Page No.# 1/ vs Sri Keshab Chandra Paul And Anr
2021 Latest Caselaw 443 Gua

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GAHC010093232020




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : RSA/92/2020

         ON THE DEATH OF SRI JADAB CHANDRA PAUL, HIS LEGAL HIERS
         PRATIMA PAUL AND 3 ORS
         W/O LATE JADAB CHANDRA PAUL, R/O JANIGANJ, SILCHAR TOWN, P.O.
         AND P.S. SILCHAR, DIST. CACHAR, ASSAM, PIN 788001

         2: RUMI PAUL @ MINAKSHI PAUL
          D/O LATE JADAB CHANDRA PAUL
          R/O JANIGANJ
          SILCHAR TOWN
          P.O. AND P.S. SILCHAR
          DIST. CACHAR
         ASSAM
          PIN 788001

         3: RUMI PAUL @ MINAKSHI PAUL
          D/O LATE JADAB CHANDRA PAUL
          R/O JANIGANJ
          SILCHAR TOWN
          P.O. AND P.S. SILCHAR
          DIST. CACHAR
         ASSAM
          PIN 788001

         4: SAURAV PAUL
          S/O LATE JADAB CH. PAUL
          R/O JANIGANJ
          SILCHAR TOWN
          P.O. AND P.S. SILCHAR
          DIST. CACHAR
         ASSAM
          PIN 788001

         5: SUJIT KUMAR PAUL @ SUJIT CHANDRA PAUL
          S/O LATE JYOTINDRA CH. PAUL
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             R/O JANIGANJ
             SILCHAR TOWN
             P.O. AND P.S. SILCHAR
             DIST. CACHAR
             ASSAM
             PIN 78800

            VERSUS

            SRI KESHAB CHANDRA PAUL AND ANR
            S/O LATE JYOTINDRA CHANDRA PAUL, R/O DRGA SANKAR LANE,
            AMBICAPATTY, SILCHAR TOWN, P.O. AND P.S. SILCHAR, PIN 788005, DIST.
            CACHAR, ASSAM.

            2:DR. RASESWAR PAUL
             S/O LATE JYOTINDRA CH. PAUL
             R/O STEAMERGHAT ROAD
             SILCHAR TOWN
             P.O. AND P.S. SILCHAR
             PIN 788001
             DIST. CACHAR
            ASSAM

Advocate for the Petitioner   : MR. S D PURKAYASTHA

Advocate for the Respondent :




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                         ORDER

Date : 09-02-2021

Heard Mr. S.D. Purkayastha, learned counsel for the appellant at the stage of hearing under Order XLI Rule 11 CPC.

2) This appeal under section 100 CPC is directed against the first appellate judgment and decree dated 11.02.2020, passed by the learned Civil Judge No.1, Cachar, Silchar in Title Appeal No.7/2016, thereby dismissing the appeal and affirming the judgment and decree dated 19.12.2015, passed by the learned Munsiff No.2, Cachar, Silchar in T.S. No. Page No.# 3/10

57/2008 with modification.

3) The appellants herein were arrayed as the defendant nos. 1(i), 1(ii), 1(iii) and 2 in the suit, which was instituted by the respondent no.1 herein. The proforma respondent no.2 was arrayed as proforma defendant no.2 in the suit. The suit was for declaration of right, title, interest, recovery of khas possession and for consequential relief in

respect of 1/ th share over land described morefully in the schedule of the plaint. The

respondent no.1 had also prayed for appointment of Commissioner for preparation of allotment of his share under the preliminary decree and for final decree. In the plaint, it was claimed that the suit land was jointly purchased by the respondent no.1 and is other three brothers, all sons of Late Jatindra Chandra Paul. The appellants had contested the said suit by filing written statement and additional written statement, inter alia, claiming that the land was purchased by their predecessor- in- interest, late Jatindra Chandra Paul in the names of his four sons, and it was projected that on amicable settlement, the land fell in the share of appellant nos. 1(1) and 2 and that they had carried out the reconstruction of houses standing on the suit land after the old house was devastated by fire.

