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2019 DIGILAW 386 (GAU)

Dala Singha v. Ram Kr. Singha

2019-03-27

PRASANTA KUMAR DEKA

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JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. P.K. Kalita, the learned Senior Counsel assisted by Mr. K.R. Barooah, the learned counsel for the appellants. Also heard Mr. A.K. Talukdar, the learned counsel for the respondents. 2. The present appellants as the plaintiffs filed Title Suit No. 48/1986 in the Court of Assistant District Judge, Karimganj against the defendants/respondents for declaration of their right in respect of the second schedule suit land. One Bhagirat Singha alongwith others got settlement of land mentioned in first schedule of the plaint from Bhupendra Chandra Deb Burma and others by a registered Kabuliyat dated 22.04.1952. After the settlement, they possessed the same. The settlement holder left behind the present plaintiffs/appellants as heirs. The defendant respondent No. 1, late Krishnamohan Singha and on his death his legal heirs had no right, title and possession over the suit land but surreptitiously managed to record his name in the final khatian without the knowledge of the plaintiffs/appellants. The second schedule suit land out of the first schedule land was acquired by the Government in connection with Land Acquisition Case in the Office of the Deputy Commissioner, Karimganj for ONGC and an amount of Rs. 51,000/- was sanctioned as compensation. The plaintiffs/appellants preferred claim for compensation but there being claim by the defendants/respondents, the Deputy Commissioner, Karimganj as the Land Acquisition Officer directed the present plaintiffs/appellants to file a civil suit within 30 days from the date of the notice for establishing their right over the land involved in the Land Acquisition Case. Accordingly, the suit was filed. 3. Krishnamohan Singha as the defendant No. 1 during his life time filed written statement taking the stand that there is no cause of action, the suit is barred by limitation and bad for waiver, estoppels and acquiescence. It is the defence that he executed a Kabuliyat registered on 10.10.1957 for the suit land in favour of the landlord Maharaja Kirit Bikram Manikya Bahadur of Tripura and after obtaining settlement exercised exclusive possession till 28.01.1976 on which date delivered advance possession of the second schedule land in presence of Collector, Karimganj. Final khatian was also issued. After observing required formalities the land was delivered to ONGC and legally sanctioned compensation for the acquisition of the land. The plaintiffs/appellants had no right, title over the suit land nor possession and as such, sought for the dismissal of the suit. Final khatian was also issued. After observing required formalities the land was delivered to ONGC and legally sanctioned compensation for the acquisition of the land. The plaintiffs/appellants had no right, title over the suit land nor possession and as such, sought for the dismissal of the suit. The defendant No. 1 died during the pendency of the suit and his legal heirs the present respondents were substituted. 4. On the basis of the said pleading, the following issues were framed:- "1. Is there any cause of action for the suit? 2. Whether the suit is barred by limitation? 3. Whether the suit is barred by waiver, estoppels and acquiescence? 4. Whether the plaintiffs have right, title and interest and had prior possession in the suit land? 5. Whether the plaintiffs are entitled to get compensation in respect of the suit land in the relevant LA Case? 6. To what relief, if any, the plaintiffs are entitled?" 5. The plaintiff/appellant, Dala Singha examined two witnesses and on the other hand, defendants/respondents examined three witnesses. Both the parties exhibited documents. Ext-4 is the notice issued by the Collector, Karimganj to the predecessor-in-interest of the plaintiff appellant No. 1 and 16 others asking them to file a civil suit for declaration of their title over the suit land. The learned trial court took issue No. 4 in order to decide as to whether the plaintiffs/appellants have right, title and interest and prior possession over the suit land. Ext-1 is the Kabuliyat executed by Bhagirat Singha dated 22.04.1952. The Ext-1 speaks of settlement of 18 kedars of land with the predecessor of the plaintiffs/appellants. In the evidence, the PW-1, Dhola Singha deposed that the defendants/respondents got their names recorded for 6 kedars of land which is suit land and standing on the Southern side of 15 kedars of land which is first schedule land. The said PW-1 failed to produce any record to show that after leaving 6 kedars of land the remaining 9 kedars out of 15 kedars was mutated in their names were mutated as per the settlement record. The learned trial court came to the finding that the defendants/respondents took settlement of 6 kedars of land from Maharaja of Tripura and executed the Kabuliyat, Ext-A in the year 1957 and got their names recorded for 6 kedars of land