Gauhati High Court
The State Of Assam & Ors vs Minu Kumari Kalita on 18 August, 2015
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
RFA. No. 21 / 2009
1. The State of Assam,
Represented by Secretary to the Govt.
Of Assam, Forest Deptt. Dispur, Guwahati-6
2. The Principal chief Conservator of Forest,
Assam, Rehabari, Guwahati-8
3. The Conservator of Forest,
Central Assam Circle, Guwahati-1
4. The Divisional Forest officer, kamrup,
West Division, Bamunigaon,
PS Chaygaon, Dist.Kamrup, Assam
5. The Range Forest Officer, Singra Range
Boko, Kamrup, Assam
.......... Appellants
-Versus-
Smti Minu Kumari Kalita
Wife of Sri Nityananda Kalita
Resident of Barakhat
PS -Chaugaon
Dist-Kamrup, Assam
.......... Respondent
RFA No.21 of 2008 Page 1 of 29
PRESENT HON'BLE MR. JUSTICE N. CHAUDHURY For the Appellant : Mr. G Sharma Advocate.
For the Respondent : Mr.SS Dey,Sr.Adv., Ms. S Deka,Ms. N Kalita, Adv.
Date of hearing : 12.08.2015, 14.08.2015, 18.08.2015
Date of Judgment : 18.08.2015
JUDGMENT AND ORDER(ORAL)
Defendants of Money Suit No. 55 of 2000, namely, State of Assam and its Officers in the Department of Forest, have preferred this first appeal challenging the judgment and decree dated 11.12.2008 passed by the learned Civil Judge, No.1, Kamrup, Guwahati whereby the suit of the plaintiff for realization of Rs. 52,60,943/- was decreed.
2. The respondent herein as plaintiff instituted Money Suit No. 55 of 2000 in the Court of learned Civil Judge, No.1, Kamrup, Guwahati through her constituted Attorney , Nityananda Kalita. In the plaint, the pleaded case of plaintiff was that plaintiff being owner in possession of 12 Bigha 2 Katha 17 lechas of land covered by Dag No. 146, 147, 148 of K.P.Patta No. 30 of Village-Pokhorapara under Boko Mouza planted sal RFA No.21 of 2008 Page 2 of 29 trees thereon. This land she had purchased by registered sale deed No.582 dated 8.3.1988 from its original owner and obtained mutation in the records of right. The plaintiff's land is surrounded by boundary fencing and in no point of time, there was any dispute in regard to possession or title over the same . She engaged a chowkidar for the purpose of guarding the properties. There was fencing in view of the fact that at the time of purchasing , there was standing sal trees thereon which was fit for the timber production. On 22.5.1991, a devastating cyclone hit the area and in the result large number of sal trees standing on the same land had been uprooted. By engaging workers , plaintiff started cutting the some of the trees which have been uprooted and broken. In the meantime, defendant No. 5 along with some other officers forced their entry into the land and prepared a coup being No.61. They also started to cut the branches of the fallen trees and made the portion of the trees belonging to the plaintiff. The vehement protest raised by the plaintiff did not yield any result. Defendant No. 5 and his men produced 176.4193 cubic meter of timber from the trees on the land of the plaintiff. They also gathered huge quantity of firewood from the branches of the fallen trees and they were worth of several trucks. Defendant No. 5 did not allow the plaintiff and her men to operate on the fallen trees and did not pay any heed to the protest or request raised by the plaintiff. Situated thus, plaintiff approached local police station to advise the plaintiff to RFA No.21 of 2008 Page 3 of 29 approach the court of law. Plaintiff , therefore, initiated a proceeding under Section 144 Cr.P.C. before the learned Executive Magistrate at Guwahati to pass prohibitory order on 25.6.1991 and restraining the defendants from taking any action with respect to the land of the plaintiff described in schedule to the plaint. The defendant No. 5 and his men failed to comply with the order dated 25.6.1991 and took possession of the timbers and the firewood measuring 289.285 cubic meter. Plaintiff herself had cut down 40 trucks of firewood from the branch of trees spending a sum of Rs.48,000/- and the entire timber and the firewood was stocked over the part of the plaintiff 's land wrongly claimed by defendant No. 6 to be of coup No. 61 . Under such circumstances, plaintiff had to approach the learned Executive Magistrate and thereupon a proceeding under Section 145/146 Cr.P.C was initiated. The learned Executive Magistrate passed an order u/s 146 Cr.P.C. and thereby attached the land along with timbers. The defendant No. 5 challenged this order before the learned Sessions Judge vide Criminal Revision No. 109 of 1991 who stayed the order passed by the learned Magistrate on 28.8.1991. Taking opportunity of this order, the defendants removed all trees , logs and firewood from the