IN THE GAUHATI HIGH COURT

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM : NAGALAND : MIZORAM & ARUNACHAL PRADESH) RSA NO. 177/2005 (1) Ashok Kr. Sinha. Son of Late Kalachand Sinha. (2) Sri Budhu Sinha. Son of Late Kalachand Sinha. (3) Sri Maipak Sinha. Son of Sri Ashok Kumar Sinha. All resident of Village Umednager, Lala Town, Ward No.1, P.S. Lala, District-Hailakandi, Assam. - VERSUS -... Appellants. Sri Rabindra Kr. Nath. Son of Late Romoni Mohan Nath. Village- Umednagar, Lala Town Ward No.1, P.S. Lala District. Hailakandi, Assam. Respondent 2. Sri Rosendra Kumar Nath. Son of Late Romoni Mohan Nath. 3. Sri Ranjit Kumar Nath. Son of Late Ramoni Mohan Nath. Page 1 of 13

2 4. Sri Rupam Kumar Nath. Son of Late Romoni Mohan Nath. Lala All are resident of village Umednagar, Lala Town, P.S. District- Hailakandi, Assam. 5. Smti. Smriti Rani Nath Wife of Sri Bani Prasad Nath. Rangabak, Katlicherra. 6. Smti Maya Rani Nath Wife of Sri Tapas Mazumder. Lala Town, Ward No Smti. Sandhya Rani Nath. Wife of Sri Rajat Nath. Umed Nagar. P.S. Umednagar. 8. Smti Leela Nath. Wife of Sri Satu Nath. Charmurah. Serial No. 3 to 8 C/O Sri Rosendra Kumar Nath, Vernerpur, P.S. Lala, Dist. Hailakandi, Assam. Proforma respondets. BEFORE HON BLE MR. JUSTICE SUMAN SHYAM Page 2 of 13

3 Advocate for the Appellant :- Mr. K.K. Dey. Advocates for the Respondent :- Ms. S. B. Choudhury. D. Das. S. Das. Mr. D.C.K. Hazarika. Date of Hearing & Judgment : JUDGMENT & ORDER The second appeal is directed against the judgment and decree dated passed by the learned District Judge, Hailakandi in Title Appeal No.02/2005 reversing the judgment and decree dated passed by the Civil Judge (Senior Division), Hailakandi in Title Suit No.34/2003. (2) The Second appeal was admitted on the following substantial questions of law:- (1) Whether the appellate court below committed error of law in holding that the case governed under Assam Urban Areas Rent Control Act and not under Assam (Temporarily Settled Areas) Tenancy Act? (2) Whether the appellate Court below committed errors of law in reversing the decree passed by the trial court on some irrelevant consideration brushing aside the ;most vital documents Ext. Ka and Ext. Kha series? Page 3 of 13

4 (3) Whether the appellate court below committed error in coming to a perverse findings that the defendants were not occupancy tenants in respect of the suit land in spite of admission of the plaintiff that during life time of his father, defendants used to pay share of crops of this father? (4) Whether the appellate court below misconceived in misreading Ext. 3 in coming to a perverse findings that the defendants are not occupancy tenant in respect of the suit land? (3) The plaintiff s case in brief is that his grand-father, Late Bipin Chandra Nath had executed a registered deed of gift in respect of a plot of land measuring 3 bigha 19 katha 2 chotaks in favour of the father of the plaintiff, Ramani Mohan Nath, who was put in possession of the said plot of land. On the death of Ramani Mohan Nath, the plot of land devolved upon the plaintiff and the other legal heirs of Ramani Mohan Nath. Eventually, on the basis of an amicable partition amongst the legal heirs of Ramani Mohan Nath, the plaintiff became the owner in possession of the suit land, measuring 3 bigha 19 katha and 2 chotaks and thereby has been enjoying exclusive ownership right in respect thereof. It is the case of the plaintiff that while he was enjoying peaceful possession of the suit land, the defendant Nos. 1 and 2 approached the plaintiff for obtaining the said plot of land on bhagi chukti but the plaintiff declined the said offer. On , the defendant Nos. 1, 2, 3 and 4 forcibly entered into the plot of land and dispossessed the plaintiff from a portion of the land on the western side. The plaintiff lodged an ejahar with Lala Police Station reporting the said incident. Page 4 of 13

