IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)

Transcription

1 1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh) RSA 44/ Smti Ketaki Singha, W/o Late Birmangal Singh, D/o- Late Punchi Singha, Village Kalinagar, P.O.- Dalu, P.S. Bharkhal, Dist.- Cachar, Assam. Vs Appellant/Plaintiff 1. The State of Assam, Represented by the Secretary, Govt. of Assam, Dispur, Assam. 2. The Deputy Commissioner, Karimgang, P.O. & Dist Karimganj, Assam. 3. The Settlement Officer, Karimganj, P.O. & Dist. Karimganj, Assam. 4. The General Manager, District Industries Centre, P.O. & Dist.-Karimganj, Assam. 5. The Block Development Officer, Badarpur Block P.O. Makhal, Dist.- Karimganj, Assam. 6. The Project Director, DRDA, Karimganj, P.O. & Dist. Karimganj, Assam 7. Sri Rajendra Kumar Singha, Son of Late Nanda Kumar Singha. 8. Sri S. Manihar Singha, Son of Late Kunja Singha 9. Sri Chandrakanta Singha, S/o. Mangaljow Singh 10. Sri Bikram Singha, S/o. Late Birchandra Singha. 11. Shri Kuloman Singha,

2 2 Son of Kumudar Singha 12. Smti Pramila Devi W/o. Khalendra Singha Opp. Parties No. 7 to 12 are residents of Badarpur ghat, P.O.-Badarpur ghat, P.S. Badarpur, Dist.-Karimganj.... Respondents/Defendants BEFORE HON BLE Mr. JUSTICE N. CHAUDHURY For the Appellant :: Mr. U. Dutta Advocate for the appellant/plaintiff For the Respondents :: Mr. G. Sarma, learned Govt. Advocate Mr. G.P. Bhowmik Mr. T.C. Khetri Mr. J. Purkayastha Advocates... for the respondents/defendants. Date of hearing :: Date of delivery of Judgment :: JUDGMENT & ORDER(ORAL) Aggrieved by concurrent findings of the two Courts below dismissing Title Suit No. 104 of 1999 in the Court of learned Civil Judge, (Senior Division) No. 2 at Karimganj, plaintiff Smt. Ketaki Singha has preferred this second appeal. 2. Plaintiff, Ketaki Singha claimed that suit land described in Schedule-II of the plaint measuring 5 jasties is part of Schedule-I land containing 3 powas, whole of which was originally owned and possessed by Punchi Singha, the father of the plaintiff. Punchi Singha died leaving behind two sons, namely, Lalmohan Singha and Amrit Lal Singha and four daughters, namely, Kundalal Singha, Kalabati Singha,

3 3 Kusum Singha and the plaintiff, Ketaki Singha. Both the brothers Lalmohan Singha and Amrit Lal Singha died unmarried and thus properties which left behind by both the brothers were owned and inherited by the four daughters. According to the plaintiff there was amicable partition among the four sisters and thereupon suit land fell in the share of the plaintiff, Ketaki Singha to the exclusion of other three sisters. As she was married to a place about 25 miles away from the suit land, she engaged her relative Babaima Singha to look after the property. A temple known as Radha Krishna Temple installed by her father Punchi Singha is still in existence on Schedule-B land and daily puja thereof is being done by said Babaima Singha at the request of the plaintiff. He also has been cultivating land on behalf of the plaintiff. During settlement operation suit land was recorded in the name of Lalmohan Singha and Amrit Lal Singha and Khaitan was also issued under the provision of Sylhet Tenancy Act. Taking advantage of the absence of the plaintiff, the defendants No. 7 to 12 entered into collusion with the official respondents No. 1 to 6, cut down 12 nos. of beetle nut trees and two mango trees in addition to one jam tree and 7 banana trees and also started publicising that they would construct a building on the Schedule-II land for running Weaving Training Centre. According to the plaintiff the defendants do not have any semblance of right, title, interest and possession upon possession over the suit land and so they are liable to be injuncted by temporary and permanent decree of prohibitory injunction from entering into suit land or from disturbing the peaceful possession of the plaintiff. With these statements on fact, plaintiff prayed for a decree declaring her right, title and interest over the second schedule land described in the plaint, for confirmation of possession and also for perpetual injunction restraining defendants from entering into or raising any construction on the suit land or from dispossessing the plaintiff there from.

