Point of Law: Section 33 of Indian Evidence Act, 1872 stipulates as to when evidence given by a witness in judicial proceedings or before any person authorized by law to take it relevant for purpose of proving in a subsequent judicial proceeding or in a later stage of judicial proceeding.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. D. Choudhury, the learned counsel appearing on behalf of the Appellant.

2. The instant second appeal was admitted by formulating the following substantial question of law vide an order dated 30/6/2008:

“Whether on the proved facts the plaintiff discharged his burden as occupancy tenant under the Defendant No. 3, the original owner of the land from whom the defendant No. 1 purchased the land?”

3. For adjudicating the substantial question of law so formulated in the instant appeal, it would be relevant to take note of the brief facts leading to the filing of the instant appeal.

4. For the purpose of convenience, the parties herein are referred to in the same status as they stood before the Trial Court.

5. The records reveal that the Appellant herein as Plaintiff had instituted a suit which was registered and numbered as Title Suit No. 15/2002, seeking a decree of khas possession in favour of the plaintiff, declaring his right as a ‘rayat’ over the land described in the Schedule to the plaint; for a decree of permanent injunction restraining the Defendants from disturbing the peaceful possession of the Plaintiff on the land described in the Schedule to the plaint; for a precept to be sent to the Revenue Authority to grant the ‘rayati’ khatian in favour of the Plaintiff in respect to the land described in the Schedule to the plaint and for other reliefs to which the Plaintiff would have been entitled to in law and in equity.

6. The case of the Plaintiff as could be seen from a perusal of the plaint is that the Plaintiff claims to be a ‘rayat’ over the land described in the plaint on the ground that he had been enjoying the possession over the said land by doing cultivation as a ‘rayat’ under the Defendant No. 3 and his brothers. It was mentioned in the plaint that along with the suit land which has been described in the Schedule to the plaint, there were some other lands also which were under the possession of the predecessors-in-interest of the plaintiff i.e. his maternal grandfather as ‘rayat’ and after him the same devolved upon his two sons, namely Dhuti and Lakshi. The Plaintiff used to reside with his mother in the house of his maternal uncle from his childhood and his maternal uncle had handed over the possession of some plots of land along with the suit land to the Plaintiff. The mother of the Plaintiff expired in the year 1970 and since then the Plaintiff has been enjoying the possession of the suit land as ‘rayat’ by paying Rs. 100/- per annum as the rent. It is further the case of the Plaintiff that the khatian was required to be prepared in the name of the Plaintiff in respect to the suit land in the settlement operation. But during the last settlement operation, by mistake, the Dag No. and Patta No. of the suit land were wrongly recorded in the khatian against the name of the Plaintiff. It was the further case of the Plaintiff that the Defendant No. 3 had also disclosed to the Plaintiff that all the lands in the Suit Dag had fallen to his share and as such the Defendant No. 3 started collecting the annual rent from the Plaintiff. It was alleged that the Defendant No. 3 for wrongful gain sold the entire land belonging to the Suit Dag possessed by the Plaintiff by executing a Deed of Sale bearing Deed No. 883/1986 dated 25/2/1986 in favour of the Defendant No. 1 and tried to disturb the peaceful possession of the Plaintiff. Under such circumstances, the Plaintiff was compelled to file a case being Case No. 80M/86 under Section 145 of the CrPC against the Defendant No. 1 when he tried to evict the Plaintiff forcefully from the suit land by virtue of the Sale Deed. The said proceedings was decided against the Plaintiff for which the Plaintiff preferred a revision petition before the Court of the Sessions Judge, Nalbari. The Court of the Sessions Judge, Nalbari had set aside the order and declared the khas possession of the suit land in favour of the Plaintiff. It was further alleged tha