4) The learned trial Court had framed the following issues for trial:-

1. Whether there is any cause of action for the suit?

2. Whether the suit is barred by law of limitation?

3. Whether the plaintiff has right, title & interest over 1/4 th portion of the suit land?

4. Whether the plaintiff is entitled to a preliminary decree for partition of the suit land?

5. Whether the plaintiff is entitled to recover khas possession of 1/4 th portion of the suit land?

6. Whether plaintiff is entitled to the decree as prayed for?

7. To what relief(s), if any are parties entitled?

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8. Whether the suit is maintainable?

5) The respondent no.1 had examined himself as PW-1 and had exhibited the registered sale deed no. 1085 dated 23.03.1985 (Ext.1) and the signatures contained therein were marked as Ext. 1(1) to Ext.1(32). The appellant no.4 had examined himself as DW-1 and he did not exhibit any document.

6) In connection with issue nos. 3 and 5, the learned trial Court had arrived at the conclusion that the appellants had admitted execution of Ext.1 sale deed in favour of (1) Raseswar Paul, (2) Jadab Chandra Paul, (3) Keshab Chandra Paul, and (4) Sujit Chandra Paul and, as such, bring one of the vendee, the respondent no.1 had title over the suit land. It was also held that the respondent no.1 was denied his share after 24.02.2008, when fire broke out in their house and the appellants had reconstructed the house at their own expenses. Accordingly, it was held that the respondent no.1 had right, title and interest over 1/ th share in the suit land and was entitled to recovery of possession to the extent of his

1/ th share. In respect of issue no.4, which has wrongly been mentioned as issue no.3 in the

judgment of the learned trial Court, it was held that in this case, the Civil Court had jurisdiction to try the instant partition suit. However, the issue no.4 was decided in the negative and against the respondent no.1 by holding that after amendment, the respondent no.1 did not pay the ad valorem Court fees for partition. In respect of issue no.8, it was held that the suit was partly maintainable for declaration of right, title and interest of respondent

no.1 over 1/4th share but the suit was held to be not maintainable for preliminary decree for

partition because of non- payment of Court fees. All other issues were decided in favour of the respondent no.1. Accordingly, the suit was decreed declaring right, title and interest of

the respondent no.1 over 1/4th share and for recovery of khas possession of the same and for

cost of the suit.

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7) The aggrieved appellants had filed T.A.No. 7/2016, wherein the respondent no.1 had preferred a cross objection in respect of finding in respect of issue no.4 (wrongly mentioned by trial Court as issue no.3). The learned lower appellate Court formulated a point for determination to the effect that whether the decision of the learned Court below in the impugned judgment and decree has been arrived at erroneously and the same suffers from any illegality or perversity.

8) The learned lower appellate Court held that the issue nos. 1, and 2 were rightly decided. Upon discussing the pleadings and evidence, the decision on issue no.3 was also affirmed by holding that the respondent no.1 was entitled to right, title and interest over 1/ th share in the suit land. In respect of issue no.4, it was held that the respondent no.1 had

paid the requisite Court fee in terms of section 7(iv)(c) of the Court Fees Act, 1870 to obtain declaratory decree along with consequential relief, in addition to which the respondent no.1 had also paid separate Court fees of Rs.22/- for declaratory relief. Accordingly, the decision of the learned trial Court on the said issue was varied. In respect of issue no.5, it was held that

the respondent no.1 was entitled to separate possession to the extent of his 1/4th share as

the appellants are now in possession of the suit land. Resultantly, issue nos. 6, 7 and 8 were also decided in favour of the respondent no.1, by holding him to be entitled to consequential relief of recovery of possession and injunction and partition and it was held that the suit was maintainable and it was also held that the respondent no.1 was entitled to a preliminary decree as per Order XX Rule 18(2) of CPC that the Collector was required to determine the share as there was a two storied Assam Type house on the suit land, by means of payment of owelty money, if required keeping in view the partition of the suit land amongst the parties including the respondent no.1 and thereafter the final decree be prepared. The appeal was therefore, rejected and the cross objection by the respondent no.1 was allowed.

