High Court
Case Details
RSA 96/2002 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) The defendants-appellants in this Regular Second Appeal have assailed the judgme nt and decree passed by the learned Civil Judge (Senior Division) No. 1, Cachar, Silchar dated 24.12.2001 in Title Appeal No. 38/99 whereby and whereunder the l earned Civil Judge (Junior Division) No.1 allowed the appeal preferred by the pl aintiffs reversing the judgment and decree dated 30.06.1999 passed by the learne d Civil Judge (Junior Division) No. 1 Cachar, Silchar in Title Suit No. 55/1996. 2. Heard Mr. M Singh, learned Senior counsel assisted by Ms. G Singha, lear ned counsel appearing for the appellants. Also heard Mr. BC Das, learned Senior counsel assisted by Mr. BK Purkayastha, learned counsel appearing for the respon dents. In order to understand the submissions of the rival parties, it is essen
Legal Reasoning
3. tial to narrate the facts of the case in a nutshell, - The plaintiffs in the plaint have pleaded that the suit land is homestead land a nd they have right, title and interest over the land described in the Schedule o f the plaint. The father of the defendant Nos.1 and 2, late Mojoi Mian was a poo r and landless person requested the plaintiffs to allow him to reside in the sui t land as a licensee by constructing house and promised to vacate the suit land on demand. However, Mojoi Mian occupied the land and subsequently died, whereof, his sons are occupying the suit land. In the meantime, necessity arose and the plaintiffs requested the principal defendants to vacate the suit land but the de fendants failed to hand over the possession at their verbal request. Therefore, notice was issued to vacate the land which did not yield any result and hence th e suit. In the suit, plaintiff prayed for following releifs;- (cid:28)(ka) ffs and the defendants as the licencees under them and; (kha) katcha house and for khas possession of the suit land; and (ga) tiffs may be entitled. (cid:29) a decree be passed declaring the right title and interest of the plainti a decree for ejecting the defendants and their men by demolishing their a decree for costs of the litigation and such reliefs to which the plain 4. On receipt of the summons, the defendants have entered appearance and co ntested the suit by filing written statement denying inter alia that they were t he licensees under the plaintiffs and the facts pleaded is that the suit Dag i. e. 2nd RS Dag No. 233 was originally under R.S. Dag No. 168 wherein Muzaffar Al i the predecessors of the defendants and Abru Mian were tenants in respect of ap proximately 10 Bighas of land under the predecessors of the plaintiffs and acco rdingly annual rents were paid regularly, Abru Mian died leaving behind his son Monohar Ali and Mazaffar Ali died leaving behind his son Mojoi Mian, father of t he defendants. Dispute arose with the predecessor of the plaintiff. Monohar Ali instituted T.S. No. 44/53 whereof got the decree declaring the tenancy right and for confirmation of possession. Monohar Ali died leaving behind Mojoi Mian as h is successor. Consequently thereupon Mojoi Mian became Jote tenant over approxi mately 10 Bighas of land under the plaintiffs. Mojoi Mian died leaving behind hi s son Samsuddin and two daughters. Kamrul Islam, son of Samsuddin is possessing the suit land along with the answering defendants. Khatian was issued in the nam e of Mojoi Mian and as the defendants are agriculturists and occupancy tenants u nder the plaintiffs, they are non-evictable tenants, hence, prayed for dismissal of the suit. 5. lowing issues: - Upon the pleadings of the parties the learned trial court framed the fol 2. 3. 4. 5. 6. 7. Whether there is any cause of action for the plaintiffs’ suit? 1. Whether the suit is maintainable in its present form and manner? Whether the suit is barred by law of limitation? Whether the suit is bad for defect of parties? Whether the suit is properly valued? Whether the plaintiffs are entitled to decree as prayed for? Whether other/reliefs the parties are entitled to? During the trial, the plaintiffs examined two witnesses and produced som 6. e documentary evidence in support of their case, whereas the defendants adduced oral witnesses and also produced certain documentary evidence to prove their s tand. 7. The learned trial court on the pleading of the parties and the evidence on record had held that there is no cause of action for the plaintiffs’ suit be cause Ext ’C’ wherein the occupancy right over the suit land in favour of decea sed Mojoi Mian as tenant under the plaintiffs have been confirmed and accordingl y Rioty Khatian/patta was issued by the government in the name of the predecesso rs of the contesting defendants which recites that Khatian No.3 in respect of 1 Bigha 8 Katha 7 chattaks of land covered by Dag No. 233 Patta No.77 has been is sued by the Settlement Officer on 06.11.1969 as per section 79 of the Assam (Te mporarily Settled Areas) Tenancy Act, 1971 (’1971 