High Court
Case Details
RSA 105/2002 BEFORE THE HON’BLE MR. JUSTICE N. CHAUDHURY JUDGMENT AND ORDER
Legal Reasoning
Heard Mr. P. K. Kalita assisted by Ms. T. Goswami on behalf of the appel (N. Chaudhury, J) 1. lants. None appears on behalf of the respondents. By order dated 18.05.2012, this Court observed that despite service of n 2. otice, no one had put up appearance on behalf of the respondents and accordingly , the matter was directed to be listed for hearing. To-day also, when the matter has been called up for hearing, no one appeared on behalf of respondents. The a ppeal is taken up exparte. This second appeal has been preferred by defendant Nos. 1 to 5 of the ma 3. in suit, namely, Title Suit No. 206 of 1995. The suit was instituted by one Taru n Ch. Sharma (Predecessor- in-interest of present respondent Nos.1 to 3) praying for a decree declaring that he was an occupancy on a plot of land measuring (1) 3 B, 1 K, 10 L, under Dag No. 544, (2) 4 B, 0 K, 3 L under Dag No. 637 and (3) 7 B, 0 K, 5 L under Dag No. 702 of K.P. No 52 of village Teteliguri under Mouza Sanapur in the District Kamrup claiming that the said land was covered by khati an No. 1. The case of the plaintiff as pleaded in the plant is that he became an agricultural tenant under one Pranab Kumar Bora ( the predecessor- in-interest Nos. 1 to 5) about 35 years, prior to the institution of the date of the suit o n payment of 32 mounds of paddy per bigha per year as annual rent to the landlor d. On 30.06.1976, he was given Rayoti Khatian for the said land. As tenant under aforesaid Pranab Kr. Bora (since deceased), he has been cultivating the land fo r more than 16 years since issuance of Khatian. According to the plaintiff, he f iled application for ownership right over the land before the Deputy Commissione r, Kamrup, on 13.03.1995 and the same was pending. At this time the defendant No s. 1 to 5 in collusion with defendant No.6 sought to dispossess the plaintiff fr om the suit land for which the plaintiff had to institute a proceeding before th e learned Executive Magistrate under Section 145/ 146 Cr.P.C and thereby the lan d was attached on 25.05.1995. To frustrate the said proceeding, the plaintiff fu rther stated, the defendant Nos. 1 to 5 obtained exparte order under Section 144 Cr.P.C. on 08.05.1995 suppressing fact of 145/ 146 CrP.C. proceeding. Thereupon by order dated 26.05.1995, the attachment order was stayed on representation by the defendant Nos. 1 to 5. The 144 Cr.P.C. proceeding also lapsed in the meanti me. Under such circumstances, the plaintiff instituted the suit claiming declara tion as aforesaid, along with a prayer for declaration of temporary or permanent injunction restraining defendants, their agents or servants or any other person s claiming under them from entering into the suit land. 4. The defendant Nos. 1 to 5, contested the suit by filing written statemen t. The stand taken by the defendants in their written statement is that the plai ntiff never held or possessed the suit land as tenant or otherwise, that he is n ot entitled to acquire any right of tenancy over the suit land, that the so-call ed Khatian was illegal and fraudulent and that the plaintiff managed to procure the same ’surreptitiously by influencing the land records staffs’. The defendan ts further stated that their predecessors never had any knowledge of getting suc h Khatian by the plaintiff and there was no field survey for the purpose. Howeve r, having come to know about the Khatian for the first time during the pendency of proceeding under Section 145 Cr.P.C. they filed a revision case before the Go vernment vide RRT No. 235 of 1995 and the same was pending. On these facts, the defendants prayed that the suit of the plaintiff be dismissed with cost. 5. Upon such rival pleadings of the parties, the learned Trial Court i.e. l eaned Sadar Munsiff No.1, Guwahati, framed as many as 6 issues and the same are quoted below: (cid:28) 1. Whether there is cause of action for the suit? 2. Whether the suit is bad for non joinder of necessary parties? 3. Whether the plaintiff is tenant in possession of the suit land under the defe ndants? 4. Whether the plaintiff obtained the alleged Khatian No.1 in respect of the sui t land surreptitiously by manipulating revenue staffs? 5. Whether the plaintiff is entitled to declaration and injunction as prayed for ? 6. Any other relief to which parties may be entitled to. (cid:29) 6. The plaintiff examined himself as a lone witness where as defendants exa mined 2 witnesses. Defendant No.4 (Bhupendra Narayan Bora) was examined as D.W.1 and defendant No. 6 (Pulak Ch. Sarma) was examined as D.W.2. The plaintiff exhi bited khatian dated 30.06.1976 as Exhibit-1 in original. The defendants did not exhibit any document. The learned Trial Court after hearing parties and on perus al of the materials available on record, decided issue No.3 referred to above in favour of the plaintiff on the basis of Exhibit-1 Khatian. It is the finding of facts of the learned Trial Court that Khatian in respect of the suit land was i ssued by the competent authority in favour of the plaintiff and the same Prima-f acie established tenancy rights of the plaintiff over the suit land and as such so long as the said Khatian remained in existence, the plaintiff is to be deemed to be a tenant with respect to the suit land under the landlord. It is necessar y to mention here that the issue No.4 of the suit and referred to above was fram ed on the basis of pleading of the defendant that the Khatian was illegal and fr audulent one created in collision with the land record staff. The defendants, ho wever, did not examine any land record staff. The minutes of the proceeding lead ing to issuance of the Exhibit-1 Khatian was also not called for by the defendan ts. 7. Be that as it may, it is the finding of the learned Trial Court that no evidence was led by the defendants to establish the allegations that Khatian was procured by collusion. The finding of the learned Trial Court in this regard is quoted below: (cid:28) But no evidence is adduced to prove that the Khatian is a frau dulent one. Therefore, mere statement is not enough to come to conclusion that t he Khatian was obtained by the plaintiff by manipulating revenue staffs.
