Gauhati High Court
On The Death Of Rahmat Ali His Legal Heirs ... vs Habib Ali Barbhuiya And Ors on 9 September, 2014
Author: N. Chaudhury
Bench: N. Chaudhury
1
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
RSA 51/2005
1. On the death of Appellant No. 1, Rahmat Ali,
his legal heirs-
1(a) Salim Uddin Barbhuiya (son)
1(b) Sariful Nessa Barbhuiya (wife)
1(c) Koitor Nessa Barbhuiya (wife)
1(d) Hafij Uddin Barbhuiya (son)
1(e) Alim Uddin Barbhuiya (son)
1(f) Abdul Kalam Barbhuiya (son)
1(g) Abbas Uddin Barbhuiya (son)
1(h) Mufiz Uddin Barbhuiya (son)
1(i) Mohir Uddin Barbhuiyan (son)
1(j) Nazma Begum Barbhuiyan (Dau)
1(k) Jamila Begum (Dau)
1(l) Anowara Begum Barbhuiya (Dau)
1(m) Khalida Begum Barbhuiya (Dau)
1(n) Sabina Begum Barbhuiya (Dau)
As per Hon'ble Court's order dated 10.02.2014 passed in MC No. 1178/13.
2. Abeda Begum, W/o. Late Ahmed Ali
3. Abdul Kashim, s/o -do-
4. Moher Sultana, d/o -do-
5. Abul Azad, s/o -do-
6. Raiana Begam, d/o -do-
7. Jakera Begum (Minor) -do-
8. Jotsna Begum (Minor) -do-
No. 7 & 8 are represented by their mother, defendant No. 2.
9. Khalil Uddin, s/o L. Sayed Ali,
Vill. Burnie Breas Grant,
P.S. Algapur, Dist. Hailakandi.
... Appellants/Defendants
Vs
1. Struck off the Respondent No.1, Anwara Begum
as per Hon'ble Court's Order dated 30.10.2013 passed in M.C. No. 1176/13
2. Habib Ali Barbhuiya S/o Late Irman Ali Barbhuiya, Mohanpur Grant, Dist. Hailakandi.
3. Manager, Burnie Breas Tea Estate ..... Respondents/Plaintiffs 2
4. The Deputy Commissioner, Hailakandi
5. Siraj Uddin, S/o L. Abdul Bari Vill. Burnie Breas Grant, Khasia Punji
----- Proforma Respondents BEFORE HON'BLE Mr. JUSTICE N. CHAUDHURY For the Appellants :: Mr. N. Dhar Mr. M.H. Rajbarbhuiya Mr. N.A. Laskar Mr. A. Mannaf ......learned counsel for the appellants For the Respondents :: Mr. A.H. Laskar Mr. A.M. Mazumdar Mr. A. Hai Mr. S. Huda Md. Arif, Mr. N. Haque
----learned counsel for the respondents Date of hearing :: 09.09.2014 Date of delivery of Judgment :: 09.09.2014 JUDGMENT & ORDER(ORAL) The only substantial question of law that is required to be answered in this case is as follows:
"Whether the suit filed by the plaintiffs/respondents for cancellation of the allotment of ceiling surplus land to the appellants/defendants is maintainable under Section 32 of the Assam Fixation of Ceiling of Land Holding Act, 1956?"3
2. The factual matrix of the case is required to be stated in nutshell before venturing to answer the substantial question of law. Plaintiffs instituted Title Suit No. 143 of 1985 in the Court of learned Munsiff No. 1, Hailakandi claiming that land measuring 11 bighas 5 kathas covered by Dag No. 296 of Patta No. 40 of second R.S. Patta of Mouza Burnibridge was the property of defendant No. 5 where from one Shibcharan Rajbhar took settlement for agricultural purpose as he was a driver of the Tea Estate. Shibcharan Rajbhar was issued Khaitan No. 58 by the settlement authority in recognition of his being in possession of land as agricultural tenant under the original owner. He sold the land to plaintiff No. 2 on 05.06.1975 by unregistered Kabala and gave possession. However on 07.09.1978 Khaitandar executed a registered sale deed in favour of plaintiffs. The plaintiffs being in possession continued enjoying the same when in the year 1978 defendants sought to dispossess them from the suit land. Aggrieved thereby, plaintiff No. 2 instituted a proceeding under Section 145 Cr.P.C. before the Executive Magistrate at Hailakandi vide Case No. 155/1978. Executive Magistrate declared possession of the plaintiff on 24.07.1980. The defendants challenged the order of the Executive Magistrate before Sessions Judge, Cachar at Silchar which on being dismissed a revision petition was filed before this High Court which was also eventually dismissed. It was the case of the plaintiffs that the defendants did not challenge order passed by the hierarchy of the courts earlier in proceeding under Section 145 Cr.P.C. and