High Court
Case Details
RSA 121/2001 B E F O R E HON’BLE MR. JUSTICE B. P. KATAKEY JUDGMENT & ORDER (oral) This appeal is directed against the judgment and decree dated 24.08.2001 , passed by the learned Civil Judge (Senior Division), Nagaon in Title Appeal No .2 of 2001, dismissing the appeal preferred by the present appellant by affirmin g the judgment and decree dated 04.12.2000, passed by the learned Civil Judge (J unior Division) No.1, Nagaon, in T.S. No.3 of 1995, whereby and whereunder the s uit of the plaintiff/appellant has been dismissed.
Legal Reasoning
2. The appellant as plaintiff, instituted the aforesaid suit, prayi ng for a decree declaring that he has acquired the right, title and interest ove r the suit land measuring 3K 10 L, described in the Schedule to the plaint, by a dverse possession, on being in possession for more than 35 years; to issue procl amation to the defendants 1 to 3 to settle the land in his favour and also for a decree of permanent injunction restraining the defendants from evicting him fro m the suit land. The plaintiff’s case as pleaded in the plaint is that he is pos sessing the suit land, which admittedly the Government khas land, for more than 35 years by paying touzi revenue to the Government, which land is adjacent to hi s own land covered by periodic Patta No.225 and Dag No.269 at Kampur town in the district of Nagaon. It has further been pleaded that the plaintiff has constru cted over the suit land, one godown and other structures and despite such posses sion, the defendant Nos.1, 2 and 3 have initiated the process for settlement of the land in favour of the defendant No.4, in the proceeding numbered as NRS 292/ 93, without considering the objection of the plaintiff. According to the plainti ff, the proposal has been submitted by the Land Advisory Board for settlement of the land in favour of the defendant No.4 though the plaintiff is enjoying the p ossession over the said land for more than 35 years by constructing godown etc. The plaintiff, therefore, filed the suit for declaration and permanent injunctio n as noticed above. 3. The defendant Nos. 1, 2 and 3 filed their joint written statemen t contending inter alia that the plaintiff is not entitle to settlement under th e State Land Policy Act, 1989, he having the land in the Kampur town in the dist rict of Nagaon and on the other hand the defendant No. 4 having no land in the u rban area, the proposal for settlement of the land in his favour has been submit ted to the Government. The said defendants have also denied the possession of th e plaintiff, apart from contending that the suit land is vacant land and the def endant No.4, who happened to be ex-serviceman and was found to be landless, the proposal for settlement has been forwarded to the Land Advisory Board, which has proved the same. The defendant No.4, in the written statement filed has also co ntended that the plaintiff is not entitled to the decree as prayed for, he being not eligible for consideration for allotment, under the said Land Policy Act, 1 989, he, admittedly, having the land in Kampur town in the district of Nagaon, w hich is adjacent to the suit land. It has further been pleaded that the plaintif f being not in possession of the land, the right, title and interest cannot be d eclared. According to the defendants, even if the plaintiff has the possession, which, however, has been denied, the plaintiff has not acquired right, title and interest over the suit land, the same being Government land and the plaintiff h aving claimed that he is paying the touzi revenue to the Government. 4. amed the following issues for determination. The trial Court on the basis of the pleadings of the parties, fr (cid:28)1. Whether there is any cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the plaintiff has acquired any right, title and interest over the suit land? 4. Whether the plaintiff has any preferential claim to get settlement of the suit land? 5. Relief if any, the either party is entitled to? (cid:29) 5. The trial court upon appreciation of the evidence on record addu ced by the parties, dismissed the suit of the plaintiff/appellant by holding tha t since the plaintiff claims to be in possession of the land by paying touzi rev enue to the Government, its possession cannot be termed as hostile to the intere st of the lawful owner i.e. the State and hence even if the plaintiff is in poss ession for more than 30 years, the said possession, however long it may be, cann ot constitute the adverse possession and consequently cannot acquire right, titl e and interest. The Trial Court has also found that under the State Land Policy the plaintiff is not entitled to be considered for allotment/settlement of the s uit land in preference to the claim of the defendant No.4, who happens to be a l andless person. Being aggrieved, the plaintiff/appellant preferred Title Appeal 6. No.2/2001, which has also been dismissed by the First Appellate Court by affirmi ng the judgment and decree passed by the Trial Court. Hence the present appeal. The appeal was admitted for hearing vide order dated 18.10.2001 7. on the following substantial question of law:- Whether the courts below erred in law in holding that the plaintiff being in pos session of the urban land, the defendant is entitle to preferential right of set tlement over the plaintiff under the land policy of the State? 8.
