A challenge to occupancy tenancy entries and a claim for possession failed. The Court upheld limitation and exclusion of civil court jurisdiction, held the 1971 tenancy provisions inapplicable to the earlier-created tenancy, and dismissed the second appeal with costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010099022006
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 148/2006
1:LOHIT CH. BARUAH
2: 2. UTTAM CH. BARUAH.
3: 3. NAKUL CH. BARUAH
4: 4. RABIN CH. BARUAH
ALL ARE SONS OF LATE NABIN CH. BARUAH NO.1 IS A JUDICIAL OFFICER BY PROFESSION NO.2 IS A RETIRED GOVT. SERVANT NO.3 IS ADVOCATE and NO.4 IS A MEDICAL SERVICE HOLDER BY PROFESSION AND ALL PERMANENT RESIDENT OF SILSAKOO NORTH GUWAHATI MOUZA-SILASINDURI GHOPA DIST - KAMRUP
VERSUS
1:ARUNA BARUAH and ORS
2:2. CHANDAN BARUAH
3:3. ANJAN BARUAH
NO.1 IS THE WIFE 2and3 ARE THE SONS OF LATE KARUNA KANTA BARUAH NO.1 and 2 ARE THE GOVT. SERVICE HOL DER BY PROFESSION
NO.3 IS A CONTRACTOR BY PROFESSION. ALL THE RERSIDENTS OF SILSAKOO
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NORTH GUWAHATI MOUZA-SS GHOPA DIST - KAMRUP.
4:4. GOVT. OF ASSAM REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM DISPUR. 5:5. THE SECREARY TO THE GOVT. OF ASSAM REVENUE DEPARTMENT DISPUR. 6:6. THE COLLECTOR OF KAMRUP DISTRICT GUWAHATI D.C.KAMRUP.
7:7. ISHAN BARUAH S/O LATE MAHIDHAR BARUAH.
8:8. JOGESH BARUAH S/O LATE HANGSHADHAR BARUAH BOTH ARE BY CASTE - HINDU HOISE HOLDER BY PROFESSION R/O SILSAKOO NORTH GUWAHATI MOUZA-S.S.GHOPA DIST - KAMRUP
:: BEFORE ::
HON’BLE MR. JUSTICE KALYAN RAI SURANA
Advocates for the appellants : Mr. S.P. Roy, Mr. N. Alam, Mr. R.P.N. Singh, : Mr. K. Rajbongshi, Mr. V.K. Rai, : Mr. H.S. Kalsi, Ms. N. Rai. Advocates for respondents : Mr. S.C. Keyal, Mr. S.K. Ghosh, No.1, 2 and 3 : Mr. S.P. Choudhury. Advocates for State respondents : Mr. G. Bordoloi, Govt. Advocate. No.4, 5 and 6 Advocates for Proforma : Mr. M.U. Mahmud, Respondents No.7 and 8 : Mr. AT Sarkar, Mr. MI Hussain, Mr. S Haque. Date of hearing : 28.11.2019, 09.12.2019. Date of judgment : 02.01.2020 .
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:: JUDGMENT & ORDER:: ( CAV )
Heard Mr. S.P. Roy, learned counsel for the appellant. Also heard Mr. S.K. Ghosh, the learned counsel for the respondents No.1, 2 and 3 and Mr. G. Bordoloi, learned Govt. advocate appearing for respondents No.4 to 6. No representation by the proforma respondents No.7 and 8.
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Baruah was neither a cultivator nor he had cultivated the suit land for the purpose of his livelihood as he was in government service. Hence, by projecting that the khatian in respect of occupancy tenancy was illegally granted, the suit has been filed by projecting that only when notice of tenancy case No. 9/1997 was served on the appellants, they came to know about the recording of occupancy tenancy right in respect of Karuna Kanta Baruah. Accordingly, the appellants had prayed for the following reliefs.