attached land. However, learned Sessions Judge passed an order directing the officer-in-charge of Boko Police Station to make a complete and detailed inventory of all articles and submit copy of inventory to the court and also to keep watch and to RFA No.21 of 2008 Page 4 of 29 protect the property till the same is disposed of by the Court. Accordingly, Boko Police Station made an inventory of all the timbers and firewood and submitted the same to the court of learned Sessions Judge, Kamrup. However, subsequently, the Criminal Revision was dismissed and the trial magistrate was directed to decide the case as to whether the land in question was patta land as claimed by plaintiff. The 145 Cr.P.C. proceeding was thereupon tried by the learned Executive Magistrate in course of which the revenue officer made spot verification and submitted report to the effect that the land in question is private land and not forest land as alleged by the defendants. Accordingly, learned Executive Magistrate passed final order declaring possession of the plaintiff over the suit land by his order dated 20.4.1992. The order passed by the Executive Magistrate was challenged by defendants before the learned Sessions Judge, Kamrup vide Criminal Revision No. 85 of 1992. The learned Sessions Judge admitted the revision petition and stayed the order dated 20.4.1992 passed by the learned Executive Magistrate. Taking opportunity of the stay order, the defendants shifted and removed all the timbers of the plaintiff to their central depot situated at Agethia. Eventually, the second criminal revision preferred at the instance of the defendants were also dismissed on 25.1.1993. Thereafter, the plaintiff demanded to the defendants to return the timbers and the firewood. Defendant No. 3 transmitted the request of the plaintiff to defendant No. RFA No.21 of 2008 Page 5 of 29 4 asking him to return the timbers and the firewood and defendant No. 4 on turn relayed the request to defendant No. 5 vide letter dated 19.7.1993 who ultimately asked the plaintiff to make a deposit of Rs.59,861/- being the expenditure incurred in felling , logging and dragging of the timbers from the site of the plaintiff. Plaintiff made the deposit on 8.8.1993 but even thereafter, the defendants released only 50.337 cubic meter of timber to the plaintiff on four dates namely, 26.8.1993, 27.8.1993, 2.9.1993 and 20.10.1993 out of total entitlement of the plaintiff to the tune 4173 cubic meters of timbers. The defendants did not return the 40 trucks of firewood which have been seized and taken away from the land of the plaintiff. Compelled under such circumstance, plaintiff approached this court vide Civil Rule No. 2493 of 1994 praying for necessary direction. This court by order dated 9.8.1996 disposed of the writ petition directing the plaintiff to submit a representation before the defendant No. 2 thereby claiming release of the balance quantum of the timber within 15 days from the date of the order and defendant no. 2 was directed to complete the enquiry by himself within two months thereafter affording opportunity of hearing to the plaintiff. Plaintiff submitted the representation before the defendant No.2 who instead of making any enquiry himself appointed defendant No. 3 to take the enquiry. Defendant No. 3, however, without making any enquiry and without giving any opportunity of hearing to the plaintiff submitted a RFA No.21 of 2008 Page 6 of 29 report on 17.2.1997 to the defendant No. 2 saying that plaintiff was entitled to a further quantum of timber to the extent of 4.592 cubic meter out of 367 cubic meter claimed by plaintiff. Defendant No. 3 did not say a word about the 40 trucks of firewood taken from the aforesaid land. This report was communicated to the plaintiff on 31.7.1997 and this time plaintiff could realize that her title over the seized property has come under cloud. Though late, plaintiff instituted money suit referred to above claiming Rs. 44,95,025/- towards cost of 367m of sal timber which is equal to 12,845 Cft. @ 350/- per Cft., Rs. 6,40,000 towards the price of 40 trucks of firewood 16,000/- per truck. Thus, a money decree has been prayed for by the plaintiff for Rs.51,35, 025/-. Along with this amount plaintiff also made claim of Rs. 18,057/- for operation of 289.285 cubic meter of timber , Rs. 48,000/- for operating 40 trucks of firewood and the sum of Rs.59,861.00 deposited by the plaintiff on being required by defendant No. 3 as a cost of operation and dragging of the timbers from her land. Thus, the total claim of the plaintiff is of Rs. 52,60,943/- along with interest @ 18 % per annum from the date of institution of the suit till realization.
