High Court · 2012

defendants.

2. The appellants as plaintiffs instituted Title Suit No. 10/1996 i n the court of the learned Civil Judge (Jr. Division) Hailaknadi against the def endants claiming a decree declaring that they are non evictable tenants in respe ct of the land described in the schedule, apart from the decree declaring that t hey are entitled to get the ownership right in respect of the said land under Ch apter 3 of the Assam Temporary Settled Areas (Tenancy) Act, 1971, contending int er alia that their predecessor-in-interest Idris Ali took settlement of the said land from the landlord Irshad Hussain Choudhury, the predecessor-in-interest of the proforma defendant Nos. 15 to 23 about 50 years back and enjoyed the said l and by constructing houses thereon, excavating pond on the western portion and s etting up a vegetable garden on the eastern portion of the said land. According to the plaintiff on the death of the Idris Ali they inherited the said land and were in possession of the same. It has also been pleaded that they subsequently came to know that Modaris Ali, the predecessor-in-interest of the principal defe ndants by a registered deed dated 11.6.1967 (Ext. 1) purchased the ownership rig ht over the said land from the proforma defendant Nos. 15 to 23 and their mother and by virtue of such purchase they became the mirajdars of the plaintiffs in r espect of the schedule land. According to the plaintiffs they did not know abou t transfer of such right by the aforesaid proforma defendants in favour of the p redecessor-in-interest of the principal defendants prior to 30.10.1995, who have also never demanded any revenue from the plaintiffs. The plaintiffs, therefore, filed the suit for declaration as aforesaid. The principal defendants contested the suit by filing written st 3. atement, contending inter alia that late Modaris Ali, their predecessor-in-inter est, purchased the suit land on 4.3.1967 by a registered instrument from the pro forma defendants where after they were put to possession and accordingly they we re possessing the land by constructing houses and growing different kinds of tre es. It has further been pleaded that after the death of Modaris Ali they inherit ed the right over the said land. The further pleaded case of the defendants is t hat on the request of the plaintiff No. 1 he was allowed by the principal defend ants to occupy the said land as licensee for which the plaintiff No. 1 on 23.12. 1993 executed Ekranama (Ext. A) promising to vacate the said land as and when de manded. The defendants denied that the plaintiff was either a tenant under the p redecessor-in-interest of the proforma defendant Nos. 15 to 23 or under the pred ecessor-in-interest of the principal defendants in respect of the suit land and hence there is no question of acquiring any tenancy right over the suit land. It is also the pleaded case in the written statement that as the land was required the defendants, they asked the plaintiffs to vacate the same who, however, did not oblige them. The defendants, in view of the action on the part of the plaint iffs clouding their right, title and interest over the suit land filed the count er claim praying for declaration of their right, title and interest apart from d eclaration that the plaintiffs are the licensee of the said land and not tenant as well as for recovery of khas possession of the suit land. The plaintiffs have filed their written statement against the co 4. unter claim of the defendants stating inter alia that the plaintiff No. 1 is not the licensee under the defendants in respect of the suit land. The execution of the Ekranama dated 23.12.1993 has also been denied. It has further been pleaded that the plaintiffs are in possession of the suit land for more than 50 years a s tenant. The trial court on the basis of the pleadings of the parties fra

5. med the following issues for determination: - (cid:28) 1. Is there any cause of action for the suit? 2. Is the suit property valued and stamped? 3. Are the plaintiffs licensee in respect of the suit land? 4. Whether the plaintiffs have acquired jote right over the suit land/ 5. Whether the plaintiffs are evictable tenant in respect of the suit land? 6. Is there any cause for counter claim? 7. To what relief, if any, the parties are entitled? (cid:29) The learned Civil Judge (Jr. Division) on the basis of the plead 6. ings of the parties, the evidences, both oral and documentary adduced and upon h earing the learned counsel for the parties decreed the suit of the plaintiffs de claring their right, as claimed and dismissing the counter claim filed by the de fendants, against which the principal defendants preferred Title Appeal No. 18/2 000, which has been allowed by judgment and decree dated 14.9.2001, setting asid e the judgment and decree passed by the trial court, consequently dismissing the suit of the plaintiffs and decreeing the counter claim of the defendants. Hence the two separate appeals, being RSA No. 10/2002 and RSA No. 11/2002 have been f iled by the plaintiffs against the dismissal of the suit and decreeing the count er claim of the defendants, respectively. RSA No. 10/2002 was admitted for hearing vide order dated 25.2.2

7. 002 on the following substantial questions of law:- 1. Whether the learned lower appellate court erred in law in holding that the As sam Temporary Settled Areas (Tenancy) Act, 1971 does not apply in the present ca se? 2. Whether the learned lower appellate court erred in law in not relying on Ext. 2, 3, 4 and 6 to 10, which are rent receipts issued in favour of the plaintiffs and his father, held that PW 1 is estopped from proving the same?