Act’ for short) in favour of Mojoi Mian son of Muzzafar Ali and Monohor Ali son of Abru Mian showing possessi on of the same for more than 12 years on payment of annual rent. In the cross-e xamination, PW 1 admitted the factum of Khatian No. 3 issued in the name of Mo joi Mian showing possession of the land under the same as occupancy tenant. It i s also admitted by PW 1, PW 2 and DW 1 that Monohar Ali the co-khatian holder of Khatian No. 3 filed title suit against the landlord being T.S. No. 44/1953 fo r declaration of his occupancy right over the land under his possession which w as decreed in favour of him. However, the plaintiffs have pleaded that Monohar A li sold his occupancy right over the suit land in favour of Mojoi Mian vide re gistered sale deed Ext. 2. Ext. 2 disclosed that Monohar Ali sold his occupancy right over 2B 8K 8 Chattaks in favour of mojoi Mian. Ext 3 speaks that Mojoi Mi an sold his occupancy right over 6B IK 4 Chattacks which he purchased from Mono har Ali and the learned trial court after discussing the evidence on record, mor e particularly while interpreting Ext. C, Ext. 2 and Ext. 3 has found that the version of the contesting defendants are reliable to the extent that their pred ecessor Mojoi Mian had possessed the suit land since the life time of his father Muzaffar Ali as tenant under landlord Suchuddin having occupying right over the said land and Mojoi Mian being the predecessor-in-interest of the defendants possessing the land continuously as occupancy tenant and they are un-evictable tenant. The learned trial court on the pleadings of the plaintiffs relating to c ancellation of Raiyati khatian and the report of cancellation of khatian, ha s held that no notice was issued before cancellation of khatian and no reason for cancellation has been assigned and the defendants, therefore, are tenants h aving occupancy un-evictable right over the suit land, the plaintiffs have fai led to prove the bona fide needs of the suit land and hence, answered the issue No.1 in the negative. 8. The learned trial court decided the issue Nos. 2 and 3 in favour of the plaintiffs. Relating to issue No. 4, the learned trial court has held that the s uit is not bad for non-joinder of necessary parties but the same is defective f or mis-joinder of parties. With regard to issue No. 5, learned trial Court held that the suit is not properly valued. In view of the findings in issue Nos. 1, 4 and 5, the learned trial court decided the issue Nos. 6 and 7 holding that the plaintiffs are not entitled to a decree as prayed for and the suit deserves to be dismissed, accordingly dismissed the suit. Against which the plaintiffs took up the appeal on the file of the Civil Judge (Senior Division) No.1, Cachar, Si lchar being Title Appeal No. 38 of 1999. The learned appellate court took up the issue No.1 which was decided in 9. favour of the defendants by the learned trial court. The claim of the defendants relating to occupancy tenant under the plaintiffs rests on Ext. - C. Admittedly Ext. - C is a Rayati khatian No. 3 issued in the name of Mojoi Mian, predecess or of the defendant Nos.1 and 2 and Monohar Ali in respect of land under suit Dag, which, however, was cancelled as it reveals from the relevant records. Thou gh the RKG report does not indicate reasons for cancellation of the khatian, bu t the learned trial court failed to consider that the land as per Ext. C itself is (cid:28)Bhit (cid:29) land, meaning thereby that it is a homestead land and occupancy tena ncy right can only be acquired under the provisions of 1971 Act by an agricultu ral tenant, which is not the case in hand and hence, came to a finding that the tenants named in the Ext. C cannot acquire right of occupancy tenancy in respect of Bhit land and cancellation of Ext. C can only be seen in this perspective and in fact, it has been canceled. The defendants claim right of tenancy by wa y of inheritance from Muzaffar Ali through Mojoi Mian, father of the defendants and also from Monohar Ali, son of Abru Mian. The facts pleaded by the parties l eave no room of doubt that Monohar Ali filed Title Suit No. 44/53 and obtained d ecree, confirming his jote right, which is also clear from Ext. A. But the defe ndant No.1, Md. Rejak Ali admitted in cross-examination that he knows that M onohar Ali sold his land to Mojoi Mian and in turn Mojoi Mian sold it to plaint iff Nazme. Exts. 2 and 3 prove sale of jote right of Monohar Ali to Mojoi Mian a nd sale of jote right of Mojoi Mian to plaintiff (Monjurul Haque) and hence th ere cannot be any inheritance of jote right and defendants cannot acquire any ri ght of tenancy from Monohar Ali and decree obtained in T.S. No. 44/1953 has no r elevancy to their case, which has been admitted by defendants and the learned tr ial court committed an error in blending the story of Mojoi Mian with the story of Monohar Ali in holding that the plaintiffs by purchasing right of Monohar Ali vide Ext. 2 and 3 admitted that Mojoi Mian was a tenant