Gauhati High Court
Page No.# 1/16 vs Durgeswar Pathak And Ors on 17 January, 2023
Page No.# 1/16
GAHC010121962012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/159/2012
DHANESWAR PATHAK and 3 ORS
S/O LATE DHIRESWAR PATHAK, R/O ABHAYAPURI TOWN, WARD NO. 2,
P.O. and P.S. ABHAYAPURI, DIST. BONGAIGAON, ASSAM.
2: SMTINAMITA PATHAK
W/O SRI DHANESWAR PATHAK
R/O ABHAYAPURI TOWN
WARD NO. 2
P.O. and P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM.
3: SURAJIT PATHAK
S/O SRI DHANESWAR PATHAK
R/O BHAYAPURI TOWN
WARD NO. 2
P.O. and P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM.
4: SMTI PROBHA PATHAK
WD/O LATE DHIRESWAR PATHAK
R/O ABHAYAPURI TOWN
WARD NO. 2
P.O. and P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
VERSUS
DURGESWAR PATHAK and ORS
Page No.# 2/16
S/O LATE RAMESWAR PATHAK, R/O ABHAYAPURI TOWN, P.O. and P.S.
ABHAYAPURI, DIST. BONGAIGAON, ASSAM.
2:SMTI KAMALA PATHAK
WD/O LATE NANDESWAR PATHAK
R/O ABHAYAPURI TOWN
P.O. and P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM.
3:SMTI. CHANDAMIK PATHAK
D/O LATE NANDESWAR PATHAK
RO ABHAYAPURI TOWN
P.O. and P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM.
4:HIMANTA PATHAK
S/O LATE NANDESWAR PATHAK
R/O ABHAYAPURI
DIST. BONGAIGAON
ASSAM.
5:PULUKANANDA PATHAK
S/O LATE NANDESWAR PATHAK
R/AO ABHAYAPURI TOWN
P.O. and P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM.
6:ARUNJYOTI PATHAK
S/O LATE NARESWAR PATHAK
R/O ABHAYAPURI TOWN
P.O. and P.S.ABHAYAPURI
DIST. BONGAIGAON
ASSAM.
7:SMTI PROMILA DAS
W/O SRI KUMUD DAS
R/O PUB SARANIA BY LANE NO. 4
P.O. GAUHATI
P.S. PALTAN BAZAR
Page No.# 3/16
DIST. KAMRUP
ASSAM.
8:SMTI BINA DAS
WD/O LATE SAILEN DAS
R/O BALADMARI
NEAR BIHU FIELD
P.O. BALADMARI
P.S. GOALPARA
DIST. GOALPARA
ASSAM.
9:SMT. HIRON BAIDYA
W/O LATE KHAGEN BAIDYA
R/O ABHAYAPUR TOWN
WARD NO. 3
ANANTA DUTTA PATH
P.O. and P.S ABHAYAPURI
DIST. BONGAIGAON
ASSAM.
10:SMTI BINAPANI PATHAK
WD/O LATE NARESWAR PATHAK
R/O ABHAYAPURI TOWN
WARD NO. 3
P.O. and P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM.
11:SMTI. BHYASANTI PATHAK
WD/O LATE NARESWAR PATHAK
R/O ABHAYAPURI TOWN
WARD NO. 3
P.O. and P.S.ABHAYAPURI
DIST. BONGAIGAON
ASSAM
Advocate for the Petitioner : MR. G. N. SAHEWALLA
; MS. S. TODI
Advocate for the Respondent : MS. R. CHOUDHURY
Page No.# 4/16
Linked Case : RSA/204/2012
DURGESWAR PATHAK and 5 ORS.
