Gauhati High Court
Dwijamoni Singh vs Amal Paul Choudhury on 15 November, 2019
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GAHC010122192012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 184/2012
1:DWIJAMONI SINGH
S/O- LATE YAMAL SINGH, TARAPAR PT-III, PR BARAKPUR, SILCHAR,
CACHAR, ASSAM
VERSUS
1:AMAL PAUL CHOUDHURY
S/O LATE KAMAL PAUL CHOUDHURY, C/O- LT UMESH CH PAUL, FATAK
BAZAR, THANA ROAD, SILCHAR TOWN, PR BARAKPUR, DIST- CACHAR,
ASSAM AND ALSO OF SRIGAURI, PH- CHAPGHAT, PS- BADARPUR, DIST-
KARIMGANJ
Advocate for the Petitioner : MR. A K PURKAYASTHA
Advocate for the Respondent : MR.P DEKA
BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDER Date : 15-11-2019 This second appeal by the defendant is preferred against the judgment and decree passed by the learned Civil Judge No. 1, Cachar in Title Appeal No. 42/2010, whereby the learned first appellate court dismissing the appeal filed by the defendant upheld the judgment and decree passed by the learned trial court in T.S. No. 167/2007.
2. The respondent, as plaintiff filed the TS No. 167/2007 for declaration of right, title, Page No.# 2/10 interest, confirmation of possession and cancellation of sale deed in favour of the defendant. The case of the plaintiff was that one Babahan Singh was the exclusive owner of the land covered by second RS Patta No. 31, which contained Dag Nos. 113, 115, 118, 119, 120, 121, 122 & 123 and the total land in the entire patta was 6 bigha 10 katha. Originally the land of R.S. Patta No. 31 was included in R.S. Patta No, 11, 28 & 29 and during re-settlement operation the second R.S. Patta No. 31 was issued in favour of Babahan Singh. The Dag No. 122 of the said R.S. Patta No. 31 contained total land of 1 bigha 6 katha 14 chatak and the original Dag No. of 122 was 95 of patta No. 29. The land covered by Dag No. 95 of R.S. Patta No. 29, which was later on included in Dag No. 122 of R.S. Patta No. 31 was sold by Babahan Singh to one Gopinath Pal by registered sale deed on 20.04.1955 and delivered possession. Later on, Gopinath Pal sold the said land of Dag No. 122 to one Ganesh Chandra Pal by registered deed on 26.05.1960 and delivered possession. After death of Ganesh Ch. Pal, his legal heir sold 6 katha 8 chatak of land covered by Dag No. 122 of R.S. Patta No. 31 along with other land to the plaintiff by a registered deed on 23.09.1997 and thereafter again by another registered sale deed on 11.09.1998, the plaintiff purchased 1 katha 2 chatak of land from Dag No. 122 of R.S. Patta No. 31 along with other land from the legal heir of Ganesh Ch. Pal and the plaintiff had been possessing the said land by right of purchase. While the plaintiff had been possessing total land measuring 7 katha 10 chatak of Dag No. 122 purchased from the legal heir of Ganesh Ch. Pal, the defendant attempted to dispossess the plaintiff from the said land, in the year 2004, claiming that they have purchased the said land. Thereafter, the plaintiff also received a notice from the Executive Magistrate in respect of a criminal proceeding under Section 145 CrPC initiated by the defendant and accordingly, plaintiff made an enquiry in the office of the Sub-registrar and came to know that a sale deed was allegedly executed by one Jayanti Manipuri on 01.03.2000. After obtaining the certified copy of the said sale deed, the plaintiff could know about the alleged sale deed purportedly executed by Jayanti Manipuri in favour of the defendant, whereby the land measuring 19 katha 10 chatak of Dag No. 122 of R.S. Patta No. 31 was shown to have been sold to the defendant. It was further stated that the original pattadar Babahan Singh sold the entire land of Dag No. 122 measuring 1 bigha 6 katha 14 chatak to Gopinath Pal, who in turn sold the land to Ganesh Ch. Pal and as such no land in Dag No. 122 was left out and therefore, the said deed in favour of the defendant purportedly executed by Jayanti Manipuri giving boundary of the land of the plaintiff was fraudulent and collusive and therefore the plaintiff filed the suit for declaration of right, title & interest over the suit land and also for cancellation of the sale deed in favour of Page No.# 3/10 the defendant.
