Dismissed

Longru Munda v. Jaban Ali

Gauhati HC4 Apr 2019RSA/103/2008

Case brief

AI extract

What is this about?

This second appeal challenged a decree in a title suit. The High Court held that the Assam (Temporarily Settled Areas) Tenancy Act, 1971 applied over the repealed Goalpara Tenancy Act. It found the appellant failed to prove tenancy status and dismissed the appeal, upholding the lower courts' dismissal of the counterclaim.

What did the court decide?

The second appeal is dismissed; the lower court decisions are upheld.

Longru Munda Vs Jaban Ali — Landlord and Tenant | Gauhati HC (2019)

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Page No.# 1/8

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GAHC010093382008

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

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Case No. : RSA 103/2008

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1:LONGRU MUNDA

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S/O LT. SAINCHAR MUNDA, R/O VILL. SIMILITOLA, CHA-BAGAN, PS. RONGJULI, DIST. GOALPARA, ASSAM.

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VERSUS

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1:JABAN ALI

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S/O LT. ABDUL JALIL, R/O VIL. FOREST KANKATA, PS. RONGJULI, DIST. GOALPARA, ASSAM.

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Advocate for the Petitioner : MR.R SHARMA

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Advocate for the Respondent : MR.S P CHOUDHURY

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B E F O R E

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HON’BLE MR. JUSTICE PRASANTA KUMAR DEKA

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For the appellant : Mr. M. Khataniar

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Advocate

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For the respondent : Mr. S. K. Ghosh

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Advocate

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Date of Hearing : 04.04.2019 Date of delivery of Judgment and Order : 04.04.2019

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Page No.# 2/8

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JUDGMENT & ORDER (ORAL)

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Heard Mr. M. Khataniar, the learned counsel for the appellant. Also heard Mr. S. K. Ghosh, the learned counsel for the respondent.

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2. The present respondent filed Title Suit No.02/2004 against amongst others the present defendant/appellant as the defendant No.1 for declaration of his right, title and interest, recovery of possession and mesne profits in respect of the suit land. The suit land is more or less 5 Bighas 2 Kathas 6 Lechas under Khatian No.9 Periodic Patta No.51 Dag No. 97 (old)/ 15/351 (new) etc. of village- Allibari under Rangjuli Circle in the district of Goalpara originally belonged to one, Junus Munda. The plaintiff/respondent purchased the suit land alongwith other lands from the said owner Junus Munda by way of three registered sale deeds. The possession of the total land including the suit land measuring 5 Bighas 2 Kathas 6 Lechas was delivered by Junus Munda and on the basis of the said sale and possession name of the plaintiff/respondent was recorded in the records of right. The defendant/appellant is related to Junus Munda and on his death as per the pleading in the plaint, he refused to recognize the plaintiff/respondent as the owner of the suit land. On 02.04.2003 the defendants including the present defendant/appellant trespassed in the suit land and started cultivation by force. The suit land is a fertile one yielding substantial amount of paddy both “Sali” and “Ahu” as such, the plaintiff/respondent sought for declaration of his right, title, interest and recovery of possession alongwith mesne profits.

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3. The defendant/appellant alongwith the other defendants though filed a joint written statement, however, the stand therein was specific that except the defendant/ appellant the rest of the defendants had no interest over the suit land. The defendant/ appellant alongwith

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Page No.# 3/8

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the written statement also filed his counterclaim seeking for a declaration that he is nonoccupancy tenant in respect of the suit land under the landlord plaintiff/respondent. Admitting the ownership with Junus Munda of the suit land it is the pleading in the written statement-cum- counterclaim that the suit land was under his possession for the past 15 years and he was the “Adhiar” of Junus Munda in the year 2002. The plaintiff/respondent produced three sale deeds in order to prove his ownership over the land including the suit land whereafter he was permitted to cultivate over the land as the “Adhiar” under the plaintiff/respondent. He used to deliver 9 mesne of paddy to Junus Munda as rent for every year but the plaintiff/respondent demanded half of the produce of the crops from the suit land though the defendant/appellant offered him 9 mounds of paddy as the rent. He also attorned the plaintiff/respondent as landlord and denied that he alongwith the other defendants trespassed into the suit land. Accordingly, further denying the fertility of the land and the crops yield as pleaded in the plaint, the defendant/appellant sought for the dismissal of the suit declaring his status as non-occupancy tenant over the suit land under the plaintiff/respondent. On the basis of the pleadings, the learned trial court framed the following issues:-

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“1) Whether there is cause of action for the suit?

