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2017 DIGILAW 1191 (GAU)

Sylhet Tea and Industry Ltd. v. Sipra Rani Deb

2017-08-29

PRASANTA KUMAR DEKA

body2017
JUDGMENT & ORDER : 1. Heard Ms. B. Sarkar, learned counsel, appearing on behalf of the appellant/ defendant No. 1/ counter claimant and Mr. N. Dhar, learned counsel, appearing for the respondents/ plaintiffs. 2. The present appellant is the defendant No.1/ counter claimant in Title Suit No. 146/1999, pending in the court of the then Civil Judge (Junior Division) No. 1, Karimganj. The respondents/ plaintiffs filed the said title suit against the defendants/ appellants for declaration of their tenancy right and maliki right in respect of the suit land and houses. It is the case of the plaintiffs/ respondents that one Ram Kumar Paul was the owner of the said suit land along with some other land under the tenancy right. After his death, his legal heirs possessed the suit land along with other lands. The said legal heirs sold the said land to one Badal Chandra Deb, who was possessing the suit land as his homestead land and a part of which was used by constructing the suit house as his shop. Badal Chandra Deb died leaving behind the plaintiffs/ respondents as his legal heirs and they are enjoying the suit land under the tenancy right. The defendants/ appellants had no right, title and interest over the suit land and denying the title of the plaintiffs/ respondents over the suit land and houses, the said defendants/ appellants trying to dispossess them from the suit land. So the suit was filed with the relief as aforesaid. 3. The defendant/ appellant No. 1 contested the suit by filing his written statement disputing thereby the identity of the suit land. It is pleaded that the land described in schedule 1 of Mohal Daswana Taluk No. 15791/211 Hukmat Roy Separate Account No. 1 of Mahaja Sir Jatindra Mohan Tagore .C.S.T, formerly belonged to D.M.C. Court of Ward Estate under whom the defendant/ appellant was Darpatianidar and after acquisition of Zamindary by the State of Assam, the defendants/ appellants acquired the status of land holder in respect of the land described in schedule 1 of the written statement. The land mentioned in schedule 1 is appertaining to survey Dag No. 96/111 with an area measuring 09 Acres, classified as ‘Cha’ under Khatian No. 9 recorded in the name of the answering defendants/ appellants. The land mentioned in schedule 1 is appertaining to survey Dag No. 96/111 with an area measuring 09 Acres, classified as ‘Cha’ under Khatian No. 9 recorded in the name of the answering defendants/ appellants. The said land is under Mouza–Manik Nagar Part-I and that the plaintiffs/ respondents created a collusive sale deed over the land of the defendant/ appellant No. 1 and the plaintiffs/ respondents have no right, title and interest over the same. 4. The defendant/ appellant No. 1 filed his counter claim with a prayer that the plaintiffs/ respondents have no right, title and benefit of possession over the land described in schedules 1 and 2 of the written statement and they are the encroachers in respect of the land described in schedule No. 2 of written statement. They are liable to be evicted from the said schedule land and the defendant appellant No. 1 is entitled to recover the said land after dismantling the standing structures thereon. The plaintiffs/ respondents filed their written statement against the counter claim denying the right and interest of the defendant appellant No. 1 as per the statement made in the plaint with a prayer for dismissal of the counter claim. 5. Based on the pleadings, the following issues were framed:- (1) Is there any cause of action for the suit? (2) Is the suit is bad for defect of parties? (3) Is the suit is barred by law of limitation? Additional issues: (1) Whether there is any cause of action for the counter claim? (2) Whether the counter claim is maintainable? (3) Whether the plaintiffs are encroachers? (4) Whether the Deed No. 438 dated 8.3.1977 is collusive and legal? (5) Whether the defendant is entitled to the decree as prayed for in the counter claim? 6. The plaintiffs/ respondents examined five witnesses and exhibited six documents in support of their claim. On the other hand, the defendant/ appellant No. 1 examined one witness and exhibited document A to C in order to prove their claim made in the counter claim. The learned trial court after hearing the parties, dismissed the suit of the plaintiffs/ respondents thereby holding that the Ext. 5 which is a registered sale deed executed in the year 1977 on the basis of which, the plaintiffs/ respondents claim their title to be a collusive and illegal document. 7. The learned trial court after hearing the parties, dismissed the suit of the plaintiffs/ respondents thereby holding that the Ext. 5 which is a registered sale deed executed in the year 1977 on the basis of which, the plaintiffs/ respondents claim their title to be a collusive and illegal document. 