of the suit land and they only sought for khas possession of the suit land and did not make any prayer for declaration of their right, title and interest over suit land. The plaintiffs/ respondents were lease holders of the suit land and they only sought for khas possession of the suit land and did not make any prayer for declaration of their right, title and interest over suit land. By deciding issue No. 10 in favour of the plaintiffs, the learned first appellate court held the view that the plaintiffs are entitled to recover possession of the suit land by evicting the defendant/appellant. Considering the oral evidence of PWs 1, 2, 3 and 4, the learned first appellate court recorded the finding of fact that the plaintiffs were in possession of the suit land and that the defendant is only a trespasser. From the oral and documentary evidence adduced by the parties, the learned first appellate court held the view that 'A' schedule land was in possession of the plaintiffs and the defendant forcefully occupied 'B' schedule land out of 'A' schedule land in the year 1987 and hence the appellant/defendant is trespasser of the suit land and he is liable to be evicted there-from. Accordingly, it was held that plaintiffs are entitled to get recovery of khas possession in respect of the suit land by evicting the appellant there-from and so they are entitled to get a decree of permanent injunction restraining the defendant from interfering with their peaceful possession thereon. Accordingly, the appeal preferred by the defendant was dismissed in entirety by judgment and decree dated 17.05.2006. This first appellate judgment and decree has been challenged in the present second appeal by the defendant. 8. This court while admitting the second appeal on 13.11.2006, framed the following two substantial questions of law:- 1. Whether the respondents/plaintiffs have been able to show subsisting right, title and interest over the land justifying the impugned decree? 2. Whether the title over the landed property can be passed on oral evidence only? 9. I have heard Mr. B.K. Bhagawati, learned counsel for the appellant and Mr. H. Das, learned counsel for the respondents. Since some question of law arose in the case, I requested Mr. D. Mazumdar, learned senior counsel, to assist the court who was present in the court and the learned senior counsel readily agreed. I keep on record the valuable assistance rendered by learned senior counsel in adjudicating the appeal. 10. Mr. H. Das, learned counsel for the respondents. Since some question of law arose in the case, I requested Mr. D. Mazumdar, learned senior counsel, to assist the court who was present in the court and the learned senior counsel readily agreed. I keep on record the valuable assistance rendered by learned senior counsel in adjudicating the appeal. 10. Mr. B.K. Bhagawati, learned counsel for the appellant, argues that plaintiffs failed to produce any document of title in their favour entitling them to claim right, title and interest but yet the learned court decreed the suit. The two substantial questions of law, therefore, are liable to be decided in favour of the appellant and thereby the impugned judgments and decrees are liable to be set aside and quashed. 11. Per contra, Mr. H. Das, learned counsel for the respondents, would argue that the two substantial questions of law framed by this court on 13.11.2006 do not arise from the facts and circumstances of the case. He submits that under Section 100(5) of the Code of Civil Procedure, respondents are entitled to argue that the case does not involve substantial questions of law framed in the appeal. He submits that the plaintiffs did not make any prayer for declaration of right, title and interest in their favour and this is why, while deciding issue No. 6, the learned trial court arrived at specific findings that there is no necessity for declaring title of the plaintiffs to the suit land as they did not make any prayer for the same. It is a suit for mere recovery of khas possession against a trespasser without making a prayer for declaration of right, title and interest and a suit with such prayer is always maintainable. The learned trial court rightly held that there is no necessity for deciding issue No. 6 in the present case as the issue does not arise in view of the prayer made by the plaintiffs. Admittedly, defendant did not file any counter claim praying for any declaration and so framing of issue No. 6 was redundant by the learned trial court. With these findings Mr. Admittedly, defendant did not file any counter claim praying for any declaration and so framing of issue No. 6 was redundant by the learned trial court. With these findings Mr. H. Das would argue that the two substantial questions of law framed by this court being not relevant for the purpose of appeal in question, the second appeal is liable to be dismissed and the substantial questions of law so framed are not required to be answered either in affirmative or in the negative. 