Assam Schedule VII, Form No.132. - Karimganj District Judiciary

Title Appeal No. 01- 2014

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Assam Schedule VII, Form No.132.

HIGH COURT FORM NO.J(3).

HEADING OF JUDGMENT IN APPEAL District:- Karimganj. In the Court of District Judge, Karimganj Present:- Shri K. Choudhury, LL.M., District Judge, Karimganj.

Friday, the 29th day of August, 2014 Title Appeal No. 01 OF 2014.

1. Smti. Khiti Bala Das, 2. Sri Ajit Kumar Das, 3. Smti Jayanti Banik (Das), 4. Smti Joya Nath (Das), 5. Smti. Maneka Roy (Das) ……….……….…….…………….. Plaintiffs/ Appellants,

-versus-

1. Sri Jyotirmoy Deb, 2. The President, Winners Club, Ramoni Sagar Road, 3. The Karimganj Municipal Board, 4. The Deputy Commissioner, Karimganj 5. The Commissioner & the Secretary, Assam Urban Development Department, Karimganj 6. The Director, Assam Urban Development, 7. The Settlement Officer, Karimganj 8. The State of Assam ……………………….. Principal defendants/respondents, 9. Smti Nomita Das, 10. Sri Bibhash Das, 11. Sri Partha Das, 12. Smti Mita Das ..…………………………… Proforma defendants/respondents. This appeal coming on for final hearing on 07/08/2014 & 13/08/2014 in presence of: 1. Mr. D.D. Sarmah …………….….………… Advocate for Plaintiffs/Appellants, 1. Mr. A. Rashid 2. Mr. A. B. Deb ………………………………………….. Advocate for the Respondents. And having stood for consideration to this day the Court delivered the following

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J U D G M E N T 1. This is an appeal filed against the impugned judgment

and decree dated 21/11/2013 & 29/11/2013 passed by ld. Civil Judge,

Karimganj in Title Suit No. 01 of 2011 dismissing the plaintiff suit. Being

highly dissatisfied and aggrieved with the impugned judgment and decree

plaintiffs/appellants filed this appeal mainly with the following grounds:-

(i) That the findings of the ld. trial court are not based on facts and

materials on the record causing serious miscarriage of justice.

(ii) That in the schedule II of the plaint the suit land has been

specifically described being covered by settlement surveyed dag

no. 5044 of Mouja Karimganj Town of Ward No.22 Karimganj Town

with boundaries which is sufficient for identification of the suit

land but the ld. trial court perversely and illegally decided the issue

no. 3 holding that suit land has not been properly described.

(iii) That in the description of schedule I of the plaint it has been

specifically mentioned as plot No. 139 of deed of gift dated

15/08/1913 or 16/08/1913, the Ext.10. But the ld. trial court in

para No.14 of the impugned judgment perversely held that this fact

was not pleaded in the plaint.

(iv) That the ld. trial court did not read and consider the averments of

the plaint and ocular evidence of the PW 1 and the documentary

evidence marked as Ext. 6, 7, 8, 9 & 10 which conclusively proved

the right and title of the predecessor of the plaintiffs/appellants

over both the scheduled land.

(v) That ld. court below failed to consider that defendant No.1, 2 & 3 in

their separate written statements claimed different source of title

and the defendant No.3 failed to adduce any evidence in respect of

acquisition of title over the suit land.

(vi) That ld. trial court illegally gave importance to the ‘khatian’

prepared in favour of the defendant No. 3 and decided the issue no.

5 illegally against the plaintiffs/appellants.

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2. The plaintiff’s/appellant’s case in brief is that originally Aditya

Charan Das (Roy) and Ramprasad Das (Roy) since deceased were the

owners of the 1st schedule land consisting the plot nos. 1 & 2 of the schedule

II land. Aditya Charan Das died issueless whereas Ramprasad Das died

leaving only one son namely Ramani Mohan Das (since deceased).

Accordingly, Ramani Mohan Das succeeded to the estate left by both his

father and father’s brother said Aditya Charan Das as per the then Hindu

Law.

3. Gunamayi Dasi, the wife of said Aditya Charan Das had only the

right of life estate in the property of her husband. Accordingly, both

Ramani Mohan Das and Gunamayi Dasi had been jointly possessing the land

of the schedule I with other land in assertion of their respective right, title

and interest thereto.

4. Gunamoyi Dasi vide deed of gift dated 15/08/2013 or

16/08/2013 gifted her limited right and interest being 50% share in the

joint property in favour of Ramani Mohan Das. As a result Ramani Mohan

Das became the absolute owner of all the properties left by his father and

said father’s brother. Ramani Mohan Das excavated a big tank on his own

land falling in the north eastern portion of the 1st schedule land and his

other land. The tank is named as Ramani Sagar. The said tank is still in

existence towards the north-eastern direction of the 2nd schedule land

intervene by a path running over the land of said Ramani Mohan Das.