S/O LATE. RAMESWAR PATHAK
2: SMT. KAMALA PATHAK
W/O NANDESWAR DAS
3: SMT. CHANDAMIKA PATHAK
D/O NANDESWAR DAS
4: HIMANTA PATHAK
S/O NANDESWAR PATHAK
5: PULUKANANDA PATHAK
S/O NANDESWAR PATHAK
6: ARUN JYOTI PATHAK
S/O NARESWAR PATHAK
ALL ARE RESIDENTS OF ABHAYPURI TOWN
WARD NO. 2
P.O. and P.S. ABHAYPURI
DIST. BONGAIGAON
ASSAM.
VERSUS
DHANESWAR PATHAK and ORS.
S/O LATE DHIRESWAR PATHAK
2:SMT.NOMITA PATHAK
W/O SRI DHANESWAR PATHAK
3:SURAJIT PATHAK
S/O SRI DHANESWAR PATHAK
4:SMT. PROBHA PATHAK
W/O LATE DHIRESWAR PATHAK
ALL ARE RESIDENTS OF ABHAYPURI TOWN
WARD NO. 2
P.O. and P.S. ABHAYPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
5:BIPUL DAS
SON 40 YEARS
Page No.# 5/16
R/O PUB SARANIA
BYE LANE NO. 4. ON THE DEATH OF SMT. PROMILA DAS
W/O SRI KUMUD NARAYAN DAS
D/O LATE RAMESWAR PATHAK
HER LEGAL HEIRS.
6:SMTI LATAMONI DAS
DAUGHTER 26 YEARS. ADD OF BOTH ARE C/O SMTI HIRAN BAIDYA
W/O SRI KHAGEN BAIDYA
ABHAYAPURI TOWN
ANANTA DUTTA PATH
WARD NO. 3
P.O. and P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 7833844
7:SMT. BINA DAS
W/O LATE SAILEN DAS
D/O LATE RAMESWAR PATHAK
R/O BALADMARI
NEAR BIHU FIELD
P.O. BALADMARI
P.S. GOALPARA
DIST. GOALPARA
ASSAM
PIN
8:SMT. HIRON BAIDYA
W/O SRI KHAGEN BAIDYAD/O LATE RAMESWAR PATHAK
9:SMT. BINAPANI PATHAK
W/O LATE NARESWAR PATHAK
10:SMT. BHYASATI PATHAK
W/O LATE NARESWAR PATHAK. ADD OF NOS 8
9 and 10 IS ABHAYAPURI TOWN
WARD NO. 3
P.O. and P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
------------
Advocate for petitioner : MS. R. CHOUDHURY
Advocate for respondent : MR. G. N. SAHEWALLA
: MS. S. TODI
Page No.# 6/16
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Date : 17-01-2023
Heard Mr. G. N. Sahewalla, the learned Senior counsel assisted by Ms. S.
Todi, the learned counsel appearing on behalf of the appellants in RSA
No.159/2012 as well as respondents in RSA No.204/2012 and Ms. R. Choudhury,
the learned counsel appearing on behalf of the respondents in RSA No.159/2012
and appellants in RSA No.204/2012.
2. Both the appeals i.e. RSA No.159/2012 and RSA No.204/2012 arises out of
a common judgment and decree dated 10.05.2012 passed in Title Appeal
No.02/2009 whereby appeal was allowed thereby setting aside the judgment
and decree dated 19.12.2008 passed in Title Suit No.17/2007. Being aggrieved,
the defendants in Title Suit No.17/2007 have preferred RSA No.159/2012 and
this Court vide an order dated 29.08.2012 have admitted the said appeal by
formulating two substantial questions of law which are:
(1) Whether the judgment of the learned Lower Appellate Court is vitiated
because of perverse appreciation of the materials on record?
(2) Whether the judgment of reversal of the learned Appellate Court below is
in accord with Order XLI Rule 31 of the CPC.
