Gauhati High Court
Ramsingh Hasan Rajbhor And 7 Ors vs Kalyan Kar Purkayastha And 10 Ors on 11 February, 2014
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH )
RSA No. 127 of 2013
1) Ramsingh Hasan Rajbhor
2) Bir Singh Rajhbor
3) Rajen Rajbhor
4) Narsingha Rajbhor
5) Bidesiya Rajbhor
6) Ram Sankar Rajbhor
Sons of Late Jamuna Rajbhor
7) Jagadish Rajbhor,
Son of Late Arjun Rajbhor
8) Dipak Rajbhor
Son of Ganga Rajbhor
All are the Residents of Kaiya Tea Estate,
P.O. Kaiya, P.S. Lala, Pin No. : 788163,
District: Hailakandi , Assam.
..... Defendants/ Appellants
-Versus-
1) Sri Kalyan Kar Purkayastha,
2) Sri Ashish Kar Purkayastha,
3) Sri Kaushik Kar Purkayastha,
4) Sri Himadri Sekhar Kar Purkayastha,
5) Sri Sankar Kar Purkayastha,
6) Smti. Shibani Kar Purkayastha,
7) Smti. Gauri Kar Purkayastha,
8) Smti. Gopa Kar Purkayastha
RSA No.127 of 2013 Page 1 of 10
All are the Sons and Daughter of Late
Kamala Kanta Kar Purkayastha.
9) Smti. Fullara Kar Purkayastha,
Wife of Late Kamala Kar Purkayastha,
All are the Residents of Kaiya Tea Garden,
Pargana-Sarspur, P.O. Kaiya, P.S. Lala,
Pin Code: 788163, District: Hailakandi, Assam.
......... Plaintiffs/ Respondents
10) Debabrata Kar Purkayastha, Son of Late Nalini Kanta Purkayastha, Resident of Natio0nal Highway, Silchar, P.S.: Silchar, District: Cachar.
11) Subhajit Kar Purkayastha Son of Late Karuna Sindhu Kar Purkayastha, Resident of Hailakandi Town, Ward No.II (Station Road), Paragana & District : Hailakandi.
......... Proforma Defendants/ Proforma Respondents.
BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY For the Defendants/ Appellants: Mr. M. H. Rajbarbhuiyan, Advocate. For the Plaintiffs/ Respondents: Mr. P.K. Deka, Advocate.
Date of hearing : 11.02.2014
Date of judgment : 11.02.2014
JUDGMENT AND ORDER (Oral)
Heard Mr. M.H. Rajbarbhuiyan, learned counsel for the appellants as well as Mr. P.K. Deka, learned counsel for the respondents.
RSA No.127 of 2013 Page 2 of 10
2. The present second appeal has been preferred by the defendants challenging concurrent findings of the learned courts below that the appellants failed to prove tenancy under the plaintiffs.
3. As many as 9 plaintiffs instituted Title Suit No. 26 of 2002 in the Court of learned Civil Judge, Hailakandi, praying for a decree for declaration of right, title and interest of the plaintiffs and recovery of Khas possession by evicting the defendants. Initially, the suit was filed praying for declaration of right, title and interest and confirmation of possession over the suit land. However, during pendency of the trial the plaint was amended incorporating a statement that the plaintiffs were dispossessed during the pendency of the suit and consequently, the suit for confirmation of possession was converted into a one for recovery of possession. The plaintiffs pleaded that Kamini Kar Purkayastha, their grandfather was the original owner of the land in R.S. Patta No. 30 which was issued showing names of all the patta holders in the said land. On the death of Kamini Kar Purkayastha his sons Kamala Kanta Kar Purkasthya, Karuna Sindhu Kar Purkasthya & Nolini Kanta Kar Purkasthya were incorporated in the records of rights. The three brothers purchased 12K 2 Chs of land in R.S. Patta No. 30 from one Anjar Ali by a registered Sale Deed. They purchased land measuring 10B. 6K 6Chs from Yakub Ali and land measuring 3B 12K 13 Chs from one Muslim Ali and thus they became owner and possessors in respect of land measuring 26 B 1K 11Ch of land. Each of the sons was owner of 1/3 of the aforesaid land. While the plaintiffs were enjoying the whole land without any let or hindrance from any quarter, the principal defendants tried to dispossess them from the suit land by preventing the labourers from fencing the land for which plaintiff No.4 lodged a complaint before the District Magistrate, Hailakandi, on 16.11.2001. It led to drawal up of a proceeding under Section 145 CPC. The proceeding was dropped by the learned Magistrate whereupon a RSA No.127 of 2013 Page 3 of 10 revision petition was preferred before the learned court of Sessions on 28.11.2001. According to the plaintiffs, the principal defendants took away the paddy grown on the suit land forcefully and in that connection C.R. case No. 1136 of 2001 was lodged. During pendency of the criminal proceeding, threat for dispossession mounted high for which the plaintiffs were compelled to file the suit for declaration and injunction. Appearing in the case, defendant No. 1 to 10 filed a join written statement and contested the claim of the plaintiffs in Paragraph-9 of the written statement the defendants pleaded "that the plaintiffs are not agriculturists and they have no title or possession over the suit land." Having denied the title of the plaintiffs the tenant claimed in the subsequent paragraph that they had been in the possession of the suit land for last 35 years by cultivating the land and that they were tenants under Kamini Kumar Kar Purkayastha. After death of Kamini Kumar Kar Purkayastha, his sons became the landlords. In Paragraph 14 of the written statement the defendants claimed acquisition of tenancy right in respect of the land under provisions of Assam (Temporary Settled Areas) Tenancy Act, 1971. In fine, the defendants prayed for dismissal of the suit of the plaintiffs on assertion of tenancy right.