5. Ramani Mohan Das died leaving behind two sons namely

Harendra Das & Hrishikesh Das who also died. Present plaintiffs are the

heirs of late Harendra Das, and the proforma defendants are the heirs of

Hrishikesh Das.

6. With the passing of time the topography and feature of the land

left by Ramani Mohan Das in and around the 1st schedule land has

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undergone change owing to increase of population and building up of new

houses. During Settlement operation after the acquisition of the permanent

settled estate taluks, the land left by Ramani Mohan Das was surveyed in

different plots in separate surveyed dags and many of them were recorded

in the name of Harendra Das and Hrishikesh Das and many of these plots

were illegally recorded in the name of the Karimganj Municipality and some

other persons having no right, title, interest or possession thereto.

7. The predecessor of the plaintiffs and proforma defendants on

several occasions submitted objection petitions to the Settlement Officer for

collection of records and for issuing Khatians, Pattas to them in respect of

the 2nd schedule land and some other lands but no action had been taken

being influenced by some powerful persons under the shelter of the

Karimganj Municipality.

8. In one of the like case late Harendra Das and Hrishikesh Das

had filed Title Suit No. 207 of 1989 in the court of the then Civil Judge, Jr.

Devn. No.1 now Munsiff No. 1 Karimganj against the Karimganj Municipal

Board and the defendant Nos. 4, 7 & 8 and some other persons in whose

favour Settlement records were illegally prepared in respect of surveyed

dag no. 5492 of Mouja Karimganj town sheet no. 64/3 and the said suit had

been decreed in favour of the plaintiffs and others.

9. Predecessors of the plaintiffs and proforma defendants being

owners had been possessing the land under plot no. 1 & 2 of the 2nd

schedule land. After that the plaintiffs and the proforma defendants also

had been possessing he said land asserting their right, title and interest

thereto. In the later part of the 2007 the principal defendant No.1

trespassed in a portion of the said plot 1 and constructed a ‘katcha’ house

thereon and blocked the entry of the plaintiffs on the land of dag no. 5044.

At the same time some other persons constructed a house on plot no.2 of

the schedule II land and named it as Winner’s Club. It is alleged that the

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defendant No.3 in collusion with defendant No.1 and other defendants were

attempting to create some illegal and fraudulent documents to grant

settlement/allotment of plot no.1 to the defendant No.1. The plaintiffs

therefore served legal notices to the defendant no.3 to 8 along with a notice

u/s. 80 CPC and u/s. 326 of Assam Municipal Act on 15/11/2010. Having

received the notices defendants gave vague reply denying right and title of

the plaintiffs. None of the defendant nos. 1 to 3 had any right and title on

the schedule II land. Hence, the suit was filed with a prayer for passing a

decree declaring right, title and interest jointly in favour of the plaintiffs

and proforma defendants on the land mentioned in the schedule II of the

plaint and for recovery of khas possession of the said land by way of

eviction of the defendant Nos. 1 & 2 or any other persons claiming under

them by dismantling the house standing thereon. Prayer was also made for

declaration that the defendant No.3 and the defendants Nos. 1 & 2 had got

no right, title and interest over the 2nd schedule land and the defendant No.3

had no right to give settlement of the land by lease or by any other mood to

the defendant no.1 or any other person. Further prayer is made for

declaration that the ‘Khatian’ no. 3112 in respect of Surveyed Dag no. 5044

of Mouja Karimganj Town, Sheet No. 64” /3 had been illegally prepared and

issued in the name of the defendant No.3 etc. along with other reliefs.

10. Defendant/respondent No.1 raised the formal pleas like that,

there is no cause of action, suit is barred by limitation, barred by principles

of estoppels, waiver and acquiescence, bad for defect of parties, bad for

principles of constructive res-judicata etc. and denied all the averments of

the plaintiffs being concocted and misleading. According to him, while he

was residing in the adjacent east of Ramoni Sagar came to know that the

land covered by Settlement Surveyed Dag No. 5044 (old) was a Govt. Khas

land falling unused and as such around the year 1987-88 he started filling

earth to develop the land and also started to possess the land measuring

0.11 acre (11 decimal) covered by dag no. 5044 for the last 23 years

without any interruption or any objection from any corner. While

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possessing the same he prayed before the Deputy Commissioner, Karimganj

to settle the said land in his name. The Deputy Commissioner accordingly

made contact with the Govt. of Assam, Revenue (Settlement) Department

vide letter No. KRS-1/Pt-1/91-92/19 dated 20th July 1991 who asked the

Deputy Commissioner vide letter No. RSS 482/92/7 dated 8th July 1992 to

submit a formal proposal to settle the said land in favour of the defendants.

