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2017 DIGILAW 920 (GAU)

Md. Nur Islam v. Anjir Ali

2017-07-14

PRASANTA KUMAR DEKA

body2017
JUDGMENT : Heard Mr. AK Hussain, learned counsel, appearing for the appellant. On the other hand, though the names of the learned counsel, appearing on behalf of the respondent have been shown in the cause list, however none has entered appearance at the time of taking up this matter. 2. Considering that the matter is pending since the year 2004, the matter is taken up for hearing and its final disposal. 3. The present appellant is the defendant in T.S. No. 104/1993 filed by the respondent/plaintiff-Club, for declaration of its right, title and interest over the suit land. The case of the plaintiff/respondent-Club, represented by its Secretary, is that the said Club is an association registered in the year 1978 under the Registration of the Societies Act. The members of the plaintiff/respondent –Club found a plot of land covered by Dag No. 77 of Village Chatla under Mouza- Sarukhetri and the plaintiff-Club through its members took the possession of the said plot of land in the year 1979. On 14.6.1988, the plaintiff-Club through its members filed an application before the Deputy Commissioner, Barpeta for allotment of the said plot of land, which is the suit land. The Deputy Commissioner, Barpeta after receiving the said application placed the said petition before the Land Advisory Board, Barpeta on 16.4.1988 for consideration. The Board approved the settlement of the said land covered by Dag No. 77 of Village Chatla on 12.6.1990 and passed formal order for allotment of the land in favour of the plaintiff-Club and the authority formally delivered possession of the land to the plaintiff-Club on 31.10.1990. Thereafter, the members of the Club constructed a house and dug a fishery on the back side of the said house over the suit land. On 5.11.1990, the defendant/appellant with a mala fide motive prayed before the District Magistrate, Barpeta to draw up a proceeding under Section 145 Cr.P.C. against the members of the plaintiff-Club on the ground that he was dispossessed from the said suit land. The learned Magistrate, after recording the evidence of the witnesses and after hearing the parties, declared the possession of the plaintiff Club over 90 Lechas of land and 10 Lechas of land in favour of the defendant/appellant. It is pertinent to mention herein that the suit land is 1 (one) Bigha in area. The learned Magistrate, after recording the evidence of the witnesses and after hearing the parties, declared the possession of the plaintiff Club over 90 Lechas of land and 10 Lechas of land in favour of the defendant/appellant. It is pertinent to mention herein that the suit land is 1 (one) Bigha in area. The learned Magistrate passed an order of attachment and the possession was delivered to the plaintiff-Club. The said order which was passed on 11.12.1991 was challenged in a revision proceeding before the learned District & Sessions Judge, Barpeta. The same was disposed of on 25.5.1993 by reversing the order of the learned Magistrate declaring the possession of the defendant/appellant over the total land measuring 1 (one) Bigha. The plaintiff/respondent filed another revision application before this court which was dismissed. It is the case of the plaintiff that though the possession was declared in favour of the defendant/appellant, but even then they maintained the possession over the suit land as the same was delivered by the learned Magistrate after passing the order dated 11.12.1991. The defendant/appellant is threatening the members of the plaintiff/respondent Club and as such they preferred the suit for declaration of right, title and interest and permanent injunction over the suit land. 4. The defendant/appellant filed his written statement denying each and every statement of the plaintiff/respondent. It is his case that he has been possessing the suit land since 21 years back whereupon he has his residential house and fishery over the suit land. His possession was affirmed in the revision against the order passed by the learned Magistrate on 11.12.1991. He denied the possession of the plaintiff/respondent and further reiterated that the land is a sarkari land (Government land) which is under his possession and as such the suit of the plaintiff/respondent be dismissed. 5. On the basis of the pleadings, the trial court framed the following issue. (1) Whether there is cause of action for the suit? (2) Whether the suit is undervalued and under stamped? (3) Whether the suit is barred by res-judicata? (4) Whether the suit is not maintainable in its present form? (5) Whether plaintiff has right, title and interest and possession over the suit land? (1) Whether there is cause of action for the suit? (2) Whether the suit is undervalued and under stamped? (3) Whether the suit is barred by res-judicata? (4) Whether the suit is not maintainable in its present form? (5) Whether plaintiff has right, title and interest and possession over the suit land? (6) Whether the order dated 25.5.93 and 14.10.93, passed by the learned District & Sessions Judge, in C.M. No. 51(B-4)/1991 and order passed by the Hon’ble High Court in Criminal Revision No. 295/93 is illegal, in-operative and void in law? (7) Whether the plaintiff is entitled to a decree as prayed for? (8) To what other relief or reliefs, if any, the plaintiff is entitled to? 6. The trial court after having recorded the evidence of the witnesses decreed the suit in favour of the plaintiff/respondent. 7. Being aggrieved, the defendant/appellant preferred an appeal being Title Appeal No. 10/1998 in the court of the learned Civil Judge (Senior Division), Barpeta. The learned first appellate court dismissed the appeal and thereafter the defendant/appellant has preferred this second appeal, which was admitted on the following substantial questions of law:- 1. Whether the suit of the plaintiff is barred under Section 154 of the Assam Land and Revenue Regulation, 1886? 2. Whether on the basis of the proved documents, the learned courts below committed error in declaring title of the plaintiff over the land? 8. Mr. Hussain submits that both the courts below failed to consider that the suit land is a Government land and in order to declare the right, title and interest of the plaintiff/respondent over the suit land, the court below ought to have considered as to how the title has been acquired by the plaintiff/respondent over the suit land. It is also submitted that there is a specific bar under Section 154 of the Assam Land & Revenue Regulation, 1886 inasmuch as no Civil court can enter into the question of settlement of land nor the Civil court has the jurisdiction to question any settlement granted to any person by the revenue authority. 