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IN THE HIGH COURT OF GAUHATI
Kalyan Rai Surana, J.
Lohit Ch. Baruah and Ors. – Appellants
Versus
Aruna Baruah and Ors. – Respondents
Case No. RSA 148 of 2006
Decided On : 02-01-2020
SUIT FOR DECLARATION OF OCCUPANCY RIGHT AND TENANCY KHATIAN - ASSAM (TEMPORARILY SETTLED AREAS) TENANCY ACT, 1971 - SECTION 66(C) AND 66(D) - JURISDICTION OF CIVIL COURT - REVENUE COURT - LIMITATION ACT, 1963 - SECTION 3 - ADVERSE POSSESSION - TENANCY RIGHT - OCCUPANCY RIGHT - REVENUE RECORDS - EVIDENCE ACT, 1872 - SECTION 114 - ESTOPPEL - WAIVER - ACQUIESCENCE - SALE DEED - MUNICIPAL ACT, 1956 - MUNICIPAL ACT, 1923 - ASSAM NON-AGRICULTURAL URBAN AREAS TENANCY ACT, 1955 - ASSAM (TEMPORARILY SETTLED DISTRICTS) TENANCY ACT, 1935 - ASSAM ADHIAR PROTECTION AND REGULATION ACT, 1948 - ASSAM LAND AND REVENUE REGULATION, 1886 - REGULATION 154A.
Fact of the Case:
The appellants filed a suit for declaration of occupancy right and tenancy khatian granted to the respondents as illegal, inoperative, unlawful and without jurisdiction. The respondents claimed that they were in continuous possession of the suit land and houses described in the schedule of the plaint from the time of the forefathers. The appellants claimed that the khatian in respect of occupancy tenancy was illegally granted, as the suit land was a non-agricultural land and was within the jurisdiction of North Guwahati Municipal Town and the said Karuna Kanta Baruah was neither a cultivator nor he had cultivated the suit land for the purpose of his livelihood as he was in government service.
Finding of the Court:
1. The suit was barred by limitation as the appellants failed to prove that the suit was filed within the period of limitation of 30 years from the date of grant of occupancy tenancy to the predecessor-in-interest of the respondents in the year 1957-64. 2. The jurisdiction of the civil Court was barred from deciding the issue of grant of tenancy khatian to the respondents under Sections 66(c) and 66(1) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 and that the Revenue Court was the competent forum to deal with the question raised in the issue. 3. The respondents had failed to explain delay in filing their claim for grant of ownership rights, as such, the counter-claim was barred by limitation.
Issues: 1. Whether the suit is maintainable in its present form? 2. Whether there is any cause of action for the suit? 3. Whether the suit is barred by law of limitation? 4. Whether the suit is bad for non-joinder of necessary parties? 5. Whether the occupancy right and tenancy khatian granted to the defendant No. 1 to 3 and to their predecessor-in-interest Karuna Kanta Baruah over the suit land is illegal, inoperative and without jurisdiction? 6. Whether the plaintiffs are entitled to the reliefs as prayed for? 7. Whether the counter claim is maintainable in its present form? 8. What there is any cause of action for the counter claim? 9. Whether the counter claim is barred by law of limitation? 10. Whether the counter claim is bad for non-joinder of necessary parties? 11. Whether the defendants have right, title and interest over the suit land? 12. Whether the defendants are entitled to the relief as prayed for?
Ratio Decidendi: 1. The appellants could not prove their title over the suit land, and that the case projected by the respondents was proved through the cross examination of PW-1 to the effect that the suit land was the ancestral land of the predecessor- in- interest of the respondents, but the said land was mutated in the name of Nabin Chandra Baruah, who was the maternal uncle of the respondents No. 2 and 3 after deleting the name of Late Suresh Kanta Baruah in the year 1937, it must be deemed that the appellants were aware of the entries made in the land revenue records regarding entry of the name of Karuna Kanta Baruah as raiyot with effect from a date prior to such land being included as town land under North Guwahati Town Committee. 2. The preponderance of probability tilts in favour of submission made by the learned counsel for the respondents that such an entry must have been made by the land revenue authorities under the under any one of the previous enactments like (i) The Assam (Temporarily Settled Districts) Tenancy Act, 1935 (since repealed), or (ii) the Assam Adhiar Protection and Regulation Act, 1948 (since repealed), or (iii) Assam Non- Agricultural Urban Areas Tenancy Act, 1955. 3. The name of Karuna Kanta Baruah, the predecessor- in- interest of the respondents was not entered in the khatian under the provisions of Assam (Temporarily Settled Areas), Tenancy Act, 1971. 4. The appellants had not sought for any declaration of their title in respect of the suit land. Moreover, the appellants have not been able to establish by admissible evidence that the name of Karuna Kanta Baruah, the predecessor- in- interest of the respondents was illegally entered in the khatian illegally as occupancy tenant.