Karimganj Municipal Board was also in favour of giving settlement of the

said land with the answering defendant No.1, and thus vide letter No. 1-

18/92-93/116 dated 19/05/1992 issued by Executive Officer, Karimganj

Municipality addressed to Deputy Commissioner, Karimganj gave reply to

the letter No. KPS – 1/Pt/91-92/12 dated 30/04/1992 of the Deputy

Commissioner, Karimganj. Ultimately, the Deputy Commissioner,

Karimganj sent proposal to the Government for settling the land with the

defendants vide letter No. KDV(G) 50/96-97/71 dated 6th May 1997 to the

under secretary Govt. of Assam, Municipal Administration Department,

Dispur Guwahati 6. According to defendant no.1, the proposal ought to

have been sent to the Revenue Settlement Department, Settlement Branch,

Dispur, Guwahati 6 in compliance with Government letter No. RSS

482/92/7 dated 8th July 1992.

11. The answering defendant’s further case is that while being in

long possession over the suit land on 20/12/1997 submitted petition to the

Executive Officer, Karimganj Municipality seeking permission to construct

katcha house including sanitary latrine on the land. Getting no reply the

defendant constructed the suit house on the said land. It is alleged that

more than 0.041 acre of land out of 0.151 of land covered by the said dag

no. 5044 had been encroached by the Winners Club (defendant No.2). It is

further alleged that the Winners Club instituted Title Suit bearing No.

130/2002 in the court of ld. Civil Judge, Jr. Divn. No.1, Karimganj and

against the Karimganj Municipal Board and the answering defendant No.1

seeking declaration of their title over the said 0.16 acre of land and for

confirmation of possession of the eastern portion of the same and for

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recovery of khas possession of land under the possession of the answering

defendant No.1 i.e. the western portion of the said 0.16 acre of land. The

suit was dismissed on contest vide judgment and decree dated

30/09/2005.

12. In the WS submitted by the Karimganj Municipal Board in the

aforesaid suit it is inter alia stated that they were not against the giving of

settlement of the said land to the answering defendant No.1. The answering

defendant No.1 thus approached the Municipal Board seeking no objection

certificate for electric connection. The Municipal Board vide letter No.

4/2003-2004/861 dated 11/03/2004 asked the answering defendant for

submitting relevant permission of the construction of the house.

Thereafter, the answering defendant met the Municipality Authority and

explained about the aforesaid petition dated 20/02/1997. Being satisfied

the Municipal authority assured that permission would be issued after

issuance of Settlement order over the land. However, the Municipality

authority vide letter No. IX-4/07/08/151 dated 30/04/2007 illegally asked

the defendant for vacating the land removing the houses standing thereon.

Ultimately, the defendant filed TS No. 125/07 before the court of Munsiff

No.1 Karimganj against the Municipal Board and the Government. The case

was dismissed vide order dated 09/07/2010. Appeal bearing No. TA No.

32/2010 was preferred and it is still pending. By this time the Municipal

Board took resolution for allotment of the said land in favour of the

answering defendant.

13. In the light of the above, it is pleaded that the present

plaintiffs/appellants having no right, title, interest and possession over the

schedule land of the WS appertaining to dag no. 5044 filed this vexatious

suit, and thus it is prayed for dismissal of the same with cost and

compensation of Rs. 25,000/- u/s. 35(A) CPC.

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14. The defendant/respondent No.2 by filing separate WS raised

the similar nature of legal pleas and stated that all the averments made in

para No. 1 to 10 of the plaint as false and incorrect. According to him, the

plaintiffs/appellants have no right, title, interest and possession over the

suit land. According to the defendant/respondent No.2, the alleged suit

land covered by dag no. 5044 is the property under the ownership of

Karimganj Municipality having land holder right and accordingly under the

provisions of ALRR 1886 the alleged suit land has been recorded in the

Settlement record in the name of the Karimganj Municipal Board. The

Winners Club being represented by defendant No.2 was established in the

year 1959 and accordingly got settlement of the eastern portion of the land

of the 2nd schedule land of this suit appertaining to dag no. 5044 and

constructed house thereon on the eastern portion of the 2nd schedule land

of this suit. The defendant No.3 mutated the name of the Winners Club in

the demand register in respect of the schedule land of the WS vide holding

No. 130 of Ward No. 22 and accordingly taxes were being paid receiving

proper receipts thereof.

15. It is alleged that the defendant No.1 subsequently in collusion

with the defendant No.3 attempted to get settlement of the 2nd schedule

land of this suit from the office of the defendant No.3 and accordingly the

defendant No.3 vide notice dated 19/07/2002 called a ordinary meeting on

26/07/2002 to discuss the petition submitted by the defendant no.1

praying for a plot of Municipal land. Thereafter, the defendant No.2 raised

objection for proposed allotment of land in favour of the defendant No.1

vide letter dated 24/07/2002 with a prayer for cancellation of the proposal.

But the petition was not considered and as such the defendant No.2 filed TS

No. 130/2002 against the defendant No. 1 & 3 which was dismissed vide

judgment and decree dated 30/09/2005.