4. On the basis of the aforesaid rival contentions of the parties, learned Trial Court framed as many as 4 issued as follows:
" 1) Is the suit maintainable in its present form and manner?
2) Whether answering defendants are tenants (Bhagidar) under Karuna Sindhu Kar Pursasthya in respect of suit schedule land?
3) Whether plaintiffs were dispossessed on 03.02.2003 and entitled to get recovery of khas possession over the suit land?
4) Whether plaintiffs are entitled to get a decree as prayed for?"
5. Plaintiff examined as many as 4 witnesses and the defendants examined 2 witnesses as DW1 & DW2. The basic thrust of the case of the defendants hinges around their claim of tenancy and to prove the RSA No.127 of 2013 Page 4 of 10 same, they brought on record a certificate issued by Assistant Settlement Officer, Lala as Exhibit-A. That certificate shows that the land measuring 8B 8K 3Ch covered by Dag No. 97, 98 & 99 of 2nd R.S. Periodic Patta No 13 is under the possession of the defendants Narasing Raj Bhar & Jagadish Raj Bhar. The certificate reveals that during field survey their names were included in the Draft Chitha as tenants and that the certificate was issued on the basis of the representation submitted by L.R. Staff on 11.06.2010. The learned Trial Court considered this certificate and noted that the said certificate was not proved in accordance with law. The Assistant Settlement Officer or any other staff from the office of the Assistant Settlement Officer was not examined either to prove the certificate and/ or its content and ultimately the learned Trial Court held that the Exhibit - A was neither duly proved nor could it in any way help the defendants to prove their tenancy over the suit land. The defendants did not make any attempt to call for the Draft Chitha or other records of rights to make out as to whether the records really contained their names as tenants under the plaintiffs. On considering these aspects of the matter, the learned Trial Court by its judgment and decree dated 06.09.2005 held that the tenants failed to prove tenancy under the plaintiffs. However, the suit of the plaintiffs was also dismissed on other Counts. The plaintiffs preferred Title Appeal No. 80 of 2006 before the Court of District Judge, Hailakandi. The defendants did not prefer any appeal or cross objection under the provisions of Order XLI Rule 22 CPC and as such the findings given against the defendants attained finality. The learned appellate court after hearing the parties allowed the appeal and declared right, title, interest and possession of the plaintiffs over the suit land. Prayer for recovery of Khas possession was also decreed. It is this decree which has been brought under challenge in this Second Appeal.
RSA No.127 of 2013 Page 5 of 10
6. After hearing of the appeal at length this Court by order dated 08.11.2013 asked the learned counsel for the appellants to produce a copy of the tenancy certificate which is Exhibit-A, observing that consideration of Exhibit-A is necessary for the purpose of decision of Second Appeal and accordingly, the learned counsel for the appellants has produced a photo copy of the Exhibit-A to this Court. It is kept on record.
7. On perusal of the Exhibit-A it shows that it is merely a possession certificate issued by the Assistant Settlement Officer stating that the said report was based on the report of L.R. Staff. It is also claimed in the certificate that the certificate was issued pursuant to notification of the name of the defendants in the Draft Chitta. Having gone through this exhibit, this Court has not found any perversity in the finding of the learned Trial Court recorded against the issue No.2 which is in regard to claim of the tenancy of the defendants on the basis of the same exhibit. Apart from the fact that the aforesaid findings of the learned Trial Court was not brought under challenge by filing any cross-objection before the learned appellate Court under the provision of Order XLI Rule 22 CPC, it is observed that contents of Exhibit-A are not sufficient to make out the claim of tenancy of the defendants.
