Gauhati High Court
Md. Mahim Ali & 2 Ors vs On The Death Of Rama Kt. Barman His Legal ... on 7 April, 2015
Author: A.K. Goswami
Bench: A.K. Goswami
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
RSA No. 74/2006
1. Md. Mahim Ali,
Son of Lt. Meza Sheikh,
2. Md. Rahiz Uddin Ali,
Son of Md. Mahim Ali,
3. Md. Rohit Ali,
Son of Md. Mahim Ali.
-All are residents of Barsala,
Mouza Sarukhetri, P.O. Amrikhowa,
Dist- Barpeta.
.........Appellants
Defendants
- Versus -
On the death of sole respondent, Ramakanta Barman, his legal heirs :
1. Smti. Kunjalata Barman (wife)
2. Sri Ranjit Barman (son)
3. Smti Harimoti Barman Patawari (daughter)
4. Smti. Minoti Barman (daughter)
5. Smti. Kamala Pathak (daughter)
6. Smti. Aditi Barman Deka (daughter)
7. Smti. Kavita Barman Deka (daughter)
8. Smti. Arati Barman (daughter) ........Respondents Plaintiffs For the Appellants : Mr. A.M. Buzarbaruah, Sr. Advocate, Mr. N. Zaman, Mr. P.C. Dey, Mr. A. Ganguly, Advocates.
For the Respondents : None appeared.
Dates of hearing : 25.3.2015 & 27.3.2015.
Date of judgment : 7.4.2015
RSA 74/2006 Page 1 of 11
BEFORE
HON'BLE MR. JUSTICE A.K. GOSWAMI
JUDGMENT AND ORDER
This appeal is preferred against the judgment and decree dated 21.11.2005 passed by the learned Civil Judge (Senior Division), Barpeta in Title Appeal No. 35/2004 whereby the appeal was dismissed by upholding the judgment and decree dated 19.5.2004 passed by the learned Civil Judge (Junior Division) No. 2, Barpeta in Title Suit No. 5/2002.
2. Mr. A.M. Buzarbaruah, learned senior counsel, at the outset, has submitted that inadvertently some mistakes had been committed while translating the plaint and the written statement and he submits that he will address the Court, also referring to the vernacular version.
3. The case of the plaintiff, as stated in the plaint, is that the land described in the Schedule to the plaint measuring 5 bighas 17 lechas covered by Dag No. 52 of Patta No. (old) 56 and (new) 62 situated at village-Bar Amrikhowa, Mouza-Sarukhetri in the district of Barpeta, was an annual patta land of his father Bengaram Barman and after his death, the name of the plaintiff was mutated in respect of the suit land. The plaintiff was in occupation of the suit land after the death of his father. In the said plot of land there is a fishery excavated by the father of the plaintiff covering almost ½ of the schedule land. That apart, there is a bamboo groove and residence of the plaintiff. The father of the plaintiff cultivated the land and earned his livelihood. The plaintiff fell sick in the year 1991 and the defendant had started cultivation over the portion of the land as Adhiar in the year 1407 (Bangla). Ahu and sali cultivation was carried out in the suit land and for the years 1407 and 1408 (Bangla) the defendant No, 1 gave a share of "Adhi" to the plaintiff. However, subsequently, defendant No. 1 did not give paddy and when the plaintiffs went to take "Adhi" paddy on 19.11.2001, he was sent back and the defendant erected a thatched shed, on the suit land.
4. The plaintiffs had prayed for the following reliefs:
RSA 74/2006 Page 2 of 11
(i) For declaration of right, title and interest over the schedule land described, in favour of the plaintiffs;
(ii) For delivery of Khas possession by evicting the defendants;
(iii) For granting injunction in favour of the plaintiffs and restraining the defendants from causing damage to the properties, fishes, trees and from causing any damage to the land in question;
(iv) For decree of the land in question in favour of the plaintiff and and/or any other relief in favour of the plaintiff.
