Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 510 (GAU)

Bhaskar Saikia v. Md. Abdul Mannan

2018-03-23

MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : 1. This second appeal by the defendants has been filed against the judgment and decree dated 3/8/2008 passed by the District Judge, North Lakhimpur in Title Appeal No. 1/2009, whereby the learned District Judge reversed the judgment and decree passed by the learned Civil Judge in Title Suit No. 1/2004 and decreed the suit of the plaintiffs. 2. The facts leading to the filing of the present second appeal are that the owner of the suit land measuring 4 K 6 Ls covered by Dag No. 161 (Old)/224 (New) was the predecessor of the defendants/appellants and the father of the plaintiffs was an occupancy tenant in respect of the suit land, who was possessing the same under the landlord paying rents. After the death of his father, the plaintiff inherited the suit land. The defendants/appellants in connivance with the revenue authority got an eviction proceeding initiated against the plaintiff/respondent, which was registered as Encroachment Case No. 1/2003. After receiving the notice of the eviction proceeding, the plaintiff/respondent instituted the T.S. No. 1/2004 for declaration of their right and title as tenants, for a declaration that the eviction proceeding initiated against the plaintiff/respondent was illegal, for confirmation of possession and other consequential relief’s. 3. The pleaded case of the defendants/appellants was that the plaintiff had no right over the suit land and the Khatian, on the basis of which the plaintiff claimed right over the suit land, was forged and the plaintiff instituted the suit only to obstruct the encroachment proceeding. Further case of the defendants was that the suit land was within the tribal belt and block and the plaintiff was not entitled to occupy the suit land in the tribal belt. It was also the case of the defendants that the suit land was owned by their father and after death of their father they became the owners of the suit land. The defendants/appellants stated that the suit was barred by Section 167 of the Assam Land and Revenue Regulation, 1886. The defendants/appellants also put up a counter claim for declaration of their right, title and interest over the suit land and recovery of possession. 4. On the basis of the above pleadings, the learned Civil Judge framed the following issues :- 1. Whether there is any cause of action for the suit ? 2. The defendants/appellants also put up a counter claim for declaration of their right, title and interest over the suit land and recovery of possession. 4. On the basis of the above pleadings, the learned Civil Judge framed the following issues :- 1. Whether there is any cause of action for the suit ? 2. Whether the suit land was under possession of the plaintiff since 1976 ? 3. Whether the Encroachment Case No. 1/03 has been instituted against the plaintiff without any reason ? 4. Whether the plaintiff has right, title and interest over the suit land ? 5. Whether the defendants' side have right, title and interest over the suit land ? 6. Whether the counter claim as made by the defendants' side that they have inherited the suit land has any basis ? 5. Both the parties adduced evidence in support of their respective claims and after hearing both the sides, the learned Civil Judge decreed the suit in favour of the plaintiff/respondent by judgment and decree dated 1/2/2006. 6. Aggrieved by the judgment of the learned Civil Judge, the defendants/appellants preferred an appeal which was registered as Title Appeal No. 2 of 2006 and the learned appellate court remanded back the suit for fresh disposal after framing the following three additional issues :- (i) Whether the Khatian (Ext. 1) issued in the name of deceased father of the plaintiff is genuine ? (ii) whether the deceased father of the plaintiff and after this death, the plaintiff were the rayat with regard to the suit land or not ? (iii) Whether the suit is barred by the provisions of Assam Land and Revenue Regulation (Act) ? 7. Upon remand, after hearing the parties afresh, learned Civil Judge dismissed the suit of the plaintiff by judgment and decree dated 03/10/2008. 8. Aggrieved by the judgment and decree passed by the learned Civil Judge, the plaintiff/respondent preferred an appeal before the learned District Judge, Lakhimpur, North Lakhimpur. Learned District Judge allowing the appeal decreed the suit in favour of the plaintiff and dismissed the counter claim. 9. Aggrieved by the appellate judgment and decree, the defendants/appellants preferred the instant second appeal which was admitted to be heard on the following substantial questions of law :- "1. Learned District Judge allowing the appeal decreed the suit in favour of the plaintiff and dismissed the counter claim. 9. Aggrieved by the appellate judgment and decree, the defendants/appellants preferred the instant second appeal which was admitted to be heard on the following substantial questions of law :- "1. Whether the learned lower appellate court is correct in holding that on the basis of Ext.-1, plaintiff are entitled to declaration of right, title and interest over the suit land as occupancy tenant under the provisions of the Assam (Temporary Settled Areas) Tenancy Act, 1971 ? 