12. At this stage of the argument, a legal question arose as to whether plaintiffs could have instituted a suit merely for recovery of khas possession and for adjudication of two orders passed by the revenue officers without making any prayer for declaration of their title. While Mr. B.K. Bhagawati, learned counsel for the appellant, strenuously urges that a suit for recovery of possession may be filed under Section 6 of the Specific Relief Act if the suit is instituted within a period of 6 months from the date of dispossession but beyond such period no such suit is maintainable. The plaintiffs were at liberty to make claim of title over the suit land and they could have instituted a suit under section 5 of the Specific Relief Act read with Section 34 thereof for declaration of right, title and interest and for recovery of possession. But the same not having been done the learned courts below erred in law in not dismissing the suit. 13. Under such situation, there was necessity for appropriate guidance to the court and accordingly this court requested Mr. D. Mazumdar, learned senior counsel, to render his valuable assistance. Mr. D. Mazumdar, learned senior counsel, would argue that possession is also a valuable right as held by Pollock and Wright in their treaties on possession that possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the owner's title. This is why O'farell, J. held that where a plaintiff is in possession without any title and seeks to recover possession of which he has been forcibly deprived by a defendant having good title he can only do so under the provisions of Section 9 of the Specific Relief Act and not otherwise. Pointing out to this argument, Mr. This is why O'farell, J. held that where a plaintiff is in possession without any title and seeks to recover possession of which he has been forcibly deprived by a defendant having good title he can only do so under the provisions of Section 9 of the Specific Relief Act and not otherwise. Pointing out to this argument, Mr. D. Mazumdar, learned senior counsel, would argue that in case where defendant does not have any valid title whatsoever, Section 6 of the Specific Relief Act would not be construed to be a bar for getting relief of recovery of possession because after all possession being a valuable right, a plaintiff can very well assert the same against the whole world except the original owner. The question would be different if the original owner having valid title comes and seeks to dispossess the plaintiff. The defendant not having title, therefore, cannot come in the same category as a person having valid title. The status of the defendant not having valid title would be more than that of a trespasser and so plaintiff not having title but having valid possession over a long period of time has an edge over such trespasser. Referring to the judgment of the Hon'ble Supreme Court in the case of Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and others ( AIR 1968 SC 1165 ), Mr. Mazumdar would argue that a suit filed on the basis of possession against a trespasser is maintainable. The view expressed by the Hon'ble Madras High Court in the case of Mustapha Sahib Vs. Santha Pillai in this regard received recognition of the Hon'ble Supreme Court in the aforesaid case vide paragraph 15. Paragraph 15 of the judgment is quoted below for ready reference:- "15. We agree as to a part of the reasoning but with respect we cannot subscribe to the view that after the period of 6 months is over a suit based on prior possession alone, is not possible. Section 8 of the Specific Relief Act does not limit the kinds of suit but only lays down that the procedure laid down by the Code of Civil Procedure must be followed. This is very different from saying that a suit based on possession alone is incompetent after the expiry of 6 months. Section 8 of the Specific Relief Act does not limit the kinds of suit but only lays down that the procedure laid down by the Code of Civil Procedure must be followed. This is very different from saying that a suit based on possession alone is incompetent after the expiry of 6 months. Under Section 9 of the Code of Civil Procedure itself all suits of a civil nature are triable excepting suits of which their cognizance is sillier expressly or impliedly barred. No prohibition expressly barring a suit based on possession alone has been brought to our notice, hence the added attempt to show an implied prohibition by reason of Section 8 (Section 7 of the Travancore Act) of the Specific Relief Act. There is, however, good authority for the contrary proposition. In Mustapha Sahib Vs. Santha Pillai, ILR 23 Mad. 179 at 182 Subramonia Ayyar J. observes: "...that a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that possession was without any title. * * * * The rule in question is so firmly established as to render a lengthened discussion about it quite superfluous. Asher Vs. Whitlock (LR 1.Q.B. 1) and the rulings of the Judicial Committee in Musammat Sundar Vs. Mussammat Parbati (16. I.A. 186) and Ismail Ariff Vs. Mahomed Ghouse (20 I.A. 99) not to mention numerous other decisions here and in England to the same effect, are clear authorities in support of the view stated above.... Section 9 of the Specific Relief Act cannot possibly be held to take away any remedy available with reference to the well-recognised doctrine expressed in Pollock and Wright on possession thus:-Possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owner's title (p. 19)". In the same case O'Farell J. points out that "all the dictum of the Privy Council in Wise Vs. Ameerunissa Khatoon (7 I.A. 73) appears to amount to is this, that where a Plaintiff in possession without any title seeks to recover possession of which he has been forcibly deprived by a Defendant having good title, he can only do so under the provisions of Section 9 of the Specific Relief Act and not otherwise". Ameerunissa Khatoon (7 I.A. 73) appears to amount to is this, that where a Plaintiff in possession without any title seeks to recover possession of which he has been forcibly deprived by a Defendant having good title, he can only do so under the provisions of Section 9 of the Specific Relief Act and not otherwise". It is not necessary to refer to the other authorities some of which are already referred to in the judgment under appeal and in the judgment of the same court reported in Kuttan Ndrayanan Vs. Thomman Mathai 1966 KLT 1 . The last cited case gives all the extracts from the leading judgments to which we would have liked to refer. We entirely agree with the statement of the law in the Madras case from which we have extracted the observations of the learned Judges. The other cases on the subject are collected by Sarkar on Evidence under Section 110." 