Page No.# 1/23 vs Sukhada Das And 15 Ors
2023 Latest Caselaw 147 Gua

                                                        Page No.# 1/23

GAHC010004362010




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

                            Case No. : RSA/32/2010

         KUNJALAL DAS and 2 ORS
         S/O LATE RAMESH CH. DAS.

         2: HEMEN DAS

          S/O LATE RAMESH CH. DAS.

         3: RANJU KUMAR DAS @ RANJAN DAS

          S/O LATE RAMESH CH. DAS
          ALL RESIDENTS OF VILL. BRINDABANHATI
          BARPETA
          IN THE DIST. OF BARPETA
          WITHIN THE STATE OF ASSAM

         VERSUS

         SUKHADA DAS and 15 ORS
         W/O LATE SURENDRA NATH DAS.

         2:KAMAL CH. DAS

          S/O LATE SURENDRA NATH DAS.

         3:ANIL KUMAR DAS

          S/O LATE SURENDRA NATH DAS.

         4:SMTI LEELA DAS

          W/O LATE DHARMA DAS


         5:SMTI MONIKA DAS
                                              Page No.# 2/23


W/O LATE GUNADHAR DAS.

6:SMTI MALATI DAS

W/O LATE GIRISH CH. DAS.

7:ALAKESH DAS

SON OF THE GRAND SON OF LATE PURNA RAM DAS

8:NARAYAN DAS

S/O GRAND SON OF LATE PURNA RAM DAS.

9:SMTI KAMAKHA BALA DAS

W/O LATE RAM CHARAN DAS.

10:BIRENDRA NATH DAS

S/O LATE RAM CHARAN DAS.

11:AKSHAY KR. DAS

S/O LATE RAM CHARAN DAS.

12:KHANINDRA NATH DAS

S/O LATE RAM CHARAN DAS.

13:SMTI ANIMA BHARALI

D/O LATE RAM CHARAN DAS.

14:SMTI GANGA BALA DAS

D/O LATE RAM CHARAN DAS.

15:SMTI SUKUM DAS

D/O LATE RAM CHARAN DAS.

16:SMTI GAYA BALA DAS

D/O LATE RAM CHARAN DAS
ALL R/O VILL. BRINDABANHATI
BARPETA
                                                                     Page No.# 3/23

            IN THE DIST. OF BARPETA
            WITHIN THE STATE OF ASSAM

Advocate for the Appellants    : MR.D DAS

Advocate for the Respondent : MS.T GOSWAMI

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT & ORDER (CAV) Date : 10-01-2023

Heard Mr. K. Sarma, the learned counsel appearing for the appellants and

Mr. P.K.Kalita, the learned senior counsel assisted by Ms. T. Goswami, the

learned counsel appearing on behalf of the respondents.

2. This is an appeal under Section 100 of the Code of Civil Procedure, 1908.

This Court vide order dated 5/3/2010 had formulated three substantial

questions of law which are as follows:-

1. Whether the learned First Appellate Court committed any illegality by reversing the impugned judgment and decree by holding that the plaintiff/respondents had got right, title and interest over the suit property ?

2. Whether the learned First Appellate Court committed any illegality by questioning the legality and validity of the mutation order granted in favour of the defendant in view of the bar imposed by Section 154 (1) (c) of the Assam Land and Revenue Regulation, 1886 ?

3. Whether the learned First Appellate Court committed any error in reversing the findings of the learned Trial Judge regarding local inspection conducted by him ?

Page No.# 4/23

3. This Court had also on 23/6/2022 framed an additional substantial

question of law, which is as follows :-

Whether the plaintiff who are admittedly the tenants of Shyam Ray Bigraha can maintain a suit for right, title and interest in respect to the suit land ?

4. For ascertaining as to whether the aforementioned substantial questions of

law are involved in the instant appeal, this court would like to take note of the

relevant facts which led to the filing of the instant appeal.

5. It has been stated in the plaint that the followers of "Ek-Saran Hari Ram

Dharma" represented by the deity called " Shyam Ray Bigraha" is a landlord of

landed properties covering almost half of the municipal area of Barpeta town

and the land has been settled by the Government under Nisfi-Kiraj Patta No. 2.

