Nos.1 to 13 a nd Ms. K Devi v. Nos.14 and 15

(ii) whether the suit for declaration of title, confirmation of possession and permanent injunction without seeking consequential relief make the same liable t o be governed by Article 58 of the Limitation Act as held by the first appellate Court? (cid:29)

4. To answer the substantial questions of law, the pleaded facts of the con testing parties and established by both oral and documentary evidence on the iss ues framed thereon during the trial is narrated hereunder in brief;- Plaintiff’s predecessor-in-interest, Brajamani Singha and Rajbabu Singha possessed 26 Bighas 2 Kathas 17 Lechas of land in Dag No. 210/216 in the year 1 954 after clearing the jungle and accordingly, the land was settled and annual p atta No.149 was granted in the name of Rajbabu Singha (since deceased) and Braja mani Singha. They were cultivating the land under their possession. The Governme nt of Assam granted patta in the name of Rajbabu Singha for 10 Bighas 1 Katha 2 Lechas of land which was converted to periodic patta and included in Dag Nos. 16 6/323 of periodic patta No. 150 (105). The remaining land was under their posses sion. The said Rajbabu Singha died in the year 1955-1956 and in the year 1956-19 57 Brajamani Singha died leaving the plaintiffs as successor. However, in 1963 P eriodic Patta No. 32 was obtained by Surajit Rajkumar (since deceased), the fath er of the proforma defendant Nos.16, 17 and 18 (since struck off) without having possession over the suit land and without knowledge of the plaintiffs. On knowi ng the facts of Periodic Patta being issued in favour of Surajit Rajkumar, the p laintiffs instituted a proceeding being Misc. case No. 36/63-64 before the Deput y Commissioner, Nagaon for cancellation of the aforesaid Periodic Patta issued i n favour of Surajit Rajkumar, whereof the Deputy Commissioner, Nagaon passed ord er on 23.09.1964 for cancellation of the Patta. However, the aforesaid Surajit Rajkumar sold out the said land to the principal defendant Nos. 4 and 5 in the t itle suit and left the place, though he did not have any right, title and intere st or possession over the suit land. Thereafter, the principal defendant Nos.4 a nd 5 got their name mutated in the patta on 06.05.1975 but they have had no poss ession over the suit land and plaintiffs are in continuous possession over the suit land for more than 20 years, but on 10.04.1982, the principal defendants t ried to forcibly dispossessed the plaintiffs and hence filed the suit being Titl e Suit No.66/93 for declaration of title, confirmation of possession and perman ent injunction and in case it is proved that the plaintiffs are not in possessio n, for passing a decree for khas possession.

5. The defendant Nos.1, 2, 3, 4 and 5 filed their written statement jointly denying all the averments made in the plaint and set up all the pleas that are available under Order 8 of the Code of Civil Procedure (’Code’ for short) conten ding inter alia that the suit land pertains to periodic patta No.32 of Pacchi m Amtola Kisamat of Hojai Mouza of Nagaon district and during 1968-69 settleme nt operation, the Government granted patta in the names of the pattadars Smti G ouri Devi, Tamasa Singh, Surajit Rajkumar and Radha Kishan Chouhan and according ly, they have possessed and are possessing adversely to the knowledge of all and have long, undisturbed, peaceful possession. On the last 30.10.1973, the land i n Dag No.304/362/393 was mutated in the name of Ramjanam and Duma Chouhan by ri ght of purchase in place of Surajit Rajkumar and since that time the said Ramja nam and Duma Chouhan came to be the possessors of the suit land. They have, h owever, put the defence that out of the 4 Bighas 2 Kathas 14 Lechas of land und er Dag No.296 (old) 304 (new) of Periodic Patta No.32 was purchased by Ramjanam Chouhan for Rs.4000/- vide registered sale deed No.7172 on 19.06.1969 and 9 Bi ghas 2 Kathas 14 Lechas of Dag No. 364 (Old) 362 (New) and 1 Bigha 3 Kathas 3 Le chas of land of Dag No. 394 (old) 393(new), totaling 15 Bighas 3 Kathas 11 Lecha s, a part of 4 Bighas 2 Kathas 5 Lechas of land under the right and possessio n of Surajit Rajkumar which has been under possession of Shri Ramjanam Chouhan and on the other hand, Shri Duma Chouhan purchased land measuring 1Bigha 2Kathas 15Lechas of Periodic Patta No.32 from Surajit Rajkumar on 15.09.1964 under a re gistered deed and since then he is possessing the land and the area of land and Dag claimed involved in Misc. Case No.36/63-64 brought by the plaintiffs before the learned Deputy Commissioner, Nagaon has no relation with the suit land and h ence prayed for dismissal of the case. During the pendency of the suit, the principal defendants Smti. Gauri De 6. vi, Tamasha Singh, Radha Krishan Chouhan and Duma Chouhan died and their success or-in-interest were duly impleaded and they contested the suit. On the pleaded f acts the following issues were framed by the learned trial court: - Is there any cause of action of the suit? Is the suit maintainable in the present form? (cid:28)1. 2. Whether suit is bad for non-joinder and mis-joinder of parties? Whether the suit is barred by limitation? Whether the plaintiffs have any right, title, interest and possession ov Whether the suit is properly valued for the purpose of jurisdiction and Whether the parties are entitled to any relief and if so what? (cid:29)