consequently plaintiffs continued in possession but thereafter in the year 1985 the defendants started announcing that they will cut away the paddy grown by the plaintiffs over the suit land and they shall also dig tank, drainage etc. on the suit land and also build house so as to dispossess the plaintiffs. Such declaration having been made on or around 15.11.1985, plaintiffs became alarmed and instituted aforesaid Title Suit No. 143/1985 praying for decree for declaration of 4 their rights, title and interest over the land in question and also for injunction restraining the defendants from dispossessing the plaintiffs from the suit land. It appears from records that during pendency of the suit prayer for amendment was made for incorporation of prayer for recovery of khas possession on the allegation that plaintiffs were dispossessed from the suit land by the defendants during pendency of the suit. By amendment of plaint, plaintiffs also made prayer that purported document issued by the defendant No. 5, Tea Estate on 31.12.1966 was fabricated, forged and illegal. Defendants No. 1 & 4 appeared and filed two separate written statements. Suit proceeded ex-parte against defendants No. 2, 3 & 4. It is the case of the defendant No. 1 that he being Choukidar of the Tea Estate, he was settled with 10 bighas of land out of 11 bighas 10 kathas referred to above. The defendant No. 4 claimed that he possessed 1 bigha 10 kathas of land which is outside the suit land. On the basis of the aforesaid pleadings, learned trial Court framed as many as 6 (six) issues which are quoted below:
1. Is there any cause of action?
2. Is the suit barred by waiver, estoppels and acquiescence?
3. Is the suit maintainable in this court?
4. Whether the plaintiff or defendant No. 1 is tenant in respect of 10 Bigha of land under the Burnibridge T.E.?
5. Whether the plaintiffs or the defendant No. 1 is in possession of the S/land comprising 10 Bighas?
6. To what relief the plaintiffs are entitled?
3. Plaintiffs, examined as many as 10 witnesses and exhibited 32 documents. The defendants on the other side examined 4 witnesses and exhibited 23 documents.5
4. Learned trial Court after considering the evidence on record passed judgment and decree on 13.05.2002 decreeing the suit in entirety. While deciding Issue No. 3 the learned trial Court decided as to whether Civil Court has jurisdiction to entertain the suit under the issue as to maintainability. Learned Court considered the provision of Section 32 of Assam Fixation of Ceiling of Land Holding Act, 1956 and noted that the said Section issued jurisdiction to Civil Court. The learned Court also considered the submission made by the learned counsel for the defendants in this regard. However, considering the case of Union of India v. Azibun Nessa reported in (2000) GLJ 606 the learned trial Court found that jurisdiction of Civil Court can be ousted by legislature expressly or by impliedly but even thereafter Civil Court will always have jurisdiction to examine the cases where provisions of the Act have not been complied with. In short, the trial Court considered the judgment of the Supreme Court in the case of Lala Ram Swarup & Others v. Shikar Chand & Another reported in AIR 1966 SC 893 referring to the judgment of the Hon'ble Supreme Court in the case of Beni Madhab v. Ram Naresh reported in (1998) 8SCC 751, trial Court also noted that a Civil Court has jurisdiction to determine question of title to land between the two parties even in the case where jurisdiction of the Civil Court is ousted by any express provision of ouster. Having considered the law laid down by the Supreme Court as well as the High Court, the learned trial Court is of the considered view that plaintiffs having filed suit for possession and jote right, permanent and khas possession and for declaring some documents as illegal, such a suit cannot be held to be barred by Section 32 of the Assam Fixation of Ceiling of Land Holding Act, 1956.