These landed properties are being possessed and enjoyed by "Bhakatas" who

are called rayats and the rayats have permanent heritable and transferable right

over their respective plot of lands. During the settlement operation in 1958-65

the Government divided the land under N.K. Patta No. 2 into two different dags

and made settlement of the land in favour of the rayats. The suit in question

relates to a plot of land measuring 10 lechas under N.K. Patta No. 2 and

covered by Revenue Dag No.4532. It has been mentioned that in the settlement

operation of 1958-65, the government settled this 10 lechas of land and thereby

conferred tenancy title upon -(a) Anandi Kalita, (b) Purnaram, (c) Kembol Ram Page No.# 5/23

(d) Chandra Kanta, (e) Jagannath, (f) Ramanoi, (g} Prankrishna, (h)Jagannath,

(i) Nibaran Choudhury, (j) Hemrath Dutta (k) Jibon Chandra, (l) Chandra

Mohan Gayan, (m) Jadab Chandra, (n) Umakanta Bharali, (o) Ranadeb Das, (p)

Ramcharan Das.

6. It has further mentioned that all the rayats named above had expired

except one Ranadeb Das. The plaintiff Nos. 1 to 5 are the legal heirs of Rayat

Late Ananda Kalita and the plaintiff No. 6 to 8 are the legal heirs of Late

Purnaram Das and the plaintiffs 9 to 16 are the legal heirs of rayat Late

Ramcharan Das. It was mentioned that the proforma defendants are the legal

heirs of other rayats. In the revenue records the names of as many as 16

persons were recorded as tenants. It is the case of the plaintiff that neither the

defendants nor their predecessors in interest were recorded tenants of the

suit land at any point of time and had no manner of title over the suit land but

suddenly the defendants started earth filling upon the suit land on 19/11/2005

for which the plaintiff had lodged an FIR at Barpeta P.S. and due to intervention

of the police the defendants could not succeed. However, subsequently on

5/12/2005 the defendants again started filling up the suit land and made an

attempt to cover the suit land by a bamboo fencing. Initially at the intervention

of the local police the defendants stopped from doing anything upon the suit

land, but subsequently as the defendants were taking law in their own hands, a Page No.# 6/23

suit was filed by the plaintiffs seeking inter alia for a decree declaring that the

plaintiffs have right, title and interest over the suit land as rayats of "Shyam Ray

Bigraha", and that the defendants had no title; for confirmation of possession of

the plaintiffs over the said land; for permanent injunction against the

defendants to restrain them from entering into the suit land, from dispossessing

the plaintiffs from the suit land as well for causing disturbance and

inconvenience in any manner whatsoever in the peaceful possession and

enjoyment of the suit land by the plaintiffs ; for cost of the suit and for other

reliefs. It has also been mentioned in paragraph No. 4 of the plaint that the

defendants claimed title over the suit land on the basis of obtaining mutation in

the revenue records.

7. The principal defendants jointly filed a written statement. In the said

written statement various preliminary objections were taken and the statement

made by the plaintiffs were denied. In paragraph No. 7 of the said written

statement the defendants admitted that the suit land measuring 10 lechas

covered by N.K. Patta No. 2 stood in the name of "Shyam Ray Bigraha' the deity

of Baishnava cult propagated by Shri Sankar Deva. It was also admitted that

various lands in the name of the Bigraha were in possession of the Bhakats who

did not pay any revenue for possession of the land like the land belonging to

other religious cult. It has been mentioned that the Bhakats gets khatian over Page No.# 7/23

the land in their possession for which they only have to offer "Khem Khatani" to

the Barpeta Satra commonly known as the Barpeta Kirtan Ghar. It has been

mentioned that the defendants since time immemorial are in possession of the

land covered by Dag No.3515, 3514 as well as the suit land covered by Dag No.

4532 through which they reach the public road situated on the west of the said

land. It was mentioned that Dag No. 4532 is situated on the west of Dag

No.3515. Further on the south of Dag No. 4532 is Dag No. 4533 and on the

north of Dag No.4532 there are three Dags i.e Dag Nos. 4531, 3502 and 4534.

It has also been mentioned that Dag No. 3503 is situated on the north of Dag

No. 3515 and Dag No. 3514 which belongs to the plaintiffs. Further to that, it

has been mentioned that on the north of Dag No.4532 the Sangeet Sevak

Sangha is in occupation of Dag No. 4531 which have been rightly described in

the Schedule of the plaint. It has been mentioned that there is a common

boundary wall in between Sangeet Sevak Sangha and the main defendants but

so far as the portion between Dag No. 4534, 3502 and 4532 are concerned, the

boundary wall is yet to be constructed as the said portion is very low lying and

requires earth filling. It has been mentioned that the plaintiffs' land covered by

Dag No.4534 is also low lying and situated at the back side of their residence.

