IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA:

MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH)

REGULAR SECOND APPEAL NO. 144/2006

1. SRI RABI URANG, 2. SRI RAM URANG, Both are the sons of Late Thuta Urang. 3. SRI BIRSA URANG,

Son of Late Digri Urang, All are resident of Village: Rakhyasini, Goalpara, P.S. Marnoi, District: Goalpara.

On the death of appellant No. 2, his legal heirs are – 2. (i) Smti Monika Bala Urang (wife) (ii) Sri Dhrubajyoti Urang (son) (iii) Smti Dipa Urang (daughter) On the death of appellant No. 3, his legal heirs are –

3.(i) Rimani Urang (wife) (ii) Hakim Urang (son) (iii) Bistu Ram Urang (son) (iv) Mukil Urang (son) (v) Bhupen Urang (son) (vi) Ukil Ch. Urang (son)

…APPELLANTS/PLAINTIFFS.

-VERSUS- 1. SMT. USHA RANI GHOSE,

W/o. Shri Shyamacharan Ghose, resident of Village Goaltuli, Goalpara Town, PS & District – Goalpara.

.......RESPONDENT/DEFENDANT

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BEFORE HON’BLE MRS JUSTICE ANIMA HAZARIKA

Advocates for the appellants : Mr J. Ahmed,

Mr J. Sinha, Mr J Ali,

Advocates for the respondent : Mr B. Banerjee,

Mr A. Roshid, Ms T. Yesmin,

Date of hearing : 03.04.2012 Date of delivery of judgment : 31.7.2012 (cav)

JUDGMENT AND ORDER

The instant appeal has been filed challenging the legality

and validity of the Judgment and Decree passed by the learned

District Judge, Goalpara in Title Appeal No. 5/2004 whereby and

whereunder the learned District Judge allowed the appeal

preferred by the respondents herein by setting aside the judgment

and decree passed by the learned trial Court The appellants herein

were the defendants on the file of the learned Civil Judge (Sr.

Division), Goalpara in Title Suit No. 12/2001.

2. The brief facts of the case is narrated hereunder in order to

adjudicate the substantial questions of law as formulated by the

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court at the time of admission of the appeal which would be

referred subsequently and in appropriate place.

The respondent herein as plaintiff has brought a suit against

the appellants herein as defendants in the court of the learned

Civil Judge (Sr. Division), Goalpara seeking the following reliefs:-

“1) For possession of the suit land after ascertaining

the title of the plaintiff over the suit land.

2) For cost of the suit.

3) For any other relief to which the plaintiff is entitled in

law and equity.”

3. The pleaded facts as averred in the plaint is that the

plaintiffs had 12 Bighas of land in village Rakshyasini Garopara,

Part-II under Matia Circle under Touzi No. 88 fully described in the

schedule of the plaint. She had possessed the land till October,

1995. However, during the last settlement operation in 1962 the

land was wrongly recorded as khas by the Government of Assam.

Taking advantage of such recording, the defendants dispossessed

the plaintiff in November, 1995 from 6 Bighas 4 Kathas of land in

collusion with the Assistant Settlement Officer (‘ASO’ for short),

Matia and got their name recorded as “Dakhaldar” resulting in

initiation of a proceeding under section 145 of the Code of Criminal

Procedure, whereof the possession was declared in favour of the

defendants and taking advantage of the order of possession, the

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defendants have dispossessed the plaintiff from the entire 12

Bighas of land in the month of April, 2000. It has also been pleaded

that the plaintiff brought a suit being Title Suit No. 55/96 against

the State of Assam without arraying the defendants as party

defendants seeking declaration of right, title and interest without

seeking possession. The said suit is decreed declaring the right,

title and interest of the plaintiff. It is further averred that the

defendants have instituted a criminal case against the plaintiff

along with two others which ended in acquittal and hence, the suit

for possession only.