16. It is alleged that during the pendency of the said suit in the last

part of the 2003 the defendant No.1 of this present suit illegally encroached

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the western portion of dag no. 5044. The ld. trial court i.e. Munsiff No.2,

Karimganj as such made an local inspection of the said land i.e. the 2nd

schedule land of this present suit and prepared a memorandum of local

inspection thereof noting the nature and feature of the suit property of the

said time on 09/12/2003 where it was clearly mentioned that in the north

western portion of the suit land there was one very newly constructed

katcha house made with bamboo post, wall with new CI sheet roofing etc.

The aforesaid occupation and possession of the eastern portion of 2nd

schedule land of this present suit by the defendant no.2 and unauthorized

occupation of the western portion of the land by the defendant No.1 were

within the knowledge of the plaintiffs/appellants of this suit and persons of

the locality. The defendant No.2 therefore denying the right, title, interest

and possession of the plaintiffs/appellants over the suit schedule land

prayed for dismissal of the suit with cost.

17. The defendant/respondent No.3 by separate written statement

took the similar legal pleas like cause of action, maintainability, waiver,

estoppels, limitation, non-service of notice u/s. 80(1) CPC and u/s. 326 of

Assam Municipal Act 1956 etc., and denied all the averments made in Para

no. 1 to 10 as true. According to them all the averments are false and

incorrect. It is categorically denied that many of the plots of Ramani Mohan

Das recorded in the name of Karimganj Municipality and some other

persons and predecessor of the plaintiffs and proforma defendants

submitted objections to the Settlement Officer, Karimganj for correction of

records. According to them, the alleged suit land covered by dag no. 5044 is

their property having land holder right and accordingly under the provision

of ALRR 1886 their names (defendant No.3) have been recorded in the

settlement record.

18. That some interested person of the locality of the alleged suit

land of this suit encroached a portion of the land of dag no. 5044 from the

eastern part and constructed a house thereon and occupied the said portion

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as Club House under the name and style a Winners Club and the rest area of

the said dag were lying vacant and the defendant No.1 of this suit with evil

and ulterior motive for illegal and wrongful gain illegally encroached the

western portion of the said dag in the last part of 2003 illegally constructing

katcha house and latrine thereon.

19. For the above illegal encroachment of the western portion of

the dag no. 5044 the answering defendant/respondent No.3 issued notice

dated 19/07/2002 in challenge thereof the defendant no.2 filed Title Suit

bearing No. 130/2002 against the defendant No. 1 & 3 which was dismissed

vide judgment dated 30/09/2005 passed by ld. Munsiff No. 2. There was no

appeal against the judgment and decree. It is further stated that during the

pendency of the aforesaid suit the defendant No.1 in the last part of the year

2003 illegally encroached the western portion of the dag no. 5044. The

land of Winners Club of the aforesaid dag was recorded in the Demand

Register of the answering defendant no.3 whom taxes are being paid.

20. Defendant’s further case is that after the disposal of the

aforesaid T.S. bearing No. 130/2002, the defendant no.3 after observing all

formalities issued notice vide Memo No. IX-4/07-08/152 dated

30/04/2007 asking the defendant No.1 to remove his illegal construction

from the suit land appertaining to dag no. 5044. The defendant No.1 having

no right, title, interest or possession over the alleged suit land with evil and

ulterior motive and for illegal and wrongful gain disregarding the direction

of the said notice filed Title Suit bearing No. 125/2007 before the court of

Munsiff No.2, Karimganj against the answering defendant no.3 and others

with false averments claiming the land as Govt. khas land. The suit was

dismissed on contest vide judgment and decree dated 06/07/2010. Against

the same appeal was preferred bearing No. 32/2010 along with Misc. case

bearing No. 87/2010 which was still pending.

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21. It is therefore pleaded that the plaintiff/appellant of the present

suit were well acquainted with the aforesaid judgment and decree passed in

T.S. No. 130/2002 and T.S. No. 125/2007 and its appeal bearing No.

32/2010 filed the present suit having no right, title, interest and possession

over the suit land collusively and fraudulently. According to the answering

defendants the alleged documents mentioned by the plaintiff do not attract

in any way the suit land of this suit. Prayer is therefore made for dismissal

of this suit with cost and compensation.

22. Upon the pleadings the following 6 numbers of issues were

framed by the ld. trial court.

(i) Is there any cause of action for the suit?

(ii) Is the suit maintainable in its present form?

(iii) Is the description of the suit land is correctly given?

(iv) Is the suit barred by limitation?

(v) Whether the plaintiffs are the owners jointly with the proforma

defendants in the suit land having right and title as the land holder therein

and whether the plaintiffs are entitled to the relief prayed for in the suit?

(vi) To what further relief/reliefs the plaintiffs are entitled?

23. In support of the case the plaintiff/appellant examined as many

as 2 (two) witnesses including the plaintiff No.3 and exhibited many

documents including the copy of decree of both the cited cases, notice, gift

deed, map of the relevant dag, title deed, reply letter etc.; whereas the only

the defendant No.3 examined one witness and exhibited the judgment and

decree of Title Suit No. 130/2002, Title Suit No. 125/2007 and the report of

local inspection made in T.S. No. 130/2002 and certified copy of ‘chitta’ of

the suit dag; whereas the defendant No. 1 & 2 adduced no evidence.