Final Decision: The appeal was dismissed with cost. The decree of dismissal of the suit, as passed by both the learned Courts below stands affirmed.
JUDGMENT :
Kalyan Rai Surana, J.
1. Heard Mr. S.P. Roy, learned counsel for the appellant. Also heard Mr. S.K. Ghosh, the learned counsel for the respondents No. 1, 2 and 3 and Mr. G. Bordoloi, learned Govt. advocate appearing for respondents No. 4 to 6. No representation by the proforma respondents No. 7 and 8.
2. By this appeal under Section 100 CPC, the appellants have assailed the first appellate judgment and decree dated 30.08.2005 passed by the learned Civil Judge (Senior Division) No. 1, Kamrup, Guwahati, thereby dismissing the appeal and affirming the judgment and decree dated 11.02.2004 passed by the learned Civil Judge (Jr. Division) No. 2 Kamrup (M), Guwahati in TS No. 294/1998, thereby dismissing the suit of the appellants and dismissing the counter-claim filed by the respondents.
3. The case of the appellants-plaintiffs they are the absolute owners of the land measuring 2B-3K-11L, covered by Dag No. 854, 855, 901 of K.P. Patta No. 597 of North Guwahati Town, Mouza- Silasindurighopa, district- Kamrup. The said land is described in the schedule of the plaint. It was projected that the respondent No. 1 is the wife of Late Karuna Kanta Baruah and the respondents No. 2 and 3 are the sons of Late Karuna Kanta Baruah and that Late Karuna Kanta Baruah was the son of paternal aunt of the appellants. Accordingly, Karuna Kanta Baruah was appointed as the caretaker of the property of Nabin Chandra Baruah, who was lying in bed during the last part of his life on condition that he would vacate the land as and when required by the appellants. However, the said Karuna Kanta Baruah fraudulently got his name mutated as occupancy tenant and manage to get a draft khatian bearing No. 101/128 over the suit land in the settlement operation of 1957-64 and that the khatian was issued without any notice to the appellants, as such, they were not aware of occupancy right recorded in the name of Karuna Kanta Baruah in the draft chitha of 1957 in respect of the suit land. It was projected that the suit land was a non-agricultural land and was within the jurisdiction of North Guwahati Municipal Town and the said Karuna Kanta Baruah was neither a cultivator nor he had cultivated the suit land for the purpose of his livelihood as he was in government service. Hence, by projecting that the khatian in respect of occupancy tenancy was illegally granted, the suit has been filed by projecting that only when notice of tenancy case No. 9/1997 was served on the appellants, they came to know about the recording of occupancy tenancy right in respect of Karuna Kanta Baruah. Accordingly, the appellants had prayed for the following reliefs.
i). Declaring the occupancy right and the tenancy khatian granted to Karuna Kanta Baruah, predecessor-in-interest of the defendant No. 1 to 3 and occupancy right tenancy khatian granted to defendant No. 1 to 3 over the suit land, described in the schedule below of this plaint, is illegal, inoperative, unlawful and without jurisdiction.
(ii). That the occupancy right and tenancy khatian granted to the defendant No. 1 to 3 and to their predecessor-in-interest, Karuna Kanta Baruah over the suit land, described in the schedule blow, be cancelled and accordingly issue direction to the Revenue Authority and to the Govt. of Assam to cancel it.
(iii). That a decree for delivery of khas possession removing the defendant No. 1 to 3 from the suit land described in the Schedule below in favour of the plaintiffs be passed.
(iv). That the defendant No. 1 to 3 be permanently restrained by injunction from disturbing the possession of the plaintiffs over the suit land described in the schedule below.
(v). That the Govt. of Assam be permanently restrained by injunction from issuing owner-ship right to the defendant No. 1 to 3.
(vi). That cost of the suit also be decreed against the defendant No. 1 to 3.
(vii). That if the defendant No. 7 and 8 contests the suit they should be treated as main defendant and decree should also be passed against them.
(vii
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