High Court
Case Details
RSA 11/2000 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the plaintiffs is directed against the judgment and decree dated 6th September, 1999 passed by the learned Civil Judge (Sr. Division), Barpeta in Title Appeal No.21/1997 allowing the appeal preferred by the predecessor-in-int erest of the present respondent Nos.1 to 6, namely Md. Hussain Ali, who was the defendant in the suit, by setting aside the judgment and decree dated 19th June, 1997 passed by the learned Civil Judge (Jr. Division), No.1, Barpeta in Title S uit No.150/1986, whereby and whereunder the suit of the plaintiffs was decreed. [2] The appellants as plaintiffs instituted the said suit for declar ation of their right, title and interest and initially for confirmation of posse ssion and thereafter, by amendment of the plaint, for recovery of khas possessio n by evicting the original defendant there from contending inter alia that out o f the total land measuring 11 Bighas 4 Kathas 4 Lechas covered by Dag Nos.210 an d 407 of Periodic Patta No.29 of village Rangia Nadir Pam, Sarukhetri Mouza, dis trict Barpeta, land measuring, 5 Bighas 4 Kathas 7 Lechas in Dag No.210 was tran sferred by its original owner, namely, Gopikanta Das, in favour of Usman, Abdul Kader and Kayed Ali, by a registered instrument of sale dated 11th December, 197 3 (Exhibit-2), who thereafter, on 22nd August, 1975 (Exhibit-1) sold the said la nd in favour of the plaintiffs by executing a registered deed of sale, by virtue of which, the plaintiffs have acquired right, title and interest. According to the plaintiffs, after such purchase, though they were put into possession, they
Legal Reasoning
, however, was subsequently dispossessed by the defendants. [3] The defendants contested the suit by filing written statement co ntending inter alia that the suit land though initially settled with Gopikanta Das, he having failed to enter into the possession of the land, the Assistant S ettlement Officer on the basis of the application filed by the defendant, who ha s been possessing the land since the date of his forefathers, cancelled the sett lement in favour of Gopikanta Das and thereafter, issued annual patta on 26th Se ptember, 1960 in the name of the defendant, which was subsequently converted to Periodic Patta on 26th July, 1963. According to the defendants, the settlement of Gopikanta Das having been cancelled and subsequently annual and period patta having been issued in favour of the defendant on 26th September, 1960 and 26th J uly, 1963, respectively, Gopikanta Das had no right to sale the land in favour o f Usman, Abdul Kader and Kayed Ali by registered deed of sale dated 11th Decembe r, 1973 (Exhibit-2) and consequently they could not have transferred the land in favour of the plaintiff vide registered deed of sale dated 22nd August, 1975 (E xhibit-1). [4] s framed the following issues for determination:- On the basis of the pleadings of the parties, the trial Court ha (cid:28)1. Whether there is cause of action for this suit? 2. Whether this court has pecuniary jurisdiction to try this suit? 3. Whether the suit is bad for nonjoider of necessary parties? 4. Whether the suit is under valued and under stamped? 5. Whether the suit is barred by law of limitation? 6. Whether the plaintiffs have right, title and interest and possession over the suit land? 7. Whether the plaintiffs are entitled to a decree as prayed for? 8. To what other relief or reliefs of any the plaintiffs are entitled? Additional Issues 9. Whether the plaintiffs were dispossessed by the defendant from the suit land on April, 1994, during the pendency of this suit? 10. Whether the plaintiff is entitled for a decree of khas possession as prayed for? (cid:29) [5] It also appears from the judgments passed by the Courts below th at another issue relating to the maintainability of the suit in view of the prov isions contained in Section 154 of the Assam Land and Revenue Regulation was als o framed as issue No.11. [6] The plaintiffs in order to prove their case examined 5(five) wit nesses and exhibited a number of documents including the sale deeds dated 11th D ecember, 1973 (Exhibit-2); 22nd August, 1975 (Exhibit-1) and the periodic patta issued in the name of Gopikanta Das (Exhibit-4). The defendants have examined 3 (three) witnesses and also proved a number of documents including Exhibits-Ka, K ha and Ga draft cithas. [7] The trial Court on the basis of the evidences adduced by the par ties, both oral and documentary, decreed the suit of the plaintiff declaring his right, title and interest and also for recovery of khas possession, which was p ut to challenge in Title Appeal No.21/1997, which