4. The defendants contested the case by filing written

statement taking all the pleas available under Order 8 of the Code

of Civil Procedure (‘Code’ for short) contending inter alia that the

plaintiff had practised fraud on Court by instituting the Title Suit

No. 55/96 without impleading them as party defendants though

they are in possession of the suit land since 1960 and the decree

obtained in Title Suit No. 55/96 is not binding on them in absence

of arraying them as party defendants wherefor they have set up

counter claim for declaration that they are not bound by the

judgment and decree passed in the title suit being TS No. 55/96

and accordingly, prayed for setting aside the said decree, with an

injunction against the plaintiff restraining her from taking over

possession of the suit land. The defendants have further averred

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that the suit land was khas and their predecessor had cleared

jungle and possessed it and on the basis of possession, the

possessor have been recorded as ‘Dhakhaldar’ in the record of right

and they have also been paying land revenue thereby prayed for a

decree on counter claim dismissing the suit of the plaintiff.

5. The plaintiff on setting up the counter claim by the

defendants thereof filed the written statement challenging the

maintainability of the counter claim for want of cause of action.

She has further asserted that the defendants have no right, title or

interest over the suit land and accordingly prayed for dismissal of

the counter claim.

6. The trial court upon the pleadings of the parties has framed

the following Issues:

“(i) Whether there is any cause of action in the suit?

(ii) Whether the suit is barred by limitation?

(iii) Whether the plaintiff has got right, title, interest and

possession over the suit land?

(iv) Whether the defendants forcibly dispossessed the

plaintiff in November, 1995 from 6 B 4 K of land out of

the suit land?

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(v) Whether the defendants recorded their names as

‘Dakhaldar’ on the said 6 Bighas 4 Kathas in collusion

with the revenue officials of Matia Circle of Goalpara?

(vi) Whether the plaintiff is entitled to the decree as

prayed for?

(vii) To what other relief/reliefs the parties are entitled?

Additional Issues:

(vii) Whether there is cause of action for counter claim?

(ix) Whether the defendants are bound by the judgment

and decree of earlier Title Suit No. 55/96?

7. During trial, the plaintiff has examined as many as 5

witnesses and exhibited certain documents whereas the defendants

have examined 6 witnesses and exhibited certain documents to

substantiate their case.

8. The learned trial court after going through the evidence on

record and upon hearing the parties decided the Issue No.1 in the

affirmative and Issue No.2 in the negative. Issue No.3 was decided

by the learned trial court in the negative holding that the plaintiff

has failed to prove the source of title and the evidence led is

beyond the pleading which is not admissible and therefore, cannot

claim right and title over the suit land. The learned trial court

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decided the Issue No. 4 against the plaintiff and answered Issue

No. 5 in the negative. While deciding Issue No. 9, the learned trial

court has held that the judgment rendered in Title Suit No. 55/96

cannot bound the defendants since they were not impleaded as

party defendants in the suit and accordingly answered in the

negative and at the same time Issue No. 8 framed in the counter

claim was answered in the negative and in view of the findings

arrived at relating to decree and the reliefs sought for in the suit

at Issue Nos. 6 and 7, the learned trial court dismissed the suit of

the plaintiff and simultaneously dismissed the counter claim of the

defendants.

9. On appeal by the plaintiffs, the learned appellate court set

aside the decree of the learned trial court holding that the Exhibit-

I certified copy of Touzi No. 88 of Rakshyasini Garopara, Part-II of

Goalpara under Mechpara Acquired Estate, Lakhipur would reveal

that the plaintiff had 12 Bighas of land under Mechpara Acquired

Estate which is a public document and is thus admissible under

section 77 of the Evidence Act. The learned appellate court relying

on the evidence of PW 1, PW 2 and PW 3 came to a clear finding

that two Lot Mandals, PW 2 and PW 3 have deposed that during the

settlement operation in the year 1962, the land measuring 12

Bighas was recorded as khas and the plaintiff was recorded as

‘Dhakhaldar.’ Therefore, the plaintiff brought a suit being TS No.

