Gauhati High Court
Surma Valley Saw Mills (Pvt.) Ltd. vs Arati Das And Ors. on 13 March, 2002
Equivalent citations: (2003)3GLR151, AIR 2002 GAUHATI 108, (2003) 4 CIVLJ 759 (2003) 3 GAU LR 151, (2003) 3 GAU LR 151
Author: A.H. Saikia
Bench: A.H. Saikia
JUDGMENT A.H. Saikia, J.
1. Heard Mr. B. K. Goswami, learned Sr. Counsel assisted by Ms. T Islam, learned counsel for the appellant. Also heard Mr. C K Sarma Barua leard Sr. Counsel assisted by Mr. J K Paranjuli, the learned counsel appearing for the opposite parties.
2. This Second Appeal has been carried from the Judgment and decree dated 9.8.1996 passed by the learned District Judge Karimganj in Title Appeal No. 13 of 1993 by which the appeal preferred by the present appellant against the Judgment and decree dated 16.1.1993 passed by learned Munsiff No. 1 Karimganj in Title Suit No. 292/89 was dismissed affirming the same.
3. Following are the substantial question of law framed at the time of admission of this appeal.
(i) Whether the approach of the learned Courts below to find out the title of the defendant instead of finding of the title of the plaintiff is justified in law.
(ii) Whether the learned courts below correctly interpreted Exhibits -1 and 2 which are documents of title and also the Exts. 4 (1) and 4(2).
(iii) Whether the learned District Judge made out a third case not pleaded by any of the parties.
(iv) Whether in view of the claim in the plaint viz. claiming tenancy right under the Mirasdar Kali Kumar Sen, the learned Courts below were justified in declaring the title of the plaintiff.
(v) Whether the Civil Courts jurisdiction in respect of the present suit is excluded by Section 154 of the Assam Land and Revenue Regulation, 1886.
(vi) Whether the suit was barred by limitation.
4. The respondents as plaintiff filed a suit before the learned Munsiff for declaration that the plaintiff had got jote right, i.e., present land holders right and also for confirmation of possession coupled with permanent injunction restraining the defendant/appellant from causing any obstruction to the possession of the plaintiff and also from dispossessing the plaintiff with another prayer for restraining from making any deed in respect of the suit land. It was contended in the plaint that the plaintiffs got settlement of the suit land from its original owner one Mirasdar Kali Kumar Sen and others since 1360 B.S. (equivalent to the year 1953) and enjoyed the possession of the same by payment of rent to the said Mirasdar every year till the land in question was acquired during Jamindary acquisition period On the eastern side of the suit land the plaintiffs had been residing since 1957 and in order to reach PWD road they constructed private road from their aforesaid residential land through the land which is not the bone of contention in the suit. It was also contended that the plaintiff's/ respondents had been using this path since long time. When the plaintiff filed mutation case No, 96/1985-86 before the Settlement Officer Karimganj then only they came to know that the suit land under the Plaintiffs' possession had already been recorded in the name of the defendant No. 1/appellant behind the back of the plaintiffs. Thereafter the Settlement Officer, Karimganj by his order dated 12.6.1989 disposed of the said case directing the plaintiffs to seek redress in the Civil Court. During the said period when the plaintiffs came to know that the defendants had been trying to dispossess them from the suit land, they filed the instant suit. Be it noted that the plaintiffs had been claiming the suit land only covered by Dag No. 64. The appellant/defandant contested to the suit by filing written statement contending inter alia that the plaintiff had no right, title and possession over the suit land and the suit was not maintainable. The contention of the defendant was that the land covered by Dag No. 64 under Mouza Kankalash Part I and other land lying adjacent to south covered by Dag No. 65 and then to further south under Dag No. 66 were pertaining to erstwhile permanently settled estate (since already acquired). A firm namely 'Birds and Co' formed by one Sir Willongh by Langer and Ors, was originally the owner of the vast area of land in Mouza Kankalash under Chapghat Pargana as lessee. The above stated land along with other land pertaining to permanently settled estate Taluk No. 888, 879, 886 and also to other estates with the perpetual right of inheritance and transfer were vested under proprietorship of one Mirasdar Kali Kumar Sen and Ors. The management of firm sold their landed property by Deed dated 5.12.1927 to one Bhutnath Koley and Surendra Nath Koley who formed a Company in the name of 'Surma Valley Saw Mills (P.) Ltd.' the present appellant and delivered the possession thereon. Thereafter the said Saw Mills became the owner of the suit land along with other lands. It was pleaded by the defendant the Mirasdar Kali Kumar Sen and others did not give any settlement of the suit land of the Plaintiffs.
