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Judgment
1) Heard Mr. B.D. Deka, the learned advocate for the appellant as well as Ms. D. Borgohain, the learned advocate for the respondents.
2) This appeal by the appellants/ defendants under Section 100 CPC is directed against the first appellate judgment and decree dated 14.07.2011 passed by the learned Civil Judge, Barpeta in Title Appeal No. 30/2010, thereby upholding the judgment and decree dated 25.06.2010 passed by the learned Munsiff, Barpeta in T.S. No. 153/2008. The respondents herein are the plaintiffs in the said suit. While in the plaint, the Secretary, Keotkuchi Satra Management Committee was arrayed as proforma defendants, Reliance Infratel Ltd. was arrayed as defendant No.2, but they are not arrayed as parties in this appeal.
3) This appeal was admitted for hearing by order dated 07.12.2011 on the following substantial question of law - Whether, Ext.1 khatian has been issued as required under Rule 81 of the Settlement Rules framed under Assam Land and Revenue Regulation, 1886 and consequently, whether the plaintiff's right, title and interest, as rayat can be declared over the suit land on the basis of ext.1?
4) As per the plaint, the case projected by the respondents/ plaintiffs is that the parties are descendants of common parents. Their predecessor, namely, Shasti Das left behind his five sons, namely, Late Pratap Ch. Das, Late Lohit Ch. Das, Sri Indra Mohan Das, Late Bhaben Das and Late Gopal Das. Pratap Ch. Das had died leaving behind the respondent No.2 as his legal heir. Late Lohit Ch. Das had died about 50 years back leaving behind the respondent No.1 has his legal heir. It is claimed that the respondents and the appellant No.1 were jointly holding and possessing the suit land measuring 4B-3K-5L, covered by Dag No. 476 of N.K. Patta No. 1, covered by Village- Keotkuchi, morefully described in "Schedule-A of the plaint as occupancy tenants (rayats) under the Secretary, Keotkuchi Satra Management Committee (proforma defendant No.1), with heritable and transferable right, title, interest. The suit land was settled by the Govt. in favour of deity called Basudeb Bigraha and its worshippers and is managed by the proforma defendant. Accordingly, the proforma respondent had settled the Schedule-A land with Indra Mohan Das (the predecessor - in-interest of the appellants), (respondent No.1), Sri Dhruba Das (respondent No.1) and Pratap Chandra Das (father of the respondent No.2). It was projected that the said three members of the family had verbally partitioned the said land in three equal parts, out of which the western portion fell in the share of predecessor of respondent No.2, middle portion in the share of the predecessor of the appellants and the eastern portion fell in the share of respondent No.1. Accordingly, the name of the said three persons were entered in khatian in the year 1974 and on death of Late Pratap Ch. Das, the name of respondent No.2 was mutated. Thereafter, on 03.02.2008, the agents and workmen of Reliance Infratel Ltd. (defendant No.2) had trespassed in the suit land without consent of the respondents and installed a tower and machineries on the eastern part of the suit land and dispossessed the respondents therefrom. The respondents came to know that the predecessor of the appellants had settled the defendant No.2 on the suit land on the basis of fake and fraudulent documents and, as such, the respondents had sent a notice dated 15.03.2008 to the defendant No.2 to stop installation of the tower and similarly, the proforma defendant had also sent a notice dated 26.03.2008 to the defendant No.2, without any result and accordingly, by claiming that cause of action had arisen on 03.02.2008, February, 2008 and 17.04.2008, the suit was filed for declaration of right, title and interest over the suit land as rayats under the proforma defendants to the extent of two- thirds of the suit land, for partitioning the share of the respondents to the extent of 1B-2K-5L each under separate Dags and in the exclusive possession by evicting the appellants and by removing structures standing thereon, and other reliefs.
