High Court
Case Details
RSA 51/2002 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY By this second appeal at the instance of the defendants the appellate judgment o f reversal passed by learned Civil Judge, Sr. Division, Hailakandi in Title Appe al No. 23/2000 has been assailed. The learned trial Court dismissed Title Suit N o. 42 of 1994 in favour of the defendants whereupon plaintiff preferred the afor esaid appeal and by the impugned judgment the trial Court decree was reversed by
Legal Reasoning
the learned First Appellate Court decreeing the suit of the plaintiff. 2. Plaintiff, Shamsundar Kairi filed a suit in the Court of learned Civil J udge, Junior Division No. 2, Hailakandi praying for declaration of his right, ti tle and interest and for confirmation of possession along with injunction for re straining the defendants from dispossessing of the plaintiff from the suit land. The plaintiff claimed to have purchased the land by a registered sale deed date d 27.07.1982 from one Shyamalabala Roy, the widow of Suhagmoni Roy the original tenant / khatandar of the suit land. According to the plaintiff, suit land measu ring 4 kedars 3 powas alongwith other lands were jointly owned by one Ramesh Roy and Suhagmoni Roy both being sons of Haridhan Namasudra as tenants under origin al land holder, Darogaram Baroi. The plaintiff further stated that Ramesh Roy an d Suhagmoni Roy got the land divided into equal halves and the suit land fell in the share of Suhagmoni Roy. Suhagmoni died leaving behind daughter Kiranbala Ro y and widow Shyamalabala Roy and the plaintiff purchased the land from Shyamalab ala Roy. Since then he had been possessing the land but the defendants threatene d to dispossess him for which filing of the suit for declaration of right, title and interest, confirmation of possession and injunction became necessary. 3. The defendants submitted written statement denying that Suhagmoni had an y title to the suit land. According to the defendants the suit land was taken on tenancy by Ramesh Roy exclusively from original owner Darogaram Baroi on execut ion of registered kabuliyat on 18.05.1953 and on his death the defendants had be en possessing the same on assertion of the right of tenancy. The defendants, the refore, denied that Suhagmoni not having any title to the land, the sale deed da ted 27.07.1982 did not convey any title on the plaintiff and as such the suit of the plaintiff is liable to be dismissed, the defendants claimed. On the basis of the aforesaid pleadings of the parties, the learned tria 4. l Court framed as many as 5 issues and the same are as follows: I. II. III. IV. of the plaintiff? V. Is there any cause of action? Whether the suit is maintainable in its present form? Whether the plaintiff has possession over the suit land? Whether late Shyamalabala Roy executed and deed on 27.07.1982 in favour To what relief or reliefs the plaintiff is entitled? 5. Plaintiff examined five witnesses and exhibited the aforesaid sale deed as Ext.-2 whereas the defendants examined one witness and exhibited the register ed kabuliyat dated 18.05.1953 as Ext.-A. 6. After hearing the parties and on perusal of the materials on record the learned trial Court dismissed the suit on 10.03.2000 holding that the plaintiff could not prove that he had been in possession of the land and as such the quest ion of his being threatened with dispossession did not arise. However, the learn ed trial Court felt that Shyamalabala Roy executed Ext.-2 sale deed dated 27.07. 1982 in favour of the plaintiff. Ultimately by deciding that plaintiff is not en titled to any relief the suit was dismissed by the learned trial Court. 7. Plaintiff preferred Title Appeal No. 23 of 2000 in the Court of learned Civil Judge, Sr. Division, Hailakandi. The learned Appellate Court by judgment d ated 10.03.2000 allowed the appeal and consequently decreed the suit holding tha t the plaintiff had purchased the suit land on 27.07.1982 and that possession of the plaintiff over the suit land was also proved. This judgment of reversal pas sed by the learned Appellate Court has been challenged by the defendants here in this appeal. While admitting this appeal on 20.08.2002 this Court framed follow ing two substantial questions of law: (i) Whether the transfer of suit land under sale-deed Ext-2 was made in accordan ce with the provisions of Sections 54 and 55 of the TP Act read with Section 8 o f the Assam (Temporarily Settled Areas) Tenancy Act, 1971 or not? (ii) Whether the plaintiff had satisfied the essentials of section 67,68 & 69 of the Indian Evidence Act while establishing his case on the basis of sale deed, Ext-2, or not?
