Gauhati High Court
Md. Rafiquddin Ahmed & Ors vs The State Of Assam And Ors on 30 November, 2015
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: FAO 4/2009
1. Md. Rafiquddin Ahmed,
S/o late Ajgar Ali Dewani,
2. Md. Ismail Hussain,
S/o late Ajgar Ali Dewani,
3. Md. Isuf Ali
S/o late Ajgar Ali Dewani,
- All residents of village Choudhury Pam,
P.O. Kalatoli, P.S. Chaygaon, Mauja Goriomari,
Dist- Kamrup, Assam.
4. Musstt. Bimala Khatun,
Widow of late Kalu Sheikh,
5. Md. Rabiul Hussain,
S/o late Kalu Sheikh,
- Both residents of village Nutun Katmi, P.O. Kalatoli, P.S.
Boko, Mauja Montoli, Dist- Kamrup, Assam.
6. Musstt. Kamehan Khatun,
D/o late Kalu Sheikh,
Village Nutun Katmi, P.O. Kalatoli, P.S. Boko, Mauja Montoli,
Dist- Kamrup, Assam.
...... Appellants
-Versus-
1. State of Assam,
Represented by the Chief Secretary to the Government of
Assam,
Page 1 of 16
FAO 4/2009
Dispur, Guwahati-6
2. The Deputy Commissioner,
Kamrup District, Guwahati-1, Assam.
3. The Additional Deputy Commissioner,
Land Settlement Branch,
Kamrup District, Guwahati-1, Assam.
4. The Settlement Officer,
Kamrup District, Guwahati-7, Assam.
5. The Circle Officer,
Chomoria Circle, P.O. Chomoria, P.S. Boko, District- Kamrup,
Assam.
6. Md. Nur Hussain Mallick,
S/o late Khuju Mallick,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
7. Md. Ardoj Ali,
S/o Haji Sukkur Mamud,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
8. Md. Eksed Ali,
S/o late Kurjut Ali,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
9. Shri Ajit Chandra Basak,
S/o late Bhubendra Chandra Basak,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
10. Md. Waheb Ali,
S/o late Ajgar Ali,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
Page 2 of 16
FAO 4/2009
11. Md. Romaj Ali,
S/o late Pasan Ali,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District Kamrup, Assam.
12. Md. Ekdel Hussain,
S/o late Jubbar Ali,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
13. Md. Amjad Ali,
S/o Late Kamarat Ali,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
14. Md. Chand Mamud Khandakar,
S/o late Jusan Munshi,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
15. Md. Akbar Ali,
S/o late Kurjud Ali,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
16. Md. Badsha Mia,
S/o late Buddu Mia,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
17. Md. Karim Uddin,
S/o late Munser Ali,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
18. Md. Tamasha Sheikh,
S/o late Rajab Ali,
Village Nutun Katmi, P.O. Kalatali,
Page 3 of 16
FAO 4/2009
P.S. Boko, District- Kamrup, Assam.
19. Md. Piru Sheikh,
S/o late Abdul Sheikh,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
20. Md. Moksed Ali,
S/o late Mandir Ali,
Village Nutun Katmi, P.O. Kalatali,
P.S. Boko, District- Kamrup, Assam.
21. Md. Khabir Uddin,
S/o late Kamal Uddin,
Village Choudhury Pam, P.O. Kalatali,
P.S. Chaigaon, District- Kamrup, Assam.
22. Md. Jafar Ali Dewani,
S/o late Chunu Sheikh,
Village Choudhury Pam, P.O. Kalatali,
P.S. Chaigaon, District- Kamrup, Assam.
23. Md. Nur Hussain,
S/o late Nisan Ali,
Village Choudhury Pam, P.O. Kalatali,
P.S. Chaigaon, District- Kamrup, Assam.
24. Md. Jayed Ali,
S/o late Javed Ali Bepari,
Village Choudhury Pam, P.O. Kalatali,
P.S. Chaigaon, District- Kamrup, Assam.
25. Md. Abdul Hussain,
S.o late Rustam Ali,
Village Choudhury Pam, P.O. Kalatali,
P.S. Chaigaon, District- Kamrup, Assam.