has been allowed by the first appellate Court by setting aside the judgment and decree passed by the trial Cou rt, as noticed above. Hence, the present appeal. [8] r hearing on the following substantial questions of law:- Vide order dated 28th February, 2000, the appeal was admitted fo (cid:28)i) Whether Certified copy of Draft Chithas have got evidentiary value under Section 74 of the Evidence Act? ii) Whether the mutation order and records etc. made in Draft Chithas can be used as evidence without proving the same by the Officer who made the entries a s per Section 35 of the Evidence Act? iii) ries made in the Chithas and land records? Whether right, title, interest of land can be based on bare mutation ent iv) Whether the Court can hold a periodic patta being cancelled merely on th e basis of oral evidences of cancellation of Patta without proving the Order of cancellation? v) Whether a periodic patta which was issued in due process of law can be t reated as cancelled without notice to the patta holder and by a person other tha n a Commissioner in accordance with Rule 26 of the settlement Rules framed under Land Revenue Regulations, 1882? (cid:29) [9]
Legal Reasoning
I have heard Mr. K. Basar, learned counsel for the appellants an d Mr. Z. Mukit, learned counsel appearing for the respondent Nos.1 to 6, the suc cessor-in-interest of the original defendant, Md. Hussain Ali. Mr. Basar, learned counsel for the appellants referring the impu [10] gned judgment and decree passed by the first appellate Court has submitted that the first appellate Court has set aside the judgment and decree passed by the tr ial Court based on the Exhibits-Ka, Kha and Ga draft chithas, without the proof of the primary order based on which entry into the draft chithas was made. It h as also been submitted that in view of the provisions contained in Section 35 of the Indian Evidence Act, entries in the said draft chithas is not admissible in evidence as no evidence was led by the defendant that such record was maintaine d in regular course of business by the public authority. The learned counsel su bmits that since the plaintiff could prove the original title of Gopikanta Das, which has also been admitted by the defendant in the written statement, apart fr om the sale of the suit land described in Schedule-B to the plaint by Gopikanta Das in favour of Usman, Abdul Kader and Kayed Ali by Exhibit-2 sale deed dated 1 1th December, 1973 (Exhibit-2) and also the sale of the suit land by them in fav our of the plaintiffs vide Exhibit-1 sale deed dated 22nd August, 1975 (Exhibit- 1), the first appellate Court ought not to have disturbed the judgment and decre e passed by the trial Court. Mr. Basar, learned counsel, therefore, submits tha t the judgment and decree passed by the first appellate Court needs to be set as ide and the judgment and decree passed by the trial Court needs to be restored. [11] Per contra, Mr. Mukit, learned counsel appearing for the respond ent Nos.1 to 6 submits that it is evident from Exhibits-Ka, Kha and Ga that the settlement made in favour of Gopikanta Das was cancelled as he was not found to be in possession of the suit land and thereafter, the annual patta was issued in the name of the original defendant, which was converted to periodic patta. Mr. Mukit, therefore, submits that after cancellation of the settlement made in favo ur of Gopikanta Das, he did not have any right, title and interest over the suit land to transfer the same by Exhibit-2 sale deed to Usman, Abdul Kader and Kaye d Ali. Consequently, according to the learned counsel, the plaintiff could not a lso derive any title over the suit land by means of Exhibit-1 sale deed executed by Usman, Abdul Kader and Kayed Ali. It has also been submitted that it is evi dent from the evidence adduced by the parties that the defendant has been in pos session for a long time and no possession was handed over either to Usman, Abdul Kader or Kayed Ali or to the plaintiffs, by the sellers. [12] I have considered the submissions advanced by the learned counse l appearing for the parties and also perused the judgments and decrees passed by the Courts below. [13] The appellants/plaintiffs in order to prove their title have pro ved the Exhibit-2 sale deed dated 11th December, 1973 executed by Gopikanta Das in favour of Usman, Abdul Kader and Kayed Ali and also Exhibit-1 sale deed date d 22nd August, 1975 executed by them in favour of the plaintiffs. Those sale de eds are registered deeds of sale and the registering authority upon admission of execution of the sale deeds by the vendors, issued the registration certificate by registering the sale deeds. Section 60(2) of