High Court
Case Details
RSA 153/2002 BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI JUDGMENT AND ORDER(CAV) The second appeal was admitted to be heard by an order dated 08.01.2003
Legal Reasoning
This second appeal is preferred by the appellant/defendant against the j udgment & decree dated 29.11.2001, passed by the learned Civil Judge (Senior Div ision), Tinsukia in Title Appeal No. 03 of 1993 dismissing the appeal and uphold ing the judgment and decree dated 08.01.1993 passed by the learned Munsiff No. 2 , Tinsukia in Title Suit No.18/86. 2. on the following substantial question of law: (cid:28)Whether the learned court below misread the evidence of PW4 in concluding that the defendant was a trespasser on the suit land and that the plaintiff had right , title and interest therein, thus vitiating the impugned judgment and order by an error on a substantial question of law? (cid:29) The pleaded case in the plaint is that the respondent/plaintiff is a lim 3. ited liability company registered under the Indian Companies Act, 1956, and it h as a number of tea estates in Assam and it owns and manages, amongst others, Deh ing Tea Estate at Margherita. The plaintiff is the absolute owner of the suit pr emises described in the schedule and the same was allotted as an incidence of em ployment to a permanent worker named Smti Nandi Gore, wife of one Rajesh Gore, w ho is the elder brother of the defendant. In the month of December, 1981, the de fendant, who is not a worker of Dehing Tea Estate, forcibly dispossessed her and started occupying the same unauthorisedly and thus, he had become a trespasser. Despite being asked several times to vacate the suit premises, the defendant di d not do so. Though the defendant being a trespasser was otherwise not entitled to a notice, a legal notice dated 09.10.1985 was served on the defendant asking him to quit, vacate and deliver up vacant possession of the suit premises immedi ately on expiry of 31st October, 1985. As defendant did not vacate the suit prem ises, the suit was filed praying for, amongst others, a decree for khas possessi on of the suit premises by evicting the defendant with all his belongings and de pendants, if any, from the suit premises described in the schedule. 4. (cid:28)A double unit Labour Quarter having brick walls, asbestos roof, wooden doors an d windows comprising a plinth area of 956 sq. ft. situated on a part of the plot of land measuring 6B-0K-5L approximately of Dehing Tea Estate covered by Dag No .59 (New) 62(old) (part) corresponding to Tea Periodic Patta No.1 W.L.App.No.75 (Village) in Mouza Makum, Tinsukia Sub-Division, District- Dibrugarh and bounded The schedule of suit premises reads as follows: on the - North - By PWD Road. South - By Pathar East - By Pathar & N.F.Rly West - By Labour Quarter of Dehing T.E. (cid:29) 5. In the written statement filed, the defendant stated that neither the pl aintiff nor Smti Nandi Gore ever possessed the suit premises and both the allega tion of forceful dispossession and unauthorised occupation are out and out false statements. He was not served with a legal notice. It is pleaded that in the ye ar 1918, his grandfather Jhulan Gore and his father Haralal Gore, who hailed fro m Madhya Pradesh, settled themselves along with other family members at Margheri ta near Dehing Tea Estate by clearing jungles and trees in an area of land measu ring about 200-250 Bighas. Initially kutcha houses were raised for residential p urpose and the rest of the land came to be cultivated. The area, in course of ti me, became famous as Jhulan Basti and the defendant is residing along with his f amily members in the said land. It is also stated that land measuring 9 Bighas c overed by Dag Nos. 258 and 259 corresponding to old Dag No. 104 (A) was possesse d by the defendant since the time his father constructed a pucca house thereon i n the year 1955. The said plot of land was allotted to the defendant by Governme nt of Assam vide land distribution certificate being No. 70856 dated 08.05.1976. It is also asserted that plaintiff has no right, title and interest over the la nd and the house is owned and possessed by the defendant. 