Gauhati High Court
On The Death Of Naresh Ch. Paul His Legal ... vs Deb Nandan Goala & Anr on 14 May, 2015
Author: A.K. Goswami
Bench: A.K. Goswami
Page 1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
RSA No. 176/2005
Sri Naresh Chandra Paul,
S/o Late Ramdayal Paul,
R/o Labac Grant, Pailapool,
Pargona - Banskandi,
P.O. Lakhipur, P.O. Pailapool,
Dist. - Cachar, Assam.
On the death of the appellant, his legal heirs are:
1. Shri Nihar Ranjan Paul (son),
2. Smt. Jyotsna Rani Paul (wife),
3. Sri Nirmalendu Paul (son),
4. Ms. Rupashri Paul (daughter),
5. Smti. Monalisha Paul (daughter-in-law),
6. Smti. Jayashree Paul (daughter)
- Appellant/plaintiff
- Versus -
1. Sri Deb Nandan Goala,
S/o Lt. Prakash Goala,
R/o Labac Bazar, P.O. Labac,
Pargona - Banskandi,
Dist. - Cachar, Assam.
2. Sri Nandan Goala,
S/o Lt. Prakash Goala,
R/o Labac Garden, P.O. Labac,
Pargona - Banskandi,
Dist. - Cachar, Assam.
- Respondents/defendants
For the appellants : Mr. A. B. Choudhury, Senior Advocate,
Mr. J. P. Sarma, Advocate.
For the Respondents : None appears
RSA 176/ 2005
Page 2
BEFORE
HON'BLE MR. JUSTICE A.K. GOSWAMI
Dates of hearing and judgment : 14.05.2015
JUDGMENT AND ORDER
(ORAL)
Heard Mr. A. B. Choudhury, learned Senior counsel, appearing for the appellant/plaintiff. None appears for the respondents despite the names of the counsel being shown in the cause-list.
2. This appeal is preferred against the judgment and decree dated 11.06.2005, passed by the learned Civil Judge (Senior Division) No. 1, Silchar, in Title Appeal No. 11/2004, dismissing the appeal and upholding the judgment and decree dated 24.12.2003 passed by the learned Civil Judge (Junior Division) No. 1, Silchar, in Title Suit No. 90/1998.
3. This appeal was admitted to be heard by an order dated 31.08.2005 on the following substantial question of law:
"Whether the learned lower Appellate Court erred in rejecting the appellant's claim of occupancy tenant under the Assam Temporary Settled Areas Tenancy Act, 1971, by misconstruing the definitions of 'landlord' and 'personal cultivation' provided therein?"
4. The plaintiff had filed the suit for a decree of declaration of the right of occupancy tenant in respect of a piece of land measuring 14 Bighas 15 Chataks, for confirmation of possession over the suit land, for declaration declaring that the defendants had no right, title and interest over the suit land, for permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiff over the suit land, etc.
5. The case, as projected in the plaint, in a nutshell, is that Joyshree Tea and Industry Ltd. was the owner of the suit land and one Tulsi Goala was occupying the suit land as tenant. Subsequently, due to various sale transactions, one Prakash Goala, predecessor-in- interest of the defendants, who was an occupancy tenant in respect of the suit land, had sold the suit land on 13.02.1981 to the plaintiff on receipt of valuable consideration and delivered khas possession of the said land and, thereafter, the plaintiff started possessing RSA 176/ 2005 Page 3 the same by doing cultivation of paddy thereon. With the passage of time, he had also acquired the status of occupancy tenant over the suit land. Since the month of July, 1995, the defendants started ploughing the land on their own and, in the month of August, 1996, tried to forcefully dispossess the plaintiff.
6. The defendants filed written statement and counter-claim. It was stated by them that the plaintiff was not a cultivator by profession and that he was serving as a Sepoy in the Department of Excise. Prakash Goala, the predecessor-in-interest of the defendants had approached the plaintiff for a loan of Rs. 8,000/- in respect of which, as a security, the suit land had been pledged as simple mortgage (Ejaranama) and, subsequently, the plaintiff fraudulently manufactured a sale deed on 13.02.1981 by forging the signature of attesting witnesses and the father of the defendants. When the amount of loan was returned, the plaintiff did not return the deed of Ejaranama on the ground that the same was not traceable and, subsequently, came to learn about the alleged sale deed. It is contended that at the time when the sale deed was allegedly executed, Prakash Goala had no saleable interest thereon. Accordingly, the defendants, while praying for dismissal of the suit, also prayed for a declaration that the Sale Deed No. 300 dated 13.02.1981, executed in favour of the plaintiff, is fraudulent and illegal, etc., that the plaintiff has no right to possess the suit land and for a further declaration that the defendants had acquired valuable right in respect of the land and for injunction etc.
7. On the basis of the pleadings, 7 (seven) issues were framed by the learned trial Court, which are as follows:
"1. Is there any cause of action for the suit?
2. Is the suit maintainable in its present form and manner?
3. Is the suit defective for non-joinder of necessary parties?
4. Has the plaintiff occupancy right and possession over the suit land?
5. Had the defendants illegally attempted to dispossess the plaintiff from the possession of the suit land?
6. Is the plaintiff entitled to a decree as claimed?
7. What other relief/reliefs the parties are entitled to?"
8. The plaintiff examined three witnesses and the defendants examined two witnesses and both the sides exhibited certain documents. The learned trial Court had dismissed the RSA 176/ 2005 Page 4 suit of the plaintiff as well as the counter-claim. The defendants did not prefer any appeal against the dismissal of the counter-claim. However, the plaintiff had preferred an appeal. Both the Courts below held that the plaintiff had failed to prove that he was an occupancy tenant.
