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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
AJIT BORTHAKUR, J.
Md. Abdul Salam alias Abdus Salam and Anr. – Appellants
Versus
Julhash Ali and 4 Ors. – Respondents
RSA 25 of 2013
Decided on : 24-02-2023
Code of Civil Procedure, 1908 - Order 41 Rule 31, Order 26 Rule 9 - Transfer of Property Act, 1882 - Section 53A - Registration Act, 1908 - Section 49 - Assam Land and Revenue Regulation, 1886 - Section 41 - Evidence Act, 1872 - Section 67 - Land - Decree for partition - Possession of suit land - Appeal preferred against Judgment and Order passed whereby allowed appeal setting aside Judgment, Order and Decree, passed by learned Civil Judge partly decreeing suit by reversal – Held, It is noticed that appellant/defendants, in fact, legally entered into possession of suit land by right of purchase and continued their possession uninterruptedly for a long period and as such, they cannot be termed as trespassers - Totality of evidence available on record, therefore, reveals that learned First Appellate Court has arrived at an erroneous inference by holding that plaintiff/ respondents did not transfer suit land in favour of defendant/appellants by executing sale deeds and allowed defendant/appellants to have mutation in respect of suit land - It is hereby ordered that matter be remanded back to learned Trial Court with direction to pass an order issuing commission under Order 26 Rule 9 of CPC for physical inspection, measurement and for ascertaining existing possessions etc. of parties concerned with specific metes and bounds on suit land - Appeal partly allowed.
JUDGMENT :
Heard Mr. N. Dhar, learned counsel for the defendant/appellants and Ms. R. Choudhury assisted by Mr. A. Roshid, learned counsel appearing for the plaintiff/respondents.
2. This second appeal has been preferred against the impugned Judgment and Order, dated 25.04.2012 and Decree, dated 07.05.2012, passed by the learned Civil Judge, Barpeta in Title Appeal No. 2/2001 whereby allowed the appeal setting aside the Judgment, Order and Decree, dated 20.12.2000, passed by the learned Civil Judge (Jr. Divn.) No. 1, Barpeta in Title Suit No. 83/1997 partly decreeing the suit by reversal.
3. The plaintiff/respondents instituted a suit being T.S. No. 83/1997 before the Court of learned Civil Judge (Jr. Divn.) No.1 at Barpeta seeking reliefs of decree for their right, title, interest and possession over the suit land described in the schedule and for delivery of khas possession by evicting the defendant/appellants herein by removing the houses from the suit land as well as declaration for setting aside the purported fraudulent chitha mutations, dated 06.01.1977, 08.11.1977 and 18.09.1991 to restore the plaintiffs’ patta. It was further prayed to send precept to the concerning revenue authority and to decree for partition of plaintiffs’ share of the suit land etc.
4. The principal defendant/appellants contested the suit by filing a written statement stating, inter-alia, that there is no cause of action for the suit; that the suit is not maintainable in the present form as there is no Dag Nos. such as 513, 514 and 515 under Periodic Patta No. 226; that the suit is bad for non-joinder of necessary parties as the recorded pattadars have not been impleaded in the suit; that the suit land is undervalued and under stamped and that the suit is barred by law of limitation. The defendant/appellants herein denied the pleaded contentions of the plaintiff/respondents herein terming the same as false, fabricated and concocted. The defendant/appellants pleaded that originally the land measuring 5B 2K 15Ls, covered by Dag No. 373(4B 1K 10Ls) and Dag No. 380 (1B 1K 5Ls) under Period Patta No. 226 of village Agmandia was originally belonged to the plaintiff/respondents and out of the said plot of land the defendant No. 1/appellant No.1 herein got mutation over 3 K 3½ Ls of land from Dag No. 380 of Village Agmandia in place of the plaintiff No. 1 (Julmat Ali) which was passed by the SDC on 08.11.1977 by right of purchase. The defendant/appellants shifted their basti to the said land in the year 1977 and since then, the defendant/appellants have been residing without any interruption from any corner. The defendant/appellants purchased a number of adjoining plots of basti land. The defendant/appellants have stated that as the suit has been filed on 11.08.1997,that is, after more than a period of 12 years the suit is barred by law of limitation,.
5. The Court of learned Civil Judge (Jr. Divn.) No.1 at Barpeta formulated the following issues to arrive at a just decision in the suit
2. Whether the suit is not maintainable in the present form?
3. Whether the suit is bad for non-joinder of necessary parties?
4. Whether the suit is undervalued?
5. Whether the suit is barred by law of limitation?
6. Whether the plaintiffs have right, title and interest over the suit land?
7. Whether the plaintiffs were dispossessed from the suit land on 7-6-97 by the defendant?
8. Whether the plaintiffs are entitled to get khas possession as prayed for?
9. Whether the mutation order dated 6-1-77 and 8-11-77 in favour of defendants are illegal and void and liable to be cancelled?
10. Whether the plaintiffs are entitled to a decree as prayed for?
11. To what relief or reliefs if any the plaintiffs are entitled to?
Additional Issue No.1- 1. Whether the plaintiffs are entitled to get partition as prayed for and to issue precept to the revenue authority accordingly?”
6. During trial the plaintiff/respondents examined 4 witnesses whereas the de
Settlement record of rights does not extinguish prior title, and collusive judgments lack binding authority on necessary parties.
The Appellate Court reinstated the Plaintiff's title over the land, highlighting that unproven mutation records cannot extinguish existing ownership rights.
The non-delivery of possession does not affect the transfer of title, and lack of mutation in revenue records does not extinguish the title of the lawful purchaser.
The onus lies on the person claiming right, title, and interest to prove the title by producing the necessary documents.
It is trite that once declaration of right, title and interest have been granted in favour of a particular person, person who claims adversarial interest has to show a better title as to why he shoul....
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