24. Ld. court below after hearing both sides and perusal of the

evidence on the record passed the impugned judgment deciding the issue

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no. 3, 5, 1 & 2 in the negative, issue no. 4 as redundant and decided the

issue no.6 against the plaintiff without granting any relief

25. To decide this appeal I have heard the ld. counsel of both sides

at very length, thoroughly perused pleadings, the entire evidence on the

record, the impugned judgment and all the exhibited documents.

ISSUE NO. I

Is there any cause of action for the suit?

26. The plaintiffs averred that they inherited the suit property from

their ancestors and the defendant No.3 illegally mutated their name in the

Settlement Register having no right, title and interest over the suit 2nd

schedule land and thus prayed for declaration of right, title and interest in

favour of the plaintiffs and proforma defendants and for recovery of khas

possession by way of evicting the defendant Nos. 1 & 2 from the part I & II

of the 2nd schedule land appertaining to dag no. 5044, and for other

consequential relief. On the contrary, the defendant No.3 denied the right,

title and interest of the plaintiffs and proforma defendants over the suit 2nd

scheduled land or any part thereof and claimed the suit land owned by

them as land holder. Similarly, other defendants also denied the right, title

and interest of the plaintiffs over the suit 2nd schedule land claiming their

possessory right over the same. According to the plaintiffs both the

defendant Nos. 1 & 2 illegally constructing house dispossessed the plaintiff

and tried to create some illegal and fraudulent documents as Settlement

holder under the defendant No.3. The above assertions and denials involve

bundles of facts which are required to adjudicate upon to arrive at a clear

decision. Hence, there is cause of action of the suit, which the ld. court

below only on the basis of discussion and findings of issue no. 5 decided the

issue in the negative. This issue is thus decided in the affirmative in favour

of the plaintiffs/ appellants.

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ISSUE NO. III

Is the description of the suit land is correctly given?

27. During argument ld. counsel for the plaintiff/appellant has

strongly contended that the defendants/respondents in their WS have not

stated that the schedule II land of the plaint are different from that of the

land which they have been possessing and claiming. Further contention is

that the right, title, interest and possession over the suit land were acquired

more than 100 years back by the ancestor of the plaintiffs and proforma

defendants, and during the lapse of such a long period of time the

topography of the land and its surroundings underwent sea changes and

could not be remained as it was at the time of acquiring title and possession

by their ancestors. Further contention is that identification of the suit land

by its dag is sufficient as per the provision of order 7 rule 6 of CPC and there

is no dispute regarding the dag no. of the suit 2nd schedule land. In the

evidence on the record it is seen that admittedly there is a pond named as

‘Ramoni Sagar’ on the adjacent north-eastern side of the suit dag

intervening by a road. According to the plaintiffs the same big pond was

excavated by their ancestors namely Ramoni Mohan Das as the sole and

absolute owner. Ext.12 is a joint petition filed by the plaintiffs and

defendant Nos. 5, 6, 7 & 8 of Title Suit No. 207/89 in which the Municipality

and State Government were the defendant Nos. 1 to 4. Plaintiffs of that suit

were the successors of aforesaid Ramoni Mohan Das, the grandfather of the

plaintiff PW 1. The suit dag no. of the said title suit was 5492 of the same

Municipal Ward. Ext. 13 (1) is the sketch map consisting the present suit

schedule land clearly showing each and every dags of the suit schedule II

land and its surrounding dags.

28. In the cross examination the PW 1 stated that there is a Ramoni

Road and Ramoni Sagar to the north of the 10 decimals land i.e. plot No.1 of

2nd schedule land. Further it is stated that Ramoni Mohan Road connects

Modan Mohan Road on the west and passes through Hadar Gram Mosque

and connects Rai Nagar via Watir Ali on the east. Punam Textile is situated

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to south of Ramoni Mohan Road at first and then there are other Municipal

shops houses. Upon scrutinization of the above and documentary evidence,

and the schedule of the plaint and WS, and other exhibits, it is clearly

evident that suit land is properly described by the plaintiffs in the plaint

and there is no doubt or ambiguity for its identification. Further it is

disclosed that there is Ramoni Road and Ramoni Sagar to the north of the

plot no.2 of the 2nd schedule land. There is also a ‘go-pat’ to the east of the

said plot no.2 land. The above description of the suit land clearly resembles

with the sketch map. Ld. court below has relied on the evidence that the

plaintiff failed to say the area and owners of the land of adjacent land of

western dag no. 5052 and southern dag no. 5034. Since land could be

properly identified, mere failure on the part of the PW 1 to state some

names of the owners of different dags is not sufficient enough to hold that

the land is not properly identified, in as much as there are many plots in the

aforesaid dags. Hence, this issue is decided in the affirmative in favour of

the plaintiffs.