8. .2.2002 on the following substantial question of law: - RSA No. 11/2002 was admitted for hearing on the same day i.e. 25

1. Whether the learned lower appellate court erred in law in sou moto decreeing the counter claim although no appeal before the appellate court was preferred by the defendants?

9. o. 10/1996, these are taken up for hearing and disposal together. Since both the appeals arise out of one suit namely Title Suit N

10. I have heard Mr. N Choudhury, learned counsel for the appellants as well as Mr. GN Sahewalla, learned senior counsel appearing for the responden ts/principal defendants. Proforma respondents/dependants have not appeared.

11. Referring to the judgment and decree passed by the first appella te court, which is under challenge in the present appeals, Mr. Choudhury, learne d counsel for the appellants submits that since PW 1 namely Aftab Uddin Choudhur y, son of Irshad Hussain Choudhury, the original landlord has proved three farog s (Exts. 2, 3 and 4) pertaining to the years 1964-67, which demonstrate that the predecessor-in-interest of the appellants/plaintiffs was the riyat under the or iginal landlord Irshad Hussain Choudhury and as the appellants/plaintiffs could prove the payment of tax to the Gaon Panchayat authority vide Exts. 8, 9 and 10 pertaining to the years 1966-67, the first appellate court was not justified in refusing to take into consideration those evidences simply on the ground that th ose were not proved by the PW 2 namely the plaintiff No. 1, but were proved by t he PW 1 who is the son of the landlord and as PW 2 (Plaintiff No. 1) during his cross examination has stated that he has no documents to demonstrate that his fa ther was a tenant under the original landlord namely Irshad Hussain Choudhury. T he learned counsel further submits that since the execution of the aforesaid doc uments has been proved by the son of the original landlord namely the PW 1 the a ppellate court ought not to have refused to consider the said documents. It has also been submitted that the finding of the first appellate court that the provi sion of the 1971 Act does not apply in the present case is also contrary to the evidences on record in as much as it is the admitted position of fact that the s uit land is recorded as agricultural land in the revenue records. Relating to the substantial question of law formulated in RSA 11 12. /2002 Mr. Choudhury, learned counsel for the appellants has submitted that as tw o decrees were passed by the trial court, one decreeing the suit of the plaintif f and the other dismissing the counter claim filed by the defendants, single app eal before the first appellate court by the defendants was not maintainable and at the most the appeal preferred by the defendants ought to have been taken as t he appeal against the decree passed by the trial court decreeing the suit of the plaintiffs and not dismissal of the counter claim of the defendants.

13. Per contra, the learned senior counsel appearing for the respond ents/principal defendants submits that it is evident from the judgment passed by the first appellate court that the PW 2 namely the plaintiff No. 1 during cross examination has admitted that he does not have any document with him relating t o the creation of the tenancy by executing any farogs either in favour of his fa ther or in his favour. The learned senior counsel submits that the plaintiff No. 1 who has been examined as PW 2 in his entire evidence has not stated anything relating to the existence of the documents being Ext. 2 to 10 and on the other h and during cross examination has denied existence of any such documents and as s uch the documents which were introduced by the PW 1 i.e. the son of the original landlord were rightly refused to be considered by the first appellate court. Th e learned senior counsel, however, has submitted that it is evident from the evi dence adduced by the parties that the suit land is an agricultural land and henc e it cannot be said that the provision of the 1971 Act is not applicable.

