Gauhati High Court
RSA/132/2018 on 11 November, 2024
GAHC010008342017
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
RSA No. 132/2018
1. Abdul Hanif Ahmed.
2. Hamidul Islam.
3. Hasibul Islam.
4. Habibul Islam.
All are sons of Late Saidur Rahman,
Resident of Village-Mankachar Miapara,
PO & Dist-Mankachar, Dhubri.
Presently South Salmara, Mankachar.
......Appellants.
-Versus-
1. Md. Abdul Sahed,
S/o Late Taimuddin Sk.
2. Noor Abedin,
S/o Late Dabiruddin Sk.
3. Heirs of Late Mazibur Rahman-
(i) Nal Mia (son)
(ii) Sahera Bewa (daughter)
All are residents of Mankachar Tin Ali,
PO & PS-Mankachar, Dist.-Dhubri, Assam, Pin-783301.
4. Sahinur Rahman.
5. Mijanur Rahman @ Kamal Pasa.
Sl. Nos.4 and 5 are sons of Late Abdul Goni Sarkar,
Vill & PO-Kahilganj, PS & Dist.-Dhubri, Assam,
Pin-783301.
......Respondents.
6. The State of Assam,
Represented by the Collector,
Dhubri/Mankachar.
7. Settlement Officer,
Dhubri/Mankachar.
8. Assistant Settlement Officer,
Mankachar Circle, Mankachar.
......Proforma Respondents.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Appellants : Mr. A.D. Choudhury. ......Advocate.
For the Respondents : Ms. R. Choudhury,
Mr. T.R. Gogoi, GA, Assam.
......Advocates.
Date of Hearing : 22.08.2024
Date of Judgment : 11th November, 2024
JUDGMENT AND ORDER
Heard Mr. A.D. Choudhury, learned counsel for the appellants. Also
heard Ms. R. Choudhury, learned counsel for the respondent Nos.1--3
and Mr. T.R. Gogoi, learned Government Advocate, Assam, appearing for
the proforma respondent Nos.6--8.
2. In this appeal under Section 100 of the Code of Civil Procedure,
1908, the appellants have put to challenge the correctness or otherwise
of the judgment dated 09.09.2015 and decree dated 14.10.2015 passed
by the learned Civil Judge, Dhubri (First Appellate Court), in Title Appeal
No.23/2011. It is to be noted here that vide impugned judgment dated
09.09.2015 and decree dated 14.10.2015, the learned First Appellate
Court has upheld the judgment and decree dated 27.01.2011 passed by
the learned Munsiff No.2, Dhubri, in Title Suit No.348/2005.
3. The back ground facts leading to filing of the present appeal is
briefly stated as under:-
"The appellants herein, being the plaintiffs, had instituted a title
suit being Title Suit No.348/2005 for declaration of right, title and
interest and possession over the suit land. The case of the
appellants was that a plot of land measuring about 7 bigha 1 katha
covered by Myadi Patta No.914 and Touji No.183 of Dag No.196
situated at village Mankachar was originally owned by one Farid
Sarkar and after his death the aforesaid land was inherited by his
son Abdul Goni Sarkar i.e. the predecessor of the proforma
defendants. Said Abdul Goni Sarkar, during his lifetime settled a
plot of land measuring 10 katha in favour of the plaintiff No.1 Sri
Abdul Saheed as tenant and delivered the possession of the same
in the Bengali year 1362. Thereafter, sometime in the year 1973
Abdul Goni Sarkar died and thereafter, the plaintiff No.1 became
the permanent tenant under the landlord Abdul Goni Sarkar under
the Assam (Temporarily Settled Areas) Tenancy Act, 1971 and
obtained raiyoti khatian in his name. Thereafter, the plaintiff No.1
transferred a plot of land measuring 12 lechas to plaintiff No.2,
namely, Noor Abedin and another plot of land measuring 16 lechas
to the predecessor of the plaintiff No.3 Mazibar Rahman and a plot
of land measuring 3 katha 4 lechas remained under the occupation
of the plaintiff No.1 and the plaintiffs had constructed their
residential houses in their respective plot of land and started
residing therein, which is described as Schedule-„B‟ land.
Thereafter, the defendant No.2 Md. Hamidul Islam had filed a
petition on 08.12.2002 before the Settlement Officer (defendant
No.6) and got the raiyoti khatian cancelled, which stood in the
name of the plaintiffs and got the names of the defendant Nos.1--
4 recorded therein in Misc. Case No.14/2004 and on the basis of
aforesaid illegal mutation, they are claiming the land belonging to
the plaintiffs and are trying to evict the plaintiffs.