5. The trial Court framed as many as five issues and during the hearing, five witnesses were examined by the Plaintiff when defendants' side examined only two witnesses apart from adducing documentary evidence by the parties.
6. The learned Munsiff by his Judgment and decree dated 16.1.1993 and 28.1.1993 respectively after going through the entire evidences on record and upon hearing the arguments of the learned Counsel decreed the suit in favour of the plaintiffs holding that the Plaintiffs acquired right, title and interest over the suit land.
7. Feeling dis-satisfied, the defendant/appellant against the matter before the learned District Judge at Karimganj in T.A. No. 13/93 challenging the said Judgment and decree passed by the learned Munsiff. The appellate Court upon careful consideration and proper appreciation of evidence by judgment and decree 9.8.1996 dismissed the appeal affirming the Judgment and decree passed by the learned Munsiff.
8. Criticising the impugned Judgment and decree passed by the learned District Judge Mr. B K Goswami learned Sr. Counsel appearing on behalf of the appellants has forecefully argued that the learned District Judge completely over looked the material evidence on record and wrongly dismissed the appeal taking a complete wrong approach into the issues contrary to the factual position. According to him, in arriving at a conclusion, much efforts has been made by the learned District Judge to find out the title of the defendant rather than the title of the plaintiffs which is ex-facie contrary to the provisions of law. When a title is to be decided and declared, it goes without saying, it is in the burden of the plaintiff to prove his own title. But in the instant case, burden has been shifted to the defendant/appellant to prove their title playing down the question of the plaintiffs title.
9. To clinch this point, Mr. Goswami, has relied on a decision of the Apex Court in Brahma Nand Puri v. Neki Puri (since deceased) represented by Mathra Puri and Anr.) reported in AIR 1965 SC 1506, wherein the Apex Court observed that 'in a suit for ejectment plaintiff Has to succeed or fail on title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property.
10. According to Mr. Goswami, the learned District Judge erroneously relied on the Exts. 1 and 2 (Sale Deeds of the plaintiffs admittedly by which they purchased the other adjacent land of the suit land) and Ext. 4, 4-1 and 4-2 (receipt of payment of rent) to prove the possession of the suit land as raiyats under the Mirasdar Kali Kumar Sen; when the Court itself observed that the farogs, i.e., Exbt. 4 to 4(2) alone did not prove tenancy right of the person on whose favour rent was paid and as such, the entire findings may be treated as perverse giving raise to substantial question of law. In a decision of this Court reported in AIR 1979 Gau 55 (Chandra Kanta and Ors. v. Hem Chandra Deka and Ors.) as referred by Mr. Goswami, the learned Sr. Counsel, it was held that revenue receipt are not the evidence of possession of the land and as such, the farogs in the instant case, cannot be accepted to prove the possession of the Plaintiff.
11. It is further argued on behalf of the appellant that so much so the Appellate Court's finding to the effect that even it is presumed for argument sake that the Plaintiffs have no jote right over the suit land and they are trespassers, their possession for a continuous period of more than 12 years ascertaining their own right and denying the title of any other person becomes adverse to its ture owner and as a result, the right of any other person including the defendants, if any, has already been extinguished according to Mr. Goswami, clearly goes to show that a new case of adverse possession had been made out by the Court below without being pleaded by any parties.
12. Mr. Goswami has urged that once the plaintiffs had claimed the tenancy right under their Mirasdar the Courts below committed error of law in holding the title in favour of the plaintiffs.