14. Once it is found that the predecessor-in-interest of the plaintiffs, late Apurba Kumar Bhuyan was settled with the land and defendant did not deny the same. There was a short lease in favour of Apurba Kumar Bhuyan and it continued till the time of the plaintiffs but for which initiating a proceeding vide N.R. Case No. 5/1987-88 by the revenue officers become necessary. Now, cancellation of patta once granted and non-issuance of patta in favour of a person in possession stand on two different footings. Here is a case where predecessor-in-interest of the plaintiffs was settled with the land. Nowhere it has been stated in the written statement of the contesting defendant that the predecessor of the plaintiffs was not a settlement holder nor could the principal defendant say so. It was upto the proforma defendants, namely, the State of Assam, the Deputy Commissioner and the Sub Deputy Collector to plead and establish that the plaintiffs did not have any inheritable and transferable right under Section 9 of the Assam Land and Revenue Regulation, 1886 as the lease granted in their favour did not confer any right of settlement holder. The proforma defendants, namely, the State authorities chose not to challenge the claim made by the plaintiffs and it is a trespasser only who come forward to challenge the title of the plaintiffs. The proforma defendants, namely, the State authorities chose not to challenge the claim made by the plaintiffs and it is a trespasser only who come forward to challenge the title of the plaintiffs. In my considered view, such an act on the part of defendant not having any semblance of title to the land, does not require any adjudication. After all, the defendant does not have any right, title and interest and they did not claim so. They claimed to be in possession of the suit land for time immemorial and the findings of fact of the learned courts below are that plaintiffs were all along in possession of the suit land pursuant to the short lease and it is the defendant who encroached into schedule B land in the year 1987. Such findings of fact have not been challenged to be perverse and no substantial question of law has been framed by this court on this issue. 15. Besides, one more point which needs to be considered in these facts and circumstances is that allegedly the patta issued in favour of Apurba Kumar Bhuyan was recommended for cancellation by the Sub Deputy Collector and it is the Additional Deputy Commissioner who ultimately approved it. Mr. D. Mazumdar, learned senior counsel, called attention of the court in this regard to Rule 26 of the Settlement Rules framed under the Assam Land and Revenue Regulation. Rule 26 of the Settlement Rules shows that subject to the general control of the State Government, Commissioner shall have power to confirm all settlements and also to cancel any settlement made in contravention of these rules after giving these lease holders an opportunity of being heard. The provision of Rule 26 of the Settlement Rules under the Assam Land and Revenue Regulation, 1886 is quoted below for ready reference:- "26. Confirmation and cancellation of settlements. - Subject to the general control of the State Government, the Commissioner shall have power to confirm all settlements, and also to cancel any settlement made in contravention of these rules, after giving the lease-holder an opportunity of being heard." 16. As per the findings of the learned courts below there was a short lease i.e. there was a settlement by the Government in favour of Apurba Kumar Bhuyan. He died and thereafter his right to use and occupation devolved on his legal heirs who continued occupying the same. As per the findings of the learned courts below there was a short lease i.e. there was a settlement by the Government in favour of Apurba Kumar Bhuyan. He died and thereafter his right to use and occupation devolved on his legal heirs who continued occupying the same. If there was any violation of the term of the settlement in that event, there ought to have been a proceeding by the authority having jurisdiction to cancel the patta. This means that it is the Commissioner alone who could have issued notice to the plaintiffs for cancellation of patta and not the Sub Deputy Collector or the Additional Deputy Commissioner. The proforma defendants No. 3 and 4 obviously do not have jurisdiction to cancel a patta or to hold a proceeding for such cancellation in terms of the provisions of Rule 26 of the Assam Land and Revenue Regulation, 1886. Be that as it may, no such substantial question of law has been framed in that regard. 17. The two substantial questions of law as to title of the plaintiffs, therefore, obviously do not arise from the facts and circumstances of the case in view of findings of the learned trial court as against issue No. 6. Right, title and interest was never claimed by the plaintiffs before the learned trial court and so these two substantial questions of law framed by this court do not require any adjudication as they do not arise from the facts and circumstances of the case. 18. The second appeal, therefore, is devoid of any merit. It is accordingly dismissed. 19. No order as to costs. 20. Interim order, if any, stands automatically vacated. 21. Send down the records after framing of decree.