The defendant Nos.1--4 had contested the suit by filing
written statement along with a counter claim that the suit is not
maintainable. Their case was that the plaintiffs were never allotted
or settled with the suit land by Abdul Goni Sarkar and the plaintiffs
are not the raiyots and they do not have any permanent and
heritable right over the same. The case of the defendants is that
Farid Sarkar, the original owner, had a land measuring 13 bigha 14
katha 17 dhur under the A/E Touji No.330, of which the eastern
part got submerged in river Kalo and the western part was sandy,
which was recorded in Dag No.196 under Khatian No.251 and the
plaintiffs illegally occupied the south-west part of the
aforementioned land and illegally claimed to be the tenants and got
their names recorded as raiyots illegally and as such, they have
cancelled the name of the plaintiffs by filing the Misc. Case
No.14/2004 and that originally there were two tenants, namely,
one Nazaruddin and Kasimuddin and they had defaulted in
payment of rent and as such, the same was sold in auction in Case
No.281/LR/73-74 and that they had inherited a plot of land
measuring 7 bigha 1 katha under Dag No.196 of Khatian No.251
from Farid Sarkar, but the plaintiffs took possession of 4 katha 10
lechas of land when the land re-emerged from the river bed.
Upon the said pleadings of the parties the learned Trial Court
has framed the following issues:-
1. Whether the plaintiffs have right, title, interest and
possession over the land described in Schedule-B?
2. Whether the plaintiffs are entitled to get the decree as
prayed for?
3. Whether the counter claim is maintainable?
4. Whether the counter claim is barred by limitation?
5. Whether the counter claim is barred by estoppel and
acquiescence?
6. Whether the plaintiffs/opposite parties in the counter claim
are permissive possessors over Schedule-B land and are
liable to be evicted?
7. Whether the defendants/counter claimants are entitled to get
khas possession of Schedule-B land?
8. To what other reliefs, the parties are entitled?
9. Whether the suit is maintainable?
10. Whether the suit is barred by limitation?
Thereafter, hearing both the parties and recording evidence,
the learned Trial Court vide impugned judgment and decree dated
27.01.2011, dismissed the suit and the counter claim both.
Thereafter, the defendants did not file any cross-appeal or cross-
objection against the dismissal of their counter claim. But, the
plaintiffs, being dissatisfied with the impugned judgment and
decree, preferred an appeal before the learned First Appellate
Court. The learned First Appellate, thereafter, formulated the
points for determination as under:-
(i) Whether the learned Trial Court had rightly
decided the Issue Nos.1, 6 and 7 wherein it held
that the plaintiffs have failed to prove their
right, title and interest over the suit land and
also held that the defendants are not entitled to
recover khas possession of the suit land?
Thereafter, hearing both the parties and considering the evidence
on the record, the learned First Appellate Court had allowed the
appeal and thereby set aside the impugned judgment and decree
dated 27.01.2011, passed by the learned Munsiff No.2, Dhubri and
decreed the suit in favour of the plaintiffs by holding that the
plaintiffs have the right, title, interest and possession over the
Schedule-B land."
4. Being highly aggrieved, the appellants preferred this second appeal
under Section 100 CPC, suggesting following substantial questions of
law:-
(i) Whether the Exhibit-1, alleged pattanama of the year 1956-
57, adduced by the plaintiffs/respondents, only it being
because of 30 years old document, the presumption drawn
by the learned lower appellate court as regards its
admissibility against the finding of the learned Munsiff is
sustainable by law?
(ii) Whether the Exhibit-2, rent receipt, admittedly having not
contained the signature of alleged landlord, the learned lower
appellate court has acted lawfully in accepting the same?
(iii) Whether the tenancy of the plaintiffs/respondents could
lawfully be established when as per plaintiffs‟ own evidence
on the same land one Nazimuddin and Kashimuddin were
recorded tenants of the suit land?
And then, this Court was pleased to admit the appeal on the
following substantial question of law:-
(1) Whether reversal of the Issue Nos.1, 6 and 7 by the First
Appellate Court with regard to the findings of the learned
Trial Court are proper?
(2) Whether the findings of the First Appellate Court that Exhibit-
2, which is rent payment receipt, draws the presumption
under Section 90 of the Indian Evidence Act is proper on the
face of the Exhibit-2 whereon no signature of Abdul Goni
Sarkar, the landlord appears?
(3) Whether the Khatians relied by the plaintiffs/respondents can
be taken into consideration by the First Appellate Court after
its cancellation by the Revenue Authority and the same
having not been restored back and does the said Khatians
have its evidentiary value after the said cancellation?