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55/96 against the State of Assam whereby the learned trial court

decreed the suit declaring right, title and interest over the 12

Bighas of land in favour of the plaintiff, however, the appellate

court has held that the land was recorded as khas wrongly and the

name of the plaintiff was recorded as ‘Dakhaldar’ instead of

recording her name as ‘Pattadar’. Accordingly, the learned

appellate court restored her right, title and interest over the suit

land, thereby answered Issue No. 3 in the affirmative in favour of

the plaintiff and against the defendants. The appellate court has

further held that since the defendants have not filed any appeal

against the dismissal order of their counter claim, the same has

attained its finality.

10. The learned appellate court while deciding Issue No. 4 has

held that the pleaded facts of the defendants were that they have

been possessing the suit land since 1960 after clearing the jungle

from there. Whereas, the plaintiff has ascertained that the

defendants have dispossessed her from the suit land in November,

1995 from the 6 Bighas 4 Kathas land out of 12 Bighas of land. The

claim of dispossession by the defendants as alleged in the plaint

have been denied by the defendants relying on revenue payment

receipt vide Ext. Kha (1) to Kha (5) which relates to the years 1996

to 1998 and 2002, which was however, dis-believed by the

appellate court as well as the story of possession since 1960 as

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pleaded by the defendants and accordingly answered the Issue No.

4 in affirmative whereas the Issue No. 5 is answered in negative

and against the plaintiff. The appellate court in view of the

decision arrived at in Issue Nos.3 and 4 allowed the appeal and

hence the instant Regular Second Appeal.

11. This court while admitting the regular second appeal have

formulated the following substantial questions of law;-

(i) Whether the judgment and decree dated 30.3.2000

passed in TS No. 55/96 is binding on the appellant and

whether the same was obtained fraudulently without

impleading the appellant as party or not?

(ii) Whether the plaintiff is entitled to get decree on the

ground that the appellant did not prefer any appeal

against the dismissal of counter claim filed by the

appellant and the plaintiffs preferred appeal against

the dismissal of the suit?

(iii) Whether the plaintiff has right, title and interest over

the suit land and although the same is sarkari land

whether the suit lies claiming right, title and interest

over the sarkari/Government land?

(12) Opening the argument, Mr. J. Ahmed, learned counsel

appearing for the appellant has drawn the attention of the Court to

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the pleaded facts of the parties and evidence on record adduced

during the trial and would contend that the plaintiff has miserably

failed to prove her case in respect of right, title and interest over

the suit land since the source of right, title and interest which goes

to the root of the case having not been established, the plaintiff

cannot be allowed to take advantage of the weakness of the

defendants, more so, when there are contradictions in respect of

Ext.1 and evidence of PWs-1, 2 and 3, the decree passed by the

learned appellate court requires interference under Section 100 of

the Code being perverse.

(13) Mr. Ahmed would further contend that the decree obtained

in TS No.55/96 without impleading the defendants as party

defendants cannot bind them since the same has been obtained

fraudulently and the counter claim though dismissed cannot debar

them to question the legality and validity of the decree obtained in

TS No.55/96 though it is the pleaded facts of the plaintiff that she

was dispossessed from the suit land in the month of November

1995 and no suit would lay against the Sarkari/Government land

and the decree obtained declaring her right, title and interest

over the suit land has no binding force in the eye of law which

require interference being the substantial questions of law.

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(14) In support of his contention, Mr. Ahmed has placed reliance

on the following decisions;

(a) (2006) 1 SCC 168

Ramlal and another –vs- Phagua and others

(b) (2009) 9 SCC 346

Dubaria –vs- Har Prasad and another.

