Page No.# 1/39 vs On The Death Of Satish Chandra Sarma
2025 Latest Caselaw 4738 Gua

Gauhati High Court

Page No.# 1/39 vs On The Death Of Satish Chandra Sarma on 21 August, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                               Page No.# 1/39

GAHC010210302014




                                                          2025:GAU-AS:11179

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

                         Case No. : RSA/79/2014

         LALIT KALITA
         S/O LATE KALICHARAN KALITA R/ VILL. RAHADHAR BIRKALA, P.O.
         PATHSALA, MOUZA UTTAR BAJALI, IN THE DIST. OF BARPETA, PIN
         781325, ASSAM.



         VERSUS

         ON THE DEATH OF SATISH CHANDRA SARMA, HIS LEGAL HEIRS SMTI
         GAYATRI DEVI and ORS,
         W/O LATE SATISH CHANDRA SARMA

         1.2:ON THE DEATH OF RESPONDENT NO 2
          HEMEN SARMA
          HIS LEGAL HEIRS
          Represented by-

         1.2.1:SMTI BHARATI DEVI
         W/O LATE HOMEN SARMA
          R/O BORVILLA KUTIR
         AMOLAPATTY
         TARUN RAM PHUKAN ROAD
          P.O. BARPETA TOWN
          DISTRICT BARPETA
          PIN 781301
         ASSAM

         1.2.2:SRI JAJATI SARMA
          S/O LATE HOMEN SARMA
          R/O BORVILLA KUTIR
         AMOLAPATTY
         TARUN RAM PHUKAN ROAD
          P.O. BARPETA TOWN
                                              Page No.# 2/39

DISTRICT BARPETA
PIN 781301
ASSAM

1.2.3:SMTI SUKANYA DEVI
 D/O LATE HOMEN SARMA
 R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
 P.O. BARPETA TOWN
 DISTRICT BARPETA
 PIN 781301
ASSAM

1.2.4:SMTI SUBARNA DEVI
 D/O LATE HOMEN SARMA
 R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
 P.O. BARPETA TOWN
 DISTRICT BARPETA
 PIN 781301
ASSAM

1.2.5:MS. NAMRATA DEVI
 D/O LATE HOMEN SARMA
 R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
 P.O. BARPETA TOWN
 DISTRICT BARPETA
 PIN 781301
ASSAM

1.3:KABINDRA NATH SARMA
 S/O LT. SATISH CH. SARMA

1.4:PRABIN SARMA
 S/O LT. SATISH CH. SARMA

1.5:HAREKRISHNA SARMA
 S/O LATE SATISH CH. SARMA

1.6:SMTI HEMANTI DEVI

D/O LT. SATISH CH. SARMA
W/O SRI DINESH CH. SARMA
NO. 1 A TO 1 E ARE RESIDENTS OF AMBARIHATI
                                                  Page No.# 3/39

TARUNRAM PHUKAN ROAD
BARPETA
PIN 781301
DIST. BARPETA
ASSAM. NO. 1 F IS A RESIDENT OF VILL. MADHOPUR
P.O. ARIKUCHI
DIST. BARPETA
PIN 781301
ASSAM.

2.1:RABIN SARMA

S/O LATE DEBEN SARMA

2.2:AMAR SARMA

S/O LATE DEBEN SARMA
R/O HOUSE NO. 2
COLLEGE ROAD
SHATIPUR
GUWAHATI 781009
ASSAM.

3:SMTI SATYABATI SARMA

W/O LT. NAGEN SARMA
R/O AMBARIHATI
NEAR TARUNRAM PHUKAN HALL
BARPETA
PIN 781301
ASSAM.

4:HITENDRA NATH SARMA

S/O LATE NAGEN SARMA
R/O HATIGAON
GUWAHATI 781006

5:ABANI SARMA

S/O LATE NAGEN SARMA
R/O AMBARIHATI
BARPETA
PIN 781301
ASSAM.

6:SMTI. DIPALI SARMA
                                                                                 Page No.# 4/39

            D/O LT. MAHENDRA NATH SARMA
            W/O SRI TARUN SARMA
            R/O VILL. PATACHARKUCHI
            BHALUKI PATH
            NEAR SHIV MANDIR
            PIN 781326
            BARPETA
            ASSAM.

            7:JOGENDRA NATH SARMA

            S/O LT. SURENDRA NATH SARMA
            R/O J.B. LAW COLLEGE CAMPUS. R.G. BARUAH ROAD
            CHANDMARI
            GUWAHATI 781003
            ASSAM.

            8:BALINDRA NATH SARMA

             S/O LT. SURENDRA NATH SARMA
             R/O HOUSE NO. 45
             NEW SARANIA
             HILL SIDE
             GANDHIBASTI
             BYE LANE NO. 1A
             GUWAHATI 78100

Advocate for the Petitioner : N UPADHYAY, MR.P BORAH,C DAS,B KALITA,MR.D
MOZUMDER,K K DAS,A DHAR

Advocate for the Respondent : FOR CAVEATOR, MR H MAZUMDER (r-
1.2.3,1.2.4,1.2.5,1.2.2,2.2.1),MR. N BORAH (r-1.2.3,1.2.4,1.2.5,1.2.2,2.2.1),MR H MAZUMDER (R9,
R10, R11),MR. N BORAH (R9, R10, R11),,B N SARMA,G SARMA,H K DEKA,D DAS,B DEKA




             Linked Case : RSA/80/2014

            LABANYA KUMAR DAS
            S/O LATE GUNESWAR DAS
            R/O VILL. RAIPUR
            MOUZA SARIHA
            IN THE DIST OF BARPETA
            PIN 781325
            ASSAM.
                                             Page No.# 5/39



VERSUS

ON THE DEATH OF SATISH CHANDRA SARMA
HIS LEGAL HEIRS SMTI GAYATRI DEVI and ORS

W/O LATE SATISH CH. SARMA

1.2:ON THE DEATH OF RESPONDENT NO 2
 HEMEN SARMA
 HIS LEGAL HEIRS
Represented By

1.2.1:SMTI BHARATI DEVI
W/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM

1.2.2:SRI JAJATI SARMA
S/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM

1.2.3:SMTI SUKANYA DEVI
D/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM

1.2.4:SMTI SUBARNA DEVI
D/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
                                                  Page No.# 6/39

TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM

1.2.5:MS. NAMRATA DEVI
D/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM

1.3:KABINDRA NATH SARMA
S/O LT. SATISH CH. SARMA

1.4:PRABIN SARMA
S/O LT. SATISH CH. SARMA

1.5:HAREKRISHNA SARMA
S/O LATE SATISH CH. SARMA

1.6:SMTI HEMANTI DEVI

D/O LT. SATISH CH. SARMA
W/O SRI DINESH CH. SARMA
NO. 1 A TO 1 E ARE RESIDENTS OF AMBARIHATI
TARUNRAM PHUKAN ROAD
BARPETA
PIN 781301
DIST. BARPETA
ASSAM. NO. 1 F IS A RESIDENT OF VILL. MADHOPUR
P.O. ARIKUCHI
DIST. BARPETA
PIN 781301
ASSAM.

2.1:RABIN SARMA

S/O LATE DEBEN SARMA

2.2:AMAR SARMA

S/O LATE DEBEN SARMA
R/O HOUSE NO. 2
                                                 Page No.# 7/39

COLLEGE ROAD
SHATIPUR
GUWAHATI 781009
ASSAM.

3:SMTI SATYABATI SARMA

W/O LT. NAGEN SARMA
R/O AMBARIHATI
NEAR TARUNRAM PHUKAN HALL
BARPETA
PIN 781301
ASSAM.

4:HITENDRA NATH SARMA

S/O LATE NAGEN SARMA
R/O HATIGAON
GUWAHATI 781006

5:ABANI SARMA

S/O LATE NAGEN SARMA
R/O AMBARIHATI
BARPETA
PIN 781301
ASSAM.

6:SMTI. DIPALI SARMA

D/O LT. MAHENDRA NATH SARMA
W/O SRI TARUN SARMA
R/O VILL. PATACHARKUCHI
BHALUKI PATH
NEAR SHIV MANDIR
PIN 781326
BARPETA
ASSAM.

7:JOGENDRA NATH SARMA

S/O LT. SURENDRA NATH SARMA
R/O J.B. LAW COLLEGE CAMPUS. R.G. BARUAH ROAD
CHANDMARI
GUWAHATI 781003
ASSAM.

8:BALINDRA NATH SARMA
                                                              Page No.# 8/39


         S/O LT. SURENDRA NATH SARMA
         R/O HOUSE NO. 45
         NEW SARANIA
         HILL SIDE
         GANDHIBASTI
         BYE LANE NO. 1A
         GUWAHATI 781003
         ------------

For the Appellant(s) : Mr. A. Dhar, Advocate

For the Respondent(s) : Mr. B.D. Deka, Advocate Mr. B.N. Sarma, Advocate Mr. N. Borah, Advocate

Date of Hearing : 20.05.2025 Date of Judgment : 21.08.2025

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER (CAV)

Heard Mr. A. Dhar, the learned counsel appearing on behalf of the appellants in both the Appeals being RSA No. 79/2014 and RSA No. 80/2014. I have also heard Mr. B.D. Deka, the learned counsel; Mr. B.N. Sarma, the respondent-in-person and Mr. N. Borah, the learned counsel representing the respondents in both the Appeals.

2. Taking into account that the issues involved in both the Appeals and the substantial questions of law so formulated by this Court in both the Appeals are the same and further this Court having heard Page No.# 9/39

both the Appeals together, both the Appeals are taken up for disposal by this common judgment and order.

3. The records reveal that vide an order dated 12.07.2016, commonly passed for both the Appeals, the Appeals were admitted by formulating 4 (four) substantial questions of law. The same being relevant are reproduced herein under:

" 1. Whether an occupancy tenant under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 whose name is duly entered in the Khatian Patta can be ejected from the land under his occupation dehors the provisions prescribed by the Section 51 of the said Act, 1971?

2. Whether the Civil Court is vested with the jurisdiction to nullify the entries made in the records of rights and in the matter of maintenance of records of rights notwithstanding the bar imposed under Section 66 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971?

3. Whether under the Assam (Temporarily Settled Areas) Tenancy Act, 1971, an occupancy tenant enjoys a permanent, heritable and transferable rights and use of occupancy in the land of his holding?

4. Whether in the absence of any contrary evidence available on records, the Court is obliged to draw presumption in respect of correctness of the entries made in the revenue records maintained by the revenue authority?"

4. It further transpires from the records that on 09.08.2022, this Court framed an additional substantial question of law in both the Appeals, which reads as under:

Page No.# 10/39

Whether the suit was maintainable without the State of Assam or the authority granting ownership to the defendant vide the order dated 09.05.2023 in TR Case No. 2/2002-2003, made a party in the suit?

Whether the suit was maintainable without the State of Assam or the authority granting ownership to the defendant vide the order dated 09.05.2023 in TR Case No. 1/2002-2003, made a party in the suit?"

5. The question arises for this Court to adjudicate is, as to whether, the substantial questions of law so formulated as noted above by this Court in terms with Section 100(4) of the Code of Civil Procedure, 1908 (for short, "the Code") are involved in the instant Appeals.

6. For deciding the same, this Court finds it pertinent to take note of the brief facts which led to the filing of both the Appeals before this Court.