the Registration Act, 1908 pro vides that the certificate signed, sealed and dated by the registering officer, is admissible for the purpose of proving that the document has been duly registe red in manner provided by the Act, and that the facts mentioned in the endorseme nt referred to in Section 59 have occurred as therein mentioned. Section 59 pro vides that the registering authority shall affix the date and signature to all e ndorsements made under Section 52 and 58, relating to the same document and made in his present on the same day. Section 58 requires endorsement of the followi ng by the registering authority- (a) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitte d by the representative, assign or agent of any person, the signature and additi on of such representative, assign or agent; (b) the signature and addition of ev ery person examined in reference to such document under any of the provisions of the Act; and (c) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and a ny admission of receipt of consideration, in whole or in part, made in his prese nce in reference to such execution. Such presumption, however, is rebutable pre sumption and hence, the person who challenges such presumption has to prove that the endorsements made are not correct. [14] In the instant case, the power of attorney executed by Gopikanta Das was proved and marked as Exhibit-3, which was a registered endorsement. Th e registering authority has also issued the certificate to the effect that Gopik anta Das has admitted the execution for such power of attorney. The power of at torney holder thereafter, executed the Exhibit-2 sale deed dated 11th December, 1973, on behalf of Gopikanta Das in favour of Usman, Abdul Kader and Kayed Ali. The registering authority has also issued certificate relating to the due execu tion and admission of execution by the power of attorney holder. Usman, Abdul K ader and Kayed Ali executed the sale deed dated 22nd August, 1975 (Exhibit-1) in favour of the plaintiffs. The registering authority also issued the certificat e relating to the admission of execution of the said deed by Usman, Abdul Kader and Kayed Ali transferring the suit land in favour of the plaintiffs on receipt of the valuable consideration. The plaintiffs, therefore, could prove that Gopi kanta Das, who admittedly the original owner, initially transferred the land in favour of Usman, Abdul Kader and Kayed Ali, who thereafter, transferred the suit land in favour of the plaintiffs vide Exhibits-2 and 1, respectively. [15] The defendant case, as noticed above, is that though Gopikanta D as was settled with the suit land, such settlement, however, was cancelled and t hereafter, the annual patta was issued in favour of the defendant, which was sub sequently converted to periodic patta. The defendant in support of his contenti on has proved Exhibits-Ka, Kha and Ga draft chithas. The defendant, however, ha s not proved the primary document, i.e. orders by which the settlement order mad e in favour of Gopikanta Das was cancelled as well as the order by which the ann ual patta and the periodic patta was issued. The defendant has also not proved either the annual patta or the periodic patta stated to be issued in his favour. That apart, Section 35 of the Indian Evidence Act provides that [16] an entry in any public or other official book, register or record or an electron ic record, stating a fact in issue or relevant fact, and made by a public servan t in the discharge of his official duty, or by any other person in performance o f a duty specially enjoined by the law of the country in which such book, regist er, or record or an electronic record is kept, is itself a relevant fact. The d efendant though proved Exhibits-Ka, Kha and Ga draft chitha did not, however, le ad any evidence that the same was made by the public servant in discharge of his official duty. The final chitha has also not been proved. In the absence of a ny such proof, no reliance can be placed on Exhibits-Ka, Kha and Ga, so as to ho ld that the settlement made in favour of Gopikanta Das was cancelled and as such , he did not have any right, title and interest to transfer the land in faovur o f Usman, Abdul Kader and Kayed Ali by Exhibit-2 sale deed and thereafter, by tho se purchasers in favour of the plaintiff by Exhibit-1 sale deed. [17] That being the position, I am of the view that the first appella te Court was not justified in setting aside the judgment and decree passed by th e trial Court, which is, therefore, set aside. The judgment and decree passed b y the trial Court is restored. The plaintiffs’ suit is decreed. [18] The appeal stands allowed. No costs.