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2018 Supreme(Gau) 625
IN THE HIGH COURT OF GAUHATI
PRASANTA KUMAR DEKA, J.
Mukut Doloi - Appellant
Versus
State of Assam and Others - Respondent
R.S.A. No. 126 of 2002
Decided On : 24-01-2018
For the Appellant : Mr. M.A. Sheikh.
For the Respondent: Mr. P.K.R. Choudhury.
Possession of government land without written lease or permission constitutes encroachment, precluding the claim of possessory rights or permanent injunction.
Headnote:
Possessory Right - Land Dispute - Assam Land and Revenue Regulation, 1886 - Ext. Ka - Regulation 8 - Rule 16 - State of Assam Vs. Radhika Kanon, 1997 (2) GLT SC 35
Fact of the Case:
The plaintiff filed a suit seeking declaration of possessory right over a land and permanent injunction against the defendants. The trial court decreed the suit in favor of the plaintiff, but the first appellate court reversed the decision, leading to the plaintiff's appeal.
Finding of the Court:
The first appellate court reversed the trial court's finding on the plaintiff's possessory right, stating that the plaintiff was an encroacher on government land and therefore not entitled to the relief sought.
Issues: (i) Cause of action for the suit (ii) Suit maintainability (iii) Plaintiff's continuous possession for over 30 years (iv) Occupation of the land by a women's organization (v) Entitlement to other reliefs
Ratio Decidendi: The plaintiff's possession of government land without written lease or permission makes them an encroacher, and they cannot claim possessory rights or seek permanent injunction. The defendant, having obtained land through proper channels, is not an encroacher and has a right to the land.
Final Decision: The appeal was dismissed, and the first appellate court's decision to reverse the trial court's finding on the plaintiff's possessory right was upheld.
1. Heard Mr. MA Sheikh, learned counsel appearing for the appellant/plaintiff. Also heard Mr. PK Roy Choudhury, learned counsel, appearing for the respondent Nos. 6 and 7 and Ms. K. Phukan, learned Junior Government Advocate, Assam, appearing for the respondent Nos. 1 to 5.
2. The present appellant is the plaintiff in Title Suit No. 17/2018 in the court of the learned Civil Judge (Junior Division) No. 2 at Morigaon who filed the suit against the present respondents as defendants for declaration of his possessory right to occupy the suit land described in Schedule A of the plaint and for a precept to the respondent Nos. 1 to 5 to allot the suit land in favour of the plaintiff/appellant on payment of premium and decree for permanent injunction restraining the defendants/respondents Nos. 6 and 7 from encroaching the Schedule A land etc.
3. The plaintiff/appellant is possessing the land measuring 1 Bigha 2 Kathas 10 Lechas out of total 123 Bighas of land covered by Government Dag No. 259 of Alichinga Kissam under Uttarkhola Mouza in the District of Morigaon. His father possessed the suit land by cultivating therein since 35 years back by clearing jungles and on attaining majority, the plaintiff/appellant continued the possession over the suit land by constructing his dwelling houses thereon. The defendant/respondent Nos. 6 and 7 accompanied by local police officials during absence of the plaintiff/appellant who was in jail demolished his dwelling house and threatened the wife of the plaintiff/appellant not to repossess the suit land. The plaintiff/appellant approached the Revenue authority of Morigaon for allotment of the suit land in his name but there was no response from the said authority. The defendant/respondent Nos. 6 and 7 are trying to evict the plaintiff/appellant from the suit land. Hence he filed the suit seeking the reliefs mentioned hereinabove.
4. The defendant/respondent Nos. 1 to 5 filed their joint written statement and denied the possession of the plaintiff/appellant over the suit land. In the written statement it was further pleaded that the suit land has been kept vacant for public purpose and as such the allotment of the suit land to a particular person does not arise at all. On the other hand the defendant/respondent Nos. 6 and 7 in their written statement raised the question of maintainability of the suit. Further it is pleaded that out of the suit land 2 Kathas 10 Lechas land is in their possession which was allotted in favour of the defendant/respondent No. 7 on 26.10.1983 and remaining portion of the suit land was surrounded by fencing and he applied before the revenue authority to allot the same in his favour. They further pleaded that the entire suit land is in their possession. Accordingly, the defendants/respondents prayed for dismissal of the suit.
5. The learned trial court framed the following issues:-
"(i) Whether there is a cause of action for the suit?
(ii) Whether the suit is maintainable in its present form?
(iii) Whether the plaintiff has been in continuous possession of the suit land for more than 30 years to entitle hostile title?
(iv) Whether the suit land has been in occupation of Shantipur Mahila Samiti?
(v) To what other relief/reliefs the parties are entitled?"
6. The learned trial court decreed the suit in favour of the plaintiff/appellant. The learned trial court took up the Issue No. 3 at first and after having considered the evidence of the parties to the suit held that half Bigha of land forming part of the suit land was never occupied by the defendant/respondent No. 7 and as such possession of the plaintiff/appellant over the suit land is more than 30 years. The occupation of the suit land by the plaintiff/appellant for such a long duration was open by making construction and cultivating over the land which is a relevant fact and creates a bona fide right in favour of the plaintiff/appellant. The possession for such an appreciable length of time had created right, title