..... Respondents
Page 4 of 16
FAO 4/2009
-BEFORE-
HON'BLE MR. JUSTICE N. CHAUDHURY
For the Appellants : Mr. N Dhar
Advocate
For the Respondents : Mr. G Sarma
Govt. Advocate
Mr. HL Mourya
Advocate
Date of Hearing : 30.11.2015
Date of delivery of
Judgment and Order : 30.11.2015
JUDGMENT AND ORDER (ORAL )
This is an appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure challenging the appellate judgment and order dated 09.09.2008 passed by learned Civil Judge No. 1, Kamrup at Guwahati in Title Appeal No. 33/2007 thereby remanding the case to the trial court with a direction to appoint Survey Commissioner for identifying the suit land. The learned trial court, however, upheld the findings of the trial court that the plaintiffs have right, title and interest over annual Dag No. 245 of Annual Khiraj Patta No. 14 (old)/ 24 (new).
2. Since it is an appeal against appellate order it is necessary to have an apprisal of facts before entering into the question of validity or otherwise of the impugned judgment and order. Present appellants, as plaintiffs, instituted Title Suit No. 234/1994 in the court of learned Assistant District Judge No. 1 (as was Page 5 of 16 FAO 4/2009 designated at that time) Kamrup at Guwahati stating that land measuring 9B 4K 5L described in Schedule -1 to the plaint was originally settled by the Government to Late Kalu Sheikh, S/o late Mithu Sheikh of village Choudhury Pam in the district of Kamrup in the year 1923 by issuing an annual patta. This patta was renewed from time to time and lastly it was renewed in the year 1949-50 as Annual Khiraj Patta No. 14. The land is situated at village Nutun Katmi under Paschim Chaygaon mouja in the undivided Chaygaon Circle of Kamrup district of which land measuring 2B 4K 5L described in Schedule- 2 to the plaint is a part. The erstwhile Chaygaon Circle in course of time was divided and the Schedule-1 land was included to one Sontoli mouja under present Chomoria Circle of Kamrup district which is now numbered as Dag No. 245 under Annual Khiraj Patta No. 14. The original pattadar Kalu Sheikh died leaving behind his legal heirs and the fact as to renewal of the annual settlement in his favour find place in the land records of the year 1923, 1928, 1949, 1957 and 1964 of the Office of the Deputy Commissioner, Kamrup. The annual patta land was never cancelled and it could not have been cancelled without issuing notice to Kalu Sheikh and thereafter his legal heirs. The plaintiffs claimed to be the legal heirs of Kalu Sheikh who subsequently discovered to their surprise that names of respondents No. 18 and 19 were mutated in the records of rights by Circle Officer, Chomoria Circle and Dag No. 245 has been recorded in the name of defendant No. 20. Facts remain that defendants No. 18, 19 and 20 did not have physical possession over this land in any point of time although their names were recorded in the records of rights maintained by the Circle Officer of Chomoria Circle without issuing any notice to the plaintiffs. It is further stated in the plaint that P.W.D road marks the Page 6 of 16 FAO 4/2009 western boundary of the suit land described in Schedule-1 land and there is another plot of land to the western side of the same P.W.D. road which is covered by Dag No. 249 (new)/123 (old). This land was settled with one Samed Dewani who surrendered the land in the year 1923 for public use and accordingly a market, school and other public institutions are situated over the said land. The plaintiffs do not have any claim over Dag No. 249 (new) (old Dag No. 123) and they have their right, title and interest only with respect to Dag No. 245 (old Dag No. 119) of the annual Khiraj patta No. 24 (old annual KP No. 14). The further allegation of the plaintiffs is that the revenue staff entering into collusion with public respondents caused eviction order for evicting the plaintiffs from the land covered by Dag No. 318/249 of the same mouja although they were not in possession thereof. But taking opportunity of the order, they were evicted from Dag No. 245 referred to above on 30.04.1994. Under such circumstances, plaintiffs after service of notice under section 80 of the Code of Civil Procedure on the Official respondents, instituted the suit, inter alia, for declaration of their right, title and interest over Schedule-1 land, for declaration that notice dated 22.12.1993 in encroachment case No. 8/1992 seeking to evict them from Schedule-1 land is not binding on them and that their eviction from Schedule-2 land on the basis of the aforesaid notice is illegal, arbitrary, without jurisdiction etc. The plaintiffs also made a prayer for recovery of Khas possession of Schedule-2 land within Schedule-1 land by evicting the defendants from there. Apart from the aforesaid prayers, the plaintiffs also claimed a decree of Rs. 1,50,000/- towards damage and compensation for such eviction. Page 7 of 16 FAO 4/2009
