Gauhati High Court
Moosa (Md.) And Anr. vs State Of Assam And Ors. on 2 November, 2006
Equivalent citations: 2007(1)GLT400
JUDGMENT B.K. Sharma, J.
1. This second appeal was twice decided, first in 1995 and secondly in 1997. However, on both the occasions, the matter was carried on appeal before the Hon'ble Supreme Court and on both the occasions, the matter was remanded back for fresh decision and that is how, the matter is again taken up. It will be appropriate to refer to the orders passed by the Apex Court at this stage.
Order dated 3.3.1996 Civil Appeal No. 4798 of 1996 Chandra Das v. State of Assam and Ors. This appeal has been filed on behalf of the defendants to the suit for setting aside the judgment of the High Court in Second Appeal No. 171 of 1994.
The suit in question had been filed on behalf of the respondent Nos. 6 and 7 (hereinafter referred to as the respondents). It was decreed by the trial court. The appeal filed on behalf of the appellant was allowed and the suit was dismissed. Being aggrieved by the judgment of the court of appeal, the second appeal was filed on behalf of the aforesaid respondents which has been allowed by the impugned order. The learned Judge at the beginning of the judgment itself has observed:
As the lower appellate court has reversed the findings in all the issues of the trial court, this Court now required to examine the entire materials on record and to see if the lower appellate court has not determined the issues on facts or it has determined the issues by reason of any illegally the issues by reason of any illegality, omission, error or defect. It is well settled position of law that in a suit for declaration of title and interest and consequent possession a person has to prove title over the land and that - is a finding of fact. If the decision arrived in fairly, in accordance with procedure prescribed it is not liable to be reopen. In this case, plaintiffs' case based entirely on record and therefore this Court has to reappreciate the materials on record to ascertain the legal aspect thereof.
This Court has on several occasions pointed out the limitation prescribed by Section 100 of the Code of Civil Procedure on the power of the High Court while hearing and disposing of a second appeal. There is no question of repareciating the materials on record.
Accordingly, we allow this appeal and set aside the impugned judgment of the High Court. We request the High Court to hear and dispose of the said appeal as early as possible. Incidentally, we may mention that notice had been issued by this Court to the respondents so that the dispute may be settled between the parties. The High Court shall also examine as to whether the dispute between the parties can be amicably settled on terms and conditions acceptable to both the parties. No costs.
Order dated 21.9.2004 Civil Appeal No. 1457 of 1999 Chandra Das v. State of Assam and Ors.
Heard the learned Counsel for the parties.
This is the second time that the matter has come to this Court. On the first occasion, this Court disposed of the appeal by order dated 3rd October, 1996 finding fault with the judgment of the High Court made in the second appeal stating that it committed an error in re-appreciating the evidence sitting in second appeal and that it failed to notice the limitation prescribed under Section 100 of the Code of Civil Procedure 1908 (for short, "the Code") in dealing with second appeals. In view, the judgment passed in the second appeal was set aside and the matter was remitted to the High Court for disposal afresh of the second appeal. While doing so, incidentally, this Court observed that all efforts could be made by the parties to settle the dispute, having regard to the nature of the dispute. As can seen from the impugned judgment, the High Court did not consider as to whether the requirements of Section of 100 of the Code were complied with. The High Court, in our view, committed the same error which was committed on the earlier occasion, namely, it has re-appreciated the evidence again and passed the impugned judgment.
This court has repeatedly ruled that, in a second appeal, the High Court has to essentially formulate substantial question or questions of law, if arise for consideration between the parties. We do no find any such formulation of substantial question(s) of law in the impugned judgment. That apart, reading of the impugned judgment, as stated above, goes to show that the High Court has re-appreciated the evidence to record a finding.
Under the circumstances, the impugned judgment cannot be sustained. Hence it is set aside. The second appeal is remitted to the High Court for disposal afresh, after formulating substantial question(s) of law, if arise for consideration between the parties.