ISSUE NO.V

Whether the plaintiffs are the owners jointly with the proforma

defendants in the suit land having right and title as the land holder

therein and whether the plaintiffs are entitled to the relief prayed for in

the suit?

29. The plaintiffs in support of the averments of the plaint adduced

evidence stating how the suit schedule I land was originally acquired by the

predecessor of the plaintiffs and proforma defendants in the year 1891 vide

Ext. 6. Schedule of the Ext. 6 shows that the land in the schedule was

around 3 kedar situated on the east-western side of Karimganj Bazar

spreading towards south. On the western side there is a river. According to

the plaintiff at that time the surrounding area of the aforesaid land was

almost vacant and at the passage of time due to growth of population many

houses, shops and building were constructed over the land. Many roads

were also created. In the year 1913 Gunomoyee Dashi, the wife of one of

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the original owner having no issue and thereby having limited right over

the property gifted the same vide Ext. 10 to Ramoni Mohan Das, the son of

one of the original owner and the grandfather of the plaintiff PW 1. Present

plaintiff Nos. 2 to 5 and proforma defendant Nos. 10 to 12 are the

grandsons and daughters of said Ramoni Mohan Das through his two sons.

Plaintiff No. 1 and proforma defendant No. 9 are the two daughter in laws of

said Ramoni Mohan Das.

30. Ramoni Mohan Das excavated one pond named as Ramoni

Sagar which is still in existence admittedly on the north-eastern side of the

plot No.1 of 2nd schedule land. According to the defendants the same was

not excavated by Ramoni Mohan Das but failed to say by whom it was

excavated and how it named in the name of Ramoni Mohan Das. It is

deposed that while the schedule I land was being owned and possessed by

the predecessor of the plaintiffs there had been many suits and cases filed

by them. Ext. 7 is a certified copy of a decree passed by Munsiff Court,

Karimganj in TS No. 447 of 1920 in respect of a part of the schedule I land of

the plaint filed by Ramoni Mohan Das. Ext. 8 is the certified copy of

certificate for delivery of possession of land of TS No. 447 of 1920.

31. It is further deposed that Ext. 10 (1) is the suit plot No. 139 in

page no. 16 and Ext. 10(2) is the plot No.1 of page no.19 and both the plots

relates to the schedule I land of the plaints covering the 2nd schedule land.

It is contended that plaintiffs by way of adducing cogent evidence have been

able to trace out the title over the schedule I land of the plaint in which the

schedule II land falls and there cannot be doubt about it. It appears from

the impugned judgment that the ld. court below, merely relying some oral

evidence come out in the cross examination that the PW 1 failed to say

length and breadth of the schedule I land and the name of the occupants of

the adjusting dags, and for want of any records of settlement given by the

predecessor of the plaintiffs, and failure of the PW 1 to say exactly which

deed relates to the title of his grandfather Ramoni Mohan Das at page no.

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10, formed an opinion that the suit land cannot be held to be covered by

schedule of Ext.6. Further, as there is no mention about the Ext. 7 & 8 in the

plaint to suggest that the same are related to the suit land, the same are

beyond the pleading and thus ld. court below has declined to accept the

same as evidence. Further, it is opined that it is not a case of the plaintiffs

that their predecessor got decree in respect of the suit land vide Ext. 7 & 8.

32. According to the ld. counsel for the appellants, the ld. court

below misconceived the evidence, in as much as the plaintiffs in assertion of

their right, title and possession of their predecessors over the suit land

produced and proved documents relating to the suit scheduled 1 land,

although it is not mentioned in the plaint but the same are the additional

documents in proof of their continuous assertion of right, title and interest

over the suit scheduled 1 land for a long period of time. Further, it is

contended that ld. court below failed to appreciate the evidence that after

the passage for more than 100 years the topography of any land bound to

undergo a sea change, not to speak of the suit schedule 1 land of Ext. 6.

Further gist of observation of the ld. court below is that after the acquisition

of zamindary the plaintiff’s predecessors during settlement operation ought

to have mutated their names and in case of wrong mutation they ought to

have filed objection, but no such paper could be filed by the plaintiff side.

Therefore, the ld. court below formed an opinion that predecessor of the

plaintiffs did never file any objection at the time of preparation of

settlement revenue records in respect of the schedule I land. In this contest

ld. counsel for the plaintiffs/appellants has contended that for cancellation

of wrong and collusive mutation the predecessor of the plaintiffs filed a case

bearing TS Case No. 207/1989 against the Government, Deputy

Commissioner, Karimganj Municipal Board and others in respect of dag No.

5492 of Mouja Karimganj town, sheet no. 64” / 3 and the same suit has been

decreed in their favour. Ext. 11 is the copy of plaint, Ext. 12 is the certified

copy of the decree, Ext. 12(i) is the certified copy of compromise petition,

Ext. 13 is the photocopy of the related Vendike map of Mouja Karimganj

Contd..P/17


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town. Ext. 13(i) is the suit dag of the present suit being 5044. It is seen that

aforesaid dag of the said T.S. falls on the north-eastern side of the present

suit dag intervened by Ramani Sagar in dag no. 5491 and its adjacent road.