5 Thereafter, the defendant No.2 served a notice upon the plaintiff s brother, Sri Rasendra Kr. Nath, i.e., the proforma defendant No.5 on , claiming himself as a tenant in respect of the said plot of land by virtue of a Katcha Khatian, thereby calling upon the proforma defendant No.5 to accept the land revenue from the side of the defendant. Such interference by the defendant Nos. 1 to 4 had clouded right, title and interest of the plaintiff over the suit land which had prompted him to institute the title suit No.34/2003 in the Court of Civil Judge (Senior Division), Hailakandi. The defendant Nos. 1, 2, 3 and 4 have filed written statement in the said title suit. However, it appears from the record that by the order dated , the learned trial Court had rejected the written statement filed by the defendant No.1, the same being beyond the statutory period of limitation. By the aforesaid order dated , the defendants were, however, permitted to cross-examine the plaintiff s witnesses. Although, the written statement of the defendant No.1 was not taken on record and their right to file defence was struck off by the Court by the aforementioned order dated , yet it can be seen from the records that on the basis of the pleadings, the trial Court had framed as many as 4 issues which are as follows:- 1) Is there any cause of action? ` 2) Whether there is any relationship of land lord and tenant in between the plaintiff and the principal defendant? Page 5 of 13

6 3) Is the suit maintainable under the provision of Assam (Temporary Settled Areas) Tenancy Act 1971? 4) Whether the plaintiff is entitled to get the decree? (4) The plaintiff examined 3 witnesses. They exhibited the registered deed of gift (exhibit-1), the copy of FIR lodged with Lala Police Station (Ex-2) notice served by the defendants upon the proforma defendant No.5 (Ex-3) and a copy of jamabandi showing mutation of the name of the plaintiff in respect of the suit land (Ex-4). Although the right of the defendants to file their written statement had been struck off by the Court permitting them only to cross-examine the plaintiff witnesses, yet it appears from the record that being oblivious of the order dated , the learned trial Court had permitted the defendants to lead evidence in the form of DWs- 1, 2, 3 and 4. The said DWs had also exhibited katcha kathian (Ex- ka ) and revenue paying receipts (Ex. kha ). Surprisingly such witnesses of the defendant of the contesting witnesses side had also been cross-examined by the plaintiff. Eventually, by the judgment and decree dated , the learned trial Court dismissed the suit filed by the plaintiff inter-alia holding that the defendants have been able to establish their status as statutory tenant on the basis of Ex- ka and kha and such status could not be disputed by the plaintiff by adducing any evidence. The learned trial Court further held that the PW-1 in his cross-examination had virtually admitted that the defendant cultivated the land on bhagi chukti (sharing crop) during the time of the father of the plaintiff and, therefore, the contesting defendant came within the definition of tenant Page 6 of 13

7 under Section 3(17) of the Assam (Temporary Settled Areas) Tenancy Act, 1971 ( here-in-after referred to as the Act of 1971). On the basis of such findings, the learned trial Court answered the issue Nos. 2, 3 and 4 against the plaintiff and in favour of the defendant and dismissed the suit. (5) Being aggrieved by the aforesaid judgment and decree passed by the trial Court, the plaintiff as appellant preferred Title Appeal No. 02/2005 in the Court of the learned District Judge, Hailakandi. Upon hearing the parties, the learned District Judge, Hailakandi, allowed the Title Appeal filed by the plaintiff/appellant by setting aside the judgment and decree passed by the trial Court. The First Appellate Court held that the trial Court had erred in placing over emphasis on the katcha khatian as well as the revenue paying receipts which were of no avail to the contesting defendants so as to establish their claim of being non-evictable tenants under the Act of Since the contesting defendants had not disputed the title of the plaintiff over the suit land, hence, the defendant Nos. 1 to 4 ought to have led cogent evidence to prove and establish that they had actually acquired the status of nonevictable tenants within the meaning of the Act of (6) The First Appellate Court also observed that the plot of land having been included in Lala town, ward No.1., the defendants could have claimed to be the tenants under the Assam Urban Areas Tenancy Act and not under the Act of On the basis of such findings, the learned First Appellate Court set aside the judgment and decree passed by the learned trial Court dismissing the plaintiff s suit and thereafter, Page 7 of 13