3. On being summoned, defendants appeared and submitted joint written statement cum counter claim. Apart from taking the usual plea of lack of cause of action, erroneous valuation, bar of limitation etc., the RFA No.21 of 2008 Page 7 of 29 defendants also took the plea that the suit land is not identifiable. According to the defendants, land covered by dag No. 146/147/148 did not belong to the plaintiff. Rather land under dag No. 147/148 was settled with one Kasim Uddin and that the suit land belongs to the category of Athalotia Ahutoli and so there is no question of growing sal trees on it. According to the defendants, sal trees take minimum 120 years to grow to its normal size on attaining maturity and there is legal bar in acquiring the land by plaintiff. Defendants claimed that the plaintiff is not a settlement holder of the aforesaid dags of land and she being a non-tribal was not entitled to own and possess the aforesaid land which fall in a tribal belt. According to the defendants, on 22.5.1991, there was a cyclone in the area but the statements made in para-2 of the plaint that plaintiff trees were uprooted by his men is not correct. Similarly, on the other hand, statements made in paragraphs- 3, 4, 5, 6, 7 and 8 of the plaint has been out rightly denied by defendants. In para-14 of the written statement, however, defendants admitted that defendant No. 5 seized timber found in coup No.61 and marked them properly and kept the same in the safe custody of the forest department to avoid theft and to protect the logs from fire etc. The defendants did not seize but kept the same in the government land as alleged by plaintiff. However, the fact as to disposal of the criminal revision No. 85 of 1992 and deposit of Rs.59, 861/- by the plaintiff pursuant to the direction of defendant No. 5 RFA No.21 of 2008 Page 8 of 29 have not been specifically denied by defendants but the same has been described to be matter of records thereby putting the plaintiff to strictest proof. Similarly, statements made in para 10 in regard to release of 50.337 cubic timber to the plaintiff out of total quantity of 417 cubic meter and failure on the part of the defendants to release 40 trucks of firewood have been denied by defendants but the statements in regard to institution of Civil Rule 2493 of 1994 and disposal thereof by order dated 9.8.1996 directing the plaintiff to submit representation etc. have not been denied but has been described to be matter of records thereby putting plaintiff to strictest proof. However, defendants claimed that pursuant to the order passed by the High Court , defendant No. 2 took necessary action and held enquiry through one Mr. SK Sen, IFS,Conservator of Forest and thereupon released 4.592 cubic meter of timber out of 176.417 cubic meter operated by the Forest department. According to the defendants, they released 172.80 cubic meter of timber prior to release of 4.592 cubic meter. The defendants denied that no opportunity of hearing was given to the plaintiff before holding enquiry . According to the defendants , because of the cyclone on 22.5.1991 140 of sal trees have been uprooted inside the Moman Reserve Forest and in addition to the same , plaintiff herself fell another 74 numbers of standing sal trees. The 110 sal trees uprooted during the cyclone were duly marked by Forest Department and 307 number of logs for 104.249 was RFA No.21 of 2008 Page 9 of 29 marked. The 74 sal trees felled by the plaintiff was also seized and thus there was a total of 216 logs measuring 176.419 cubic meter. The market value of which was Rs.18,49,858.50/- . All these trees belonging to coup No.61 belonging to the defendants. The defendants denied that plaintiff had invested an amount of Rs.48,000/- for operation of the timber and or deposit Rs. 59,861 as claimed by plaintiff. Defendants further stated that Dag No. 146 mentioned in the plaint is the sarkari land as per land records and plaintiff cannot claim all trees. The uprooted trees in cyclone were really the trees of Moman Reserve Forest belonging to the Government and this is why plaintiff was liable to make payment of Rs.18,49,858/- to the defendants. Defendants, therefore, made a counter claim for the aforesaid amount alongwith the written statement filed by them.
4. Plaintiff submitted written statement against the counter claim and contested the plea of the defendants that land covered by Dag No.147/148 are Athalotia Ahutoli. Plaintiff claimed that even if there is a local inspection, standing sal trees will be found on the land. Be it mentioned here that after submission of the written statement , plaintiff filed an application under Order VI Rule 17 of the Code of Civil Procedure praying for amendment of the plaint and thereby deleted dag No. 146 RFA No.21 of 2008 Page 10 of 29 from the schedule of the plaint and this is how the claim of the plaintiff remained confined to Dag No. 147/148 only.
5. On the basis of the rival contentions of the parties, the learned trial court framed the following ten issues and allowed the parties to prove their respective case:
(i) Whether the suit is maintainable in its present form?
(ii) Whether the suit is barred by law of limitation?
(iii) Whether the plaintiff is the absolute owner and possessor of a plot of land measuring 12 bighas 17 lechas, covered by Dag No.146, 147 and 148 of K.P. Patta No.30 of village Pakharapara under Boko Mouza in the district of Kamrup, Assam?
(iv) Whether the defendants took away the sal trees from the aforesaid land which were uprooted and broken in the cyclone occurred on 22/5/2001?
(v) Whether the plaintiff is entitled to get a decree for realization of Rs.52,60,943/- against the defendants with interest @ 18% per annum from the date of filing the suit?
(vi) Whether the plaintiff is entitled to any other relief or reliefs which are entitled the law and equity?
RFA No.21 of 2008 Page 11 of 29
(vii) Whether the defendants have got any cause of action for the counter claim?
(viii) Whether the counter claim is barred by the law of limitation?
(ix) Whether the plaintiff realized 176.177 cubic meter timbers valued at Rs.18,49,858,50 by misleading the defendants?