Legal Reasoning
8. r. A.H. Alamgir, learned counsel for the respondent No.1. I have heard Mr. K.A. Mazumdar, learned counsel for the appellants and M 9. The learned counsel for the appellants argued that by filing an applicat ion before the learned trial Court on 17.08.1999 under Order XIV Rule 5 of the C ode of Civil Procedure the defendants had made a prayer for framing an additiona l issue in view of the fact that in course of evidence the plaintiff himself adm itted about his failure to obtain prior permission of the Deputy Commissioner be fore making purchase of a land governed by the provision of Assam (Temporarily S ettled Areas) Tenancy Act, 1971 (hereinafter referred as ’the Act’) and as such the sale deed dated 27.07.1982 being violative of Section 8 of the said Act, the sale was illegal. The said application appears to have been numbered as 789/8 b ut order sheet does not reflect as to whether the learned Court passed any order or not. The application was filed by giving a copy to the learned counsel for t he plaintiff and receipt of such copy by the learned counsel for the plaintiff i s discernible from signature acknowledging such receipt on 13.09.1999. Irrespect ive of whether the said application was considered by the learned trial Court, i t is apparent on the face of the record that PW1 himself stated in his cross-exa mination that he as defender did not obtain any prior permission of the Deputy C ommissioner before Ext-2 sale deed dated 27.07.1982 was executed or registered i nasmuch as according to the plaintiff such a permission was not necessary. Ext.2 sale deed dated 27.07.1982 itself reveals that the plaintiff has purchased the tenancy right only and not title to the land. Transfer of tenancy right of agric ultural land is governed by the provisions of Assam (Temporarily Settled Areas) Tenancy Act, 1971. Section 8 of the said Act is quoted below: (cid:28)8. Right of transfer.-An occupancy tenant shall have a right of transfer in res pect of his holding with prior permission of the Government in the manner prescr ibed. A notice of such transfer shall be served on the landlord in the manner pr escribed; Provided that an occupancy tenant shall not transfer his land to a non-agricultu rist. (cid:29) 10. Learned counsel has also placed reliance on a judgment of this Court in the case of Hafizur Rahman v. Bhagaban Gayal reported in 1997(2) GLT 304. In tha t case also a sale without permission of the Deputy Commissioner under Section 8 of the Act was held to be illegal and consequently the beneficiary of the sale deed in question did not acquire any title, it was held. 11. It is apparent from record that apart from filing of the application on 17.08.1999 the plaintiff himself had made disclosure in course of cross-examinat ion that he had not received any permission of the Deputy Commissioner under Sec tion 8 of the Act. It is not in dispute that the plaintiff had purchased tenancy right. A perusal of the plaint itself reveals that the land is an agricultural land and as such tenancy in question is also an agricultural tenancy. Ext-2 sale deed reveals that the plaintiff purchased tenancy right, so from the materials available on record the essential elements warranting application of Section 8 o f the Act, namely, that the land is agricultural land, that the land is under te nancy under Assam (Temporarily Settled Areas) Tenancy Act, 1971, that the agricu ltural tenant has sold the land and that Ext-2 exist in the present case. The es sential elements requiring prior permission of Deputy Commissioner under Section 8 being available on records there is no point in passing any order for remand of the case under Order 41 Rule 23 of the Code of Civil Procedure. The matter, t herefore, is taken up for disposal on the basis of the materials available on re cord since by Ext.2 the plaintiff has claimed to have purchased the agricultural land from a tenant / Khatiandar and no prior permission of the Deputy Commissio ner under Section 8 having been obtained the sale is not a valid sale and conseq uently the plaintiff has not acquired any right, title or interest with respect to the land in question on the basis of such sale. The plaintiff, therefore, can not claim declaration for right, title and interest on the basis of such purchas e. The substantial question of law No. 1 is, therefore, decided in favour of the defendants / appellants and resultantly the impugned judgment of reversal passe d by the learned First Appellate Court is hereby set aside. 12. Since it has been held already that by aforesaid sale by Ext.2 the plain tiff has not acquired any right, title or interest to the suit land there is no necessity for deciding the second substantial question of law inasmuch as even i f the second question of law is decided in favour of the plaintiff holding that Ext.-2 has been duly proved that would be of no consequence once it has been hel d that the sale deed has not conveyed any title to the plaintiff. This second su bstantial question of law, therefore, is neither necessary nor relevant and acco rdingly the same is abandoned. 13. 14. 15. 16.
Decision
In the result, second appeal is allowed. Suit of the plaintiff is dismissed. Send down the records after drawing a decree. No order as to costs.