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

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1 Page No.1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) RSA 6 OF 2003 Rupan Kishan S/O- Lt. Ganesh Kishan, Vill- Potabill, Mouza-Orang, P.O- Shillong Khuti, PS- Mazbat, Dist- Darrang (Assam). - Appellants/Plaintiffs Versus- 2. On the death of respondent no.2, Fesha Ram Das his legal heirs 2(A) Subhas Das 2(B) Lao Das 3(C) Bon Das As per Hon ble Court s order dated passed in MC No. 1390/ Respondents/Defendants BEFORE HON BLE MR. JUSTICE PRASANTA KUMAR DEKA Advocate for the appellants Mr. R L Yadav Advocate for the respondent Mr. B Koushik. Date of hearing 4 th May, 2017 Date of Judgment JUDGMENT AND ORDER (CAV) Heard Mr. R L Yadav, learned counsel appearing on behalf of the appellant. Also heard Mr. B Koushik, learned counsel representing the respondents. 2. This second appeal had arisen out of the judgment and decree dated passed by the learned District Judge, Darrang in Title Appeal No.2/2000 dismissing the appeal and affirming thereby the judgment and decree dated , passed in Title Suit No.30/1992 by the learned Civil Judge (Senior Division), Darrang whereby the suit of the

2 Page No.2 plaintiff/respondents for declaration of their right, title and interest over the suit land was decreed. 3. The present appellant is the defendant in the said Title Suit No.30/1992 and the original respondents, Narayan Das, Fesharam Das were the plaintiffs. On the death of the respondent No.2, Fesharam Das his legal heirs were substituted vide order dated passed in MC No.1390/2011. Vide order dated , the name of respondent/plaintiff No.1 Narayan Das was struck out. However, present respondents would be classified as the plaintiffs/respondents in this appeal. 3. The case of the plaintiffs/respondents in brief, the suit land covered by Dag No.123 of PP No.73/74 in village Patabil, under Orang Mouza was owned by one Smt. Konwar Gaurani, wife of Lt. Bhagat Singh. The said Narayan Das, original plaintiff No.1 purchased the same by way of a sale deed No.431 dated from the said Smt. Konwar Gaurani and took possession of the suit land. Having taking over possession of the land, the plaintiffs/respondents cultivated over same, thereon and paid the revenue assessed by the concerned authority. On , the defendant/appellant dispossessd the plaintiffs, who then, initiated a proceeding under Section 145 Cr. P.C. The said proceeding ended with declaration of possession in favour of the defendant/appellant. The plaintiffs/respondents filed a revision and the order, passed by the learned Executive Magistrate declaring the possession of the suit land in favour of the defendant/appellant was set aside. However, on being obstructed from enjoying the suit property peacefully by the plaintiffs/respondents owing to the obstruction of the defendant/appellant and subsequent dispossession, the plaintiffs/respondents instituted the suit praying for declaration of their right, title and interest over the suit land, recovery of khas possession thereon and permanent injunction. 4. The defendant/appellant alongwith other defendants (who never contested the present appeal) contested the suit by filing joint written statement. The defence taken by the

3 Page No.3 defendant/appellant that the land belongs to one Ganesh Kisan the present defendant/appellant and they have been in occupation of the land for a long time being adibashi people. According to them the plaintiffs/respondents were new faces in the area and they have no right to purchase the land in the tribal belt. Accordingly, prayer was made for dismissal of the suit. It was also further taken as defence that the plaintiffs/respondents are not possessing the suit land after purchase. Smt. Knowar Gaurani had no possession nor any right title and interest over the suit land. 5. The learned trial Court framed the following issues on the basis of the pleadings of the parties : 1. Whether there is cause of action for the suit? 2. Whether the suit is barred by the principles of waiver, estoppels, acquiescence? 3. Whether the plaintiffs have right, title and interest over the suit land? 4. Whether the defendants illegally dispossessed the plaintiffs from the suit land? 5. Whether the plaintiff is entitled to the reliefs prayed for? 6. Any other relief/reliefs parties are entitled to? Additional Issue: 1. Whether the suit is barred by limitation and adverse possession? 6. The plaintiffs/respondents side examined four witnesses and the defendant/appellant also examined four witnesses in support of their respective claims by submitting various exhibits. The trial court vide judgment and decree dated decreed the suit of the plaintiffs/respondents. Thereafter the present defendant/appellant preferred Title Appeal No.02/2000 in the court of the learned District Judge at Darrang, Mangaldoi. The said first appellate court vide judgment and decree dated dismissed the said appeal. 7. Being aggrieved, the defendant/appellant has preferred the present second appeal which was admitted on the following substantial questions of law: 1. Whether the learned courts below were justified in holding that the plaintiffs acquired title by the sale deed, Ext.1 executed by Konwar Gaurani, without giving any evidence that the vendor Konwar Gaurani had title to the land?

