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IN THE HIGH COURT OF GAUHATI PRINCIPAL BENCH AT GUWAHATI
KALYAN RAI SURANA, J.
Lohit Ch. Baruah and Others - Appellant
Versus
Aruna Baruah and Others - Respondent
RSA 148/2006
Decided on : 02-01-2020
SUIT FOR DECLARATION - OCCUPANCY RIGHT - TENANCY KHATIAN - JURISDICTION OF CIVIL COURT - ASSAM (TEMPORARILY SETTLED AREAS) TENANCY ACT, 1971 - SECTIONS 66(C) AND 66(D) - REVENUE COURT - JURISDICTION - LIMITATION ACT, 1963 - SECTION 3 - ADVERSE POSSESSION - BURDEN OF PROOF - EVIDENCE ACT, 1872 - SECTION 106 - ESTOPPEL - WAIVER - ACQUIESCENCE - SALE DEED - ADMISSIBILITY - PLEADINGS - RELEVANCE - EXHIBITS - MARKING - PROOF - APPELLATE COURT - DUTY - ISSUES - FRAMING - DETERMINATION - DOCUMENTS - REFERENCE - NECESSITY - COUNTERCLAIM - MAINTAINABILITY - WRITTEN STATEMENT - FILING - SEPARATELY - APPEAL - CROSS OBJECTION - ABSENCE - DECREE - AFFIRMATION.
Fact of the Case:
Plaintiffs filed a suit for declaration that the occupancy right and tenancy khatian granted to the defendants over the suit land is illegal, inoperative, unlawful and without jurisdiction. The defendants denied the plaintiffs' claim and filed a counterclaim for declaration of their right, title and interest over the suit land. The trial court dismissed the suit and the counterclaim. The first appellate court affirmed the trial court's decision.
Finding of the Court:
1. The suit was barred by limitation as the plaintiffs failed to prove that the suit was filed within the period of limitation prescribed under Section 3 of the Limitation Act, 1963. 2. The jurisdiction of the civil court was barred from deciding the issue of grant of tenancy khatian to the defendants under Sections 66(c) and 66(d) 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 defendants failed to prove their claim for declaration of their right, title and interest over the suit land as they had not filed any cross objection in the appeal against the dismissal of their counterclaim. 4. The appellate court was not required to frame points of determination or to decide issues other than those framed by the trial court as the plaintiffs had not challenged the decision of the trial court on issues which were decided in their favor and the issues relating to the counterclaim were not required to be revisited as the counterclaim was dismissed and no appeal and/or cross objection was preferred by the defendants. 5. The appellate court was not required to discuss the exhibited documents as the plaintiffs did not prove the relevant dates and the documents exhibited by them were of recent origin and had no relevance in light of the admissions made by the plaintiffs' witness in cross-examination. 6. The counterclaim was not maintainable as it was not filed jointly with the written statement.
Issues: 1. Whether the suit is barred by limitation? 2. Whether the jurisdiction of the civil court is barred from deciding the issue of grant of tenancy khatian to the defendants under Sections 66(c) and 66(d) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971? 3. Whether the defendants have proved their claim for declaration of their right, title and interest over the suit land? 4. Whether the appellate court was required to frame points of determination or to decide issues other than those framed by the trial court? 5. Whether the appellate court was required to discuss the exhibited documents? 6. Whether the counterclaim was maintainable?
Ratio Decidendi: 1. The plaintiffs failed to prove that the suit was filed within the period of limitation prescribed under Section 3 of the Limitation Act, 1963. 2. Sections 66(c) and 66(d) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 bar the jurisdiction of the civil court from deciding the issue of grant of tenancy khatian. 3. The defendants failed to prove their claim for declaration of their right, title and interest over the suit land as they had not filed any cross objection in the appeal against the dismissal of their counterclaim. 4. The appellate court was not required to frame points of determination or to decide issues other than those framed by the trial court as the plaintiffs had not challenged the decision of the trial court on issues which were decided in their favor and the issues relating to the counterclaim were not required to be revisited as the counterclaim was dismissed and no appeal and/or cross objection was preferred by the defendants. 5. The appellate court was not required to discuss the exhibited documents as the plaintiffs did not prove the relevant dates and the documents exhibited by them were of recent origin and had no relevance in light of the admissions made by the plaintiffs' witness in cross-examination. 6. The counterclaim was not maintainable as it was not filed jointly with the written statement.
Final Decision: The appeal was dismissed with costs and 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.
viii. That any othe
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