4 4 3. The defendants No. 1 to 6 being the authorities under the State of Assam submitted one written statement whereas private defendants being defendants No. 7 to 12 filed a separate written statement. It is the case of the defendants No. 7 to 12 that Punchi Singha did never establish Radhamadhav Temple on the suit land and Babaima Singha also is not performing puja to the deity and/or cultivating vegetable to the vacant portion of the suit land. These defendants stated that land measuring 1 Powa 3 Jasties 6 Pons covered by Dag No. 158 (Ka) and particularly described to the Schedule in the written statement was originally a jote land of Yaima Singha, father of Punchi Singha and grandfather of the plaintiff. While paying rent to the original Zamindar, namely, Giyas Uddin Choudhury and thereafter his heir Moulavi Mahi Uddin Choudhury of Umarpur, Phargana Chapghat, Dist. Earstwhile Sylhet and after the death of said Yaima Singha his son, Punchi Singha acquired the same status over the said land and continued to exercise his jote right over the land paying the annual rent (Khajna) to the landlord and they were granted farag by the zamindar. The original zamindar left 2 powa of the aforesaid land as Dharmattor land for religious use by the Manipuri tenants pursuing Hindu faith and the same was placed under possession of one Sajau Singha, father of Nanda Kumar Singha. They were tenants under the original Zamindar, Moulavi Mahi Uddin Choudhury. The villagers had been using the land for their religious purpose from the time of Sajau Singha. They installed an idol of Radhakrishna around the year on the Schedule-B land. A temple was constructed with the money of one Gokul Singha while Mandap was constructed by Nanda Kumar Singha and the whole temple was gifted to the presiding deity, namely, Radhakrisha. The Schedule-B property is known as Radha Krishna Akhra for last half a century and one Radha Sharma being engaged permanent Shebait had been offering daily puja to the presiding deity. When

5 5 Chandraswar Sharma being descendants of Radha Sharma was performing puja in the temple, a dispute cropped out between the shebait on one side and the public on other side and the same was settled by sole arbitration of one Golap Chand Sharma. The raydad given by the sole arbitrator was registered being Raydad dated and Punchi Singha was also a signatory to the same Salishnama of that proceeding. The defendants annexed this document to the written statement and claimed that the land originally owned by Moulavi Mahi Uddin Choudhury and given to Sajau Singha, Nanda Kumar Sinha, Yaima Singha, Punchi Singha and others for catering to their religious need. The temple was really a public temple. The municipal tax and other rates were paid by the shebait Chandraswar Sharma and his sons. Even in the year 1983, there was a general public meeting of Manipuries of the locality in the premise of the Radhakrishna Akhra where resolutions were taken for development of the temple and a Managing Committee of 11 members and an Advisory Committee of three members were constituted. Subsequently public meeting were held on and A low cost latrine was also constructed in the Akhra premises being holding No. 284 on the sanction granted by Badarpur Town Committee. The defendants specifically pleaded that since establishment of the Akhra, Manipuri people of the locality had been celebrating Ratha Jatra festival on the premises of the temple and looking after development of Akhra alongwith other social works. All Assam Manipuri Women s Welfare Association, Badarpur Branch, Office of Akhra Development Committee and other organisations were also used on the suit land. The defendants annexed a document as Annexure-20 to the written statement to show that possession certificate of Akhra was also granted in favour of the Akhra Committee by the Government. Describing the Khaitan claimed to had been issued in the name of brothers of plaintiff to be fake one,

6 6 the defendants stated that plaintiff has no right, title and interest to the suit land or the Akhra and that suit is a vexatious one for which it deserves to be dismissed with exemplary cost of Rs. 5,000/-. 4. The official respondent stated in their written statement at paragraph 10 that the suit land was originally recorded in the names of Lalmohan Singha and Amrit Lal Singha, both sons of Late Punchi Singha and thereafter Dag No. 158 was divided into two parts. Dag No. 158 (Ka) measuring an area of acre had been recorded in the name of Babaima Singha by right of purchase by registered deed dated and a new Dag being Dag No. 219 had been quoted thereby. The second part being Dag No. 158 (Kha) measuring an area of acre had been recorded in the name of Badarpur Ghat Radhakrishna Akhra during the record attestation vide Radhakrishna Akhar Objection No. 53 of the Mouja and New Dag being Dag No. 218 under Khaitan No. 15 was created. Nobody preferred any appeal against the decision of the Revenue Authority for deciding the land covered by Dag No. 158 in the manner as aforesaid and that suit filed by the plaintiff was based on false and fabricated statement. The official defendants denied to have entered into any collusion whatsoever with the Proforma Defendants No. 7 to 12 and prayed that the suit be dismissed with cost. 5. On the basis of the aforesaid rival contentions of the parties, the learned trial Court framed as many as 6 issues and thereafter an additional issue was also framed being additional issue No. 1. All the issues, namely, issue No. 1 to 6 and the additional issue No. 1 are quoted below: 1. Is there any cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is barred by limitation?