9. In the present case in hand, it is only the proposal taken by the land Advisory Board, Barpeta on the basis of which the plaintiff/respondent had claimed its right, title and interest over the suit land. 9. In the present case in hand, it is only the proposal taken by the land Advisory Board, Barpeta on the basis of which the plaintiff/respondent had claimed its right, title and interest over the suit land. There is no formal settlement order of the said land in favour of the plaintiff/respondent thereby granting the status of land holder on the basis of which the said plaintiff/respondent could claim its right, title and interest over the suit land. 10. Such being the position, both the courts below failed to consider the necessary ingredients required for declaring necessary right, title and interest of the plaintiff/respondent over the suit land. Accordingly, Mr. Hussain submits that the substantial questions of law are to be decided in favour of the appellant. 11. Considered the submission of the learned counsel appearing on behalf of the appellant. The first appellate court upheld the findings of the trial court wherein the trial court held that the orders passed in the revision proceeding before the learned Sessions Judge, Barpeta up held by the High Court in Criminal Revision Petition No. 295/2003 are redundant. This cannot be the correct view of both the courts below. The claim of the plaintiff over the suit land is purely on the basis of the decision of the Land Advisory Board, Barpeta transmitted to the Deputy Commissioner, Barpeta. On the basis of the said recommendation of the Land Advisory Board, the Deputy Commissioner, Barpeta directed the Sub-Deputy Collector, Sarthebari informing about the said decision of allotment of the suit land to the plaintiff/respondent. Except the said latter dated 12.1.1990, issued by the Deputy Commissioner, Barpeta, no documents are exhibited by the plaintiff/respondent as exhibit in support of its claim to the relief of declaring of its right, title and interest over the suit land. From the cross-examination of PW 2, Md. Anzir Ali, the Secretary of the plaintiff/respondent Club, it is very much apparent that the plaintiff/respondent had not exhibited any patta except the Ext. 1 which is the letter dated 12.1.1990. No possession certificate in pursuance of the Ext. 1 had also been exhibited in support of the claim of the plaintiff/respondent. 12. In such a situation, findings in the proceeding under Section 145 Cr.PC. ought to have been considered by both the courts below. 1 which is the letter dated 12.1.1990. No possession certificate in pursuance of the Ext. 1 had also been exhibited in support of the claim of the plaintiff/respondent. 12. In such a situation, findings in the proceeding under Section 145 Cr.PC. ought to have been considered by both the courts below. In a proceeding under Section 145 Cr.P.C. an enquiry is conducted in order to verify the particular party who maintains the possession over the disputed land just prior to 2 (two) months of initiation of the said proceeding. Here in this case, Ext. “ka” is the judgment and order passed in favour of the defendant/appellant in Criminal Revision Petition No. 295/1993, passed by this court which is in favour of the defendant/appellant. The learned Executive Magistrate, Barpeta declared the possession of the suit land in favour of the plaintiff/respondent particularly. The said finding was reversed in the criminal revision petitions, both before the learned District & Sessions Judge, Barpeta and in this court. The said reversal would amount to preponderance that at least 2 (two) months prior to the date of initiation of the proceeding under Section 145 Cr.P.C., the possession was with the defendant/appellant. In such a situation, the findings of both the courts below that the plaintiff/respondent is possessing the suit land is totally unacceptable. 13. It is known to all that a plot of land allotted by the Govt. to a particular person is to be delivered possession by the machinery of the revenue authority and to that effect, there is a report affirming the fact delivery of possession to the allottee in pursuance of the order of the Deputy Commissioner. But herein this case, though the plaintiff/respondent had claimed its possession over the suit land prior to allotment in the year 1990, but in order to substantiate its possession as per the Govt. allotment, a duty was cast upon it to, at least, put the said report of the Government machinery in support of its claim of delivery of possession. Having failed to do so, and in such a situation, declaration of right, title and interest over the suit land is perverse. Accordingly the substantial question of law No. 2 is decided in favour of the defendant/appellant. 14. Having failed to do so, and in such a situation, declaration of right, title and interest over the suit land is perverse. Accordingly the substantial question of law No. 2 is decided in favour of the defendant/appellant. 14. Regarding the substantial question of law No. 1, it cannot be answered in the affirmative inasmuch as the dispute between the parties to the suit is with regard to the possession of suit land. The allotment letter ought to have been taken for collateral purpose as to in what manner, the parties having such document had the entry to the said land. But here in this case, the plaintiff/respondent failed to show that it was delivered the said plot of land by the Government machinery in order to get its possession legalized. On the other hand, the defendant/appellant has been able to discharge his burden by bringing on record the judgment and order passed in the revision petition at least to give a preponderance that he had been holding possession of the suit land at least 2 (two) months prior to the initiation of the said 145 Cr.P.C proceeding. 15. In view of the above, it cannot be held that in view of the facts and circumstances of the suit, the same cannot be decided by Civil Court owing to the bar under Section 154 of the Assam Land & Revenue Regulation, 1886. Accordingly, this substantial question of law is decided in negative. 16. Accordingly, this second appeal is allowed. Send back the LCR. No costs.