5. Mr. Choudhury, learned counsel for the appellants submits that
both the learned Courts below erred in believing Exhibit-2 and the same
could not be held to be a valid document by the First Appellate Court as
the same bears no signature of the landlord, and the Exhibit-1, the
pattanama, could not to have been relied upon by the First Appellate
Court merely because it was a document of 30 years old without there
being any satisfaction in regards to the Section 90 of the Indian Evidence
Act. Mr. Choudhury further submits that the learned First Appellate Court
has also relied upon the raiyoti khatians, which are exhibited as Exhibits-
4, 5 and 6, as the same were already cancelled by the Revenue Authority
in Misc. Case No.14/2004 and that the learned First Appellate Court has
decided the Issue Nos.1, 6 and 7 in favour of the plaintiffs only on the
basis of Exhibits-1, 2, 4, 5 and 6 and as such, the substantial questions of
law that has been framed by this Court has to be answered in negative
and the impugned judgment and decree so passed by the First Appellate
Court is liable to be set aside.
6. Per contra, Ms. Choudhury, learned counsel for the respondents
submits that the impugned judgment and decree, so passed by the First
Appellate Court, suffers from no infirmity or illegality and the same
requires no interference of this Court and no substantial question of law
involves herein and therefore, it is contended to dismiss the appeal. Ms.
Choudhury further submits that the learned Trial Court had dismissed the
counter claim filed by the appellants and admittedly no appeal has been
preferred against the said dismissal and that the possession of the suit
land was all along with the respondents herein and they have exhibited
the documents as Exhibits-1, 2, 4, 5 and 6 and the Exhibits-1 and 2 are
30 years old documents and as such, presumption arises in favour of the
same and the First Appellate Court is not in the wrong footing and
therefore, it is contended to dismiss the second appeal. Ms. Choudhury
has also referred to a decision of this Court in Bipin Chandra Kalita
v. Sarama Kalita & Ors., reported in 2007 (2) GLT 399.
7. Having heard the submission of learned counsel for both the
parties, I have carefully gone through the memo of appeal and the
grounds mentioned therein and the impugned judgment and decree
passed by the First Appellate Court dated 09.09.2015 and 14.10.2015
and also the judgment and decree dated 27.01.2011, passed by the
learned Munsiff No.2, in Title Suit No.348/2005.
8. It appears that the Issue Nos.1, 6 and 7, so framed by the learned
Munsiff No.2, Dhubri, are vital issues and the learned Trial Court had
decided those issues against the plaintiffs. While dealing with the said
issues, the learned First Appellate Court has held that the claim of the
plaintiffs based on the pattanama (Exhibit-1) executed by owner - Abdul
Goni Sarkar in favour of the plaintiff No.1, and also based on the raiyoti
khatians, issued in their names i.e. Exhibits-4, 5 and 6. The learned First
Appellate Court had held that the learned Trial Court had ignored the
pattanama (Exhibit-1) by which the plaintiff No.1 allegedly came into
possession of the suit land as a raiyot under Abdul Goni Sarkar in the
year 1956-57, and though the learned Trial Court had observed in the
impugned judgment that the plaintiffs‟ witnesses could not state as to
when the aforesaid Exhibit-1 was executed and as such, did not consider
the said pattanama and that the plaintiffs had not averred that they had
paid rent to the landlord, the plea of tenancy of the plaintiffs are not
believed by the Trial Court. But having discussed the evidence of the
plaintiff No.1, Abdul Saheed (PW-1) and also considering the evidence of
PW-2 Aftar Hussain and PW-3 Bosoruddin Sk. and further considering
Exhibit-1 to Exhibit-6, the learned First Appellate Court arrived at a
finding that the evidence and the documents so exhibited, sufficiently
proved by the plaintiffs and above documents clearly proved that the
plaintiffs came into possession of the suit land as tenants under the
original landlord and have continued in possession of the same. The
learned First Appellate Court had placed much reliance upon Exhibit-1,
which is a document of 30 years old and hence, legal presumption under
Section 90 of the Evidence Act can be drawn and the said document was
produced from proper custody. Further, discussing Exhibits-2 and 3, the
rent payment receipt, the learned First Appellate Court held that the said
documents shows that rent of the suit land was paid to Abdul Gani Sarkar
and that Exhibit-2 pertains to 1956-57, and Exhibit-2 was written by
Abdul Gani Sarkar, which is a document of 30 years old and produced
from proper custody and as such, legal presumption is available that the
same was executed by Abdul Gani Sarkar after receipt of rent. It is also
held that though Exhibit-2 does not contain the signature of Abdul Gani
Sarkar, yet, execution of the same by him is proved by PW-1 and mere
absence of signature does not make the same inadmissible. It is also held
that they are not the permissive occupier as contended by the
defendants.
9. The learned First Appellate Court further held that the plaintiffs
have sufficiently proved that they are the permanent tenants in respect of
the suit land and they are in possession over the suit land since long back
and they have occupied the suit land as raiyots under the original
landlord.
10. Further, the learned First Appellate Court held that though the
defendants got the raiyoti khatians, Exhibits-4 to 6 cancelled in Misc.