3. The plaintiffs who were the appellants in Title Appeal No.02/2009 in spite
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of the fact that the said appeal was decided in favour of the plaintiffs thereby
decreeing the suit in favour of the plaintiffs by declaring their right, title and
interest over the suit land and there was a direction to the Revenue Authority to
correct the revenue records in the name of the plaintiffs but however as the
First Appellate Court did not grant the decree for recovery of possession granted
in favour of the plaintiffs by evicting the defendants, their agents, servants,
workmen etc. from the suit land, the Second Appeal being RSA No.204/2012
was filed.
4. This Court vide an order dated 09.10.2012 had admitted the said Second
Appeal by formulating a substantial question of law which reproduced as
hereinunder:
"Whether the judgment of the First Appellate Court is perverse for its not
deciding the Issue No.5?"
5. For deciding as to whether the substantial questions of law so formulated
by this Court vide the orders dated 29.08.2012 and 09.10.2012 are involved in
the instant appeals, it is required to take note of the brief facts of the instant
case. For the purpose of convenience, the parties herein are referred to in the
same status as they stood before the Trial Court.
6. The appellants in RSA No.204/2012 as plaintiffs had instituted a suit
claiming declaration of their right, title and interest over the suit land; for a
decree for delivery of possession of the suit land in favour of the plaintiffs by
evicting the defendants, their agents, servants, workmen etc. from the suit
land; for permanent injunction restraining the defendant No.1, his agents,
servants, workmen etc. from selling/transferring the suit land or any part of it
during the pendency of the suit; for a declaration that the order of the S.O.,
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Goalpara and Bongaigaon District passed on 08.04.2005 in Appeal Case No.2/05
is illegal and the same is not binding upon the plaintiffs, for cost of the suit etc.
7. From a perusal of the plaint, it transpires that the plaintiffs and the
proforma defendants are the successor-in-interest of one Rameswar Pathak
(since deceased). A plot of land measuring 0 Bigha 8 Kathas 0 Lechas covered
by Tauzi No.210 of 1364 B.S. stood in the name of Late Rameswar Pathak under
Khatian No.679, Dag No.1242 after the first settlement operation held in 1959-
1962. It was the case of the plaintiffs that the said land was a self acquired land
and was possessed by Late Rameswar Pathak by paying land revenue thereon.
In the year, 1965-1967, Late Rameswar Pathak had constructed an Assam type
house in the suit land. He had also rented out one of the houses to one Shri
Krishna Marowary but in the year 1977, the tenant had vacated the house. In
the year, 1978, Late Rameswar Pathak permitted the defendant No.1 to possess
the rented house with a condition to vacate the land after completion of the
construction of his own house. Unfortunately on 03.08.1983, Late Rameswar
Pathak had expired leaving behind the plaintiffs. It also appears from the plaint
that in the year 1994, the suit land was mutated in the name of the plaintiffs
and a kutcha patta was also issued in their favour and they had been paying the
Government revenue. It was alleged in the plaint that subsequent to the death
of Late Rameswar Pathak, the defendant No.1 had secretly mutated his name in
the suit land in the year 1994. The plaintiffs upon coming to learn about the
said mistake being done by the defendant No.1 filed an objection before the
A.S.O. Srijangram. The A.S.O. Srijangam vide an order dated 07.09.2004 passed
in Misc. Case No.01/04-05 had deleted the name of the defendant No.1 from
the revenue records and thereupon re-inserted the name of the plaintiffs.
Accordingly, the record of rights was rectified on 25.11.2004. It further appears
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that an appeal was preferred by the defendant No.1 before the S.O. Goalpara.
The S.O. Goalpara vide an order dated 08.04.2005 in Appeal Case No.2/05 set
aside the order dated 07.09.2004 passed in Misc Case No.1/04-05 and upheld
the order dated 25.10.1994 passed by the Assistant Settlement Officer whereby
the name of the defendant No.1 was inserted. It is under such circumstances,
that the plaintiffs had instituted the instant suit claiming for the reliefs as above
mentioned.