and Mojoi Mian is not in any way connected with the sale of jote right by Monohar Ali save an d except Ext. C which was cancelled cannot be accepted as evidence of occupanc y tenant and no evidence was led to establish that Muzaffar Ali was a tenant in respect of suit land under the predecessor of the plaintiffs and thereby has held that the defendants are not occupancy tenants whereas DW 2 has admitted th at Mojoi Mian occupied the suit land in pursuance of ’Bondobast’ with the plain tiffs assuring to vacate the land on demand which clearly demonstrate that the d efendants are licensees and accordingly the issue No.1 has been answered in t he affirmative and in favour of the plaintiffs interfering with the findings of the learned trial court. 10. The learned appellate court having held that the defendants are licens ees under the plaintiffs have no right to occupy the land as un-evictable tenant , decreed the suit by setting aside the judgment and decree of the learned trial court holding the issue No. 5 in affirmative. Issue Nos. 2, 3 and 4 have been answered accordingly and in view of finding in issue No.6 the learned appellate court decreed the suit by setting aside the judgment and decree passed by the learned trial court and hence the regular second appeal before the court chall enging the legality and validity of the judgment and decree passed by the learne d appellate court. At the time of admission of the regular second appeal, the following sub 11. stantial questions of law have been formulated: - (i) Whether the occupancy tenancy once declared in a previous suit (T.S. No. 44/53) in respect of the suit land in favour of the defendants side and the sta tus so declared unless set aside in due course of law is whether binding upon th e parties in a subsequent suit where the dispute is again relating to the status of tenancy? Whether the Ext. C a tenancy khatian stood proof of the status of tenanc (ii) y and the relationship between the plaintiffs and the defendants? (iii) Whether the finding of the learned appellate court that the defendants a re licensees is not based on any legal evidence and as such the findings is per verse? (iv) The substantial question of law is whether surrender of tenancy in favou r of the plaintiffs without the approval of the Deputy Commissioner of the distr ict as provided under section 63 of the Assam (Temporarily Settled Areas) Tenanc y Act 1971 is valid? 12. Criticizing the judgment rendered by the first appellate court, Mr. Si ngh, learned Senior counsel for the appellant would contend that Ext. C stand s in the name of Mojoi Mian and Monohar Ali which was issued by the Settlem ent Officer on 06.11.1969 as per section 79 of 1971 Act which clearly demonstrat e that the predecessor of defendants were occupancy tenanants under the plaintif fs and they are un-evictable tenant. One co-khatian holder Monohar Ali filed a suit being Title Suit No. 44/1953 against the landlord wherein a decree has bee n obtained declaring his occupancy tenancy over the land under his possession an d there being no challenge of the decree passed in T.S. No. 44/53, the same has attained its finality; the said decree is binding upon the contesting parties and the same is not open to challenge in subsequent suit, hence the substantia l question of law formulated by the court require interference which the learn ed appellate court failed to consider. Mr. Singh would further contend that the predecessor-in-interest of the 13. defendants having laid the foundation that they are occupancy tenant under the p laintiffs which are heritable cannot be termed as licensees as has been held b y the learned lower appellate court and the surrender and/or relinquishment of right over the suit land without the approval of the Deputy Commissioner as per Section 63 of 1971 Act, which the appellate court failed to take into considera tion are the substantial question of law required to be interfered with being p erverse. Attacking the argument advanced by the counsel appearing for the appell 14. ants, Mr. B.C. Das, learned Senior counsel would contend that the finding in is sue No. 1 by the learned appellate court holding that Ext. C is (cid:28)Bhit (cid:29) land m eaning (cid:28)homeland (cid:29) and the question of occupancy tenant would not come since o ccupancy right can be acquired under the provisions of 1971 Act by an agricultu ral tenant, that too in respect of agricultural land, the tenants named in Ext. C cannot acquire right of occupancy tenant in respect of the suit land, more so, when Ext. C was cancelled by the competent authority and the defendants have demolished their own case when DW 2 admitted that Mojoi Mian occupied the sui t land in pursuance of ’Bondobast’ with the plaintiffs assuring to vacate the la nd on demand and as such the finding arrived at by the learned lower appellat e court that the defendants are licensees do not require to be interfered with being the findings of the first appellate court. 15.
