Judgment · High Court · 2012

This regular second appeal under section 100 of the Code of Civil Procedure (Cod e, for short) is preferred by the original defendants/ appellants herein against the judgment dated 14.06.2007 and decree dated 15.07.2007 passed by the learne d District Judge, Lakhimpur, North Lakhimpur in Title Appeal No. 9/2006 whereby and whereunder the learned appellate court set aside the judgment and decree pas sed by the learned trial court thereby decreeing the suit holding that the plai ntiffs and defendants have right, title and interest jointly over the suit dags along with joint symbolic possession with the defendants.

#2. rd Mr. TJ Mahanta, learned counsel appearing for the respondents. Heard Mr. D. Das, learned counsel appearing for the appellants. Also hea

#3. The plaintiffs claimed to be the daughters of Late Budu Das who had shar e in the suit land. Originally, the schedule ’ka’ of the plaint belonged to Bapu ram Koibarta, the grandfather of the plaintiffs. The said grandfather Bapuram Ko ibarta on his death left behind four sons namely, (i) Indreswar Das, (ii) Budu D as, (iii) Khagen Das and (iv) Nilo Das. The father of the plaintiffs Budu Das predeceased his father Bapuram Koi barta. During the lifetime of the father of the plaintiff, he was cultivating th e land fallen in his share and on his death, the grandfather Bapuram was possess ing the land which had fallen in the share of Budu Das. On the death of their gr andfather Bapuram Koibarta, the plaintiffs being the married women, cultivated o ver the land by engaging labourers being joint possession of (cid:28)Ka (cid:29) schedule land but in the year 2003 ’Chali’ paddy, which was grown by the plaintiffs was forcib ly taken away by the defendant Nos.1 to 6 entering into the land fallen in their share in the suit land which arose the cause of action in the suit. Therefore, the plaintiffs filed the suit in the court of Civil Judge, Lakhimpur, North Lakh impur, being Title Suit No. 21/2004 against the defendants praying for declarati on of right, title and interest over 1/4th share in the suit land described in t he schedule of the plaint alongwith a further prayer for recovery of khas posses sion and permanent injunction. 4. The defendant Nos.1 to 6 contested the case by filing written statement jointly denying the allegations leveled against them. In the written statement f iled by the defendant Nos. 1 to 6 jointly, it was contended that the father of t he plaintiffs predeceased his father Bapuram and there was no partition of the s uit land amongst the heirs of Bapuram and they lived together in the same roof a nd that the plaintiffs had never cultivated in any part of the suit land. The na me of the father of the plaintiffs was not mutated in the suit land as co-pattad ar since 1993 to February, 1995. However, after the death of Budu, (father of th e plaintiffs), the grandfather Bapuram had partitioned the suit land amongst his sons who were living jointly at that time. The plaintiffs with ulterior motive had corrected the Chitha mutation on 08.10.2003 in respect of the suit land agai nst which the defendants had preferred a Revenue Appeal being Nos. 20, 23, 24, 2 5 and 26 of 2003 under Section 147 of the Assam Land and Revenue Regulation, 188 6 (Regulation, for short), which are still pending for disposal before the learn ed Deputy Commissioner, Lakhimpur, North Lakhimpur. They have further contended that on the death of Bapuram, they along with proforma defendants were possessin g the suit land as per amicable settlement amongst themselves and about 2 Bighas 2 Kathas 10 lechas of land was sold out to proforma defendant No. 14 by the def endants, who were co-sharers and plaintiffs were married off during such joint o wnership and possession of the land of their family, so the plaintiffs had never possessed any part of the suit land at any time nor cultivated the ’Chali’ padd y as alleged in the plaint and hence, prayed for dismissing the suit.

#5. The proforma defendant No. 7 Sri Nilo Das, son of Late Bapuram Das has a lso filed his written statement separately, supporting the case of the plaintiff s by contending that on the death of Budu, the plaintiffs as legal heirs had own ed and possessed the suit land and ’Chali’ paddy was cultivated by the plaintiff s in the land fallen in their share, but the defendants had forcibly lift away t he paddy therefrom and thus dispossessed the plaintiffs. Hence, prayed for decre eing the suit of the plaintiffs declaring their shares in the suit land. On the pleadings of the parties, the learned trial court framed the foll

#6. owing issues: i) ii) iii) the suit patta and dags and require partition? iv) Whether the plaintiffs are entitled to the relief as prayed for? v) To what relief/reliefs the parties are entitled to? Whether there is any cause of action for the suit? Whether the suit is maintainable in its present form? Whether the plaintiffs and defendants are co-sharers in

#7. During trial, the plaintiffs have examined 5 witnesses and exhibited doc uments relating to Jamabandi, Chitha, Khajana receipts and trace maps, whereas t he defendants have also examined 4 witnesses and had brought the records of Reve nue Appeal Nos. 23/2003, 24/2003 and 25/2003 and exhibited the same as Ext. Ka, Kha and Ga. The learned trial court decided the Issue Nos. 1 and 3 in the affirm ative holding that both the plaintiffs and defendants are co-sharer in the suit dags but declined to declare right, title and interest of the plaintiffs’ share in the property and khas possession for want of partition amongst the co-sharers of suit, patta and dag, thereby, answered Issue Nos. 4 and 5 in negative and su bsequently, thereupon Issue No.2 is answered in the negative and dismissed the s uit.

#8. Being aggrieved, the plaintiffs preferred the First Appeal as indicated hereinabove. The appellate court reversed the judgment and decree of the trial c ourt holding that both the plaintiffs and defendants are joint owners of the sui t land, thereby, decreed the suit declaring the right, title and interest of the plaintiffs and the defendants jointly over the suit dags alongwith joint symbol ic possession with the defendants.