4 Page No.4 2. Whether the transfer of the suit land, which falls within the Tribal Belt, by Ext.1 is invalid in view of the provisions of Chapter X of the Assam Land & Revenue Regulation? 3. Whether the learned District Judge was justified in excluding Ext. Ka, the annual patta, from consideration? 8. This second appeal was taken up for hearing and vide judgment dated the same was allowed by this Court by deciding the substantial question of law No.1 in favour of the defendant/appellant but without giving any decision in the other substantial questions of law. Being aggrieved by the said judgment dated the present plaintiffs/respondents preferred Civil Appeal No.1933/2020 arising out of SLP(C) No of The Hon ble Apex Court vide order dated set aside the judgment dated passed by this Court and remanded the same for deciding it afresh including all the questions of law. Thereafter on an additional substantial question of law was formulated as follows: 1. Whether the proof of title of the vendor over the suit land is a sine-qua-non for the plaintiff to succeed in a suit for declaration of the title over the suit land? 9. Mr. Yadav, learned counsel appearing on behalf of the appellant submits that both the learned Courts below failed to consider the pleadings of the appellant/defendant wherein it was specifically pleaded that the vendor of the plaintiffs/respondents had no right, title and interest over the suit land to sell the same to the plaintiffs/respondents. The exhibit-1, the Registered Sale Deed No.431 executed on bears no specific Dag No and Patta No to the effect of Dag No.123 of PP No.73/74 pleaded in the plaint by the plaintiffs/respondents. Moreover, the schedule of the plaint showing the suit land refers to land covered by KP Patta No.9 consisting of Dag No.161. It is also submitted that there is cogent evidence on record to show that Smt. Konwar Gaurani was not the owner with respect to either the suit land described in the plaint or the land purportedly shown to be covered by Patta No and Dag No.123 and under such circumstances and that too on the specific pleading of the defendant/appellant, a duty was cast upon both the courts below

5 Page No.5 to give a declaration to the effect with respect to the saleable title of the vendor of the plaintiffs/respondents so far the suit land is concerned. Mr. Yadav also pointed out that the plaintiffs/respondents in addition to the exhibit-1, sale deed, also relied exhibit-3 a draft patta showing patta No.4 and the Dag No.123(old) /119 (new) covering the land so purchased by way of exhibit-1. The said exhibit-3 however, does not tally with the suit land, described in the plaint which has been specifically mentioned to be the land covered by KP Patta No.9 and Dag No.161. The materials placed on record by the plaintiffs/respondents are subsequent to the execution of exhibit-1 but no material had been placed on record to show that Smt. Konwar Gaurani was the owner with respect to the land which is the subject matter of exhibit To a specific query by this Court, that the schedule of the land purportedly shown to be sold to the plaintiffs/respondents vide exhibit-1, consists of the Dag No.123 and an order purportedly passed on thereby converting the land so sold into periodic patta, Mr. Yadav submits that there is no proof to show on record that the land so sold vide exhibit-1 and owned by the vendor was converted to periodic patta. On the other hand, the defendant/appellant has submitted in the pleadings on the strength of exhibit-ka, the annual patta No.23 covering land more than the suit land and had been able to show that they possessed the same. It is also submitted that after purchase of the suit land by the plaintiffs/respondents vide exhibit-1, dispute arose between the parties to the suit with regard to possession for which there were proceedings under Section 145 Cr.P.C. The said dispute clearly shows that the vendor of the plaintiffs/respondents have no title over the suit land and without such title the same being sold to the plaintiffs/respondents and the subsequent move to possess the same led to the said dispute between the plaintiffs/respondents and the defendant/appellant. Under such circumstances, none

6 Page No.6 determination of the ownership of the vendor of the plaintiffs/respondents with regard to the suit land had vitiated the findings of the learned court below. 11. Mr. Yadav referring to the decision of Union of India and others Vs. Vasavi cooperative Housing Society Limited and Others reported in (2014) 2 SCC 269 submits that the plaintiffs have to show all the entries in the record of rights that the plaintiff s predecessor had title over the property in question and it is that property which they have purchased. Referring to the present case in hand, Mr. Yadav submits that the plaintiffs/respondents except relying exhibit-1, they failed to show the title of the vendor, Smt. Konwar Gaurani over the land they have purchased. On the other hand, the defendant/appellant had exhibited exhibit-ka i.e. the annual patta No.23 showing land measuring 26B 3K s in Dag No.48 and 13 B 2K 2L in Dag No.62. Both the courts below never discussed with respect to the said exhibit-ka on the grounds that the same could not be properly read. It is also argued that on being pointed out by this Court, that from the schedule of the land described in exhibit-1, it is clear that the Dag number is specified as 123 and the said land covered under the said dag was made periodic patta land in the conversion Case No. 304/73-74 vide order dated , Mr. Yadav submits that mere quotation of the said case number along with date of the order is not sufficient to show that the vendor had right, title and interest over the land so sold. In fact, a duty was cast upon the plaintiffs/respondents to produce the said order passed in the said Conversion Case. Having not done so, Mr. Yadav submits that the title of the vendor i.e. Smt. Konwar Gaurani has not been proved. So it is submitted that the second appeal is liable to be allowed by answering the questions of law in favour of the appellant. It is pertinent to mention here that Mr. Yadav submits that he does not want to press the substantial question of law No.2 as the plaintiff/respondent No.2 has shown that he belongs to the notified class of tribes which is supported by the certificate issued by the competent authority.

