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2014 Supreme(Gau) 960
Gauhati High Court
Nishitendu Chaudhury, J.
Gopal Chandra Skill & Ors. - Appellant
Versus
Keshab Chandra Skill - Respondent
RSA No. 120 of 2001
Decided On : 24-07-2014
For the Appellants : Mr. G.R Bhowmik, Mr. A.K. Sarkar and Mr. D.P. Mandal.
For the Respondent: Mr. B.R. Dey and Mr. P. Sen.
Headnote:
Assam Land and Revenue Regulation – Sections 3, 9 – Reversal of Judgement – Title – Second appeal has been preferred by defendants challenging the appellate judgment of reversal passed by learned Civil Judge, in Title Appeal by judgment thereby decreeing Title Suit of the court of Civil Judge, Junior Division, by setting aside and reversing the trial court’s Judgment and decree passed therein – Held, Appellant has failed to point out any provision of law in the nature of section 9 of the Assam Land and Revenue Regulation to show that by mere occupation or on the basis of allotment by Government either under the Assam Land and Revenue Regulation or under any other provision of law or scheme permanent, heritable and transferable right is conferred on an allotee – Once it is held that an allottee does not have permanent, heritable and transferable right, question of right of inheritance cannot legally arise – This being the position the sole substantial question of law is to be decided in the affirmative and against the appellant – It is accordingly decided – Sole substantial question of law having been found against the appellant, the second appeal is dismissed – Appeal Dismissed
2. The predecessor-in-interest of the respondent herein was one Keshab Chandra Shill. He filed Title Suit No. 3 of 1996 in the court of learned Civil Judge, Junior Division, Hojai at Sankardev Nagar praying for declaration of right, title and interest and injunction claiming that he is the exclusive owner in possession of the suit land on the basis of settlement in his favour vide periodic patta No. 629 issued in the year 1984. Defendants do not have any semblance of right, title and interest with respect to the suit but made abortive bid to dispossessed the plaintiff on 7.8.1995. It is the further case of the plaintiff the defendant No. 4 surreptitiously got her name mutated in the records of right behind the back of the plaintiff and using such mutation as basic endeavour was made to cloud the title of the plaintiff over the suit land. On being summoned, the defendant appeared and submitted written statement denying the claim of the plaintiff. Plaintiff came forward with a specific plea that land measuring 1 bigha was allotted in favour of one Kebal Krishna Shill by Government to rehabilitate him as he is a displaced person from erstwhile East Pakistan. One Kebal Krishna Shill @ Kebal Kumar died leaving behind two sons, Devendra and Surendra. Plaintiff is the son of Devendra Kumar Shill whereas Gopal Ch. Shill, Radha Kanta Shill and Bidhan Ch. Shill are the sons of Surendra Kumar Shill. It is the case of the defendants that the land having been allotted to Kebal Krishna Shill @ Kebal Kumar by the Government all the legal heirs who have right, title and interest over the same by inheritance, and as such, issuance of patta in the name of plaintiff is of no consequence. According to the defendants they approached the revenue authority and their names were duly mutated in recognition to their claims. An appeal-preferred by the plaintiff against the order of granting mutation also failed. Under such circumstances, the defendants prayed for dismissal of the Suit.
3. On the basis of the aforesaid rival contentions of the parties, the learned trial court initially framed Issue Nos. 1 to 8 and subsequently an additional issue being additional issue No. l was also framed. Both the original issues and the Additional Issue No. 1 are quoted below for ready reference:
1. Is there any cause of action for the suit?
2. Is the suit maintainable in its present form?
3. Is the suit barred by law of limitation?
4. Is the suit barred by the principles of waiver, estoppel and acquiescence?
5. Whether the plaintiff is entitled to get decree as prayed for?
6. What relief, if any, the parties are entitled to?
Additional issue No. l
“Whether the plaintiff has been in possession of the suit land described in the schedule of the plaint”?
4. In course of evidence plaintiff examined as many as three witnesses including himself and defendants examined two witnesses. After consideration of the evidence led by the parties both oral and documentary, the trial court by its judgment and decree dated 7.8.2000 dismissed the suit. Issue No. 6 was the principal issue for consideration of the learned trial court which relates to the claim over right, title and interest over the suit land. The trial court laid emphasis on the pleadings of the defendants that suit land was originally allotted to Kebal Krishna Shill in the process of rehabilitation. Kebal Krishna lived “on the suit land with his family members during his life time. Thereafter/in course of settlement and operation without issuing patta in the name of all the legal heirs of Kebal Krishna Government issued patta in favour of pl