13. It is also contended on behalf of the appellant that due to bar of Section 154 of the Assam Land and Revenue Regultion 1186 the Civil Court has no jurisdiction to entertain the present suit where the subject matter is mainly for a declaration of tenancy right.
14. Lastly Mr. Goswami, learned Sr. Counsel has contended that the suit itself was barred by limitation and non-consideration of that aspect by the appellate Court manifestly speaks of a substantial question of law to be decided by this Court. Mr. Goswami has submitted that the suit was filed beyond the period of limitation, i.e., much after three years from which they came to know about the alleged mutation in the name of the defendants/appellants as three years time was over from the date of filing the Mutation case No. 96/1985-86 till the date of filing the suit on 27.11.1989.
15. Reliance has been placed by Mr. Goswami on a decision of (Jagadish Singh v. Nathu Singh reported in AIR 1992 SC 1604 to hammer home the point that since the appellate Court failed to appreciate the evidence on record in its true and proper perspective, the High Court in a Second Appeal is not precluded from reappreciating the evidence to arrive at a proper findings. In the instant case, the findings by the Court of fats are vitiated by non-consideration of relevant evidence apparent on the face of the impugned judgment itself. He has also referred to a series of cases on the power of High Court's interference in Second Appeal with the concurrent findings of faces of the Courts below. Those are (1) Hiralal and Anr. v. Gajjan and Ors. reported in (1990) 3 SCC 285 (equivalent to AIR 1090 SC 723), (2) Vishnu Prakash and Anr. v. Sheela Devi (Smt.) and Ors. reported in (2001) 4 SCC 729 and (3) Hafazat Hussain v. Abdul Majeed, (2001) 7 SCC 189. Relying on the ratio of the above stated cases, it is submitted that this Court can look into the concurrent findings of the Courts below if the same is found to be vitiated due to the perversity of reasoning and due to surmises and misleading of materials on record.
16. Rejecting outrightly the contentions addressed by the learned Sr. Counsel of the appellant, Mr. C K Sarma Barua, learned Counsel appearing on behalf of the respondents, has forcefully argued that a bare reading of the concurrent findings of the Courts below, would go to show that there is no scope to criticise them, even for the sake of argument, on the ground of perversity. It is contended that the Plaintiffs' claim of the jote right and subsequent land holders right over the suit land was mainly based on records and the evidence of witnesses which proved the Plaintiffs' case in a very clear and transparent manner. According to him the plaintiff/Respondents were earlier the tenant under the Mirasdar Kali Kumar Sen and the Suit land was acquired under the Jamidari Abolition Act, and immediately after acquisition, they got the status of land holders over the suit land.
17. Supporting the impugned Judgment and decree Mr. Sarma Baruah, learned Sr. Counsel has submitted that the learned District Judge properly and correctly appreciated the material evidences on record and there is no perversity on the findings of facts. Referring to the pleadings of the parties as well as the materials evidence Mr. Sarma Barua, learned Sr. Counsel has contended that Plaintiffs claim of continuous possession and subsequent title after acquisition over the path being the suit land, was accurately establish. The Plaintiffs had been enjoying the path in question since long and they came to know for the first time that in the revenue record the name of the defendant/ appellant was recorded without the knowledge of the plaintiffs when they started mutation case No. 96/1985-86. It was the settlement officer who directed the defendants to file a suit in the Civil Court for declaration of their title claimed by them over the property, as he was not competent to entertain such claim. Sequal to the same they had to approach the Civil suit for declaration of jote right as well as landholder right with a prayer for permanent injunction against the defendant/ appellants. According to him there is no palpable wrong or gross illegality in accepting the Exts. 1 and 2 (Sale Deeds) and Exts. 4 to 4(2) the farogs regarding payment of rent) by the appellate Court for deciding the possession and title over the suit land in favour of the plaintiffs'. Those documents evidenced the correct position of the land ascertaining the boundaries of the suit land inasmuch as, the Exts. 1 and 2 were the Sale Deeds of the residential plots of the Plaintiffs adjacent to the suit land. Farogs were the receipts of payment of rent paid to their original Mirasdar Kali Kumar Sen under whom they were tenant and immediately after the acquisition of the property they got the status of land holders. Drawing attention of this Court to the evidence of D.W.1 as observed by the appellate Court, it is contended that D.W. 1 Ananta Kr. Paul clearly admitted that in the return filed in a ceiling case being No. 296 of 1976/77 in respect of the suit land, plaintiffs were shown as jote dakaldars and the said evidence itself would stand as a proof of such possession of the plaintiffs over the suit land.