#9. The defendants being aggrieved with the judgment and decree passed by th e learned First Appellate Court has preferred this Regular Second Appeal being R SA No. 8/2008 questioning the legality and validity of the judgment and decree o f the First Appellate Court.

#10. al questions of law: This court while admitting the appeal formulated the following substanti 1) Whether the right and title over the annual patta land can be decided on the basis of notion of inheritance in favour of respondents/plaintiffs without having actual continuous physical possession over the land in dispute by ignorin g the provisions of Rule 1(2)(c) of the Assam Land and Revenue Regulations, 1886 ? 2) Whether notion of symbolic possession is applicable in the Dayabhaga Sch ool of Hindu Law in deciding right and title without having actual continuous ph ysical possession over the land in dispute? 3) Whether the claim of right, title and possession over a land can be ente rtained when the plaintiffs are ignorant of the schedule and boundary of the cla imed land and incapable of describing the same? Whether the learned lower appellate court can construe the notion of sym 4) bolic possession by ignoring provisions of section 154 of Assam Land and Revenue Regulation, 1886 which exempt certain matters from the cognizance of civil cour t?

#11. Mr. Das, learned counsel for the appellants at the very outset of the a rgument has submitted that the substantial questions of law formulated as point No. 1 has been wrongly quoted as Rule 1(2)(c) of the Assam Land and Revenue Reg ulations which may be read as Rule 1(2)(c) of the Settlement Rules under the Ass am Land and Revenue Regulations and strenuously contended that the right, title and interest over annual patta confers no right of inheritance beyond the year f or which the patta was issued vis-à-vis it confers no right of transfer and as s uch, the findings of learned lower appellate court decreeing the suit of the pla intiffs declaring the right, title and interest over the land jointly over the s uit dags along with symbolic possession with the defendants thereupon requires i nterference being the substantial questions of law.

#12. The learned counsel would further contend that the learned appellate cou rt having disbelieved the possession of land by the plaintiffs cannot declare sy mbolic possession of the suit land with the defendants which is unknown under Dayabhaga law, moreso, when the plaintiffs have failed to prove the schedule and boundary of the suit land and the claim of the plaintiffs are barred under se ction 154 of the Assam Land and Revenue Regulation, 1886 which requires interfer ence under section 100 of the Code.

#13. Criticizing the arguments advanced by the learned counsel of the appella nt, Mr Mahanta, learned counsel appearing for the respondents/plaintiffs would c ontend that the substantial questions of law formulated at the time of admission of appeal are not the substantial questions of law as it would reveal from the pleadings of the parties and the evidence laid thereto more particularly, the ev idence of PW 2 Sri Nilo Das, PW 3 Sri K. Das, PW 4 S. Das and DW 1 Sri Khagen D as who had deposed that the suit land was the ancestral property of Bapuram Koi barta, grandfather of the plaintiffs and father of the defendants who predeceas ed the grandfather is one of the sharer who has inherited the property being one of the son of Bapuram which finds support from both the findings of the learne d court’s below and thus the same do not require to be interfered with in exerc ise of power under section 100 of the Code.

#14. Heard the learned counsel for the parties at length. Perused the pleadin gs of the parties along with the evidence on record both oral and documentary. A dmittedly, the land belongs to Late Bapuram Koibarta, who had four sons, namely, (1) Sri Indreswar Das, (2) Sri Budu Das, (3) Sri Khagen Das and (4) Sri Nilo D as and they lived together in a joint mess. The father of the plaintiffs Late Budu Das predeceased Bapuram, the grandfather of the plaintiffs. It has been sp ecifically pleaded that after the death of Bapuram, the land was amicably settle d but the defendants declined to give the share of Budu Das to the plaintiffs si nce they were married. Now the question remains to be answered as to whether the defendants can deprive the plaintiffs of their shares being the daughters of Bu du Das. The answer lies under the Hindu Succession Act, 1956. Admittedly, Budu D as , the father of the plaintiffs died intestate and the property devolves upon the heirs specified in Class-I of the schedule. Being the daughters of Budu Das, the plaintiffs are entitled to get their shares and this Court do not find any perversity in decreeing the suit of the plaintiffs, thereby, declaring the right , title and interest of the plaintiffs over the suit land with the defendants jo intly along with symbolic possession thereupon with the defendants as held by th e first appellate court.

#15. Now it is required to be seen as to whether the law formulated at the ad mission of appeal is a substantial question of law or not. The question relates to annual patta land and inheritance. The learned counsel appearing for the appe llants has not brought on record that the annual patta is cancelled or noticed f or its non-renewal was given to patta holder and therefore the holder of annual patta has got the title. The right of original annual patta holder is transferab le to his heirs and successors during the subsistence of annual patta. In the in stant case, Bapuram Das was the original land holder of the suit land and on his death it devolves upon the heirs of Bapuram Das. The said Bapuram Das left behi nd Indreswar Das, Nilo Das, Budu Das and Khagen Das. It has been brought on reco rd that the suit land was amicably settled and therefore, the plaintiffs who are the daughters of late Budu Das are entitled to succeed the properties left by B udu Das. Therefore, it can be conclusively and logically held that the plaintiff s have right, title and interest over the suit land jointly with the defendants including symbolic possession thereon with the defendants as held by the learned lower appellate court. The other questions formulated do not come within the pu rview of Section 100 of the Code.

#16. In view of the foregoing discussions and decisions arrived at, this Cour t hold that there is no merit in the instant Regular Second Appeal and is accord ingly dismissed. The judgment and decree passed by the learned lower appellate c ourt is affirmed. No costs.

#17. Send down the lower court records.