High Court
Case Details
RSA 146/2001 BEFORE HON’BLE MR JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral)
Legal Reasoning
This appeal by the plaintiffs is directed against the judgment and decree dated 1st September, 2001 passed by the learned Civil Judge (Senior Division), Karimga nj in Title Appeal No.37/1994, whereby and whereunder the appeal preferred by th e present respondents/ defendants has been allowed by setting aside the judgmen t and decree dated 23rd March, 1994 passed by the learned Munsiff No.1, Karimgan j in Title Suit No.247/1987. [2] The appellants as plaintiffs instituted the aforesaid suit for d eclaration of right, title and interest as well as conformation of possession in respect of the land measuring 1 Katha 7 Chataks covered by Dag No.137/257 of Pa tta No.26 of Mouza: Sonakhira Pargana Pratapgarh in the district of Karimganj, m orefully described in Schedule to the plaint contending inter alia that though n either the defendants nor their predecessor-in-interest possessed the suit land, the Khatian under the provisions of the Assam (Temporarily Settled Areas) Tenan cy Act, 1971 (in short, (cid:28)1971 Act (cid:29)) issued in the name of the defendants, cannot confer any right, the same having been issued in violation of the 1971 Act. Th e plaintiffs also claimed that such Khatian was issued collusively. [3] The suit has been contested by the defendants by filling joint w ritten statement contending inter alia that in respect of the land measuring 13 Chataks, described in Plot No.1 of the Schedule to the written statement, the fa ther of the defendants and after him, the defendants and his brother, Raghunath Sahani, have been possessing the same as tenant under the plaintiffs and in resp ect of the Plot No.2 measuring 1 Katha 7 Chataks, which was outside the said ten ancy, the defendants have developed and in continuous possession exactly in the same manner as in the case of Plot No.1 of the Schedule to the written statemen t. The defendants have, therefore, contended that they are the tenants in respe ct of the suit land and in their favour the permanent occupancy tenancy has been issued under the provisions of the 1971 Act. It has further been contended tha t taking advantage of the absence of the defendants, the plaintiffs, after issua nce of the final Khatian (Exhibit-E) dispossessed the defendants and as such, th e defendants have also filed the counter claim for declaration of the permanency occupancy right and recovery of possession in respect of Plot No.2 of the Sched ule to the written statement. [4] med the following issues for determination:- The trial Court on the basis of the pleadings of the parties fra (cid:28)(1) Whether there is a cause of action for the suit? (2) Whether the suit is maintainable? (3) Whether the suit is bad for defect of parties? (4) Whether the suit is barred by Limitation? (5) Whether the plaintiff is entitled to get the decree as prayed for? (6) Whether the defendants have their right and possession over the land? (7) To what relief or reliefs the parties are entitled? (cid:29) [5] esses each, and proved a number of documents, which are marked as exhibits. Both the plaintiffs and the defendants have examined 2(two) witn [6] The trial Court upon appreciation of the evidence on record has decreed the suit of the plaintiffs and dismissed the counter claim on the ground that though the burden lies on the defendants to prove that the final Khatian ( Exhibit-E) was properly issued as required under the provisions of the 1971 Act, the said burden the defendants could not discharge. [7] Being aggrieved, the defendants preferred the aforesaid appeal, which has been allowed by the first appellate Court by holding that since the Kh atian under the provisions of the 1971 Act has been issued, presumption about du e issuance has to be done in view of the provisions contained in Section 58 ther eof and the burden lies on the person, who challenges such Khatian, to prove tha t the said Khatian has not been issued as required under the provisions of the 1 971 Act. The appellate Court has also held that the trial Court has wrongly dec reed the suit of the plaintiffs and dismissed the counter claim of the defendant s by wrongly shifting the burden on the defendants to prove otherwise. Hence, t he present appeal. [8] er, 2001 on the following substantial question of law:- The appeal was admitted for hearing vide order dated 21st Decemb (cid:28)1. Whether the counter claim of the defendants can be allowed without adducing any evidence by the defendants and only on the ground that the plaintiff’s suit fails? (cid:29)
Legal Reasoning
I have heard Mr. R.L. Yadav, learned counsel for the appellants/ [9] plaintiffs and Mr. S. Chouhan, learned counsel appearing for the respondents/def endants. [10] Referring to the judgment passed by the first appellate Court as well as the provisions contained in Section 58 of the 1971 Act, it has been sub mitted by the learned counsel for the appellants that since the presumption requ ired to be done under the said provision of law is rebutable presumption and the plaintiffs could prove by adducing the evidence that neither the defendants nor their predecessor-in-interest was ever possessed the suit land, the first appel late Court ought not to have decreed the counter claim filed by the defendants. It has also been submitted that the defendants in the written statement filed h as claimed the suit land, described in Plot No.2 of Schedule to the written stat ement, contending that they have acquired the title over the said plot by prescr iption of law, i.e. by adverse possession, and hence, they are not entitled to t he decree for