Gauhati High Court
Mahantam Kr. Pandit vs Pannalal Ghosh And Ors. on 27 November, 2001
Author: H.K.K. Singh
Bench: H.K.K. Singh
JUDGMENT H.K.K. Singh, J.
1. This appeal under Section 54 of the Land Acquisition Act is against the judgment and award dated 3.5.1995 passed by the learned L.A. Judge (Chief Judge) North Tripura Kailasahar in Misc. L.A. Case No. 13 of 1989 awarding compensation in favour of the respondents herein in a reference made by the Collector under Section 30 of the Land Acquisition Act in connection with acquisition of a piece of land under C.S. Plot No. 1693/3481 (Part) and 1693/3482 (Part) having an area of 0.10 acres under Khatia No. 379 for the purpose of construction of public road from Pabiacherra Bazar to Dharmanagar Darchaibari, The present appellant raised a claim for compensation so also the respondents herein and after inquiry the Collector made the award in favour of the appellant herein and at the instance of the respondents, the Collector made a reference under Section 30 of the Land Acquisition Act and the learned L. A. Judge, after hearing the parties, made the award in favour of the respondents. Hence the appeal.
2. The case of the appellant herein is that the land acquired by the Government is a portion of the land which was allotted to him under allotment order dated 27.2.1979 by the Collector (S.D.O. Kailasahar) and his name was also recorded in the revenue records as the owner of the land under Khatian No. 2008 of Mouja Pablacherra. It was also the claim of the appellant that even before the allotment of the land he was in possession of the land being a portion of the land under C.S. Plot No. 1693/3481 (Part) and 1693/3482 (Part) of Khatian 2008 of Mouja Pabiacherra. On the other hand, the case of the respondents herein is that their father Akhil Ch. Ghosh purchased the land under a deed registered Sale deed dated 4th Poush 1356-T.E. and on his death on 29.12.1964 the respondents, who are the surviving children, inherited the same. It was also the case of the respondents that a title suit being T.S. No. 74 of 1950 was instituted in the court of the Subordinate Judge and the suit was decreed and in execution of the decree under Execution Case No. 27 of 1953 delivery of possession of the decretal land was handed over to the father of the respondents on 4.12.1957 and according to the respondents, the acquired land is a portion of the land purchased by their father over which the title was declared by the Civil Court and also in execution of the decree the possession of land was delivered in favour of the predecessor (father) of the respondents.
3. In the course of hearing, the learned District Judge recorded the evidence, both oral and documentary, and even issued a survey Commission who submitted a report of the Commission and after appreciating the evidence the learned L.A. Judge awarded compensation in favour of the respondents.
4. On the basis of the pleadings/claims made by the respective parties, i.e., the appellants herein and the respondent, the L.A. Judge framed 5 (five) issues which are reproduced below:
"1. Was the acquired land Khas ?
2. Was it allotted to 1st party by S.D.O. Katlashahar ?
3. What bearing it would carry, out of decree of Title Suit No. 74 of 1950 ?
4. What will be the entitlement ratio of the parties ?
5. Other reliefs ?"
5. In respect of issue No. 2 the learned L.A. Judge held that the land was allotted to the present appellant. The L.A. Judge, while deciding issue No. 3, held that the acquired land was the land of the respondents on the basis of the decree in the Title Suit No. 74 of 1950 of the court of Sub Judge, Tripura in favour of the predecessor in-interest of the respondents of which delivery of possession was obtained by the decree holder in execution case being No. 27 of 1955 on 4.12.1957.
6. In respect of issue No. 1 the learned L.A. Judge, in view of the finding in issue No. 3, held that the second party claimant (respondents herein) was the owner of the acquired land and in respect of issue Nos. 4 and 5, the learned L.A. Judge held that in view of the findings in issue Nos. 1, 2 and 3, the second party claimant (respondents herein) will be entitled to get compensation as owner of the land acquired and the first claimant (the appellant herein) will get damage/moveable costs of trees etc. as possessor of the land acquired.
7. As per evidence adduced before the reference court, it has been found proved by the learned L.A. Judge that the acquired land is part of the land under C.S. Plot No. 1693/3481 (Part) and 1693/ 3482 (Part) of Khatian No. 2008 of Mouja Pabiacherra which was allotted to the appellant herein by the Collector/SDO Kallasahar under allotment order dated 27.2.1979. A copy of the order of allotment was also exhibited as Ext. 1. Ext. 2 is the copy of the Khatian and Ext. 3 (series) are the rent receipts in respect of the aforesaid land allotted in favour of the appellant.