The contention of the ld. counsel is that though the aforesaid suit is not

directly related with the present suit but it is a proof that Municipal

authority collusively mutated their names in the Govt. Revenue Records in

place of the name of plaintiffs and their predecessors.

33. It is seen that the PW 1 has been cross examined at very length

on different dates but substance of her evidence in respect of the suit land

and its title thereof could not be shaken out. She in the cross examination

asserted that the suit land of TS No. 207/89 was owned by them and the

suit land of the said suit and the present suit are not same but both the suit

land falls within the schedule I of the present suit and denied that Ramoni

Sagar was excavated by Municipal authority and not named after the name

of her paternal grandfather.

34. On the contrary, the defendant No. 3 claimed the right over the

2nd schedule land as land holder deposing that their names had been duly

mutated in the Settlement record as land holder but failed to say how they

acquired the land which falls within the 1st schedule land of the plaint being

originally owned and possessed by the predecessor of the plaintiffs. Ext. A

is a photocopy of chitta showing the mutation in the name of the defendant

No.3 Municipality. The ld. counsel for the plaintiffs/appellants strongly

argued that mere mutation over a plot of land does not give any title to the

mutation holder. Revenue record does not create any title unless it is

proved how it has been acquired. In support of the contention ruling as

published in AIR 2014 SC (Civil) 613 is cited focusing the observation that

“The entries in the GLR by themselves may not constitute title, but the

question is whether entries made in Ext. A(3) would constitute title or not on

the plaintiff. This court in several judgments has held that revenue record

does not confer title. In Corporation of the City of Bangalore V. M Paiah and

Contd..P/18


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another (1989) 3 SCC 612; (AIR) 1989 SC 1809 held that ‘it is firmly

established that revenue records are not documents of title, and the question

of interpretation of document not being a document of title is not a question

of law’. In Guru Amarjit Singh V. Ratan Chand and others (1993) 4 SCC 349;

this Court has held that ‘the entries in jamabandi are not proof of title’.”

35. Further it is contended that title being established showing how

it devolved upon the present plaintiffs and proforma defendants it cannot

be extinguished simply for non-mutation of the names of the heirs of the

predecessors. In support of the contention citation is made being (2005) 1

GLR 366 where it is observed that “There is no law that title will extinguish

simply for not mutating the names of the heirs and they will not inherit the

property of predecessors-in-interest.”

36. The ld. counsel for the plaintiffs/appellants also cited decision

as published in 2006 GLR focusing the following observation made therein:-

“Regarding the second substantial question of law, namely, whether a

mutation of the land is a prima-facie prove of title, it is not longer res-integra

that mutation does confer any title upon the persons whose names are

mutated with the revenue records. In Swami V. Inder Kaur, reported in

(1996) 6 SCC 223, the Apex Court held a para 7, inter alia, as follows:

……………….. ‘Mutation of a property in the revenue record does not

create or extinguish title nor has it any presumptive value of titles. It

only enables the person in whose favour mutation is order to pay the

land revenue in question ……………….’ ”

37. The Hon’ble Home High Court in the cited case made an

observation that “Such an order affecting mutation in favour of a person

prima facie shows possession over the land in question as per provision of

section 50 of the Assam Land & Revenue Regulation 1986. In order to have a

title over the land apart from the mutation something more is necessary to

claim title over the property which may be by way of transfer in any form or

Contd..P/19


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by inheritance. A mutation order is passed to facilitate payment of land

revenue………..”

38. Here in the instant case ld. trial court has not discussed

anything about the case of the defendants on the ground that the plaintiffs

has failed to prove their right, title and interest over the suit land, and there

is no counter claim of the defendants. The ld. court below further observed

that there is no burden upon the defendants to prove their right over the

suit land, and the plaintiffs cannot take the advantage of the weakness of

the title of the defendants. This observation itself shows that there is

weakness in the right, title and interest of the defendants over the suit land.

It is an established law of procedure and practice that civil suit is to be

decided on the basis of preponderance of evidence. But the ld. court below

has failed to assess the evidence of the defendant side who took

contradictory pleas in their WS against each other. Further, the defendant

Nos. 1 & 2 have not adduced any evidence in support of their contentions.

The defendant No. 3 by way of examining one staff of their office exhibited

the ‘chitta’ in proof of their title and possession, and also exhibited the copy

of judgment as passed in T.S. No. 130/2002 and 125/2007 filed by the

defendant No.2 and defendant No.1 against the defendant No. 3 and others

which shows that the defendant No. 1 & 2 failed to establish their right, title,

interest and rightful possession over the suit land. In view of the above

cited decisions and observation made therein, it has been made clear that

the mere mutation does not create any title over any land. The defendant

No. 3 has failed to prove any document as to how they acquired the

title/ownership over the suit schedule land. Therefore, mere denial of the

title of the plaintiffs cannot prove their title only by way of mutation which

the plaintiffs claimed as collusively procured. The plaintiff by way of

proving the decree of Title Suit in respect of dag no. 5094 of Title Suit No.