(x) Whether the defendants are entitled to get any decree on the counter claim?
6. Plaintiff examined eight witnesses including constituted Attorney as PW-1 and did not come to the witness box herself.
7. Defendants examined only one witness. Both the sides adduced documents in their favour.
8. The learned trial court took up Issues No. 1, 2, 7 and 8 for deciding together and held all the Issues in favour of the plaintiff holding that the suit is maintainable , that it is not barred by limitationetc. However, the learned trial court found that the counter claim has a cause of action and that it was filed within the period of limitation.
9. Coming to Issue No. 3 as to right, title and interest of the plaintiff over the Dag No. -146/147, the learned trial court considered the evidence adduced by PW-1 who brought on record the document of title and RFA No.21 of 2008 Page 12 of 29 mutation of the plaintiff. The learned trial court noticed that by Exhibit-2 , registered sale deed No. 582 dated 8.3.1988, plaintiff purchased the plot of land from original owner and thereafter by Exhbiti-3 , got her name duly mutated in the records of rights. By Exhibit-4 series, plaintiff paid land revenue and even PW-8 Lat Mandal of Boko Circle supported the claim of the plaintiff in regard to title and possession. Exhibit-6 is the report submitted by the Circle Officer and relied on by PW-8 in course of his deposition to show that land measuring 12 Bighas 2 Katha 17 lechas covered by Dag No.147/148 of K.P.Patta No. 30 stood in the name of the plaintiff. Even PW-8 Lat Mandal deposed that K.P. Patta No.30 includes dag No. 147/148. The learned court noticed that by an amendment of the plaint, claim of the plaintiff over dag No. 146 stood deleted and thus the learned trial court arrived at the finding that plaintiff Minu Kumari Kalita is the absolute owner and possession of the land measuiring 12 Bighas 2 Katha 17 lechas covered by dag No. 147/148 of K.P.Patta -30 of village Pokhoramari .
10. The learned trial court thereafter proceeded to decide Issues No. 4, 9 and 10 together which are in regard to taking away of sal trees and the quantum of the timber taken away. Deposition of PW-1 in this regard is that there was a cyclone on 22.5.1991 by which most of the standing sal trees on the suit land were uprooted or broken. Plaintiff was taking steps RFA No.21 of 2008 Page 13 of 29 for operating the said timber when defendant No. 5 alongwith some other men entered into land forcibly and prepared a coup and cut down all fallen trees and logs of timber claiming that the land belonged to reserve forest. Plaintiff instituted a proceeding u/s 144 Cr.P.C. in the court of learned Executive Magistrate whereupon the timbers and the firewood were attached in the aforesaid proceedings. There was an inventory of all seized timber and the circle office of the revenue circle made spot enquiry. PW-1 had claimed that taking opportunity of the said order passed by the learned Sessions Judge, defendant No. 5 had taken away all timbers and firewood to their central depo at Agathia but even after disposal of the case, the Divisional Forest Officer asked the plaintiff to deposit Rs.59,861/- towards expenditure incurred in operating and dragging the trees. The plaintiff deposited the amount but thereupon only 50.337 cubic meter of the timber was released to the plaintiff out of the total seized timber 417 cubic meter and the remaining part was not released. As per direction of this High Court in Civil rule 2493 of 1994, there was enquiry and the DFO submitted report on 17.2.1997 in regard there to whereupon it was found that plaintiff was entitled to a further amount of 4.593 cubic meter of timber. By relying on Exhibits-1, 2, 3 and 4 adduced by plaintiff, learned trial court held that plaintiff has valid right, title and interest over the land under Dag No. 147/148. Relying on Exhibit-5(1) to Exhibit-5(4) the learned court came to the finding that this amount were spent by the plaintiff for RFA No.21 of 2008 Page 14 of 29 the purpose of making logs and collecting firewood from the fallen trees. Exhibit-6 being original case records of case No. 226 M/91 under Section 145/146 Cr.P.C. was considered by the learned trial court. The attachment order vide Exhibit-6(2) and report of the circle officer vide exhibit-6(3) were also considered by the trial court. Having gone through the original records of Criminal Revision No.109 of 1992 vide Exhibit-7 and case records of Criminal Revision No. 85 of 1992 vide Exhibit-8, the learned trial court held that timbers as claimed by the plaintiff was seized and taken into custody by defendants. Exhibit-9 is the receipt No. 78 evidencing deposit of Rs.59,861/- by the plaintiff on being demanded by the defendants as cost incurred in cutting and dragging the timbers from the Dag No. 147/148. Exhibit-10 is the certified copy of the order dated 9.8.1996 passed by this High Court in Civil Rule No.2493 of 1994 whereby plaintiff was directed to file representation before the authority . Exhibit- 12, 13 and 14 are the registration receipt regarding service of notice on the defendants.