2. Whether the learned lower appellate court is correct in holding that suit is not barred under the provisions of Chapter X of the Assam Land and Revenue Regulation, 1886 ?" 10. Learned Senior counsel Mr. K.K. Mahanta for the appellants and Mr. K Sarma, learned counsel for the respondent were heard. Also perused the records. 11. Learned Senior Counsel, Mr. K.K. Mahanta for the appellants, submits that the suit land being government land, there cannot be a tenant under the Assam (Temporary Settled Areas) Tenancy Act, 1971 (for short "Tenancy Act"), inasmuch as, any person cultivating or holding land immediately under the State Government is not a tenant within the meaning of "tenant" as defined under Clause 17 of Section 3 of the Assam (Temporary Settled Areas) Tenancy Act, 1971. Per contra, learned Counsel, Mr. K. Sarma for the respondents, submits that the plaintiff's/respondents father was the occupancy tenant in respect of the suit land and his name was recorded in the record of right as rayat (tenant). The plaintiff/respondent being the sons and legal heir of the occupancy tenant, inherited the right of tenancy and therefore, they cannot be evicted, except by the procedure laid down by the statute (Tenancy Act). 12. The plaintiff/respondent being the sons and legal heir of the occupancy tenant, inherited the right of tenancy and therefore, they cannot be evicted, except by the procedure laid down by the statute (Tenancy Act). 12. The term "tenant" has been defined under Clause 17 of section 3 of the Assam Temporary Settled Areas Tenancy Act,1971 as under :- "Tenant" means a person who cultivates or holds the land of another person, and is or but for a special contract (express or implied) would be, liable to pay rent for that land to that other person, and includes a person who under the system generally known as Adhi (Whether Guchiadhi or Gutiadhi), barga, 'chukti', bhag or chukani cultivates the land of another person on condition of delivering a share or quantity of the produce of such land to that person : provided that a person who cultivates or holds land immediately under the State Government is not a tenant within the meaning of this definition." 13. Sub-section (1) of Section 4 of the Tenency Act, 1971 recognizes two classes of tenancy, i.e., occupancy tenant and non-occupancy tenant. Sub-Section (2) of Section 4 provides that any person, who was recorded in the record of rights as a privileged tenant under the provisions of the Assam (Temporary Settled Districts) Tenancy Act, 1953, shall be recorded as occupancy tenant. 14. Sub-section (1) of Section 5 of the Act provides that a person, who for a period of not less than three years, has continuously held land as a tenant shall have a right of occupancy tenant over that land. 15. Section 6 of the Tenancy Act provides that an occupancy tenant shall have permanent heritable and transferable right of use and occupancy over the land of his holding, subject to the other provisions of the Act. 16. In the present case, there was no dispute, that the name of father of the present plaintiff/respondent was recorded as tenant under the predecessor of the present appellants and kutcha khatian being the "Khatian No. 12 Kha", proved as Ex. 1 was issued as back as in 1976. Pleaded case of the present appellants, who were defendants in the original suit was that Ex.-1, "Khatian", in the name of predecessor of the respondent, was a forged document. 1 was issued as back as in 1976. Pleaded case of the present appellants, who were defendants in the original suit was that Ex.-1, "Khatian", in the name of predecessor of the respondent, was a forged document. However, the defendants/appellants admitted in his evidence, that Keramat Ali, predecessor of the plaintiff/respondent was recorded as tenant since the time of his grand father, Dambarudhar Saikia and grandmother, Someswari Saikia. 17. Order VI Rule 4 CPC provides that "in all cases in which party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and item if necessary), shall be stated in the pleading". In the present case, except making an averment that the Ex-1 khatian issued in favour of father of the plaintiff/respondent was forged, no particular of fraud as required by Order VI Rule 4 CPC was stated in the pleading, nor any evidence was adduced by the defendants/appellants to substantiate the plea of fraud in respect of Ex.-1, the Khatian. Issue of Khatian in favour of the father of the plaintiff since the time of grandfather of the defendants had been admitted by the defendant himself in his evidence. Issue of 'Khatian' in favour of the plaintiffs father being admitted and defendants having raised the plea of forgery, burden invariably shifted to the defendants to prove the same, which the defendants palbably failed to discharge. 18. Though basically the case of the plaintiff was that he was occupancy tenant in respect of the suit land by right of inheritance, it was also averred in the plaint that the suit land was later on found to be ceiling surplus and the land was settled with the plaintiff/respondent. But no evidence was brought on record in support of such pleading. Evidence brought on record by both the sides including the patta of the suit land, Ex.-'Ka', 'Khatian', Ex. 1, as well as revenue paying receipt, Ex. 