A civil suit for declaration of title and recovery of possession is maintainable despite the Tenancy Act if the defendants' contradictory pleas cloud the title and the suit is not for ejectment of a tenant.

JUDGMENT :

ROBIN PHUKAN, J.

Heard Mr. B.K. Bhagawati, learned counsel for the appellants and Mr. D. Choudhury, learned counsel for the respondent.

2. In this appeal, under Order 42, read with Section 100 of the Code of Civil Procedure (CPC hereinafter), the appellants have challenged the judgment dated 12.08.2013, passed by the learned Civil Judge No. 3, Kamrup, Guwahati (first appellate court hereinafter), in Title Appeal No. 10/2010, whereby the judgment and decree dated 15.12.2009, passed by the learned Munsiff, Rangia (trial court hereinafter), in Title Suit No. 21/2007, was upheld.

2.1. It is to be noted here that vide judgment and decree dated 15.12.2009, the learned trial court, had decreed the suit declaring right, title and interest in favour of the plaintiffs/respondent herein, over the suit land and khas possession of the same and also directed that the khas possession of the land to be handed over the plaintiffs/respondent herein.

3. For the sake of convenience and also to avoid confusion, the parties herein this appeal, are referred to, in the same status, as they appeared in the title suit.

Background Facts:-

4. The background facts, leading to filing of the present appeal, are adumbrated herein below:-

“The plaintiffs had instituted a title suit, being Title Suit No. 21/2007, for declaration of right, title and interest over the suit land, described in the schedule of the plaint, which was their ancestral property. The suit land was originally owned and possessed by Late Lalit Ram Kalita, who was the father- in-law of plaintiff No. 1 and grandfather of plaintiff No. 2 by virtue of purchase in the year 1931 and at the relevant time, it's Patta No. was 3 and the Dag No. was 313 and after settlement, the Patta number was converted to 12 and the Dag number was converted to 249.

After the death of Lalit Ram Kalita, his son, Arabinda Kalita, the predecessor-in-interest of the plaintiffs, also possessed the land by cultivating and paying land revenue regularly.

After the death of Arbinda Kalita, till 2000, the plaintiffs possessed the suit land by cultivating the same. Thereafter, in the year 2001, the plaintiffs handed over the land to the main defendants to cultivate the land as their tenant (Adhi). Accordingly, the defendants cultivated the land and gave the legitimate share of the crops to the plaintiffs till 2003. Thereafter, in the year 2004, the main defendants grabbed the entire crops of the suit land. Then, on 20.04.2005, the plaintiffs told the defendants not to enter into the suit land and thereafter, the plaintiffs started to cultivate in the same. Thereafter, on 29.06.2005, when the plaintiffs entered into the suit land for cultivating, the defendants ousted the plaintiffs from the suit land and dispossessed the plaintiffs from the same.

Then, the plaintiffs had instituted one Misc. Case No.85^M/2005, under Section 145 of the Criminal Procedure Code, before the Executive Magistrate, Rangia. But, the same failed to yield any result. Then, being left with no other option, the plaintiffs instituted the aforementioned suit with the prayer mentioned herein above.

Thereafter, the defendants contested the suit by filing written statement, wherein defendant No. 1 had taken a plea that he had purchased the suit land, vide Sale Deed No. 3852/1968 and since 15.04.1970, he had the mutation over the suit land and that the plaintiffs had the knowledge about the registered sale deed, but, they had not prayed for cancellation of the same and as such, the suit is liable to be dismissed. Another stand taken by them is that the defendants were Adhiars of the suit land and according to Assam (Temporarily Settled Area) Tenancy Act, 1971 (1971 Act hereinafter), the Adhiars are protected from ejectment and as such, the plaintiffs can only file a rent suit under the said Act against the defendants. During the settlement of the 1923-28, the suit patta belonged to N.K.9 and the same was transformed into N.K.12 and during the settlement operatio