3. 4. 5. er the suit land? 6. court fee? 7.

7. The learned trial court took up issue No.5 at the first instance and ans wered the issue in negative holding that in Ext.2, the certified copy of Jamaban di of the suit patta, the names of the plaintiffs are not mutated but the names of Smti. Gauri Devi, the predecessor-in-interest of the principal defendant No.1 (Ka), Tamsa Singh, predecessor-in-interest of the principal defendant No. 2’ka’ to 2 ’ga’, Radha Kishan Chauhan, predecessor-in-interest of principal defendant Nos.3 ’ka’ and 3 ’kha’ and Surajit Rajkumar from whom Ramjanam Chouhan and Duma Chouhan, predecessor-in-interest of principal defendants purchased the suit l and and patta were mutated on 30.06.1967 which would clearly demonstrate that they were in possession of the suit land prior to 30.06.1967 and Duma Chouha n purchased 1Bigha 2Kathas 15Lechas of land from Surajit Rajkumar on 15.09.1964 vide sale deed No. 5289 and Ext ’Ga’ relates to registered sale deed No.7172 w hereby Ramjanam Chouhan purchased 4 Bighas 2 Kathas 5 Lechas of land from Suraj it Rajkumar and Ext-1 and Ext ’Ka’ are certified copy of jamabandi of the suit patta which would show that their names were mutated on 30.10.1973 by right of purchase, whereas the plaintiff No. 2 claimed his right and title over the s uit land on the basis of annual patta vide Ext 3 issued in favour of his brother in the year 1954, which, however was not renewed during the settlement operati on of 1968-69 though Ext 5, the certified copy of the order passed in Misc. Case No. 36/63-64 dated 23.09.1964 for cancellation of the patta, but no follow up a ction was taken and the patta issued in favour of the defendants remained valid and operative and the defendants still remained as patta holders in respect of the suit land and they are in possession of the suit land thereby answered the issue as aforesaid. Thereafter, the learned trial court took up the issue No.4 and answered 8. the issue in affirmative holding that patta was issued in favour of the predeces sor-in-interest of the defendants before 30.06.1967 and their names were also mu tated before 30.06.1967. So, cause of action arose, if any, therefore, on or bef ore 30.06.1967, whereas the plaintiffs had filed the suit on 09.07.1982 which is beyond the prescribed period of limitation and accordingly, decided the issue a s indicated above.

9. The learned trial court decided the issue No.6 in the affirmative and al l other issues were decided in negative, thereby dismissed the suit of the plain tiff. On appeal by the plaintiffs before the appellate court, the appellate co

10. urt took up the following points for determination of the case: - (cid:28)1. Whether the suit is barred by the provisions of law of limitation?