Case No.14/2004, yet, the defendant Nos.1--4 have failed to prove their
right, title and interest over the suit land and as such, the mutation of
their names in respect of the suit land by cancelling the names of the
plaintiffs as raiyots is illegal and liable to be declared as such and that the
plaintiffs are the permanent tenants in respect of the suit land and that
Farid Sarkar or for that matter his son Abdul Goni Sarkar are
landlords/jotedar and as such, even if it is held that the defendants have
derived any right, title and interest over the suit land, through Farid
Sarkar or Abdul Goni Sarkar, then also they would step into the shoes of
Farid Sarkar or Abdul Goni Sarkar and would assume the character of
landlord/jotedar, but the right, title and interest of the plaintiffs over the
suit land as permanent tenants/raiyots cannot be extinguished and
hence, cancellation of the names of the plaintiffs as raiyots in respect of
the suit land in Misc. Case No.14/2004 is illegal and thereafter, the
learned First Appellate Court has decided the Issue Nos.1, 6 and 7 in
favour of the appellants and set aside the finding recorded by the learned
Trial Court.
11. Thus, having considered the submission of Mr. Choudhury, learned
counsel for the appellants and also the submission of Ms. Choudhury,
learned counsel for the respondent Nos.1--3 and I find substance in her
submission. It appears that the finding so recorded by the learned First
Appellate Court is based on Exhibit-1, the pattanama allegedly issued in
favour of the respondents and the rent receipts Exhibit-2 and 3 issued to
them by the landlord Abdul Gani Sarkar being permanent tenants and
also on the raiyoti khatians, Exhibits-4, 5 and 6. It is a fact that the
raiyoti khatians, Exhibits-4, 5 and 6 were cancelled in Misc. Case
No.14/2004, filed by the appellants herein. But, the same cannot
extinguish their right being accrued on the basis of Exhibits-1 and 2. Even
if we discard the Exhibit-2, the rent receipt, as the same bears no
signature of the landlord, yet, Exhibit-1, the pattanama has not been
disputed and the same is 30 years old and the same was produced from
proper custody and it satisfy the requirement of Section 90 of the Indian
Evidence Act. In the case of Bipin Chandra Kalita (supra), referred
by Ms. Choudhury, it has been held that the presumption comprehended
in Section 90 of the Act is relatable to the writings, execution and the
attestation of the document, the contents thereof, being subject to proof
in accordance with law. Unerringly, the approach of a Court in the matter
of presumption under Section 90 of the Act has to be essentially to
effectuate the purpose thereof and not to render it nugatory. Though a
Court is endowed with a discretion to draw a presumption as enumerated
in the section, the exercise thereof, has to be informed with objectivity to
further the legislative intendment. Unless, the attending facts and
circumstances on the face of the document renders its existence,
execution and attestation impossible, a rebuttable presumption is raised
in favour of the genuineness and authenticity thereof, casting a burden
on the other side to establish the contrary.
12. Notably, in the case in hand, no effort was made by the appellants
to rebut the aforesaid presumption. That being so, no fault can be found
with the judgment and decree of the First Appellate Court in pressing
Section 90 of the Indian Evidence Act into service.
13. In Bholaram v. Amirchand reported in (1981) 2 SCC 414, a
three Judges Bench of Hon‟ble Supreme Court reiterated the statement of
law. The High Court, however, seems to have justified its interference in
second appeal mainly on the ground that the judgments of the courts
below were perverse and were given in utter disregard of the important
materials on the record particularly misconstruction of the rent note. Even
if we accept the main reason given by the High Court the utmost that
could be said was that the findings of fact by the courts below were
wrong or grossly inexcusable but that by itself would not entitle the High
Court to interfere in the absence of a clear error of law.
14. Again in Kshitish Chandra Purkait v. Santosh Kumar
Purkait, reported in (1997) 5 SCC 438, a three judge Bench of this
court held: (a) that the High Court should be satisfied that the case
involved a substantial question of law and not mere question of law; (b)
reasons for permitting the plea to be raised should also be recorded; (c)
it has the duty to formulate the substantial questions of law and to put
the opposite party on notice and give fair and proper opportunity to meet
the point. The court also held that it is the duty cast upon the High Court
to formulate substantial question of law involved in the case even at the
initial stage.
15. Again, in the case of Madhavan Nair v. Bhaskar Pillai
reported in (2005) 10 SCC 553, Hon‟ble Supreme Court has observed
that the High Court was not justified in interfering with the concurrent
findings of fact. Hon‟ble Supreme Court has observed that it is well
settled that even if the first appellate court commits an error in recording
a finding of fact, that itself will not be a ground for the High Court to
upset the same.
16. Keeping the aforementioned principles in mind and applying the
same to the given facts and circumstances on the record, as discussed
herein above, this Court finds that no substantial question of law involves
in the present appeal and therefore, this Court is inclined to dismiss the
appeal.
17. Send down the record of the learned Courts below with a copy of
this judgment and order.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
