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2019 DIGILAW 419 (CAL)

Ajit Kumar Baul v. Minati Baul

2019-04-01

BISWAJIT BASU

body2019
JUDGMENT : BISWAJIT BASU, J. 1. The present second appeal is at the instance of the plaintiff and is directed against the appellate decree dated September 28, 2018 passed by the learned Additional District Judge, North and Middle Andaman, Mayabunder in Title Appeal No. 01 of 2018 thereby affirming the decree dated December 28, 2017 passed by the learned Civil Judge, Junior Division, North and Middle Andaman, Mayabunder in Title Suit No. 11 of 2009. 2. The first substantial question of law formulated by the Hon'ble Division Bench at the time of admission of the present second appeal is as follows:- Whether the first lower appellate court committed error of law by affirming the judgment and decree of the learned Trial Court by failing to appreciate that the court below made out a new case beyond pleading about the claim of the plaintiff seeking specific performance of contract on the basis of oral agreement which was neither pleaded nor any evidence were adduced by the plaintiff? 3. The said substantial question of law demands close scrutiny of some of the averments of the plaint, relevant to answer it, as such reproduced below:- "(3) That one Kumud Behari Baul was the elder brother of the plaintiff. Both the brothers were living together in village Shantipur and both wanted to purchase a plot of land in that village to settle their family. The mother of the plaintiff and his elder brother Kumud Behari Baul paid them a sum of Rs. Eleven thousand and thereafter Kumud Behari Baul and one Keshab Ch. Biswas R/o Shantipur jointly purchased the landed property an area 1.95 Hect bearing S. No. 45/10 on 11-12-1985 situated in village Shantipur in which both shared half portion of the land, it means 0.9750 Hect land come in the share of Kumud Behari Baul. (4) That as per the verbal agreement reached between the plaintiff and his brother Kumud Behari Baul, the said land an area 0.9750 Hect was purchased in the name of Kumud Behari Baul and after purchase Kumud Behari Baul shall transfer half share of the land an area 0.9750 Hect in the name of the plaintiff. It means Kumud Behari Baul was to transfer 0.4875 Hect land in the name of the plaintiff, but he failed to do so in his lifetime and died in the year 196. It means Kumud Behari Baul was to transfer 0.4875 Hect land in the name of the plaintiff, but he failed to do so in his lifetime and died in the year 196. Thereafter the landed property recorded in the name of Kumud Behari Baul was mutated in the joint names of the defendants. The record of Right or Holding register showing that the said property was mutated in the joint names of the defendants are annexed herewith. (5) That the mother of the plaintiff and his elder brother paid some money to them in equal part to purchase landed property in the year 1985. Both invested the said money in equal part to purchase the land an area 0.9750 Hect. The said sale deed was prepared in the name of Kumud Behari Baul who was the elder brother of the plaintiff and who had promised to transfer the half of the purchased land in the name of the plaintiff. (6) That 08.08.1996 the mother of the plaintiff and his elder brother Kumud Behari Baul made declaration before notary, south 24 parganna that she paid money to his son to purchase the said land in equal part and her son Ajit Kumar Baul has half share of the said purchased land. The details are clear from the said declaration. (7) That all the defendants named above sworn affidavit before the Ld. J.M.F.C. Mayabunder on 19/07/2001 and stated that they will give half of the landed property bearing S. No. 45/10 to the plaintiff after mutation of the same in their name. The details are clear from the said affidavit. (8)..... (9) That inspite of the fact that: (i) The mother of the plaintiff paid the money to purchase the land an area 0.9750 Hect out of the said S. No 45/10. (ii) Declaration made by the mother of the plaintiff that the plaintiff has half share in the aforesaid land an area .9750 Hect. (iii) The affidavits sworn by the Defendants that they will give half of the land an area 0.9750 Hect to the plaintiff the Defendant failed to transfer the share of the plaintiff in his Name till today. The plaintiff requested the defendants on many dates in the past years and in the year 2009 to transfer the suit property i.e. his share an area 0.4875 Hect in his name, but the defendants failed to do so. The plaintiff requested the defendants on many dates in the past years and in the year 2009 to transfer the suit property i.e. his share an area 0.4875 Hect in his name, but the defendants failed to do so. At last, on 20.07.2009, the plaintiff requested the defendants to transfer the said land in his name but they all refused to do so. Now the plaintiff has no other way but to file this suit to claim his legal right over the suit property." 4. It is apparent from the above quoted averments of the plaint that it is the specific case of the plaintiff/appellant that his elder brother, Kumud Behari Baul, the predecessor-in- interest of the defendants/respondents agreed to transfer half of his purchased property, that is the suit property in favour of the plaintiff/appellant but neither the said Kumud Behari Baul during his life time nor his legal heirs and representative, the defendants/ respondents herein transferred the same in favour of the plaintiff/appellant in spite of demand. It is also the specific plaint case that the plaintiff/appellant on July 20, 2009 requested the defendants/respondents to transfer the suit property in his favour but the defendants/respondent refused to do so, in fact the plaintiff/appellant alleged that on the said date the cause of action of the suit lastly arose. 