207/1989 has been able to prove that such type of mutation had been

illegally and collusively procured earlier.

Contd..P/20


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39. From the above discussion of evidence of both sides it can

rightly be arrived at that plaintiffs have been able to prove their title over

the suit schedule land by way of adducing cogent evidence. On the contrary,

defendant No.3 failed to establish their right, title and interest over the suit

land. Consequently, the other defendants who claimed their possessory

right and claiming their right through the defendant no. 3 have thus not

acquired any right, title & interest over the suit land. The defendant No.3

asserted that other defendants are illegal encroacher. Even if, the evidence

of the PW 1 & 2 that the defendant Nos. 1 & 2 illegally encroached the land

in the year 2007, is not believed but from the evidence of the DW 1 and

respective the WS, and the memorandum of local inspection being exhibited

as Ext. B prepared by the court in TS No. 130/2002 it can be said that the

defendant nos. 1 & 2 encroached the suit land of the suit dag no. 5044 in the

year 2002 illegally. As title follows the possession they are liable to be

evicted. Hence, this issue is accordingly decided in the affirmative in favour

of the plaintiffs /appellants.

ISSUE NO.IV

Is the suit barred by limitation?

40. In view of the discussion of the material issue Nos. III & V that

the plaintiffs/appellants have right, title, interest over the suit land and had

been possessing the same till encroachment by the defendant Nos. 1 & 2,

and as mere mutation over the land in the name of the defendant No.3 does

not create any title, the plaintiffs are entitled to get recovery of khas

possession of the land. It is seen that the legal and lawful right of other

defendant nos. 1 & 2 over the suit land as possessors could not be

established and they are illegal encroachers if not since 2007 but not before

2002. Period of limitation being 12 years for recovery of khas possession as

per Article 65 of the Limitation Act the suit is found to have been filed well

within the period of limitation. Ld. counsel for the defendant/respondent

No.3 has submitted that the suit is barred by limitation, in as much as no

objection was raised for cancellation of mutation within the period of

Contd..P/21


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limitation. Further, notices as issued u/s. 80 CPC and 326 of the Assam

Municipal Act, the Ext.1, Ext. 3 were merely filed only to create a case to

cover up the period of limitation. According to the plaintiffs/appellants, it

has come to their knowledge about the mutation only after the year

2007and after that they started to file objections. In support of the above,

they adduced cogent and reliable evidence; on the contrary there is no

cogent evidence to shake out the evidence of the PW 1 & 2. Therefore,

upon consideration of the findings and decision of all the material issues, it

is held that this suit is also filed within the period of limitation in respect of

prayer of cancellation of mutation. This issue is therefore decided in favour

of the plaintiffs/appellants.

ISSUE NO.II

Is the suit maintainable in its present form?

41. The ld. court below merely on the basis of discussion of the

issue no. 5 and issue no. 1 held this issue in the negative observing that the

plaintiffs have failed to prove their right, title and interest over the suit

land. During argument the ld. counsel for the respondent side has failed to

show any cogent reason as to why this suit is not maintainable in its present

form and manner. However, in view of the discussion of the material issue

Nos. I, III, IV & V this issue is decided in the affirmative in favour of the

plaintiffs/appellants.

ISSUE NO.VI

To what further relief/reliefs the plaintiffs are entitled?

42. In view of the discussion of the foregoing issues the plaintiffs

are entitled to get all the reliefs as prayed for. For clarification it is required

to be mention here that in view of the decisions of the material issues the

suit scheduled Part I and Part II of the 2nd schedule land of the plaint are

respectively the same land as mentioned in the WS of the defendant Nos. 1

& 2 and they are being the illegal physical occupier of the same are to be

evicted by way of demolition of structures standing therein. Therefore, writ

Contd..P/22


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of execution shall required to be issued showing both the schedule of the

plaint and the WS in order to avoid complicacy in the process of execution.

This issue is accordingly decided in favour of the plaintiffs/appellants.

43. In the result, appeal is allowed on contest. However no order of

cost is made.

44. Prepare decree accordingly.

45. Send back the LCR with a copy of this judgment.

The judgment is pronounced and delivered under my hand and

seal of this court on this 29th day of August, 2014.

Dictated and corrected by

(K. CHOUDHURY) (K. CHOUDHURY) DISTRICT JUDGE, DISTRICT JUDGE, KARIMGANJ KARIMIGANJ.

Dictation taken and transcribed by:-

Debabrata Das, (Stenographer).

Assam Schedule VII, Form No.132. - Karimganj District Judiciary

Documents

Transcript of Assam Schedule VII, Form No.132. - Karimganj District Judiciary