3. The defendant contested the suit by filing written statement. The pleaded case of the defendant was that Umed Ali, Somed Ali and Arjid Ali, sons of Tera Mia, were the original owner of land measuring 14 bigha 14 katha 11 chatak covered by Dag No. 95, 107, 109, 110, 111 & 726 of C.S. Patta No. 16 of Mouza-Tarapur. One Uriba Singh purchased 3 bigha 6 katha 10 chatak of land out of Dag No. 107, 109, 110 & 111 of C.S. Patta No. 16 from the aforementioned three pattadars and got his name mutated in the record of right. Uriba Singh died leaving behind his son Kunja Singh as the sole heir and successor in respect of the land measuring 3 bigha 6 katha 10 chatak purchased from Umed Ali, Somed Ali and Arjid Ali. The said Kunja Singh sold 4 bigha 4 chatak of land out of Dag No. 95 of R.S. Patta No. 29 to Babahan Singh and remaining land was in his possession. Kunja Singh died leaving behind his son Samu Singh and Samu Singh also disposed of some land out of the total land inherited by him from his father Kunja Singh, and ultimately he had been possessing the land measuring 2 bigha 6 chatak, which was inherited by his sister Jayanti Manipuri, as Samu Singh died unmarried. Out of the said 2 bigha 6 chatak of land in R.S. Patta No. 29, land measuring 1 bigha 13 katha 2 chatak was surveyed and included in second R.S. Patta No. 31 and Dag No.
123. However, the name of Jayanti Manipuri was not recorded in R.S. Patta No. 31 nor the Dag No. 123 was included in the aforementioned second R.S. Patta No. 31. Accordingly a miscellaneous case was filed being M.C. No. 28 of 1984-85 and as per order passed in the said case, name of Jayanti Manipuri was recorded in second R.S. Patta No. 31. Said Jayanti Manipuri sold 19 katha 10 chatak of land of R.S. Patta No. 31 of Dag No. 122, which was earlier included in Dag No. 109 and Patta No. 16 and, later on in R.S. Patta No. 29 and Dag No. 95, to the defendant by executing a registered deed through her attorney. The defendant have acquired valid title over the said land measuring 19 katha 10 chatak by right of purchase from Jayanti Manipuri and the plaintiff has no right title and interest over the suit land.
4. On the basis of the above pleadings of the parties, learned trial court framed the following issues:
"(1) Is there any cause of action?
(2) Whether the suit is maintainable?
(3) whether the suit is barred by law of limitation?
Page No.# 4/10 (4) Whether the suit is bad for non-joinder of necessary parties? (5) Whether the plaintiff has right, title and interest over the suit land? (6) Whether the plaintiff is entitled to decree for confirmation of possessions? (7) Whether sale deed mentioned in schedule II is liable to be cancelled? (8) Whether the plaintiff is entitled to decree of permanent injunction as prayed for?
(9) To what relief() the plaintiff is entitled to?"
5. Both the parties adduced evidence and after hearing the parties, learned trial court decreed the suit of the plaintiff declaring his right, title, interest and confirmation of possession and also cancellation of the sale deed in favour of the defendant. Aggrieved, the defendant preferred an appeal and the learned Civil Judge, by the impugned judgment and decree dismissed the appeal and confirmed the judgment and decree passed by the learned trial court.
6. Aggrieved by and dissatisfied with the judgment of the first appellate court, the defendants preferred the instant regular second appeal, which was admitted to be heard on the following substantial questions of law.
"1. Whether the non-consideration of records of rights (Exhibit 1 and 2) and specific provisions provided under Sections 40/41 of Assam Land Revenue Regulation has rendered the findings of issues, particularly Issues No. 5 to 8, perverse?
ii) Whether the findings of the courts below particularly while deciding the issues No. 4 to 7, are hit by Sections 31 to 31 of the Specific Relief Act?"
7. I have heard learned counsel Mr. A.K. Purkayastha for the appellant and learned Sr. Counsel Mr. G.N. Sahewalla for the respondent.