The Civil appeal is, accordingly, allowed; Having regard to the age of the case, we expect that the high Court will dispose of the second appeal as expeditiously as possible. No costs.
2. After remand of the matter by the aforesaid order dated 21.9.2004, this Court upon hearing the learned Counsel for the parties formulated the following substantial questions of law:
i. Whether the right of an owner of a land by virtue of being legal heir of the original owner can be extinguished due to omission of his name wrongly in the Jamabandi.
ii. Whether one co-heir while relinquishes his own right can relinquished the right of another co-heir without any authority from him?
iii. Whether a declaratory suit declaring plaintiff to be joint owner with other co-owner is barred under Section 154 (2) of the Assam Land and Revenue Regulation?
3. This second appeal was admitted for hearing on 30.9.1994 on the following substantial question of law:
Whether the suit is barred under Section 154 of the Assam Land and Revenue Regulations?
4. I have heard Mr. GN Sahewalla, learned Sr. Counsel assisted by Mr. D. Senapati, learned Counsel appearing for the appellant No. 2. None has appeared on behalf of the appellant No. 1. I have also heard Mr. BK Goswami, learned Sr. Counsel assisted by Ms. T. Goswami, learned Counsel for the respondent No. 6 as well as Mr. PS Deka, learned State Counsel representing the State respondents.
5. Having regard to the observations made by the Apex Court while remanding back the matter for a fresh decision, an endeavor was made for an amicable settlement of the matter. Amidst hearing of the matter, the learned Counsel for the parties were requested to explore the possibility for an amicable settlement of the matter. To that effect an order was passed on 20.6.2006. Certain adjournments were also granted. However, the matter could not be resolved amicably as the parties could not arrive at any agreement and accordingly, the matter has been heard and is being disposed of by this judgment.
6. The title suit being T.S. No. 45/1993 was filed by the appellants seeking declaration that they alongwith the proforma defendant No. 5 are the joint owners of the suit land and for mandatory injunction directing the defendants/respondents to resettle the suit land in their favour making necessary corrections of the records of right.
7. Shortly stated, the facts as narrated in the plaint is that Late Hazi Shafiullah was the absolute owner of the plot of land measuring 6 bighas 7 lechas covered by Old Dag No. 103 under periodic Patta No. 93 situated at Tinsukia Town out of which he had sold out 1 bigha 2 lecha to one Shri Hari Singh Kaha and remained the owner of the remaining 5 bighas 5 lechas. Shafiullah died in the year 1957 leaving behind his 6 sons namely (1) Samsul, (2) Ibrahim, (3) Khallil, (4) Jalil, (5) Vakil and (6) Basir and they inherited the land and their names were also mutated.
8. It is the further case of the plaintiff/appellant in the plaint that 4 out of 6 sons of Late Shafiullah namely (1) Samsul, (2) Khallil (3) Jalil and (4) Vakil disclaimed and disowned their right, title and interest over the land in favour of their other two brothers namely (1) Ibrahim and (2) Basir and consequently, they became the joint lawful owners of the land. After.the death of Ibrahim, the plaintiffs/appellants, who are his sons, inherited the land alongwith Basir. Be it stated here that although Md. Basir was made defendant (defendant No. 5), he did not appear in the case and the records have revealed that even in the Apex Court also, inspite of service of notice there was no representation on his behalf. Even in this appeal inspite of service of notice, there is no representation on his behalf and in fact by order dated 7.6.2006, on the basis of the prayer made by the learned Counsel for the appellants, the respondent No. 5 has been struck off as one of the respondents.