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was claimed that they cannot be evicted from the land under their possession. The respondents No. 1, 2 and 3 herein by filing the joint written statement, denied the statements made by the appellants in the plaint and apart from usual plea of the suit being barred by limitation, the suit was hit by principles of estoppel, waiver and acquiescence etc. claimed that they were in continuous possession of the suit land and houses described in schedule of the plaint from the time of the forefathers. It was stated that Late Ghana Kanta Baruah, the grandfather of the respondents No. 2 and 3 was the Tehsildar and had constructed a house on suit land which is in possession of the respondents No. 1, 2 and 3. It was stated that Late Karuna Kanta Baruah, being the son of Late Ghana Kanta Baruah, was the owner and possessor of the suit land and, as such, it was denied that Karuna Kanta Baruah was the caretaker of property of Late Nabin Chandra Baruah. It was further stated that Late Karuna Kanta Baruah was the surviving son and sole heir of Late Ghana Kanta Baruah after the death of Suresh Kanta Baruah, the elder son of Late Ghana Kanta Baruah, and instead of issuing a patta in his name, the Revenue authorities in connivance with the appellants had recorded the name of Late Karuan Kanta Baruah as occupancy tenant, although he had never applied for recording his name as occupancy tenant. It was claimed that although they were the actual owners of the suit land and were possessing the suit land and houses standing thereon, on the basis of incorrect advice from the counsel, they had instituted Tenancy Case No. 9/1997 to get their name mutated as occupancy tenants though they were entitled to get the patta in respect of suit land as the successors of Late Ghana Kanta Baruah. The respondents No. 1, 2 and 3 claimed that they were entitled to occupy the suit land and had a right to construct structure on their own land. Accordingly, by denying that any cause of action arose on 08.05.1997 and 03.11.1997, the said respondents had prayed for dismissal of the suit.
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father. Accordingly, in the counter-claim, the respondents- defendants had prayed (i) for a decree declaring the right, title and interest of the defendants No.1, 2 and 3 in respect of the land and houses described in the schedule of the counter-claim; (ii) for a decree confirming possession of the defendants No.1, 2 and 3 in respect of the land and houses described in the Schedule below; (iii) for a decree of permanent injunction restraining the plaintiffs and the proforma defendants No.7 and 8, their men, agents from entering upon and disturbing the peaceful possession of the defendant Nos. 1, 2 and 3 in respect of the land and houses morefully described in the schedule of the counter-claim; (iv) for a decree directing the defendant Nos. 4, 5 and 6 to record the name of the defendant Nos. 1, 2 and 3 in respect of the land described in the schedule of the counter-claim; (v) for cost of the counter-claim; and (vi) decree for any other relief. The appellants- plaintiffs had filed their written statement against the counter- claim filed by the respondent Nos. 1, 2 and 3.
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Committee regarding tax payable (Ext.H); (ix) demand letter dated 16.08.2000 by North Guwahati Town Committee (Ext.I); (x) demand letter by North Guwahati Town Committee (Ext.J); (xi) land revenue paid receipt (Ext.K).
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the predecessor- in- interest of the plaintiffs was mutated in the year 1955 and that the respondents had failed to explain delay in filing their claim, as such, it was held that the counter-claim was barred by limitation and the issue was decided in the affirmative and against the respondents. In respect of issue No.10, it was held that there was no evidence in support of the plea of non- joinder of necessary parties, as such, the issue was decided in the negative and in favour of the respondents. In respect of issue No.11, it was held that Ext.A, as well as Ext.1, Ext.2, Ext.3 showed that the appellants were the pattadars and Ext.4 proved that the respondents were the occupancy tenant in respect of the suit land. However, as the respondents had filed Tenancy Case No. 9/1997 for grant of ownership rights, it was held that the projection in the counter-claim that the respondents were owner of the suit land was contradictory. It was held that the matter of grant of ownership right over the suit land would be decided in Tenancy Case No.9/1997 and unless such right is decided, the respondents cannot be regarded as owners of the suit land, as such, the issue was decided in the negative and against the respondents. Accordingly, in respect of issue No.12, the learned trial Court had dismissed the suit as well as the counter-claim.