7. The trial court while deciding the issue No. 4 held that the plaintiffs/ respondents failed to prove their tenancy right over the suit land and the maliki right over the suit house. The trial court came to the finding that the claim of the plaintiffs/ respondents is that their predecessors, Badal Chandra Deb purchased the land from Ram Kumar Paul by way of registered deed No. 438, dated 8.3.1977 executed by the legal heirs of Ram Kumar Paul. But the plaintiffs/ respondents failed to show kabuliot and Patta in the name of Ram Kumar Paul and Ext. 1 which is Kuchha tenancy Khatian was issued on 5.10.1984 in the name of the legal heirs of Ram Kumar Paul. He also further held that the land mentioned in Ext. 1 though reflects the Survey Dag No. 96/111 and that the same is recorded in the name of Bindu Rani Paul but in Ext. No. A, which is an information slip given by the settlement office, it was recorded that the suit land measuring 0.09 Acres covered Dag No. 96/111 classified as “Cha” under Khatian No. 9 of Patta No. 1 is recorded in the name of Sylhet Tea Industry Limited. Thus the said issue was decided against the plaintiffs/ respondents and holding the other issues in favour of the defendants/ appellants, decreed the counter claim. 8. Being aggrieved by the judgment and decree passed by the trial court dated 30.3.2002 in T.S. No. 146/99, the plaintiffs/ respondents preferred Title Appeal No. 21/02 in the court of the learned Civil Judge (Senior Division), Karimganj. The learned first appellate court vide judgment and decree dated 17.7.2004 partly allowed the appeal holding that the defendants/ appellants are not entitled to the decree of ejectment of the plaintiffs/ respondents. The first appellate court relied on the Ext. The learned first appellate court vide judgment and decree dated 17.7.2004 partly allowed the appeal holding that the defendants/ appellants are not entitled to the decree of ejectment of the plaintiffs/ respondents. The first appellate court relied on the Ext. A information slip and to that effect the court below came to the finding that as per the record of the settlement an area of 0.09 acres of land covered by Dag No. 96/111 (Old) and Dag No. 137 (New) classified as “cha” under Khatian No. 9 special Patta No. 1 was recorded in the name of the appellant No. 1 and considering the Ext. B came to the finding that as per the final Khatian No. 20, record of right has been finalized in the name of the defendant/ appellant. Considering the said Ext. Nos. A and B, the learned first appellate court held that the defendants/ appellants are the recorded holder of the land of the Khatian Nos. 9 and 20 which does not includes the name of the plaintiffs/ respondents. 9. The learned first appellate court scrutinized the evidence on record and came to the finding that the plaintiffs/ respondents were granted permission to construct the shop over the suit land on the prayer made to the Manager as deposed by DW 1. The DW 1 is the Director of the Sylhet Tea Industry Limited i.e. the defendant/ appellant No. 1. Considering the said material piece of evidence, the first appellate court held that as against the allegations that the plaintiffs/ respondents were encroachers over the suit land, the defendant/ appellant failed to prove that they were the encroachers on the face of the permission given by the defendant/ appellant company. The first appellate court held that the plaintiffs/ respondents are not encroachers rather they are permissible occupiers over the suit land and reversed the finding of the trial court with respect to the issue of ejectment of the plaintiffs/ respondents from suit land. 10. The first appellate court held that the plaintiffs/ respondents are not encroachers rather they are permissible occupiers over the suit land and reversed the finding of the trial court with respect to the issue of ejectment of the plaintiffs/ respondents from suit land. 10. The defendant/ appellant being aggrieved by the judgment and decree dated 17.7.2004, passed in Title Appeal No. 21/02 by the first appellate court, preferred the present second appeal, which was admitted on 24.8.2007 on the following substantial questions of law:- (1) Whether the learned Lower Appellate Court was justified in reversing Trial Court’s Judgment and decree of Counter claim of the Appellant Company relying on a part of the deposition of DW 1 without discussing the entire evidence on record? (2) Whether Tea Garden Manager can allow illegal construction on a part of garden land to the plaintiff No. 4 without the resolution of the Board of Directors of the Appellant Company as required under Section 291 of the Companies Act, 1956? 11. On the other hand, the plaintiff/respondents filed cross-objection No. 8/07, which was admitted on the following substantial question of law:- (1) For that the impugned judgment and decree passed by the learned court below dismissing the suit filed by the plaintiffs without taking consideration of the revenue receipts (Exhibits- 2 and 3 series) which shows that the suit land covered by permanently settled Estate (Taluk) No. 15796/211 belonged to the Acquired Estate, Karimganj, i.e. a Zamindari Estate and it was settled with one Ram Kumar Paul i.e. vendor of the plaintiffs as the tenant over the suit land are unsustainable in law? (2) For the impugned judgment and decree passed by the learned court below dismissing the suit filed by the plaintiffs without taking into consideration of the Khatian (Exhibit-1) issued to the tenant in possession of the suit land under the erstwhile Zamindary Estate and as provided under Section 4 of the Assam Land Holding (Adoption of the Relationship Under the Assam Land and Revenue Regulation Act, 1986, in the Acquired Permanently Settled Estates) Act, 1974, are unsustainable in law? 12. Ms. Sarkar, learned counsel, appearing for the appellant/ defendant No.1 submits that the first appellate court merely on the basis of the cross-examination of DW 1 reversed the finding of the trial court in respect of ejectment of the plaintiffs/ respondents. 