(15) Per contra, supporting the judgment delivered by the first

appellate court, Mr. Banerjee, learned counsel appearing for the

respondent would contend that the substantial questions of law

formulated by the Court would not come within the purview of

Section 100 of the Code because of the fact that though the

plaintiff brought a suit being TS No.55/96 seeking a decree for

declaring her right, title and interest over the suit land which was

decreed against the State of Assam since the land was recorded as

‘Khas’ and defendants were not added as party defendants, which,

however, has been challenged in the suit being Title Suit No.

12/2001 in the form of counter claim and the counter claim has

been dismissed by the trial Court and no appeal being preferred

against the order passed by the Court dismissing the counter claim

and decree obtained has attained the finality, plaintiff has every

right to claim right, title and interest against the State of Assam

when the suit land was recorded as ‘Khas’ and hence, the decree

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obtained cannot be interfered with under the guise of Section 100

of the Code.

(16) In support of his contentions, Mr. Banerjee has referred to

the decision reported in (1989) 2 SCC 685, Maniar Ismail Sab and

Others –vs- Maniar Fakruddin And Others.

(17) Considered the arguments advanced by the contesting

parties, perused the pleadings set forth by the parties along with

the evidence on record as well as the judgment rendered by both

the courts below. Admittedly, the plaintiff brought the suit for

possession after ascertaining the title. In the suit, the plaintiff has

pleaded that she had a Touzi No 88 comprising 12 Bighas of land in

village Rakhyasini Garopara part II under Matia circle and she was

possessing the entire 12 Bighas of land till October 1995 when the

same was made ‘Khas’ during the settlement operation in the year

1962 and taking advantage of the land being made ‘Khas’, the

defendants had dispossessed her from 6 Bighas 4 Kathas of land out

of the suit land and accordingly, brought the suit being TS

No.55/96 against the State of Assam seeking decree of right, title

and interest which was decreed after hotly contested by the State

of Assam.

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(18) The defendant contested the suit by filing written statement

contending that they have been in possession of the land since

1960 and the decree obtained in TS No.55/96 is not binding on

them. They further averred that the suit is barred by limitation

and they are in continuous possession of the land for the last 40/42

years and the plaintiff has had no Touzi No. 88 and they have not

dispossessed her from the suit land. In the suit, the defendants

have set up counter claim seeking following reliefs :-

“(a) For declaration of the setting aside of the decree and

judgment of TS No. 55/96 of this Court.

(b) For the declaration that the defendants are not bound

by the decree and judgment of TS No. 55/96.

(c) For the declaration that the judgment and decree is

inoperative against the defendant.

(d) For injunction, restraining the plaintiff from

dispossessing the defendants.

(e) For costs of the suit.”

19. The basis of counter claim as averred would disclose that the

plaintiff filed the Title Suit No.55/96 when Lot Mandal and

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Kanungo threatened to evict her from the suit land and the suit

thus filed for declaration of title and injunction against the State

of Assam without impleading the defendants though she knew that

she is/was not in possession of the suit land. They have further

averred that the plaintiff by amending the plaint had pleaded that

during the last settlement operation in 1960, the suit land was

made ‘Khas’ and included in Dag No. 76 (35) in Rakhyasini

Goropara Part(II) and she was in possession of the suit land

although it was made ‘Khas’ and State of Assam had taken T.B.

revenue for 6 Bighas 4 Kathas of land out of 12 Bighas in the year

1401 B.S. and in the settlement operation in 1994, the suit land

was included in Dag No. 75/35, 140, 78/35, 75/140 whereas the

suit land was under possession of predecessor-in-interest of the

defendants by clearing the jungle thereon since 1960 and had been

possessing the suit land on their own right peacefully, openly and

adversely against all including the plaintiff, thereby the defendants

have acquired right title and interest over the suit land if the

plaintiff had any means of prescription.