18. According to Mr. Sarma Barua, it is not correct to argue that the learned District Judge had made out a third case of adverse possession in favour of the plaintiffs. More so, there was no attempt on the part of the courts below to insist on the title of the defendants over the suit land for proving the title of the plaintiff. He has submitted that the authorities cited on behalf of the appellants have no applicability in the present case considering the substantial questions of law formulated in the instant appeal.
19. I have given my thoughtful consideration the rival submissions of the learned counsel for the parties and also meticulously perused the impugned Judgments and decrees of the court belows. The learned District Judge in dismissing the appeal mainly dealt with the issue No. 2, i.e., 'whether the Plaintiffs have right title and interest over the suit land'. He discussed elaborately the evidence on record adduced by both the parties. The Court of facts found that the Plaintiffs earlier were the tenant under Mirasdar Kali Kumar Sen and they were possessing the suit land since 1360-61 B.S. as raiyats under the said Mirasdar. On the other hand, considering the Ext. 5 is the Certified copy of the lease deed dated 17.6.1980 by which the Saw Mill along with the landed properties were leased out to the defendants and form the Schedule of land as described in the said Ext. 5, the appellate Court found that the same negated the claim of possession and title of the defendant over the suit land inasmuch as it was evident that the land appertaining the said Dag No. 64 of Khatian No. 826 was not mentioned in the said Schedule of land in Ext. 5 the appellate Court also found that D.W.1 admitted in cross examination that the plaintiffs were using the path (suit land) to go up to the PWD roads which itself goes to prove that the claim of the plaintiffs that they had been in possession over the suit land in turn disproving appellant's possession over the suit land.
20. From the perusal of the findings of the Courts below, it also appears that though the Respondents were earlier the tenants under the original Mirasdar later on they acquired their land holder right by operation of law. It is accepted position that a person who is in possession gets the possessory right and thereafter by the force of law he gets the land holder status on the basis of the said possession which in fact happened in this case. It would be pertinent to mention herein that after abolition of Zamindary system, the Assam State Acquisition of Jamindary Act, 1951 was enacted for the purpose of acquisition of land under Govt. Zamnidary system. Thereafter in 1974 in order to introduce uniform pattern of land revenue administration in the areas formerly known as permanently settled areas of Goalpara District and Karimganj Sub-Division of Cachar District abolition of Zamindary system a Legislation was enacted by the name "the Assam Land Holding (Adoption of Relationship under the Assam Land and Revenue Regulation, 1886 in the Acquired Permanently Settled Estates Act, 1974 (for short 'the Act'). Under Section 4 of the Act land holder status were conferred to the person holding the land under the Government and the Proprietor. By virtue of the said provisions of law it may be safely said that the respondents were conferred land holder status. For the sake of convenience, it would be apt to refer the provision of law laid down in Section 4 of the Act. Which runs as follows :
"Conferment of land-holders' status to persons holding land under Government (1) Any person on the commencement of this Act holding any land directly under the Government in the area under any of the provisions of the Assam State Acquisition of Zamindars Act, 1951, shall continue to hold the same under the Regulation with the status of a land holder subject to payment of such land revenue as may be assessed as per provisions under the Regulation :
Provided that the land revenue assessable shall not exceed the amount paid or payable as rent for such land in respect of the areas for a period of 25 years or till the terminal year of assessment made during the last resettlement operation of temporarily settled estates of that areas ;
(2) Every person holding any land as tenant of another person in the area shall continue to hold the same with the status of a tenant as per provisions of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 :
Provided that the rent payable by such tenant shall not exceed the maximum fixed under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 ;
Provided further that nothing in the section shall be deemed to affect any right already acquired by such tenant to his disadvantage."