11. PW-2 was examined by plaintiff to prove that after the trees had fallen due to cyclone on 22.5.1991, this witness was contacted by plaintiff for selling the fallen tree. He came to the suit land with a view to purchasing the same and so witnessed that there were sal trees on the land belonging to the plaintiff. Similarly, PW-3 also deposed to have visited RFA No.21 of 2008 Page 15 of 29 the suit land for the same purpose i.e. for the purpose of purchasing firewood. On the other hand, Pw-4, 5 and 6 were the local persons examined by the plaintiff to prove that they were engaged by plaintiff on payment of money to cut the fallen trees, to prepare logs and to make firewood out of the fallen trees. All these witnesses were duly cross- examined by defendants. PW-7 is the police officer who deposed that on 30.7.1992, he was the officer-in-charge of Boko Police Station and in compliance of an order passed by the learned Sessions Judge, Kamrup in Criminal Revision No.85 of 1992, he deputed S.I. Subharna Barua to hold an enquiry. He brought Exhibit-8 as order of the learned Sessions Court in which Exhibit-8(4) is the signature of the S.I. , Exhibit-8(6) is the report submitted by Subharna Barua. PW-8 , the Lat Mandal deposed on the same breath in support of the plaintiff saying that disputed land measuring 12 bighas 2 Katha 17 lechas covered by the aforesaid dag stood in the name of the plaintiff. The learned trial court also considered the sole evidence of the defendants' side adduced by defendant No. 1. Defendant No. 1 is the Deputy Conservator of Forest who deposed that land covered by Dag No. 147/148 belong to the category of Athalotia Ahutoli and that sal trees cannot grow on such land. He proved report Exhibit-A dated 19.1.2001 along with trace map Exhibit-A(1) and Exhibit-A(3) joint enquiry report dated 14.2.2001. He proved order passed under Section- 145 Cr.P.C. vide Exhibit-B and Judgment of the writ petition in WP © No. RFA No.21 of 2008 Page 16 of 29 202 /1995 vide Exhibit-C. Exhibit-D is the register of coup No. W.F.C. /61 of 91-92 and according to him by misleading the defendants, the plaintiff managed to get 176.417 cubic meter from the defendants , the value of which is Rs. 18,49,858.50/- and the plaintiff is liable to refund the said amount to the defendants. The learned trial court noticed the cross examination of the DW-1 wherein he admitted that forest land does not have any dag number whereas the suit is measured by Dag No.147/148. He also noticed the order of the learned Sessions Judge in the Criminal Revision leading to the inventory of 417 cubic meter of timber cut by the plaintiff. The learned trial court held that entire stock of the timber were taken into central depot by the defendants for safe custody without permission of the court. The objection raised by the defendants that the land did not contain any standing trees was on the basis of the averment made in the sale deed Exhibit-2. The learned trial court arrived at the view that the plaintiff had purchased the land alongwith Zeerath and so the objection was not found acceptable. Considering the Exhibit-A report dated 19.1.2001 given by the circle officer of the Revenue Circle , the learned trial court held that plaintiff is the pattadar of land measuring of 12 Bigha 2 Katha 17 lechas of land covered by Dag No. 146, 147, 148 of K.P.Patta No. 30 of Village-Pokhorapara under Boko Mouza. Considering the aforesaid evidence and the circumstances, the trial court held that it is quite logical to hold that evidence given by the plaintiff is corroborated by RFA No.21 of 2008 Page 17 of 29 the plaintiff's witness as well as the sole defence witness. This is because DW-1 admitted to have seized the sal trees uprooted and broken in cyclone on 22.5.1991 and thus Issues No. 1, 4, 9 and 10 were decided in favour of the plaintiff. Of course, in this finding the learned trial court did not make any discussion as to how he arrived at the quantum of the timbers or of firewood made from the trees fallen in cyclone dated 22.5.1991 or the value there of. Ultimately, while deciding Issues No. 5 and 6 as to entitlement of the plaintiff for getting a decree as prayed for, the learned trial court presumed that 367 cubic meter of sal trees and 40 trucks of firewood were taken away by defendants from the land of the plaintiff and that value of the said timber @ 350 Cft was Rs. 44, 95, 025/- and that of 40 trucks of firewood @ Rs. 16,000/- per truck was to the tune of Rs.6,40,000/-. According to the learned court, the sole defence witness admitted the quantum of the timber taken from the land of the plaintiff at the relevant time and according to him, police made inventory of 417 cubic meters of timbers including 176 timbers of the Forest Department and the entire stock was taken to the Central Depot by Forest official for safe custody. The learned trial court thereafter noted the claim of defendant in para-10 of the counter claim, that there was 100 cubic meter of firewood and not 40 trucks as claimed by the plaintiff. However, learned trial court held that 100 cubic meter was the quantum of the firewood taken by the defendants from the broken sal trees. Considering RFA No.21 of 2008 Page 18 of 29 the inventory Exhibit-6(3), learned trial court held that there were 568 pieces of sal tress of different sizes. According to the plaintiff 50.337 cubic meter out of total 417 cubic meter were released to him by Forest department and thus she is entitled to 357 cubic meter of timber from the defendants, the value of this amount was calculated on the basis of the claim of the plaintiff i.e. Rs.12,248 per cubic meter and thereupon the total value of Rs. 44,95,025/-was arrived at. Coming to the claim of firewood, learned trial court noticed that defendants did not give any calculation in this regard and so calculation given by the plaintiff should be accepted and accordingly it was accepted. This in addition to Rs.59,861/- deposited by the plaintiff to the defendants was also taken into consideration apart from the value of the timber and thus the learned trial court passed a decree for Rs.51,94,886/-excluding the claim of the plaintiff in regard to expenditure made in cutting and preparing logs from the fallen trees. Thus, suit of the plaintiff stood decreed for Rs.51,94,886/- vide Judgment dated 11.2.2008 and it is this judgment which has been challenged in the present appeal.