5. The aforesaid suit was registered as Title Suit No. 5/2002 in the Court of the Civil Judge, No. 2, Barpeta.
6. The defendant Nos. 2 and 3 are sons of defendant No. 1. The defendants had filed a written statement contending that the suit is not maintainable in view of the fact that the defendants had questioned the declaration of the plaintiff's patta as illegal in Sarthebari N.R. case No. 1/2001-2002 pending before the Barpeta Revenue Circle. While denying the averments made in the plaint, it is stated that the suit land was covered with jungle and the defendant No. 1 being a landless cultivator, he cleared the jungle and made it fit for cultivation some 30 years before. He dug up a tank over one portion of the suit land and erected a house wherein he is living. He is in continuous possession of the said land. It is further stated that fishes come from outside to the pond and the defendants are doing fishing in the pond. The bamboo groove and the trees were also planted by the defendants in the homestead land and the plaintiff, at no point of time, planted any trees and he was never in possession of the suit land and had never enjoyed the harvest. Towards the end of 2000, the plaintiffs demanded the defendant No. 1 to vacate the suit premises on the ground that he was having the patta of the land. The defendant No. 1 examined the documents and found that the plaintiff had illegally obtained patta of the land in question and for cancellation of the patta, he instituted Sarthebari N.R. case No. 1/2001-2002 which is pending before the Barpeta Revenue Circle. The plaintiff had also instituted a case under Section 145 Cr.P.C., which was registered as RSA 74/2006 Page 3 of 11 Case No. 1/2002 in the Court of the Executive Magistrate, to harass the defendants. It is also stated that the defendants did not take possession of the suit land under contract of 'Adhiar" and never gave "Adhi" paddy.
7. On the basis of the pleadings, the learned trial court framed the following issues:
" 1. Whether the suit is barred by limitation?
2. Whether the plaintiff has right, title and interest over the suit land?
3. Whether the plaintiffs allowed the defendants to cultivate one portion of the suit land in "Adhiar system" and on 19.11.2001 the defendant encroached into the rest portion of suit land and constructed a thatched chali?
4. Whether the defendants have been under the possession of the suit land since 30 years?
5. Whether the plaintiff is entitled to get a decree as prayed for?"
8. During trial, the plaintiff examined six witnesses including himself as PW 1 and exhibited three numbers of documents marked as Ext. 1 to 3. The defendants had also examined four witnesses including the defendant No. 1 as DW 1. No documents were exhibited on behalf of the defendants.
9. The learned trial court decided issue Nos. 1 and 4 against the defendants. Issue Nos. 2 and 3 were taken up together for discussion and the same were decided in favour of the plaintiff and consequently, issue No. 5 was also decided in favour of the plaintiff. Accordingly, by the judgment dated 19.5.2004, right, title and interest of the plaintiff was granted over the suit land. It was also held that the plaintiff is entitled to recover khas possession over the suit land by evicting the defendants therefrom.
10. An appeal was carried against the judgment and decree dated 19.5.2004 before the Court of the learned Civil Judge, (Senior Division) and the same was registered as Title Appeal No. 35/2004. By the judgment and decree dated 21.11.2005, the appeal was also dismissed affirming the findings of the learned trial court and accordingly, the defendants have preferred this second appeal. RSA 74/2006 Page 4 of 11
11. The second appeal was admitted to be heard by an order dated 16.3.2007 on the following substantial question of law:
"1. Whether the annual patta holder has the right to transfer the land for which he has only possessory right to another person?"
12. Subsequently, on 5.2.2015, two additional substantial questions of law were formulated, which are as follows:
"1. In view of the admissions contained in Paragraph 4, 5 and 6 of the plaint, whether the defendants can be said to have acquired the status of non-evictable tenants under the Assam (Temporary Settled Areas) Tenancy Act, 1971?
2. Whether the suit itself was not maintainable due to non compliance of Section 51 and 54 of the Assam (Temporary Settled Areas) Tenancy Act, 1971?"
13. When the matter was posted for hearing on 26.2.2015, on the prayer of the learned counsel for the appellants, another substantial question of law was formulated, which is to the following effect:
"1. Whether the declaration of right, title and interest by the Courts below is at all legally justified in view of the position that the same was granted on the basis of Exhibit 1, i.e., the Annual Patta."
14. Thus, in all, four substantial questions of law came to be formulated.
15. The case was partly heard on 25.3.2015 and the hearing was concluded by taking up the matter again on 27.3.2015. However, none appeared for the respondents on both the days although the names of the counsel were shown in the cause-list.
16. Mr. Buzarbaruah submits that the land described in the schedule to the plaint being an annual patta land, the learned courts below could not have declared right, title and interest in favour of the plaintiffs as under an annual patta or an annual lease, he has only limited right of RSA 74/2006 Page 5 of 11 user. In support of his submission, the learned senior counsel refers to Section 11 of Assam Land and Revenue Regulation, 1886, for short, the 1886 Regulation and Rule 1(c) of the Settlement Rules framed under the 1886 Regulation as well as the judgment of this Court in the case of Jainur Ali and ors. Vs. Chafina Bibi and ors, reported in AIR (38) 1951 Assam 19 . He also relies on (Paragraphs 15, 17 and 19) of the judgment in the case of Union of India and ors. vs. Vasavi Cooperative Housing Society Ltd. and ors. reported in (2014) 2 SCC 269.
17. It is submitted that going by the plaint version of the case, the land being an agricultural land, the Assam (Temporary Settled Areas) Tenancy Act, 1971, for short, 1971 Act, will be applicable and the defendants will be tenants within the meaning of 'tenant' as defined in the 1971 Act, though the defendants had denied that they were tenants. The only ground on which the plaintiff prayed for ejectment of the tenants was non-payment of rent in the form of "Adhi" paddy and therefore, in view of Section 54 of the 1971 Act, no decree for ejectment could have been passed against the defendants. He has submitted that entries in revenue record such as Chitta (Ext.