8. Learned counsel for the appellant, Mr. A.K. Purakayastha submitted that while declaring the title of the plaintiff, both the courts below failed to take into account the presumption attached with the entry in the record of right under Section 41 of the Assam Land Revenue Page No.# 5/10 Regulation. Further contention of the learned counsel for the appellant was that though, the suit land was only 7 katha 10 chatak, learned trial court cancelled the entire sale deed of the defendant, which was in respect of the total land measuring 19 katha 10 chatak, without taking into account the provision of Section 31 & 32 of the Specific Relief Act. In support of the contention, Mr. Purkayastha placed reliance on a decision of Allahabad High Court in Daya Ram Vs. Smt. Lakshmina & Ors. reported in AIR 2008 Allahabad 123.
9. Learned Sr. Counsel Mr. Sahewalla supporting the impugned judgment and decree contended that the entire claim of the defendant was based on mutation entry, which cannot create title over the suit land, inasmuch as, it is the established position of law, that mutation entry neither create nor extinguish title. In support of his contention, Mr. Sahewalla placed reliance on the following decisions:
(1993) 4 SCC 349 (Guru Amarjit Singh Vs. Rattan Chand & Ors.) (1993) 4 SCC 403 (Jattu Ram Vs. Hakam Singh & Ors.)
10. From the pleadings of the parties and the rival contention raised therein, it appears that both the plaintiff and the defendant made claim of title over the suit land by right of purchase. In order to substantiate the claim, the plaintiff has proved Ext. 1, Jamabandi of R.S. Patta No. 31; Ext. 2 being Jamabandi of R.S. Patta No. 29; the sale deed executed by Baba Han Singh, the original owner of second R.S. Parra No. 31 in favour of Gopinath Pal as Ext. 6, whereby Baba Han Singh sold the entire land of Dag No. 122 in favour of Gopinath Pal. The plaintiff has also proved Ext. 5 sale deed executed by Gopinath Pal in favour of Ganesh Ch. Pal as well as Ext. 3 & Ext. 4, the sale deed of the suit land executed by the legal heir of Ganesh Ch. Pal in favour of the plaintiff. The plaintiff also proved the Ext. 7 & Ext. 8, the relevant sale deed whereby Baba Han Singh, the original pattadar of second R.S. patta No. 31 purchased the land in the year 1936 and 1940. The plaintiff stated in his evidence, that Baba Han Singh was the original pattadar of second R.S. Patta No. 31, who sold the entire land of Dag No. 122 to Gopinath Pal, who in turn sold the said land to Ganesh Ch. Pal and the legal heir of Ganesh sold the suit land to the plaintiff. All the above oral and documentary evidence of the plaintiff remained uncontroverted.
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11. The defendant, as DW-1 also admitted in his cross examination that R.S. Patta No. 31 was issued in the name of Baba Han Singh and the said patta contained 8 numbers of dags as indicated above. It was also admitted by the defendant in his evidence, that total land in Dag No. 122 is 1 bigha 6 katha 14 chatak. Therefore, admittedly and evidently, second R.S. Patta No. 31 was issued in favour of Baba Han Singh, which contained Dag No. 122 along with other dags and it is also admitted position that total land covered by Dag No. 122 was 1 bigha 6 katha 14 chatak. It is also admitted position that the second R.S. Patta No. 31 was issued in respect of the land of various dags, which were earlier included in Patta No. 11, 28 & 29 as apparent from Ext. 1. It is also evident from Ext. 2 Jamabandi, that the Patta No. 29 (New) 16(Old), contained Dag No. 94, 95, 96 & 108. Admittedly, the land of Patta No. 29 was included in second R.S. Patta No. 31. The defendant claimed to have purchased the land measuring 19 katha 10 chatak from Jayanti Manipuri and in the schedule of the land, it has been mentioned that the said land was covered by Dag No. 122. It was also the pleaded case of the defendant that the said land purchased by the defendant originally included in Dag No. 109 of C.S. Patta No. 16. It is the further case of the defendant that Dag No. 109 of Patta No. 16 was earlier included in Patta No. 29 of Dag No. 95.