9. It has been stated in the plaint that the name of Md. Ibrahim i.e. the deceased father of the plaintiffs/appellants was purposefully omitted from the records of right. It has also been stated that the name of the plaintiffs ought to have been maintained in the records of right alongwith Md. Basir (defendant No. 5). However, nothing has been stated as to at what point of time the name of their father was deleted from the records of right. According to the plaintiffs/appellants after the re-settlement operation (period and particulars not mentioned), the plaintiffs/appellants alongwith defendant No. 5 remained joint owners of the land measuring 4 kathas 17 lechas covered by New Dag Nos. 1720,1721, 1722 and 1723 under PP No. 171 of Tinsukia Town in the district of Dibrugarh, Assam. The dispute and for that matter the claim made in the plaint is in respect of the land measuring 1 katha 5 lechas covered by Dag No. 1722 under PP No. 171.
10. According to the plaintiffs/appellants the proforma defendant No. 6 was in permissive occupation of the suit land, which was made Sarkari on the basis of the reports furnished by the revenue authority to the effect that the pattadar of the land had become ferar. However, nothing has been stated in the plaint as to when such report was furnished and the land was made Sarkari. Further averment made in the suit is that the defendant No. 6 namely Shri Chandra Das has been trying to get settlement of the suit land and in the event of granting such settlement the plaintiff would suffer irreparable loss and injury. Be it stated here that the defendants No. 5 and 6 are the proforma defendants. The cause of action for the suit is stated to be on 7.1.1987 when the suit land was made Sarkari, on 2.8.1988 when the plaintiffs received the certified copies of jamabandy and all other dates subsequent thereto.
11. The reliefs prayed for are as follows:
i. Declaration that the plaintiffs and the proforma defendant No. 5 are the joint lawful owners of the suit land and their names are required to be brought to the Records of Right in respect of the suit land as land holders/pattadars by deleting the name of "Sarkar" (State Government):
ii.Mandatory injunction directing the defendants to re-settle the suit land in favour of the plaintiffs and the proforma defendant No. 5 and record their names in the records of right as pattadars/land holders of the suit land;
iii. Permanent injunction restraining the defendants from granting settlement of the suit land in favour of anybody else except the plaintiffs and the proforma defendant No. 5;
iv. Cost of the suit;
v. Any other relief to which the plaintiff may be found entitle in law and equity.
12. The main defendant i.e. the defendants No. 1 to 4 as well as the proforma defendant No. 5 contested the suit by filing written statements. According to the written statements, necessary correction in the records of right was made on 22.4.1972 keeping the name of the proforma defendant No. 5 alone. It was contended that the plaintiffs did not have any right over the suit land. As regards the report, it was contended that the revenue authority being satisfied on the report that no land revenue was paid in respect of the land rightly declared the proforma defendant No. 5 as ferar and accordingly the land was made Sarkari (Govt. land).
13. In the written statement filed by the proforma defendant No. 6, it was contended that the land was mutated only in the name of the proforma defendant No. 5. Referring to two earlier suits being Title Suit No. 144/1969 and Title Suit No. 93/1968 and the orders passed therein, it was contended that the suit land was only in the name of Md. Basir, who alone remained the lawful owner of the land. Since Md. Ibrahim had no right, title and interest over the land, there was no question of inheritance from him by the appellants and thus they had no locus standi to file the suit. According to this written statement the suit land was never possessed by the plaintiffs/appellants at any point of time. As regards the contention regarding the defendant No. 6 being only a permissive occupants of the suit land, same was denied stating that he is the land holder, possessor and occupant of the disputed land and in fact the building bearing Municipal Holding No. 2366 (A) standing on the suit land is also in the name of the defendant No. 6. At the time of mutation of the holding No. 6 the father of the plaintiffs Md. Ibrahim raised objection on 22.4.1970 before the Municipal Board. But in absence of any supporting documents, the objection was overruled and consequently, both the land and the building were mutated in the name of the proforma defendant No. 6 vide order dated 22.8.1970. According to the written statement, the plaintiff/appellant No. 2 was physically present on behalf of his father when the order was so passed.