8. On the other hand, the defendants filed their written statement taking the
various preliminary objections as regards the maintainability of the suit. On
merits, the defendants had stated that originally the suit land was a Tauzi land
of Late Dhireswar Pathak, predecessor-in-interest of the defendant Nos. 1 and 4
and he has been possessing the land till his death by constructing two storied
Assam type house and other buildings. It was further stated that Late Dhireswar
Pathak was running a printing press and a grocery shop there and was residing
on the suit land with his family. Late Dhireswar Pathak died in the year 1943
and thereupon his wife alongwith his kids shifted her residence to Dharmapur. It
was the case of the defendants in their written statement that at that time the
properties of Late Dhireswar Pathak was looked after by Late Rameswar Pathak
being the sole adult male member of the family. It was further stated that Late
Rameswar Pathak taking advantage of the fact that he was looking after the
properties had inserted his name against the Tauzi land and thereafter got the
khatian issued in his favour thereby depriving the rights of the defendant No.1.
It was the specific case of the defendants in their written statement that the suit
land was not the self-acquired property of Late Rameswar Pathak rather it was
the self-acquired property of Late Dhireswar Pathak.
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9. On the basis of the above pleadings as many as 10 issues were framed
which are reproduced hereinunder:
1. Whether the plaintiffs have cause of action to institute the suit?
2. Whether Late Rameswar Pathak, predecessors of the plaintiffs was the absolute
owner and exclusive possessor of the suit land?
3. Whether the plaintiffs have acquired right, title, interest and possession over the
suit land?
4. Whether the defendants are permissive possessor of the suit land?
5. Whether the defendants are liable to be evicted from the suit land?
6. Whether the suit is barred by law of limitation?
7. Whether Late Dharmeswar Pathak constructed the two storied Assam Type
building and other building on the suit land?
8. Whether the plaintiffs are entitled to get decree as prayed for?
9. Whether the suit is barred by law of waiver, estoppel and acquiescence?
10. What are relief(s) to which the plaintiffs are entitled to under law and equity?
10. On behalf of the plaintiffs, 4 witnesses were examined and 12 documents
were exhibited. The details of the said exhibited documents are as hereinunder:
Exhibit-1: Recording of Late Rameswar Pathak's name as Tauzi of Bijni State dated
10.02.1964.
Exhibit-2 & Exhibit-3: Land Revenue Receipts of payment of Tauzi, Mouza by Late
Rameswar Pathak.
Exhibit-4: The final Khatian issued by the Assistant Revenue and Settlement Officer,
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Abhayapuri, Goalpara in favour of Late Rameswar Pathak.
Exhibit-5: Kutcha Patta issued in favour of the plaintiffs.
Exhibit-6: Jamabandi of Dag No.1243/247 of Patta No.916/337 wherein the name of
the defendant No.1 was shown as struck off and the names of the plaintiffs were
inserted.
Exhibit-7: The order dated 07.09.2004 passed in Misc Case No.1/04-05 whereby the
name of the defendant No.1 was deleted and the name of the plaintiffs were
inserted.
Exhibit-8: The certificate issued by the Assistant Settlement Officer in favour of the
plaintiffs showing that their names have been recorded against the suit land.
Exhibit-9: Land Revenue paying receipt issued in favour of the plaintiffs.
Exhibit-10: Money Receipt issued in favour of Arun Jyoti Pathak, plaintiff No.4.
Exhibit-11: Certificate issued by the Sub-Divisional Officer, North Salmara, Abhayapuri
certifying that the plaintiffs are the legal heirs of Late Rameswar Pathak.
Exhibit-12: Order passed by the Settlement Officer, Goalpara and Bongaigaon in
Appeal Case No.2/05 whereby the order dated 07.09.2004 passed in Misc. Case
No.1/04-05 was set aside thereby restoring the order dated 25.10.1994 by the
Assistant Settlement Officer in favour of the defendant No.1.