7 7 4. Whether the suit is barred by the Principles of estoppel, waiver and acquisence? 5. Whether the suit is bad for non-joinder and misjoinder of Parties? 6. Whether the plaintiff is entitled to get relief as prayed for? Additional Issue: 1. Whether the plaintiff has right, title, interest and possession over suit Second Schedule Land? 6. Plaintiff examined as many as 3 witnesses including herself and exhibited some documents. Defendants on the other hand examined as many as 7 witnesses and they also exhibited documents. 7. The learned trial Court after hearing the parties and on perusal of the materials evidence on record passed his judgment and decree on dismissing the suit of the plaintiff in entirety. While deciding additional issue, the learned trial Court considered Ext.-1 which is final Khaitan issued in the name of Lalmohan Singha and Amrit Lal Singha and Ext. 2, the revenue paying receipts. The learned trial Court considered the oral evidence given by Babaima Singha as PW2 and noted his cross-examination wherein Babaima Sinhha claimed to have purchased his homestead land from original Khaitandar, namely, Amrit Lal Singha. It is this sale deed of Babaima Singha executed by Amrit Lal Sinha on which is exhibited by the defendants as Ext.-L. It contains boundary description to the effect that land to the northern boundary of the demised land is owned by Radhamadhav deity gifted by predecessor of the executant. This description was construed by the learned trial Court to have proved the fact that suit land had been gifted by father of the plaintiff in favour of the deity. The learned trial Court also considered

8 8 the Ext.-2(sic Ext.-A) that the land was gifted by predecessor of the plaintiff in favour of the deity. According to the learned trial Court, PW1 herself admitted in her cross-examination that the temple is managed by public. Ext.-X series which are licence granted by the administration for holding procession every year in course of Ratha Jatra Festival were also relied on by the trial Court to hold that the temple was managed by public. Considering Ext.-1 along with Ext.-X series and the evidence led by defendant No. 2 being DW1, the learned trial Court held that land was gifted to the deity and that the temple is managed by public. The Ext.-A gift deed executed by Yaima Singha in favour of Sajau Singha on behalf of the Radhakrishna Deity, Ext.-B Farag issued by original Zamindar and Ext.-C Raydad (registered arbitration award by Gulap Chand Sharma) were considered by the learned trial Court to hold that the land on being gifted by predecessor of the plaintiff was used for purpose of construction of temple of Radhakrishna wherein one Chandreswar Sharma was a priest and the dispute arising between the priest and the public was settled by arbitration of Gulap Chand Sharma by registered Raydad on With these observations, the learned trial Court held that plaintiff had failed to prove her right, title, interest and possession over the suit land and that the Radhakrishna Temple standing on Ext.-2 is a public temple, run by public of the locality which was constructed by public. 8. This judgment of the learned trial Court was challenged by the plaintiff before the learned Civil Judge (Senior Division) at Karimganj by the Title Appeal No. 64 of The appellate judgment and decree passed on was passed on due consideration of the evidence led by the parties. The learned court considered Ext.-A gift deed executed by the predecessor of the plaintiff in favour of the Radhakrishna deity. The Ext.-L sale deed shows that to the North of

9 9 the land purchased by PW2 is the land of Radhakrishna Akhra and not private land of plaintiff. The learned first appellate Court also relied on Ext.-C being registered award passed by arbitrator on On perusal of all documents, the learned first appellate Court also independently held that father of the plaintiff Punchi Singha was a party to Ext.-C, the registered award and he also was party to the dispute between the public and the then priest Chandreswar Sharma. This only shows that the temple is of public nature. The learned first appellate Court found that Ext.-A gift deed is 90 years old document whereas Ext.-C is 50 years old and these documents clearly establish that suit land belongs to Radhakrishna Akhrat. Learned first appellate Court found that Ext.-A, Ext.-C and Ext.-L are better piece of evidence to recall the validity of Ext.-1 Khaitan. It is held that Amrit Lal Singha being the Khaitandar, sold land to the South of the suit land to PW2, Babaima Singha by Ext.-L and that Ext.-L itself contains a recital to the effect that predecessor of vendor of the deed had gifted the land in favour of the Radhakrishna Deity. On consideration of such facts and circumstances the learned first appellate Court dismissed the appeal and upheld the findings of the learned trial Court and held that plaintiff had failed to establish her right, title and interest and possession over the suit land and that Radha Krishna temple standing on Schedule-2 land is a public temple. 9. Aforesaid two judgments passed by learned Court has been assailed in the present second appeal. This Court while admitting the second appeal on framed as many as three substantial questions of law, which are quoted below: I. Whether the Ext.-1, a final khatian having stood in the name of the predecessor-in-interest of the plaintiff, which was a document of title under the Sylhet Tenancy Act, the learned Court below were justified in holding that khatian was a rebuttable piece of