8 decreed the suit filed by the plaintiff by the judgment dated Being aggrieved by the aforesaid judgment of the lower Appellate Court, this second appeal has been preferred by the appellants/defendant Nos. 1 to 4. (7) I have heard Mr. K.K. Dey, learned counsel for the appellant. Also heard Ms. S.B. Choudhury, learned counsel for the respondents/plaintiffs. Mr. Dey, learned counsel for the appellant submits that once the defendants have led evidence in the form of Ex. Ka as well as Ex- kha series being the revenue paying receipts, the burden to show that the defendants were not statutory tenants shifted upon the plaintiff. The aforesaid evidence led by the defendants exhibited by Ex- ka and Ex- kha were sufficient to establish their rights as tenants under Act of The plaintiff having failed to disprove the case of the defendants, the lower Appellate Court committed serious illegalities in interfering with the judgment of the trial Court. (8) Mr. Dey further submits that although the right of the defendants by filing written statement in respect of the defendant Nos. 1 to 4 have been struck off by the Court by the order dated , yet the Court had permitted the contesting defendants to lead evidence whereafter the plaintiff/respondents side has also crossexamined such witnesses. Mr. Dey further submitted that although the written statement had been struck off from the records yet the entire suit proceeded on the basis that the written statement was taken on record and that is why issues have also been framed by the trial Court. Page 8 of 13

9 He submits that both the parties proceeded in the suit being conscious of the aforesaid fact and therefore, the plaintiff/respondent has waived his rights, if any, to seek rejection of the evidence led by the defendants. (9) Per-contra Ms. S. B. Choudhury, learned counsel for the plaintiff/respondent while referring to the Division Bench judgment of this Court reported in 2007 VOL-2 GLT 619 (Pulin Bora and Ors Vs- State of Assam and Ors) submits that it is a settled law that katcha kathian and revenue receipts would not confer any conclusive right over the tenant so as to claim protection under the Act of She submits that such revenue paying receipts can be generated by anybody as hence, no sanctity can be attached to those receipts. In the instant case the plaintiff has adduced sufficient evidence in the form of Ex-1 and 4 to show his title and possession over the suit land. The FIR Ex-2 go to show that the plaintiff/respondent had proceeded against illegal dispoessession of the plaintiff from the suit land at the earliest possible opportunity. Such evidence coupled with the oral testimony led by the plaintiff has remained unchallenged during the cross-examination. However, Ms. Choudhury submits that from the very contents of the notice (Ex/3), it would be established that the defendants were not in possession of the suit land since the time when the plaintiff became owner of the same as otherwise there would not have been any occasion for the said defendants to issue such a notice. (10) Ms. Choudhury submits that in veiw of the bulk of evidence on record, the plaintiff has been able to discharge the burden of proof so as to entitle him for the decree prayed for in the suit. On the contrary, Page 9 of 13

10 there is nothing on record which disputes the claim of the plaintiff. In that view of the matter, she submits that there is no illegality in the order passed by the learned First Appellate Court and as such, the appeal is devoid of any merit. (11) I have considered the rival submission and perused the records. At the very out set it needs to be mentioed that it is settled law that a party cannot be allowed to lead evidence in the absence of any pleadings. Since the written statement had not been taken in record by the court hence, the defendants were not entitled to lead any evidence but would merely have the right to cross-examine the plaintiff witness. It is also settled law that irrespective of whether or not any written statement is filed, contesting the case of the plaintiff, the overall burden to prove and establish his case will remain with the plaintiff and the same will never shift. In the background of the aforesaid settled principles of law let me now consider the submission made by the learned counsels for the parties. (12) It is the admitted possession of fact, that by the order dated the right of the contesting defendants to file their written statement had been struck off by the Court merely permitting them to cross-examine the plaintiff witness. The contesting defendants never challenged the said order debarring them from filing their written statement. As such, the said defendant could not have led any evidence since there was no pleading to support the same. In the absence of pleadings, if any evidence is led by a party the same cannot be looked into or taken into consideration in deciding an issue. In that view of the Page 10 of 13