5. The plaintiff/appellant to substantiate his claim that his mother Smt. Bhagabati Baul, at the time of purchase of 0.9750 Hect. of land comprised in survey No. 45/10 shared the consideration price of the said sale transaction with his said elder brother Kumud Behari Baul on his behalf, relied on the declaration of his mother before the notary public being Exhibit No. 2. The plaintiff/appellant has brought the said exhibit-2 on record to establish his claim that his mother on his behalf paid the said amount as the earnest money of the said agreement for transfer of the suit property in his favour. 6. The plaintiff/appellant to validate his claim that the defendants/respondents also agreed to transfer the suit property in his favour relied on exhibit 3 (series) i.e. the affidavits in the form of declaration of the defendants/respondents whereby the said defendants/ respondents declared that they will give the plaintiff/appellant fifty percent share of the entire land purchased by their predecessor-in-interest. 7. 6. The plaintiff/appellant to validate his claim that the defendants/respondents also agreed to transfer the suit property in his favour relied on exhibit 3 (series) i.e. the affidavits in the form of declaration of the defendants/respondents whereby the said defendants/ respondents declared that they will give the plaintiff/appellant fifty percent share of the entire land purchased by their predecessor-in-interest. 7. The endeavor of the plaintiff/appellant to bring the aforementioned documents on record unmistakably suggests that the plaintiff/appellant brought the said document on record to corroborate his claim in the suit that his elder brother Kumud Behari Baul agreed to transfer the suit property in his favour and after his death, the defendants/respondents being his legal heirs and representatives ratified the said agreement by executing the exhibit 3(series). In this context, it will not be out of place to mention that the learned Trial Judge in his judgment has observed that at the time of beginning, learned counsel for the plaintiff stated that plaintiff acquired right, title, interest over the suit property by virtue of oral agreement and on the strength of this title plaintiff is in possession over the suit property. 8. The Plaintiff/appellant in the suit although has not expressly prayed for decree of specific performance of the said alleged agreement for sale but on the close scrutiny of the plaint case and the evidences on record both oral and documentary adduced by the plaintiff/appellant it can safely be concluded that the claim of the plaintiff/appellant in the suit over the suit property is based on the performance of the said alleged agreement. The learned Trial Judge on consideration of the said materials on record has come to the conclusion that there is no concluded agreement between the parties to the suit which can specifically be enforced against the defendants/respondents. 9. The learned Trial Judge in view of such pleadings and evidences on record has rightly entered into the investigation as to the existence of a concluded contract between the plaintiff/appellant and the defendants/respondents and it's validity by doing so the learned Trial Judge has not made out any new case which the plaintiff/appellant has not made out in his pleadings and evidence. The learned First Appellate Court therefore, has not committed any error far less a substantial error of law by not interfering with the said judgment and decree of the learned Trial Judge on the ground for entering into such investigation. Be it mentioned here that the suit has not been dismissed solely on the ground that the plaintiff/appellant has failed to prove existence of any effective agreement between him and the defendants/respondents. The first question of law formulated in the present second appeal is therefore answered in negative. 10. The following is the next substantial question of law, formulated in the present second appeal at the time of it's admission:- Whether the first lower appellate court committed error of law by affirming the judgment and decree of the learned Trial Court by failing to decide the reliefs as claimed by the plaintiff in the form of a declaration that the tenancy of the defendants over the suit land stands extinguished as per section 162 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 and the Andaman and Nicobar Islands Land Revenue and Land Reform Rules 1968 with other ancillary relief of possessory right of the appellant over the suit land on mis-appreciation of documentary evidence (Exhibit 2, 3 and 9) and oral evidence of PW-1, PW-2, PW-3 and PW-4 by considering inadmissible of evidence of DW-1, DW-2, DW-3 and DW-4 and also ignoring the admission of the defendants in their pleading as regard of the plaint case? 11. Mr. K.M.B. Jayapal, learned counsel appearing on behalf of the plaintiff/appellant submits that the plaintiff is claiming title over the suit property on the basis of his possession over it. He submits that the said claim of the plaintiff/appellant is not based on the doctrine of adverse possession but on the ground that the plaintiff/appellant is in possession of the suit property on extinguishment of the title of the defendants/respondents