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steps for recording their names in respect of the suit land as per right of inheritance and that had they taken any steps for recording their names in the record of right, they would have certainly known that tenancy right was granted to the respondents No.1, 2 and 3, as such, it was inferred that the appellants had slept over their right and by holding that the appellants could not adduce any evidence that they had no knowledge about the fact of granting occupancy tenancy to the respondents No.1, 2 and 3 during the settlement process of 195764, it was held that the suit was barred by limitation and the decision of the learned trial Court on issue No.3 was held to be just and proper. In respect of issue No.5, the learned first appellate Court had held that the suit for declaring that the tenancy khatian granted to respondents No.1, 2 and 3 was illegal and was barred under Section 66(c) and (d) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 and it was further held that as Tenancy Case No. 9/1997 was still pending before the Revenue Court, it was the proper forum for the appellants. Accordingly, no infirmity was found with the decision by the learned trial Court on issue No.5. Moreover, it was held that there was no necessity for discussing issues on counter-claim and, accordingly, the appeal was dismissed and the judgment and decree passed by the learned trial Court was affirmed.
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respondents No.2 and 3, who had built a large house which is still in occupation of the respondents No.1, 2 and 3 as his legal heirs. It is stated that Ghana Kanta Baruah had left his son, Karuna Kanta Baruah and on the death of Late Ghana Kanta Baruah and Late Karuna Kanta Baruah, the said property had devolved on the respondents. It is submitted that Ghana Kanta Baruah had married Sabhya and had two sons, Karuna Kanta Baruah and Suresh Baruah, but when Ghana Kanta Baruah died, Karuna Kanta Baruah was a minor and the land came to be mutated in the name of Suresh Baruah alone, but Suresh Baruah died issueless and the land was illegally mutated in the name of Nabin Chandra Baruah, father of the appellants, by showing the name of Karuna Kanta Baruah, the husband of respondent No.1 and father of respondents No.2 and 3 as occupancy tenant (raiyot) in settlement operation of 1957-64, when the respondent No.2 was still a minor. It is submitted that Nabin Chandra Baruah, father of the appellants was the brother of Sabhya, the mother of Karuna Kanta Baruah, who was the caretaker of the property left behind by Ghana Kanta Baruah, and belonged to a different family. It is submitted that the respondents No.1, 2 and 3 became aware of the claim made by the appellants for ownership rights over the suit land only on receipt of notice of the Tenancy Case No.9/1997 and, as such, they had filed their objection and thereafter the suit was filed by the appellants to prevent any decision to be rendered in the said tenancy case. It is submitted that only after receipt of notice of the said revenue case, upon enquiry, the respondents No.1, 2 and 3 came to know that fraudulently, Late Nabin Chandra Baruah had managed to get his name mutated in respect of the suit land.
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original title holder of the suit land and that the appellants had not proved that Late Karuna Kanta Baruah, the predecessor- in- interest of the respondents ever applied for getting his name recorded in the khatian as raiyot. The learned counsel for the private respondents has referred to jamabandi of year 1928 (Ext.A) in order to show that Ghana Kanta Baruah was the original pattadar of the suit land and on his death, the land was mutated in the name of Suresh Kanta Baruah and that vide remark No. “Kha”, in view of chitha order dated 26.03.1937, the land was mutated in the name of Nabin Chandra Baruah, the predecessorin- interest of the appellants on 11.09.1937, although he is a rank outsider in the family of Late Ghana Kanta Baruah. It is also submitted that the name of the appellants was entered in the revenue records on the basis of remarks dated 22.02.1955 in the jamabandi, when the respondents were still minors.
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under the provisions of Assam Non- Agricultural Urban Areas Tenancy Act, 1955 and the possession of the respondents is protected under Section 5 thereof.
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land’ in town area, the provisions of Assam (Temporarily Settled Areas) Tenancy Act, 1971 is attracted?