3. On being summoned, the defendants No. 1 to 5 who are the official respondents, appeared and submitted written statement contesting the suit on law as well as on facts. The official respondents did not make any comment with respect to the claim of the plaintiff over Dag No. 245. Coming to the allegation levelled in paragraph 6 of the plaint, it was stated in the written statement of the defendants No. 1 to 5 that there was no mutation in the name of defendants No. 18, 19 and 20 as claimed by the plaintiffs. However, in paragraph 15 of the written statement, it was stated that as per the map prepared during settlement operation of 1964, the eviction was made. The answering defendants refused to make any comment with regard to the records maintained in the year 1923 and 1955. However, it was not admitted that the field map prepared by the Circle Officer, Chomoria on 21.05.1993 with the help of his land record staffs was in collusion with defendants No. 6 to 17 and that the Settlement Officer, Kamrup did not approve the field map. It was claimed that land measuring 6B 1K 19L of Dag No. 318 is for market and market place and that a P.W.D. road goes through this dag. In paragraph 16 of the written statement the defendants No. 1 to 5 stated that no eviction report was issued from the Office of the Chomoria Circle Officer to start eviction with respect to Dag No. 245/ 119. However, it was correct that proposal for eviction of encroachers with respect to the land measuring 6B 1K 19L of Sarkari land under Dag No. 318 of village Nutun Katmi under mouja Sontoli was submitted before the Deputy Commissioner. With these averments, the official defendants prayed that the suit be dismissed. The private respondents did not file any written statement of their own. On the basis of the aforesaid pleadings of the parties, the learned trial court initially framed as many Page 8 of 16 FAO 4/2009 as 7 issues and subsequently on additional issue in the case. All these issues are quoted below for ready reference:-
1. Whether the suit is maintainable?
2. Whether t here is cause of action for the suit?
3. Whether the plaintiffs have right, title and interest in respect of the land described in schedule -1 to the plaint?
4. Whether the eviction of the plaintiffs from the suit land described in schedule to the plaint was lawful?
5. Whether the plaintiff is entitled to recover khas possession in respect of the land described in the schedule-2 to the plaint?
6. Whether the plaintiff is entitled to a decree as prayed for?
7. To what relief/reliefs the plaintiff is entitled under the law and equity?
Additional Issue:
1. Whether the land from which the plaintiffs were evicted falls in Dag No. 245 of Patta No. 14/24 or it falls in Dag No. 318?
4. Before framing of the additional issue referred to above, the learned Assistant District Judge allowed the parties to adduce their respective evidence and thereupon plaintiffs examined two witnesses. Plaintiff No. 2 was examined as PW 1 (Md. Ismail Hussain) and a Lat Mandal of Mahapeskhana (Md. Zakir Hussain) was examined as PW 2. Plaintiffs adduced documentary evidence as well. The official defendants examined only one witness as DW 1 (Sri Bharat Chandra Rabha). At this stage, the plaintiffs filed an application before the learned trial court for appointing Survey Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure but the learned Assistant District Judge by his order dated 17.01.2003 rejected the prayer and held that since both the sides have already led their evidence, there would be no difficulty in deciding the case on the basis of evidence on record. The suit was accordingly fixed for argument. Page 9 of 16 FAO 4/2009 However, on 05.02.2003 the aforesaid additional issue was framed by the learned Civil Judge (Sr. Divn.). It is to be mentioned here that in the mean time the post of learned Assistant District Judge was re-named as that of Civil Judge (Sr. Divn.) No. 1.
5. The learned Civil Judge (Sr. Divn.) No. 1 thereafter transferred the case to the court of learned Civil Judge (Jr. Divn.) No. 1 (now designated as Munsiff No. 1), Guwahati in view of enhancement of pecuniary jurisdiction of the latter court and thereupon the suit was re-numbered as T.S. No. 343/2006. The learned trial court considering the materials available on record and after hearing the parties, arrived at the finding that the suit of the plaintiffs is maintainable, that there is cause of action for the suit and that plaintiffs have right, title and interest over the land covered by Dag No. 245 of annual Khiraj Patta No. 24. The learned trial court also held that the plaintiffs are entitled to recovery of khas possession of Schedule-2 land which is also covered by Dag No. 245 as the Schedule-2 land is a part of Schedule-1 land. The learned trial court further passed an order for payment of compensation to the tune of Rs. 50,000/- on prima facie satisfaction that the plaintiffs were evicted from the Schedule -2 land without due process of law.