Legal Reasoning
Mr. Das would further contend that only Monohar Ali filed T.S. No.44/195 3 which was decreed but DW 1 Rejak Ali has specifically stated in cross-examin ation that he knows that Monohar Ali sold his land to Mojoi Mian and Mojoi Mian sold his land to the plaintiff Nazme which has been proved by Ext. 2 and Ext. 3 and the defendants cannot acquire any right of tenancy from Monohar Ali and dec ree obtained in T.S. No.44/1953 has no relevancy to their case which is not a substantial question of law required to be disturbed the findings of the first a ppellate court. 16. in support of his case: - 1. y LRs & Others) Mr. Das, learned Senior counsel has relied upon the following decisions (2001) 4 SCC 262 (Kulwant Kaur & Others -vs- Gurdial Singh Mann (Dead) b 3. 2. (2006) 5 SCC 545 (Hero Vinot (Minor) -vs- Seshammal) (2002) 1 SCC 134 (Veerayee Ammal -vs- Seeni Ammal) 17. Considered the arguments advanced by the contesting parties. Perused the pleadings of the parties and the evidence on record, including the judgment ren dered by both the courts below. The plaintiffs set the suit on motion seeking a decree declaring their right, title and interest of the suit land and the defend ants as the licensees under them and a decree for ejecting the defendants and th eir men by demolishing their katcha house and for khas possession. The facts ple aded in the plaint is that the predecessor of interest of the defendants Mojoi Mian was permitted to raise a residential house on the Schedule land at his req uest as a licensee. Late Mojoi Mian promised that as and when he be asked t o vacate the land he would vacate the land peacefully and hand over the posse ssion of the suit land. In the meantime, Mojoi Mian died and the defendants hav e been residing in the house built over the suit land. The plaintiffs required t he suit land for their own use and requested the defendants to vacate the land. In failing to do so, a written notice was sent to hem asking to vacate the suit land, but they failed to vacate and hence, the plaintiffs filed the suit seeking the decree as indicated above. In order to prove that the defendants are licens ees, the plaintiffs should succeed on their own pleadings and the evidence but n ot on the weakness of the defendants. The evidence along with the pleadings of t he plaintiffs would disclose that the suit land is (cid:28)Bhit (cid:29) land and the answering defendants are in occupation of the suit land. PW 1 deposed that Mojoi Mian, fa ther of the defendants was licensed by them to occupy the suit land for some ti me by constructing house. The land was required for residential purpose. DW 3, A bdul Kuddus, nephew of defendant Rejak Ali deposed that the house of the defenda nts is situated within the suit land and he did not see the defendants growing c rops on the suit land. DW 2 has also deposed that the house of the defendants w as within the suit land. Further DW 2 also admitted that Mojoi Mian occupied the suit land in pursuance of ’Bondobast’ with the plaintiffs assuring to vacate th e land as soon as demand is made. The witnesses of the defendants support the c ase of the plaintiffs that they were licensees under the plaintiffs, wherefor t he decree by the learned trial court has been set aside by the first appellate court holding that the claim of occupancy tenant under the plaintiffs by the de fendants vide Ext. C does not hold good in view of cancellation of Rayati kha tian subsequently by the competent authority. In respect of the decree obtained by Monohar Ali in T.S. No. 44/1953 against the plaintiffs declaring his occupanc y tenancy over the suit land has no relevancy to the case of the defendants. Bec ause vide Ext. 2 and 3, it was proved that sale of jote right of Monohar Ali to Mojoi Mian and sale of jote right of Mojoi Mian to plaintiff (Manjurule Haque) clearly demonstrate that the defendants cannot acquire any right of tenancy from Monohar Ali and this fact has been misconstrued by the learned trial court in m aking the story of Mojoi Mian with the story of Monohar Ali which has been admit ted by DW 1 wherefor the decree of the learned trial court has been interfered with by the first appellate court which do not require to be interfered with a nd the substantial question of law in Sl. No. (i), (ii) and (iii) formulated on 23.07.2002 is answered accordingly. The substantial question of law formulated in Sl. No. (iv) is beyond the pleadings of the parties and hence has not been d ealt with. The decisions cited and reported in (2001) 4 SCC 262, (2002) 1 SCC 134 18. and (2006) 5 SCC 454 (supra) relate to substantial question of law wherein the A pex Court laid emphasis that the conditions mentioned in Section 100 of the Cod e of Civil Procedure must be strictly fulfilled before a second appeal can be ma intained and no court has power to add to or enlarge those grounds and the power of the High Court in dealing with generous application of provisions of sect ion 100 is deprecated. It has been held that, a finding if perverse, would come within the purview of substantial question of law and the High Court is empowere d to deal with such perversity. The decisions rendered by the Apex Court is well accepted principle and do not require to be deliberated in the context of the p resent second appeal. 19.
Decision
In the result, there is no merit in the appeal and the same is dismissed on contest. No costs. 20. Send down the lower court record.