12. Evidently, the name of Jayanti Manipuri, was recorded in the Jamabandi of the Patta No. 31 on the basis of her claim of title by inheritance from Uriba Singh, through his descendants Kunja Singh and Samu Singh. Because pleaded case of the defendant was that Uriba Singh purchased the land of Patta No. 29 from pattadars Umed Ali, Somed Ali and Arjit Ali of Patta No. 29 and from Uriba Sing, the said land was inherited by his son Kunja Singh and from Kunja Singh, title of the land devolved upon his son Samu Singh and Jayanti Manipuri was stated to have inherited from Samu Singh. The defendant allegedly purchased the land vide Ext. B from the attorney of said Jayanti Manipuri. Although, it is the case of the defendant that the land purchased by the defendant originally belong to Dag No. 109 of CS Patta No. 16, which was later on included in Dag No. 95 of Patta No. 29 and then in Dag No. 122, R.S. Patta No. 31, no evidence was brought on record by the defendant to establish that the suit land at any point of time was included in Dag No. 109 or the land of Dag No.9 was included in Dag No.122. Though Ext. 2 shows that Patta No. 29 was curved out from Patta No. 16, there was no dag No. 109 in Patta No. 29 proved as Ext. 2. It is also an admitted position that though the defendant claimed to have purchased the suit land through attorney of Jayanti Manipuri, neither the power of attorney nor execution of sale deed was proved as per the Evidence Act.
Page No.# 7/10 Apparently the claim of the defendant is based only on the entry in the jamabandi of R.S. Patta No. 31, which was made in the year 1987-88. Though, admittedly R.S. Patta No. 31 was issued exclusively in favour of Babahan Singh, curving out the land from Patta No. 11, 28 & 29, no evidence was brought on record to establish, that the vendor of the defendant was the owner of Dag No. 109 or the said Dag No. 109 was later included in Dag No. 95 or 122. The mutation entry in respect of Jayanti Manipuri also shows that initially there was no Dag No. 123 in RS Patta No. 31 and said dag was incorporated by order dated 04.03.1987 in favour of Jayanti Manipuri. Admittedly, no record or order of the concerned authority could be produced to support such mutation entry incorporating Dag No. 123. Therefore, what is palpable is that except entry in jamabandi, the defendant has not been able to produce any reliable document to substantiate his claim of purchase of land in Dag No. 122 of Patta No. 31 or to show that Jayanti had any title on the land of Dag No. 122 of RS Patta No. 31.
13. True, it is, Section 41 of Assam Land Revenue Regulation attaches a presumption of genuineness to the entry in record of right. Section 41 of the Assam Land Revenue Regulation, reads as under:
"41.(1) Entries in the record made under section 40 shall be founded on the basis of actual possession and all disputes regarding such entries, whether taken up by the Settlement-officer of his own motion or on the application of a party concerned shall be investigated and decided by him on that basis and all persons not in possession, but claiming the right to be so, shall be referred by him to the proper Court.
(2) Every entry in the record-of-rights made under this section shall, until the contrary is proved, be presumed to be correct."
14. Therefore, from the above provision it is clear that presumption which is attached to the entry in the record of right is rebuttable like any other presumption. When an entry in the record of right raises a presumption of genuineness, such presumption can be rebutted by adverse party either by adducing evidence or from the evidence and materials brought on record by the party himself in whose favour presumption exists. Therefore, it is not necessary always to adduce evidence by the party seeking to rebut the presumption. Once the presumption attached to the entry in the record of right stands rebutted, either by the Page No.# 8/10 evidence adduced by the party seeking to rebut the presumption or any other materials on record, no reliance can be placed on such record of right as proof title, on the basis of the presumption of genuineness and the title has to be established by other legal evidence of title.
15. From the evidence discussed above, both oral and documentary, it is abundantly clear that the defendant has not been able to bring on record any legal basis, for the mutation in favour of Jayanti Manipuri in R.S. Patta No. 31, nor could adduce any evidence to support the claim, that the land purchased by the defendant vide Ext. B, from Jayanti Manipuri, originally included in Dag No. 109, was subsequently included in Dag No. 122 of R.S. Patta No. 31. As already indicated above, there was no mention of Dag No. 109 either in Patta No. 29 or even in Patta No. 16. The above evidence and pleadings of the defendant were sufficient, in my considered view, to rebut presumption under Section 41(2) of the Land Revenue Regulation attached to the mutation entry. When presumption attached to the record of right in view of Section 41 (2) of the Assam Land Revenue Regulation, stood rebutted by the evidence and materials brought on record, the burden stood shifted to the defendant to prove their title or claim over the suit land, but the defendant, totally failed to discharge his burden. Even the defendant has not been able to challenge the evidence, both oral and documentary adduced by the plaintiff establishing his title.