7. One Sarbananda (since deceased) was the predecessor-in- interest of the plaintiffs in Title Suit No. 07/2008. The name of late Sarbananda was included in the re-settlement operation of 1958-65 in respect to the suit land specifically described in Schedule 'A' to the plaint. Upon the death of late Sarbananda, his 4 (four) sons namely Harendra Nath Sarma, Surendra Nath Sarma Mahendra Nath Sharma and Satish Chandra Sarma being the heirs of late Sarbananda, Page No.# 11/39

inherited the land as described in Schedule 'A' to the plaint which admeasured 21 Bighas 2 Kathas 15 Lechas. The names of the 4 (four) sons referred to above were recorded in the revenue record as Pattadars by right of succession and inheritance on 24.04.1968. 3 (Three) of the sons of late Sarbananda, i.e., late Harendra Nath Sarma, late Sunrendra Nath Sarma and late Mahendra Nath Sarma expired leaving behind their legal heirs who are the plaintiff Nos. 2 to 7 and the proforma defendant Nos. 6 to 8. It is also mentioned in the plaint that out of the land so described in Schedule 'A', 3 Bighas of land were sold and the remaining land admeasuring 18 Bighas 2 Kathas 15 Lechas was specifically described in Schedule 'B' to the plaint. The proforma defendant Nos. 1 to 5 in the plaint were sold the 3 Bighas of land also remained in possession of their respective land peacefully and amicably and the plaintiffs and the proforma defendant Nos. 6 to 8 have no dispute with the proforma defendant Nos. 1 to 5.

8. It is the further case of the plaintiffs that out of the Schedule 'B' land, the principal defendants had kept a part of the Schedule 'B' land admeasuring 9 Bighas 1 katha 7½ Lechas under their occupation and the said land have been more specifically described in Schedule 'C' to the plaint. It is also stated in the plaint that apart from the land so described in Schedule 'B', the plaintiffs and the proforma defendants Nos. 6 to 8 had another plot of land admeasuring 5 Bighas 3 Kathas covered by Dag No. 48 under Nisfi-Kheraj Patta No. 47 at Village Page No.# 12/39

Raipur which have been described in Schedule 'D' to the plaint.

9. It is the further case of the plaintiffs that on 27.02.2003 when the plaintiff No. 1 went to have a look at the plaintiffs land in Schedule 'B' and Schedule 'D' for making a partition amongst the plaintiffs and the proforma defendant Nos. 6 to 8, he was shocked to learn that the defendants trespassed into the suit land and were working in the suit land in Schedule 'C' and Schedule 'D'. On being inquired, it was informed to the plaintiff No. 1 by the defendants that they had entry of their names in the tenancy records as tenants. It was further informed that in respect to the Schedule 'B' and Schedule 'D' land, the defendants have been granted Khatian.

10. On 12.03.2003, the plaintiff No. 1 received one notice from the Additional Deputy Commissioner, Barpeta in connection with T.R. Case No. 2/2002-03, requiring him to appear and submit objection on 28.03.2003 against granting ownership right to the defendants upon the suit land. The plaintiff No. 1 appeared on 28.03.2003 before the Additional Deputy Commissioner, Barpeta and on going through the records came to learn that a part of 3 Bighas 3 Kathas from the land in Schedule 'B' was shown as partitioned and placed under new Dag No. 903 secretly, illegally and without the knowledge or without any notice to any one of the plaintiffs or the proforma defendant Nos. 6 to

8. It was also stated in the plaint that the case records also disclosed Page No.# 13/39

the name of the defendants as tenants under the plaintiff. It is the specific case of the plaintiffs that all these steps were being taken by the defendants without any notice being issued to the plaintiffs and the proforma defendant Nos. 6 to 8. The plaintiffs were further shocked to learn that the Additional Deputy Commissioner, Barpeta passed an order on 09.05.2003 thereby granting ownership rights in favour of the defendants over unspecified parts of land in Schedule 'B' admeasuring 10 Bighas 2 Kathas 3 Lechas describing it as covered by fictitious Dag No. 3 and 903 and an unspecified part of the land in Schedule 'D' admeasuring 4 Kathas describing it as covered by fictitious Dag No. 1031 in favour of the defendants. The said order as per the plaintiffs was passed behind the back of the plaintiff Nos. 2 to 7 and the proforma defendant Nos. 6 to 8 keeping them at dark about the case and in gross violation to the principles of natural justice.

11. On 17.06.2003, the plaintiff No. 1 who went to the office of the Circle Officer, Patacharkuchi to obtain certified copy of the Chitha of the suit land, but for reasons best known, the Circle Officer refused to provide the certified copy of the Chitha saying that in the present days certified copies were not being issued by the Revenue Circles. However, the plaintiff No. 1 managed to look at the Chitha book and the revenue map of the suit land wherefrom the plaintiff came to learn that Dag No. 3 under K.P. Patta No. 218 of Village Raipur still contains 21 Bighas 2 Kathas 15 Lechas in the Chitha Book as well as Page No.# 14/39

the revenue map maintained with the Circle and that no part of 21 Bighas 2 Kathas 15 Lechas have been partitioned and placed under any separate Dag and Patta number. It is the specific case of the plaintiffs that neither the defendants nor their predecessor/transferor- in-interest were tenants in the suit land under the plaintiffs or the proforma defendant Nos. 6 to 8 at any point of time and as such, the question of issuance of any Khatian in favour of the said defendants as well as issuance of ownership upon the defendants vide the order dated 09.05.2003 in T.R. Case No. 2/2002-03 were ultra vires, illegal, fraudulent and inoperative in law and not binding upon the plaintiffs. It is the specific case of the plaintiffs that on 27.02.2003, the defendants being encouraged by the grant of Khatian had dispossessed the plaintiffs from the suit land.

12. On the basis of the above, the suit was filed being Title Suit No. 07/2008 seeking declaratory decree that the plaintiffs have right, title and interest over the suit land; that the defendant Nos. 1 and 2 nor their predecessor/transferor-in-interest were tenants in respect to the suit land under the plaintiffs or proforma defendant Nos. 6 to 8 at any point of time; for a decree declaring that the grant of ownership right by the Additional Deputy Commissioner, Barpeta to the defendants vide order dated 09.05.2003 in T.R. Case No. 2/2002-03 and also the entry of the name of the defendants as tenants in any revenue records as claimed by the defendants are ultra vires, illegal, fradulent Page No.# 15/39

and inoperative in law and not binding upon the plaintiffs; for a decree to deliver Khas possession of the suit land in favour of the plaintiffs by evicting the defendants etc.