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1. Whether the suit is maintainable in the present form?

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1. Whether the suit is bad for non-joinder of all the khatiandars of khatian No.9 as referred to in plaint?

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1. Whether the plaintiff has right, title or interest on the suit land?

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1. Whether defendant dispossessed the plaintiff on 2.04.03?

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1. Whether the plaintiff is entitled to a decree of mesne profits @ Rs.10,000/(Rupees ten thousand only) per year from 2004 till recovery of the possession?

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Page No.# 4/8

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1. Whether there is any cause of action for the counter claim for the defendant? 8) Whether defendant No.1 is a tenant under the plaintiff under the provision of The Assam (Temporarily Settled Areas) Tenancy Act?

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1. To what relief/reliefs, if any, the parties are entitled?”

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4. The parties to the suit adduced their respective evidence. The trial court decreed the suit dismissing the counterclaim whereafter Title Appeal No.02/2006 was filed in the Court of learned District Judge, Goalpara, the same was also dismissed vide judgment and decree dated 19.02.2008. Thereafter, this second appeal is preferred which was admitted on 03.09.2008 on the following substantial questions of law:-

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“1) Whether the court below committed illegality in dismissing the appeal on the ground that the relief claimed by the defendant under Assam (Temporary Settled Areas) Tenancy Act, 1971 not maintainable, where the provision of Goalpara Tenancy Act, 1929 is applicable considering the substance and contents of the claim of the defendant?

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1. Whether the findings of the court below regarding defendant as a Adhier under Junus Munda is perverse considering the evidence on record?

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1. Whether the judgment and decree passed by the lower appellate court is in conformity with the provisions of Order 41 Rule 31 CPC?”

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5. Mr. Khataniar submits that admittedly the suit property is in the district of Goalpara and the suit is in respect of landlord tenant relationship so far defendant/appellant is concerned on the face of the claim of the plaintiff/appellant that the defendant/appellant is a trespasser. Under such circumstances, the court below erred in complying the provisions of Assam (Temporarily Settled Areas) Tenancy Act, 1971 inasmuch as the said tenancy is covered by the Goalpara Tenancy Act, 1929. On the other hand, the said submission is objected by Mr. Ghosh on the ground that the applicability of the Assam (Temporarily Settled Areas) Tenancy

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Page No.# 5/8

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Act, 1971 is specifically mentioned in Section 1 of the said Act of 1971 and further submitted that as per the contention made in the written statement, the defendant/appellant has been possessing the suit land for the past 15 years from the date of filing the written statement and if the said pleading is considered the length of tenancy does not go beyond the year 1971. So, the tenancy is covered by the Act of 1971.

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6. The submissions of the learned counsel are considered but Mr. Khataniar’s submission cannot be accepted. The Assam Land Holding (Adoption of Relationship Under The Assam Land And Revenue Regulation, 1986 In The Acquired Permanently Settled Estates) Act, 1974 repealed the Goalpara Tenancy Act, 1929 alongwith the Sylhet Tenancy Act, 1936 in order to extend the benefits under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 to the actual cultivating tenants in those areas. Thus the tenancy and the declaration sought for by the defendant/ appellant must be decided in terms of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 and not under the Goalpara Tenancy Act, 1929. The substantial question of law No.1 is decided against the defendant/appellant.