6. This judgment and decree passed by the learned trial court on 08.05.2007 was challenged by the official defendants No. 1 to 5 in the Court of learned Civil Judge No. 1 at Kamrup vide T.A. No. 33/2007. The learned first appellate court called for the records upon admission of the appeal and issued notice to the parties and thereafter having perused the materials available on record upheld the finding of the learned trial court that plaintiffs have right, title Page 10 of 16 FAO 4/2009 and interest to annual Dag No. 245 covered by annual Khiraj patta No. 24 (old AKP No. 14) in the village and mouja described in schedule to the plaint on the basis of inheritance from late Kalu Sheikh. But coming to the question of identity of the land, the learned trial court did not find favour with the finding of the learned trial court that plaintiffs were not dispossessed from Dag No. 318/249 but were dispossessed from Dag No. 245 as described in Schedule -1 to the plaint and accordingly remitted the case to the trial court again for appointing Survey Commissioner to find out as to whether the plaintiffs were really evicted from Dag No. 318 or not. This is because encroachment case being No. 8/92 was drawn up by the District Administration with respect to Dag No. 318/249 and not against Dag No. 245. Plaintiffs never claimed that they owned and possessed Dag No. 249 and so, the learned trial court felt that the very allegation of the plaintiffs that they were dispossessed from Dag No. 245 may not be correct. Plaintiffs being aggrieved at such remand of the case under Order XLI Rule 24 of the Code of Civil Procedure, have preferred this appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure.
7. At the time of admission of the appeal, no substantial question of law was framed. The Hon'ble Supreme Court has held in the case of Narayan v. Kumaran reported in (2004) 4 SCC 26 that the provision of section 100 of the Code of Civil Procedure shall apply to an appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure and so framing of a substantial question of law is necessary in such an appeal. Having so found, the learned counsel for the appellant Mr. N Dhar is heard and thereupon the following substantial question of law is framed:- Page 11 of 16 FAO 4/2009
Whether the impugned order of remand passed by the learned first appellate court is vitiated for non-compliance of the provision of Order XLI Rule 24 of the Code of Civil Procedure?
8. I have heard Mr. N Dhar, learned counsel for the appellant, Mr. G Sarma, learned Government Advocate on behalf of respondents No. 1 to 5 and Mr. H.L. Mourya on behalf of respondents No. 6 to 17. I have perused the lower court records including the depositions of the witnesses and the exhibits adduced by them.
9. Upon consideration of the plaint it appears that the only claim made by the plaintiffs is that land measuring 9B 4K 5L originally covered by old annual Dag No. 119 and new annual Dag No. 245 of village Nutun Katmi originally belonged to one Kalu Sheikh. This was a dag under annual patta land and such settlement was renewed from time to time since 1923 till 1964. Even after death of Kalu Sheikh, the present plaintiffs have been enjoying the annual patta land. They claimed that this annual patta has not yet been cancelled and so they have right, title and interest with respect to the same. The plaintiffs have made a prayer that their right, title and interest over land covered by Dag No. 245 of village Nutun Katmi under mouja Sontoli in the district of Kamrup be declared on the basis of the aforesaid annual patta (Ext. 2). They have alleged that they have been dispossessed from Schedule-2 land within Schedule-1 land on 30.04.1994 by the official respondents purportedly in execution of eviction order passed in encroachment case No. 8/1992 of the Office of the Deputy Commissioner at Kamrup. The plaintiffs have specifically pleaded in the plaint that they do not have any claim with respect to the land covered by Dag No. 318/249 of the same Page 12 of 16 FAO 4/2009 mouja. They have described this land to be settled land of one Samed Dewani who had parted with possession in 1923 for establishment of public market, school and other institutions on this land. It is not the case of the plaintiffs that they have any right, title and interest with respect to the land. Moreover, according to them, the land covered by Dag No. 318/249 falls to the west of the P.W.D. road whereas the suit land covered by Dag No. 245 falls to the east of the same P.W.D. road. Under such circumstances, the suit of the plaintiffs is clearly based on claim with respect to Dag No. 245 of the same mouja and so they have examined Lat Mandal PW 2 (Md. Zakir Hussain) to show that this land stood originally in the name of Kalu Sheikh. PW 2 (Md. Zakir Hussain) who is the concerned Lat Mandal, has deposed on oath that in the year 1923 to 1953, the annual patta has been renewed on a number of times and that the same still stands in the name of late Kalu Sheikh. The claim of the plaintiffs that they are legal heirs of late Kalu Sheikh is not denied by any of the respondents/ defendants. So, if by examining two witnesses and by adducing revenue records like annual patta, jamabandi and map (Ext. 4) the plaintiffs could establish that land covered by Dag No. 245 originally belonged to Kalu Sheikh and that they have inherited the estate of Kalu Sheikh after his death in that event, they are entitled to a decree of declaration as well as possession. But they not having made any claim to Dag No. 318/249, there is no necessity at this stage to find out as to whether land covered by Dag No. 245 and that of Dag No. 318 are same or not.