14. Further statement made in the written statement is that at the time of seeking permission for construction of the building, one Md. Mustafa acting on behalf of the one Abdul Hoque and another Md. Samsul Hoque raised objection before the Tinsukia Development Authority, but on failure to produce any supporting document the objection was overruled as recorded in the order dated 6.1.1970. As regards the prayer not to settle the land in favour of the proforma defendant No. 6, it was stated that the land was already settled in his favour by the Government vide order dated 25.7.1989. It was also contended that there is no question of re-settling the land in favour of the plaintiffs as the settlement was carried out after making the land Sarkari on the basis of the report furnished by the concerned authorities.
15. On the basis of the respective pleadings of the parties, the trial court tried the suit formulating the following issues:
i. Whether the suit is maintainable?
ii. Whether the plaintiffs have right to suit?
iii. Whether the suit is barred under the principles of weiver, estoppel and acquisance?
iv. Whether the suit is under valued and liable to be dismissed?
v. Whether the court has jurisdiction to try the sui?
vi. Whether the suit land has illegally been made Sarkari? If yes, who are entitled to be recorded as pattadars in respect of the suit land?
vii. Whether the plaintiffs have right, title and interest over the suit land?
Viii. Whether the name of Md. Ibrahim was appearing in the records of right in respect of the suit land? If yes, whether his name has been illegally deleted.
ix. Whether the plaintiff is entitled for the reliefs prayed for?
x. What any relief or reliefs, the parties are entitled?
16. The trial court by its judgment and decree dated 7.3.1994 decreed the suit in favour of the plaintiffs/appellants, answering all the issues in their favour. Being aggrieved by the judgment and decree, the proforma defendant No. 6 preferred Title Appeal No. 5/1994 and the appellate court i.e. the learned Assistant District Judge, Tinsukia by the impugned judgment dated 15.9.1994 having reversed the judgment and decree passed by the trial court, the plaintiffs have preferred this appeal.
17. The trial court dealing with the issue No. 1 and 5 i.e. whether the suit is maintainable and whether the court has jurisdiction to try the suit, which center around the substantial question of law that was formulated at the time of admitting the second appeal i.e. whether the suit is barred under Section 154 of the Assam Land and Revenue Regulations, answered both the issues in favour of the plaintiffs/appellants. It was the specific case of the defendants that the suit is not maintainable under Section 154 of the Regulations, having regard to the releifs prayed for in the suit. The reliefs prayed for in the suit have been noted above. It will be appropriate to quote the provisions of Section 154.
Section 154: Matters exempted from cognizance of civil court
1. Except when otherwise expressly provided in this Regulation, or in rules issued under this Regulation, no civil court shall exercise jurisdiction in any of the following:
(a) questions as to the validity or effect of any settlement, or as to whether the conditions of any settlement are still in force;
(b) questions as to the amount of revenue tax, cess or read to be assess; and the mode, or principle of assessment;
(c) the formation of the record of rights, or the preparation, signing, or alteration of any document contained therein...(qute)...(entire section....)
18. The trial court without referring to the evidences on record, merely by referring to certain decisions of this Court answered the issues in favour of the plaintiffs/appellants on the ground that in the suit the plaintiffs/appellants have sought for declaration of their title and that the right of the plaintiffs has been effected by the order of the Deputy Commissioner. This finding recorded by the trial court is contrary to the prayers made in the suit quoted above. As per the reliefs sought for in the suit, the plaintiffs/appellants prayed for a declaration on their own behalf as well as on behalf of the proforma defendant No. 5 (who never appeared throughout the proceedings and eventually whose name has been deleted in this appeal) to the effect that they are the lawful owners of the suit land and their names are required to be brought to the records of right by deleting the name "Sarkari" (Government land). Further prayer made is for re-settlement of the land and to record their names in the records of right alongwith the proforma defendant No. 5.