'Kha' clearly demonstrated that the suit land was covered by K.P. Patta No. 95 in respect of which father of the plaintiff was a tenant (rayat). 19. On the basis of the averment in the plaint that the suit land was ceiling surplus land, learned Senior Counsel, Mr. 1, as well as revenue paying receipt, Ex. 'Kha' clearly demonstrated that the suit land was covered by K.P. Patta No. 95 in respect of which father of the plaintiff was a tenant (rayat). 19. On the basis of the averment in the plaint that the suit land was ceiling surplus land, learned Senior Counsel, Mr. K.K. Mahanta submitted that a ceiling surplus land becomes a Government land and there cannot be a tenant in respect of a Government land within the definition of "tenant" under Assam (Temporary Settled Areas) Tenancy Act, 1971. It is no doubt true, that proviso to Clause 17 of Section 4 of the Act lays down that a person who cultivates or holds land immediately under State Government is not a tenant within the meaning of this definition. However, it was not a case of the defendants/appellants that the suit land was ceiling surplus land or government land. The specific case of the plaintiff was that the suit land was a periodic patta land belonging to the defendants/appellants and there has been ample evidence to that effect, both documentary and oral, showing that the suit land to be periodic patta land standing in the name of the predecessor of the defendants/appellants. 20. Though basically the claim of the plaintiff/respondent was based on the tenancy right under the defendants/appellants and their predecessor, and the evidence brought on record clearly established that the suit land was periodic patta land belonging to the predecessor of the defendants/appellants, under whom the predessor of the plaintiff was occupancy tenant, only an averment made in the plaint that the suit land subsequently became ceiling surplus, without anything more, cannot change the nature of land. Looking from another angle, it is the settled principle of law, that there is no bar to set up alternative pleas in a suit. A plaintiff may rely upon different rights altenatively and there is nothing in the CPC to prevent a party from making two or more alternative or inconsistent set of allegations and claiming relief there under in the aleternative (see Chapsibhai Dhanjibhai Danad -Vs- Purushottam, AIR 1971 (SC) 1878 ). When alternative pleas are raised, each plea is to be judged on its own merit. When alternative pleas are raised, each plea is to be judged on its own merit. When the party succeeds in establishing a plea and is entiteld to relief upon such plea, he cannot be non-suited, because of the other plea which is found to be untrue. In the instant case, although the plaintiff/respondent averred in the plaint, that the suit land was made ceiling surplus land and settled with the plaintiff, such pleading could not take away the tenancy right of the plaintiff which was found established by the pleadings and the evidence brought on record. Ex. 1, the 'Khatian' proving that the predecessor of the plaintiff was raiyat (tenant) under the owner of the land and the plea of the defendants/appellants that such 'Khatian' was forged, having fallen through, right of the plaintiff over the suit land as tenant, which was established by pleadings and evidence does not get washed off, because of an unsubstantited alternative plea. Situated thus, the plaintiff was certainly entitled to a declaration of his right and interest over the suit land as occupancy tenant, inasmuch as, no contrary evidence was brought on record to dislodge the claim of the plaintiff as occupancy tenant in respect of the suit land on the strength of Ex.- 1, the 'Rayati Khatian'. Therefore, the first substantial question of law is accordingly answered in affirmative and in favour of the plaintiff/respondent. 21. Chapter X of the Assam Land and Revenue Regulation, 1886 provides protection to certain classes of people in respect of the land and also creates certain restrictions and prohibitions on transfer of land falling within the compact belt created under Chapter X of Assam and Land Revenue Regulation, 1886. 22. Section 165 of Assam Land and Revenue Regulation, 1886 provides the procedure for eviction of unauthorised occupants over the land within the belt and block created for protection of the specific class or classes of persons. It is not disputed that the suit land falls within the belt constituted under Chapter X. 23. Section 165 of the Assam Land and Revenue Regulation, 1886 (for short the Regulation) providing the procedure for eviction of any person who is not entitled to occupy land, reads as under :- Ejectment and eviction (1) In the case of unsettled land any person, who without authority has encroached upon or occupied it shall be liable to ejectment forthwith. Section 165 of the Assam Land and Revenue Regulation, 1886 (for short the Regulation) providing the procedure for eviction of any person who is not entitled to occupy land, reads as under :- Ejectment and eviction (1) In the case of unsettled land any person, who without authority has encroached upon or occupied it shall be liable to ejectment forthwith. (2) In the case of annually settled land, persons other than settlement-holders, members of their families and hired servants, if found in