Back
2016 Supreme(Gau) 567
IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRASANTA KUMAR DEKA, J.
Watir Ali & others - Appellants
Versus
Mustt. Hayatun Nessa & others - Respondents
RSA 183/2016
Decided On : 20-12-2016
For the Appellants :Mr. SP Choudhury Advocate
For the Respondents:Mr. GN Sahewalla Sr. Advocate Mr. I Mozumdar Advocate
Headnote:
Code of Civil Procedure - Order XLI Rule 11 - Evidence Act - Sections 61 and 67 - Title Suit - Recovery of khas possession - Second appeal has been preferred by the defendants-appellants against the plaintiff-respondents being aggrieved by the judgment and decree passed by the learned Civil Judge No. 2 in Title Appeal dismissing the appeal upholding the judgment and decree respectively passed by the learned Civil Judge. 1, in Title Suit – Held, aforesaid discussions and on perusal of the judgments passed by the learned courts below, it is very much apparent that none of the learned courts below had relied on Exhibit-7 to discard the defence of the defendant appellants so far the tenancy is concerned. Rather, both the learned courts below had came to a concurrent finding that as the defendant appellants had introduced their defence as a tenant under the aforesaid tenancy Act, so duty was cast upon the said defendant appellants to produce a valid tenancy khatian which they have utterly failed. Thus, both the learned courts below had accordingly came to a proper finding that as there is an admission on the part of the defendant appellants that they are possessing the suit land and they have failed to show their status as a tenant and their defence is not of adverse possession, under such circumstances, the defendant appellants are none other than licensee under the plaintiff respondents - substantial question of law to be formulated in the present second appeal and accordingly the same is dismissed
Heard Mr. SP Choudhury, learned counsel appearing on behalf of the appellants and Mr. GN Sahewalla, learned senior counsel assisted by Mr. I Mozumdar, learned counsel appearing on behalf of the respondents.
2. This second appeal has been preferred by the defendants-appellants against the plaintiff-respondents being aggrieved by the judgment and decree dated 30.08.2014 passed by the learned Civil Judge No. 2, Cachar at Silchar in Title Appeal No. 30/2002 dismissing the appeal upholding the judgment and decree dated 03.06.2002 and 07.06.2002 respectively passed by the learned Civil Judge (Jr. Divn.) No. 1, Cachar at Silchar in Title Suit No. 195/1999.
3. The plaintiff-respondents while filed Title Suit No. 195/1999 for declaration of title and for recovery of khas possession by eviction of the defendant-appellants on the ground that land measuring 28B 7K 12Ch of R.S. Patta No. 19 of village Lahmali belonged to one Simon Anthony, Loich Anthony and Francis Anthony, all sons of late Dewa Christian and they were in possession of 9B 9K 4Ch of land each by amicable partition amongst themselves. Simon Anthony died leaving his only son Adam Anthony as successor to his properties who got his name mutated in RS patta No. 19 in place of his father. Late Jahir Ali, father of the defendants No. 1 and 2 and Late Wajid Ali, father of the defendants No. 3 to 7 with permission of Adam Anthony began to live in a house situated in the first schedule land with permission to vacate the land within a short period of time. However, they subsequently did not vacate the same in spite of repeated demands of the said owner and thus the defendant-appellants without any valid title and possession as licensee under the owner occupied the said first schedule land. Adam Anthony sold an area of 6K 1Ch in Dag No. 239, an area of 1B 7K 4Ch in Dag No. 237 and 238 (whole) – in total 1B 13K 5Ch of land in second RS patta No. 72 which was derived from the original RS Patta No. 19 to the plaintiff No. 1 and Late Juaid Ali vide registered deed dated 10.04.1970. The said purchasers derived title and possession in the said land and got their names mutated in the second RS patta 72. Further, said Adam Anthony vide another registered Kabala dated 18.02.1988 sold an area of 3B 19K 8Ch 6G 2Kr 2Krt in Dag No. 159, an area of 3B 11K 6Ch 6G 2Kr 2Krt in Dag No. 285 i.e. in total 7B 7K 13G to plaintiffs Faizul Haque (substituted by Lrs. respondents No. 1(a) and 1(b)), the plaintiff respondent No. 2, Abdur Nur, Sahab Uddin, plaintiff respondent No. 3 and Md. Samsuddin, the plaintiff respondent No. 4. The plaintiff respondents No. 2 to 4 further purchased an area of 1K 3Ch in Dag No. 239, 4K 4Ch in Dag No. 240, 1K 7Ch in Dag No. 241, 2K 14Ch in Dag No. 242, 5K 11Ch in Dag No. 243 and 7K 2Ch in Dag No. 164 which comes to a total land of measuring 1B 3K 6Ch in suit patta No. 72 vide registered Kabala dated 10.11.1989 from the said Adam Anthony and got their names mutated in the said land. Juaid Ali by registered Kabala dated 21.10.1981 sold his share of land measuring 16K 10Ch 10G in Dag No. 237, 238, 239 of suit patta No. 72 and delivered possession to his brother. Thus, the plaintiff respondents purchased 9B 9K 4Ch share of land of Adam Anthony in the suit patta and derived lawful title and possession of the said land. The defendant appellants were in possession of the schedule land as previous licensee under the plaintiff respondents of second and third schedule land by cultivating the same. The plaintiff respondents made repeated demands to the defendant appellants to vacate the house of first schedule land but the said appellants did not comply with the request of plaintiff respondents and forcibly came into possession of land described in second and third schedule of the plaint on 08.12.1991. A proceeding under Section 141 of the Cr.P.C. was initiated by the plaintiff respondents Late Faizul Haque against the main defendants which was dropped on 07.12.1991 and