19. Thus, from the prayers and/or relief sought for, it is apparent that at the time of filing of the suit, the suit land was already made Sarkari (Government land) and this is precisely the reason why the plaintiffs prayed for re-settlement of the land as well as correction of records of right by bringing their names. However, the trial court, without referring to the actual prayers made in the plaint and the evidences on record returned the findings in respect of issue No. 1 and 5 in favour of the plaintiffs simply by observing that the plaintiffs sought for declaration of their title and that their rights have been effected by the order passed by the competent authority.
20. The above aspects of the matter, on being agitated by the appellant in the first appeal as erroneous and contrary to the evidence on records, the first appellate court has reversed the findings of the trial court in respect of issue No. 1 and 5. Section 154(2) of the above quoted Regulation clearly says that jurisdiction in respect of matters enumerated under Section 154(1) shall rest with the revenue authorities only. Section 154(1) (c) bars the jurisdiction of civil court in matters relating to formation of the records of right, or the preparation, signing or alteration of a document contained therein. Section 154(1) exempts the jurisdiction of civil court relating to questions as to the validity or effect of any settlement, or as to whether the conditions of any settlement are still in force.
21. It is in the evidence on record that correction in the records of right was made on 22.4.1972 (exhibit-4) keeping the name of the proforma defendant No. 5 alone in respect of the suit land. The revenue authority being satisfied on the report that no land revenue was paid in respect of the land, declared the proforma defendant No. 5 as ferar and accordingly the land was made Sarkari. The land was mutated only in the name of the proforma defendant No. 5. The documents relating to Title Suit No. 144/1969 and Title Suit No. 93/1968 and the orders passed therein also revelaed that the suit land was only in the name of Md. Basir i.e. the proforma defendant No. 5 who alone remained the lawful owner of the land. Further, the building bearing Municipal Holding No. 2366 (A) standing on the suit land is in the name of the defendant No. 6. At the time of mutation of the holding No., the father of the plaintiffs Md. Ibrahim raised objection on 22.4.1970 before the Municipal Board, but in absence of any supporting documents, the objection was overruled and consequently, both the land and the building were mutated in the name of the proforma defendant No, 6 vide order dated 22.8.1970.
Further evidence on record is that at the time of seeking permission for construction of the building, one Md. Mustafa acting on behalf of the one Abdul Hoque and another Md. Samsul Hoque raised objection before the Tinsukia Development Authority, but on failure to produce any supporting document, the objection was overruled as recorded in the order dated 6.1.1970. As regards the prayer not to settle the land in favour of the proforma defendant No. 6, it is on evidence that the land has already been settled in his favour by the Government vide order dated 25.7.1989.
22. The supporting documents in respect of the above aspects of the matter are on records as exhibits and thus the findings recorded by the trial court, while answering the other issues, that the proforma defendant No. 6, the appellant in the first appeal did not adduce any evidence regarding the municipal records and the factum of construction of building by him is utterly perverse and contrary to the evidence on records. Exhibits-9, Exhibit-Kha, Ga, Gha, Unga, Cha, Chha, Jaw, Jhaa, Niya, Ta, Tha etc. clearly depict the same. The first appellate court while reversing the finding of the trial court has discussed this aspect of the matter. It has been rightly observed that mere assertion of title will not be sufficient but will have to be genuine and not a mere pretext. It has also been rightly observed that a plain reading of the plaint it is evident that the plaintiffs/appellants want re-settlement of the land not only in their favour but also in favour of the proforma defendant No. 5 who never supported the case of the plaintiffs/appellants. From the evidence on record what is gathered is that the land stood only in the name of proforma defendant No. 5 and upon declaring him ferar, the land was made Sarkari (Government land). The proforma respondent No. 6 was allowed to occupy the land by him only and eventually it was the respondent No. 6 who constructed the building with due permission from the authority and afterwards the land has been settled with him.