Legal Reasoning
I have heard Mr. N. Choudhury, learned counsel appearing for the appellant and Mr. G. Somua, learned counsel appearing for defendant/respondent No.4. None appears for the defendant Nos. 1, 2 and 3/respondent Nos. 1, 2 and 3. 9. Referring to the application, filed under Order 41 Rule 27 CPC, which has been registered and number as MC No.2687/12 and also the document anne xed thereto, it has been submitted by the learned counsel that the appellant may be allowed to adduce additional evidence to demonstrate that the respondent No. 4 is not a landless person, as the courts below had dismissed the suit of the p laintiff only on the ground that the respondent No.4 is a landless person and a s such is entitle to preferential claim of settlement under the said land polic y. 10. Learned counsel further submits that since the appellant is occu pying and possessing the land for more than 35 years, on the date of filing of t he suit, openly, continuously and denying the title of the lawful owner i.e. the State, he has acquired prescriptive right, consequently his title over the suit land has been preferred by adverse possession. It has also been submitted that the appellant being in possession for more than 35 years, he has also right to c laim the settlement in preference to the claim of settlement by the respondent N o.4, who is not a landless person, as evident from the documents annexed in MC N o. 2687/12. Mr. G. Somua, learned counsel appearing for defendant/ responden 12. t No.4, on the other hand, has submitted that the application filed by the appel lant (MC NO.2687/12) for adducing additional evidence cannot be allowed that too in the second appeal stage, as the appellant could not demonstrate the fulfilme nt of the requirement stipulated under Order 41 Rule 27 CPC for allowing a party to adduce additional evidence in the appeal stage. In any case, according to th e learned counsel, even if the documents annexed to the application are taken in to consideration, those being copies of the Jamabandi in respect of the land in rural area and there being no evidence on record to demonstrate that the respond ent No.4 has any land in the urban area, no illegality has been committed by the courts below in dismissing the suit filed by the appellant, who admittedly has land in the urban area which is adjacent to the suit land. The learned counsel r eferring to the said land Policy, 1989, submits that a person having the land in the urban areas, even if in possession of any Government Khas land in the urban area, is not entitled to get settlement/allotment of land in the urban area and on the other hand even if the respondent No.4 has land in the rural area, he is entitled to be considered for settlement/allotment of the land in the urban are a, he having no land in the urban area. The learned counsel, therefore, submits that the appeal preferred by the appellant needs to be dismissed with cost. 13. I have considered the submission advanced by the learned counsel for the parties and also perused the judgments and decrees passed by both the c ourts below. I have also perused the other materials available on record, apart from the land Policy of Government of Assam, 1989, as produced by the learned co unsel for the parties and the documents annexed to MC No. 2687/12. 14. The appellant’s suit is based on the claim that he has acquired the prescriptive right over the suit land because of the long possession of 35 y ears. The appellant in the plaint has admitted that he possesses the suit land b y paying touzi revenue to the Government, who is the owner of the land. The touz i revenue paid to the Government as held by the Apex Court is nothing but fine f or illegal occupation of the Government khas land available for settlement. It i s, therefore, not that the appellant is possessing the suit land openly and deny ing the lawful title of the State and without any disturbance from the lawful ow ner so as to constitute adverse possession and consequently acquiring right, ti tle and interest by virtue of such possession. Both the courts below have, there fore, rightly rejected the claim of the appellant that he has acquired the right , title and interest over the suit land by adverse possession. No possession, ho wever, long may be would not constitute adverse possession unless such possessio n is open, continuous and denying the title of the lawful owner. The further claim of the appellant in the suit was that he is entitled to be co nsidered for settlement, in view of the State Government’s Land Policy, which un fortunately had not been proved and marked as Exhibit by the plaintiff, but has been produced before this Court. Relevant portion of the said Policy is reproduc ed below: (cid:28)14.3. Land within