13. The defendants filed their written statement wherein various pleas were taken as regards the maintainability of the suit. At paragraph No. 6 of the written statement, it was mentioned that the suit is bad for non-joinder of necessary parties. However, there was no mention made, as to who is/are the necessary parties. In the written statement, it was stated that the plaintiffs were originally residents of a Village Barbilla which is about 24 miles away from the suit land. The plaintiffs never used to cultivate the suit land and they were possessing the land through several tenants. The husband of the defendant No. 1 and the father of the defendant No. 2, late Kalicharan Kalita was possessing 6 Bighas 4 Kathas 3 Lechas of land covered by Dag No. 3; 3 Bighas 3 Kathas 0 Lecha of land covered by Dag No. 3/903 under N.K. Patta No. 218 of Village Raipur, Mouza Sariha and 4 Kathas of land covered by Dag No. 48/1037 under J.K. Patta No. 47 of Village Raipur, Mouza Sariha from time immemorial and paid 2½ monds of paddy per year per bigha to the plaintiffs. It was further mentioned that during the year 1972 to 1976 the said 6 Bighas 4 Kathas 3 Lechas under Dag No. 3/903; 3 Bighas 3 Kathas 0 Lecha under Dag No. 3 and 4 Kathas under Dag No. 48/1037 of village Raipur was found in possession of the said Kalicharan Kalita.

Page No.# 16/39

14. The Assistant Settlement Officer therefore surveyed the land and issued Khatian No. 11 in respect to land admeasuring 6 Bighas 4 Kathas 3 Lechas; Khatian No. 3 in respect to land admeasuring 3 Bighas 3 Kathas 0 Lecha and Khatian No. 12 in respect to land admeasuring 4 Kathas of village Raipur in the year 1974 in favour of late Kalicharan Kalita. It was also mentioned that the plaintiffs used to regularly receive the rent from late Kalicharan Kalita and upon his death, the Khatian was issued in the name of the defendants and they were in physical possession over the land admeasuring 6 Bighas 4 Kathas 3 Lechas; 3 Bighas 3 Kathas 0 Lecha and 4 Kathas of land. It was also averred that the plaintiff No. 1 was receiving the rent for him and on behalf of the other Pattadars. Further to that, it was stated that the plaintiff No. 1 started creating disturbance in receiving the rent and issuing receipt thereof, for which, the defendants filed T.R. Case No. 2/2002-03 under Section 23 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (for short, "the Act of 1971") before the Deputy Commissioner, Barpeta for granting ownership to the defendants. The Additional Deputy Commissioner, Barpeta after due enquiry and giving proper hearing to the Pattadars granted ownership in favour of the defendants as per the provisions of law. It was further stated that one of the Pattadar namely Balindra Nath Sarma had preferred an Appeal before the Assam Board of Revenue which was registered as Appeal No. 157 R.A.(B)/03 and the said appeal is Page No.# 17/39

pending at the time when the suit was filed.

15. On the basis of the pleadings, the learned Court of the Munsiff, Bajali at Pathsala (hereinafter referred to as, "the learned Trial Court") framed as many as 11 (eleven) issues, which being relevant are reproduced herein under:

"I S S U E S

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

2. Whether the suit is maintainable in its present from?

3. Whether the suit is bad for non-joinder of necessary parties?

4. Whether the suit is undervalued?

5. Whether the plaintiffs have their right, title and interest over the suit land?

6. Whether the main defendants and the proforma defendants are not the tenants under the plaintiffs and they have no occupancy title over the suit land?

7. Whether the grant of ownership right by the Additional Deputy Commissioner, Barpeta to the defendants vide order dated 09.05.2003 passed in T.R. Case No. 2/02-03 and the entry of the names of the defendants as tenants in the revenue record are ultra-vires, illegal, fraudulent and inoperative in the eye of law and not binding upon the plaintiffs?

8. Whether the plaintiffs are entitled for recovery of khas possession of the suit Page No.# 18/39

land by evicting the defendant thereform?

9. Whether the plaintiffs recognized Kalicharan Kalita the husband of defendant No. 1 and father of defendant No. 2 as their tenants and whether the plaintiffs regularly received the rent from Sri Kalicharan Kalita?

10. Whether the plaintiffs are entitled for a decree as prayed for?

11. To what relief or reliefs the parties are entitled?"

16. On behalf of the plaintiffs, 3 (three) witnesses were examined and various documents were exhibited and on behalf of the defendants 7 (seven) witnesses were examined and 1 (one) documentary evidence was exhibited.

17. The learned Trial Court vide the judgment and decree dated 18.07.2011 decreed the suit in favour of the plaintiffs. It is pertinent to observe that the learned Trial Court on the basis of the evidence came to a categorical finding in respect to the Issue No. 5 that the plaintiffs have right, title and interest over the suit land.

The Issue Nos. 6 and 9 were decided together by the learned Trial court and came to a categorical finding that the defendants as well as their predecessor-in-interest late Kalicharan Kalita were not tenants of the plaintiffs or their predecessor-in-interest at any point of time. It was also observed that the learned Additional Deputy Page No.# 19/39

Commissioner, Barpeta without going through the actual facts and evidences available before him and not conducting proper enquiry prescribed by the Act of 1971 passed the order dated 09.05.2003. The learned Trial Court opined that the learned Additional Deputy Commissioner, Barpeta failed to make a proper enquiry before further proceeding in T.R. Case No. 02/2002-03 before granting ownership to the defendants. On that basis, both the issues were decided in favour of the plaintiffs.

In view of the discussions in respect to Issue Nos. 5, 6 and 7 and 9, the learned Trial Court while deciding the Issue No. 8 held that the plaintiffs were entitled for recovery of khas possession of the suit land by evicting the defendants.

The discussion on Issue No. 3 is also relevant inasmuch as the Issue No. 3 pertains to, as to whether, the suit is bad for non-joinder of necessary parties. It was observed by the learned Trial Court that though the issue was raised in the written statement, but the issue was never pressed by the defendants when the suit was proceeding. On the ground that the defendants failed to raise the issue subsequently and taking into account the provisions of Order I Rule 13 of the Code, the issue was decided in favour of the plaintiffs and against the defendants.

