On the Death of Batai Rabidas, his Legal Heirs Samar Rabidas and Others vs Shri Jagadev Goala and Others

S.K. Homchaudhuri, J.—This second Appeal by the Defendant Appellant is directed against the judgment and decree dated 27.6.79 passed by the learned Asstt District Judge No. 1, Cachar, Silchar in Title Appeal No. 76/76 affirming the judgment and decree passed by the learned Munsiff No. 1 in Title suit No. 226/74.

Plaintiff Respondents instituted the Title Suit No. 226/74 in the Court of the learned Munsiff, Silchar for declaration of their title, confirmation of their possession over the suit land described in Schedule-I to the plaint and for a decree for declaration that the Principal Defendant did not have any tenancy right over the suit land. Plaintiffs'' suit was founded on the contention that suit land was owned and possessed by the and the principal Defendant was never inducted as a tenant in the suit land nor did be ever possess the suit land. However, the principal Defendant in collusion with the Mandal (Revenue Staff) obtained a tenancy Khatian in his favour in respect of the suit land u/s 79 of the Assam (Temporary Area) Tenancy Act. The Plaintiffs filed objection against the issue of Khatian, and the Assistant Settlement Officer on consideration of evidences adduced by both parties, cancelled the Khatian. But on appeal filed by the principal Defendant, the Settlement Officer, by the appellate order dated 30.9.74 restored the tenancy Khatian. As a consequence Plaintiffs right, title and interest over the suit land having been clouded, the suit was instituted.

Principal Defendant contested the suit by filing written statement denying Plaintiff�s contentions in the plaint and asserting his tenancy over the suit land along with other land of the Plaintiff which was the subject matter of Title Suit No. 189/69.

On the pleadings of the patties the learned Munsiff framed the following issues:

(1) Is there any causeeauie of action for the suit?

2) Is the suit bad for resjudicata?

3) Is the suit bad for splitting up of Tenancy?

4) Is the deft a tenant under the pltf?

5) To what relief, if any, are the pltfs entitled?

The learned Munsiff by the judgment and decree passed on 8.5.76 decreed the Plaintiff�s suit holding that principal Defendants failed to establish his tenancy over the suit land. Against the judgment and decree passed by the learned Munsiff, the principal Defendant preferred Title Appeal No. 76/76 In the court of the learned Asstt District Judge No. 1 Cachar, Silchar.

The learned Asstt District Judge by the impugned judgment and decree dismissed the appeal and affirmed the judgment and decree passed by the learned Munsiff. Feeling aggrieved, principal Defendant has approached this Court in this Second Appeal.

I have heard Mr. S.K. Senapati, learned Counsel for the Defendant Appellant and Mr. B.K. Acharjee, the learned Counsel for the Plaintiff Respondents. I have perused the judgments and decree passed by the courts below as well as other materials on records.

Admittedly a tenancy khatian in respect of the suit land was issued by the competent authority in favour of the principal Defendant under the provisions of the Assam (Temporary Areas) Tenancy Act. Plaintiff�s suit is based on the contention that the Khatian was obtained by collusion. No doubt, inspite of Issue of the khatian by the revenue authority, a title suit questioning the tenancy is maintainable but decision of the Revenue Court as regards tenancy cannot be lightly interfered with or brushed aside. A khatian prima facie establishes tenancy right over the land of the person in whose favour khatian has been issued. So long khatian holds field, the person in whose favour the khatian is issued Is deemed to be tenant of the land. As such burden lies on the person who questions the tenancy under the khatian to establish that the khatian was issued illegally did not create any tenancy over the land in question, In the instant case, on perusal of the judgments of the courts below, I find that neither the learned Munsiff nor the learned Assistant District Judge has at all taken into-consideration the khatian issued in respect of the suit land in favour of the principal Defendant. Both the Courts below erred in law by placing the burden/onus on the Defendant although the khatian issued in his favour by the competent Revenue authority prima facie established their tenancy right over the suit land. Both the courts below held that the Defendants failed to establish the tenancy solely on the ground that the Defendant failed to produce any written agreement of tenancy or rent receipts without making any reference to the khatian admittedly issued in favour of the Defendants. The learned Courts below erred in law in placing the burden/onus on the Defendants to prove his tenancy instead of requiring the Plaintiffs� to discharge their burden of establishing that the khatian issued by the revenue authority was collusive, illegal and did not confer any tenancy light on the Defendants over the suit land.

For the aforesaid reasons impugned judgment and decree of the-Courts below cannot be sustained and are liable to be set aside. The appeal is allowed with costs and the impugned judgments and decree are set aside.