8. Having said so, naturally a question may arise as to which category of possession of a land leads to tenancy right to an occupant. Anybody other than an owner when holds a land his possession may be with or without consent of the real owner. Once, occupation is without consent or knowledge of the real owner, the occupant is merely a trespasser. Taking analogy to the terminology of Life Sciences such an incident is a one of parasitism. In such occupation the host does not derive any benefit and is rather harmed by the occupant known as parasite. The second category of occupation is termed as RSA No.127 of 2013 Page 6 of 10 commensalism which means that the occupier derives benefit but such occupation is neither harmful nor beneficial to the host. In the third and last category comes symbiosis which means both the sides, namely, the host and the occupant derive mutual benefits. In regard to occupation of land by someone other than owner can also be similarly classified into three categories. The first category of occupation by someone other than owner without consent or knowledge of the real owner is a trespasser. If such incident of occupation is allowed to continue beyond statutory period of limitation, this extinguishes the right of the real owner to the land in question. Conversely by hostile possession to the knowledge of the real owner, the occupant earns some amount of immunity again eviction. The second category of occupation may be with knowledge and consent of the owner. If the occupation is in the nature of commensalism, the owner does not derive any benefit. The licensees approaching the real owner for giving shelter for some period without any consideration or quid pro quo come within this category. These occupants do not acquire any right to land for whatever period they may be in possession. As and when the license is withdrawn and the owner asks him to vacate, he is bound to vacate. The third and last category of this type of occupation is in the nature of symbiosis. This again may be of two types. First, occupation of the land may be as an antecedent of employment. Under certain services, the employer provides accommodation to the employees and such occupation is co-terminus with the service. As and when service comes to an end the right of the employee to hold the accommodation also expires. Thus in this sub-category of symbiotic occupation, the occupier does not acquire any right to the land. The other sub-category for occupation with consent may be inconsideration of securing the property by standing guards to the same as part time or full time job and in this category also the occupant does not acquire any right to the land being a licensee without statutory right. The last sub-category of the RSA No.127 of 2013 Page 7 of 10 symbiotic occupation of land is the incident of tenancy. In this category, the real owner permits the occupant to hold the property for such period as he wants and in return he charges and realises some payment either in cash or in kind. Such payment is known as rent, the owner is known as land lord and the occupier is known as tenant. If the land is agricultural one, a part of the crop may be paid as rent by the occupant to the real owner. A tenant whose right is recongnised and preserved by any statute is known as statutory tenant and eviction of such tenant is only subject to fulfillment of conditions precedent laid down in the concerned statute. One such statute involving right of agricultural tenant is the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (hereinafter referred to as 'the Act'). The present appellant claims right and protection of this Act.
9. The Act is a complete code in itself. It defines tenancy and rights and protections of a tenant under it. It also provides mechanism for acquisition of ownership by tenant. Tenancy has been defined under Section 3 (17) of the Assam (Temporarily Settlement Areas) Tenancy Act, 1971. The fundamental ingredients of said Section are that a tenant not only has to be in possession of the land in question for the purpose of cultivation but also has to prove that he makes payment to the owner either as a rent or as part of the system known as 'Adhi', 'Barga', 'Chukti', 'Bhag' or 'Chukni'. Mere possession of the land without corresponding incident of a jural relationship with the owner of the land does not automatically set up a tenancy. The essential ingredients of tenancy can be stepwise articulated as follows: First, coming into possession of a land; secondly, existence of a contract with the owner which may be before or after coming into possession of the land; thirdly, the contract has to be symbiotic in nature and the quid pro quo for possession cannot be abstract but has to be either in cash payable at fixed periodical interval or in the form of a part of the crop or usufruct grown on a land in pursuance of a RSA No.127 of 2013 Page 8 of 10 definite contract. A person allowed to hold a land as incident of his employment cannot claim tenancy. Similarly, a chowkidar appointed to stand guard to a land by way of employment cannot also give rise to a land lord tenant relationship. These categories of possession other than a specific and expressed intention of setting up tenancy relation cannot ipso facto set up a tenancy. Once, a party sets up a claim of being a tenant under the real owner, burden automatically comes on him to plead and prove the ingredients of tenancy as indicated in Section 3(17) of the Act and as referred to above.
10. Here in this appeal, it is not the case of the defendants that they gave part of crops to the owner in every agricultural season or that they paid rent in cash against occupation of land by them. While at one stage the defendants produced some rent receipts to establish that they used to pay rent in cash, on the following moment they took a stand that they gave part of the crop raised. On consideration of the materials available on record, both the courts concurrently held that defendants have not acquired status of tenant under plaintiffs. Moreover by denying title of the plaintiffs at Paragraph-9 of the written statement the defendants also incurred the disability under Section 116 of the Indian Evidence Act which prohibits denial by tenant of the title of their land lord.
11. Upon the arguments of both the learned counsel appearing for the parties show that the subject matter of the second appeal is nothing but a dispute as to status of the present appellants as tenants. The learned counsel for the appellants has failed to point out any other aspect of the matter whereupon a substantial quest6ions of law could be framed. It is held by the Hon'ble Supreme Court in the case of Shri Raja Durga Singh of Solon vs. Tholu and Others reported AIR 1963 SC 361 (Pr.8) that determination as to the status of land lord cannot be a substantial question of law and as such the same RSA No.127 of 2013 Page 9 of 10 cannot be subject matter of a second appeal. On consideration of the totality of circumstances, I do not feel that any substantial question of law whatsoever arises from the present case and accordingly, there is no reason to admit this Second Appeal.
12. The Second Appeal is not entertained and accordingly, dismissed.
13. No order as to cost.
JUDGE sumita RSA No.127 of 2013 Page 10 of 10