5) The predecessor of the appellants had filed his written statement - cum-counter-claim. It was stated that Late Shasti Ram had 5 sons, namely, Lohit Das ( left behind respondent No.1 and Mahendra Das as his two sons), Pratap Das (father of respondent No.2), Bhaben Das (left behind Naren Das and Paren Das as two sons), Gopal Das (died unmarried), and Indra Mohan Das (predecessor of appellants). While denying the claim of the respondents, it was projected that in the settlement operation of 1958-65, the land covered by NK Patta No.1 was divided into various dags by the Govt. and the land covered by Dag No. 476 was exclusively settled with the predecessor of the appellants as rayats and that since then, the predecessor of the appellants was occupying the suit land with orchard and a fish tank therein. By describing the four boundaries, it was stated that Sri Shasti Ram Das had two other sons, namely, Late Gopal Das and Bhaben Das, who were not made parties in the suit and that all the brothers had got separated 60 years ago and residing separately in separate places. It was stated that Late Lohit Das resided separately at Bayaskuchi under Mouza- Sarukhetri and on his death, his heirs started to reside at Khetri. Late Pratap had died and his heirs were residing in Dag No. 475, which is held by the heirs of Late Pratap Das. It was stated that the brothers of the predecessor of the appellants are residing in their respective place without having any connection with the suit land. It was claimed that the said land never belonged to the father of the respondents and father of appellant, and further claiming that the said property was exclusively settled by the Gossai in favour of the predecessor of the appellants and he was in exclusive possession thereof. It was stated that on 01.06.2007, the predecessor of the appellant had leased the suit land to the defendant No.2, and accordingly, the defendant No.2 had erected a antenna/ tower over land covered by Dag No. 476, which took 3 months to construct and the same was still standing on the said land, but no one had objected to the construction of tower in Dag No. 476. It was claimed that the father of the predecessor of the appellant had land in Village- Keotkuchi under Mouza- Khetri, which was possessed by Late Bhaben Das and land at Biakuchi under Mouza- Sarukhetri, which was possessed by father of respondent No.1, who sold the land and thereafter began to reside at Khetri till his death. It was stated that during their lifetime, the predecessor of the respondents never claimed the suit land as its sharer. It was claimed that after the defendant No.2 had informed the appellant about the notice issued by the respondents, the appellant had inquired in the office of the Circle Officer and came to know that on 12.03.2008, the name of the respondents was recorded in the chitha of suit dag with the predecessor of the appellant. Thereafter the predecessor of the appellant had filed a Misc. Case No. 19/07-08 before the Circle Officer, Barpeta on 20.03.2008 to remove the names of the respondents from revenue records, which was fixed for hearing on 11.06.2008, however, in the meantime, the respondents had filed the present suit and accordingly, the said misc. proceeding was stayed. It was claimed that the predecessor of the appellant had came to know on 07.07.2008 for the first time that the names of the predecessor of respondents was recorded as rayats along with the name of predecessor of appellants in the year 1974. It is also claimed that the predecessor of respondents did not have possession over the suit land during their lifetime and that their names were recorded secretly with the help of revenue staff and that the predecessor of the appellants was paying the land revenue to the Satra. Hence, the counter-claim for removal of the names of the respondents from the revenue records.
6) The respondents- plaintiffs had filed their written statement against the counter-claim and by relying on their plaint, the statements made in paragraph 7 were denied. The defendant No.2 had also filed their written statement. However, as they are not parties to this appeal, their concise stand has not been narrated herein. The proforma defendant did not submit their written statement. However, the said proforma defendants are not parties to this appeal.
7) Accordingly, on the basis of the pleadings, the learned trial Court had framed the following issues for trial:-
Whether there is cause of action for the suit as well as for the counter-claim?
Whether the suit is barred by law of limitation?
Whether the suit is bad for non- joinder of necessary parties?
Whether the plaintiffs have right, title and interest in the suit land as 'Rayat' under the proforma defendants to the extent of two-thirds of the suit land?
Whether the plaintiffs are entitled for the decree of khas possession of their legitimate share if any from the suit land by evicting the defendants therefrom?
Whether the plaintiffs are entitled for the decree as prayed for in the suit?