12. Ms. Sarkar, learned counsel, appearing for the appellant/ defendant No.1 submits that the first appellate court merely on the basis of the cross-examination of DW 1 reversed the finding of the trial court in respect of ejectment of the plaintiffs/ respondents. It is submitted that the plaintiffs/ respondents sought for the relief as apparent from the plaint but they failed to prove the title of their vendors with respect to the suit land and as against that the defendant/ appellant had been able to proof the title over the suit land by way of Ext. Nos. A and B. The court below failed to take into consideration about the failure to discharge the burden undertaken by the plaintiffs/ respondents to show the title over the suit land. The person holding the possession of the plot of land without title is nothing but a trespasser when the actual owner claims title over the suit land. Merely on the statement of DW 1 that permission was granted to the plaintiff/ respondent to carry out construction over the suit land cannot deprive the defendants/ appellants from their entitlement to the relief on the basis of the documentary piece of evidence supporting their claim of title. As such, the substantial question of law No. 1 is to be decided in favour of the defendant/ appellant. 13. With respect to the substantial question of law No. 2 on a specific query, Ms. Sarkar submits that the DW 1 deposed that the permission was granted by the Manager of the defendant/ appellant Company which is well within the knowledge of the Director of the Company who is DW 1 himself in such a situation, the learned counsel submits that she would not press for the said substantial question No. 2. 14. Mr. Dhar, learned counsel, appearing on behalf of the plaintiffs/ respondents submits that the courts below failed to consider the revenue receipts i.e. Ext. Nos. 2 and 3 series which shows that the suit land was covered by the Permanently Settled Estate (Taluk No. 15796/2011) belonging to the Acquired Estate of Karimgaj which was settled with one Ram Kumar Paul i.e. the vendor of the plaintiffs/ respondents as tenant over the suit land. In addition to that Mr. Dhar submits that the Ext. Nos. Nos. 2 and 3 series which shows that the suit land was covered by the Permanently Settled Estate (Taluk No. 15796/2011) belonging to the Acquired Estate of Karimgaj which was settled with one Ram Kumar Paul i.e. the vendor of the plaintiffs/ respondents as tenant over the suit land. In addition to that Mr. Dhar submits that the Ext. Nos. 2 and 3 series clearly shows that the tenancy was in existence with respect to Ram Kumar Paul so far the suit land is concerned with respect to permanently settled estate, which was subsequently acquired by the Government. Had there been no such tenancy, the authority ought not had collected the said revenue and a preponderance of probabilities ought to have been drawn in favour of the title of the vendor of the plaintiffs/ respondents who claimed their right title and interest over the suit land on the basis of Ext. 5, the sale deed. 15. Further Mr. Dhar, the learned counsel appearing for the respondents/ plaintiffs submits that both the courts below failed to consider Ext. 1, Khatian issued in the name of the legal heirs of Ram Kumar Paul inasmuch as the said Khatian was issued after the acquisition of the Zamindari Estate. As such court below ought to have discussed and gave a proper finding to that effect. 16. Mr. Dhar further submits that the claim of the defendant/ appellant is with respect to the suit land covered by Dag No. 96/111 under Khatian No. 9 Mohal Daswana Taluk No. 15791/211 Hukmat Roy Separate Account No. 1 of Mahsaja Sir Jatindra Mohan Tagore .C.S.T under Mouza – Manik Nagar. The court below failed to consider that the defendant No. 1 had failed to produce the said Khatian No. 9 under which the suit land is covered. Nowhere in Ext. A nor Ext B, the final Khatian shows the Khatian No. 9 rather Ext. B is the Khatian No. 20. The learned courts below failed to consider the said aspect of the matter and held that the suit land belongs to defendant/ appellant Company. Ms. Sarkar submits that it was very much pleaded that the said Khatian No. 9 covering the suit land was subsequently changed to Khatian No. 20. So, the submission of the learned counsel appearing on behalf of the plaintiffs/ respondents has no force. 17. Ms. Sarkar submits that it was very much pleaded that the said Khatian No. 9 covering the suit land was subsequently changed to Khatian No. 20. So, the submission of the learned counsel appearing on behalf of the plaintiffs/ respondents has no force. 