8. From the evidence on record it has been found admitted by Pannalal Ghosh, the respondent No. 1 herein, while deposing as O.P. No. 1 on behalf of the respondents, that the land was never recorded in their names at any time. On the contrary the land stood recorded in the name of the appellant. It was also admitted that he filed application for correction of the entries in the record of right thereby recording their names in the relevant land record and matter was pending before the appellate forum in revenue court. It was also stated by the said O.P. No. 1 that objection under Section 11(3) of the Tripura Land Revenue and Land Reforms Act, 1960 (hereinafter referred to as the Act) was filed for recording of their names in the record of right as the owner of the land. The respondents also produced certified copy of the decree dated 27.6.1952 of the Title Suit No. 74/50 as Ext. (A) and Ext. (B) is the certified copy of the certificate for delivery of possession effected on 4.12.1957 in connection with Execution Case No. 27/55 in favour of Anil Ch. Ghosh (the father of the respondent). From the record it is found that in the course of hearing of the reference under Section 30 of the Land Acquisition Act, the learned L.A. Judge issued a Commission for spot inspection and Survey Commissioner in his report which was exhibited as Ext. 'X' mentions that the land under Dag No. 1693/3481 corresponding to new Dag No. 3164 and also the land under Dag No. 1693/3482 corresponding to new Dag No. 3164 altogether measuring 1.30 acres stand in the name of Mahantam Pandit, the present appellant herein. The learned L.A. Judge mainly relied upon the report of the Commission and came to the conclusion that the acquired land was part of the land over which the title of the father of the respondents was declared by the Civil court as stated above and in respect thereof delivery of possession was given to the decree holder.
9. Mr. A.C. Bhowmik, learned counsel for the appellant has strenuously submitted that the land was allotted to the appellant and in the record of rights, i.e., in the Khatian, name of the appellant has been recorded, and it has got all the statutory-presumption as provided for under Section 43(3) of the Act which reads, "Every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct," and the learned counsel has cited number of decisions of this court as well as of the Apex Court regarding such legal presumption, though it is a settled proposition of law that entries in the revenue records are not evidence of title and acquisition of title over the land is to be proved by evidence other than such entries in the revenue records.
10. The land was allotted in favour of the appellant. This allotment was made under the provision of Section 14 of the Act, Ext. 1 is the copy of the allotment order. It has been observed by the learned Land Acquisition Judge in his judgment that the original allotment order was produced before the court and the copy which was compared with the original was exhibited before the court. Thus, Ext.A/1 which is the allotment order is not a copy of the order of the record of rights. It is document of title. Allotment of Government land is made under the provision of the Act in accordance with the Rules, namely, the Tripura Land Revenue and Land Record (Allotment of Land) Act, 1960. This allotment order, unless it is cancelled in accordance with the provision of law, confers title upon the person to whom the land has been allotted.
11. The learned counsel on both sides have addressed to the court with regard to the right and title of the persons over, land on coming into force of the Act. According to Mr. A.C. Bhowmik under the provision of Section 134 of the Act, the right, title and interest of every intermediary stood vested in the Government free from encumbrance from the date notified as vesting date and as such even if the respondents or their father or the predecessor in-interest had any right as intermediary, from the date of vesting the land stood vested to the Government. Accordingly, the land was allotted to the appellant and as such the appellant became owner of the land.
12. Mr. D.K. Biswas, on the other hand, has submitted that under the provisions of Sections 135 and 136 of the Act, right of the intermediary to retain certain land is preserved and in exercise of that right the right of the predecessor of the respondents shall remain preserved and such right is protected under the provision of Sub-sections (2) and (3) of Section 199 of the Act, Thus, according to the learned counsel, even after coming into force of the Act and even after the date of vesting of the right of the intermediary in the State under the provisions of part IV of the Act, the right of the predecessor/ respondents are protected.
13. The Legislature has framed The Tripura Land Revenue and Land Reforms Act, 1960' to consolidate and amend the law relating to land revenue in the State of Tripura and to provide for the acquisition of estates and for certain other measures of land reform. The Act not only amends/repeals the existing law but also makes certain other measures of land reforms and more particularly the measure regarding acquisition of estate and abolition of Jamindaris. Part IV of the Act comprising Sections 133 to 139 relate to acquisition of estate and the right of intermediary. Section 133 is the definition section, Section 134 prescribes about the vesting of right and interest etc., of the intermediary in the Govt. Section 135 which starts with 'non obstante clause' prescribes about the consequences of the notification made under Section 134 and Section 136 prescribes about the right of the intermediary to certain land. Section 136 is reproduced below:-
"136.(1) Notwithstanding anything contained in Sections 134 and 135, an intermediary shall, subject to the provisions of Sub-section (2), be entitled to remain with effect from the vesting date,
(a) homesteads, buildings and structures together with the appurtenant thereto in the possession of the intermediary other than buildings vested in the Government under section 135 ;
(b) lands under the personal cultivation of the intermediary ;
(c) lands In which permanent rights have not already accrued to a tenant under any custome, agreement or law and which have been leased by an Intermediary who, both the commencement of the lease and on the vesting date, was a person under disability ?
