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2018 DIGILAW 121 (GAU)

Mukut Doloi v. State of Assam

2018-01-24

PRASANTA KUMAR DEKA

body2018
JUDGMENT & ORDER : 1. Heard Mr. MA Sheikh, learned counsel appearing for the appellant/plaintiff. Also heard Mr. PK Roy Choudhury, learned counsel, appearing for the respondent Nos. 6 and 7 and Ms. K. Phukan, learned Junior Government Advocate, Assam, appearing for the respondent Nos. 1 to 5. 2. The present appellant is the plaintiff in Title Suit No. 17/2018 in the court of the learned Civil Judge (Junior Division) No. 2 at Morigaon who filed the suit against the present respondents as defendants for declaration of his possessory right to occupy the suit land described in Schedule A of the plaint and for a precept to the respondent Nos. 1 to 5 to allot the suit land in favour of the plaintiff/appellant on payment of premium and decree for permanent injunction restraining the defendants/respondents Nos. 6 and 7 from encroaching the Schedule A land etc. 3. The plaintiff/appellant is possessing the land measuring 1 Bigha 2 Kathas 10 Lechas out of total 123 Bighas of land covered by Government Dag No. 259 of Alichinga Kissam under Uttarkhola Mouza in the District of Morigaon. His father possessed the suit land by cultivating therein since 35 years back by clearing jungles and on attaining majority, the plaintiff/appellant continued the possession over the suit land by constructing his dwelling houses thereon. The defendant/respondent Nos. 6 and 7 accompanied by local police officials during absence of the plaintiff/appellant who was in jail demolished his dwelling house and threatened the wife of the plaintiff/appellant not to repossess the suit land. The plaintiff/appellant approached the Revenue authority of Morigaon for allotment of the suit land in his name but there was no response from the said authority. The defendant/respondent Nos. 6 and 7 are trying to evict the plaintiff/appellant from the suit land. Hence he filed the suit seeking the reliefs mentioned hereinabove. 4. The defendant/respondent Nos. 1 to 5 filed their joint written statement and denied the possession of the plaintiff/appellant over the suit land. In the written statement it was further pleaded that the suit land has been kept vacant for public purpose and as such the allotment of the suit land to a particular person does not arise at all. On the other hand the defendant/respondent Nos. 6 and 7 in their written statement raised the question of maintainability of the suit. In the written statement it was further pleaded that the suit land has been kept vacant for public purpose and as such the allotment of the suit land to a particular person does not arise at all. On the other hand the defendant/respondent Nos. 6 and 7 in their written statement raised the question of maintainability of the suit. Further it is pleaded that out of the suit land 2 Kathas 10 Lechas land is in their possession which was allotted in favour of the defendant/respondent No. 7 on 26.10.1983 and remaining portion of the suit land was surrounded by fencing and he applied before the revenue authority to allot the same in his favour. They further pleaded that the entire suit land is in their possession. Accordingly, the defendants/respondents prayed for dismissal of the suit. 5. The learned trial court framed the following issues:- "(i) Whether there is a cause of action for the suit? (ii) Whether the suit is maintainable in its present form? (iii) Whether the plaintiff has been in continuous possession of the suit land for more than 30 years to entitle hostile title? (iv) Whether the suit land has been in occupation of Shantipur Mahila Samiti? (v) To what other relief/reliefs the parties are entitled?" 6. The learned trial court decreed the suit in favour of the plaintiff/appellant. The learned trial court took up the Issue No. 3 at first and after having considered the evidence of the parties to the suit held that half Bigha of land forming part of the suit land was never occupied by the defendant/respondent No. 7 and as such possession of the plaintiff/appellant over the suit land is more than 30 years. The occupation of the suit land by the plaintiff/appellant for such a long duration was open by making construction and cultivating over the land which is a relevant fact and creates a bona fide right in favour of the plaintiff/appellant. The possession for such an appreciable length of time had created right, title and interest in favour of the plaintiff/appellant and accordingly directed the defendant/respondent Nos. 1 to 5 to keep that aspect of the matter in the mind before taking any steps against the plaintiff/appellant in respect of the suit land. In addition to that the learned trial court held further that the principles of law of adverse possession also goes in favour of the plaintiff/appellant. 1 to 5 to keep that aspect of the matter in the mind before taking any steps against the plaintiff/appellant in respect of the suit land. In addition to that the learned trial court held further that the principles of law of adverse possession also goes in favour of the plaintiff/appellant. 