over it. He contends that since purchase of the suit property by the predecessor-in-interest of the defendants/respondents admittedly the plaintiff/appellant is in possession of it. He contends that since purchase of the suit property by the predecessor-in-interest of the defendants/respondents admittedly the plaintiff/appellant is in possession of it. No proceedings for the recovery of the said possession from the plaintiff/appellant has been initiated either by the said Kumud Behari Baul or by the defendants/respondents in terms of the Regulation 161(1) of the Andaman & Nicobar Islands Land Revenue & Land Reforms Regulation, 1966 (hereinafter referred to as "The said Regulation of 1966") within the time stipulated in the said Regulation, therefore in terms of the Regulation 162(f) of the said Regulation of 1966 the right, title and interest of the defendants/respondents over the suit property has been extinguished and consequently the plaintiff/appellant being in possession of the suit property has acquired right, title and interest over it and is entitled to a decree of declaration to the said effect. He further submits that the learned Trial Judge without appreciating the scope of the suit has dismissed the same and the learned Appeal Court below has committed substantial error of law in affirming the said judgment and decree. 12. Mrs. Anjili Nag, learned counsel appearing on behalf of the defendants/respondents refuting the contentions of Mr. Jayapal, at the very outset submits that no case of the Regulation 162(f) of the said Regulation of 1966 has been made out by the plaintiff either in the plaint or in his evidence as such the plaintiff/appellant is not entitled to raise such an issue in the present appeal, particularly when it is a second appeal. She submits that in terms of the Regulation 38 of the said Regulation of 1966, no person can acquire any property of the islands or any right to such property except by a conveyance executed by or under the authority of the Government, therefore, the claim of the plaintiff of acquiring title over the suit property on the ground of his long possession being contrary to the said Regulation 38 is not sustainable. 13. Mrs. 13. Mrs. Nag further submits to bring the possession of the plaintiff over the suit property within the sweep of the connotation of the word deprived of possession as appearing in the body of the Regulation 162(f) of the said Regulation of 1966 some overt act indicting the title of the original title holder of the property in question is required but in the present case the plaintiff has never claimed that his possession over the suit property is hostile to it's actual owner and as such said provision of the said Regulation has no manner of application in the facts of circumstance in the present case. 14. Mrs. Nag then argues that the Regulation 204 of the said Regulation of 1966 puts a bar to the jurisdiction of the Civil Court in respect of all matters arising out of the provisions of the said Regulation of 1966 except those which have been expressly provided in it. The said Regulation does not expressly provide that in respect of extinguishment of tenancy in terms of the Regulation 162(f) of the said Regulation of 1966 civil suit would lie therefore, the said Regulation 204 is a bar to the jurisdiction of the Civil Court to declare that the tenancy of the defendants/respondents has been extinguished in terms of the said Regulation 162(f). 15. Mrs. Nag concludes her arguments by submitting that the extinguishment of tenancy under the said Regulation 162 can only be recorded by the authorities under the said Regulation, in the present case no action has been taken by any authority to record such extinguishment of the tenancy of the defendants/respondents till date, such extinguishment of tenancy cannot be declared by a Civil Court at the instance of the plaintiff/appellant. 16. Mr. Jayapal, responding to the arguments of Mrs. Nag submits that the said Regulation 162(f) only recognizes deprived of possession not deprived of right, according to him the connotation of the word deprived of possession is attributable to the possession of any character, be it permissive or be it forceful. He further argues that no procedure has been prescribed either in the said Regulation of 1966 or in the rules framed thereunder for recording of the extinguishment of the tenancy of a tenant in terms of the said Regulation 162(f). He further argues that no procedure has been prescribed either in the said Regulation of 1966 or in the rules framed thereunder for recording of the extinguishment of the tenancy of a tenant in terms of the said Regulation 162(f). Whereas such procedure has been laid down in respect of other limbs of the said Regulation 162, e.g. for surrender of his holding under the said Regulation 162(b), the tenant has to follow the procedure prescribed under the Regulation 153 of the said Regulation of 1966. Mr. Jayapal therefore, submits in the absence of any procedure under the said Regulation of 1966 for recording and/or declaring the extinguishment of the tenancy of the defendants/respondents over the suit property, the said Regulation 204 cannot be a fetter to the jurisdiction of the Civil Court, exercisable under Section 34 of the Specific Reliefs Act, 1963 to declare the legal character of the possession of the plaintiff/appellant over the suit property upon a declaration that the right, title and interest of the defendants/respondents has been extinguished in terms of the said Regulation 162(f). 