during the last settlement operation. The learned trial court came to the finding that the defendants/respondents took settlement of 6 kedars of land from Maharaja of Tripura and executed the Kabuliyat, Ext-A in the year 1957 and got their names recorded for 6 kedars of land during the last settlement operation. The Ext-C1 is the kacha khatian showing the name of the predecessor-in-interest of the defendants/ respondents and Ext-C is the final khatian in respect of the possession. The DW-2 supported the fact of possession over the suit land of the defendants/respondents. The plaintiff/appellant claimed the first schedule land as "Go-cherra" land but failed to support the same by way of any documentary evidence. The learned trial court came to the finding that though the plaintiffs/appellants took settlement of 15 kedars of land vide Ext-1 but there was no convincing evidence to show that he took possession of the suit land after executing kabuliyat. Accordingly, it held that the plaintiffs/appellants had no right, title, interest and possession prior to the acquisition of land by the ONGC. The learned trial court also held that the suit was barred by limitation on the basis of adverse possession. The learned trial court decided issue No. 3 that the suit is barred by waiver, estoppel and acquiescence as the plaintiffs/appellants did not raise any objection when the ONGC was inducted and it started construction of a building. Finally the suit was dismissed. 6. The plaintiffs/appellants filed Title Appeal No. 22/2006 in the Court of learned District Judge, Karimganj and vide judgment dated 25.05.2007 dismissed the appeal concurring the findings of the trial court. Thereafter, this second appeal is preferred which was admitted on 05.12.2007 on the following substantial question of law:- "Whether the learned lower appellate court and the trial court were justified in holding that the suit was barred by limitation on the ground that the suit was instituted beyond 12 years from the date of the lease and more so when the defendants did not plead and prove adverse possession?" 7. Mr. Kalita, the learned Senior Counsel submits that in the plaint, the plaintiffs/appellants claimed their right, title and interest over the suit land on the basis of the settlement through Ext-1 the Kabuliyat. Mr. Kalita, the learned Senior Counsel submits that in the plaint, the plaintiffs/appellants claimed their right, title and interest over the suit land on the basis of the settlement through Ext-1 the Kabuliyat. It is pleaded that names of the plaintiffs/appellants were mutated to the extent of 9 kedars of land and the rest 6 kedars which forms the suit land was collusively mutated in the name of the defendant/respondent out of total 15 kedars of land under Ext-1. The court below failed to take into consideration the said pleadings and held the suit to be barred under the provisions of the Limitation Act on the ground of adverse possession by the defendants/respondents. There is no pleading to that effect of the required ingredients in the written statement and under such circumstances, the findings of the court below is not proper rather the same are perverse. There must be specific pleading with regard to the date of dispossession by the defendants/respondents in order to know by the plaintiffs/appellants from which date the defendants/respondents claims their possession as adverse against the plaintiffs/appellants. If there is no such pleading, the court cannot enter into the said issue of adverse possession. 8. Mr. Talukdar, on the other hand, submits that the plaintiffs/appellants failed to prove their title over the suit land. Mere producing the kabuliyat Ext-1 cannot prove that the land was settled and subsequently the same was acquired. In the evidence, the plaintiffs/ appellants stated that out of 15 kedars of land 6 kedars was mutated collusively in favour of the defendants/respondents thereby leaving 9 kedars in the name of the plaintiffs/ appellants but the plaintiffs/appellants failed to produce any documentary evidence as such, the courts below dismissed the suit. 9. I have considered the submissions of the learned counsel. The suit is basically on the reference made by the Land Acquisition Officer in order to decide the dispute of title between the parties. Adverse possession does not extinguish the title of a plaintiff rather the relief for recovery of possession is barred through the court. The learned trial court discussed the evidence on record and was satisfied to come to the conclusion that the plaintiffs/appellants failed to prove their title over the second schedule land. Ext-4 is the notice issued to the plaintiffs/appellants directing them to get their title decided over the land so acquired by the Collector. The learned trial court discussed the evidence on record and was satisfied to come to the conclusion that the plaintiffs/appellants failed to prove their title over the second schedule land. Ext-4 is the notice issued to the plaintiffs/appellants directing them to get their title decided over the land