2) does not confer title. Even if there is any deficiency, the plaintiff must prove his case and cannot take the advantage of the weaknesses and deficiencies in the case of the defendants.
18. I have considered the submissions of Mr. Buzarbaruah, learned senior counsel for the appellants and perused the materials on record.
19. The learned courts below, on the basis of Ext. I, Annual Khiraj Patta, Ext. 2, certified copy of the Chitta/Mutation Order and revenue receipts as well as oral evidence adduced on behalf of the plaintiffs held that the plaintiffs had right, title and interest over the suit land.
20. Both the courts below have recorded the finding that the plaintiff allowed the defendants to cultivate the suit land as "adhiar" and that on 19.11.2001, the defendants encroached upon the suit land and constructed a thatched chali.
21. To appreciate the contentions of Mr. Buzarbaruah, it will be appropriate to take note of expressions, namely, proprietor, land-holder and settlement-holder as appearing in the 1886 Regulation.
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22. Section 3(f) of the 1886 Regulation defines 'proprietor' to mean the owner of any estate permanently settled or entered on the Deputy Commissioner's register of revenue-free estates; Section 3(g) defines 'land-holder' as any person deemed to have acquired the status of a land- holder under Section 8. Section 8 provides that any person who is, before the commencement of 1886 Regulation, held immediately under the Government for ten years continuously any land not included either in a permanently-settled estate, or in a revenue-free estate, and who has during that period paid to the Government the revenue due thereon, or held the same under an express exemption from revenue and except as provided by Section 15, any person who has, whether before or after the commencement of the 1886 Regulation, acquired any such land under a lease granted by or on behalf of the Government, the term of which is not less than 10 years, shall be deemed to have acquired the status of land-holder in respect of the said land. Section 3(h) defines 'settlement-holder' to mean a person, other than a proprietor, who has entered into an engagement with the Government to pay land revenue and includes a land-holder. Section 11 of the 1886 Regulation provides that a settlement-holder who is not land-holder, shall have no rights in the land held by him beyond such as are expressed in his settlement lease.
23. Rule 1.(2)(c) and (d), respectively, of Settlement Rules framed under 1886 Regulation defines an 'annual lease' and a " periodic lease" and the same read as under:
"An Annual Lease" means a lease granted for one year only and confers no right in the soil beyond a right of user for the year for which it is given. It confers no right of inheritance beyond the year of issue. It confers no right of transfer or of sub-letting and shall be liable to cancellation for any transfer or sub-letting even during the year of issue;
Provided that the State Government may waive their right to cancel an annual lease and may allow its renewal automatically till such time as the State Government may direct in those cases in which the land is mortgaged to Government or to a State- sponsored Co-operative Society."
RSA 74/2006 Page 7 of 11
"A Periodic Lease" except in the case of town land, means a lease granted for a period longer than one year, and in the case of town land, a lease for a period longer than three years. Subject to and so far as is consistent with any restrictions, conditions, and limitations contained therein, a periodic lease, the term of which is not less than ten years, conveys to the lessee the rights of a land-holder as defined in the Assam Land and Revenue Regulation."
24. In Joinur Ali (supra) it was held by Chief Justice Thadani as follows:
"It is clear that Rule 1(c) does not prohibit transfer of annual pattas. Indeed, it permits transfers but transfers are limited in their duration to the period covered by the annual patta. The correct interpretation, in our view, of Section 11 and Rule 1(c) framed under the Assam Land and Revenue Regulation is that when an annual patta holder purports to transfer his ownership in such land for consideration, the transferee takes good title to the property subject, only to the paramount title of the Government, that is to say, if the Government so chooses it may, at the expiry of the period of the annual patta, refuse to grant an annual patta to the transferee. That however, is a matter between the Government and the transferee and not a matter between a transferor and transferee."
25. The limited right of user or the possessory right conferred by the annual patta can be transferred and such transfers are valid between the parties. It will, however, be subject to the paramount title of the State. Until the annual patta is cancelled or notice for non-renewal is given, it confers title upon the patta holder to whom the patta was issued. The limited right of user acquired by transferee of annual patta holder would also continue until cancellation of the annual patta made in favour of the transferor. The possession of the transferee would be as good as that of transferor and the State has the paramount title over the land.
26. Considered in the above perspective, the declaration made by the Courts below that the plaintiff has got right, title and interest over the suit land will have to be understood in the limited sense and to the extent which the annual patta, Ext. 1, confers as indicated above. While it is correct that entries in the revenue records do not confer title, the patta is not an entry in a revenue RSA 74/2006 Page 8 of 11 record: it is a lease granted by Government. In the instant case, the patta was exhibited as Ext. 1 and therefore, the contention of Mr. Buzarbaruah that entries in the revenue record cannot be pressed into service to establish right, title and interest cannot be accepted.
