High Court · 2015

2. The case of the plaintiff is that he had purchased land measuring 2 Bigh a 3 Katha 13 Lessa covered by Dag No. 437 of Khatian No. 348 and land measuring 3 Bigha 1 Katha 14 Lessa covered by Dag No. 476 of Khatian No. 333 in an auct ion sale vide order dated 31.12.1970 issued by the Additional Deputy Commissione r, Goalpara, Dhubri and that, finally, he was put in possession of the purchased land by the Nazir on 20.1.1990. His name was accordingly mutated in the land r ecords. Pro-forma defendant Nos. 6 and 7, who are relatives of the plaintiff, we re allowed to stay in two houses in schedule-A land. The predecessor-in- interes t of the defendants, Altaf Hussain had been suffering from T.B. and he requested the plaintiff in the month of January, 1990 to allow him to stay in one house o f the ’A’ suit land and on compassionate ground, plaintiff allowed him to occup y one house for his treatment at Mancachar. He was subsequently asked to vacate the house on 12.5.1990. However, instead of vacating the house, he filed a title suit being T.S. No. 25/1990 in the Court of Munsiff , Dhubri, claiming that he was a tenant under one Abdul Gani in respect of land measuring 2 Bigha 3 Katha 1 3 Lessa covered by Dag No. 437 of Khatian No. 348. Altaff Hussain died during pe ndency of the suit and there being no substitution, the suit was dismissed on 19 .1.1991. On 28.6.90, the defendant had also constructed a thatched house. Accord ingly, plaintiff prayed for declaration of right, title and interest in respect of ’A’ schedule land and recovery of khas possession in respect of ’B’ Schedule , permanent injunction etc. The defendant filed written statement taking various legal pleas like no 3. n-joinder of necessary parties, suit being not maintainable in law, etc. A stand was taken denying permissive occupation, as contended by the plaintiff. It is f urther stated that the suit land was homestead of one Nur Hussain, who alongwith his three sons and his deceased brother’s three sons had been residing in the s uit land, and after their death, the defendants, pro forma defendants and many o thers had been possessing the suit land. It is also pleaded that their landlord Abdul Gani migrated to Pakistan. In the written statement of pro forma defendant Nos. 1 and 2, stand was 4. taken that the plaintiff, though an auction purchaser, had never got actual poss ession of the suit land.

5. On the basis of the pleadings, the learned trial Court framed the follow ing issues: (cid:28)1. 2. Whether there is any cause of action for the plaintiff’s suit? Whether the suit is undervalued and no proper court fees paid as alleged by defendants? Whether the suit is bad for non-joinder and mis-joinder of necessary par Whether the plaintiff had acquired right, title, interest and possession over the suit land described in the schedule of the plaint and later dispossess ed by the defendants? 5. 6. Whether the suit land is not identifiable and specific? (cid:29) Whether the plaintiff is entitled to get the decree as prayed for? (cid:29)

6. During trial the plaintiff examined two witnesses whereas defendant exam

3. ties? 4. ined four witnesses. A number of documents were exhibited by both the parties.

7. On the basis of Ext.1 and Ext. 3, the learned trial court held that plai ntiff has right, title and interest and recorded another finding that the defend ant failed to prove rayati status of their predecessor. At the same time, a conc lusion was also arrived at by the learned trial court that the plaintiff failed to prove his plea of allowing the predecessor of the defendants to occupy the su it land as permissive occupier.

8. Accordingly, while declaring the right, title and interest of the plaint iff, the prayer for khas possession was declined by the learned trial court. Aga inst the aforesaid judgment and decree, two appeals were preferred- Title Appeal No. 18/1999 by the plaintiff and Title Appeal No. 25/1999 by the defendants in the Court of Civil Judge, Senior Division, Dhubri.

9. By a common judgment dated 8.9.2004, the learned lower Appellate Court d ismissed T.A. No. 18/1999 and partly allowed T.A. No. 25/1999 thereby, setting a side the decree in respect of title of the plaintiff over the suit land, as pass ed by the learned trial Court. The result of the judgment of the learned lower Appellate Court is that 10. the plaintiff does not have any right over the suit land and therefore, necessar ily, there is no question of eviction of the defendants from the suit land.

11. y this court, on the following substantial questions of law:- This appeal was admitted to be heard, vide order dated 2.2.2005 passed b Whether both the learned trial Court and lower appellate court misconstr (cid:28)1. uing the provision regarding acquisition of tenancy right on a land belonging to the estate acquired as a land belonging to the Zamindars under permanent settle ment under the present provision of Assam Land Holding (Adoption of Relationship under the Assam Land and Revenue Regulation on 1886 in the acquired permanently settled and Estate) Act, 1974? Whether Article 64 of the Limitation Act is applicable in the instant su