7. The learned trial court while discussing the Issue No. 4 came to the finding that the Ext. Ka, the allotment order in favour of the defendant/respondent No. 7 does not specify any specific boundaries of half Bigha of land allotted to Dakhin Dharamtul Mahila Samiti within the entire land of 100 Bighas covered by the said dag. Disputing the authority of the defendant/respondent No. 6 who deposed as DW 1, the learned trial court further came to the finding that the defendant/respondent No. 7 is occupying 2/3 Bighas of land towards North side of the house of the PW 2 where they constructed the foundation stone of Mahila Samity and over the said land they used to conduct meeting. Considering the admission of DW 2, representing the Mahila Samity, the defendant/respondent No. 7 that there is no house of Mahila Samity and the plaintiff is staying thereon the suit land with his family held that the defendant No. 7 had no possession over the suit land and accordingly decided the said Issue No. 4 in favour of the plaintiff/appellant. 8. On the basis of the said findings, the learned trial court declared the possessory right in favour of the plaintiff/appellant over the suit land and decree of permanent injunction restraining the defendant/respondent Nos. 6 and 7 from encroaching the suit land and/or disturbing possession of the plaintiff/appellant in respect of the suit land without following due process of law. In addition to that the defendant/respondent Nos. 1 to 5 were also directed to follow the said principle of law before contemplating any future course of action over the suit land. 9. Being aggrieved, the defendants/respondents preferred two appeals i.e. Title Appeal No. 1/2002 and Title Appeal No. 2/2002 in the court of the learned Civil Judge (Senior Division) at Morigaon. The said two appeals were allowed vide common judgment and decree dated 24.05.20102 thereby reversing the findings of the learned trial court and dismissed the suit of the plaintiff/appellant. Thereafter the plaintiff/appellant has preferred this second appeal which was admitted on 03.09.2002. The said two appeals were allowed vide common judgment and decree dated 24.05.20102 thereby reversing the findings of the learned trial court and dismissed the suit of the plaintiff/appellant. Thereafter the plaintiff/appellant has preferred this second appeal which was admitted on 03.09.2002. However, no substantial question of law was formulated at the time of admission of this second appeal. At the time of hearing, the same being pointed out and observed by this court on the submissions of the learned counsels for both the parties, the following substantial question of law was formulated on 02.01.2018. (I) Whether the reversal of the finding of Issue No. 3 by the first appellate court is incorrect and perverse so far the possessory right of the plaintiff/appellant is concerned? 10. Mr. MA Sheikh, learned counsel for the plaintiff/appellant submits that the findings of the learned first appellate court while reversing the Issue No. 3 is perverse. It is very much on record that the plaintiff/appellant had all along been in possession over the suit land and on the strength of the said possession coupled with the principles of adverse possession, the plaintiff/appellant is entitled to protect his possession on the strength of his possessory right over the suit land. The fact of possession of the defendant/respondent Nos. 6 and 7 over the suit land could not be proved by them. In such a situation, the first appellate court ought not to have reversed the findings of Issue No. 3. 11. Mr. Sheikh, the learned counsel for the plaintiff/appellant took this court to the deposition of PW 2, Sri Labananda Sarmah who deposed that since the year 1974 he saw the plaintiff/appellant residing and occupying the suit land. He also deposed that the defendant/respondent No. 7 occupied 2 Bighas of Government land whereon they conducted meeting and hold Namkirtan. Having materials to that effect on record, the learned trial court had rightly held the Issue No. 3 holding that owing to the appreciable length of time of possession, the possessory right, title and interest of the plaintiff/appellant coupled with the principles of law of adverse possession is established. Now consideration of the same by the first appellate court is a clear case of perversity. 12. Opposing the submission of the learned counsel for the plaintiff/appellant, Mr. Roy Choudhury, learned counsel for the defendant/respondent Nos. Now consideration of the same by the first appellate court is a clear case of perversity. 12. Opposing the submission of the learned counsel for the plaintiff/appellant, Mr. Roy Choudhury, learned counsel for the defendant/respondent Nos. 6 and 7 submits that long duration of possession even if it is assumed, the plaintiff/appellant is not clothed with any right, title and interest so far the possession is concerned inasmuch as admittedly the suit land is a Government land and the Assam Land Revenue Regulation stipulates certain criteria and only on fulfillment of those criteria a person is clothed with any form of right, title and interest recognized by law over the Government land. 13. The first appellate court has rightly held that the plaintiff/appellant is not entitled for the relief/reliefs sought for in the suit inasmuch as the plaintiff/appellant is an encroacher and an encroacher cannot be protected under the law. 14. Considered the submissions of the learned counsels appearing on behalf of the parties to this appeal. On perusal of the findings of the learned first appellate court it is noticed that accepting the evidence of the plaintiff/appellant, as PW 1 came to the conclusion that the plaintiff/appellant admitted his possession over the suit land without any permission or allotment from the Government nor he filed any written application nor obtained any lease or permission to enter into the suit land which is admittedly Government land. To this court, such admission itself is sufficient to non-suit the plaintiff/appellant. Regulation 8 of the Assam Land and Revenue Regulation, 1886 stipulates how the status of land holder is acquired. It prescribes any person who acquires any such land under a lease granted by or on behalf of the Government the term of which is not less than 10 years shall be deemed to have acquired the status of land holder. 