9. Mr. Choudhury, learned Senior counsel for the appellant has submitted that the learned Courts below was unduly influenced by the fact that the plaintiff was working as a Sepoy in coming to a conclusion that he was not an agriculturist and, on the basis of such perception, proceeded to decide the suit grossly overlooking the definition of 'personal cultivation' as contained in the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (for short, 'the Act of 1971'). Learned Senior counsel submits that it is not necessary that a tenant has to cultivate the land personally and the definition of 'personal cultivation' amplifies the said position. He has further submitted that the definition of 'landlord' in the context of the case is not relevant and, therefore, even though the definition of 'landlord' finds mention in the substantial question of law framed by this Court, he will not be making any submission on that score.
10. I have considered the submissions of Mr. Choudhury and have perused the materials on record.
11. Section 3(3) of the Act of 1971 defines "agriculturist" to mean a person who cultivates land personally. Section 3(10) defines "personal cultivation" to mean cultivation by the person himself, or by member of his family or by hired labourers on fixed remuneration payable in cash or kind but not in crop share, under personal supervision of the person himself or any member of his family, provided it is accompanied by the bearing of the risks of cultivation by the owner and by residence in the village in which the land is situated or nearby village or town within a distance of 5 miles during the greater part of the agricultural season, provided that in the case of a person who is a widow or a minor, or is subject to any physical or mental disability or is a member of the Defence forces of the Indian Union or is a student below the age of 21 years of an educational institution recognized by the State Government, the land shall be deemed under personal cultivation even in the absence of such personal supervision. Section 3(17) defines 'tenant' to mean a person who cultivates or holds the land of another person, and is, or but for a special contract (express or implied) would be liable to pay rent for that land to that other person, RSA 176/ 2005 Page 5 and includes a person who under system generally known as 'Adhi' (whether Guchiadhi or Gutiadhi), 'barga', 'chukti', 'bhag' or 'chukani' cultivates the land of another person on condition of delivering a share or quantity of the produce of such land to that person, provided that a person who cultivates or holds land immediately under the State Government is not a tenant within the meaning of this definition.
12. Chapter-II of the Act of 1971 categorises the classes of tenants into (i) occupancy tenant and (ii) non-occupancy tenant. Sub-Section (1) of Section 4 defines "occupancy tenant" to mean a tenant holding immediately under a proprietor, land-holder or settlement-holder other than land-holder and having a right of occupancy in the lands held by him. Sub-Section (2) of Section 4 provides that from the date of commencement of the Act, any person who was recorded in the record of rights as a privileged tenant under the provisions of the Assam (Temporarily Settled District) Tenancy Act, 1935, shall be recorded as an "occupancy tenant", provided that he, subject to the provisions of Section 28 of the Act of 1971, continues to pay rent at the same rate as before.
13. Chapter-III is devoted in respect of occupancy tenant. It provides for acquisition of occupancy rights, incidence of occupancy right, devolution on death, right of transfer etc. Sub-Section (3) of Section 4 provides that from the date of commencement of the Act of 1971, there shall be no new under-tenant.
14. Under Section 5, a person who, for a period of not less than three years, has continuously held land as a tenant, shall have the right of occupancy on that land. Section 8 provides that an occupancy tenant shall have a right of transfer in respect of his holding with prior permission of the government in the manner prescribed. A notice on such transfer shall be served on the landlord in the manner prescribed. The proviso to Section 8 provides that an occupancy tenant shall not transfer his land to a non-agriculturist. Section 14 provides that an occupancy tenant shall not be liable to ejectment from his holding except as provided for in Chapter-IX of the Act of 1971.
15. The plaintiff had exhibited the Sale Deed dated 13.02.1981 executed by Prakash Goala, the predecessor-in-interest of the defendants, as Ext.-1. The learned trial Court also found from Ext.-A, Jamabandi, that Joyshree Tea and Industry Ltd. is the Pattadar of the land in question. In other words, Joyshree Tea and Industry Ltd. was the landlord and the said position is also an admitted fact. However, Joyshree Tea and Industry Ltd. was not RSA 176/ 2005 Page 6 made a party to the proceeding. It was rightly held by the learned trial Court that Joyshree Tea and Industry Ltd. was a necessary party when a declaration was sought for occupancy tenant under the said landlord. The learned trial Court found, on the basis of the materials available on record, that no permission of the Government was taken and notice was also not given to the landlord, as required under Section 8 of the Act of 1971, before execution of Ext.-1. It is also relevant to note that in Ext.-A, there was no mention of the existence of any occupancy tenant. Accordingly, the learned trial Court held that occupancy tenancy could not be proved on the basis of Ext.-1. The learned trial Court also held that the plaintiff had failed to prove that Tulsi Goala or, for that matter, his subsequent purported purchasers were occupancy tenants under Joyshree Tea and Industry Ltd. The plaintiff had also failed to prove any payment of rent. In the aforesaid context, the observation of the learned Appellate Court, while discussing the Issue Nos. 5 and 6, that the plaintiff admittedly is not doing cultivation personally will not be of much consequence.
16. A perusal of the impugned judgments would go to show that the suit of the plaintiff was not dismissed on the ground that the plaintiff was not cultivating the suit land personally. He had failed to establish tenancy under the landlord and the purported transfer from the father of the defendants vide Ext.-1 was also not in accordance with law. It is worthwhile to recapitulate that the Act of 1971 does not visualize under-tenant. Therefore, whether or not the plaintiff was cultivating, if at all, by himself or through anybody else, as contemplated under Section 3(10), will be of no consequence and the substantial question of law, as formulated, does not really arise in the facts and circumstances of the case.
17. In view of the above discussions, I find no merit in this appeal and, accordingly, the same is dismissed. No cost.
18. Registry will send back the records.
JUDGE RK RSA 176/ 2005