Decision
Considering the facts and circumstances of the case as transpi red from the record and in view of the above, this issue is decided in the negat ive. (cid:29) Thus, having decided both the issues, namely, issue No.3 & 4 in favour o f the plaintiff the learned Trail Court decreed the suit, declaring tenancy righ t of the plaintiffs, over the suit land and thereby allowing the prayer of perma nent injunction restraining the defendants to enter into the suit land. The said judgment of the learned Trail Court was passed on 25.06.1999. The defendant Nos. 1 to 5 challenged the learned Trail Court’s decree be 8. fore the learned Civil Judge (Senior Division) No.3, Kamrup, Guwahati vide Title Appeal No. 30 of 1999. The learned Appellate Court discussed the deposition of P.W.1 and D.W.1 in detail and thereafter relying on Exhibit-1 Khatian upheld the findings of the learned Trial Court and thereby dismissed the Title Appeal on 3 0.03.2002. 9. It is this judgment which has been challenged in the present second appe al. While admitting this appeal on 16.07.2002, this Court framed one substantial question of law and the same is quoted below: (cid:28)i) Whether the learned Courts below mis-read the evidence of plaintiff Mr. P. K. Kalita, learned Counsel for the appellants, has made submissio P.W.1 in arriving at the decision relating to the possession of the plaintiff? (cid:29) 10. n as follows: i) That the plaintiff was never a tenant and this is evidenced from his cro ss-examination, wherein he admitted that there was no agreement with the landlor d, although he could not produce any receipt in acknowledgement of payment of re nt to the landlord. ii) That the P.W.1 himself stated in the cross-examination in the Criminal P roceeding instituted by him under Section 327/ 379 IPC, alleging theft of paddy That the so-called Khatian was claimed to have been issued by Kanungo an against defendants, he had named Bhaben Bora as his landlord. However, the said judgment or certified copy of the deposition was not brought on record. iii) d was not issued by competent authority. 11. Having gone through the materials available on record and after hearing learned counsel for appellant, it appears that here is an appeal challenging con current findings of the two Courts below holding that the plaintiff is a tenant under the defendant Nos. 1 to 5 and the said finding is based on tenancy Khatian No. 1/1976. This khatian is on record as Exhibit-1. Khatian is the certificate as to final publication of the records of rights and under Section 58 (4) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 which provides that such re cords of rights prepared and published under the Act is to be presumed to have b een finally published unless the contrary is proved. The Section 58 (5) of the s ame Act mandates that every entry in the records of rights finally published is conclusive evidence of the matter referred to in any such entry and the same sha ll be presumed to be correct until it is proved by evidence to be incorrect. The exhibit-1, therefore, is to be presumed to be correct and the same is conclusiv e evidence as to tenancy of the plaintiff over the suit land until the same is p roved to be incorrect by leading evidence. The purport of Section 58 (5) is that it shall be the burden of the person challenging the Khatian to lead evidence s o as to prove khatian to be incorrect. It cannot be the burden of the plaintiffs to establish that khatian was duly published. As long as the Khatian has been b rought on record from the custody of the plaintiff in the capacity of the occupa ncy of tenant, it was the burden of the defendants to lead evidence to prove the same to be incorrect. No attempt has been made by the defendants in this case t o lead any evidence against the said Khatian as required under Section 58 (5) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971. 12. Mr. P. K. Kalita, learned counsel for appellants, has pressed the deposi tion of the P.W.1 in entirety in course of his argument. Nowhere any material ex ists in the said evidence to hold that the Khatian Exhibit-1 was not issued, by following the provisions established by law and / or that fraud was perpetrated in issuing the same although that was the specific case of the defendant pleaded in the written statement. Having taken a specific stand in the written statemen t that Khatian was procured by ’manipulating the land record staff’ it was the b urden of the defendants to prove the said allegations. Having miserably failed t o discharge their burden as referred to above, the learned Trial Court below con currently held that the plaintiff is entitled to a declaration on the basis of K hatian Exhibit-1 as tenant under the defendants (Appellants herein) with respect to the suit land. 13. Learned counsel for appellant even after strenuous argument could not su cceed to show that the said concurrent findings of the learned Trail Court below are perverse and/ or were vitiated by non-reading or mis-reading of any evidenc e, not to speak of the evidence of plaintiff. 14. In that view of the matter, I do not find any reason to hold the aforesa id substantial question of law in the affirmative and consequently this Second A ppeal stands dismissed. 15. cost. Send down the records immediately after drawl of decree. No order as to