8. Further to that, it has been stated that the defendants are filling the low

lying portion of the earth filling since last several years and in continuation of Page No.# 8/23

their work, they started earth filling as stated in the plaint. But the plaintiffs in

order to create disturbance and obstruction in their pious activities submitted a

report in the Barpeta Police Station alleging some false statements. In the said

paragraph, it has also been mentioned that the suit land covered by Dag

No.4532 was in possession of the father of the defendants. The father of the

defendants submitted Mutation Case No. 383/68-69 before the then SDC,

Barpeta Circle and by order dated 22/10/1969 the mutation of the entire 10

lechas of land covered by Dag No. 4532 was granted in favour of the father of

defendants. It is under such circumstances, the defendants claimed that on the

basis of inheritance from their father they are in exclusive possession of the said

land in a compact plot including the land covered by Dag No. 3515. The

defendants therefore had claimed that they have right, title and interest and

exclusive possession over the suit land.

9. On the basis of the said pleadings, four issues were framed which are as

under :

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

2. Whether the plaintiffs have right, title, interest and possession over the suit land ?

3. Whether the plaintiffs are entitled for a decree as prayed for in the suit ?

4. To what other reliefs the parties are entitled to ?

Page No.# 9/23

10. On behalf of the plaintiffs there were 5 witnesses who adduced evidence

and the plaintiffs exhibited the certified copy of the draft Chitha for the Dag No.

4532 prepared during the settlement operation in 1958 as Exhibit -1 as well as

the certified copy of the Chitha for Dag No. 4532 as Exhibit- 2. The defendants

on the other hand adduced the evidence of 2 witnesses and exhibited the

certified copy of the Chitha of Dag No. 4532, as Exhibit "Ka"; certified copy of

the rayati khatian as Exhibit "Kha" and the trace map of the suit dag as

Exhibit-"Gha".

11. After completion of the said evidence, the learned Trial court also carried

out a local inspection on 14/8/2006. In terms with the said inspection, a

Memorandum was prepared by the Trial Court. In the said Memorandum, the

Trial Court observed that the suit land is bounded on the --

North by --- Sangeet Sevak Sangha, legal heirs of late Ram Charan Das and late Purna Ram Das;

South -- Dag No.4533;

East- Defendants ;

West -Public road.

12. It was further recorded that the suit land is attached with/sharing

boundary wall with Sangeet Sevak Sangha and half of it is a ditch without wall.

It was recorded that the suit land is in possession of the defendants except the Page No.# 10/23

ditch. It was also observed that it could not be said that the plaintiffs were in

possession of the ditch land which is a part of the suit land. It has also been

observed that in the north east corner of the suit land there is a water tank

belonging to the defendants.

13. The Trial Court vide the judgment and decree dated 18/9/2006 dismissed

the suit. In doing so, the Trial Court while deciding the issue no. 2 came to a

finding that in terms with Ext. "Ka" and Ext. "Kha", the name of the defendant's

father, Ramesh Chandra Das has been recorded/mutated which have been

admitted by the plaintiffs. The Trial court therefore came to the finding that as

the plaintiffs did not challenge the said mutation of the defendants' father as

fraud and collusive in the revenue records the same mutation was deemed to be

correct. On the question of possession, the Trial Court relying upon the

inspection so carried out under Order XVIII Rule 18, presumed that the plaintiffs

failed to prove their case to the extent of right, title, interest and possession on

the suit land and accordingly therefore decided the issue No. 2 against the

plaintiffs. The remaining issues being dependent on issue No. 2 were also

decided against the plaintiffs.

14. Being aggrieved and dissatisfied, the plaintiffs preferred an appeal before

the Court of the Civil Judge Barpeta which was registered and numbered as Title Page No.# 11/23

Appeal No. 45/2006. The First Appellate Court after taking into account the

various grounds of objections taken in the Memo of Appeal framed a point of

determination - "whether the impugned judgment and decree passed by the

Trial Court are tenable in the eye of law; and whether the appellant got made

out a case to justify interference with the same or not ?" The First Appellate in

deciding the said point for determination considered the decision of the trial

Court as regards the issue Nos. 2, 3 and 4.

15. The First Appellate Court after taking into account the evidence on record

observed that the Trial Court had erred in deciding the issue nos. 2, 3 and 4.

