Gauhati High Court
Mokshada Nath vs The State Of Assam And Ors on 24 February, 2020
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/7
GAHC010003812009
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 19/2009
1:MOKSHADA NATH
W/O-LATE AHINDRA KR.NATH R/O-SAKUNTALA COLONY NEAR FOREST
DEPOT OFFICE, BONGAIGAON TOWN, P.O. and P.S.-BONGAIGAON, DIST-
BONGAIGAON ASSAM.
VERSUS
1:THE STATE OF ASSAM AND ORS
REPRESENTED BY THE SECRETARY DEPARTMENT OF FOREST, DISPUR,
GHY-781006.
2:DIVISIONAL FOREST OFFICER AIE-VALLEY DIVISION
BONGAIGAON
P.O. and P.S. BONGAIGAON
DIST-BONGAIGAON ASSAM.
3:DEPUTY COMMISSIONER
DISTRICT COLLECTOR
BONGAIGAON DISTRICT
BONGAIGAON
ASSAM.
4:PARIMAL KANTI DEY
.
5:LOHIT KANTI DEY
.
6:DIPAK KANTI DEY
.
7:SAMIR KANTI DEY
.
Page No.# 2/7
8:RABINDRA NATH DEY.
- ALL THE PROFORMA DEFENDANT NOS. 4 TO 8 ARE THE SONS OF LATE
PULIN CHANDRA DEY AND ARE RESIDENT OF STATION ROAD
NEAR BONGAIGAON RAILWAY STATION
P.O. and P.S.-BONGAIGAON
DIST-BONGAIGAON
ASSAM
Advocate for the Petitioner : MR.K KONWAR
Advocate for the Respondent : SC.F.DEPTT,
Linked Case : MC 306/2009
1:SMTI MOKSHADA NATH.
W/O-LATE AHINDRA KR.NATH R/O-SAKUNTALA COLONY NEAR FOREST
DEPOT OFFICE BONGAIGAON TOWN
P.O. and P.S.-BONGAIGAON
DIST-BONGAIGAON
ASSAM.
VERSUS
1:THE STATE OF ASSAM AND ORS
REPRESENTED BY THE SECRETARY DEPARTMENT OF FOREST
DISPUR
GHY-781006.
2:DIVISIONAL FOREST OFFICER AIE-VALLEY DIVISION
BONGAIGAON
P.O. and P.S. BONGAIGAON
DIST-BONGAIGAON ASSAM.
3:DEPUTY COMMISSIONER
DISTRICT COLLECTOR
BONGAIGAON DISTRICT
BONGAIGAON
ASSAM.
4:PARIMAL KANTI DEY
.
Page No.# 3/7
5:LOHIT KANTI DEY
.
6:DIPAK KANTI DEY
.
7:SAMIR KANTI DEY
.
8:RABINDRA NATH DEY.
- ALL THE PROFORMA DEFENDANT NOS. 4 TO 8 ARE THE SONS OF LATE
PULIN CHANDRA DEY AND ARE RESIDENT OF STATION ROAD
NEAR BONGAIGAON RAILWAY STATION
P.O. and P.S.-BONGAIGAON
DIST-BONGAIGAON
ASSAM.
Advocate for the Petitioner : MS. M PATHAK
Advocate for the Respondent : SR
GA
ASSAM
BEFORE
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 24-02-2020
JUDGMENT & ORDER (ORAL)
Heard Mr. KK Mahanta, learned senior counsel for the appellant. Also heard Mr. G Bordoloi, learned Government Advocate appearing for the Forest Department, Government of Assam.
2. The appellants as the plaintiff instituted TS No.25/2002 in the Court of the learned Civil Judge Senior Division Bongaigaon praying for a declaration, amongst others, that they are in permissive possession of the suit premises covered by dag No.741 (old) 473 (new) of periodic patta No.474 (old) 297 (new) at Bongaigaon Town 5 th part under Bongaigaon Revenue Circle and further for a declaration that the defendants in the Forest Department of the Government of Assam have no right title and interest over the suit land nor they have any Page No.# 4/7 right to claim the vacant possession of the suit premises.
3. In paragraph 3 of the plaint a specific plea had been taken that the husband of the plaintiff who was serving in the Forest Department was transferred to Bongaigaon in the year 1983 was not allotted any quarter and as such he had to make his own arrangement for a residence. Accordingly, the husband of the plaintiff in the year 1984 occupied the suit premises comprising of a Assam Type house with six rooms with permissive possession from the proforma defendants. After the demise of her husband, the appellant continued to occupy the suit premises under the permissive possession which her deceased husband had obtained. The respondents in the Forest Department in their written statement took the stand, amongst others that 5 B 0K 9L of land under dag No.741 and 9B 4K 6L of land under dag No.652, the total being 14 B 4 K 15 L was acquired from the proforma defendants under the due process of law in favour of the forest department and, therefore, the stand of the plaintiff that they were in permissive possession from the proforma defendants would be untenable.