20. In reply to the counter claim, the plaintiff has asserted that

during the settlement operation in the year 1960, the suit land was

made ‘Khas’ illegally in spite of the fact that the plaintiff has been

in possession of the entire 12 Bighas of land and she was assessed

T.B. revenue for the entire 12 Bighas and paid the T.B. rent till last

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part of 1995, but taking advantage of the suit land being made

‘Khas’, the defendant tresspassed into the suit land and with the

help of the A.S.O. Matia got a part of the said Touzi land recorded

in their name as ‘Dakhaldar’ in the month of February 1996 over 6

Bighas 4 Kathas of the suit land and as the title suit was brought

against the State of Assam, the real owner of the land, the State of

Assam contested the suit and the plaintiff got the decree. The

plaintiff has further averred that the defendants admitted that the

land was made ‘Khas’ but they did not take steps for settlement of

the suit land in their favour though two settlement operations had

already been over, therefore, the decree passed in T.S. No. 55/96

cannot be set aside, defendant having no title over the suit land /

part of the suit land, therefore, they are not entitled to any relief

as claimed in the counter claim.

21. The entire case rests on the evidence of PW.-2 and PW.-3,

the official witnesses. A glance on the evidence of PW.-2 and PW.-

3 would reveal that PW.-2 is the Lot Mandal of Matia Circle who

has deposed that Dag No. 35/76 covers the land measuring 12

Bighas 1 Kathas 6 Lechas and at present the land measuring 6

Bighas 4 Kathas stand in the name of the defendants and rests

stand in the name of the plaintiff and her husband. During the year

1962, when the settlement operation was made, it was made

‘Khas’ and at that point of time the name of Usha Rani Ghosh was

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shown as ‘Dakhaldhar’. Thereafter on the application No. 1415

dated 12.12.1996 and application No. 475 dated 22.2.1996 as well

as the order passed by the A.S.O. dated 1.3.1996, the name of

Usha Rani Ghosh was deleted and in her place the name of Birsa

Urang, son of Digri Urang and Ram Urang, son of Thula Urang were

shown as ‘Dakhaldhar’ and rests stand in the name of Shyam

Charan and Usha Rani, however the two applications could not be

brought on the date of deposing before the court. In cross-

examination PW.-2 admitted that in the chitha record there is no

mention of old Touzi and that he has not brought the Touzi

Khatian of Mechpara Estate and in whose name it stands he could

not say with out looking into the original records. PW.-2 has also

stated that he has brought only the record of land measuring 6

Bighas 4 Kathas and earlier it was 12 Bighas 1 Katha 6 Lechas and

there is no mention of rests of the land in the record. PW.-2

further stated that, “it is not a fact that the name of Usha Rani

was not recorded in the record.”

22. PW.-3 Jiten Chandra Das deposed that on receipt of summon

he has brought the record from the office, but the application

dated 12.2.1996 being No. 414 and application No. 475 dated

22.2.1996 could not be traced out. On the direction of A.S.O., the

Lot Mandal submitted the report and he has brought that record.

PW3 further deposed that, at that relevant time Gunindra Chandra

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Das was the Lot Mandal and he had submitted the report vide Ext-

4. On 30.3.1998 initially the name of Chandmohan Ghosh, Usha

Rani and Shyam Charan Ghosh were shown as ‘Dakhaldar’ in the

record. On the basis of the application No. 415 and application

No.475 dated 22.2.1996 and on the direction of A.S.O., the name

of Usha Rani was deleted and the name of Birsa Urang, son of Digri

Urang and Ram Urang, son of Thumba Urang were recorded.

Before the order of A.S.O., the name of the defendants were not

recorded as ‘Dakhaldar’. PW3 has stated that he has deposed after

going through the Chitha. In cross examination PW3 deposed that

there was no Touzi Dag No. 88 in the name of Usha Rani Ghosh but

Dag No. 76/35 the name of Usha Rani has been recorded as

‘Dakhaldar’. In Ext.4 the land was recorded as ‘Khas’ and in

earlier the name of Tazin Marak was shown. Other suggestion made

to him was denied.