10 10 evidence and Ext.1 stood rebutted by Ext.C (a registered award) and Ext.L (a sale deed executed by one of the Khatian holders) and that the plaintiff has no right, title and interest over the suit land. II. Whether, in view of the admitted fact that the prepredecessor in interest of the plaintiff Yaima Singha, grandfather of the plaintiff was the owner of the schedule land, the learned courts below were justified in holding that the said Yaima Singha had donated his right, title and interest in respect of the schedule land in favour of the temple on the basis of an unregistered gift deed vide Ext.- A and the recitals in the registered award vide Ext. C. III. Whether, in view of the settled law that an immovable property can be donated only by a registered deed of gift of provided under Section 123 of the Transfer of Property Act read with Section 17 of the Registration Act and there being no such deed of gift executed by the owner, Sri Yaima Singha in favour of the temple, the learned courts were justified in holding. Simply on the basis of the recitals on Ext.C and Ext.L that the scheduled land already been donated to the temple and its status was a public rather than private. 10. I have heard Mr. U. Dutta, learned counsel for the appellant, Mr. G. Sarma, learned State Government, Advocate for respondents No. 1 to 6 and Mr. G.P. Bhowmik and Mr. T.C. Khetri, learned senior counsel assisted by Ms. J. Purkayastha on behalf of the respondents No. 7 to 12. I have perused the lower courts records including the exhibits. 11. Mr. U. Dutta, learned counsel appearing for the appellant submits that the very basis of the case of defendants is Ext. A which is an unregistered document. Under Section 122 and 123 of the Transfer of Property Act no gift of immovable property having value of more than Rs. 100/- can be made by unregistered document and

11 11 so the deity did not acquire any right, title and interest on the basis of Ext.-A. The Ext.-C registered Raydad and/or Ext.-L sale deed executed by Amrit Lal Singha in favour of PW2 are also of no value inasmuch as the Ext.-1 has overriding effect over the documents. Ext-1 is a Khaitan issued under the provision of Sylhet Tenancy Act which is a document of title and that being the position mere recital in Ext.-L and Ext.-C cannot take away the title of the plaintiff. With this argument the learned counsel, Mr. U. Dutta would claim that the concurrent findings of the learned Court below are liable to be set aside and the suit of the plaintiff is liable to be decreed. 12. Per contra, Mr. G. Sarma, learned State Counsel submits that both the Courts below have concurrently held after appreciation of evidence that the temple standing on the suit land is a public temple run and maintained by the public. There is no whisper in the Memorandum of Appeal challenging the findings of the learned courts below to be perverse and that the same are based on no evidence. The concurrent findings of the fact arrived at by the learned Courts below that the Radha Krishna Temple stands on Schedule-II of the plaint is a public temple established and run by public, is not challenged as perverse and the said findings should not set aside, then any other substantial questions of law cannot have the effect and the impugned judgment and decree continued to hold the field. According to Mr. Sarma, the three substantial questions of law framed by this Court at the time of admission of the appeal really do not clinch the issue inasmuch as the findings of the facts is a public nature of the temple as a crunch of dispute to the public. 13. Mr. G.P. Bhowmik, learned senior counsel and Mr. T.C. Khetri, learned senior counsel would argue that plaintiff has been claiming title on the basis of inheritance from Amrit Lal Singha and Lalmohan Singha. The Ext.-1 Khaitan was issued in favour of Lal Mohan Singha