Accordingly, the appeal was allowed thereby setting aside the judgment and

decree passed by the Trial Court. The suit of the plaintiffs was decreed declaring

the plaintiffs' possessory right, title and interest over the suit land as rayats of

Shyam Ray Bigraha, confirming possession of the plaintiffs thereon as well for

permanent injunction granted against the defendants to restrain them from

entering into the suit land, from dispossessing the plaintiffs therefrom as well as

from causing disturbance and inconvenience in the peaceful possession and

enjoyment of the suit land by the plaintiffs.

16. Being aggrieved and dissatisfied, the principal defendants had preferred

the instant appeal under Section 100 of the Code of Civil Procedure. As already Page No.# 12/23

noted herein above, this Court vide orders dated 5/3/2010 and 23/6/2022

formulated certain substantial questions of law in terms with Section 100(4) of

the Code of Civil Procedure.

17. In the backdrop of the above, let this Court take into consideration as to

whether the substantial questions of law so formulated are substantial questions

of law involved in the instant appeal.

18. This Court have heard the learned counsels for the Appellants as well as

the respondents at length and have also perused the materials on record

including the Lower Court records.

19. As regards the first substantial question of law so formulated, this Court

is of the opinion, that the same under no circumstances can be said to be a

substantial question of law involved in the instant appeal inasmuch as "a

substantial question of law" not only means a substantial question of law of

general importance but also substantial question of law arising in a case as

between the parties. It is well settled that in the context of Section 100 of the

CPC, any question of law which affects a final decision in a case is a substantial

question of law between the parties. It is said that the substantial question of

law arises when a question of law which is not finally settled arises for

consideration in a case. This statement has to be understood in the correct Page No.# 13/23

perspective inasmuch as where there is a clear enunciation of law and the lower

court have followed or rightly applied, obviously the case will not be considered

as giving rise to a substantial question of law even if the question of law may be

one of general importance. On the other hand, if there is a clear enunciation of

law by this Court or by the Supreme Court, but the Lower Court had ignored or

misinterpreted or misapplied the same and correct application of the law as

declared or enunciated by this Court or by the Supreme Court would have led to

a different decision, the appeal then can be said to involve a substantial

question of law as between the parties. It is also well settled that where there is

an enunciation of law by this Court or by the Supreme Court and the same has

been followed by the Lower Court and if the appellant is able to persuade this

Court that the enunciated legal position needs reconsideration, alteration,

modification or clarification or that there is a need to resolve an apparent

conflict between two view points, it can be said that a substantial question of

law arises for consideration.

20. In the backdrop of the above, the question as to whether the learned First

Appellate Court committed illegality in reversing the impugned judgment and

decree by holding that the plaintiffs/respondents have got right, title and

interest over the suit property under no circumstances can be a substantial

question of law. It may at best be a ground of objection in an appeal but Page No.# 14/23

certainly not a substantial question of law.

21. The second substantial question of law is as to whether the learned First

Appellate court committed an illegality by questioning the legality and validity

of the mutation order granted in favour of the defendants in view of the bar

imposed under by Section 154(1) (c) of the Assam Land And Revenue

Regulation, 1886 (for short 'the Regulation of 1886"). For understanding as to

whether the said substantial question of law is involved in the instant appeal or

for that matter would change the course of the decision, it is relevant to take

note of what is Section 154 (1) (c) of the Regulation of 1886.

22. Section 154 of the Regulation of 1886 stipulates certain matters which are

exempted from the cognizance of the Civil Court. Amongst the many as

stipulated in Clauses (a) to (n) of Sub Section (1) of Section 154, Clause (c)

stipulates that in respect to matters pertaining to the formation of record of

rights or the preparation, signing or alteration of the documents contained

therein, the same is outside the scope of the jurisdiction to be exercised by the

Civil Court. In the instant case, admittedly there is an order passed by the SDC

dated 22/10/1969 whereby the mutation of the entire 10 lechas of land covered

by Dag No. 4532 was granted in favour of the father of the defendants.

23. Now the question arises as to what is the effect of the said order. It is well Page No.# 15/23

settled that an entry in the revenue records does not confer title on a person

whose name appears in the record of rights. It is also well settled that entries in

the revenue records and the jamabandi have only fiscal purpose i.e payment of

revenue and no ownership is conferred on the basis of such entries. As held by

the Supreme Court in the case of Jathu Ram Vs. Hakam Singh reported in

(1993) 4 SCC 403, so far as title on property is concerned it can only be

decided by the competent Civil Court. The effect of the above would be that the

order dated 22/10/1969 passed by the SDC, Barpeta Circle thereby granting

mutation of 10 lechas of land covered by Dag No. 4532 in favour of the

predecessors in interest of the defendants would not confer any title upon the

predecessors in interest of the defendants or the defendants. Under such

circumstances the second substantial question of law so formulated by this

Court in the opinion of this Court is not a substantial question of law involved in

the second appeal in as much as the bar to Section 154 (1) (c) of the

Regulation of 1886 would under no circumstances effect on the decision

rendered in the instant case. Further to that, it is no longer res integra that

Section 154(1) (c) of the Regulation of 1886 does not bar the suit for

declaration of title and injunction. Under such circumstances, this court is of the

opinion that the second substantial so formulated is not a substantial question

of law involved in the instant appeal.

