Gauhati High Court
Izarul Islam vs The State Of Assam And Ors on 5 May, 2016
Equivalent citations: AIR 2016 GAUHATI 169, (2016) 164 ALLINDCAS 654 (GAU), (2016) 2 GAU LT 1239, (2019) 1 GLR (NOC) 48
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL REVISIONAL JURISDICTION)
CRP No.62 of 2012
Izarul Islam
... ... ... Petitioner
-Versus-
State of Assam and others.
... ... ... Opposite parties.
BEFORE
HON'BLE MR. JUSTICE N. CHAUDHURY
For the petitioner : Ms. P. Bhattacharya, Advocate.
For the Opp. Parties : Mr. G. Sharma, Govt. Advocate, Assam.
Date of hearing : 05.05.2016.
Date of Judgment : 05.05.2016.
JUDGMENT & ORDER (Oral)
1. This petition has been preferred under Article 227 of the Constitution
of India challenging the judgment and decree dated 19.11.2011 passed by
learned Munsiff No.2, Goalpara, in Title Suit No.85/2010 thereby dismissing
the suit of the plaintiff for declaration of possessory right and for recovery of
possession thereof.
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2. The present petitioner as plaintiff instituted Title Suit No.85/2010 in the
court of learned Munsiff No.1 at Goalpara against four defendants, all of
whom are either State of Assam or its officers. It is stated in the body of the
plaint that suit land measuring 5 bighas was originally owned and
possessed by grandfather of the plaintiff, Late Osim Uddin Ahmed, who
had gifted the same to the plaintiff on 16.12.1979 along with valuable trees
standing on it. He has been possessing the same since last 35 years
peacefully and so acquired right, title and interest over the suit land. But on
01.03.2010 the defendant Nos.1 and 2 on being instructed by defendant
No.3 entered into the suit land and evicted the plaintiff as a result of which
his right, title and possession over the suit land became clouded. The
plaintiff, therefore, prayed for a declaration that he has right to possess the
suit land on the strength of his long possession over it by evicting the
defendants, their men, agents and employees and alternatively, a
declaration be made of his right, title and interest with respect to the suit
land on the basis of long possession and to recover possession thereof. The
plaint does not disclose any recital as to whether any notice under Section
80 of the Code of Civil Procedure was served on the defendants before
instituting the suit although all the defendants are officers of the
Government of Assam.
3. On being summoned the defendants appeared and submitted a
written statement denying the case of the plaintiff and stating that it is a
forest reserve land in support of which a mention has been made in the
revenue records. The forest authority raised a teak nursery over the suit land
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in the 1970's during the tenure of Late Gopesh Chandra Das, the then Beat
Officer, and those teak seedlings had grown into full fledged teak
plantation in the meantime worth crores of rupees. The defendants denied
possession of the grandfather of the plaintiff or possession of the plaintiff
over the suit land in any point of time and prayed that the suit of the
plaintiff be dismissed with compensatory cost. The defendants thereafter
did not appear and accordingly the suit proceeded exparte against the
defendants.
4. The learned trial court framed three points for determination which
are quoted below :-
"(A) Whether the suit is maintainable in its present form?
(B) Whether the defendants dispossessed the plaintiff on
01.03.2010?
(C) Whether the plaintiff is entitled to relief as claimed in the
plaint?"
5. Plaintiff examined three witnesses including himself and exhibited
some documents. The defendants did not contest by cross-examining
these witnesses.
6. The learned trial court thereafter considered the evidence brought
on record vis-à-vis claim and counter-claim of the parties and arrived at
the finding that the plaintiff did never acquire any right with respect to the
suit land. The grandfather of the plaintiff did not have any title to the suit
land. Considering the documents adduced by the plaintiff the learned trial
court held that the land had already been vested in the State of Assam by
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operation of the provisions of Assam State Acquisition of Zamindaries Act,
1951. Under such circumstances, it was held that application under Section
6 of the Specific Relief Act was not maintainable in view of bar under
Section 6(2)(b) of the Specific Relief Act, 1963.