Whether the defendant No.1 has right, title, interest and possession over the suit land, which is specifically described in the Schedule of the counter-claim?
Whether the entry of the names of the plaintiffs along with their fathers is illegal and void in law?
Whether the defendant No.1 is entitled for the decree as prayed for in the counter-claim?
To what reliefs or reliefs the parties are entitled to?
8) In support of their case, the respondents- plaintiffs had examined respondent No.1 as PW-1, Girindra Nath Das (PW-2), Narendra Nath Das, son of Late Bhaben Das (PW-3), Sri Manab Das, Barpeta Revenue Kanungo (PW-4), Md. Azizur Rahman, Lat Mandal (PW-5), and Sri Bharat Chandra Das, Secretary of Keotkuchi Satra (PW-6) the respondents had exhibited the following documents, viz., Khatian issued on 27.08.1974 (Ext.1), certified copy of chitha of Dag No. 476 (Ext.2), Revenue receipt dated 06.10.1996 issued by the Secretary of Keotkuchi Satra [Ext.3(1)], Revenue receipt dated 20.02.2008 issued by the Secretary of Keotkuchi Satra [Ext.3(2)], Letter dated 26.03.2008 (Ext.4) and Letter dated 17.04.2008 (Ext.5). The appellants had examined Indra Mohan Das (DW-1), Achyut Das (DW-2), Anil Chandra Das (DW-3), Gokul Chandra Sarma, Revenue Kanungo (DW-4), The appellants had exhibited the following documents, viz., revenue receipt for suit land (Ext.Ka), certified copy of chitha (Ext. Kha), certified copy of current chitha (Ext.Ga).
9) In respect of issue No.1, by discussing the pleaded case of the parties, the learned trial Court had held that there is sufficient cause of action for the suit of the plaintiffs as well as the counter-claim of the defendants. In respect of issue No.2, it was held that the suit was not barred by limitation. In respect of issue No.3, it was held that the suit could be adjudicated without the legal heirs of Late Shasti Ram Das, as such, it was held that the suit was not defective for non- joinder of parties.
10) In respect of issue No.4, the learned trial Court had relied on the admission made by DW-1, i.e. the predecessor of the appellants that except for khatian (Ext.1) issued in the year 1974, he had no other document to establish that he was the only rayat of the suit land. Regarding the entry in the said khatian, the DW-1 had stated that he had not filed any revenue appeal for cancellation of the same. DW-1 had stated that he did not know who dropped ink over Ext. Ka or why the middle portion was torn and he further admitted that he might have paid revenue for the year 1968 vide Ext.Ka. The learned trial Court gave a finding that the after the name of predecessor of the appellant, something else was written and to erase the same it was torn and after that lamination was done. It was also held that as per Ext.Ka, revenue was paid for the year 1997, and that as per Ext.3, issued by proforma defendant, revenue was received on behalf of predecessor of appellant as well as the respondents. Court had also relied on the statement made by DW-4 that after final khatian had been prepared, the rayats of the land covered by Dag No. 476 were Indra Mohan Das, Pratap Chandra Das and Dhruba Chandra Das, son of Lohit Chandra Das, and that the DW-4 had confirmed that Ext. was the final khatian, which is still in existence and has not been cancelled and hence, the learned trial Court had held that from above, it was established that the father of predecessor of the appellants, respondent No.1 and the father of respondent No.2 and that they were joint rayats in respect of the suit land measuring 4B-3K-5L, covered by Dag No. 476 under N.K. Patta No.1. It was held that the predecessor of the appellants had failed to rebut the validity of the rayati khatian (Ext.1), which presupposes possession in favour of the tenant. On the principle that possession of one co-owner was possession of all co-owners, hence possession of one co-tenant was held to be possession by tenants- in- common. Accordingly, it was held that the predecessor of the appellants and the respondents were tenants in common under the proforma defendant and the respondents- plaintiffs were held to be entitled to right, title, interest in the suit land as rayats to the extent of two thirds of the suit land.