12. I have heard Mr. G Sharma, learned Government Advocate for the appellants and Mr. SS Dey, learned senior Advocate assisted by Ms. N Kalita and Ms. S Deka for the sole respondents. I have perused the pleadings of the parties and evidence adduced by them. The appeal came RFA No.21 of 2008 Page 19 of 29 up for hearing on 12.8.2015 but it could not be completed and so it has been heard again on 14. 8. 2015 and today i.e. on 18.8.2015.
13. The sole point for determination in this appeal will be as follows:
"Whether the plaintiff is entitled to Rs.51,94,886/- as decreed by the learned trial court and if not what relief the plaintiff is entitled to ?".
14. Mr. G Sharma, learned counsel for the appellant would argue that the learned trial court committed error in making assessment of the timber taken by the defendants from the plaintiff . In so doing, the learned trial court relied on mere conjecture and surmises as there is no material on records to arrive at the finding as to what amount of timber was taken by defendants from the custody of the plaintiff. According to Mr. Sharma, the finding of the trial court that plaintiff is the owner in possession of the land is also not correct. The plaintiff did not institute any suit for declaration of her right, title and interest over the suit land and so in the absence of the prayer to that effect, it is not possible to arrive at a finding that the plaintiff is entitled to any relief whatsoever against the claim made by him. Mr. Sharma further argues that if it is the case of the plaintiff that the defendants had forcefully taken away the property of the plaintiff in that event the plaintiff would have been at liberty to institute an appropriate proceeding in the court of law to get the offender punished. The same not RFA No.21 of 2008 Page 20 of 29 having been done, it is to be presumed that the defendants did never take away the properties of the plaintiff by force.
15. Per contra, Mr. SS Dey, learned senior counsel appearing for the sole respondent/plaintiff would argue that the parties went to trial knowing respective cases of each other. Both the parties led evidence knowing that the crux of the issues is based on the claim of title over the land covering Dag No.147/148 of K.P.Patta No. 30 of Village-Pokhorapara. Plaintiff exhibited documents of registered sale deed being Exhibit-2 and the certified copy of the revenue records being Exhibit-3 in support of her claim of title to the land covered by the aforesaid dags and these Exhibits were taken into evidence without any objection. The defendants duly cross-examined all the witnesses including the officers who are examined like Lat Mandal, Police officers and no one objected to admittance of those exhibits into record. Once the documents of title were duly exhibited and the report of the Revenue officer was brought to the notice of the learned trial court, it proceeded to decide as to whether plaintiff had any right, title and interest over the Dag No.147/148 and thereupon arrived at the finding that the plaintiff purchased the land by Exhibit-2 and only thereafter, her name was duly mutated in the records of rights vide Exhibit-2 and thus the plaintiff has right, title and possession over the suit land. The learned trial court did not commit any error in arriving at the finding that the plaintiff is the holder of the title of the land holder. There is nothing on record to arrive at different finding RFA No.21 of 2008 Page 21 of 29 and thus fining of the trial court does not warrant any interference, Mr. Dey, argued. Coming to the objection raised by Mr. Sharma that the plaintiff did not take any step for getting the defendants punished in accordance with law for their act of trespassing into the suit land, Mr. Dey would argue that the plaintiff was never interested for getting any public officers punished. She was an ailing lady and interested to get her property back or for compensation or price of timbers unlawfully taken away by the defendants . A proceeding under Section 144 Cr.P.C. was initiated at the instance of the plaintiff i.e. within a period of about one month and once the law enforcing machinery was set in motion there was no further necessity of instituting cases against the offenders. The learned Magistrate asked for a report from the police which was eventually produced and thereupon the learned Executive Magistrate arrived at the finding that the plaintiff was the lawful possessor of the land at the relevant time. Even after such declaration of possession was made by the Executive Magistrate, the defendants preferred Criminal Revision before the learned Sessions Judge which did not yield any result. This chronology of events only go to show that plaintiff was all along agile and ready to get her property back and that the law enforcing authorities including police were very much aware that there was an allegation of trespass into the private land of the plaintiff. Since in view of the bonafide assertion of title by the defendants claiming the suit land to be forest land, perhaps there would have been no criminal proceeding against public officers in view of provision u/s 197 Cr.P.C. This, therefore, cannot be taken as a ground RFA No.21 of 2008 Page 22 of 29 against the plaintiff to deny her bonafide title. However, coming to the objection raised by Mr. Sharma that there is no material whatsoever on record to come to finding that there were 417 cubic meters timber seized by the plaintiff , Mr. Dey in his usual fairness submitted that the plaintiff could have adduced better evidence to enable the court to arrive at the finding.