7. Proceeding to the question of title, the learned trial court appears to
have gone deep into the history of revenue administration in the State of
Assam vis-à-vis various authorities on the subject and thereupon came to
hold that the land belong to the State and plaintiff did not acquire any
right, title and interest with respect thereto. Coming to the question of the
alleged gift deed (Ext-16), the learned trial court held that there is no bar in
executing a written gift deed under the Mahammedan Law as long as it
does not contradict the law governing Mahammedan gift. But when a gift
has been executed under the provision of other law, namely, the Transfer
of Property Act, in that event, it is compulsorily registrable under Section 17
of the Registration Act and the same not having been done the gift deed is
inadmissible in evidence. With these findings it was held that plaintiff did not
acquire any right, title and interest on the basis of the gift deed as well.
However, it is to be kept in mind that if the donor Late Osimuddin Ahmed
had no title with respect to the suit land, in that event, even if Ext-16 would
have been valid or admissible in evidence, no right, title and interest would
flow because if the vendor does not have title he cannot transfer any title.
With these findings, the suit of the plaintiff was dismissed in entirety both as
a suit for declaration of right, title and interest and also as an application
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under Section 6 of the Specific Relief Act. This trial court judgment and
decree was passed on 19.11.2011.
8. Aggrieved, the plaintiff chose not to prefer any appeal before the
appellate forum and straightway approached the High Court invoking
jurisdiction under Article 227 of the Constitution of India.
9. I have heard Ms. P. Bhattacharya, learned counsel for the petitioner
and Mr. G. Sharma, learned Govt. Advocate, Assam for the respondents. I
have perused the lower court records including the oral evidence of the three PWs and the documents adduced by them.
10. Ext-1 is the office copy of a notice under Section 80 CPC and Ext-5 series are the postal receipts and A/D cards in regard thereto. There is no mention in the plaint about the issuance of notice under Section 80 CPC on the defendants and thus this piece of evidence is clearly beyond pleading. Exts-3 and 4 are also similar two other notices under Section 80 CPC addressed to different authorities but there is no mention about them in the body of the plaint and so obviously these are beyond pleading. Ext-8 is the certified copy of Touzi No.46 which shows the name of Osimuddin Ahmed as possessor. But once it is shown that name of Osimuddin Ahmed existed in the Touzi, the possession of Osimuddin Ahmed was that of a permissive occupier and not adverse. On the other hand, no document has been placed on record to show that the possessor Osimuddin Ahmed got the status of either the landholder or settlement holder in terms of the provisions of the Assam Land and Revenue Regulation, 1886. Ext-9, on the other hand, Page 5 of 9 is a document showing that the land originally belonged to Baladmari Tea Estate and it was under Court of Wards. It is in this view of the matter the learned trial court was of the view that the land accordingly stood acquired by the State by operation of the provision of Assam State Acquisition of Zamindaries Act, 1951.
11. In course of examination-in-chief the plaintiff stated that Ext-8 is the certified copy of Touzi No.46 of Baladmari Tea Estate which shows the name of one Asiruddin Ahmed as possessor in respect of 5 bighas of land. Ext-9 is certified copy of Touzi which also shows possession of Asiruddin Ahmed with respect to 5 bighas of land. Ext-10, on the other hand, is revenue paying receipt by Osimuddin on 15.06.1951 and Ext-11 is yet another revenue paying receipt dated 25.05.1955 by Asimuddin. Similarly, Exts- 12, 13 and 14 are also revenue paying receipts. Ext-15 is the certified copy of jamabondi of Mespara estate of Baladmari T.E. and Ext-16 is the original gift deed executed by Osimuddin in favour of the plaintiff. After making statement regarding the aforesaid position of the revenue records the plaintiff Izarul Islam did not say a word in his deposition that he had been possessing the land or a specific date on which he was dispossessed by the defendants as pleaded by him in the plaint. Thus the plaintiff himself did not support his pleadings when he came to the witness box.