11) On the basis of discussion and decision in issue No.4, in respect of issue No.5, it was held that the respondents were entitled for the decree of khas possession of their legitimate share of the suit land by evicting the appellants therefrom.
12) In respect of issue No.7, as the rayati khatian was not cancelled and the predecessor of the appellants had not raised any objection as to the contents of the said khatian (Ext.1), and in view of the decision in issue No.4 to the effect that the predecessor of the appellants and the respondents had equal share in the suit land, as such, it was held that the predecessor of the appellants could not claim his right, title, interest and possession over the entire suit land, but he had right, title and interest over one-third share of the suit land. Hence, the issue No.7 was decided in the negative and against the appellants. In respect of issue No.8, it was held that there was no ground to declare the entry of the names of the respondents along with their fathers in khatian as illegal, as such, the issue was decided in the negative and against the appellants.
13) In respect of issues No.9 and 10, it was held that the respondents had right, title and interest over the suit land as rayats to the extent of two- thirds of suit land and, as such, it was held that the suit land be partitioned in respect of the legitimate shares of the respondents for 1B-2K-5L each and thereafter the possession of the shares of the respondents was to be given by evicting the appellants by removing their house, tower and other structures standing thereon and it was also held that the appellants were not entitled to any relief as sought for in his counter-claim, except for declaration that he has the right, title and interest over the suit land to the extent of one-third share and not more than that. Thus, the suit of the respondents was decreed and it was held that the respondents had not been able to prove the counter-claim and, as such, it was dismissed by declaring that the respondents- plaintiffs had right, title and interest in the suit land, which is described in Schedule-A of the plaint as rayats under proforma defendant to the extent of two thirds of the suit land. It was also held that the suit land be partitioned to place the legitimate share of the respondent- plaintiffs to the extent of 1B-2K-5L each and thereafter possession of the shares of the respondents be given by evicting the appellants therefrom by removing their house, building, tower and other structures standing thereon. The suit was decreed without cost.
14) The appellants had filed appeal under section 96 CPC, which was registered as T.A. No.30/2010. Though no points of determination was framed but according to the learned first appellate Court, the issues No. 4 which related to the joint right, title and interest of the respondents over the suit land and issue No. 7, which related to the appellant's exclusive right, title and interest was the crux point of the suit. On discussing the materials on record, according to the learned first appellate in the year 1961, khatian was issued in the name of predecessor of the appellants. However, on completion of survey and settlement operation, the katcha khatian was issued in the name of the predecessor of the appellants, respondent No.1, and father of respondent No.2. The learned first appellate Court relied on the evidence of PW-4 (Revenue Kanungo) to the effect that the suit land was owned by Sri Basudeb Bigraha. The survey works were started in the year 1965 and on its completion, the survey settlement records were corrected by entering the names of the respondents as rayats along with the name of the predecessor of the appellants and the same continued till date, without objection by the predecessor of the appellants. It was held that the predecessor of the appellants had failed to prove their plea that the properties held by his predecessor was amicably partitioned and that the respondents had got their share elsewhere. Hence, the learned first appellate Court disbelieved the plea of the appellants that their predecessor was the sole owners of the suit land and, as such, the learned first appellate Court was of the view that the learned trial Court had rightly decided the said issue by holding that the appellants and the respondents were the joint owners of the suit property. Accordingly, the decision of the learned trial Court on other issues were upheld. Moreover, the learned first appellate Court had held that plea that the suit land was not covered under the provisions of the Assam Temporarily Settled Areas Tenancy Act, 1971 as the suit was non- agricultural land was taken for the first time in appeal, which could not be considered. Hence, the appeal was dismissed.
