No. 1 v. Nos. 4 to 7 by se tting aside the judgment and decree

2. The predecessor-in-interest of the present appellant No. 1, the appellant Nos. 7(a) to 7(d), 9(a) to 9(c), 10(a) and 10(b), 11(a) and 11(b), 12( a) to 12(d), 13 and the appellant Nos. 2 to 6 have filed Title Suit No. 199/1984 in the Court of the learned Munsiff, Karimganj, which in due course of time was transferred to the court of the learned Munsiff, No. 3 at Karimganj, praying fo r declaration of their right as tenant as well as land holders, apart from decla ration that the defendant Nos. 1 and 2 have no title and possession over the sui t land and no right to sell the suit land as Patharkhandi market and also that t he defendant No. 2 has not acquired the tenancy right and as such cannot confer any title on the defendant No. 1 in place of the plaintiffs. The pleaded case of the plaintiffs is that they were the tenant under the erstwhile zamindars in re spect of the suit land and after issuance of the notification under Section 3 of the Assam State Acquisition of Zamindaris Act, 1951 (for short the 1951 Act) th ey continued to be the tenant under the Govt. It has also been pleaded that the suit land was taken on rent as tenant for the business purpose, for which ’farog s’ (receipts) were issued and thereafter the khatian and kacha patta were issued in the names of the plaintiffs. It is also the pleaded case of the plaintiffs t hat since the defendant No. 1 Mahakuma Parishad have started claiming right over the suit land, the suit had to be instituted, as noticed above.

3. The suit was contested by the defendants by filing their respect ive written statements. The defendant Nos. 1, 2 and 3 in their respective writte n statements, apart from the pleadings that the suit is not maintainable and is barred by time, have also pleaded that the defendant No. 1 is in possession of t he suit land, which was acquired by the Govt. of Assam under the provisions of 1 951 Act and, therefore, they became the owner of the land. In the said written s tatement it has also been pleaded that after acquisition of the land by the Govt . under the provision of the 1951 Act the same was transferred to the Patharkand i Gaon Panchayat and the Karimganj Mahakuma Parishad and since then the said lan d was under the Patharkandi Gaon Panchayat. The defendant Nos. 4 to 7 who implea ded themselves in the suit, by filing appropriate application, in the written st atement-cum-counter claim have pleaded that the suit land is the part and parcel of the Patharkandi Bazar, portion of which was purchased by their predecessor- in-interest Abdul Hasib and Abdul Gani by registered deed of sale dated 21.01,20 01 and in respect of the remaining portion they have acquired the title by inher itance. The said defendants further pleaded in the written statement that they are enjoying the land by collecting tolls and doing business thereon and by givi ng temporary settlement to different persons. The trial court on the basis of the pleadings of the parties fra

4. med the following issues for determination: (cid:28)1. Whether the suit is maintainable in its present form? 2. Whether the plaintiffs have got land holder right and possession over the sui t land? 3. Whether the plaintiffs are entitled to get permanent injunction against the d efendants from selling the suit land and dispossessing them? 4. What reliefs the plaintiffs are entitled to claim?

5. Whether the plaintiffs have any (P/7) cause of action for the suit? 6. Whether the suit is bad for defect of the parties? 7. Whether the suit is barred by limitation? 8. Whether the defendants Nos. 4, 5, 6 & 7 have got right title interest over th e suit land? 9. Whether the plaintiffs took settlement of the suit land from the landlord Mah araja Kirit Bikram? (cid:29)

5. The trial court upon appreciation of the evidences on record, bo th oral and documentary, vide judgment dated 18.8.1993 decreed the suit of the p laintiffs declaring their tenancy as well as the land holders right. The counter claim filed by the defendant Nos. 4 to 7, however, has been dismissed.

6. Being aggrieved both the Mahakuma Parishad/defendant No. 1 and t he defendant Nos. 4 to 7 preferred two appeals being Title Appeal Nos. 35/1993 a nd 37/1993, which were allowed by the first appellate court vide judgment and de cree dated 12.9.2000, setting aside the judgment and decree passed by the trial court. Hence the present appeal. The appeal was admitted for hearing on 2.4.2001 by formulating the follo