occupation thereof, shall be liable to ejectment forthwith. The settlement with the settlement-holder shall, unless terminated earlier for infringement of the conditions of the lease, or for any action contrary to or inconsistent with the rights conferred on him by the lease, automatically terminate at the end of the period covered by the lease. (3) (a) In the case of periodically settled land, persons who have entered into occupation without valid authority from the land-holder, or whose entry or occupation is or has come about in a manner, inconsistent with the provisions of this chapter, shall be liable to eviction. (b) Such eviction shall be preceded by service of notice requiring the occupants to vacate the land to remove all buildings and other constructions erected and crops raised, within a period not exceeding one month from the date of receipt of the notice. (c) The Deputy Commissioner may after the persons have vacated or have been evicted from the land, take the land under his own management, or may let in farm, for such period as he thinks fit, but shall give the land-holders a reasonable opportunity of undertaking in writing that he will do everything in his power to prevent unauthorised occupation by other persons in future, and of agreeing in writing that on his failure to do so, he will forfeit his rights and status of a land-holder in respect of the land. If satisfied with an undertaking and agreement as aforesaid, the Deputy Commissioner shall accept them and they shall be deemed to govern the land-holders future-rights and status in respect of the land, and the land shall then be restored to the land-holder. If satisfied with an undertaking and agreement as aforesaid, the Deputy Commissioner shall accept them and they shall be deemed to govern the land-holders future-rights and status in respect of the land, and the land shall then be restored to the land-holder. If the land-holder subsequently contravenes the undertaking as aforesaid, or any of the provisions of Section 9, he shall be liable to forfeiture of his rights and status in respect of the land, which will then be available for settlement a fresh subject to any lawful, encumbrances subsisting upon it. 24. Section 167 of the Regulation provides that no Civil Court shall exercise jurisdiction in any of the matter covered by this Chapter. 25. Evidently and admittedly the eviction proceeding being Encroachment Case No. 1/2003 was initiated at the instance of the defendants/appellants, which was challenged by the plaintiff/respondent in the suit and also sought for declaration of his right of occupancy over the land. 26. This Court in a catena of decisions held, in the context of bar of civil court's jurisdiction under Section 154 of the Regulation, that jurisdiction of civil court, where provision of statute have not been complied with or the suit is based on some right or title and relief of declaration of right or title is sought, bar of jurisdiction of the civil court cannot be inferred readily. A full bench of this court in Daulat Ram Lakhani Vs. State of Assam and Others (1989) 1 GLR 131 held that civil court's jurisdiction shall not be barred despite the provision of Section 154 of the Regulation in the following two contingencies (i) when the question of title is raised and (ii) the order of revenue authority is illegal or without jurisdiction. 27. In a recent decision in Jame Masjid Committee, Dimapur Vs. Ahmad Ali Khan & Ors, 2016 (2) GLT 1041 held as under:- "In terms of Section 9 of CPC, Civil Courts have jurisdiction to try all suits of civil nature excepting suits in respect of which their cognizance is either expressly or impliedly barred. The jurisdiction of the Civil Court should not be readily inferred but such exclusion must either be explicitly expressed or clearly implied. The jurisdiction of the Civil Court should not be readily inferred but such exclusion must either be explicitly expressed or clearly implied. It is settled principle of law that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine cases where the provisions of a particular statute have not been complied with or where tribunals have not acted in conformity with the fundamental principles of judicial procedure." 28. The contention of the learned counsel for the defendants/appellants was that the suit itself was not maintainable because of the bar created by Section 167 of the Regulation, inasmuch as, jurisdiction of the civil court is barred in respect of eviction proceeding initiated under Chapter X of the Assam Land and Revenue Regulation. The law is now well-settled as regards bar of jurisdiction of the Civil Court. The bar of jurisdiction of the Civil court cannot be readily inferred, more particularly, when the relief claimed in the suit cannot be granted by the Revenue authority. The declaration of right or title being within the exclusive jurisdiction of the civil court and such relief when cannot be granted by the revenue authority a power to adjudicate such suit for declaration of right or title cannot be held to have been taken away from the civil court by Section 167 of the Regulation. Even if the jurisdiction of the civil court is barred, civil court has the competence to examine the bona fide and legality of the action of the revenue or administrative authority. If the