9) The learned counsel for the appellants has referred to the substantial questions of law contained in the Memo of Appeal and in support of the same it is submitted that both the learned Courts below had failed to appreciate that the respondent no.1 was Page No.# 6/10

seeking partition of revenue paying estate, and that for grant of such a relief, the Collector was the only competent authority under Chapter-VI of the Assam Land and Revenue Regulation, 1886 (herein after referred to as "ALLR" for brevity). It is also submitted that the provisions of Section 154(1)(d) and (e) of ALLR created a bar for such matters to be adjudicated before the Civil Court. Hence, it is submitted that the judgment and decree passed by both the learned Courts below were vitiated by jurisdictional error and therefore, the decree having been passed by the Court having no jurisdiction was a nullity. The learned counsel for the appellant had deliberated on the powers of the Collector under section 97, 98, 99 and 100 of the ALLR.

10) Although the argument advanced by the learned counsel for the appellant appears to be attractive, but that is not the legal position. In the case of Ka Trily Tariang Vs. U. Resdrikson Lyngdoh & Ors., (1984) 2 GLR 8, by following the ratio laid down in the case of The State of Assam Vs. Sofat Ali, AIR 1967 A&N 3 (DB) , and Dinesh Chandra Sarkar Vs. Harendra Biswas, AIR 1972 Gau 81, this Court had held that the Revenue Court can determine many controversies, including those covered by clauses (a) to (m) of section 154(1) of the ALLR, but the Civil Court is the competent Court to decide right, title and interest to immovable property. It was further held that the civil Court cannot only declare title to the property but it can also adjudicate that the Revenue Officer or the Courts had acted beyond their jurisdiction resulting in failure of justice. Paragraph 7 of the said case of Ka Trily Tariang (supra) is quoted below:-

"7. The question of jurisdiction of the Civil Court in matters covered by clauses (a) to (m) of Section 154(1) of the Regulation came up for consideration in various cases including in The State of Assam vs. Sofat Ali, AIR 1967 A & N 3 (DB). Dealing with Clause (a) of Section 154(1), their Lordships observed:

"This does not debar the civil court from entertaining suits based on title to the property. The plaintiff's case is that the periodic patta in their favour creates a right of the plaintiffs in the property and that right has been affected by the order of the Commissioner."

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In that case as well, the Commissioner acting under Rule 26 of the Settlement Rules had passed an order but the plaintiffs sued the State of Assam claiming his title to the property. The plea of bar u/s. 154(1)(a) was taken. Their Lordships held that the provision did not preclude the civil court to entertain suits based on title to the property. Declaration of title to immovable property is out of bound for the Revenue court.

It can determine many controversies, including those covered by clauses (a) to (m) of Section 154(1) of the Regulation but the civil court is the court competent to decide right, title and interest to immovable property. A civil court cannot only declare title to the property but it can also adjudicate that the Revenue Officer or the courts acted beyond their jurisdiction resulting in a failure of justice. In Dinesh Chandra Sarkar vs. Harendra Biswas, AIR 1972 Gau. 81, this court has held that suit for declaration of right, title and interest is not barred by Section 154(1) of the Regulation. Dealing with the provisions of Section 154 of the Assam Land and Revenue Regulation it was held that the matters within the jurisdiction of the Revenue authorities or courts could be decided by them but no such decision of a Revenue court could take away the jurisdiction of a civil courts, when a person having a right to an asset claimed entitlement to it and sought declaration of his right in the civil court notwithstanding the provisions contained in Sec. 154 (1)(a) of the Regulation."