23. The findings of fact arrived at by the first appellate court cannot be interfered with sitting on second appeal. Section 100 of the Code restricts the jurisdiction of the High Court to hear a second appeal only on substantial questions of law involved in the case. As has been observed by the Apex Court in Santosh Hazari v. Purushottom Tiwari , an obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The grounds urged in the appeal are all by way of assailing the findings of fact arrived by the first appellate court except the one relating to bar of jurisdiction of civil court under Section 154 of the Assam Land and Revenue Regulation. At the hearing of the appeal, the scope of hearing is circumscribed by the questions formulated. A perusal of the judgment of the first appellate court, unlike the trial court, shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. As noticed above, the trial court in a very cryptic manner answered the issue No. 1 and 5 in favour of the plaintiffs/appellants. The judgment of the first appellate court reflects its conscious application of mind and recording of findings supported by reasons, on all issues. Needless to say that the findings of fact based on conflicting evidence arrived at by the appellate court cannot be interfered with dealing with the second appeal. The findings of the trial court suffered from material irregularity being based on conjectures and surmises and consequently, the first appellate court has rightly interfered with the same. I am satisfy that it discharge the duty cast on it as a court of first appeal.
24. If the substantial question of law for-mulated at the time of admitting the appeal i.e. whether the suit is barred under Section 154 of the Assam Land and Revenue Regulations is answered in favour of the respondents and against the appellants, the other purported substantial questions of law formulated on 7.6.2006 after remand of the matter by the Apex Court i.e. (i) whether the right of an owner of a land by virtue of being legal heir of the original owner can be extinguished due to omission of his name wrongly in the zamabandi? And (ii) whether one co-heir while relinquishes his own right can relinquished the right of another co-heir without any authority from him?, automatically fall through. The other substantial questions of law i.e. whether a declaratory suit declaring plaintiff to be joint owner with other co-owner is barred under Section 154(2) of the Assam Land and Revenue Regulation? overlaps with the substantial question of law formulated at the time of admitting the appeal. Once this substantial question of law is answered against the appellants, the other substantial questions of law which are merely on factual aspects of the matter to be decided on the evidence on record, cannot be said to be substantial questions of law for adjudication under Section 100 of CPC.
25. The aforesaid two purported substantial questions of law are basically on the evidences on record. As discussed above, the first appellate court on the basis of the evidence on record has found that it is only the proforma respondent No. 5, who alone remained the owner of the suit land and upon declaring him as ferar, the land vested with the Government with the eventual settlement of the same with the proforma respondent No. 6. There is also no challenge to such settlement made in favour of the respondent No. 6. To answer the said two purported substantial questions of law, the matter will have to be looked into like the trial court or the first appellate court by re-appreciating evidence which cannot be so done by this Court sitting in second appeal about which mention has been made by the Apex Court in both the above quoted orders of remand. The first appellate court on the basis of the evidence on record has found that the dropping of the name of the father of the plaintiffs from the records of right was neither illegal nor fraudulent and thus the plaintiffs/appellants did not have any existing right over the suit land. The prayer for resettlement of the land is clearly barred by the provisions of Section 154 about which discussions have been made above. Further the plaintiffs/appellants have also failed to establish their title over the suit land by adducing any evidence. The land all along stood in the name of the proforma respondent No. 5, who never made any grievance in respect of the transactions involved from the stage of making the land Sarkari upto the stage of settling the same with the proforma respondent No. 6, who has been in occupation of the land since long before. As per exhibit 5 (ka) he was in occupation of the land for the last 18 years as of 22.4.1972 and proforma respondent No. 5 was the only recorded pattadar of the land.
26. In view of the above, I do not find any merit in this appeal and accordingly, the appeal is dismissed, upholding the impugned judgment dated 15.9.1994 passed by the first appellate court in Title Appeal No. 5/1994 reversing the judgment and decree dated 3.3.1994 passed by the trial court in Title Suit No. 45/1993. The Registry shall send down the case records to the court below immediately after observing necessary formalities. There shall be no order as to costs.
27. Appeal is dismissed.