Discussion on the substantial question of law No.1:
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in khatian as occupancy tenant. The PW-1 had also stated in his examination- in- chief as well as in his cross examination that his father had died in the year 1951. Thus, if the father of the appellants had died in the year 1951, the suit land must have been mutated in the name of the father of the appellants prior to his death after deleting the name of Suresh Kanta Baruah, son of Late Ghana Kanta Baruah. PW-1 had also submitted that the predecessor- ininterest of the respondents was the Tehsildar had built a haweli. Thus, it cannot be conceived that Ghana Kanta Baruah would built a mansion and his son would be a care-taker under the father of the appellants and yet reside in the same house built by his father. Accordingly, it is seen that through the cross- examination of PW-1, the appellants had admitted the case as projected by the learned counsel for the appellants. Moreover, the appellants had not taken any steps to prove the date when the suit land came to be included in North Guwahati Town Committee. It may be stated that in his cross examination, the PW-1 had stated that his father had allowed Karuna Kanta Baruah to look after the land in the year 1950 as a caretaker and that prior to 1950, they were looking after the land themselves.
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concurrent finding by the learned Courts below and, as such, the substantial question of law No.1 is answered in the affirmative and against the appellant by holding that the finding of the learned Courts below that the suit is barred by limitation is correct.
Discussion on substantial question of law No.2:
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Therefore, without proving the date when the suit land came into the jurisdiction of the North Guwahati Town Committee, even if the suit land is a ‘basti’ land in town area, the tenancy having been created prior to the enactment of the Assam (Temporarily Settled Areas), Tenancy Act, 1971, the said provisions is held to be not attracted in so far as the respondents are concerned. The substantial question of law No.2 is answered accordingly, against the appellants. Thus, the decision of the learned Courts below on issue No.5 cannot be faulted with.
Discussions on substantial question of law No.3:-
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Guwahati Town Committee was already established in the year 1950, the said Town Committee could not have been constituted under the Assam Municipal Act, 1956 but it was constituted under the Assam Municipal Act, 1923 (since repealed), but it is too well settled that the second appellate Court cannot make out a new case which was not pleaded by any of the parties. Therefore, in light of the said observations, it is seen that in paragraph 5 of the plaint, the appellants had taken a stand that “... The suit land is basti-land and so the provisions of the Assam (Temporarily Settled Areas), Tenancy Act, 1971 are not applicable to the basti-land and to the land within the area of Municipal Town…” It appears that in light of the said pleading, the learned Courts below had held that the jurisdiction of the civil Courts is ousted under Section 66(c) of the Assam (Temporarily Settled Areas), Tenancy Act, 1971.
a. Non- mentioning of Ext. Nos. 11, 13 and 14 and that Ext.10 was wrongly mentioned as “application”, though it was photocopy of sale deed: It was urged that the learned trial Court had not made any mention about Ext. Nos. 11, 13 and 14 and that Ext.10 was wrongly mentioned as “application. In this regard, it is seen that the PW-1 had marked Ext. Nos. 1 to 10. In his examination- in- chief, the PW-1 had mentioned Ext.10 to be an application made by the respondents No.1, 2 and 3. The said application (Ext.10) is found to be marked at page No.5 of
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Tenancy Case No. 9/1997, which was called for from the Court of A.D.C., Kamrup. It is further seen that when the appellants had examined Bipin Chandra Goswami (as PW-4, wrongly written as PW-3), the appellants had marked photocopy of the Sale Deed No.217 /34 as Ext.10 (second). The appellants had examined Satish Chandra Das, as PW-3. The said witness was working as Mandal. The said PW-3 had marked documents from Tenancy Case No. 9/1997 as Ext.11(1), 11(2) and 11(3). But, the said documents, which are found available at pages 4 and 5 of the said revenue records, are seen to be marked as Ext.13 and Ext.14. Thus, the document at page-4 of the Tenancy Case No. 9/1997 has been marked by the appellants as Ext.10 as well as Ext.13. Despite a thorough search made by the learned counsel for the appellants as well as respondents No.1, 2 and 3 in Court, no document was found to be marked as Ext.11(1), Ext.11(2) , Ext.11(3) or Ext.12. None of the four PWs had exhibited