17. Considered the submissions of both the learned counsels, the learned court below, specifically the first appellate court reversed the finding of the trial court on the ground that DW 1 has stated that the defendant/ appellant Company had granted permission to the plaintiffs/ respondents to construct shop premises. On the other hand, the trial court without considering the said piece of evidence merely on the failure of the plaintiffs/ respondents to prove the title of Ram Kumar Paul, their vendor discarded the plea of tenancy right over the suit land along with the maliki right over the house. 18. As raised by Mr. Dhar, it is the case of the defendant/ appellant No. I in its counter claim that the land covered by schedule 1 and schedule 2 wherein it has sought for relief of declaration of right, title and interest and for recovery of possession from the schedule No. 2 are covered by Khatian No. 9. Conversion of said Khatian No. 9 to Khatian No. 20 has not been brought on record by the defendant/ appellant. In such a situation, as the defendant/ appellant has filed their counter claim seeking certain relief against the plaintiffs/ respondents, the initial burden to prove that the suit land is covered by the said Khatian No. 9 lies on the defendant/ appellant. Similarly with regard to submission of Mr. Dhar that both the courts below failed to consider Ext. 2 and Ext. 3 series which supports that Ram Kumar Paul was a tenant in respect of the estate acquired by the Government after abolition of Zamindari Estate also cannot be accepted. The documents are normally exhibited having relevancy to the pleading. If the manner in which a particular document exhibited is to be considered is not placed in the pleadings along with its relevancy to a particular fact, the said piece of evidence (document) cannot be considered by the court by drawing certain presumptions. The presumption of fact must itself be based on a particular fact and that particular fact must have its footing in the pleading. 19. The presumption of fact must itself be based on a particular fact and that particular fact must have its footing in the pleading. 19. Herein this case, the plaintiffs/ respondents without any whisper in the plaint merely exhibited the documents. Out of the said exhibited documents except Ext. No. 1, the registered sale deed, there is no pleading at all with respect to the rest of the documents so exhibited as to the relevancy of the same. Both the courts below never took into consideration the said documents inasmuch as there is no pleading to that effect. If we come to the case of the defendant/ appellant, the same is the situation inasmuch as there is no pleading in the counter claim that the said Khatian No. 9 has been changed to Khatian No. 20 (Ext. B). Ext. A, the information slip also is totally silent that the suit land is covered by Khatian No. 20, rather it is apparent from the said Ext. A that the same is covered by Khatian No. 9. However, the said Ext. A was not proved by the person who issued the information slip and its contents. Accordingly the finding of both the courts below that the defendants/ appellants are recorded owners of the suit land are set aside. 20. The plea of the defendant/ appellant is that the plaintiffs/ respondents are the encroachers. In order to show that the plaintiffs/ respondents are the encroachers, the defendant/ appellant as the counter claimant is duty bound to prove their title over the suit land. The case of the defendant/ appellant is specifically as hereinabove stated that the suit land is covered by Khatian No. 9, but on perusal of the records and pleadings nowhere there is any whisper that the Khatian No. 9 has changed to Khatian No. 20 and as such this court invoking the jurisdiction under Section 103 of the CPC, hereby upheld the finding of the first appellate court but not on the reason or reasoning given by the first appellate court. Rather as the defendant/ appellant failed to show that the suit land is covered by Khatian No. 9 as per the pleading, the defendant/ appellant has failed to prove their title over the suit land as such the finding of the first appellate court is upheld that the defendants/ appellants are not entitled for ejectment of the plaintiff/ respondent. Rather as the defendant/ appellant failed to show that the suit land is covered by Khatian No. 9 as per the pleading, the defendant/ appellant has failed to prove their title over the suit land as such the finding of the first appellate court is upheld that the defendants/ appellants are not entitled for ejectment of the plaintiff/ respondent. The substantial question of law No. 1 is decided in the affirmative but with modification to the reasoning. Thus the judgment and decree of trial court is set aside and upheld the findings of the First appellate court to the extent mentioned hereinabove, however setting aside the finding of title of the defendant/ appellant No. 1 over the suit land of the First appellate court. 21. For the reasons discussed hereinabove, owing to non-pleading of the relevancy of the document in the pleadings of the plaintiffs/ respondents, findings of the courts below are sustainable in law. As such, this appeal along with the Cross-Objection No. 8/07 of the plaintiffs/ respondents are dismissed. Prepare the decree accordingly. No costs. Send back the LCR.