4. Without going into the merits of the other evidences that are being brought on record, we have taken note of that the plaintiff had exhibited the exhibit 4 communication dated 09.08.1995 of the Assistant Settlement Officer, Bongaigaon Revenue Circle made to the Additional Deputy Commissioner Development Bongaigaon which contains the survey report regarding the land of Bongaigaon Forest Department. The penultimate paragraph of exhibit-4 survey report is extracted as under:
"It has been seen that there is excess land of 4 kathas 12 lechas in the acquisitioned land. Whether the residential house of Sri Nath is the quarter of forest depot or not it can be known on the basis of the data of the concerned forest department."
5. The survey report of the Assistant Settlement Officer clearly provides that total 14 B 4 K 3 L of land was acquired for the forest department for the purpose of the forest department, but the total land under the forest department at present is 15 B 4K 7 L. Accordingly, the survey report provides that there is an excess of 4 K 12 L of land with the forest department which in fact was not acquired. If the survey report is accepted to be Page No.# 5/7 correct, there would remain 4 K 12 L of land under dag No.741 and 1652 which were not acquired by the forest department, meaning thereby, that such land continued to remain the private land of the proforma defendants. The survey report further provides whether the residential house of the plaintiff is within the excess land of 4K 12 L or it is within the acquired land of 14 B 4 K 3 L has not been determined as yet.
6. The learned trial court in its judgment dated 12.03.2008 while deciding the issue No.4:
whether the suit land is within the patta land of the proforma defendants and the plaintiff is in possession of it as a permissive occupier of the proforma defendants, and the issue No.5 :
whether the suit land was the acquired land by the defendants from the proforma defendants has gone into all the evidences put forth by the plaintiff as well as by defendants except for the exhibit 4 survey report dated 09.08.1995. The learned court proceeded on the premises that the plaintiff through her evidences had failed to prove that the suit land was the private land of the proforma defendants and not the acquired land of the forest department.
7. On an appeal being carried against the judgment of the learned trial court being TA No.04/2008, the learned Civil Judge Bongaigaon again decided the issues No.4 and 5 by going through the evidences of the plaintiff and the defendants except for the exhibit 4 survey report dated 09.08.1995 and arrived at its conclusion that the plaintiff through her evidences had failed to prove that the suit land was the private land of the proforma defendants and not the acquired land of the forest department. The learned appellate court in its judgment dated 20.12.2008 arrived at its satisfaction that the plaintiff had not examined the revenue officials in this respect and a mere statement of the PW-1 that there was excess 3K 12 L land shown during the survey will not suffice, unless the plaintiff had taken efforts to prove that the excess land shown to have fallen within the share of the proforma defendants was not acquired by the defendants. The said conclusion arrived at by the learned appellate court in our considered view would be vitiated as the exhibit 4 survey report dated 09.08.1995 which clearly reveals that there was an excess land of 4 K 12 L which was not acquired for the forest department, meaning thereby that the same remained to be the private patta land of the proforma defendants was not taken into consideration. From the said point of view, we are of the view that the learned appellate court had erred in law in arriving Page No.# 6/7 at the conclusion in respect of issues No.4 and 5.
8. In the circumstances, a substantial question of law is framed as to whether non- consideration of the exhibit 4 survey report dated 09.08.1995 would render the judgment of the learned appellate court as well as of the learned trial court to be unsustainable. The exhibit-4 survey report being a document providing for the relevant information, a reading of the contents of the document would also be a question of law and non-consideration of the relevant exhibit exhibited by the plaintiff would again vitiate any decision that the learned court may have arrived at.
9. The conclusion of the learned appellate court that a mere statement of the PW-1 that there was an excess of 3K 12 L land will not suffice, in our view is inadequate inasmuch as there exists in the record, the exhibit-4 survey report dated 09.08.1995 which clearly provide that there was an excess land of 4K 12 L which was not acquired for the forest department.
10. The only conclusion remains is as to where the excess land of 4 K 12 L would be located, meaning thereby, as to whether the excess land comprises of the suit land or it comprises of some other land. The said question in our view can be answered only upon the additional evidence being taken specifically for the purpose.
11. In view of the above, the substantial question of law framed above is answered in favour of the appellant/plaintiff.
12. The judgment dated 20.03.2008 of the learned Munsiff Bongaigaon in T.S No.29/2008 and the judgment dated 20.12.2008 of the learned Civil Judge Bongaigaon in TA No.04/2008 are hereby set aside.
13. The matter stands remanded back to the learned Munsiff Bongaigaon for a fresh consideration by taking into account the effect and implication of the exhibit-4 survey report dated 09.08.1995.
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14. For the purpose, if any further evidence is required to make it determinable whether the excess land of 4 K 12 L (SIC 3 K 12 L) also comprises of the suit land, the learned trial Court may take such evidence but limited for the purpose indicated.
15. Send back the LCR.
16. The parties shall appear before the learned Munsiff, Bongaigaon on 26.03.2020.
17. In terms of the above, the appeal stands disposed of.
JUDGE Comparing Assistant