18. Being aggrieved, an Appeal was filed by the defendant No. 2 Page No.# 20/39

before the learned Court of the Civil Judge, Barpeta (hereinafter referred to as, "the learned First Appellate Court") which was registered and numbered as Title Appeal No. 58/2011. The learned First Appellate Court while deciding the said Appeal formulated 3 (three) points for determination, which being relevant are reproduced herein under:

"A. Whether the suit is barred u/s 66 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971?

B. Whether the plaintiffs have got any right, title and interest over the suit land?

C. Whether the present defendants or their predecessor-in-interest is/was tenant under the plaintiffs and they were validly granted the ownership right over the suit land in terms of Section 23 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971?"

19. The learned First Appellate Court vide the judgment and decree dated 30.08.2013 dismissed the said Appeal. In doing so, the learned First Appellate Court while deciding the point for determination No. A., decided that the suit was not barred under Section 66 of the Act of 1971. In respect to the point for determination No. B., the learned First Appellate Court decided that the plaintiffs have got right, title and interest over the suit land. On the point for determination No. C., the learned First Appellate Court confirmed the findings of the learned Trial Court and held that the defendants as well as the predecessor-in-

Page No.# 21/39

interest of the defendants were not tenants under the plaintiffs and they were therefore not entitled to be granted ownership over the suit land in terms with Section 23 of the Act of 1971. It is under such circumstances, RSA No. 79/2014 was filed.

20. The related suit is Title Suit No. 02/2008 wherein, in respect to the Schedule 'B' land, in Title Suit No. 07/2008, the defendant herein was granted the ownership in respect to the Schedule 'C' land vide an order dated 09.05.2003 in T.R. case number 1/2002-03. The material facts as well as the allegations made in both the suits i.e. Title Suit No. 02/2008 and Title Suit No. 07/2008 being similar, the same are not repeated for the sake of brevity.

21. In the instant suit, the written statement was filed by the defendant. Apart from taking various pleas on the maintainability of the suit, it was pleaded that the father of the defendant, late Guneswar Das was possessing 6 Bighas 2 Kathas 10 Lechas of land from time immemorial and paid 2½ monds of paddy per year per bigha. It was further mentioned that in the last settlement operation during 1972-1976, the said 6 Bighas 2 Kathas 10 Lechas of land under Dag No. 3 of Village Raipur was found in possession of late Guneswar Das. The Assistant Settlement Officer thereupon issued Kutcha Khatian No. 63 of village Raipur in 1974 and after issuance of the Page No.# 22/39

Kutcha Khatian, the Assistant Settlement Officer invited objections and when no objections were received from any corner, the Assistant Settlement Officer issued the Final Khatian No. 28 of Village Raipur in the name of the father of the defendant, late Guneswar Das by curving out Dag Nos. 906 and 908 of Patta No. 218 of Village Raipur. It was further stated that the plaintiffs and the other Pattadars recognized the father of the defendant as their tenant and were regularly receiving the rent from the father of the defendant and when late Guneswar Das expired, the Khatian was issued in the name of the defendant and he was in physical possession over the said 6 Bighas 2 Kathas 10 Lechas of land.

22. It was further stated in the written statement that the plaintiff No. 1 was in charge of receiving the rent for himself and on behalf of the other Pattadars. However, when the plaintiff No. 1 created disturbance in receiving the rent, the defendant submitted T.R. Case No. 1/2002-03 under Section 23 of the Act of 1971 before the learned Deputy Commissioner, Barpeta seeking granting of ownership. It was also mentioned that the learned Additional Deputy Commissioner, Barpeta after making due enquiry and giving proper hearing to the Pattadars granted ownership right in favour of the defendant as per provisions of law. It was further mentioned that one of the Pattadars, namely Balindra Nath Sarma, had preferred an Appeal before the Assam Board of Revenue which was registered and numbered as Page No.# 23/39

Appeal No. 163 R.A.(B)/03 and the appeal was pending as on the date on which the suit was filed.

23. The learned Trial Court on the basis of the pleadings framed as many as 11 (eleven) issues which being relevant are reproduced herein under:

"I S S U E S

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

2. Whether the suit is maintainable in its present from?

3. Whether the suit is bad for non-joinder of necessary parties?

4. Whether the suit is undervalued?

5. Whether the plaintiffs have their right, title and interest over the suit land?

6. Whether the main defendants and the proforma defendants are not the tenants under the plaintiffs and they have no occupancy title over the suit land?

7. Whether the grant of ownership right by the Additional Deputy Commissioner, Barpeta to the defendants vide order dated 09.05.2003 passed in T.R. Case No. 1/02-03 and the entry of the names of the defendants as tenants in the revenue record are ultra-vires, illegal, fraudulent and inoperative in the eye of law and not binding upon the plaintiffs?

8. Whether the plaintiffs are entitled for recovery of khas possession of the suit Page No.# 24/39

land by evicting the defendant thereform?

9. Whether the plaintiffs recognized Kalicharan Kalita the husband of defendant No. 1 and father of defendant No. 2 as their tenants and whether the plaintiffs regularly received the rent from Sri Kalicharan Kalita?

10. Whether the plaintiffs are entitled for a decree as prayed for?

11. To what relief or reliefs the parties are entitled?"

24. On behalf of the plaintiffs, 5 (five) witnesses were examined and 3 (three) documentary evidence were exhibited. On behalf of the defendant, 5 (five) witnesses were examined and various documents were exhibited. The learned Trial Court had also exhibited a document which was marked as Exhibit X(2). The learned Trial Court decreed the suit in favour of the plaintiffs vide the judgment and decree dated 18.07.2011. The findings so arrived at by the learned Trial Court is similar to the findings so arrived at by the learned Trial Court in Title Suit No. 07/2008 and for the sake of brevity, the same are not repeated. However, this Court finds it pertinent to note that while deciding the Issue Nos. 5 and 6, the learned Trial Court came to a categorical finding that the defendant was not the son of late Guneswar Das as the defendant himself admitted during his cross- examination. The learned Trial Court also arrived at the finding that the defendant had no blood relation with late Guneswar Das.