27. 1971 Act does not apply to, in terms of Section 2, to (a) Land included in any Reserved Forest ; (b) Land owned by the Union or the State Government or by Local authority, which is used for any public purposes; (c) Land reserved for the purpose of professional grazing reserves, village grazing reserves, recreation grounds, burial or cremation ground, road, canal, drain, embankment or their maintenance or for any other public purposes; (d) Land which is non-agricultural and situated outside town-land area; and (e) Land comprised within estates settled for special cultivation when, and only so long as, such lands are used for purposes of special cultivation or for purposes ancillary thereto. Section 3(6) defines 'land' to mean agricultural land and 'agricultural land' to mean land used for agricultural purposes or purposes sub-servient thereto. The explanation to Section 3(6) provides that land under homestead occupied for residential purposes in connection with an agricultural holding shall be deemed to be included in agricultural land.
28. 'Tenant' is defined under Section 3(17) of the 1971 Act 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, and includes a person who under a 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. The proviso to Section 3(17) makes it clear that a person, who occupies or holds land immediately under the State Government is not a tenant within the meaning of this definition.
29. For the purpose of the 1971 Act, under Chapter-II, two classes of tenants, namely, (i) occupancy tenant and (ii) non-occupancy tenant are visualised. Occupancy tenant is 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. Non-occupancy tenant is a tenant RSA 74/2006 Page 9 of 11 holding immediately under a proprietor, land-holder or settlement-holder other than land-holder, but not having a right of occupancy in the land held by him.
30. Any person, who was recorded in the Record of Rights as a privileged tenant under the provisions of Assam (Temporarily-Settled Districts) Tenancy Act, 1935, with the coming into force of the 1971 Act, shall be recorded as occupancy tenant with the proviso that subject to the provisions of Section 20(8) of the 1971 Act, he shall continue to pay rent at the same rate as before the commencement of the Act.
31. Chapter-III is devoted to occupancy tenant and Section 5 thereof provides that a person, who, for a period of not less than 3 years, has continuously held land as a tenant shall have a right of occupancy in that land.
32. There is no mistaking of the fact as per the pleaded version of the plaint, that the defendant No. 1 was a tenant though such status was denied by the defendant No. 1. In the plaint, it was specifically mentioned that the defendant No. 1 had paid "Adhi" for the year 1408-1407 (Bengali), which was also accepted by the courts below.
33. Section 51(2) of the Act of 1971 provides for grant of ejectment and one of the grounds provides that any tenant, not being an occupancy tenant, shall not be ejected from the land of tenancy except in execution of a decree for ejectment passed on any one or more of the grounds mentioned therein, including on the ground of failure to pay arrear rent under Section 51(2)(c). Rent, under Section 3(13) means whatever is lawfully payable or deliverable by the tenant to the landlord in cash or in kind or partly in cash and partly in kind whether as a fixed quantity of produce or as a share of the produce, on account of use or occupation of the land or on account of any right in the land held by the tenant.
34. Section 54 provides for procedures for ejectment. Section 54(4) provides that no suit for ejectment on the ground mentioned in Section 51(2)(c) shall be entertained unless, at first, a decree for rent has been obtained. In case, the construction of the thatched 'chali' is considered to be an act which rendered the land unfit for the purpose of tenancy, Section 51(2)(a) may get RSA 74/2006 Page 10 of 11 attracted. However, in that case, as provided under Section 54(2), unless the landlord, at first, serves notice on the tenant requiring him to remedy, or to pay compensation for the misuse or the breach complained of and the tenant has failed to comply with it within one month of the receipt of the notice, no suit for ejectment of the tenant shall be entertained. Admittedly, in the instant case, no notice was given.
35. True, the learned courts below had dismissed the plea of the defendants that they were in adverse possession of the suit land. But as held in Vasavi (supra), the legal position is that in a suit for declaration of title and possession, the plaintiffs can succeed only on the strength of its own case irrespective of the question whether the defendants have proved their case or not. Both the courts below found that the plaintiff allowed the defendants to cultivate the suit land as Adhiars. The learned courts below, however, did not at all consider the provisions of the 1971 Act as discussed above and committing grave error of law, decreed the suit for delivery of khas possession by evicting the defendants holding them to be encroachers.
36. In view of the discussions above, the appeal is partly allowed by holding that the plaintiff is not entitled to get recovery of khas possession of the suit land by evicting the defendants therefrom. Substantial questions of law are answered accordingly. No cost.
37. Send back the LCR.
JUDGE Madhu RSA 74/2006 Page 11 of 11