Ext.12. Therefore, the learned trial Court cannot be blamed for its omission of not referring to any documents other than Ext. Nos. 1 to 10. The appellants- plaintiffs have improperly marked exhibits No. 10, 11, 13 and 14, as such, no fault is found with the learned trial Court as regards improper reference to exhibits. Moreover, the Sale Deed No. 217/34 (second Ext.10) is found to be a photocopy. The PW-4 had stated in his cross examination that the document was certified copy given by the Registrar’s Office. However, there is no endorsement in the photocopy of the said sale deed that it was certified by the Sub- Registrar, Kamrup as a true copy. Moreover, on reading the examination- in- chief of Bipin Chandra Das (PW-4, wrongly mentioned as PW3) it does not appear that original volume book was brought for examination by the learned trial Court. The PW-4 had not given any statement as to who were the parties to the said sale deed, or whether the said sale deed relates to the suit land. Thus, the Sale Deed (second Ext.10) cannot be read in evidence, and it does not prove anything. Moreover, Ext.13 and Ext.14 relates to the Tenancy Case No. 9/1997, and neither the said proceeding nor any order passed therein is the subject matter of the suit. Hence, the appellants are not found to have suffered any prejudice by the lack of reference to the said document in the judgment passed by the learned trial Court. Ext. 10 (first), Ext.11, Ext.13 and Ext.14.
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b. Failure of the learned first appellate Court to formulate points of determination or to decide issues other than issue No.3 and 5: In this regard, the appellants had not challenged the decision of the learned trial Court on issues No.1, 2 and 4, which were decided in favour of the appellants. Therefore, in the considered opinion of the Court, there was no necessity for the learned trial Court to re-visit the said issues. In respect of issues No. 7 to 12, those had been framed for the purpose of deciding the counter-claim. However, as the counter-claim was dismissed and no appeal and/or cross objection was preferred by the respondents, there was no necessity for the learned first appellate Court to re-visit the said issues. Thus, as the learned first appellate Court had re-visited issues No.3, 5 and 6, non- framing of points of determination as required under Order XLI, Rule 31 CPC is not found to be fatal.
c. Lack of discussion of exhibited documents: While discussing substantial questions of law, it has been discussed that the appellants did not prove the relevant dates (i) when their predecessor- in- interest had got his names mutated in the record of rights, (ii) date when the name of Karuna Kanta Baruah was entered in khatian as occupancy tenant, (iii) date when suit land came within the jurisdiction of North Guwahati Town Committee, (iv) dates when various names came to be recorded in the jamabandi, chitha, etc. Therefore, the documents exhibited by the appellants are of recent origin and have no relevance once the PW-1 has admitted in his cross examination that the estate of Ghana Kanta Baruah was inherited by Suresh Kanta Baruah and that he did not know how the name of his father, namely, Nabin Chandra Baruah was entered in place of Suresh Kanta Baruah, and that his father was the maternal uncle of the respondents, because while the respondents have been able to trace their lineage with Ghana Kanta Baruah, the appellants have not been able to trace their own lineage with Ghana Kanta Baruah. Moreover, the PW-1 had admitted in his cross- examination that Ghana Kanta Baruah was a Tehsildar and had constructed a haweli (mansion), where the respondents are living, documents of 1995-97 showing that some construction was carried out by the appellants had no relevance. Therefore, no infirmity is found with the concurrent finding by the both the learned Courts below
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merely for not referring to exhibits in their respective judgments because it is too well settled that a mere marking of documents as exhibits is not sufficient, but the contents of the documents is required to be proved and the learned counsel for the appellants has not been able to satisfy the Court that contents of any of the documents marked as exhibits by the appellants had been duly proved in accordance with law.
d. Counter-claim was not in accordance with law: In this connection, it is submitted that the written statement and the counter-claim was not filed jointly, but the written statement and the counter-claim were filed separately. It is seen that in the written statement, there is a mention about the counter-claim, and the counter-claim is filed separately. It is seen that the counter-claim had been dismissed and no appeal has been preferred by the respondents No.1, 2 and 3, as such, there is no need to go into that aspect of the matter.