15) The learned advocate for the appellants has, amongst others, laid much stress on his submission that as per the scheme of Settlement Rules, if there is any entry in the chitha, then such entry may form part of the khatian, but in the present case in hand, the Circle Officer had erroneously and without any material on record had presumed that the entries in favour of the respondents- plaintiffs existed in the khatian and their names were entered in the draft chitha, which was adopting of a totally wrong procedure. It is submitted that the learned first appellate Court had held that after survey was completed, entries were made in the katcha khatian, which is wrong appreciation of the procedure for making entries in khatian, and in this regard, it is submitted that as per Rule 81 of the Rules under the Land and Revenue Regulation, it is prescribed that the Settlement Officer shall prepare draft/katcha khatian from the chitha, and there ought to be separate khatian for each person and moreover, after due compliance of sub-rule (2) of Rule 81, on the basis of actual possession, the Assistant Settlement Officer shall prepare decide all questions relating to khatian. Thereafter, as per Rule 82 of Rules under the Land and Revenue Regulation, the draft khatian would be published under Rule 82-B and on hearing objections under Rule 82-A, the final khatian is framed and thereafter published under Rule 82-C thereof.
16) By referring to the provisions of Rule 80 of the Rules under the Land and Revenue Regulation, it is submitted that the learned Courts below ought not to have accepted the entries contained in chitha (Ext.1) exhibited by the respondents as it did not comply with the provisions of Rule 80 and did not contain the essential entries of (i) rent payable by tenants, (ii) length of possession, and (iii) holding of each tenant.
17) It is seen that in this case that the Assistant Revenue Kanungo working under Office of Deputy Commissioner, Barpeta had appeared and deposed as PW-4. As per his oral statement during examination- in- chief, he had stated that he had brought the original khatian and had orally deposed that the said khatian was continuing since the year 1965 and the land was settled in the name of the respondents and the predecessor of the appellants. However, he had stated that the entries in Ext.1 was made on 26.07.1974. He had stated that in the jamabandi brought by him, only the name of land-owner was shown and it did not contain the name of rayats. In his cross examination, PW-4 had stated that the rayati khatian was prepared on 26.07.1974, but the khatian brought by him had been prepared on 02.02.1976 and he had further stated that there was one more khatian prior to 02.02.1976.
18) The respondents had also examined the Lat Mandal as PW-5. In his examination- in- chief, he had stated that he had brought the jamabandi, map and chitha of the suit land and according to him, there was resemblance between the certified copy of chitha (Ext.2) and the chitha brought by him. He had stated that as per the office note of the Assistant Settlement Officer, the rayati khatian brought by him was maintained in the Circle Office since 1976. He had stated that according to the rayati khatian, the rayats of suit land was (i) Indra Mohan Das (predecessor of the appellants), (2) Dhruba Chandra Das (respondent No.1), and (3) Pratap Chandra Das, after his death his son Prasanna Das (respondent No.2) had become rayats. In his cross examination, the PW-5 had admitted that the suit land was a basti land. The PW-6, namely, Bharat Chandra Das was the Secretary of Keotkuchi Satra Parichalana Committee, had also stated that the khatian in respect of the suit land was in the name of the above named three persons, viz., Indra Mohan Das, Dhruba Chandra Das and Pratap Chandra Das. He had admitted issuance of khajana (i.e. land revenue) receipt.
19) Nothing worthwhile could be elicited in the cross examination of PW-1 and PW-2. The PW-1 had stated that the 4B-3K-5L land was bounded in North by Pratap Das, South by PWD Road, East by Naren Das and West by Durga Sarma.
20) In his cross-examination, the DW-1 had admitted that Ext. Kha (i.e. certified copy of the chitha) had been issued to him by the Govt. He had further stated that the Govt. had issued patta of the suit land in the year 1958-1965 to him. He had stated that only after giving the notice on 13.03.2008, he came to know that the names of the respondents were entered in the rayat khatian. He had further stated that he had paid khajana on the basis of Ext. Ka (i.e. land revenue receipt).
21) Nothing worthwhile could be elicited in course of cross-examination of DW-2 and DW-3.
22) Sri Gokul Chandra Sarma (DW-4) is the Revenue Kanungo. According to the statement made by DW-4 in his cross examination, the settlement process was started in the Barpeta District in the year 1958 and on 02.02.1976, final khatian was prepared by the Assistant Settlement Officer, which was finally approved by the Settlement Officer on 08.05.1976 and he had admitted that as per final khatian, the land stood in the names of Indra Mohan Das, Pratap Das and Dhruba Chandra Das. He had further stated that the final khatian is still in continuance and there was resemblance between Ext.1 and the khatian brought by him.