The learned trial Court also found that in the proceeding under Section 145 Cr.P.C., possession of the plaintiffs was declared not only 6 by the Executive Magistrate but the same was confirmed upto the High Court. The learned trial Court took note of the documents exhibited by the defendants and found that exhibits whereby defendants claimed to have paid revenue of Rs. 49.00 on 05.01.1955 is prima facie fraudulent and forged inasmuch as in the year 1955 decimal system had not come into existence. The learned trial Court also found that Exhibits S to W whereby defendants claimed to have been allotted with the land are liable to be quashed and accordingly quashed the same. However, it was observed therein that the Revenue Authority shall be at liberty to reissue such certificate with respect to land other than the one covered by the suit.
5. As against this judgment and decree passed by the trial Court, defendants filed Title Appeal No. 9 of 2002 in the Court of learned Civil Judge, Senior Division at Hailakandi. The learned first appellate Court considered the objection of maintainability and upheld the findings of the learned trial Court that a declaratory suit claiming title to a plot of land on the basis of purchase does not come under the bar of Section 32 of the Assam Fixation of Ceiling of Land Holding Act, 1956. The learned first appellate Court independently considered the evidence as well as the judgment relied on by the parties to arrive at such findings. Thereafter, considering the plea of title raised by the plaintiffs, the learned trial Court was satisfied that plaintiffs succeeded to prove his title on the basis of Ext.- 11, 12 & 16. This is because, an objection was raised from the side of the defendants that the plaintiffs having claimed jote right by purchase from a person stated to have been issued Khaitan No. 58 but did not produce the same before the Court. Khaitan No. 58 being the pivotal document and rather source of claim of the plaintiffs and the same having been not brought on record the defendants claimed that suit of the 7 plaintiffs ought to have been dismissed by the learned trial Court on that ground alone.
6. The learned first appellate Court considered the evidence of the parties and took note of the evidence of Pw9 who is the Assistant Settlement Officer. He proved the certificate (Ext.-4) issued to the plaintiff wherein there was a mention that Khaitan (Ext.-58) had been issued in favour of Shibcharan Rajbhar. On totality of consideration of Ext-10 (sale deed), Ext.-4 and Ext.-11, 12 & 16, the learned first appellate Court was satisfied that claim of the plaintiffs as to issuance of Khaitan to Shibcharan Rajbhar stood vindicated by Ext.-11, 12 &
16. Shibcharan Rajbhar having transferred the land vide Ext.-10 in favour of the plaintiffs and plaintiffs being agriculturist by occupation bar under Section 8 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 would not be applicable to this case. In this regard, learned first appellate Court placed reliance on a judgment of this Court in the case of Sri Haridwar Upadhaya V. Sri Jitendralal Roy & Anr. reported in 1990 GHC 559. Having so found the learned first appellate Court modified trial Court's judgment and decree to the extent that Ext. S to W need not be quashed as the authority may accommodate the defendants in other portion of suit Dag No. 296. It was only observed that the allotment certificates Ext. S to W would not attract the suit land.
7. The aforesaid first appellate judgment is under challenge in the present second appeal on the sole substantial question of law which has been mentioned at the first paragraph.
8. I have heard Mr. N. Dhar and Mr. M.H. Rajbarbhuiya on behalf of the appellants and Mr. N. Haque, learned counsel for the respondents. I have also heard Mr. G. Sarma, learned State Counsel inasmuch as the question of applicability of Section 32 of the Assam Fixation of Ceiling of Land Holding Act, 1956 cropped up in this case.
