High Court
Case Details
RSA 107/2003 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL) This appeal by the defendant No.2, is directed against the judgment and decree dated 19.09.2002 passed by the learned Civil Judge (Sr. Division), Jorhat , in Title Appeal No.7/1996, dismissing the appeal preferred by the present appe llant and others, by affirming the judgment and decree dated 23.02.1996 passed b y the learned Munsiff, Jorhat, in Title Suit No.64/1976, whereby and whereunder the suit filed by the plaintiffs has been decreed. The predecessor-in-interest of the present respondents, namely, Riazuddi 2. n Ahmed and the present respondent Nos.1, 2 and 3 have instituted the aforesaid suit praying for a decree declaring that the defendants are not tenants under th e plaintiffs and as such is not entitled to get the khatian and also for recover y of khas possession, contending inter alia that the suit land along with other land originally belonged to Md. Fazil, predecessor-in-interest of the plaintiff No.1 Md. Riazuddin Ahmed, the defendant No.1 Nawab Ali (since deceased) and late Matiur Rahman and after the death of Md. Fazil, entire belonging to him was inh erited by all the three brothers. It has further been contended that there was a n amicable partition of the ancestral property and accordingly the suit land fel l in the share of Riazuddin Ahmed. The further pleaded case is that since the or iginal plaintiff Riazuddin Ahmed was out of Jorhat Town because of the service i n the Department of Supply, Govt. of Assam, the land was given to the defendant No.1 Nawan Ali and Matiur Rahman for cultivation, for which necessary cost was p aid by Riazuddin Ahmed. It has further been contended that the defendant No.1 su rreptitiously got the khatian issued in the name of his son, defendant No.2, tho ugh he was a school student and not a cultivator, in respect of the suit land, t hough they are not tenants within the meaning of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (in short the 1971 Act), and there was no arrangement f or payment of rent or the Adhi system, about which the plaintiff came to know su bsequently, for which he has to institute the suit. During pendency of the suit Nawab Ali died and in his place his legal heirs were substituted. Thereafter the sons and daughters of the original plaintiff Riazuddin Ahmed were impleaded as proforma defendant Nos.7, 8 and 9, who were, however, subsequently transposed as
Legal Reasoning
the plaintiff Nos.2, 3 and 4. 3. The defendant Nos.1 and 2 (defendant No.1 is the brother of the original plaintiff Riazuddin) filed the joint written statement contending inter alia th at they are possessing the land since 1944 and cultivating the same, which was n ever in possession of the plaintiffs. They have also claimed that they being the tenants, khatians were issued in their names by the Revenue Authority under the provisions of the 1971 Act. 4. The Trial Court on the basis of the pleadings of the parties, framed the following 10(ten) issues for determination:- Whether there are causes of actions for the suit? Whether this Court has got jurisdiction to try this suit? Whether the suit is maintainable in the present form? Whether the suit is bad for non-joinder of necessary parties? Whether the present plaintiffs have right, title and interest over the s (i) (ii) (iii) (iv) (v) uit land as devolved on them? (vi) tiffs after late Riazuddin Ahmed? (vii) Whether the defendant No.1 was entrusted with the management of the prop erty of late Riazuddin Ahmed during absence of late Riazuddin since 1944 till 19 68 with the Govt. duty and the defendant No.1 occupied the position of a trust? (viii) Whether the khatian issued in the name of the defendants is liable to be Whether the defendant Nos.1, 2 and 3 are tenants under the present plain cancelled? (ix) Whether the present plaintiffs are entitled to any decree as prayed for? (x) To what relief/reliefs the parties are entitled to? 5. Though the suit was initially dismissed, on remand by the First Appellat e Court, the suit was decreed in favour of the plaintiff, against which the afor esaid Title Appeal was preferred by all the defendants, which has been dismissed . Hence the present appeal by the defendant No.2. The appeal was admitted for hearing vide order dated 29.07.2003 on the f Whether a decree in favour of a dead person is nullified? Whether by virtue of an alleged oral partition the land can devolve on t 6. ollowing substantial questions of law:- (i) (ii) he plaintiff? (iii) Whether having a grocery shop decides title to a person for being consid ered as a tenant under Section 3(17) of the Assam (Temporarily Settled Areas) Te nancy Act?