7 Page No Mr. Kaushik, the learned counsel for the respondents submits that the defendant/appellant had failed to show that Konwar Gaurani was not the owner of the suit land so purchased by the plaintiffs/respondents. It is sufficiently shown in exhibit-1, registered sale deed, the manner in which the vendor of the plaintiff/respondent No.1 had acquired title over the land so sold, which is the suit land and there requires no further evidence to that effect. By producing the said exhibit-1 and the relevant order passed in the Conversion Case must be presumed to be correct until and unless the defendant/appellant disproves the said contention made in the sale deed so far the order passed in Conversion Case number is concerned. In addition to that the DW-4 in his cross-examination deposed that the plaintiff/respondent No.1 purchased land from Konwar Gaurani about 20/25years back and the said vendor was possessing almost 18 B s of land. It is also further stated that in between the land and the suit land, houses of Rajani Das, Bitan Singh and Kauari Kisan is situated. Under such circumstances, the further title of the vendor of the plaintiff/respondent No.1 is not required. In order to support his submission, he relies Amiya Bala Dutta Vs Mukut Adhikari and Others reported in 1998(4) GLT 137 and submits that that mutation entries must not be the basis of title yet this mutation entries cannot be brushed aside but receive due consideration at the hand of the Court. He also submits that on the basis of the said exhibit-1, subsequently exhibit-3, kachha patta No.4 showing Dag No.123 was issued in favour of the predecessor and such issuance of the said exhibit-3 itself can be presumed that the title derived by the predecessor is from the one of the vendor i.e. Konwar Gaurani. Thus, he submits that there is no merit in this second appeal. 13. Considered the submissions of the learned counsel. Perused the case record and the evidence. From the pleadings of the parties it is observed that there is specific denial of right, title and interest of the vendor of the plaintiff/respondent No.1, who along with his brother claimed the suit land. The PW-1, Md. Hamid Ali, the deed writer of exhibit-1 in his

8 Page No.8 cross-examination deposed that at the time of sale of the suit land, the same was not converted to periodic patta. The PW-2, the plaintiff/respondent No.2 deposed in his crossexamination that at the time of purchasing the suit land the same was under periodic patta which he confirmed in the office of Lat Mandal. It is also deposed that the vendor Konwar Gaurani handed over the relevant papers to the deed writer with respect to the subject matter of the sale deed. The PW-3, the boundary man Sri Bitan Singh, in his chief deposed that Narayan Das purchased the said land from its owner Konwar Gaurani. The DW-1, Sri Rupam Kisan in his chief deposed that his father was the annual patta holder of the said land. The DW-2 deposed in his cross-examination that the suit land is presently in the name of Ganesh Kissan. On the other hand, the DW-4 deposed in his cross-examination that Konwari Kissan possessed 18 B s of land and the plaintiff purchased the suit land from Konwari Kissan. From the evidence so deposed, it is noticed that there was no specific question and/or reply disputing the title of the vendor of the plaintiff/respondent No.1. The said evidence which is on record is to the subsequent events including issuance of patta in the name of the plaintiff No.2 after the execution of the exhibit-1, sale deed. From the issues framed by the trial court it is observed that there is no specific issue with regard to right, title and interest of Konwar Gaurani i.e. the vendor of the plaintiff/respondent No.1. Similarly, if exhibit-1, sale deed is considered there is a mention of a specific order passed in a specific case on which purportedly indicates that the said land covered by Dag No. 123 was converted to periodic patta and exhibit-1 was executed on If the said Dag No.123 is considered, and taken up exhibit-3, the katcha patta where in the patta number has been shown as land measuring 13B 1K 15L s under Dag No. 123(old) 119 (new), it can be concluded that the said order mentioned in the exhibit-1 supports the case of the plaintiffs/respondents. The submission of Mr. Yadav that without proving that particular order of conversion of the said land to periodic patta, it cannot be presumed the ownership

9 Page No.9 of Konwar Gaurani. As held by the Apex court in (2014) 2 SCC 269 (supra) a burden is cast upon the plaintiffs/respondents to prove the title of the vendor in order to show that there was proper derivation of the title from the vendor to the purchaser over the suit land. From the trend of the evidence as noticed hereinabove, it seems that none of the parties tried to lead evidence towards the said aspect of the matter. Accordingly, the substantial questions of law so formulated including the one which was framed subsequently, on , are liable to be decided in favour of the appellant/defendant. However, as no issue was framed by the courts below to that effect for examining the title of the vendor of the plaintiff/respondent No.1, this Court accordingly set aside the judgment and decree passed by the learned court of District Judge, Darang at Mangaldoi upholding the judgment passed by the trial court and remand the matter to the First Appellate Court to frame necessary issues and decide the appeal afresh by taking recourse to the provision of Order 41 Rule 25 of the CPC by the said First Appellate Court, if required. The parties to this appeal are directed to appear before the First Appellate Court on Send back the LCR. JUDGE Rakhi