16. Pursuant to the order passed by the learned Sessions Judge, there was an inventory of all timbers of the firewood seized and taken into custody by the Forest officer and the Range Officer doing the operation had submitted a detailed report to the Divisional Officer in this regard. A copy of the report of the Range Officer was also sent to Boko Police Station and the report submitted by the Officer-in-charge was exhibited by plaintiff was exhibited as Exhibit-8 to show that there was an inventory which resulted in discovery that certain specified amount of timbers were seized and taken into custody by defendants from the land of the plaintiff. From the array of events as mentioned by the witness of the plaintiff as well as the sole witness of the defendants, it appears that as a result of cyclone held on 22.5.1991, large number of trees in Phokomari village had been uprooted , sal trees standing on Dag No. 147/148 also had been uprooted to a large extent. By engaging PWs-4, 5 and 6, Plaintiff started preparing timbers out of the fallen trees when defendant No. 5 made his entry to the scene and took over the possession of the land as well as the timber. He thereafter prepared the timber which according to the plaintiff amount to 417 cubic meter apart from 40 trucks of firewood.
RFA No.21 of 2008 Page 23 of 29
17. The learned trial court has taken into consideration this aspect of the matter. In the absence of any evidence led to the contrary it is to be seen that plaintiff proved by pre-ponderance of probability that 417 cubic meter of timber was seized by the defendants and the defendants could not prove that they had handed over 176.417 cubic meter or 4.592 cubic meter of timber to the plaintiff in any point of time. According to the plaintiff she succeeded to prove that only 50.337 cubic meter of timber was released to her. Besides by adducing Exhibit-9, plaintiff proved deposit of Rs.59,861/- to the defendants and so suit of the plaintiff was rightly decreed, Mr. Dey contended.
18. The point for determination in the appeal, therefore, is :-
(i) Whether plaintiff has proved by pre-ponderance of probability that defendants had seized or taken over 417 cubic meter of timbers from sal trees grown on Dag No.147/148 of K.P.Patta No. 30 of Village-Pokhorapara under Boko Mouza and what was the price of this?
(ii) Whether plaintiff has proved the quantum of firewood seized and the price thereof?
19. Having considered the rival the contention of the learned counsel for the parties, it is necessary to examine as to whether plaintiff has proved the quantum of the timbers seized by defendants from the Dag No. 147/148 referred to above. Of course, plaintiff has succeeded to prove her right, title and interest RFA No.21 of 2008 Page 24 of 29 over Dag No. 147/148 by examining the documents of title vide Exhibit-2 and the records of rights vide Exhibit-3. The plaintiff has also proved Exhibit-4, revenue receipt and so there is no doubt that plaintiff has right, title and interest over Dag No. 147/148 and that there were timber standing on the same dags. What is left to be decided is only the quantum of the timber seized by the defendants from Dag No. 147/148 and the price there of . From perusal of the records, it appears that Exhibit-1 is the certificate of the Power of Attorney, Exhibit-2 is the registered sale deed whereby plaintiff purchased the land covered by Dag No.147/148 along with Zeerath and Exihibit-3, the certified copy of the Jamabandi . Exhibit-2 and 3 go to show that plaintiff purchased the land on payment of valuable consideration that she purchased not only the land but also Zeerath i.e. standing trees there on. Exhibit-3 goes to show that plaintiff being in possession of the land obtained mutation in the records of rights. Exhibit-4 is the revenue paying receipt. Exhibit-5 series are the receipts given by PWs- 4 , 5 and 6 who are daily wage labourer and being men of the locality who were engaged to cut the fallen trees to prepare logs and to separate firewood. So from Exhibits -1 to 5, there is no indication to as to what was the number of tress fallen due to cyclone and the quantum of the logs taken out from them. To prove the same, plaintiff appears to have exhibited Exhibit-6 the original case records of the 145 Cr.P.C. proceeding which contain Exhibit-6(1) preliminary order for drawing up proceeding under Section 145/146 Cr.P.C.. Exhibit-6 (2) is the inspection report by the police. Exhibit-6(3) on the other hand is the report of RFA No.21 of 2008 Page 25 of 29 the circle officer in regard to the prima facie title and possession of the plaintiff. So Exhibit-6 is of no help for arriving at a finding that 417 cubic meter of timber was taken away by defendants from the land of the plaintiff. Exhibit-7 is the original case records of Criminal Revision No.109 of 1992 but it does not appear as to why the same is not available in the records. Exhibit-8 is the case records of Criminal