17. Heard learned counsel for the parties perused the materials on record. The averments made in the paragraph 15 of the plaint being relevant to answer the present substantial question of law is reproduced below:- "15. That the plaintiff has been possessing the suit property since 1985 since the day of its sale deed. He has been developing the same in many ways and because of such possessing of the suit property the plaintiff has got every right, title and interest over the suit property and on the other hand (sic "land") the defendants have lost (sic "last") such right in view of LR, and LRR 1966 and many other laws and judgments and as such reason the plaintiff is entitled to got allotment/mutation of the suit property in his name." 18. The plaintiff/appellant on the above quoted averment prayed for a decree of declaration, vide prayer No. (ii) in the following manner:- "(ii) Declaring that on the basis of the such possession by the plaintiff the Defendants have lost (sic "last") last alias lost all right, title and interest over the suit property." 19. The plaintiff/appellant on the above quoted averment prayed for a decree of declaration, vide prayer No. (ii) in the following manner:- "(ii) Declaring that on the basis of the such possession by the plaintiff the Defendants have lost (sic "last") last alias lost all right, title and interest over the suit property." 19. The plaintiff since is admittedly in possession over the suit property and the entitlement of the plaintiff/appellant to get such a relief is wholly dependent upon the exposition of the scope of the Regulation 162(f) of the said Regulation of 1966 which is reproduced below for ready reference:- "162. The interest of a tenant in his holding or any part thereof shall be extinguished of Extinguishment tenancies (a)....... (b)....... (c)....... (d)....... (e)....... (f) when he has been deprived of possession and his right to recover possession is barred by limitation. (g)......." 20. The plaintiff/appellant in the paragraph 15 of the plaint has specifically stated that the defendants/respondents are out of possession of the suit property since the day of it's purchase and in terms of the said Regulation of 1966 and the rules framed thereunder their tenancy over the suit property has been extinguished. Therefore, it cannot be said that no case prior to the present second appeal, regarding extinguishment of tenancy of the defendants/respondents has been made out, as argued by Mrs. Nag. 21. However, even on the admitted position that the plaintiff/appellant is in possession of the suit property, to attract the provision of the said Regulation 162(f), the character of the possession of the plaintiff/appellant over the suit property is required to be determined. 22. The said Regulation 162(f) contemplates a situation where the tenancy of a tenant extinguishes on his being deprived of possession of the property let out to him and his right to recover such possession becomes barred by limitation. The Regulation 161(1) of the said Regulation of 1966 prescribes the period of limitation within which the tenant is to apply for restoration of his possession of the property wherefrom the tenant has been so dispossessed i.e. within two years from the date of dispossession. The said Regulation 161(1) being relevant to the present context is reproduced below for ready reference:- "161. The said Regulation 161(1) being relevant to the present context is reproduced below for ready reference:- "161. (1) If after the commencement of this Regulation any tenant is disposed of any lands held by him otherwise than by process of law, he may within two years from the date of such dispossession, apply to the Tehsildar for his reinstatement in such land. Reinstatement of wrongfully ejected tenant (2)....... (3)....... (4)....... (5)....... (6)....... (7)......." 23. The conjoint reading of the said Regulation 161(1) and the said Regulation 162(f) suggests beyond any doubt that the dispossession of the tenant must be without his consent. 24. The word "deprivation" is an act of taking away, as defined in Black's Law Dictionary (10th edition). The words "deprived of possession" appearing in the body of the said Regulation 162(f), therefore, cannot be interpreted to ascribe a meaning that no animus is attached with the said words. 25. This Court therefore is unable to accept the arguments of Mr. Jayapal that the character of the possession of plaintiff/appellant over the suit property is irrelevant so as to attract the provision of the said Regulation 162(f). 26. In the present case the plaintiff/appellant has indeed made out a case that his elder brother after purchase agreed to transfer the suit property in his favour and he was then put into possession of the same. The said claim of the plaintiff/appellant of coming into possession of the suit property in such a manner is akin to the doctrine of part performance of agreement as envisaged under Section 53A of the Transfer of Property Act, 1882. It is not the case of the plaintiff/appellant that he came into the possession of the suit property by dispossessing the original owner. Rather the plaintiff/appellant is claiming to be in possession of the suit property with the consent of the original owner. 27. The learned Judge of the Appeal Court below therefore under such factual matrix of the matter has not committed any error of law in holding that the plaintiff's possession over the suit property being permissive the right, title and interest of the defendants/respondents or their predecessor-in-interest cannot be said to have been extinguished in terms of the said Regulation 162(f). 