23) Thus, from the appreciation of evidence on record, it appears that although both sides had examined land revenue staff as their respective witnesses, neither sides exhibited the land revenue records brought by these witnesses. It is seen that although the learned advocate for the appellant had taken much pain in attempting to establish that the land revenue staff had wrongly complied the khatian dehors the Rules, but the land revenue staff had not been put any questions on the point of alleged non- compliance of the procedure under Rule 80 and 81 of the Rules framed under Land & Revenue Regulation. Thus, it appears to this Court that although issue No.4 was "Whether the plaintiffs have right, title and interest in the suit land as 'Rayat' under the proforma defendants to the extent of two-thirds of the suit land? ", the appellants herein had not been able to demolish the claim by the respondents that the names of (i) the predecessor of the appellants, (ii) respondent No.1, and (iii) predecessor of the respondent No.2 was entered in the khatian. As stated herein before, the land revenue staff examined by the appellant's side had also admitted that the final khatian is still in continuance and there was resemblance between Ext.1 and the khatian brought by him. Hence, the indelible impression of this Court is that the issue now sought to be raised by the learned advocate for the appellant, questioning the procedure adopted by the land revenue staff to for making entries in the draft/ katcha khatian and final khatian was dehors the Rules was not established during trial.
24) The learned advocate for the appellants had relied on the case of Pulin Boro & Ors. Vs. state of Assam & Ors., 2007 (2) GLT 619 (para-17 to 19) to canvass the point that entries in the draft khatian is not at all relevant to decide the title. The relevant paragraphs 17 to 19 is quoted below:-
"7. 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 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.
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.
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-à-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."
25) Upon appreciating the facts of the present case in hand in light of above, it is seen that in course of cross examination, (i) Sri Manab Das, Barpeta Revenue Kanungo (PW-4), (ii) Md. Azizur Rahman, Lat Mandal (PW-5), (iii) Sri Bharat Chandra Das, Secretary of Keotkuchi Satra (PW-6) were not confronted with the question as to whether the khatian holders had ever cultivated the land. The DW-4 admitted in his cross examination that the khatian in respect of the suit land was in the names of of (i) the predecessor of the appellants, (ii) respondent No.1, and (iii) predecessor of the respondent No.2. Thus, this is not a case where the respondents had merely proved the entries in the khatian, rather they examined witnesses including the Secretary of the Management Committee of the Satra, i.e. the land-owner to prove that the khatian stood in two names including that of the respondents. In the considered opinion of this Court, the appellant never led any evidence to prove that the procedure for making entries in the draft khatian and final khatian in this case was not in accordance with law. Therefore, the ratio laid down in the case of Pulin Boro (supra), does not appear to help the appellant in any manner.
26) The learned advocate for the appellant had relied on the case of Ashok Kr. Sinha & Ors. Vs. Rabindra Kr. Nath, 2015 (4) GLT 272 to canvass the point that the rayati khatian (Ext. 1), certified copy of chitha (Ext.2) and revenue receipts [Ext.3(1) and 3(2)], was not sufficient document to prove the tenancy. There is no quarrel with the well settled position of law. However, in the present case, not only the respondents had proved documentary evidence by way of jamabandi, chitha and revenue receipts, but they had also examined the erstwhile land-owner who led oral as well as documentary evidence to prove the point that the respondent No.1 and the predecessor of the respondent No.2 were the khatian holders and that the land owner, through the Secretary of the Management Committee of the Satra had confirmed the said position. Under such circumstances, when the appellants did not disprove the documents exhibited by the appellants or prove the land revenue records brought to the Court at the time of tendering his evidence, it can be presumed under Section 114; Illustration (f) that common course of business has been followed in particular case. It is well settled that presumption is rebuttable, but in the present case in hand, no evidence was led by the appellants herein before the learned trial Court to show that in this particular case the entries in the draft khatian and the final khatian were not made in regular course of business of the concerned land revenue officials and staff. Thus, the case of Ashok Kr. Sinha & Ors. (supra) does not appear to help the appellant.