Revision No.85 of 1992. Exhibit-8(1) is the judgment passed by the learned Sessions Judge in the said Criminal Revision whereby revision preferred by Forest department was rejected. Exhibit-8(6) is a report submitted by the S.I. of Police of Boko Police Station to the District Judge, Kamrup enclosing a letter dated 20.7.1992 written by Range Forest Officer of Singra Range Boko to DFO, Kamrup West Division . There is an indication of the said report dated 20.7.1992 that a list has been annexed showing trees standing on the periodic patta No.30 under Dag No.147/148 of the concerned village which had fallen trees owing to cyclone. But the list annexed to the report dated 20.7.1992 is neither signed nor authenticated. Plaintiff did not examine the Range Forest officer of Singra Range Boko or any other officer of the Forest Department for the purpose of ascertaining the quantum of timbers seized by police or Forest Department. What is admitted is that some sal trees standing on Dag No. 147/148 had been uprooted due to cyclone and so both the plaintiff as well as the defendants had engaged men to cut them into pieces for preparing logs and for separating the firewood. Admittedly there was an inventory after the same was attached by order of the learned Executive Magistrate and the inventory was submitted RFA No.21 of 2008 Page 26 of 29 before the Sessions Judge. Had the inventory report been called for from the custody of the appropriate authority in that event the actual quantity of timber seized by defendants from the land belonging to the plaintiff could have been ascertained. Neither the person making the inventory nor the person making the seizure have been examined in the present case. The fact that record could have been proved by adducing primary evidence under section 59 of the Evidence Act, the plaintiff could have obtained certified copy of the records or could have called for original records but the same not having been done, the finding arrived at by the learned trial court that 417 cubic meter of timber was seized by defendants and the value there of was Rs.44,95,025/- cannot be said to have been proved. Under such circumstance, findings of the learned trial court as to right, title and interest of the plaintiff over Dag No. 147/148 of K.P.Patta No. 30 of Village- Pokhorapara under Boko Mouza is hereby upheld but the finding of the trial court that the defendants had taken away 417 cubic meter of timber from the Dag No.147/148 and that plaintiff is entitled 367 cubic meter of timber or that price of the timber is Rs. 44,95,025/- has not been proved in accordance with law. It is not possible for the appellate court as well from perusal of the records to arrive at the finding that 417 cubic meter of timbers were seized by defendants or that such amount of timbers were not seized by defendants. Since the evidence is insufficient on this point, it is not possible on the part of the appellate court to decide either the quantum of the timbers seized or the price of the said timbers and firewood. Under such circumstance, only alternative left to the court is to RFA No.21 of 2008 Page 27 of 29 take recourse under Order XLI Rule 25 of the Code of Civil Procedure and to frame issue and thereupon to remand the matter to the trial court for decision afresh in accordance with law. Accordingly, the impugned judgment and decree in so far as it relates to finding as to quantum of the timbers seized and entitlement of the plaintiff against such seizure is hereby set aside and the matter is remanded back to the trial court for deciding the following issues:
(i) Whether defendants had seized or taken over 417 cubic meter of timber from sal trees from the land covered by Dag No.147/148 of of K.P.Patta No. 30 of Village-
Pokhorapara under Boko Mouza ? If not what was the quantum of timber so possessed and taken away by the defendants and in any event that what would be the price for such timber?
(ii) What should be the quantum of compensation payable to the plaintiff by defendants"
(iii) What was the quantum of firewood seized, or taken away by the defendants and the price there of ?
20. It is ordered that the learned trial court shall decide the suit afresh as expeditiously as possible preferably within a period of 6(six) months from the date of receipt of the records and the parties shall co-operate with the learned RFA No.21 of 2008 Page 28 of 29 court and shall appear before the trial court on 14.9.2015 to receive necessary order.
16. Registry shall transmit the records in the meantime. At this stage, both the learned counsel for the parties mentioned that after passing of the decree by the trial court, the Government/Appellant deposited half of the decretal amount with the Registry of this court and the plaintiff /respondent had taken withdrawn amount . The amount so paid to the plaintiff shall be subject to the decree passed by the trial court.
JUDGE Nivedita RFA No.21 of 2008 Page 29 of 29