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25. An Appeal thereagainst was preferred before the learned First Appellate Court by the defendant, which was registered and numbered as Title Appeal No. 59/2011 and the learned First Appellate Court similar to the Appeal in Title Appeal No. 58/2011 formulated 3 (three) points for determination which were similar to the points for determination framed in Title Appeal No. 58/2011 and the outcome of the said 3 (three) points for determination were also the same as that of the outcome in Title Appeal No. 58/2011. It is under such circumstances, RSA No. 80/2014 has been filed.

ANALYSIS AND DETERMINATION

26. In the backdrop of the above, let this Court now take into account, as to whether, the substantial questions of law so formulated by this Court, as quoted herein above, are involved in the instant Appeal.

27. The first substantial question of law so formulated pertains to, as to whether, an occupancy tenant under the Act of 1971 whose name was duly entered in the Khatian Patta can be ejected from the land under his occupation dehors the provisions prescribed by Section 51 of the Act of 1971.

28. It is relevant to take note of the findings arrived at concurrently by both the learned Courts below, i.e., the learned Trial Court as well Page No.# 26/39

as the learned First Appellate Court. The status of occupancy tenant of the defendants in Title Suit No. 07/2008 as well as the defendant in Title Suit No. 02/2008 were dealt with by both the fact finding Courts.

The learned Trial Court while deciding the Issue Nos. 6 and 9 in Title Suit No. 07/2008 came to categorical findings that the defendants failed to prove by way of any documentary evidence or otherwise that they or their predecessor-in-interest, i.e., late Kalicharan Kalita were tenants under the plaintiffs or their predecessor-in-interest. It was observed by the learned Trial Court that the defendants though had categorically stated in their written statement that the plaintiffs have recognized the defendants as well as their predecessor-in-interest as tenants by issuance of receipts, but the defendants failed to prove any of such receipts. These findings of fact so arrived at by the learned Trial Court in respect to Issue Nos. 6 and 9 have been affirmed by the learned First Appellate Court in the impugned judgment and decree dated 30.08.2013. No perversity in respect to the said findings could be shown before this Court.

29. Now let this Court deal with the findings of facts arrived at by the learned Trial Court as well as the learned First Appellate Court in respect to Title Suit No. 02/2008. The learned Trial Court, while deciding the Issue Nos. 5 and 6 came to categorical findings on facts that the defendant was not a tenant of the plaintiffs under the law.

Page No.# 27/39

The learned Trial Court also held that the defendant had entered his name in the revenue records illegally, unlawfully as well as collusively. Further to that, the learned Trial Court also arrived at findings that the defendant was not the son of late Guneswar Das as the defendant had himself admitted that he is not the son of late Guneswar Das. The learned Trial Court further observed that the defendant was a railway employee serving in the Railway Protection Force (R.P.F.), and as such, being a regular employee of Railway, cannot personally cultivate the suit land to include his name as a tenant. These findings of facts arrived at by the learned Trial Court in its judgment and decree dated 18.07.2011 in Title Suit No. 02/2008 have been confirmed by the learned First Appellate Court in the judgment and order dated 30.08.2013 in Title Appeal No. 59/2011. No perversity to those findings of facts could be shown by the Appellant in the present Appeal.

30. In view of the findings of facts arrived at by the learned Trial Court and the confirmation of the same by the learned First Appellate Court in both the suits, the first substantial question of law so formulated in both the Appeals cannot be said to be involved at all inasmuch as unless the Appellants herein or their predecessors were occupancy tenants under the Act of 1971, the question of application of Section 51 of the Act of 1971 do not arise at all. Under such circumstances, it is therefore the opinion of this Court that the first Page No.# 28/39

substantial question of law so formulated in both the Appeals are not involved.

31. The second substantial question relates to, as to whether, the Civil Court is vested with the jurisdiction to nullify the entries made in the record of rights and in the matter of maintenance of the record of rights, notwithstanding the bar imposed under Section 66 of the Act of 1971.

32. The said substantial question of law so formulated is related to the point for determination A., as formulated by the learned First Appellate Court while deciding both the First Appeals. The learned First Appellate Court in the respective judgment and orders passed on 30.08.2013 in both Title Appeal No. 58/2011 and Title Appeal No. 59/2011, opined that the dispute between the plaintiffs and the defendants were landlord and tenant disputes and Section 68 of the Act of 1971 would apply and not Section 66 of the Act of 1971. It was further opined that the proceedings under Section 23 of the Act of 1971 were initiated and disposed of in gross violation to the mandatory provisions of Section 23 of the Act of 1971 and the Rules 9 to 15 and 16 of the Rules of the Assam (Temporarily Settled Areas) Tenancy Rules, 1972. The said opinions in respect to the point of determination A., appears to be in consonance with the settled law.

33. Additionally, this Court finds it pertinent to observe that a Page No.# 29/39

perusal of the plaints, in both the suits would show that the plaintiffs have sought for declaration of their right, title and interest as well as for recovery of khas possession. Both the fact finding Courts opined that the defendants/the Appellants herein have failed to prove that they were tenants under the plaintiffs. It is also the finding of fact that the learned Additional Deputy Commissioner, Barpeta while passing the order dated 09.05.2003 in T.R. Case No. 1/2002-03 and T.R. Case No. 2/2002-03 did not adhere to the provisions of the Act of 1971 and the Rules framed therein. Nothing could be shown that these findings of facts suffers from perversity.