6. An additional written statement was also field by the defendant stating that the 9 Bighas of land under his occupation is in Dag No. 104(ka) of Periodic Patta No.1 corresponding to new dag No. 59/258 measuring 6 Bighas 1 Katha and D ag No. 32/259 measuring 2 Bighas 4 Kathas and as the defendant was found to be i n possession on due verification and enquiry, the said land was allotted to him. It was further stated that the house referred to in the schedule of the plaint was constructed by the father of the defendant on the plot of land measuring 6 B ighas 1 Katha covered by Old Dag No.104 (ka) corresponding to Periodic Patta No. 1 comprised in Dag No. 59/258. The boundary of the land is also given which is i dentical to the boundary given by the plaintiff in the schedule to the plaint. On the basis of pleadings, number of issues and additional issues were f 7. ramed. Having regard to the substantial question of law formulated, Issue nos. 4 and 5 are relevant and they are as follows: Whether the defendant is trespasser into the suit premises? (cid:29) (cid:28)Issue No. 4 - Whether the plaintiff had right, title and interest over the sui t land ? Issue No. 5 - 8. During trial, plaintiff examined 4(four) witnesses and the defendant exa mined 2(two) witnesses including himself. PW1 is the Manager of the Tea Estate, PW2 is Smti Nandi Gore, PW3 is a Surveyor who surveyed the area of Dehing Tea Es tate where labour quarters are located and PW4 is the Lat Mandal (Revenue Staff) . 9. The learned trial court found that in Dag No. 59 of Tea Periodic Patta N o. 1 there was Bari land of 39 Bighas 2 Kathas 15 Lechas and the said portion wa s retained by the Tea Estate and the balance area measuring 21 Bighas 2 Kathas 1 5 Lechas in Dag No. 59 of Tea Periodic Patta No. 1, being ceiling surplus land, was acquired by the Government. It was also recorded by learned trial court that allotment of land was made to defendant from Dag No. 258/259 and the suit premi ses is situated over the plot of land covered by Dag No. 59 of Tea Periodic Patt a No. 1. On the basis of Ext. 12, a draft Chitha, it was held that defendant is owner of 6 Bighas 1 Katha out of Dag No. 59/258 and 2 Bighas 3 Kathas 1 Lecha ou t of Dag No. 32/259 covered by Periodic Patta No. 1. Accordingly, issue No. 4 wa s decided in favour of the plaintiff. On the basis of Ext. 11, a site map exhibi ted by PW3, Ext. 10, an allotment letter of the suit premises, and the evidence on record, the learned trial court decided Issue No. 5 by holding the defendant to be a trespasser. The learned lower appellate court noted that Dag No. 59 originally conta 10. ined a stretch of land measuring 61 Bighas 10 Lechas belonging to the Tea Estate and 21 Bighas 2 Kathas 15 Lechas were surrendered to the Government of Assam by the plaintiff being ceiling surplus land and it retained 39 Bighas 2 Kathas 15 Lechas. As per order of the Sub-divisional Officer dated 31.03.1996, Dag No. 258 corresponding to Old Dag No. 59 and Dag No. 259 corresponding to Old Dag No. 32 were converted to Periodic Patta No. 1 in the name of the defendant. On the bas is of evidence of PW4, learned lower appellate court held that suit premises was in the un-surrendered part of Dag No. 59 and not in Dag Nos. 258, 259 allotted to the defendant. On consideration of evidence on record, the learned lower appe llate court also recorded a finding that the defendant was a trespasser. Accordi ngly, Issue Nos. 4 and 5 were decided in favour of the plaintiff. 11. Mr. R.L. Yadav, learned counsel for the appellant submits that the ceili ng surplus land was allotted to the persons in occupation. The defendant was in occupation of the suit premises since 1955 and the learned courts below, on a pe rverse appreciation of evidence of PW4, came to a finding that the suit premises was not in the allotted land of the defendant. It is submitted that the learned courts below had omitted to take note of certain portions of the evidence of PW 4 and to buttress his submission, he has read the entire evidence of PW4 highlig hting the portions which according to him were not taken note of. According to h im, evidence of PW4 establishes beyond any doubt that the suit premises is locat ed in his allotted land and therefore, the impugned judgments and decrees, being perverse, are liable to be interfered with. 12.