so acquired by the Collector. The first appellate court on perusal of the judgment took into consideration the evidence on record but held mainly that the suit was barred by law of adverse possession. If the same is taken into consideration the plaintiffs/appellants have title over the land and merely because of non-taking of action in due course within the period of limitation, the relief for recovery of possession may be extinguished only. 10. I have perused the judgment of the first appellate court and also the Ext-4 notice issued by the Collector, Karimganj. It is the title that is to be decided by the Civil Court but it is seen that the first appellate court had given much thrust on the point of adverse possession. Accordingly, invoking the jurisdiction under Section 103 of the CPC, I am constrained to enter into the evidence more specifically the documentary evidence relied by the parties to the suit. The PW-1, Dhola Singha relied Ext-1 the kabuliyat dated 13.08.1952, Ext-2 (series) are the Revenue Paying Receipts which shows that the said rent was against the Estate No. 5699/96 paid by Bhagirat Singha subsequent to abolition of the Zamindari system. The said land was taken back by the Government and classified as Government land. Ext-3(ii) supports the fact that Bhagirat Singha alongwith others occupied "Tauzi" No. 90 and for that purpose the rent was assessed and paid jointly by the said possessors. The plaintiffs/appellants failed to produce any khatian either working khatian or final khatian. On the other hand, the defendants/respondents produced draft khatian, Ext-C1 from which it can be ascertained that Krishnamohan Singha was the sole possessor of 6 kedars of land of the Maharaja of Tripura. Ext-C is the final khatian showing the land covered by Dag No. 782 and the classification is shown as Pattit. Ext-B is the "Farag" which shows the name of Krishnamohan Singha only and as against the said land mentioned in the said "Farag" revenue was assessed. 11. Ext-C is the final khatian showing the land covered by Dag No. 782 and the classification is shown as Pattit. Ext-B is the "Farag" which shows the name of Krishnamohan Singha only and as against the said land mentioned in the said "Farag" revenue was assessed. 11. On the other hand, as hereinabove stated the predecessor-in-interest of the plaintiffs/ appellants failed to show any such "Farag" issued in favour of Bhagirat Singha alone and this itself, goes to show that the land claimed by the defendants/appellants was settled with Krishnamohan Singha, the predecessor-in-interest of the present defendants/ respondents. On the other hand, though there is a kabuliyat Ext-1 and Ext-3(ii) also can be treated as "Farag" but the same stands alongwith other possessors and no khatian settling the land covered by kabuliyat in the name of Bhagirat Singha as per the pleading in plaint could be produced by the plaintiffs/appellants. The learned trial court rightly held that the plaintiffs/appellants failed to produce any document in support of claim of 15 kedars of land on the basis of Ext-1 kabuliyat. Accordingly, the first appellate court ought to have decided the issue No. 4 by taking into consideration of the findings of the learned trial court in issue No. 4 because of the fact that it is the title to be decided by the Civil Court which is required for apportionment of the compensation of the suit land already acquired and the possession of which was already delivered to the ONGC. Accordingly, the issue No. 4 decided by the learned trial court is upheld. 12. Coming back to the substantial question of law, it is true that there is no such pleading in order to substantiate the defence plea of adverse possession but the issue No. 3 as to whether the suit is barred by waiver, estoppel and acquiescence, I am of the opinion that on perusal of the evidence of the PW-1, it is clear that the plaintiffs/appellants by their acts of waiver and acquiescence depicted a picture to draw the inference that the suit land does not belong to them and they do not have the title over the same. On the basis of the pleadings and evidence of plaintiff side, it can be held that the suit is bad for waiver and acquiescence. However, the suit cannot be held to be barred by limitation by adverse possession. On the basis of the pleadings and evidence of plaintiff side, it can be held that the suit is bad for waiver and acquiescence. However, the suit cannot be held to be barred by limitation by adverse possession. Accordingly, though the substantial question of law is decided in favour of the appellant but keeping in view the findings arrived at after invoking the jurisdiction under Section 103 of the CPC. I am of the opinion that the suit is not barred by law of limitation on the ground of adverse possession by the defendants/respondents. But I must hold that the plaintiffs/appellants failed to prove the right, title and interest over the suit land and the findings of the courts below to that effect are proper. 13. This second appeal stands dismissed. 14. Send back the LCR. No cost.