27) The learned advocate for the appellant had relied on the case of Roop Kumar Vs. Mohan Thadani, (2003) 6 SCC 595 and Sumati Bala Majumder & Ors. Vs. Narendra Kumar Das, AIR 1975 Gau 43 to canvass the point that Sec.91 of the Evidence did not preclude the party from proving that the real contract was different from what is found from the deed. In this regard, there is again no quarrel with the well settled law, however, in the present case in hand, no contract, grant or other disposition of any property is the matter in issue. The respondents had proved entries made in revenue records in form of khatian, which is a entry recording the particulars of tenants, their land-holding, and other requisites. It is reiterated that the representative of the land- owner had admitted the existence of the tenancy of the respondents. Hence, these two cases cited by the learned advocate for the appellants also do not help the appellant.
28) The learned advocate for the appellants had also relied on the case of Ratan Chand & Ors. Vs. Mori (Dead) by LRs and others, (2010) 11 SCC 768 to canvass that if without any explanation, someone else's name is entered as non- occupancy tenant, then the first entry should be preferred and not the unexplained subsequent entry. The relevant paragraphs 9 to 11 thereof are quoted below:-
"9. As far as merits of the appeals is concerned, the High Court found that Ram Sahai was an occupancy tenant and his name was entered as such in the record. When he died, it was not disputed that his two widows Mori Devi and Nihatu became the occupancy tenants and, accordingly, their names were entered in the revenue records. The High Court also found that without any reason the name of Durga, son- in-law of Nihatu, was also entered abruptly as a non- occupancy tenant.
The High Court has examined the material on record and has pointed out that this is case of absolutely 'no evidence'. The High Court was conscious of the fact that if there was any finding of fact based on evidence by the first appellate Court, it should not interfere with such finding. The High Court interfered because it came to conclusion that there was no evidence or reason at all as to why and how the name of Durga was entered as an occupancy tenant.
The High court also relied uopn several decisions which held that where someone is registered and shown as occupancy tenant, if someone else's name is entered as non-occupancy tenant without any explanation, the first entry should be preferred and not the unexplained subsequent entry. It is in these circumstances, the High Court has reversed the finding of the first appellate Court and restored the finding of the trial Court that Durga was not a non-occupancy tenant. The High Court has also noticed that the defendants 1 to 3 being co-owners cannot at the same time claim to be non- occupancy tenants also.
29) The submissions by the learned advocate for the appellants prima facie appear to be very attractive, but on revisiting the evidence on record, it is seen that the appellants had not cross examined any witnesses in respect of abrupt nature of entries of the names of the respondents in the khatian, rather, it is seen that the land revenue staff and the representative of the land-owner have not denied that the respondents were not the khatian holders in respect of the suit land. Thus, the said two cited cases on the point also do not provide any aid to the appellants.
30) In view of the discussions above, this Court is of the considered opinion that that the witnesses examined in this case were not examined or questioned to prove that Ext.1 khatian was not issued in accordance with Rule 81 of the Settlement Rules framed under Assam Land and Revenue Regulation, 1886 and consequently, the plaintiff's right, title and interest, as rayat can be declared over the suit land on the basis of overall evidence tendered in this case including Ext.1. Accordingly, the substantial question of law is answered in the affirmative by holding that there is no evidence to the effect that Ext.1 khatian was not issued as required under Rule 81 of the Settlement Rules framed under Assam Land and Revenue Regulation, 1886 and consequently, the right, title and interest of the respondent-plaintiff as rayat can be declared over the suit land on the basis of evidence on record including Ext.1.
31) Accordingly, this appeal fails and the same is dismissed. Consequently, the judgment and decree passed by both the learned Courts below stand affirmed.
32) Decree may be prepared accordingly.
33) Let the LCR be returned at the earliest.