12 12 and Amrit Lal Singha jointly. None of these two Khaitandar were married and so property owned by them devolved on their Class-II legal heirs, namely, the four daughters of Punchi Singha one of whom is the plaintiff. Although plaintiff claimed that there was amicable partition of the properties among the four sisters but neither the four sisters had been made parties to the suit nor had the plaintiff led any evidence to prove amicable partition. Situated thus, she has no basis to claim exclusive title over Schedule-II land. The source of title of plaintiff being Amirt Lal Singha and this Amrit Lal Singha having executed sale deed (Ext.-L) in favour of PW2 (Babaima Singha), the recitals of this sale deed assume utmost importance in going to the bottom of the case. Recital of Ext.-L shows that land to the North of the suit land is owned by Radha Krishna Akhrat on being gifted by predecessor of Amrit Lal Singha. There being such recital by none other than the predecessor-in-interest of the plaintiff herself, plaintiff cannot be heard at this stage to claim that suit land is still owned by her. Mr. G.P. Bhowmik has placed reliance on the judgment of the Hon ble Madras High Court in the case of K. Shastri Tangella Narasimhaswami v. Lamidi Venkatalimgan and others decided on to claim that the land gifted to deity does not require to be registered as Hindu Deities are not living being. Under Section 123 of the T.P. Act, a registered gift is contemplated only in case of gift to living persons. Hindu deity being not a living person such mandate of Section 122/123 do not apply, Mr. Bhowmick contends. In this connection another judgment of the Hon ble Supreme Court in the case of Sainath Mandir Trust v. Vijaya and Others reported in (2011) 1SCC 623 has also been brought to the notice of the Court. Supreme Court found that Hindu deity is not living person and so Gift deed in favour of Hindu deity does not require to be registered. This being the position, the substantial questions No. 2 & 3 are liable to be decided in favour of the respondent and against the appellant.

13 After hearing the learned counsel for the parties and after giving anxious consideration to the facts and circumstances including the evidence and the exhibits adduced by the parties it is found that land was under Jote possession of one Yaima Singha, the father of Punchi Singha. Yaima Singha executed Ext.-1 an unregistered deed in favour of the Radhakrishna Deity in the year 1320 B. S. (in the year 1913). The gift was accepted by Sajau Singha on behalf of Radhakrishna or Radhamadhav Deity. The said gift was no doubt unregistered but since the gift was made in favour of a non-living person it was not compulsorily registrible. The Ext.-C also shows that there was a temple on the suit land in connection with which there was a dispute among the public and the same was referred to sole arbitration of one Gulap Chand Sharma who passed his award on The award was a registered one. Punchi Sharma, father of the plaintiff was a signatory to the Salishnama which led to the aforesaid raydad dated and so the recital made in the Ext.-C are relevant for the purpose of deciding the nature of the temple standing on the suit land. Ext.-C shows that the temple was made by Nanda Kumar Singha on getting the land from Yaima Singha who was none other than the grandfather of the plaintiff. The temple is situated on land vacated by Yaima Singha. Gokul Singha constructed temple whereas Nanda Kumar Singha constructed the Mandab thereon. The arbitrator also found that disturbance caused to the priest by the third party and the consequent dispute resulted in obstruction to daily puja of the temple which was unfair and illegal and accordingly restoration of daily puja was directed. This alongwith recital in Ext.-L is indicative of the fact that Radhakrishna temple stands to the North of the land sold to PW2 by Amrit Lal Singha the predecessor-in-interest of the plaintiff. Amrit Lal Singha himself described the suit land to be a property of Radha Krishan Akhra on being gifted by his predecessor, Yaima Singha. Plaintiff has miserably

14 14 failed to discredit the seven witnesses of the defendants and/or to put-up a defence against the documents, namely, Ext.-A, Ext.-C and Ext.-L. Plaintiff has also failed to show that there was amicable partition of the Schedule-I land and thereby she acquired exclusive right, title, interest and possession to the Schedule-II land. The learned counsel for the appellant has failed to point-out as to how the concurrent findings of the learned Courts below as to public nature of the temple is vitiated. There is no ground in the Memorandum of Appeal describing this finding to be perverse. Having gone through the entire evidence including the oral evidence of the parties, I do not find any reason to hold that the concurrent findings of the learned Courts below as to public nature of the temple is perverse. Once it is found that predecessor of the plaintiff gifted land to the Radhakrishna deity by Ext.-A deed and such gift is permissible by unregistered document, existence of Ext.-1 pales into insignificance. This being the position, all the substantial questions of law are decided against the appellant and in favour of the defendants. 15. Consequently the second appeal fails. 16. It is accordingly dismissed. 17. No order as to costs. 18. Draw up decree and send down the records immediately. sds JUDGE

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