10. It appears from record that these plaintiffs submitted an application before the trial court immediately after closure of the evidence of the parties that Page 13 of 16 FAO 4/2009 a Commission be appointed under Order XXVI Rule 9 of the Code of Civil Procedure. The learned Civil Judge after hearing the parties and on perusal of the materials on record, arrived at the finding that evidence led by the parties were sufficient to properly adjudicate the matter in dispute and as such there was no necessity for appointment of Commission at this stage and accordingly fixed the case for argument by the parties. Incidentally after such order was passed, the suit had to be transferred to the court of learned Munsiff (then Civil Judge (Jr. Divn.)) because of change of pecuniary jurisdiction and under such circumstances, when first appeal was preferred against the trial court judgment, the initial trial court had the occasion to become the court of appeal over the original judgment and decree and thereupon it arrived at the finding that appointment of Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure is necessary. Mr. N Dhar, learned counsel for the appellants, submits that such an order could not have been passed by the learned Civil Judge who had passed order on the earlier occasion that appointment of Commissioner is not necessary. According to Mr. N Dhar, such an order is bad for violation of principle of constructive res-judicata. He has placed reliance on the judgment of Hon'ble Supreme Court in the case of Hope Plantations Limited v. Taluk Land Board reported in (1999) 5 SCC 590. The same law has been reiterated subsequently in the case of C.V. Rajendran & Anr. v. N.M. Muhammed Kunhi reported in (2002) 7 SCC 447 and subsequently in a judgment of this court in the case of Bali Ram Prasad Gupta v. Md. Isa reported in 2007 (2) GLT 26. This court does not feel inclined to enter into such argument as to whether an order passed by the same court at the initial stage of a proceeding would be binding on the Page 14 of 16 FAO 4/2009 same court when the status of the court changes from that of a trial court to that of an appellate court.
11. But it cannot be lost sight of the fact that even the first appellate court has found that plaintiffs have right, title and interest with respect to annual Dag No. 245 of annual KP No. 24 of mouja Sontoli in the district of Kamrup. If both the courts have concurrently held that plaintiffs have right, title and interest with respect to annual Dag No. 245 of mouja Sontoli and since such finding of the first appellate court has not been challenged by any of the respondents under Order XLI Rule 22 of the Code of Civil Procedure or otherwise under such circumstances, there is no scope to interfere with such findings of the learned courts below. No argument has been put forward even by the respondents that the plaintiffs do not have right, title and interest with respect to Dag No. 245. If the plaintiffs have not staked any claim to Dag No. 318/249 of mouja Sontoli in that event, there was no difficulty on the part of the learned first appellate court to pass a decree accordingly. Plaintiffs have made a prayer for decree with respect to annual Dag No. 245 and the learned courts below had held that plaintiffs have right, title and interest to that Dag. Under such circumstances, materials are available on record for the learned first appellate court to pass a decree accordingly. If the plaintiffs are not dispossessed from Dag No. 245 in that event, there would be nothing to execute even after passing of the decree and so in that event, the plaintiffs have to blame themselves and the defendants cannot be prejudiced in any way. Upon apprisal of such factual positions, the inevitable conclusion is that the learned first appellate court had sufficient materials before it to adjudicate the appeal in the light of the prayer made in the Page 15 of 16 FAO 4/2009 plaint and thus remitting the matter to the trial court with direction to appoint Commissioner was not a necessary exercise for proper adjudication of the appeal. There is no challenge on the identity of the suit land and so as on today there is no issue as to whether the suit land is identifiable or not. Under such circumstances, there is no necessity for appointment of Commissioner. Accordingly, the appeal stands allowed. The findings of the learned first appellate court in this regard is set aside and the matter is remitted to the first appellate court for passing an order afresh in the light of what has been stated above.
12. Although the learned trial court passed an order for compensation to the tune of Rs. 50,000/- but no evidence was available on record to come to a finding that the defendants No. 1 to 5 have acted mala fide or in collusion with the private respondents. This being the position, such imposition of compensation is not based on materials on record. However, the first appellate court shall consider this aspect of the matter in the light of observations made hereinabove.
13. The parties shall appear before the first appellate court on 4th January, 2016 to obtain necessary orders. Registry shall send down the records in the mean time.
JUDGE BiswaS Page 16 of 16 FAO 4/2009