14. Relating to the substantial question of law formulated in RSA No . 11/2002, Mr. Sahewalla, learned senior counsel submits that since the trail co urt vide judgment dated 30.3.2000 passed in the suit filed by the plaintiffs dec reed the suit of the plaintiffs by dismissing the counter claim filed by the def endants, a single appeal against the said composite decree is maintainable. It h as been submitted that had there been two distinct and separate decisions of the trial court, there would have been the necessity of filing two separate appeals but in the instant case since there was one trial and one judgment, there need not be two appeals even if two decrees, one decreeing the suit of the plaintiffs and the other dismissing the counter claim of the defendants may have been draw n up. Mr. Sahewalla submits that pursuant to the judgment passed by the trial co urt in fact one single decree was drawn. I have considered the submissions advanced by the learned counse 15. l for the parties and also perused the judgments and decrees passed by both the courts below apart from the evidences adduced by the parties, to which the atten tion of the Court has been drawn by the learned counsel for the parties.

16. It is evident from the deposition of the witnesses more particul arly of the PW 1, PW 2 and also the DW 1 that the suit land is agricultural land . The suit land, from the evidences of these witnesses evidently, does not come within the exception provided in Section 2 of the 1971 Act. The first appellate court has held that the provision of 1971 Act does not apply in the present suit as there is no proof that the said land is agricultural land. The said finding of the first appellate court is, therefore, perverse, which has also been admitt ed by the learned senior counsel appearing for the respondents/principal defenda nts.

17. The first appellate court has refused to place reliance on Exts. 2, 3, 4 and 6 to 10 basically on the ground that though the PW 1 i.e. the son o f the original landlord has proved those documents, PW 2 namely the plaintiff No . 1 during his cross examination specifically stated that he does not have any d ocument or farogs relating to the creation of the tenancy either in favour of th e plaintiffs or their predecessor-in-interest. Ext. 2, 3 and 4 which are proved by the PW 1 are farogs allegedly issued by the original landlord in favour of th e predecessor-in-interest of the plaintiffs. Ext. 6 is issued by the Hailakandi Mahakuma Committee realizing some amount from the predecessor-in-interest of the plaintiffs, wherefrom it cannot be ascertained what for such amount was realize d. Ext. 7 is the receipt issued by the general secretary, VDP Secretary Associat ion, Hailakandi Branch realizing some amount from the predecessor-in-interest of the plaintiffs, which is dated 7.3.1966, which also does not indicate the creat ion of any tenancy and the reason for realization of such amount. Ext. 8, 9 and 10 are the receipts issued by the gaon panchayat authority in favour of the pred ecessor-in-interest of the plaintiffs on account of chowkidar tax. From Ext. 6 t o 10 it could not be ascertained as to whether any tenancy has been created by t he landlord in favour of the predecessor-in-interest of the plaintiffs. Those do cuments, i.e. Exts. 6 to 10 therefore, are of no value in the matter of deciding the question of tenancy.

18. As noticed above, Ext. 2, 3 and 4 are farogs stated to be execut ed in favour of the predecessor-in-interest of the plaintiffs. Those documents w ere proved by the PW 1. The plaintiff No. 1, who is examined as PW 2, however, i n his deposition has not even made a whisper relating to the issuance of farogs by land lord in favour of his predecessor-in-interest. On the other hand during his cross examination the PW 2 has admitted that there is no written document av ailable to demonstrate the creation of tenancy either in favour of the plaintiff or in favour of the predecessor-in-interest of the plaintiff. On the face of su ch evidence of PW 2, the first appellate court has rightly refused to place any reliance on the Exts. 2, 3 and 4.

19. As discussed above in the suit filed by the plaintiffs i.e. Titl e Suit No. 10/1996 the defendants filed the counter claim praying for a decree d eclaring their right, title and interest and for recovery of khas possession. Th e trial court decreed the suit of the plaintiffs by dismissing the counter claim filed by the defendants against which appeal being Title Appeal No. 18/2000 was preferred by the defendants, which was allowed by the first appellate court dis missing the suit of the plaintiffs and allowing the counter claim.

20. The suit of the plaintiffs as well as the counter claim of the d efendants were decided at one trial and in a single suit. Even though by a singl e judgment the trial court has dismissed the suit of the plaintiffs and decreed the counter claim of the defendants and strictly speaking two decrees ought to h ave been drawn up, a single decree was drawn up. Since those are passed in a sin gle suit and based on the same judgment and the matter decided concerns the enti re suit, a single appeal is maintainable. Hence a single appeal against the said judgment and decree filed by the defendants before the first appellate court ca nnot said to be not maintainable.

21. In view of the aforesaid discussion, the substantial questions o f law are accordingly answered. The appeals are devoid of any merit and hence di smissed. No cost.

22. The Registry is directed to send down the records forthwith.