34. This Court now finds it very pertinent to take note of the judgment of the Constitution Bench of the Supreme Court in the case of Dhulabhai ETC. Vs. The State of Madhya Pradesh & Another reported in AIR 1969 SC 78 wherein the Constitution Bench of the Supreme Court summarized the principles when the jurisdiction of the Civil Court cannot be said to be ousted. One of the principles so set out by the Constitution Bench of the Supreme Court in the said judgment is where the statute gives finality to the orders of the Special Tribunals, the Civil Courts jurisdiction must be held to be excluded if there is an alternative remedy to do what the Civil Courts would normally do in a suit. It was further observed that such proposition would not apply in those cases where the provisions of a particular Act have not been complied with or the statutory Tribunal has not acted in conformity Page No.# 30/39

with the fundamental principles of judicial procedure. The relevant observations of the Supreme Court in the case of Dhulabhai (supra) are reproduced herein below:

"(1) Where the statue gives a finality to the orders of the special tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure"

35. In the instant case, it is the finding of fact of both the fact- finding Courts that the defendants/the appellants herein failed to prove that they were tenants under the plaintiffs and the learned Additional Deputy Commissioner, Barpeta while passing the orders of granting ownership have done so in violation to the provisions of the Act of 1971 and the Rules framed therein under. In that view of the matter, the Civil Court's jurisdiction cannot be said to have ousted by Section 66 of the Act of 1971. Under such circumstances, this Court therefore is of the opinion that the second substantial question of law so formulated cannot also be said to be involved in both the Appeals.

36. The third substantial question of law so formulated in both the Appeals is, as to whether, under the Act of 1971 an occupancy tenant enjoys a permanent, heritable and transferable rights of use and occupancy in the land of his holding. In the opinion of this Court, the Page No.# 31/39

said substantial question of law cannot be said to be involved at all taking into account the defendants/the appellants in both the Appeals herein have failed to prove that they are occupancy tenants.

37. The fourth substantial question of law so formulated is whether in absence of any contrary evidence available on record, the Courts were obliged to draw presumption in respect of correctness to the entries made in the revenue records maintained by the Revenue Authority. In Title Suit No. 07/2008, the defendants therein took the plea that their predecessor-in-interest late Kalicharan Kalita was a tenant under the plaintiffs and were issued Khatian Nos. 11, 3 and 12 by the Assistant Settlement Officer and also that the Pattadars have recognized them as well as their predecessor-in-interest as tenant. It was further mentioned that after the death of late Kalicharan Kalita, the name of the defendants were duly entered as tenants over the suit land. However, the defendants failed to produce any documentary evidence as regards issuance of any Khatian in favour of the defendants by the Revenue Authority. The defendants also averred that they were issued rent receipts which were also not proved. Merely, 2 (two) documents were proved which were only land revenue paying receipts.

Now coming to the case of the defendant in Title Suit No. 02/2008, the said defendant claimed his right through one late Page No.# 32/39

Guneswar Das, but could not show that he had any relation with late Guneswar Das by way of evidence. The findings of facts by both the learned Courts below also showed that the defendant who was the DW1 also stated in his evidence that he was not the son of late Guneswar Das. The learned Courts below have also opined on facts that the entry in the record of rights was done illegally and by not following the provisions of the Act of 1971 and the Rules framed therein under.

Under such circumstances, the discussion of the evidence made by both the learned Courts below clearly showed that the defendants/appellants in both the Appeals could not prove that they were tenants under the plaintiffs. Therefore, the fourth substantial question of law so formulated in both the Appeals are not involved in the instant Appeals.

38. Further to that, the presumption in terms with Section 58 of the Act of 1971, in respect to the correctness of the entry is rebuttable by way of evidence. The materials on record and the findings of facts arrived shows that the learned fact finding Court on the basis of evidence held that the grant of occupancy rights as well as ownership rights were contrary to the mandate to be followed in terms with the Act of 1971 and the Rules framed therein under. In that view of the matter also, this Court is of the opinion that the fourth substantial Page No.# 33/39

question of law cannot be said to be involved in both the Appeals.

39. The additional substantial questions of law which were formulated in the instant Appeals were, as to whether, the suits so filed by the plaintiffs being Title Suit No. 02/2008 as well as Title Suit No. 07/2008 could have been filed without making the State of Assam or the authority granting the ownership rights as parties to the suit. In other words, the substantial question of law deals with the question, as to whether, the State of Assam or the Additional District Commissioner were necessary parties to the suit.

40. At the outset, it is relevant to take note of that in the written statements so filed by the defendants they only mentioned that the suit is bad for non-joinder of necessary parties. There was no mention whatsoever, as to who, was the necessary party and in whose absence the suit cannot be decided. In the opinion of this Court, when objections are taken in the written statement on the question of maintainability of the suit and, more particularly, on the question of non-joinder of necessary parties, there is requirement of stating in a precise manner, as to who, are the necessary parties, in whose absence the suit cannot proceed. The settled principles of law distinguishes the concept of necessary party with that of proper party inasmuch as a necessary party is one without whose presence no suit can proceed and relief(s) can be granted whereas proper party is one Page No.# 34/39

whose presence is desirable for an effective adjudication. It is in this aspect pertinent to observe that Order I Rule 9 of the Code do not permit a suit to be defeated by reason of mis-joinder or non-joinder of parties, but the proviso to the said Rule stipulates that the said Rule shall not apply insofar as non-joinder of necessary party. In this regard, this Court finds it relevant to take note of the judgment of the Supreme Court in the case of Laxmishankar Harishankar Bhatt Vs. Yashram Vasta (DEAD) By Lrs. reported in (1993) 3 SCC 49. Paragraph No. 11 of the said judgment is reproduced herein under:

"11. A careful reading of above clearly discloses that there is no clear averment as to who are the co-owners and what exactly is the nature of right claimed by them. A vague statement of this character, in our considered opinion, could hardly be sufficient to non-suit the appellant on the ground of non-joinder of parties. We are unable to comprehend as to how the trial court had come to the conclusion that the executants of the sale deed dated February 12, 1968 could not pass a full title when it itself points out that the shares of the other co-owners were not known. Maybe the appellant took the stand that it was not necessary to implead others but that does not mean the appellant is liable to be non-suited. The stand of the appellant is consistent with his case that he has come to acquire the entire ownership of the suit property. Therefore, the courts should have insisted on some material or record as to the existence of other co-owners and their rights pertaining to suit properties. In juxtaposition to revenue record, there must be some worthwhile evidence for the court to conclude that there are other co- owners. Genealogical tree filed along with the written statement cannot point to the existence of co-owners without specific evidence in this regard. Such an evidence is totally lacking in this case. Therefore, we find it equally impossible to accept the finding of the High Court when it endorsed the view of the trial court in Page No.# 35/39

this regard. Accordingly, we conclude that in the absence of a specific finding as to whether there are other co-owners and how they are necessary parties, the suit could not have been dismissed for non-joinder of necessary parties. On this conclusion, we think it is unnecessary to go into the legal aspect as to whether in the absence of other co-owners, one co-owner could maintain a suit."