action of the revenue authority is palpably illegal and not in conformity with the statute, which confers jurisdiction on the revenue authority, civil court obviously has the jurisdiction to examine such matter. Evidently the suit of the plaintiff was for declaration of his tenancy right, permanent injunction and also cancellation of the eviction proceeding. Granting the relief of declaration of right falling within the exclusive domain of the civil court, the plaintiffs suit cannot be thrown away. 29. Looking from another angle, even when a part of the relief sought in a suit is within the jurisdiction of the civil court and another part of the relief is beyond the jurisdiction of the civil court, the civil court cannot refuse to entertain the suit. The Apex Court in Ishar Singh Vs. 29. Looking from another angle, even when a part of the relief sought in a suit is within the jurisdiction of the civil court and another part of the relief is beyond the jurisdiction of the civil court, the civil court cannot refuse to entertain the suit. The Apex Court in Ishar Singh Vs. National Fertilizer and Another reported in AIR 1991 (SC) 1546 held that "law is equally settled that if for part of the relief the suit is maintainable in the forum where it has been laid, it is not open to the forum to shut its door to the suitors." When the relief of declaration of right sought by the plaintiff, is within the exclusive domain of the civil court, plaintiff's suit could not be thrown away on the plea of bar of jurisdiction. 30. In the instant case, the factum of the suit land being within the tribal belt is not in dispute. It is the case of plaintiff/respondent that they were residents of the tribal belt since long before its constitution and therefore, they are entitled to occupy the land within the tribal belt. The learned appellate court, having discussed the evidence and facts thoroughly, came to the finding that there was no ground for initiating eviction proceeding against the plaintiff/respondent as per section 165 of the Assam Land and Revenue Regulation. Whether the plaintiff/respondent was the resident of the tribal belt since before its constitution and as such entitled to occupy the land within the tribal belt, being a question of fact, and the learned appellate court after having discussed the evidence brought on record, when came to the findings that there was no valid ground for initiating the eviction proceeding u/s 165 of the Assam Land and Revenue Regulation, this Court in second appeal shall not disturb such factual findings with regard to status of the plaintiff/respondent, inasmuch as, nothing could be shown before this Court, that such factual finding of the courts below was perverse or contrary to any evidence on record. 31. Evidently suit land in the present case is neither unsettled or annually settled land and therefore, the suit land in the instant case would come within Sub-Section (3) of Section 165 of the Regulation, inasmuch as, the suit land is admittedly periodically settled land. 31. Evidently suit land in the present case is neither unsettled or annually settled land and therefore, the suit land in the instant case would come within Sub-Section (3) of Section 165 of the Regulation, inasmuch as, the suit land is admittedly periodically settled land. Section 165 (3) (a) of the Assam Land and Revenue Regulation provides that in case of periodically settled land, person who have entered into occupation without valid authority from the land-holder or whose entry or occupation is or has come about in a manner inconsistent with the provision of this chapter, shall be liable to be evicted. The plaintiff is admittedly and evidently Rayat (tenant) under the defendants/appellants and therefore, entry of the plaintiff in the suit land was never without valid authority of the land holder. As would appear from the evidence and the facts and circumstances of the case, that nothing could be brought on record to show that entry or occupation of the plaintiffs over the suit land was in a manner inconsistent with the provision of the Chapter. On the basis of the evidence adduced, learned first appellate court came to the finding that there was nothing in the record to justify the eviction proceeding against the plaintiffs under Section 165 (3) of the Assam Land and Revenue Regulation and therefore, learned appellate court held and rightly so, that in the facts and circumstances of the case, the jurisdiction of the civil court could not be ousted when the relief claimed by the plaintiff/respondent for declaration of his right over the suit land as occupancy tenant could only be granted by the civil court. In view of the above facts and circumstances, the suit cannot be held to be barred under Section 167 of the Assam Land and Revenue Regulation, 1886 and the finding of the learned appellate court, on this issue cannot be faulted. Accordingly, the second substantial question No. 2 is also answered in affirmative and decided in favour of the plaintiff/respondent. 32. Having answered both the substantial questions of law as above in favour of the plaintiff/respondent, this court is left with no other alternative but to hold that the second appeal is without merit and deserves to be dismissed. Accordingly, the appeal is dismissed. 33. Send back the LCR.