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7. Mr. Khataniar submits that the fact of possession by the defendant/appellant was disbelieved by the courts below even on the face of the deposition of the PW-2 that Junus Munda was suffering due to paralysis and was unable to carry out the cultivation activities over the suit land and for about 4 to 5 years, the defendant/appellant was allowed to carry out the cultivation over the suit land. The said evidence of PW-2 is supported by the defendant/appellant as DW-1 and as such, the criteria required under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 under Section 4 for the status of non-occupancy tenant were fulfilled but both the courts below did not consider the same.

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Page No.# 6/8

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8. Mr. Ghosh, on the other hand, objects to the said submission inasmuch as the fact of illness though pleaded in the counterclaim was not at all proved at least by producing any medical certificates and as such, the probability of illness causing him invalid is not at all believable. Further referring to the cross-examination of the DW-1 it is submitted by Mr. Ghosh it is his own admission that he did not pay any rent in the form of agricultural produce to the plaintiff/respondent. Coupled with the statement in the cross-examination itself that plaintiff/respondent did not allow him to cultivate over the suit land, it is submitted that the question of perversity does not arise at all inasmuch the defendant/appellant is the counter claimant and the burden must be discharged as stated in the counterclaim.

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9. I have given due consideration to the submissions of the learned counsel. Issue No.8 is the relevant issue which encircles the claim of the defendant/appellant. The learned trial court relying the evidence of the other witnesses of both the sides came to the conclusion that Junus Munda himself cultivated the suit land before his death. Highlighting the crossexamination of DW-1 as pointed out by Mr. Ghosh the learned trial court came to the conclusion that on one hand, the defendant/appellant stated in his cross-examination that he did not pay any rent to the plaintiff/respondent and on the other hand, he failed to produce any documents showing his name as “Adhiar” in any of the records of rights. Thus, the learned trial court held that the defendant/appellant failed to establish the fact that he was an “Adhiar” under Junus Munda and he continued under the plaintiff/respondent. The said finding was upheld by the first appellate court. Section 3(17) of the Act of 1971 defines tenant as follows:-

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“3 (17) “Tenant” means a person who cultivates or holds the land of another

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person, and is, or but for a special contract (express or implied) would be, liable to pay

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Page No.# 7/8

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rent for that land to that other person, and includes a person who under the system generally known as ‘Adhi’ (Whether Guchiadhi or Gutiadhi), ‘barga’, ‘chukti’, ‘bhag’ or ‘chukani’ cultivates the land of another person on condition of delivering a share or quantity of the produce of such land to that person :

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Provided that a person who cultivates or holds land immediately under the State Government is not a tenant within the meaning of this definition.

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Explanation.- A person who hold land on condition of services to a temple or religious institution shall be deemed to be tenant of the manager of such temple or religious institution;”

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10. Section 4 of the said Act of 1971 recognises “Occupancy” and “Non-occupancy” tenants. Section 5 stipulates that a tenant who for a period not less than 3 years continuously held land as a tenant shall have a right of occupancy in that land. So if a tenant is possessing the land less than 3 years continuously he is a non-occupancy tenant. The defendant/appellant in his evidence failed to substantiate that he was a tenant under Junus Munda so continuation of the tenancy under the plaintiff/respondent does not arise at all. Further the deposition of the defendant/appellant that he did not pay any rent/crops to the plaintiff/respondent also shows that he is not a tenant under the plaintiff/respondent. So his status as non-occupancy tenant cannot be declared which is rightly held by the courts below. There is no perversity in the findings as submitted by Mr. Khataniar in support of the substantial question of law No.2 inasmuch as the evidence on record against the defendant/appellant are appreciated which is proper. The substantial question of law No.2 hence decided against the appellant.

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Page No.# 8/8

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11. In order to answer the third substantial question of law, I have perused the judgment of the first appellate court and I do not find any deviation from the mandate under Order XLI Rule 31 of the CPC as the first appellate court discussed the evidence on record though not issue-wise but in a comprehensive manner covering all the issues.

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12. Finally I do not find any merit in this second appeal and the same stands dismissed.

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13. Send back the LCR. No cost.

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JUDGE

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Comparing Assistant

Longru Munda v. Jaban Ali

Case brief

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Longru Munda v. Jaban Ali

Case brief

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