23. A reading of the depositions of PW2 and PW3 would amply

demonstrate that the plaintiff claimed the right, title and interest

over the suit land on the basis of ‘Dakhaldar’ and the source of

title rests on ‘Dakhaldar’. Similarly the pleaded facts of the

defendants that they are occupying the land since 1960 could not

be proved. The Ext. Kha (1) to Kha (5) relates to the year 1996,

1997, 1998 and 2002 whereby they were shown as ‘Dakhaldar’. The

source of title of the plaintiff being rests on ‘Dakhaldar’ which has

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been proved by PW2 and PW3, the appellate court has rightly set-

aside the decree of the learned trial court.

24. Now the substantial question of law as formulated at the

time of admission is required to be answered. Admittedly there is a

decree in T.S. No. 55/96 in favour of the plaintiff declaring her

right, title and interest over the suit land vide Ext.3, though the

defendants were not arrayed as party defendants in T.S. No.55/96.

But, however, the defendants in T.S. No. 12/01 have set up a

counter claim which has been dealt with by the learned trial court

in issue No. 8 wherein the trial court answered the issue in

negative against which no appeal has been preferred by the

defendants and it has attained its finality. The counter claim

having been answered in the negative, thereby the right, title and

interest of the plaintiff has been decreed meaning thereby, the

suit brought against the defendants for possession of the suit land

stands since her right and title has been established by a decree

passed by a competent court. Therefore, the substantial questions

as formulated are not the substantial question of law requiring

interference under Section 100 of the Code.

25. The decision cited and reported in 2006 (1) SCC 168 (supra)

relates to the ambit and power under Section 100 of the Code,

wherein the Apex court has held that when the court below erred

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in not appreciating oral and documentary evidence properly, the

High Court is at liberty to re-appreciate evidence and record its

own conclusion reversing the orders passed by lower courts below.

Now, let us see how far the decision cited would help the

appellants. The plaintiff had obtained a decree in T.S. No. 55/96

wherein her right, title and interest over the suit land was

established. Subsequently, on dispossession over the suit land, the

plaintiff brought the suit for possession after ascertaining the title.

The title has been established in earlier suit, but the trial court

dismissed the suit only on the ground that the plaintiff has failed

to prove her source of title. A reading of the plaint coupled with

evidence on record it has been established that, the plaintiff has

been dispossessed by the defendants. The appellate court after

appreciating the evidence of dispossession, decreed, the suit

setting aside the judgment of the learned trial court. The decision

cited by the learned counsel appearing for the appellant, thus do

not help him in the facts and circumstances of the case.

26. The other decision reported in (2009) 9 SCC 346 (supra)

wherein the power of the High Court, under Section 100 of the

Code has been explained by the Apex court. There is no ambiguity

on the power of the High Court under Section 100 of the Code. In

the case in hand, the plea set up by the plaintiff for dispossession

has been proved by the record produced by PW2 and PW3 which

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has been lost sight of by the learned trial court and on re-

appreciation of evidence on record, the decree has been set-aside

by the appellate court. This Court does not find any infirmity in the

judgment rendered by the lower appellate court.

27. In the case of Maniar Ismail Sab (supra) referred to by Mr.

Banerjee, learned counsel appearing for the respondents, the Apex

Court has held that a second appeal under Section 100 of the Code

can be entertained by the High Court only if a question of law

arises in the case. In the present case in hand, there being no

substantial question of law, the decision referred to is squarely

applicable in this case.

28. The Court after going through the entire evidence on record

and the pleadings set forth by the parties to the suit and the

judgment rendered by both the courts below does not find any

substantial question of law as formulated required to be interfered

with the decree passed by the lower appellate court.

29. In the result the appeal fails and accordingly dismissed. The

parties are left to bear their own costs.

30. Send down the Lower court records.

JUDGE Mdb/gunajit/naba

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