Explanation : (1) Any ex-proprietor or ex-tenure holder holding any land or holding any homestead land in the Area free frp, payment of land revenue under Sub-section (4) of section ........ of the Assam State Acquisition of Zamindaris Act, 1951 is also liable to pay land revenue as may be assessed as per provisions under the Regulation.
(2) Any occupancy or non-occupancy tenant of the ex-proprietor or the ex-tenure holder holding land in the areas after the acquisition under the Assam State Acquisition of Zamindaris Act, 1951 shall acquire the status of a land holder under the Regulation.
(3) Any person holding land under another person in the are shall be deemed to be a tenant under the provisions of the Assam (Temporarily Settled Areas Tenancy) Act, 1971.
(4) Any person holding non-agricultural land under another person in the areas shall be deemed to be a tenant under the Assam Non-Agricultural Urban Areas Tenancy Act, 1955."
21. On the question of maintainability of his suit, I am of the considered view that since the plaintiff are claiming their jote right and subsequent land holder right after acquisition of the entire land including the suit land, this suit is not hit by Section 154 of the 'Regulation'. That apart the ratio of law laid down in the case of Brahma Nand Puri (supra) as relied by the appellant's counsel in my opinion is not applicable in the case which was stood on the different factual footings. The concept of burden of proof always shifts depending on the facts and circumstances of the case and the same cannot be put in a water tight compartment. Moreover, a cursory look on the impugned Judgment does not reflect that the Courts of facts had ever shifted the burden to prove the title on the defendants, as alleged, requiring to formulate the substantial question of law on this point.
22. As regards the substantial question of law that the suit is barred by limitation it is settled position of law that issue of limitation always involves mixed question of fact and law. In the instant case, it is abundantly clear the Plaintiffs/Respondents had approached the Civil Court only on the specific direction of the Revenue Court as the same was not competent to decide the matter involving the declaration of title over the suit land, It appears from the record that the suit was filed on 27.11.1989 after the mutation case 96/85-86 was withdrawn on being directed by the Settlement Officer, who has no jurisdiction, to decide the same, to file before the appropriate Court. It appears that the suit was filed within three years of limitation period. It is settled law that in absence of any provision for the period of limitation prescribed under, Article 113 of the Limitation Act, 1963 which is a residuary Article may have the applicability giving three years of limitation period to the parties having right to accrue. In the instant case, I am of the considered view that the respondents are protected by the residuary provisions of Article 113 of the above Statute.
23. On overall consideration of the rival submission of the learned Counsel for the parties, I have come to a conclusion that findings of the courts below do not raise any such legal questions necessitating to formulate those substantial question of law, as already noted, in this appeal. Disapproving the contentions advanced on behalf of the appellant I find enough force on the submissions of the learned counsel appearing on behalf of the Respondents and am of the clear opinion that the substantial question of law framed herein, are not even questions of law, not to speak of substantial questions of law.
24. Admittedly his Second appeal is directed against the concurrent findings of the Courts below.
I have given my thoughtful consideration to the submissions made on behalf of the appellant supported by the judicial decisions in Hiralal's case (supra), Vishnu Prakash's case (supra) and Hafazat Hussain's case (supra) the effect that rule of non-interference in concurrent finding of the Court below shall not be an absolute rule of universal application. There is no second opinion that concurrent findings shall be subjected to interference if the same is vitiated due to perversity of the reasoning and also due to surmises and mis-reading of the materials available on record. But in the instant case I do not find any such perversity or mis-reading of the materials available on record that need interference. Accordingly I am of the considered view that the Courts below correctly and fairly dealt with all the issues in its proper perspective
25. For the foreign discussion, reasons and observation, I have no hesitation to hold that the Appeal deserves dismissal which I hereby do.
26. In the result, the Second appeal fails. No costs. Stay order passed, if any, stands vacated. Send down the records to the Court below forthwith.