Page No.# 16/23

24. The third substantial question of law so formulated vide the order dated

5/3/2010 pertains as to whether the First Appellate Court committed any error

in reversing the finding of the learned Trial Judge regarding the local inspection

conducted by him. In order to appreciate the said substantial question of law so

formulated, it is relevant to take note of as to what is the local inspection so

carried out. In the anterior of the judgment, this court has referred to the local

inspection so carried out. The same was done in terms with order XVIII Rule 18

of the Code. Now the question which arises as to what is the scope and ambit

of the inspection carried out under Order XVIII Rule 18 of the Code. A plain

reading of the said Rule would indicate that such a Memorandum is only to be a

part of the record in the suit and the legislature did not say that it has to be

treated as evidence in the suit. At this stage, if this Court refers to the

provisions of Order XXVI Rule 10(2), 12(2), it would be seen that the report of

the Commissioner shall be evidence in the suit. Therefore, it is obvious that

such Memorandum on the notes of inspection based on the observations of the

Judge cannot be treated as evidence in the suit or proceedings and cannot be at

par with any evidence because in that case the Judge himself would be a

witness and the party against whom the Memorandum or the notes go would

not have the opportunity of examining the Judge. In other words, in using the

notes as evidence, the Judge would render himself as a witness in the case Page No.# 17/23

which cannot be countenanced under any system of law. The question therefore

is what is the purpose of empowering the Court to inspect the site. It is now

well settled that this power has been conferred upon or with a view to enable it

the Judge to understand and appreciate the evidence on record. Just for

example, in a given case the Judge may not be in a position to properly

understand and appreciate the evidence on record. There may be certain cases

where the Judge may not be in a position to properly understand and

appreciate the oral and documentary evidence on record without himself seeing

the situation on the spot. It is to this limited extent that the Court is permitted

to see the spot and draw its notes. This power so conferred upon the Court

therefore, cannot extend to enable the court to rely solely or wholly on its

observations disregarding the evidence which is on record.

25. This Court in the case of President, Bharat Sevashram Sangha Vs.

Secretary to the Government of Meghalaya and Ors. reported in (2013)

3 GLR 586 had the occasion to deal with the provisions of Order XVIII Rule 18

and observed the very purpose of this particular provision is to help the Court to

understand the evidence brought on record by the witness of the parties before

the Court and upto that limited extent the Court can conduct inspection of any

property or thing connected with the property. Paragraphs 16, 17 and 18 being

relevant are quoted herein below : -

Page No.# 18/23

"16. In order to appreciate the arguments, advanced by the learned counsel for the parties to know which side of the story is true. I find it necessary to appreciate the provisions of law in the light of decision, referred to by the parties before this court. For ready reference, the provision of Order 18 Rule 18 of the CPC is reproduced below :-

"18. Power of court to inspect - The Court may at any stage of a suit inspect any property or thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit."

17. On going through the aforesaid provision of law, I have found that the very purpose of the order 18 Rule 18 of the CPC is to help the Court to understand well the evidence brought on record by the witnesses of the party (ies) before the Court and up to that limited extent, the court can conduct inspection of any property or thing connected with the suit. Therefore, at any stage of the suit, in my considered opinion, means anytime after putting in evidence on record by the parties of anyone of them.

18. Here it needs to be remembered that if a Judge is allowed to conduct inspection of such property/thing even before recording the evidence then there is every possibility of such a Judge becoming witness to any of the parties to the proceeding before him. But such an eventuality has strongly been deprecated by the provisions of law which makes such inspection possible. In that view of the matter, a Judge cannot be allowed to make inspection of the suit land even before recording of evidence."