7. wing substantial questions of law: 1. Whether the findings of the learned lower appellate court that the mahakuma P arishad got the suit land in the year 1966 as reflected in the Exhibit-2 (khatia n) in the remarks column are not perverse? 2. Whether the findings of the learned lower appellate court that the respondent s (plaintiffs) have no source of title over the suit land as they failed to prod uce farags in respect of the suit land are not perverse on the face of Ext.1 (se ries) which are the farags (i.e. rent receipts) in respect of the suit land? 3. Whether the impugned judgment, order and decree passed by the learned lower a ppellate court is sustainable in view of the Assam Land Holding (Adoption of Rel ationship under the Assam Land and Revenue Regulations, 1886 in the Acquired Per manent Settled Estate) Act, 1974? 4. Whether the impugned judgment, order and decree passed by the learned lower a ppellate court is sustainable in view of the provision of Section 6 of the Assam State Acquisition of Zamindaries Act, 1951. I have heard Mr. N. Dhar, learned counsel for the appellants, Mr 8. . M. Bhuyan, learned counsel for the respondent No. 1/defendant No.1 as well as Mr. T.C Khatri, learned senior counsel appearing for the respondent Nos. 7(a) an d 7(b). The other respondents have not entered appearance despite service. Mr. Dhar, learned counsel for the appellants referring to the ju 9. dgment and decree passed by the first appellate court has submitted that the app eal has been allowed by formulating a wrong question for determination, inasmuch as the first appellate court has determined the question for determination as - permanent building or houses inside the whether the respondents have any market complex -, for the purpose of ascertaining whether the plaintiffs/appella nts are the tenants in respect of the suit land and as such entitled to the bene fit under the 1951 Act. It is submitted that since the first appellate court has recorded the finding that the suit land clearly falls under the provision of th e 1951 Act, the learned Judge ought to have thereafter decided whether the plain tiffs were the tenants in respect of the suit land under the erstwhile zamindars and if so, whether their right as the tenants and land holders can be declared under the provisions of the said Act. The learned counsel submits that those two pertinent questions have not been gone into by the first appellate court while allowing the appeal preferred by setting aside the judgment and decree passed by the trial court in favour of the plaintiffs. Mr. Dhar during his course of argu ments has also referred to the definition of ’encumbrance’ under Section 2(ja) a s well as the provision of Section 3(1) of the 1951 Act. It has also been submit ted that it is evident from the Ext. 1 series that the ’farogs’ (receipts) issue d by the erstwhile zamindars were proved and marked as exhibits by the plaintiff s, which were completely ignored by the first appellate court while allowing the appeal by observing that the plaintiffs have failed to produce the ’farogs’. Mr . Dhar further submits that the finding recorded by the first appellate court th at in the remark column of the khatian (Ext. 2) it has been mentioned that the l and has been settled in favour of the Mahakuma Parishad, is perverse on the face of the remark in the Ext. 2 khatian. The learned counsel, therefore, submits th at the case may be remitted to the first appellate court for deciding the appeal s afresh without, however, going into the counter claim filed by the defendant N os. 4 to 7, they having not preferred any appeal against the judgment and decree passed by the first appellate court.

10. Mr. M Bhuyan, learned counsel appearing for the respondent No. 1 /defendant No. 1 supporting the judgment and decree passed by the first appellat e court has submitted that it is evident from the pleadings in the plaint as wel l as the evidences adduced that they claim to be ’jotedars’ and hence they come within the definition of the ’tenure holder’ under Section 2(zc) of the 1951 Act . According to Mr. Bhuyan they are, therefore, neither non-agricultural tenant s nor ’raiyat’ under the 1951 Act and hence not entitled to protection of the sa id Act, after issuance of the notification under Section 3 of the 1951 Act vesti ng the land in the State free from all encumbrance. Mr. Bhuyan also submits that the plaintiffs have failed to substantiate their claim that they are the ’joted ars’ in respect of the suit land by producing any cogent evidence. Mr. Khatri, learned senior counsel appearing for the aforesaid r 11. espondents concurring with the submission of Mr. Bhuyan also submits that as the plaintiffs having failed to substantiate their claim for getting the decree as prayed for, the first appellate court has rightly allowed the appeal by setting aside the judgment and decree passed by the trial court.

12. I have considered the submissions of the learned counsel for the parties and also perused the judgments and decrees passed by the court below ap art from the Ext. 1 series and Ext. 2, attention to which was drawn by the learn ed counsel for the parties.

13. As noticed above, the appellants have prayed for declaration of their right as tenant and land holders, apart from other declaration sought for, contending that they are the tenants/jotedars’ under the erstwhile zamindars in respect of the suit land and as such after issuance of the notification under S ection 3(1) of the 1951 Act they continued to be the tenants under the Govt. The records reveal that five documents, collectively marked as Ext. 1, were proved by the plaintiffs in support their claim that they being the tenants are entitle d to the protection under the 1951 Act. The first appellate court did not consid er those receipts while allowing the appeals by observing that the plaintiffs ha ve failed to prove and produce any ’farogs’, which appears to be contrary to the materials available on record. The first appellate court has also recorded the finding that the suit land falls under the provision of the 1951 Act. Having hel d so, the next two pertinent questions which ought to have been answered by the first appellate court were (i) whether the plaintiffs were the tenants or joteda rs/tenure holders under the erstwhile zamindars, if so, whether they are entitle d to the protection under the 1951 Act and (ii) whether the land in respect of w hich the tenancy was created is the suit land. The first appellate court has all owed the appeals without considering those questions and only on the ground that the plaintiffs have failed to prove that they have no permanent building or hou ses over the suit land, though it is not the requirement of law that the tenancy can be created only in respect of the permanent building or houses or after cre ation of tenancy the tenant must construct a permanent building or house so as t o get the protection of the 1951 Act.

15. That being the position, the appeals preferred before the first appellate court require fresh consideration and decision. Hence while setting as ide the judgment and decree passed by the first appellate court, the case is rem itted to the said court for deciding the appeals afresh on the basis of the evid ences already on record. The appellate court shall also go into the respective c ontentions of the parties as reflected in the judgment, having regard to the pro vision of the 1951 Act. The first appellate court, however, shall not go into th e legality and/or validity of the dismissal of the counter claim filed by the de fendant Nos. 4 to 7, as, against such dismissal they neither preferred any appea l nor filed cross objection before this Court.

16. urt, namely, the court of the learned Civil Judge, Karimganj on 23.8.2012. The parties are directed to appear before the first appellate co

17. The learned Civil Judge shall make an endeavour to dispose of th e appeal within two months from the date of appearance of the parties fixed by t his Court.

18. The Registry is directed to send down the records forthwith to t he court of the learned Civil Judge, Karimganj so as to reach on or before 3.8.2 012.

19. The appeal is accordingly allowed as indicated above. No cost.