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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
PRASANTA KUMAR DEKA, J.
On The Death of Defendant/Appellant No.1, Bhadan Mia @ Jalal Uddin His Legal Heirs Mstt. Sunaful Nessa Laskar, W/O Late Badan Mia and Others – Appellants
Versus
Sunil Chakraborty S/O Late Surandra Kumar Chakraborty – Respondent
RSA No. 39 of 2006
Decided On : 12-09-2017
Constitution of Indian – Defendants/appellants moved the Assam Board of Revenue and the said Hon’ble Board in its judgment observed that the land would become khas only after he settlement in favour of the plaintiff/respondent is cancelled and till then the land belonged to the plaintiff/respondent, who can take action against the defendants/appellants in appropriate Court of law – On the basis of such finding, the plaintiff/respondent served notice upon the defendants/respondents requiring vacating the suit land – Defendant/respondent (original) received the notice while the defendant (original) refused to accept the notice –Held, Appellant is to prove his own case on the basis of which he claims the relief which in the present case is missing – It is true that the plaintiff/respondent has submitted various documents in the form of exhibits from which it cannot at all be arrived whether the suit land was de-requisitioned and the same was acquired by the Government as the khas land in order to allot the same to the plaintiff/respondent - Admittedly the said land belongs to Mohanpur Tea Estate and the land was requisitioned as per the version of the plaint. In such situation, the Government ought to have been a necessary party to the suit and in the absence of the Government the findings given by the courts below cannot be considered to be proper and final – Second appeal succeeds
Heard Mr. N Dhar, the learned counsel appearing on behalf of the appellant. On perusal of the order dated 23.11.2016 of the Lawazima Court it is found that service on the respondent No.1 considered to be deemed served. However, none has entered appearance at the time of taking up this matter for hearing and its final disposal. It is pertinent to mention here that Mr. Sunil Chakraborty is the sole respondent in this appeal.
2. The present appellants are the defendants in Title Suit No.09/1995 in the court of Civil Judge, (Senior Division) at Hailakandi. The present respondent as the plaintiff filed the suit against the present defendants/appellants. The brief facts of the plaintiff/respondent is that he was the resident of undivided Bengal and shifted to Cachar district in Assam. At the time of partition, he was a freedom fighter and was subjected to lot of sufferings by the British Government. After coming to the district of Cachar, he obtained allotment and possession over 30B’s of suit land from the Government at the Mohanpur Requisition Area. Since 1955 onwards he reclaimed the land and made it habitable and cultivable and started to cultivate the land after constructing temporary house on the part of the land. Owing to serious eye disease, he was unable to get the land cultivated under his own supervision following which he engaged agricultural labourers. In 13.74BS, the defendants/appellants were engaged for cultivation for one year but the defendants/appellants with an ulterior motive did not vacate the land after one year and had continued to possess the land illegally against various demands being made by the plaintiff/respondent for vacating the possession of the land. The said defendants/appellants also constructed their own house upon a hillock within the suit land. The plaintiff/respondent approached the then SDO i.e. Collector, Hailakandi for eviction of the defendants. The prayer was rejected against which the plaintiff preferred an appeal before the Additional Deputy Commissioner, Cachar. The Additional Deputy Commissioner directed the SDO, Hailakandi to evict the defendants. The defendants/appellants moved the Assam Board of Revenue and the said Hon’ble Board in its judgment observed that the land would become khas only after the settlement in favour of the plaintiff/respondent is cancelled and till then the land belonged to the plaintiff/respondent, who can take action against the defendants/appellants in appropriate Court of law. On the basis of such finding, the plaintiff/respondent served notice upon the defendants/respondents requiring vacating the suit land. The defendant/respondent No.2(original) received the notice while the defendant No.1(original) refused to accept the notice. As the defendants/respondents did not vacate the suit land, the plaintiff filed the present suit for the following reliefs:
“That the plaintiff, therefore prays:
(ka) That the plaintiff be awarded khas possession of the land described in the Schedule below upon a declaration that it is under the plaintiff’s title and possession through an allotment from the Government and upon eviction of defendant Nos. 1 and 2 and their hencemen there from by removal along with their belongings the houses built by them in the hillock part of the suit land;
(kha) That the plaintiff be awarded any other or further relief to which he may be entitled in the opinion of the Court:
(Ga) That the plaintiff awarded mesneprofit for the past and the future period on account of the suit land: and
(Gha) that the plaintiff be awarded the cost of the suit under all circumstances with future interest thereon.”
3. The defendants/appellants filed a joint written statement wherein they stated that they were in possession of the suit land since long along with their brothers. They further claimed that the allotment of the plot of land in the name of the plaintiff/respondent was cancelled by the SDO in Requisition Case No.196/1965 and thereafter the la
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