(d) lands held by the intermediary as mortgagor which are subject to usufructury mortgage and are under the personal cultivation of the mortgage ;
(e) lands comprised in orchards or used for the purpose of live-stock breeding, poultry, farming, or dairy farming, which are in the occupation of the intermediary ;
(f) so much of the lands comprised in a tea garden, mill, factory or workshop as in the opinion of the State Government is required for such tea garden, mill factory or workshop;
(2) An intermediary who is entitled to retain possession of any land under Sub-section (1) shall hold such land directly under the Government from the vesting date as a raiyat thereof (or as a non-agricultural tenant thereof, as the case may be) and be liable to pay therefor land revenue at full rate applicable to similar lands in the locality."
14. Under Section 137 the Collector shall take charge of estates and interest of intermediaries vested in the Government and for that purpose a written order under Section 135 of the Act in the prescribed manner is to be issued. In case of any dispute as to the right of retention of any homestead or land or building referred to in Sub-section (1) of Section 136, the Collector on application made to him shall decide after an inquiry. Against an order passed under Section 138, an appeal may be preferred to the District Judge having jurisdiction within a period of 60 days from the date of order of the Collector.
15. According to Mr. D.K. Biswas, Section 136 by virtue of being an exception to Sections 134 and 135 and also being an enabling provision has necessarily predominance over the aforesaid two sections so far option and rights of intermediary to retain land is concerned. In the present case, it is admitted that the date of vesting is 15.4.1963.
16. The learned counsel has drawn my attention to a reported judgment dated 12.11.1979 passed by this court in Second Appeal No. 42 of 1971 and submits that the respondents having declared to be the owner of the land may retain the land under the provisions of Section 136.
17. I have gone through the aforesaid judgment relied upon by the learned counsel for the respondents. The said decision may not be of much relevance in the present case considering the facts and circumstances of the case. In the said case, execution of the decree was objected to by two boundaries, Even one of the objectors was transferee of a portion of the decretal land from the judgment-debtor, the transfer being made after the passing of the decree and objection was mainly made on the ground that after vesting of the right of the intermediary over the land to the State, the decree became inexecutable and the High Court rejected the objection holding, inter alia, that protection given by the statute for retention of some lands by the intermediary even after vesting of the rights to the intermediary was to be made with reference to facts to be ascertained in an elaborate inquiry in the course of the execution of the decree by the executing court. In the case in hand neither in the decree (Ext. 'A') nor in the certificate of delivery of possession (Ext. B) Survey number is given though the decretal lands are sought to be described by the boundaries. Names of the plaintiff and respondents are found in the decree (Annexure-X) and said decree is a decree in person and thus such judgment and decree are relevant to the extent provided under Section 13 of the Evidence Act The decree was passed on 25.8.1955 and delivery of possession, as per the certificate (Annexure-B) was affected on 4.12.1957. It may be worth-mentioning here that even the respondents herein have admitted that the appellant has along been in possession of the land and it is also supported by the entries in the revenue records, and considering the procedures prescribed in the Act and Rules framed thereunder the entries attach presumptive value of possession.
18. The allotment of the land in favour of the appellant was made on 27.2.1979 and the appellant has along been in possession of the land. The land was acquired in the year, 1986 and at no point of time the respondents raised any sort of objection to the appellant's possession of the land. If the appellant had any semblance of right for retention of the land under the provisions of Section 136 of the Act, it is natural that they might have raised objection to appellant's possession over the land.
19. Another striking point in the present case is the extent of the actual right and title of the respondents over the land consequent upon the decree of the aforesaid civil court. As noted above, in between the plaintiff and the defendants in the case namely T.S. No. 74/50 Ext. A), the plaintiff had better title and better right to possession as against the named defendants. In this regard, a question may arise as to the extent of the right of the plaintiff in the case. Is it ownership right in a mere better right to possession over the land than that of the defendant in the suit ? Respondents herein never produced any other evidence either documentary or otherwise to show that the respondents had any right and title over the land as recognised by the State/authorities concerned. A decree obtained by one person against another does net bind any third party. The State or any other authority was not a party in this case, whereas the allotment order passed under the provisions of law being a document of title confers ownership title to the appellant herein.
20. For the aforesaid reasons and conclusion, I have no hesitation to hold that the judgment and award passed by the learned L.A. Judge is not sustainable in law, and the same is accordingly set aside. Resultantly, the award made by Collector in favour of the appellant stands restored. The appeal is allowed. Considering the facts and circumstances of the case, I make no order as to costs.