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IN THE HIGH COURT OF GAUHATI
A.K. Goswami, J.
On the Death of Bhanumati Ghosh her Legal Heirs Sujeet Ghosh and Others – Appellants
Versus
State of Assam and Others – Respondents
RSA No. 149 of 2003
Decided On : 11-06-2015
Constitution of India,1950 - Article 14 – Assam Land & Revenue Regulation, 1886 - Section 154(1)(n) of , 154-A and 154 - Andhra Pradesh Land Encroachment Act, 1905 - Section 6 – Civil Procedure Code,1908 - Section 100 - Possession with consequential relief of confirmation - Permanent injunction - Demanding plaintiff to vacate land - Seek a declaration of title on basis of adverse possession - Appeal is directed against judgment and decree passed by learned Civil Judge, in Title Appeal No. dismissing appeal and affirming judgment and decree passed by learned Civil Judge - Original plaintiff, filed suit for declaration of right, title and interest of plaintiff over suit land by right of her adverse possession with consequential relief of confirmation of possession and for declaration that proceedings in eviction case, being E.C. No. is null and void, illegal and inoperative against plaintiff permanent injunction prohibiting restraining defendant Nos. 2, 3 and 4 and their men, agents from evicting plaintiff cost of suit; and any other relief to which plaintiff is entitled - Schedule of land, as given in plaint, is an area of 4 Lecha of Government land covered under Dag No. - Said area of land, as described in Schedule to plaint - Case as set out by plaintiff is that plaintiff is in occupation of land described in Schedule to plaint, which is adjacent to periodic patta land belonging to plaintiff, measuring 2½ Katha, with knowledge of Government for more than 50 years by constructing permanent house and structures thereon - Defendants served a notice in E.C. Case No. on demanding plaintiff to vacate land mentioned in said notice forthwith by demolishing houses and structures therefrom and also that, in default in compliance thereof, authority concerned will forcibly evict plaintiff from suit land – Held, In ordinary circumstances, it may not be permissible for plaintiff to seek a declaration of title on basis of adverse possession as plea of adverse possession can be raised by way of shield and not as a sword - Plaintiff was compelled to approach Court because of issuance of notice under Rule 18 of Settlement Rules – Court considered opinion that there cannot be any bar because plea of adverse possession was taken by plaintiff as a shield against notice Rule 18 - Purpose of giving boundary in a notice is to facilitate identification of land and, ordinarily, it is expected that such a notice will contain area or boundary - However, absence of boundary in instant case may not be a vitiating factor because it appears to Court that there is no dispute with regard to identification of land as plaintiff, though claimed right of adverse possession over 4 Lechas of land - She failed to substantiate her claim in her evidence - Reliance placed on judgment of Apex Court in case not attracted in fact situation of instant case - There was a genuine dispute with regard to question whether Government was owner of property, in question, from which eviction was sought to be effected and it is in this circumstance Apex Court had ruled that summary remedy provided under Section 6 of Andhra Pradesh Land Encroachment Act, 1905 for eviction cannot be resorted to when there is dispute with regard to title and such question of title between Government and occupant must be adjudicated upon by ordinary courts of law - Case is no such question involved and admitted case of plaintiff is that she was in possession of a Government land - Appeal is dismissed
A.K. Goswami, J.
1. Heard Mr. S.P. Roy, learned counsel for the appellants. Also heard Mr. P.S. Deka, learned State counsel, appearing for the respondents.
2. This Second Appeal is directed against the judgment and decree dated 23.07.2003 passed by the learned Civil Judge (Senior Division), Sonitpur, in Title Appeal No. 17/98, dismissing the appeal and affirming the judgment and decree dated 15.06.98 passed by the learned Civil Judge (Junior Division) No. 1, in Title Suit No. 102/95.
3. The original plaintiff, Smti Bhanumati Ghose, filed the suit for declaration of right, title and interest of the plaintiff over the suit land by right of her adverse possession with consequential relief of confirmation of possession and for declaration that the proceedings in the eviction case, being E.C. No. 23/95, is null and void, illegal and inoperative against the plaintiff; permanent injunction prohibiting the restraining the defendant Nos. 2, 3 and 4 and their men, agents from evicting the plaintiff; cost of the suit; and any other relief to which the plaintiff is entitled. The Schedule of land, as given in the plaint, is an area of 4 Lecha of Government land covered under Dag No. 744, situated at Rangapara town, Mouza - Balipara and that the said area of land, as described in the Schedule to the plaint, was extracted from the notice given in E.C. No. 23/95.
4. The case as set out by the plaintiff is that the plaintiff is in occupation of the land described in the Schedule to the plaint, which is adjacent to the periodic patta land belonging to the plaintiff, measuring 2½ Katha, with the knowledge of the Government for more than 50 years by constructing permanent house and structures thereon. In spite of the above, the defendants served a notice in E.C. Case No. 23/95, on 19.12.95, demanding the plaintiff to vacate the land mentioned in the said notice forthwith by demolishing the houses and structures therefrom and also that, in default in compliance thereof, the authority concerned will forcibly evict the plaintiff from the suit land.
5. The defendants filed a written statement stating that the suit land was being used as public road since time immemorial and that the plaintiff and her family members started raising temporary construction in the year 1992 and, therefore, notice under Rule 18(2) and 18(3) of the Settlement Rules framed under the Assam Land and Revenue Regulation, 1886 (for short, ALRR) was issued treating the plaintiff to be an encroacher.
6. On the basis of the pleadings, the learned Trial Court framed the following issues:
"1. Whether the suit is maintainable?
2. Whether there is cause of action for the suit?
3. Whether the possession of the plaintiff over the suit land has become adverse and thereby the plaintiff has acquired title over the suit land by right of adverse possession?
4. Whether the proceeding being E/C Case 23/95 is null and void, illegal and in-operative against the plaintiff?
5. Whether the plaintiff is entitled to a decree as prayed for?"
7. The plaintiff examined 4 witnesses, whereas the defendants did not examine any witness on their behalf. The witnesses were, however, cross-examined. The plaintiff exhibited the Sale Deeds as Ext.-1 and Ext.-2 in respect of 2½ Katha of land. Her husband had purchased 2 Katha of land vide Ext.-1 and the plaintiff (PW1) had purchased 1/2 Katha of land vide Ext.-2. PW4 had exhibited the original notice issued under Rule 18 of the Settlement Rules.
8. Learned Trial Court decided Issue Nos. 1 and 2 in favour of the plaintiff. Issue No. 3 was decided against the plaintiff. So far as issue No. 4 is concerned, the learned Trial Court opined that in view of the bar created under Section 154(1)(n) of the ALRR, civil court has no jurisdiction and the defect, if any, in a notice, cannot be gone into. In view of rendering such a decision in Issue Nos. 3 and 4, the suit was dismissed.
9. The learned Lower Appellate Court also opined that as the plaintiff had not acquired a
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