e. Cases cited by the learned counsel for the appellants: The purpose of citing case law has been indicated in paragraph 16 above. In view of the decision on the substantial question of law, it would be suffice to mention that none of the cases cited by the learned counsel for the appellants are found to help the appellant in any manner whatsoever. The case of Ramesh Chand Ardawatiya (supra) in respect of counter-claim, but as there is no cross objection by the respondents No.1, 2 and 3 in respect of their counter-claim the said case is not found to help the appellants. The Courts below had not granted any title to the respondents No.1, 2 and 3 on the basis of khatian or revenue records, as such, the case of Fazal Sheikh (supra) and Dharmarajan (supra) and is of no help to the appellants. Though the learned counsel for the appellants has cited the case of Management of Goodwill Girls High School (supra), but no submission has been made that which Court had considered any point on which no evidence was led. Similarly, the case of V.M. Salgaokar & Bros.(supra) was cited without mentioning the reason for citing the same. Although the case of Vishwanath Achari (supra) was cited, but no submission has been made that which point the appellate Court had decided, which was not based on issues framed by the learned trial Court. On facts as discussed above, the case of Dharmarajan (supra), Maria Margarida Sequeria Fernandes (supra), Daulatram
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Lakhani (supra) and Harimati Das (supra) also does not help the appellants in any manner.
JUDGE
Comparing Assistant
3 issues framed by the court
Was the suit challenging occupancy tenancy entries barred by limitation?
Did the Assam (Temporarily Settled Areas) Tenancy Act, 1971 apply to the tenancy over basti land in a town area?
Was civil court jurisdiction ousted for the challenge to the tenancy khatian?
Colour shows how this judgement treated each authority
Ramesh Chand Ardawatiya Vs. Anil PanjwaniDistinguished¶124
Ramesh Chand Ardawatiya Vs. Anil Panjwani (2003) 7 SCC 350 · Who else cites this
Management of Goodwill Girls high School Vs. J. Mary Susheela & Ors.Distinguished¶124
Management of Goodwill Girls high School Vs. J. Mary Susheela & Ors., (2003) 9 SCC 106 · Who else cites this
V.M. Salgaokar & Bros. Vs. Board of Trustees of Port of MormugaoReferred¶124
V.M. Salgaokar & Bros. Vs. Board of Trustees of Port of Mormugao, (2005) 4 SCC 613 · Who else cites this
Vishwanath Achari Vs. KanakasabapathyDistinguished¶124
Vishwanath Achari Vs. Kanakasabapathy, (2005) 6 SCC 56 · Who else cites this
Dharmarajan Vs. ValliammalDistinguished¶124
Dharmarajan Vs. Valliammal, (2008) 2 SCC 741 · Who else cites this
Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de SequeriaDistinguished¶124
Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de Sequeria, (2012) 5 SCC 370 · Who else cites this
Daulatram Lakhani Vs. State of AssamRelied on¶113
Daulatram Lakhani Vs. State of Assam, (1989) 1 GLR 131
Harimati Das Vs. Jadav Chandra DekaRelied on¶113
Harimati Das Vs. Jadav Chandra Deka, 1990 (1) GLJ 304
Fazal Sheikh Vs. Abdur RahmanDistinguished¶124
Fazal Sheikh Vs. Abdur Rahman, AIR 1991 Gau 17 (FB) · Who else cites this
Ramsarup Gupta (Dead) by LRs. Vs. Bishun Narain Inter College & Ors.Referred¶86
Ramsarup Gupta (Dead) by LRs. Vs. Bishun Narain Inter College & Ors., (1987) 2 SCC 555 · Who else cites this
Kalyan Singh Chauhan Vs. C.P. JoshiReferred¶86
Kalyan Singh Chauhan Vs. C.P. Joshi, (2011) 11 SCC 786: AIR 2011 SC 1127 · Who else cites this
5 provisions across 3 enactments
LOHIT CH. BARUAH
UTTAM CH. BARUAH
NAKUL CH. BARUAH
RABIN CH. BARUAH
ARUNA BARUAH
CHANDAN BARUAH
KALYAN RAI SURANA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