15.Rule 16 of the Rules under the Assam Land and Revenue Regulation stipulates that lease shall be issued on written application only and no person shall enter into the possession of waste land in any area until a lease has been issued to him or otherwise a written permission by the Deputy Commissioner granted to him pending issue of such lease to enter into possession. In the State of Assam Vs. In the State of Assam Vs. Radhika Kanon, reported in 1997 (2) GLT SC 35, the Hon’ble Apex Court held that the right of entry into for possession of the Government land must be with lease or permission by the Deputy Commissioner. Any person, who enters into possession otherwise than pursuant to Rule 16 is an encroacher. Mere payment of land revenue to the Mauzadar by the person other than those covered by Rules 16, 17 and 17A would not confer any right to such persons who are in un- authorised occupation of Government. 16. In the present case in hand, admittedly the plaintiff/appellant is possessing the Government land without any written lease or permission from the Government and he is an encroacher upon the suit land. On the other hand, it is the case pleaded by the defendant/respondent Nos. 6 and 7 that the defendant No. 7 was allotted land measuring 2 Kathas 10 Lechas i.e. half Bigha way back in the year 1983 and to that effect Ext. Ka is the resolution taken by the Land Advisory Committee of Morigaon District. On the strength of the said Ext. Ka, the defendant/respondent No. 7 has the right to enter into the Government land which it had done and possessed half Bigha of land. An encroacher of the Government land is tagged with the said status until he gets the status of land holder. The said status of land holder cannot be acquired with the aid of hostile possession against the Government, however long his possession be over the Government land. On the other hand, if the initial entry of a person over the government land is through a written permission of the Government like allotment as in the case of the defendant/respondent No. 7, the length of possession will have a bearing in obtaining the status of landholder by that person inasmuch as the tag of "encroacher" is not there. Considering the same the plaintiff/appellant cannot claim the relief sought for in the suit. Had the suit been under Section 6 of the Specific Relief Act, 1963 for recovery of possession it would have been a separate issue. 17. Let us examine the relief granted by the learned trial court on the basis of the findings arrived at while deciding the Issue No. 3. Had the suit been under Section 6 of the Specific Relief Act, 1963 for recovery of possession it would have been a separate issue. 17. Let us examine the relief granted by the learned trial court on the basis of the findings arrived at while deciding the Issue No. 3. The suit of the plaintiff/appellant is a declaratory one so far the status of the plaintiff/appellant is concerned with respect to the suit land. On the strength of the said declaration sought for, the plaintiff/appellant had sought for relief of permanent injunction against the defendant/respondent Nos. 6 and 7. The learned trial court as noticed hereinabove, decreed the suit including the relief of permanent injunction against the defendant/respondent No. 7. As hereinabove discussed and in the light of the decision of the Hon’ble Apex court reported in 1997 (2) GLT SC 35 (Supra) the status of the plaintiff/appellant is an encroacher. On the other hand, based on Ext. Ka the defendant/respondent No. 7 is an allottee of the land measuring half Bigha within the suit dag which is admittedly a Government land. 18. The relief of permanent injunction is admittedly a consequential relief flowing from the status of the plaintiff/appellant in respect of the suit property. The status of the plaintiff/appellant with respect to the suit land is an encroacher for which there is no question of granting the relief of permanent injunction in his favour with a direction to the respondent No. 7 not to disturb possession of the plaintiff/appellant over the suit land. The plaintiff/appellant produced touzi (penalty) payment (receipt) as exhibits purportedly issued by the concerned Mouzadar. Keeping in view the ratio of the decision of the Apex Court (supra), the said payment cannot grant any right over the suit land as the plaintiff/appellant is in unauthorized occupation of the suit land. Accordingly, the substantial question of law so formulated is decided against the plaintiff/appellant inasmuch as the learned first appellate court has rightly reversed the findings of the learned trial court so for the Issue No. 3 is concerned. Accordingly, this appeal is dismissed. 19. Send back the LCRs.