28. 28. The plaintiff/appellant in the suit has claimed that he is in possession of the suit property since 1985 i.e. from the date of its purchase by his elder brother Kumud Behari Baul and on the basis of his such possession he is praying for a decree vide prayer No. (iii) for declaration of his right, title and interest over the suit property. The said prayer is reproduced below:- "(iii) Declaring that on the basis of the such possession of the suit property, the plaintiff has got every right, Title and interest over the suit property." 29. It appears from the averments of the plaint, the reliefs sought for in the suit, particularly the form of declaration sought for vide a prayer No. (iii) and the evidences produced by the plaintiff/appellant in support of his said prayer that the plaintiff/appellant is seeking a decree of ownership over the suit property in the form of the said declaration. Doctrine of adverse possession is the only recognized procedure under the law for acquisition of ownership over immovable property by prescription. The plaintiff/appellant is not claiming ownership over the suit property by resorting to the said doctrine of adverse possession as submitted by Mr. Jayapal. Therefore, let me now consider whether the plaintiff/appellant is entitled to acquire such prescriptive title over the suit property under the provisions of the said Regulation of 1966. 30. The Regulation 38 of the said Regulation of 1966 deals with ownership of lands in the Union Territory of Andaman & Nicobar Islands. Sub-regulation (1) of the said Regulation 38 being relevant to the present context is quoted below for ready reference:- "Ownership of land. 38. (1) All land in the Union Territory of the Andaman and Nicobar Islands is vested absolutely in the Government, and save as provided by or under the Regulation, no person shall be deemed to have acquired any property therein or any right to or over the same by occupation, prescription or conveyance or in any other manner whatsoever except by a conveyance executed by, or under the authority or, the Government. (2).......... (3).......... (4).......... (5).......... (6) .........." 31. (2).......... (3).......... (4).......... (5).......... (6) .........." 31. It is apparent from the said Regulation 38(1) that no person can claim any right in respect of the lands in the Union Territory of Andaman & Nicobar Islands by occupation or prescription except by a conveyance executed by, or under the authority or, the Government. The plaintiff/appellant therefore is not entitled to claim any right over the suit property on the basis of his possession. 32. Let me now consider the maintainability of the suit in view of the bar to the jurisdiction of the Civil Court by the Regulation 204 of the said Regulation of 1966. The Regulation 204 is quoted below for ready reference:- "204. No suit or other proceeding shall, unless otherwise expressly provided in this Regulation, lie or be instituted in any civil court with respect to any matter arising under and provided for by this Regulation." 33. It is settled position of law that exclusion of the jurisdiction of the Civil Court shall not be readily inferred unless the same is expressly excluded. The jurisdiction of the Civil Court in respect of any matter provided under the said Regulation has been excluded by the said Regulation 204 except those for which the Civil Court has been expressly vested with the jurisdiction to deal with. 34. A person can acquire the title in respect of land of the Union Territory of Andaman & Nicobar Islands in the manner provided under the provision of the said Regulation 38. Therefore, acquisition of title in respect of lands of Andaman & Nicobar Islands is a matter arising under and provided by the said Regulation of 1966. The plaintiff/appellant therefore cannot maintain a suit before a Civil Court for declaration of his right, title and interest over the suit property as the said matter has not been expressly provided under the said Regulation of 1966 to be dealt with by a Civil Court. 35. The plaintiff/appellant therefore cannot maintain a suit before a Civil Court for declaration of his right, title and interest over the suit property as the said matter has not been expressly provided under the said Regulation of 1966 to be dealt with by a Civil Court. 35. This Court since has already affirmed the finding of the learned First Appellate Court that in the fact and circumstance of present case the tenancy of defendants/respondents cannot said to be extinguished in terms of the said Regulation 162(f), the question whether the Regulation 204 is a fetter to the jurisdiction of the Civil Court to entertain and to decide a suit where under Section 34 of the Specific Relief Act, 1963, a declaration has been sought for declaring extinguishment of the tenancy of a tenant, in terms of the said Regulation 162(f) has become redundant. 36. In view of the discussion made above, the said substantial question of law is also answered in negative. This Court holds that no such substantial questions of law, formulated at the time of it's admission are involved in the present second appeal as such the same is dismissed. The judgment of decree passed by the learned Additional District Judge, North and Middle Andaman, Mayabunder in Title Appeal No. 01 of 2018 is hereby affirmed. However, there will be no order as to costs. 37. Let, decree be drawn up accordingly.