11 matter it is held that the learned trial Court could not have considered the evidence of DW 1, 2, 3 and 4 as well as Ex- ka and kha in deciding the suit. (13) On perusal of the judgment of the Court below it appears that the decision and conclusion of the trial Court revolved around the evidence led by the defendant side rather than the weight of the evidence led by the plaintiff. Since it has already been held that the evidence held by the DWs 1, 2, 3 and 4 could not have been considered by the Court since they have not filed any written statement hence, it would be unnecessary to go into the submission of Mr. Dey in any degree of details as to whether the Ex- ka and kha would validly clothed the contesting defendants with any tenancy right, thereby conferring protection under the Act of Even if the evidence led by the DWs 1 to 4 had been a part of the records even in that case, in view of the law declared by this Court in the Case of Pulin Bora (Supra), the arguments led by the Mr. K.K. Dey claiming right of tenancy based on Ex- ka and kha would not be of any assistance to him. In the case of Pulin Bora (Supra) the Division Bench of this Court held as follows:- 17. Chapter- VII of the Tenancy Rules deals with the procedure for preparation of record of rights. Rule 29(A) envisages the various stages of the process. Under Section 30, the mode of preliminary survey and record writing is provided. Thereunder after the boundaries of all the holdings of the tenants are surveyed and demarcated, a "draft chitha", or Field Index shall be prepared by the Land Records staff under the direct supervision of the Assistant Settlement Officer. The chitha would be arranged according to the serial number of the plots in the map and would show the name and residence of the tenants, the area of the plot, length of possession of each tenant, the amount of rent and other necessary particulars. Thereafter the Assistant Settlement Officer would Page 11 of 13

12 cause draft khatian to be prepared from the chitha. The khatian in addition to the particulars in the chitha would also contain the landlords name, address, the number of the patta held by him and the revenue payable in respect of the plot. Each tenant and his landlord would be furnished with a copy of the draft khatian and in the process of record attestation that would follow the Assistant Settlement Officer would hear and decide the dispute, if any with regard to the notice appearing in the draft khatian. After the necessary corrections and attestations, the Assistant Settlement Officer would prepare and publish a draft record of rights in the local area or village informing the landlords and tenants concerned about the same. 18. Finally the record of rights would be prepared after all objections raised with regard to the draft records have been disposed of and the appeals from the orders of the Assistant Settlement Officers are decided by the Settlement Officer and essential corrections are made. The final record of rights of an area or a Village would be published and a proclamation informing the landlords and the tenants of the place would also be made disclosing that the final records were open for public inspection. A certificate of final publication would be furnished within a month of the last day of the final publication of the record of rights. 19. A combined reading of the above provisions of the Tenancy Act and the Tenancy Rules proclaims that a kacha khatian or a draft khatian is not of definitive significance vis-a-vis a person in cultivating possession of a land governed thereby. In view of the comprehensive procedure for preparation of the record of rights under the said Rules, the appellants' claim of occupancy tenants under Padmadhar Bora and Lakhidhar Bora at the time of the acquisition of the land under the Ceiling Act cannot thus be adjudged to be absolute, unqualified and conclusive. The appellants have not asserted that their names as occupancy tenants had been incorporated in the final record of rights. No assertion has been made either that any process for preparation of the record of rights under Chapter-VII of the Tenancy Act had at all been undertaken involving the land in their occupation. The materials available on record on the other hand only demonstrate their categorical case of being issued kacha khatians. In that view of the matter, the stand of the official respondents that the petitioners were not recorded tenants and thus not entitled to be conferred with the ownership rights under the Tenancy Act or settlement under the Ceiling Act cannot be lightly brushed aside. Page 12 of 13

13 (14) For the reasons mentioned here-in-before the arguments advanced by Mr. Dey is found to be without any substance. On the other hand based on the evidence available on record, it is found that the plaintiff/respondent has been able to establish his claim over the suit land and the fact that he has been illegally dispossessed. As such,the impugned judgment and decree passed by the First Appellate Court in decreeing the suit of the plaintiff /respondent does not suffer from illegality or infirmity warranting interference by this court. Accordingly, it is held that the appeal is without any merit and the same is hereby dismissed. Stay order passed earlier shall stand vacated. Having regard to the facts and circumstances of the case there will be no order as to cost. (15) Registry to send back the LCR. JUDGE Anamika Page 13 of 13

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