8Mr. Sarma has made submission on the applicability of Section 32 of the aforesaid Act as well as under Section 8 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 in this regard.
9. Mr. N. Dhar, learned counsel for the appellant sought to argue that the learned first appellate Court did not consider the evidence led by PW1, PW2, PW3 and PW4 in proper prospective. Had the same been duly done, Mr. Dhar submits, the suit of the plaintiffs would have been dismissed. Appreciation of evidence by the first appellate Court cannot be a subject matter in the second appeal. Under Section 100 of the CPC jurisdiction of High Court is confined to consideration of substantial question of law and not the question of facts as argued by the learned counsel for the appellants. Admittedly, plaintiffs have staked claim of right to the land on the basis of a registered sale deed (Ext.-10). Plaintiffs claim that vendor of the land was settled by the original owner as agricultural tenant and that is why Khaitan No. 58 was issued in his favour. This Khaitan was tendered into evidence in original in the proceeding before Executive Magistrate in the year 1978 as referred to above. On consideration of this document in addition to other evidences, Executive Magistrate declared plaintiffs to be in the possession of the land in the year 1980 and the same findings were upheld by learned Sessions Judge, Cachar as well as this High Court in revision petition. Plaintiff stated that aforesaid Khaitan No. 58 was tendered into evidence in the proceeding under Section 145 CPC as Ext.-2 and the same document got lost alongwith the whole records from the custody of Court. It is under such circumstances, issuance of Khaitan was proved by examining Assistant Settlement Officer and on consideration of the certificate issued by Revenue Authority. Learned first appellate Court having considered Exhibits 11, 12 and 16 alongwith Ext.-4 was satisfied that plaintiffs were entitled to rely on other evidences to show issuance of 9 Khaitan in favour of Shibcharan Rajbhar. Having purchased the suit land by Ext.-10, plaintiffs acquired the jote right of Shibcharan Rajbhar and got elevated to the status of land holder. This being the position a declaratory suit for assertion of jote right on the basis of purchase vide Ext.-10 from a recorded tenant cannot be held to be barred under Section 32 of the Assam Fixation of Ceiling of Land Holding Act, 1956. The aforesaid judgment of the Hon'ble Supreme Court were duly considered by the learned first appellate Court as well as the High Court while deciding this issue.
10. Under Section 9 of the Code of Civil Procedure any person asserting right of civil nature is entitled to institute a Civil Suit in a competent Civil Court. Civil Court has plenary jurisdiction to decide dispute of civil nature. In the case of Secretary of State v. Mask & Co. reported in AIR 1940 PC 105 the Privy Council held that the Civil Court can decide any dispute of civil nature unless its jurisdiction is specifically or impliedly barred by any statute. This law is also followed in catena of judgments of the Hon'ble Supreme Court. Even in those cases where jurisdiction of the Civil Court is specifically barred but plaintiff succeeds to make out a case of violation of the fundamental principle of judicial procedure and/or valuation of the provision of the Act which ousts the jurisdiction of the Civil Court, even in that case, despite specific ouster of the jurisdiction of the Civil Court, a Civil suit shall still lie. All these judgments received consideration of a Full Bench of this High Court in the case of Daulatram Lakhani v. State of Assam And Ors. reported in (1989)1GLR 131(FB) and thus it is no longer res integra that despite specific ouster of jurisdiction of Civil Court, suit for declaration of right, title and interest will still lie.
11. Having heard all the learned counsel appearing in this case and on consideration of the judgments referred to above this Court does 10 not feel that the learned courts below have committed any error in holding that the suit of the plaintiffs is not barred under Section 32 of the Assam Fixation of Ceiling of Land Holding Act, 1956. The sole substantial question of law, therefore, is decided in favour of the plaintiffs and against the defendants. The suit is found to be maintainable.
12. Consequently second appeal is dismissed.
13. No order as to costs.
sds JUDGE