26. In the backdrop of the above, let this Court take into consideration the

judgment of the Trial Court and more particularly paragraph No. 12. Reference

has been made in the said paragraph to the effect that from the evidence of Page No.# 19/23

PW-2 and PW-3 there is admission that the defendants cultivated some

vegetables on the suit land and it is under such circumstances, to clarify the

same, the Trial Court inspected the suit land. However, in the evidence of PW-2

and PW-3 the said witness have categorically stated in their evidence-in-chief

that the plaintiffs were possessing their suit land. It does not appear from the

said evidence that in their cross examination, the PW-2 and PW-3 had admitted

that the defendants were cultivating vegetables on the suit land. Though the

PW-3 in his cross-examination had stated that in a small area the defendants

were cultivating vegetables. It is clear that there is no mention whatsoever that

the said cultivation by the defendants is on the suit land. In the Memorandum

so drawn by up by the trial court, he has observed the following:-

"the suit land attached with/sharing boundary wall with Sangeet Sevak Sangha and ½ of it is ditch without wall. The suit land is in possession of the defendants except the ditch. However, it also cannot be said that the plaintiffs are in possession of the ditch land which is a part of the suit land"

27. The learned First Appellate Court interfered with the said finding of the

learned Trial Court on the ground that the Trial Court have decided the issue of

possession solely on the basis of such personal local inspection substituting the

evidence led by the parties. It was further observed by the First Appellate Court

that the Trial Court stated in its finding that by evaluating/looking from the 4

corners of the ditch land which is a part of the suit land falls undoubtedly within Page No.# 20/23

the possession of the defendants and the Trial Court presumed that the plaintiffs

failed to prove its case to the extent of right, title, interest and possession over

the suit land. It was observed by the First Appellate Court that the Trial Court

had simply presumed the possession in favour of the defendants on the basis of

his local inspection without appreciating the evidence on record at all. The First

Appellate Court also took into consideration that the plaintiffs have been able to

prove their right, title and interest over the suit land and therefore, unless the

defendants could show a better title to remain in possession of the defendants,

the possession of the defendants would be taken as constructive possession of

the plaintiff and as such it interfered with the findings of the Trial Court on the

ground that the said finding was palpably erroneous and grossly perverse.

28. The learned counsel for the appellant however have not been able to

show any perversity in the findings of the First Appellate Court by showing that

the First Appellate Court had taken or have not taken any particular material

fact which would otherwise have changed the course of the decision. Be that as

it may, this Court would also like to take note of the judgment of the Supreme

Court in the case of Maria Margarida Sequeria Fernandes Vs. Erasmo

Jack De Sequeria reported in (2012) 5 SCC 370 and would like to refer to

paragraphs 61 to 67 which are quoted herein below. :-

Page No.# 21/23

"61. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question.

62. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner.

63. Possession is important when there are no title documents and other relevant records before the court, but, once the documents and records of title come before the court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum.

64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the courts.

65. A suit can be filed by the title-holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession.

66. A title suit for possession has two parts--first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.

67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession."

29. From a perusal of the above quoted paragraphs, it would transpire that in

an action for recovery of possession of immovable property upon the legal title

to the property being established, the possession or occupation of the property

by a person other than the holder of the legal title will be presumed to have Page No.# 22/23

been under and in subordination to the legal title and it will be for the person

resisting the claim for recovery of possession or claiming a right to continue in

possession to establish that he has such right. Applying the said ratio in the

instant case, once the right, title and interest of the plaintiffs have been held to

be established, the defendants' possession would be a possession as a

permissive occupier subservient to the title of the plaintiffs. Consequently

therefore the third substantial question of law which relates to an error in

reversing the first finding of the learned Trial Judge regarding local inspection

being conducted by him in the opinion of this Court would not change the

course of the decision rendered in the instant case by the First Appellate Court

and consequently the same cannot be said to be a substantial question of law

involved in the instant appeal.

30. As regards the additional substantial question of law so framed as to the

whether the plaintiffs who admittedly are tenants of Shyam Roy Bigraha can

maintain a suit for right, title and interest in respect to the suit land. It is

relevant to take note of that 16 rayats were settled as is evident from Ext-1 and

2 in the settlement operation of 1958-65. The plaintiffs and the Proforma

Defendants' are the successors interest of the said rayats. Accordingly, they

have a right to claim a decree as regards the right, title and interest over the

suit land as rayats of Shyam Roy Bigraha and that the defendants did not have Page No.# 23/23

any title. Under such circumstances, the additional substantial question of law

so formulated on 23/3/2022 cannot be said to be a substantial question of law

involved in the instant appeal.

31. In view of the above observations and directions, the instant appeal

stands dismissed.

32. Send back the LCR.

JUDGE

Comparing Assistant