2. Whether the plaintiffs have got right, title, interest and possession ov er the suit land and whether the learned court below has rightly dismissed the s uit holding that plaintiffs have got no right, title, interest and possession ov er the suit land? (cid:29) The appellate court while considering the point of limitation has elabo 11. rately discussed the pleaded facts of the parties, including both oral and documentary evidence, whereby the plaintiffs sought for a decree for declaration of right, title and interest over the suit land measuring an area of 15 Bigha s 3 Kathas 11 Lechas covered by Dag Nos. 304, 362 and 393 of PP No. 32 standing in the name of the defendants on the strength of prolonged possession from the year 1956-57 and for confirmation of possession as well as permanent injunction without seeking consequential relief since they have been possessing the land t ill filing of the suit and they have not been dispossessed by the defendants. In a suit of such a declaratory relief, Article 58 of the Limitation Act would b e applicable which enjoins that to obtain any other decree the period of limitat ion is three (3) years and the period of limitation starts when the right to sue first accrues. The appellate court has further discussed that on the admissio n of the plaintiffs, the periodic patta was granted in favour of the defendan t Nos. 1, 2, and 3 and Surajit Rajkumar, the predecessor-in-interest of the pro -forma defendant Nos.16, 17 and 18 in the year 1963 whereof a Misc. case No. 3 6/63-64 was filed for cancellation of patta and the Deputy Commissioner Nagaon on 23.09.1964 submitted his report vide Ext 5 holding that the patta is liab le to be cancelled but thereafter no follow up action was taken to that effect and there was no evidence to show that the defendants had made any attempt to dispossess the plaintiffs from the suit land on 10.04.1982 and therefore, it is clear that the plaintiffs had knowledge of issuance of periodic patta in fa vour of the defendants and consequently their mutation on the suit land on or before30.06.1967, thereby holding that the suit is barred by limitation affirmin g the issue No.4 as held by the learned trial court.

12. The appellate court thereafter took up the next point relating to plaint iffs right, title, interest and possession over the suit land. It is an admitted fact as averred by the plaintiffs that the suit land is a part of the land poss essed by Rajkumar Singh and Rajbabu Singh measuring an area about 26 Bighas 3 Ka thas 17 Lechas by clearing the jungle and on the death of Rajbabu Singha in the year 1955-56 and Brajamoni Singha in the year 1956-57, the plaintiffs have been continuing possession over the suit land. On the contrary, the answering defenda nts have asserted their claim over the suit land as possessor as well as Periodi c Patta holder since long. The suit land covered by Dag No.304, 362 and 393, Per iodic Patta No.32 was mutated in the names of the defendants since long. On the other hand, the order passed by the Deputy Commissioner, Nagaon vide Ext.5 on th e report submitted on enquiry would show that the Deputy Commissioner failed to come to a clear finding that the plot of land possessed by the plaintiffs is the same land for which periodic patta was issued in the name of the defendant s. The periodic patta of the suit land stands in the name of the defendants sinc e 1968-69 and still continuing in their names and the plaintiffs have failed to prove their possession over the suit land, hence affirmed the issue No.5 as held by the learned trial court holding that the plaintiffs have got no right, title , interest and possession over the suit land, thus the instant appeal in the for m of regular second appeal.

13. At the outset the court asked the counsel appearing for the appellants t o advance the arguments only on the substantial questions of law as formulated a t the time of admission of the appeal. Mr. Borpujari, the learned counsel appear ing for the appellants would contend that the issuance of patta and grant of mut ation did not bestow any title over the land, more so, when there is recommendat ion for cancellation of patta, which require interference in exercise of power u nder Section 100 of the Code, inasmuch as, such findings by both the courts belo w are perverse findings. Mr. Borpujari would further contend that the relief sought for a decree 14. of title, confirmation of possession and permanent injunction without seeking co nsequential relief would not come within the purview of Article 58 of the Limita tion Act, more so, when the cause of action for the suit arose on 23.09.1964 and 10.04.1982 whereof the defendants have tried to forcefully dispossess the plain tiffs from the suit land as held by the first appellate court. In support of his contentions, the learned counsel has relied upon the f 1991 (2) GLR 153