2. it? 3. Whether the appellate Judgment is vitiated for violation of the provisio n of order 41 Rule 31 of the Code of Civil Procedure 1908 in not framing points for determination of the appeal? 4. Whether the learned lower appellate court misconstrued the exhibit 1 and 3 which are public documents and whether his finding that these documents are not proved under Section 67 of the Evidence Act is correct.? (cid:29)

12. Mr. P.S. Deka, learned counsel appearing for the appellant has submitted that he will not urge the substantial question of law No. 1. According to him, there is total perversity in the appreciation of the evidence of the learned low er Appellate Court inasmuch as Ext 1 and 3, sale certificate and possession cert ificate, respectively, were discarded and ignored from consideration treating th e same to be photocopies and thus, not admissible in evidence, totally overlooki ng the fact that the said documents were proved in original, as demonstrated by the evidence on record. On this ground alone, according to him, the case is requ ired to be remanded back to the learned lower Appellate Court for fresh consider ation, by setting aside the impugned appellate judgment. That apart, the learned lower Appellate Court had also erroneously held that the suit is barred by limi tation as according to the learned lower Appellate Court, the suit ought to have been filed within 12 years of confirmation of sale on 5.7.71. According to him, the date is also not correct as the date of confirmation is not 5.7.71 but 1.7. 77. He submits that confirmation of sale is of no material consequence and the l earned Appellate Court ignored to take into account the fact that the plaintiff was delivered possession only on 6.1.90 because Ext.3 was held to be not an ad missible document. Therefore, the learned counsel prays for remanding the matter back to the learned lower Appellate Court for fresh disposal on perusal of evid ence on record. Mr. Banerjee, learned Senior Counsel appearing for the respondents, whil 13. e not disputing that Ext.1 and Ext. 3 were proved in original, argues that the p laintiff failed to prove that he had allowed the predecessor of the defendants t o occupy suit land by way of permissive occupation. He has submitted that the pl aintiff was never in possession of the suit land and that was recorded by the le arned trial court also. In that view of the matter, even if right, title and int erest is declared in favour of the plaintiff, he is not entitled to khas possess ion and as such, no interference is called for with regard to the impugned judgm ent and decree, he submits.

14. ing for the parties and have perused the materials on record. I have considered the submissions advanced by the learned counsel appear Learned trial court held, as noticed earlier, that the plaintiff failed 15. to prove that predecessor of defendants were allowed to reside in the suit land as permissive occupier. At the same time, defendant’s claim of rayati status was also held to be not proved, begging the question regarding the status of the de fendants in the suit land. If the defendants are in possession, both the finding s cannot go together having regard to the pleas taken by the parties.

16. The learned lower Appellate Court, at first, examined the question of ri ght, title and interest of the plaintiff and it concluded that on the basis of E xt.1 and Ext.3, the trial Court could not have held that the plaintiff acquired title over the suit land. As rightly contended by Mr. Deka, learned counsel for the appellant, the learned lower Appellate Court wrongly proceeded to assume tha t only photocopies had been exhibited in the evidence. Mr. Banerjee has also not disputed the aforesaid portion. There are endorsements in the evidence on recor d that the photocopies were proved in original. Therefore, the very basis on wh ich the decision of the learned trial court with regard to the finding of the ri ght, title and interest of the plaintiff was set aside, is not sustainable in la w. Case of the plaintiff being that he was dispossessed after he was put in pos session in the year 1990 vide Ext.3, the reasoning of the learned lower Appellat e Court that suit was barred by limitation, the same having not been filed withi n a period of 12 years from the date of confirmation of the auction sale, is not sustainable.

17. In view of the aforesaid glaring infirmities in the judgment of the lowe r Appellate Court, I am of the considered opinion that this case deserves to be remanded back to learned lower Appellate Court for fresh decision in accordance with law. This court is not oblivious of the fact that two appeals were filed be fore the learned lower Appellate Court. However, the result emanating from them is one and the same. Even though there are some observations of the learned lowe r Appellate Court regarding the possession of the plaintiff, it is noticed that the entire evidence on record was not discussed and it only referred to the evid ence of PW 2. As the appeal is being remanded, it is not considered appropriate to analyse the evidence on record in this regard. As the appeal is decided to be remanded back to the learned lower Appellate Court on consideration of substant ial question of law Nos. 2 and 4, answered in favour of the appellant, it is not considered necessary to deal with the substantial question of law No.3. In the result, the impugned judgment of the learned lower Appellate Cour 18. t is set aside and the matter is remanded to the learned lower Appellate Court f or fresh disposal. The learned lower Appellate Court will consider the entire ev idence on record and dispose of the appeal in accordance with law. Learned lowe r Appellate Court is requested to dispose of the appeal within a period of six m onths from the date of receipt of the records of this case.

19. It is made clear that no conclusive finding is recorded by this Court wi th regard to right, title and interest or with regard to possession. It is only held by this Court that Ext.1 and Ext. 3 need to be considered as admissible doc uments on record. No opinion is expressed on their probative value.

21. The appeal is allowed as indicated above. No costs. Registry will send down the records to the learned lower Appellate Court forthwith.