recovery of khas possession on the basis of the counter claim file d, in the absence of any evidence adduced by them relating to adverse possession . [11] Per contra, Mr. Chouhan, learned counsel appearing for the respo ndents/defendants submits that it is apparent from the pleadings in the written statement-cum-counter affidavit that the defendants have claimed that they are p ossessing the Plot No.2 in the same manner, as they are possessing the Plot No.1 , meaning thereby as a tenant under the plaintiffs. It has also been submitted that the defendants could prove issuance of the Khatian in respect of the suit land being Exhibit-E, which has been proved in original, apart from the factum o f payment of rent to the original plaintiff No.1, who died during pendency of th e suit, which rent was accepted pursuant to the decree passed for payment of ren t in respect of the suit land. The learned counsel submits that though the plai ntiffs have claimed that neither the predecessor-in-interest of the defendants n or the defendants was never in possession of the suit land, such oral testimony of the plaintiff No.1 cannot be accepted in view of the rent receipts being Exhi bits-B and B/1 and also issuance of Khatian (Exhibit-E). Referring to the prov isions of Section 58 of the 1971 Act, it has also been submitted that sub-Sectio n 5 thereof stipulates drawal of presumption relating to the correctness of the entry in the Khatian until of course it is proved otherwise. According to the l earned counsel, though the plaintiffs have claimed that Exhibit-E was not proper ly issued as required under the provisions of the 1971 Act, they have failed to prove the same. [12] I have considered the submissions advanced by the learned counse l appearing for the parties and also perused the judgments and decrees passed, a part from the evidence adduced by the parties, since the appeal is against the j udgment of reversal. [13] As noticed above, the plaintiffs’ case is that the final Khatian (Exhibit-E) was issued in favour of the defendants, though they did not fulfill the conditions, which are required to be fulfilled under the provisions of the 1971 Act, in as much as they never possessed the suit land. [14] Section 58 of the 1971 Act deals with the certificate of and pre sumption as to final publication and presumption as to correctness of record of rights. Sub-Section 5 thereof provides that every entry in a record of rights f inally published shall be conclusive evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect. The defendants could prove that in respect of the suit land, Exhibi t-E, final Khatian was issued under the provisions of the 1971 Act. According t o the plaintiffs also, such Khatian was issued but by not following the requirem ent of 1971 Act. The plaintiffs having challenged that the Khatian was issued w ithout complying with the conditions required to be complied with, the burden li es on the plaintiffs to prove the same. In order to prove the same, the plainti ffs have examined 2(two) witnesses including the plaintiff No.2 himself, who hav e stated in their evidence that initially the plaintiffs’ predecessor-in-interes t and thereafter, the plaintiffs are continuously possessing the suit land, whic h was never possessed either by the defendants or their predecessor-in-interest. The defendants, on the other hand, have stated that in respect of the suit lan d, tenancy was created and their predecessor-in-interest was the tenant under th e plaintiffs by paying rent and for non payment of such rent, the proceeding was instituted by the plaintiff No.1 where a decree was passed and accordingly the rent payable under the decree was paid by Exhibit-B and B/1 to the plaintiff No. 1. On the face of Exhibit-B and B/1 reflecting payments of the rent payable und er the decree passed in respect of the rent payable for the suit land, the oral testimony of the PWs-1 and 2 that neither the defendants nor their predecessor-i n-interest have possessed the suit land as tenant cannot be accepted. The plain tiffs have not led any evidence to demonstrate that the other conditions require d to be fulfilled for issuance of the final Khatian under the provisions of the 1971 Act have never been fulfilled. The contention of the appellants/plaintiffs that the defendants themselves having claimed the suit land, described in Plot No.2 of the written statement, by right of adverse possession, they are required to lead evidence and in the absence of any evidence, the counter claim ought no t to have been decreed, cannot also be accepted, on conjoint reading of the plea dings of the defendants in the written statement-cum-counter claim, more particu larly, in sub-paragraphs-A, B and C of paragraph 11, wherefrom it appears that t he defendants have claimed that though they are tenants under the plaintiff No.1 in respect of the Plot No.1 measuring 13 Chataks, they subsequently came to pos sess the land in Plot No.2, in the same manner as in the case of Plot No.1 of Sc hedule to the written statement, meaning thereby as a tenant. Such stand of the plaintiffs also cannot be accepted, in view of the plaintiffs’ own case that th e Exhibit-E final Khatian was issued in respect of the suit land. [15] In view of the aforesaid discussion, it is evident that the defe ndants have led evidence in support of the counter claim and also denying the cl aim of the plaintiffs. The first appellate Court, having regard to the depositi on of witnesses, both oral and documentary, has rightly allowed the appeal prefe rred by the respondents/defendants, which does not require interference in secon d appeal. [16] The appeal, therefore, stands dismissed. No costs.