Greater Guwahati notified under Government Notificati on No.RSR.21/59/126, dated 1st October, 1966 and in any other Towns may be settl ed on payment of due premium with the indigenous persons of the State in order o f preference as follows: (i) An indigenous person, who has no land in his name or in the name of any member of his family and who has been in occupation of Government land with memb ers of his family for last 15 years or more. An indigenous person, who has land in rural area of the State, but has n (ii) o land in City or Town in his name or in the name of any member of his family an d has been in occupation of Government land with members of his family for last 15 years or more. (iii) An indigenous person, who has no land in rural areas or in City or Town in the State either in his name or in the name of any member of his family and has been staying in urban area for last 15 years or more with the members of his family. An indigenous person, who has land in rural areas, but has no land in an (iv) y urban areas either in his name or in the name of any member of his family, and who has been residing in urban area for last 15 years or more with member of hi s family: Provided that such person is required to reside in urban area permanently by ver y nature of his service/professions and who has not been able to purchase land i n urban area on account of poor pecuniary condition. (v) Other indigenous landless persons of the State. (cid:29) 15. The appellant in the plaint has pleaded that he has other land i n Kampur town, which is an urban area, and adjacent to the suit land. It has als o come in the evidence that the appellant has 12 Bighas of land apart from the l and which he has mentioned in the plaint. That being the position and having reg ard to the land policy of the State Government, relevant portion of which has be en quoted above, the appellant was not entitled to claim settlement/allotment of the Government land and hence, the suit of the appellant ought to have been dis missed at the threshold, as such frivolous suit is required to be dismissed as h eld in by the Apex Court in T. Arivandanam Vs T.V. Satyapal and another reported in (1977)4 SCC 467. 16. Both the courts below have recorded the finding of fact that the respondent No.4 is a landless person, which however, the appellant wants to con trovert by filing the MC 2687/12, praying for allowing him to adduce additional evidence i.e. copies of the jamabondi to demonstrate that the respondent No.4 ha s the land and therefore, according to the appellant, the finding of fact record ed by both the courts below that the respondent No.4 is a landless person is per verse. Without going into the question whether the appellant could make out any case to allow him to adduce additional evidence under Order 41 Rule 27 CPC, peru sal of documents, which are sought to be introduced by way of additional evidenc e, reveals that those documents relate to the land in the rural area and not in the urban area/town area. Clause 14.3(iv) provides for settlement of the land in urban area, in favour of an indigenous person, who has land in rural area, but has no land in urban area either in his name or in the name of any member of his family and who has been residing in urban area for last 15 years or more with m embers of his family, provided such person is required to reside in the urban ar ea permanently by very nature of his service/profession and who is unable to pur chase land in urban area on account of poor pecuniary condition. Clause 14.3(v) also empowers the State Government to make settlement/allotment of land in the u rban area to other indigenous and landless person of the State. 17. The appellant in the suit could not demonstrate that the respond ent No.4 has any land in the urban areas and has not been residing in urban area s for last 15 years and more and he is not required to do so permanently by very nature of his service/profession as well as that he had the ability to purchas e land in urban area. The respondent No.4, admittedly is an ex-serviceman, who h as dedicated his service life to protect the country. On the other hand, the app ellant, who is a businessman, according to his own admission has mill and other property in the urban area. The appellant by instituting the suit has successful ly stalled the process of settlement initiated by the respondent Nos. 1, 2 and 3 in favour of the respondent No.4, for last 18 years. 18. Having regard to the aforesaid discussion, I am of the view that the appeal is devoid of any merit and hence the same is dismissed with cost of Rs.25,000/- (Rupees twenty five thousand) only which shall be paid by the appell ant to the respondent No.4. 19. The Registry is directed to send down the records forthwith.