15. ollowing decisions;- 1. Nawab Burul Islam & Others -vs- Khagaru Sheikh & Others, 2. Guru Amarjit Singh -vs- Rattan Chand and Others, 3. Prem Singh and Others -vs- Birbal and Others. (2006) 5 SCC 353 AIR 1994 SC 227 Criticizing the argument advanced by the learned counsel appearing for t 16. he appellants, Mr. Yadav, learned counsel appearing for the respondents would co ntend that the ambit and scope under Section 100 of the Code makes it abundantly clear that an appeal shall lie to the High Court from every decree passed in ap peal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. A reading of the judgments rendered by both the courts below and the averments made in the plaint would de monstrate that the substantial questions of law formulated in the instant appeal are not the substantial questions of law and the concurrent findings arrived at by both the courts below do not require to be interfered with under the guise o f Section 100 of the Code. In support of his contention, Mr. Yadav has relied upon the following de

17. cisions;- 1. Paramesh Sarma & Others -vs- Islam Ali & Others, 2000 (3) GLT 453

2. (1998) 4 SCC 539 Punjab Urban Planning & Development Authority -vs- Shiv Saraswati Iron & Steel R e-Rolling Mills. 18. Considered the arguments advanced by the parties. Perused the pleadings along with both oral and documentary evidence adduced by the parties, including the judgments rendered by both the courts below as well as the decisions relied upon by the parties. The pleaded facts established in the case and the substanti al questions of law formulated in the appeal are narrowed down as follows: - The predecessor-in-interest of the plaintiffs came to possess the land measuring 26 Bighas 2 kathas 17 Lechas of Dag No. 210/216 in the year 1954 whereof an Ann ual Patta being No.149 was granted in the name of Rajbabu Singha and Brajamani S ingha. The said land was under their possession and they cultivated the land. La ter on, the annual patta was converted into a periodic patta in respect of 10 Bi ghas 1 Katha 2 Lechas of land. But the remaining land remained in their possessi on. Both Rajbabu Singha and Brajamoni Singha died in the year 1955-56 and 1956-5 7 respectively and the plaintiffs being the heirs of Brajamoni and Rajbabu succe eded to the properties. But in the year 1963, periodic patta was obtained in res pect of the suit land by one Surajit Rajkumar, the father of the proforma defend ant Nos.16, 17 and 18, without having possession over the suit land, wherefor Mi sc. Case No. 36/63-64 was initiated in the court of Deputy Commissioner, Nagaon for cancellation of periodic patta granted in favour of the defendants. The Depu ty Commissioner, Nagaon, on enquiry, passed orders on 23.09.1964 for cancellatio n of the aforesaid patta. In the meantime, Surajit Rajkumar, the father of the p roforma defendants Nos.16, 17 and 18 sold out the land to the principal defendan t Nos. 4 and 5 in the title suit and the principal defendant Nos.4 and 5 got the ir names mutated in the said patta on 06.05.1975 and thereafter, the principal d efendants tried to forcibly dispossess the plaintiffs on 10.04.1982 and hence th e suit seeking for a declaration of title, confirmation of possession and of per manent injunction.

19. The defendants went for trial and in the evidence as well as the documen ts proved vide Ext 2, the jamabandi copy of suit patta No.32 would show that the y were in possession of the suit land prior to 30.06.1967. By Ext ’Kha’, the reg istered sale deed No. 5289, Duma Chouhan purchased the land measuring 1 Bigha 2 Kathas 15 Lechas from Surajit Rajkumar on 15.09.64. Ext ’Ga’ another registered Sale Deed No.7172 whereby land measuring 4 Bighas 2 Kathas 15 Lechas was purchas ed by Ramjanam Chouhan from Surajit Rajkumar. Ext I and Ext ’Ka’, certified copi es of jamabandi would show that the names of successor-in-interest of Duma Chouh an and Ramjanam Chouhan were mutated on 30.10.1973. Though, initially, the plain tiffs filed Misc. Case No. 36/63-64 before the Deputy Commissioner and the Deput y Commissioner, Nagaon, recommended for cancellation of patta on 23.09.1964 but the plaintiffs have failed to take up the follow up action and the periodic patt a remained in favour of the principal defendants. The periodic patta was issued through settlement order and the land revenue (vide Ext. ’Gha’) is paid by the p ersons are bound to get title over the land. Therefore, this Court has no hesita tion to hold that the defendants are entitled to get the title over the suit lan d and the first substantial question of law formulated is answered in the affirm ative.