41. This Court further finds it relevant to observe that on the basis of the said averment that the suit was bad for non-joinder of necessary parties. Issue No. 3 was framed in both the suits, as to whether, the suit is bad for non-joinder of necessary parties. The records reveal that the said Issue No. 3 were decided against the defendants on the ground that the defendants did not press the issue at the time of trial. It is also seen that the defendants in the First Appeals also did not raise the said aspect. In this regard, this Court finds it apposite to refer to a judgment of the Supreme Court in the case of Beharilal & Another Vs. Bhuri Devi (SMT) & Others reported in (1997) 2 SCC 279

wherein the issue involved was whether it was necessary to implead the Mandi Committee as a co-defendant when there was a challenge to the cancellation of the Patta against the plaintiff and land allotted in favour of the defendant. In the said proceedings, the Supreme Court while dealing with the said question, as to whether, failure to implead the Mandi Committee had rendered the suit as invalid, observed at paragraph Nos. 8 and 9 that though such a plea was raised in the written statement about non-joinder of necessary parties Page No.# 36/39

and the issue was also framed, but the Trial Court had negatived it and thereupon the same was not pursued. The effect of not pursuing was dealt with by the Supreme Court at paragraph Nos. 8 and 9 of the said judgment which being relevant are reproduced herein under:

"8. The next question is: Whether the failure to implead the necessary parties, i.e., the Mandi Committee, renders the suit as invalid? Order 1 Rule 13, CPC envisages thus:

"13. Objections as to non-joinder or misjoinder.- All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived."

9. Though the respondent has pleaded in the written statement the non- joinder of necessary parties and an issue was raised, the trial court had negatived it and the same was reiterated and argued before the learned Single Judge. The learned Single Judge also has held that though the Government may be a proper party to the suit, but since claim for possession is not being sought for against the Government or Mandi Committee they are not necessary parties. The decree for possession granted by the trial court may not bind the Government on that ground. However, the omission to implead the Government or the Mandi Committee as a co-defendant is not vitiated by Order 1, Rule 13 CPC. Therefore, the suit need not be dismissed on the ground of their non-joinder. As seen, these findings were allowed to become final, since that aspect of the matter was not argued before the Division Bench. The respondent waived that objection before the Division Bench. Thus, it is not open to the appellants to raise that objection in this appeal. It is accordingly rejected."

42. Another vital aspect which this Court also finds it pertinent to Page No.# 37/39

deal with in view of the arguments made that the State of Assam as well the authority granting ownership were necessary parties is to consider, as to whether, the State of Assam as well as the authority granting the ownership to the defendants were at all necessary parties.

43. From the materials on record, it is seen that the suit lands admittedly are not Government lands. By exercise of power under the Act of 1971, the learned Additional Deputy Commissioner had conferred ownership of the lands belonging to the plaintiffs to the principal defendants in both the suits. There was no vesting of any rights over the suit lands upon the Government of Assam or any land of the Government of Assam being allotted to the defendants.

44. In the case of Doraiswami Goundan Vs. Subramania Mudaliar reported in AIR 1950 Mad 659, it was held that in a suit between private parties where the issues were whether Section 44-B of the Madras Hindu Religious Endowments Act was ultra vires and whether the orders passed by the Revenue Officers were void and without jurisdiction and when no relief was asked against the Government, the Government was not a necessary party to the suit, though it was a proper party.

45. In the case of Thakur Laxman Singh Vs. Thakur Raj Jujar Singh reported in (1953) SCC OnLine RAJ 207 wherein, in a suit filed, the Page No.# 38/39

plaintiff questioned the order of her highness the Dowager Maharani dated 20.11.1948 on the ground of jurisdiction, one of the issues so formulated in the said proceedings was whether the Government of Rajasthan was a necessary party to the suit. The learned Trial Court decided that the Government was not a necessary party though the order of Raj Mata Saheba dated 20.11.1948 was questioned in a Court of law. An Appeal thereagainst was filed before the learned District Judge who opined that the Government was a necessary party and directions were issued that the Government of Rajasthan should be made a party for the right and correct decision of the suit. An Appeal thereagainst was filed before the Rajasthan High Court wherein the learned Division Bench of the Rajasthan High Court opined that the Government was not a necessary party. In the said judgment, the learned Division Bench of the Rajasthan High Court observed that the act on the part of the sovereign authority i.e. Raj Mata Saheba dated 20.11.1948 for ordering transfer of the disputed property from the plaintiff to the defendant, no right of the Government was affected, for which, it was not necessary to make the State a party. It was further observed that it is not necessary that the State should be made a party in every suit in which an order of such nature was challenged.

46. This Court is in agreement with the propositions of law so settled by the Madras High Court as well as the Rajasthan High Court.

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Accordingly, the State of Assam at best can be said to be a proper party, but not a necessary party to the suit. As the consequence thereof is that by virtue of Order I Rule 9 of the Code, the suits so filed cannot be defeated. In that view of the matter, the additional substantial question of law so formulated in both the Appeals on the basis of orders passed by this Court on 09.08.2022 are not involved.

47. Accordingly, both the Appeals stands dismissed with costs quantified at Rs. 11,000/- in each Appeal.

48. The judgments and decrees passed by both the learned Courts below stands confirmed.

49. The records of the learned Courts below be returned.

JUDGE

Comparing Assistant