11. On behalf of the defendants also there were 4 witnesses who adduced
evidence. There was only one document which was adduced as documentary
evidence and marked as Exhibit-A which is a declaration under Section 4 of the
Press and Regulation of Books Act, 1967 by the defendant No.1 wherein he had
mentioned that his father Late Dhireswar Pathak had started the press known as
Abhaya Printing Press at Abhayapuri and after his father's death, his cousin Late
Rameswar Pathak ran the press and as Rameswar Pathak was ill, he was
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running the press.
12. The Trial Court vide a judgment and decree dated 19.12.2008 dismissed
the suit by deciding all the issues in negative except issue Nos. 1 and 7.
13. Being aggrieved and dissatisfied, the plaintiffs as appellants preferred an
appeal before the Court of the District Judge, Bongaigaon which was registered
and numbered as Title Appeal No.02/2009. The said appeal was sent to the
Court of the Additional District Judge (FTC) Bongaigaon for disposal. The First
Appellate Court upon framing the various points for determination, decided the
appeal in favour of the plaintiffs thereby allowing the appeal and declaring that
the plaintiffs have right, title and interest over the land and the Revenue
Authorities were directed to correct the revenue records in the names of the
plaintiffs. However, in doing so, the First Appellate Court did not pass any
decree for delivery of possession as sought for in the plaint. In fact, an issue as
to whether the defendants were liable to be evicted from the suit land i.e. Issue
No.5 was framed which have not been taken into consideration by the First
Appellate Court. It is under such circumstances, both the appeals have been
preferred by the defendants as well as by the plaintiffs and this Court vide the
orders dated 29.08.2012 and 09.10.2012 has formulated the substantial
questions of law as quoted hereinabove. Let this Court first take up RSA
No.159/2012 to ascertain as to whether the two substantial questions of law so
formulated are involved in the instant appeal.
14. The first substantial question of law so formulated vide the order dated
29.08.2012 is as to whether the judgment of the learned Lower Appellate Court
is vitiated because of perverse appreciation of the materials on record. On the
face of it, the said substantial question of law so formulated in the opinion of
Page No.# 13/16
this Court is vague inasmuch as there is no mention in the said substantial
question of law so formulated as to on what basis it was contended that there
was perverse appreciation of materials on records which have not been
considered. Formulating a substantial question of law in terms with Section
100(4) of the Code is based upon a satisfaction that a substantial question of
law is involved in the case and as such it is the opinion of this Court while
formulating the substantial question of law, it is the requirement of law that the
substantial question of law is specific to the case involved. With due respect to
the order dated 29.08.2012, this Court would observe that the said substantial
question of law formulated is too vague that too without mentioning which
materials on record have not been considered for which it was contended that
judgment of the First Appellate Court suffers from perversity.
15. Be that as it may, during the course of the hearing, this Court made a
specific query upon the learned Senior counsel appearing on behalf of the
appellants in RSA No.159/2012 as to what materials have not been taken into
consideration by the First Appellate Court which would have change the course
of the decision, if the said material is taken into consideration.. The learned
Senior counsel has submitted that the first Appellate Court failed to consider
Exhibit-12 in the proper perspective inasmuch as vide Exhibit-12, the Settlement
Officer has duly set aside the order dated 07.09.2004 passed in Misc. Case
No.1/04-05 thereby restoring the order dated 25.10.1994. He submitted that if
the said document would have been considered in the proper perspective, the
decision would have been rendered in favour of the defendants. This Court has
perused Exhibit-12. It is an order passed by the Settlement Officer in Appeal
Case No.2/05 whereby the order dated 07.09.2004 passed by the Assistant
Settlement Officer was interfered with on the ground of some irregularities. The
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reasons given in the said order were:
(i) The Appellate Authority can cancel a mutation during the appeal
but the same ranking Officer should not cancel the order of his rank. He
should refer the case matters to the Appellate Authority if any
irregularities is observed in the proceedings of the Misc. Case.