16. It is trite law, that entries in the record of right neither create nor extinguish title. When the evidence on record demonstrated that presumption of genuineness attached to the record of right embodied in Section 41 (2) of the Assam Land Revenue Regulation stood rebutted, and the evidence adduced by the plaintiff both oral and documentary establishing his title over the suit land remained unchallenged, the finding of the learned courts below with regard to title of the plaintiff, can by no stretch of imagination be held to be perverse. Therefore, the substantial question No. 1 is answered in negative and in favour of the respondent/plaintiff.
17. Learned counsel Mr. A.K. Purkayastha, placing reliance on the decision of Daya Ram Vs. Smt. Lakshmina (supra) and also referring to Section 31 & 32 of the Specific Relief Act contended that the sale deed of the defendant, Ext.B was in respect of 19 katha 10 chatak of land, whereas the claim of the plaintiff is only in respect of land measuring 7 katha 10 chatak and therefore, even it is assumed that the defendant had no title over the suit land or Ext. B Page No.# 9/10 sale deed was not capable of conveying title in respect of the suit land covered by Dag No. 122, learned trial court ought not to have cancelled the entire sale deed. Learned Sr. Counsel Mr. G.N. Sahewalla, has not resisted the above submission seriously.
18. Section 31 and 32 reads as under:
"31. When cancellation may be ordered.--
(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
32. What instruments may be partially cancelled.--Where an instrument is evidence of different rights or different obligations, the court may, in a proper case, cancel it in part and allow it to stand for the residue."
19. A plain reading of Section 32 of the Specific Relief Act would show that when an instrument embodies more than one separate and distinct right or obligations and one is separable from the other, the court in an appropriate case may cancel the instrument in part i.e. in respect of some rights or obligations and allow it to stand for the residue. Therefore, in order to attract the provision of Section 32 of the Specific Relief Act, it is necessary that the rights and obligations under the document should be distinct and separable. When the illegal part is not separable from the legal part the Section 32 cannot be invoked and the document either has to be cancelled as a whole or it has to be allowed to stand as a whole. The schedule of the suit land and the schedule of land given in the Ext.B are such, that suit land as described in the plaint cannot be distinctly specified from the total land as described in schedule of the Ext.B Sale Deed. Therefore, Ext.B apparently does not fall in the category of instrument envisaged in Section 32 of the Specific Relief Act.
20. Looking from another angle, admittedly, though, it was the case of the defendant, that Page No.# 10/10 the land purchased by the defendant by Ext.B originally covered by Dag No. 109 and subsequently included in Dag No. 95 and 122 respectively, no evidence could be adduced to prove, that the land of Dag No. 109 was included in Dag No. 122 of RS Patta No. 31. It is the common knowledge the patta is document of title. Admittedly, the RS Patta No. 31, which contains interalia Dag No. 122, was issued to Babahan Singh. Evidently Dag No. 122 contained total land measuring 1 Bigha 6 Katha 14 Chatak. The plaintiff adduced overwhelming evidence to prove that entire land of Dag No. 122 was sold by the pattadar Babahan Singh as back as in the year 1955 and the plaintiff claimed to have derived title over the suit land by right of purchase from the transferee of Babhan Singh, and all these evidences remained uncontroverted. As already indicated above, that defendant also failed to adduce any cogent evidence to show that his vendor had any title over the Dag No. 122 except the mutation entry made in the year 1984-85. However, the defendant failed to adduce any evidence to prove the basis of such mutation. Therefore, the overwhelming evidence brought on record by the plaintiff clearly establishing that Jayanti Manipuri did not have any title over the suit dag No. 122, rendered the sale deed Ext.B a shame document. In the above facts and circumstances, the substantial question No. 2 is answered in negative and in favour of the plaintiff/respondent.
21. In view of the foregoing discussions, the appeal is found to be devoid of merit and dismissed.
22. No cost. Send down the LCR.
JUDGE Mkk Comparing Assistant