Legal Reasoning
Mr. D. Baruah, learned counsel for the respondent/plaintiff submits that that the respondent/plaintiff was originally having right, title and interest i n respect of 61 Bighas 10 Lechas in Dag No. 59 in Tea Periodic Patta No.1 is not at all in dispute. It is also not in dispute that the respondent/plaintiff reta ined 39 Bighas 2 Kathas 15 Lechas of land and surrendered 21 Bighas 2 Kathas 15 Lechas of land. There is no dispute with regard to right, title and interest in respect of 39 Bighas 2 Kathas 15 Lechas of land. He has submitted that the only issue is whether the suit premises is within 39 Bighas 2 Kathas 15 Lechas of lan d or is in the land allotted to the appellant/defendant out of the land surrende red by the respondent/plaintiff. Both the courts below have concurrently held th at suit premises is within the un-surrendered portion of land retained by the pl aintiff and therefore, the aforesaid concurrent finding of fact calls for no int erference. The learned counsel goes on to submit that there is no perverse appre ciation of evidence of PW4. The learned counsel further submits that there was n o explanation as to how land could be allotted vide Ext. (ka) dated 08.05.1976 w hen the order was made on 13.08.1976. 13. I have heard the learned counsel for the parties and have perused the ma terials on record. In view of the submissions of the learned counsel for the par ties, the matter lies in a narrow campus and this Court is only required to see whether the plea of perversity as raised by the appellant is sustainable. 14. In Dinesh Kumar - Vs - Yusuf Ali, reported in (2010) 12 SCC 740, the Ape x Court laid down that though under Section 100 CPC, a second appeal is maintain able on a substantial question of law and not on facts, there is no prohibition to entertain a second appeal even on question of facts provided the court is sat isfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by an erroneous approach to the matter. 15. Translated version of the evidence recorded was made available to the Co urt by the learned counsel for the parties. Mr. Yadav had drawn my attention to certain portions of the evidence of PW4 to drive home his point regarding perver sity. It will be helpful to reproduce the said portions of evidence of PW4, whic h is as follows: (cid:28)....... Dag No. 59 of Tea Periodic Patta No.1 (Mauza Makum), earlier contained 61 Bighas 10 Lechas of land. All the aforementioned land of Dehing Tea Estate of Makum Tea Company India Ltd. of this land 39 Bighas 2 Kathas 15 Lechas remained in the name of the company and the rest 21 Bighas 2 Kathas 15 Lechas became cei ling sarkari land. The aforementioned 21 Bighas 2 Kathas 15 Lechas of ceiling la nd became different Dags and the numbers are 258, 261, 263, 264, 266 and 574. Th e order of ceiling was made on 13.08.76 ................... I measured the afore said land. We took over the ceiling land which made sarkari. The land which rema ined in the name of the tea company contains company quarters and tea (bushes). A part of Dag No. 59 is under occupation of one Bhola Gore and he has his house and Basti on it. I do not know whether there is anybody else in that land. The h ouse where Bhola Gore lives looks like/resembles company quarter. I allotted the ceiling surplus land to the people under whose possession land was and allotted land in Dag Nos. 258 and 259 in the name of Bhola Gore. The land of dag No.259 is the same land of Dag No. 32 (old) falling in the same patta............. (cid:29) It is relevant to note that PW4 had further stated on the basis of Ext. 16. 13 that boundary of Dag No. 59 contains 39 Bighas 2 Kathas and 15 Lechas of land and the ceiling surplus land was shown in Dag Nos. 258, 261, 263, 264, 266 and 574. In cross-examination, PW4 had denied the suggestion that the disputed land did not fall in Dag No. 59 of Tea Periodic Patta No. 1. He had also denied the s uggestion that the disputed house fell in the 21 Bighas 2 Kathas and 15 Lechas o f ceiling surplus land. From the portion of the evidence relied upon by Mr. Yada v, which is quoted above, it does not follow that the defendant was allotted lan d including the disputed building. What is clear from the evidence is that peopl e were allotted ceiling surplus land who had possession therein. It is impermiss ible to draw an inference as Mr. Yadav would like this Court to draw that becaus e of reference to Dag No. 59 in which defendant was also found to be in occupati on, such land with the building was the land allotted to the defendant. The fact um of possession is secondary. More important is the identification of the ceili ng surplus land. The picture that emerges is that the disputed land is in Dag No
Decision
. 59. PW4 did not say that the disputed land ultimately formed a part of Dag No. 258. Even after some part of Dag No. 59 was converted to Dag No. 258, there was still a sizable chunk of land in Dag No. 59 of Tea Periodic Patta No. 1. Accord ingly, in view of the above discussion, I am of the considered opinion that plea of perversity in the matter of appreciation of evidence of PW4 has no merit. 17. The evidence on record shows that the father of the defendant was a work er of the Tea Estate. The defendant, while examining himself as DW1, had stated that his father had constructed the house in the year 1955 but he never lived th ere. DW1 had also stated that he was born in the disputed house. He has further stated that he used to live in the house with his wife and other family members. From his own evidence, it appears that he was born sometime in 1946 as he had s tated that in cross-examination recorded on 03.08.1991, he was about 45 years ol d. Therefore, his plea that he was born in that house cannot be accepted. It is on record that father of the defendant retired in the year 1973 and expired in t he year 1984. 18. Evidence of witnesses of plaintiff discloses that father of the defendan t was allotted the quarter which is the disputed house. Subsequently, the quarte r was allotted to Rajesh, who is husband of PW2. After he had resigned from the services of the Tea Estate, the quarter was allotted to PW2. DW1 had also depos ed that Rajesh and Nandi had separated after about 3 years of marriage. There is also evidence that all of them used to reside together in that disputed house a nd that the defendant forcefully evicted PW2 from the quarter. 19. nd accordingly, the same is dismissed. No cost. 20. Send back the LCRs. In view of the above discussion, I find no merit in this Second Appeal a