20. The second substantial question of law as formulated relates as to wheth er without seeking consequential relief, a suit can be brought for declaration of title, confirmation of possession and permanent injunction and whether the suit is governed by Article 58 of the Limitation Act. In the instant case, the plaintiffs have asserted that they have been in continuous possession over the s uit land though periodic patta had been granted in favour of Surajit Rajkumar w ho had sold out the land to Duma Chouhan and Rajmohan Chouhan and the cause of a ction for filing suit for declaration that the plaintiffs have the title over t he land arose for the first time when the property was sold and limitation woul d commence from the date of sale. The land over which confirmation of possession has been sought for against periodic patta granted in favour of the predecess or-in-interest of the principal defendants and subsequent sale in the year 1963 and 1964 respectively and the declaratory suit shall began to run when the cause to sue for the property first accrues to the person who claims the title. There fore, there is no infirmity in holding that the suit is barred under Article 58 of the Limitation Act and accordingly, answered in affirmative. Now let us go through the decisions cited by the learned counsel appeari

21. ng for the parties. Regarding the decisions cited by the appellant;- In Nawab Burul Islam (Supra), the court has dealt with position of successors in respect of annual patta land held by the deceased vis-à-vis third parties or en croachers. After elaborate discussion, the court has held that an annual patta, until it is cancelled or notice of non-renewal is given to the patta holder by t he concerned authorities, confers good title upon the person whom the patta is i ssued. There is no ambiguity over the above proposition of law. But Ext 5, where by the Deputy Commissioner, Nagaon submitted its report would disclose that afte r making an enquiry failed to come to a clear finding that the plot of land pos sessed by the present plaintiffs is the same land for which periodic patta was issued in the names of the present defendants. Therefore, the decision cited i s of no help to the appellants. The case of Guru Amarjit Singh (Supra) relates to entries in jamabandi. It was h eld that the entries in jamabandi are not proof of title until it is proved by d ocumentary evidence. The plaintiffs in the instant case, have failed to prove an d establish their title over the suit land both by oral and documentary eviden ce and the plaintiffs would succeed on their own case and not on the weakness o f the defendants and hence the case is not applicable. The case of Prem Singh and others (Supra) relates to power and ambit of Section 31 of the Specific Relief Act. While dealing with the case relating to cancella tion of registered document, the Apex Court has held that limitation bars a reme dy but does not extinguish a right as provided under Section 27 of the Limitati on Act which has no relevance to the present case and is thus not applicable. Regarding the decisions cited by the respondents;- The decision in Paramesh Sarmah (Supra) relates to record of rights wherein the court has held that the entries in the record of rights, i.e. jamabandi are issu ed on the basis of actual possession and raises a presumption regarding possessi on in favour of the recorded pattadar unless rebutted. In the instant case, Ext 2 jamabandi of suit patta No.32 reflects that the defendants are in possession o f the suit land which the plaintiff No.1 has admitted in the evidence and the p resumption of possession goes in favour of the defendants. Thus, the decision i s squarely applicable in the instant case. The case of Punjab Urban Planning (Supra) relates to suit for specific performan ce of contract wherein the Apex Court has held that the plaintiff instead of pr oving his own case fully, cannot take advantage of weakness in the defendants’ c ase which is also applicable in the instant case, more so, when the plaintiffs h ave admitted issuance of patta in favour of the defendants and the said questio n of issuance of periodic patta cannot be questioned without specific challenge in appropriate proceeding which is absent in the instant case and as such the p laintiffs are not entitled to get any relief in the facts and circumstances of the case.

23. In the result, the Court has no hesitation to hold that the appeal is de void of any merit and the same is dismissed. The parties are left to bear their own costs.

24. Send down the lower court records.