(ii) The D/L is valuable land situated in Abhayapuri Town having a
possession of the Appellant but not the respondent. The way of getting
the D/L by the appellant is vivid one but not taken forcefully.
16. From a perusal of the grounds, the reasons for setting aside the said
order, this Court is of the opinion that the Settlement Officer had merely on the
ground that the A.S.O. has reviewed its earlier order and thereupon on the basis
of possession, has restored the order dated 25.10.1994 thereby setting aside
the order dated 07.09.2004. The affect of the said order is merely for granting
of mutation and it is a well settled principle of law that granting of mutation
neither confers nor takes away the rights of a person. Mutation is only done for
the purpose of revenue. Under such circumstances, this Court is of the opinion
that even non-consideration of Exhibit-12 would not have change the course of
the decision thereby leading to perversity in the decision of the First Appellate
Court. It is however, relevant to take note of that the First Appellate Court have
duly taken note of the said order dated 08.04.2005 more particularly, in
paragraph 14(h) and as such under no circumstances, the contention of
therebeing any perversity in the judgment for not considering the order dated
08.04.2005 (Exhibit-12) in the proper perspective can be a substantial question
of law involved in the instant appeal. Under such circumstances, the first
substantial question of law as framed in the order dated 29.08.2012 cannot be
said to be substantial question of law involved in the instant appeal.
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17. The second substantial question of law so formulated vide the order dated
29.08.2012 is intrinsically connected with the substantial question of law as was
framed vide the order dated 09.10.2012 in RSA No.204/2012. This is so for the
reason that in terms with Order XLI Rule 31 of the Code, it is the duty of the
First Appellate Court more particularly in terms with Order XLI Rule 31(d) that
the Appellate Court shall state where the decree in appeal is reversed or varied,
the relief to which the appellant is entitled to. From a perusal of the judgment
passed by the First Appellate Court, it appears that Clause (a), (b) and (c) of
Order XLI Rule 31 has been duly taken care of however while granting the
reliefs in terms with Clause (d) of Order XLI Rule 31, the First Appellate Court in
spite of coming to a finding and granting the relief that the plaintiffs are entitled
to right, title and interest over the suit land did not without any reasons
whatsoever grant the relief of recovery of possession to the plaintiffs which was
consequential upon declaration so sought for by the plaintiffs that too when
there was no reason that the defendants had a better claim to remain in
possession. Under such circumstances, this Court holds that the substantial
question of law so framed in RSA No.204/2012 dated 09.10.2012 is a substantial
question of law involved in the instant appeal.
18. It is also relevant to take note of that though the second substantial
question of law so framed on 29.08.2012 i.e. "Whether the judgment of the
reversal of the learned Appellate Court is in accord with Order XLI Rule 31 of
the CPC" is a substantial question of law involved in the instant appeal inasmuch
Clause (d) of Order XLI Rule 31 was not followed. The same does not require
any interference from this Court in favour of the defendants as the said
substantial question of law would not alter the decision in favour of the
defendants. However, the plaintiffs apart from being entitled to declaration of
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their right, title and interest over the suit land is also entitled to the recovery of
khas possession of the suit land by evicting their defendants, their agents,
servants, workmen etc. from the suit land.
19. Accordingly, the appeal namely RSA No.159/2012 stands dismissed as the
substantial questions of law so formulated are not substantial question of law
involved in the instant appeal except to the extent indicated hereinabove and
the Appeal being RSA No.204/2012 is allowed thereby holding that the plaintiffs
apart from the relief of declaration of their right, title and interest over the suit
land is further entitled to recovery of khas possession of the suit land by
evicting the defendants, their agents, servants, workmen etc. from the suit land.
The plaintiff would further be entitled to a direction upon the Revenue Authority
to correct the revenue records in the name of the plaintiffs.
20. With above observations and directions, both the Second Appeal stands
disposed of.
21. The Registry shall prepare the decree accordingly.
22. Return the LCR.
JUDGE
Comparing Assistant