Legal Reasoning
7. nd Ms. S. Sarma, learned counsel appearing for the respondents/plaintiffs. I have heard Mr. M.K. Choudhury, learned Sr. counsel for the appellant a 8. Mr. Choudhury, the learned Sr. counsel submits that though 3(three) subs tantial questions of law were framed vide order dated 29.07.2003, the substantia l question No.iii only exists in the present appeal. The learned counsel for the parties, therefore, address this Court on substantial question No.3 only. 9. It has been contended by Mr. Choudhury that in view of Section 66 of the 1971 Act the suit of the plaintiffs that the defendants are not tenants and are , therefore, not entitled to the Rayati Khatian under the provisions of 1971 Act , is not maintainable, as by the said provision the Civil Court’s jurisdiction h as been barred in respect of the preparation of record of rights under Chapter-X of the said Act. The learned Sr. counsel further submits that even assuming tha t the Civil Court has jurisdiction to go into the question as to whether there a re relationship of landlord and tenant between the parties, since it is evident from the evidence adduced by the plaintiff that the record of right has been pre pared by the Revenue Authority under the provisions of the 1971 Act and accordin gly Rayati Khatian was issued, the burden heavily lies on the plaintiff to prove that there was no relationship of landlord and tenant between the parties, whic h burden the plaintiff having failed to discharge, the Courts below ought not to have passed the decree in favour of the plaintiff. The learned Sr. counsel furt her submits that both the Courts below while deciding the issue relating to the relationship of landlord and tenant between the parties, did not consider the do cumentary evidence adduced by the plaintiff more particularly the Exts.-2, 3 and 4, from where it appears that the plaintiff could not prove the personal cultiv ation within the meaning of Section 3(10) of the 1971 Act and it is evident that the defendants were tenants under the plaintiff within the meaning of Section 3 (17) of the said Act. The learned Sr. counsel, therefore, submits that the judgm ents and decrees passed by the Courts below require interference. 10. On the other hand, Ms. Sarma, the learned counsel appearing for the resp ondents, supporting the judgments and decrees passed by the Courts below, has su bmitted that it is evident therefrom that though the defendants have claimed to be the tenants under the plaintiff, they could not prove the same by adducing an y evidence as the DW-1 (defendant No.2) during cross-examination has admitted th at he does not know under what condition the land was cultivated, apart from adm itting that there was no agreement between him and the plaintiff. The learned co unsel further submits that consistent view of this Court being that despite the provisions contained in Section 66 of the 1971 Act a suit for declaration that t here is not relationship of landlord and tenant between the parties is maintaina ble, the Courts below have rightly held the suit filed by the plaintiff as maint ainable. The learned counsel in support of her contention has placed reliance on the decision of this Court in Shri Bhangalu Sau Vs. Shri Boloram Barua & ors. r eported in 1991(1) GLR 325. 11. e parties. I have considered the submissions advanced by the learned counsel for th 12. A Single Bench of this Court in Shri Bhangalu Sau (supra), placing relia nce on earlier decisions of this Court in Mustt. Sunaban Bewa & ors. Vs. Sri Man ehab Ali Sekh reported in 1990(1) GLR 190; in Nur Islam & ors. Vs. Trolaikhya Na th Hazarika reported in 1989(1) GLR 187 and in Second Appeal No.35/1979, has hel d that despite the provisions contained in Section 66 of 1971 Act, a suit for de claration that there is no relationship of landlord and tenant is maintainable. In Shri Bhangalu Sau (supra) it has further been held that every entry in the re cord of rights finally published shall be a conclusive evidence on the matter re ferred to in such entries and shall be presumed to be correct unless it is prove d by evidence to be incorrect. 13. In the instant case, it is an admitted position of fact that the name of defendant No.1(since deceased) has been recorded in the revenue record under Ch apter-X of 1971 Act and accordingly khatian was issued. Though a suit for declar ation that either the defendant No.1 or the defendant No.2 is not a tenant is ma intainable, the burden lies on the plaintiff to prove that there was no such rel ationship between the parties and the entries in such revenue record has to be p roved to be wrong. It appears that apart from the oral evidence adduced by the parties, in 14. relation to the issue relating to the relationship of landlord and tenant betwee n the parties, documentary evidence was also led, including Exts.-2, 3 and 4 pro ved by the plaintiff. Those documents have not been considered by the First Appe llate Court while recording the finding that the defendants could not prove that there was relationship of landlord and tenant between the parties, though the b urden lies on the plaintiff to prove that there was no such relationship, as in the record of rights prepared under Chapter-X of 1971 Act the name of the defend ant No.1 (since deceased) has been recorded and such entry must be presumed to b e correct unless proved otherwise. 15. In view of the above, I set aside the judgment and decree dated 19.09.20 02 passed by the First Appellate Court and remand the appeal to the said Court f or deciding the issue relating to the relationship of landlord and tenant betwee n the parties, on the basis of the evidence already adduced by the parties. The same shall be done within a period of 45 days from the date of appearance of the parties. The parties are directed to appear before the Court below on 02.12.201 3. 16. The Registry is directed to send down the records to the First Appellate Court so as to reach the said Court on or before 25.11.2013. 17. s. The appeal is accordingly allowed to the extent indicated above. No cost