11) Moreover, para 8 of the case of Sofat Ali (supra), decided by the Division Bench of this Court is quoted below:

8. Lastly it was urged that the suit is not maintainable in view of the provisions of Section 154(1)(a) of the Assam Land and Revenue Regulation which reads as follows:

154(1). Except when otherwise expressly provided in this Regulation, or in rules issued under this Regulation, no Civil Court shall exercise jurisdiction in any of the following matters:

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(a) questions as to the validity or effect of any settlement, or as to whether the conditions of any settlement are still in force."

This does not debar the civil court from entertaining suits based on title to the property. The plaintiff's case is that the periodic patta in their favour creates a right of the plaintiffs in the property and that right has been affected by the order of the Commissioner. This encroachment on the right of the plaintiffs gives them a cause of action to bring a suit for declaration of their right. In the case of Arjad Ali Laskar v. State of Assam, (1995) ILR 7 Assam 201 it was held by a Division Bench of this Court that S. 154(1)(a) of the Assam Land and Revenue Regulation is somewhat loosely worded, but it should not be so broadly constructed as to debar suits involving questions of title from the purview of Civil Courts, merely because the title claimed had its origin in settlement of lands. In fact it is the defendant who is challenging the validity of settlement made in favour of the plaintiffs. In the result, therefore, there is no force in this appeal and it is dismissed."

12) The provisions of section 97 of the ALLR provides for class of persons entitled to partition under the said Regulation. As per sub-section (1) of section 97 of ALR, it is provided that every recorded proprietor of a "permanently settled estate" and every recorded landholder of a "temporarily settled estate" may, if he is in actual possession of the interest, in respect of which he desires partition, claim perfect or imperfect partition of the estate subject to limitations provided therein. In this regard, it is seen that the case of the appellants is that after the fire had damaged their house on 28.02.2008, they had reconstructed the house of their own and the respondent no.1 was not in possession of the suit land, as such, it is the admitted case of the appellants that the condition precedent for the respondent no.1 to claim partition under section 97 of ALLR is not present, as he was not in possession over his interest. In the suit, the respondent no.1 had claimed recovery of possession, which was decreed.

13) That apart, in the present case in hand, the respondent No.1 by proving Page No.# 9/10

Ext.1, had proved his title and, as such, the respondent no.1 has also been able to prove his

entitlement to 1/4th share of the land described in the Schedule of the plaint. Interestingly,

the appellants, who are now referring to the provisions of ALLR, have not exhibited any land revenue records like entry in the jamabandi i.e. record of rights to show that the respondent no.1 was a recorded proprietor of a "permanently settled estate" as defined in sub-section (c) of section 3 of the ALLR or that the respondent no.1 was a recorded proprietor of a "temporarily settled estate" as defined in sub-section (d) of section 3 of the ALLR. Therefore, the second pre-condition to apply for partition before the Collector of the District under section 97 of ALLR has not been proved by the appellants, i.e. the respondent no.1 was a recorded proprietor of the permanently and/or temporarily settled estate.

14) Therefore, on the herein before referred two counts alone, the plea raised by the learned counsel for the appellants fail miserably. In addition, the ratio laid down by this Court in the case of Ka Trily Tariang (supra) appears to have sealed out the plea raised by the learned counsel for the appellants. Thus, the law on the point of bar created under Section 154(1)(d) and (e) of ALLR, having been well settled, no substantial question of law arises for decision in this case. No other plea is either found to be contained in the substantial questions of law as contained in the Memo of Appeal or urged by the learned counsel for the appellants.

15) As a result, this appeal is found to be without merit and is hereby dismissed without cost. No interference is called for in respect of the judgment and decree passed by the learned Courts below. The Registry shall notify the learned Civil Judge No.1, Cachar, Silchar regarding the dismissal of this appeal as provided under Order XLI Rule 11(3) CPC.

16)             Let a decree for dismissal of the appeal be prepared.
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                      JUDGE



Comparing Assistant