12. PW 2 is Piyara Begum. She is mother of the plaintiff and admitted to have given signature on the gift deed vide Ext-16(4). She did not say Page 6 of 9 anything about dispossession and/or previous possession of Osimuddin or plaintiff Izarul Islam.
13. PW 3 is one Sabedar Ali. He stated that he was witness in Ext-16 whereby Osimuddin gifted the suit land. This witness also did not say anything about possession or dispossession anywhere. Thus, none of the three witnesses of the plaintiff including the plaintiff himself did say anything in course of deposition that the plaintiff was evicted by the defendants in any point of time or that the plaintiff was in possession of the land prior to the date of dispossession. Thus, the plea of the plaintiff that he was in possession or that he was dispossessed in the month of March, 2010 has not been supported in course of deposition by any of the three witnesses including the plaintiff himself. There is nothing in the evidence of the plaintiff to show that the plaintiff is a landholder or settlement holder in respect of the suit land or that he was in possession thereof or that in any point of time he was dispossessed by the defendants.
14. The next question that comes for consideration is as to whether the suit instituted by the plaintiff was a one under Section 6 of the Specific Relief Act. There is a mention in the body of the plaint that plaintiff had been illegally dispossessed by the defendants although it is not a Government land or forest land. The dispossession was done on 01.03.2010 and the suit was filed for declaration of possessory right or recovery of possession. Although there is a mention in the body of the plaint that it was filed under Section 6 of the Specific Relief Act, at the same time, the Page 7 of 9 plaintiff had averred that he acquired right, title and interest with respect to the suit land by long possession and that his grandfather had gifted the property to him. If plaintiff sticks to his pleaded case that the proceeding instituted by him was a one under Section 6 of the Specific Relief Act, in that event, the proceeding is liable to be summarily dismissed on the ground that it would be barred under Section 6(2)(b) of the Specific Relief Act, 1963. No application under Section 6 of the Specific Relief Act can be instituted against the Government. So, if it is construed that the application gave rise to a proceeding under Section 6 of the Specific Relief Act, in that event, the same is not maintainable because of bar under Section 6(2)(b) of the Specific Relief Act and consequently, the judgment and decree passed by the learned trial court cannot be interfered with.
15. On the other hand, if the other averments made in the plaint that the plaintiff acquired title either by execution of gift deed or by long possession, in that event, the plaint should be construed to be one under Section 34 of the Specific Relief Act for declaration and consequential relief. The decree in that event would be appealable before the learned Civil Judge under Section 96 of the Civil Procedure Code and consequently the present revision petition has become not maintainable. Besides, no suit can be instituted for a declaration of title on the basis of adverse possession. Plaintiff in the present case brought Ext-9 on record to claim that his grandfather was paying Touzi revenue to the Government with respect to the suit land In that event, possession of his grandfather was a permissive Page 8 of 9 one and it was not adverse. Permissive occupier cannot acquire right, title and interest with respect to a land for long possession until and unless title vests on him in any of the recognized means of transfer of title or by settlement by the Government under the provisions of the Assam Land & Revenue Regulation, 1886. Admittedly, plaintiff has failed to make any averment in the plaint and did not produce a scrap of paper to show that he was settled with the land and so he cannot claim any right, title and interest with respect to the suit land. The learned trial court, therefore, does not appear to have committed any error in dismissing the suit for declaration of right, title and interest. Considering the entirety of circumstances, this Court does not find any scope to interfere with the judgment and decree passed by the learned trial court which has been passed after due deliberation and after due consideration of the attending facts and circumstances of the case. The findings of the learned trial court in this case while deciding the question of title the plaintiff from various angles including the law of agrarian reform as well as the history of revenue administration in the State of Assam deserves appreciation.
16. The revision petition stands dismissed. No order as to cost.
JUDGE T U Choudhury Page 9 of 9