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Judgment
1.Heard Mr.G.N.Sahewalla learned Senior Counsel assisted by Ms.B.Sarma, learned counsel appearing for the appellants and Mr.S.P.Choudhury
learned counsel appearing for the respondents.
The present appellants as the plaintiffs preferred Title Suit No. 22/2002 in the Court of learned Civil Judge (Jr.Division), Silchar against the present
defendants respondents for declaration of right, title and interest, declaration that the defendants respondents are licensee under them and for recovery
of khas possession over the suit land measuring 1 bigha 1 katha 9 chataks.
It is the case of the plaintiffs appellants that Martin Anthony and Adam Anthony were the owners with respect to the land measuring 28 bighas 7
kathas 12 chataks under second R.S.Patta No. 72 under various Dag numbers. Dag No. 164 consisted of land measuring 1 bigha 1 katha 9 chataks of
land and the predecessor-in-interest of the defendants respondents one Kotoi Sheikh, was the licensee under the said owners who possesed the land
by constructing thatched house. The brother of Kotoi Sheikh also resided with him and illegally manufactured a draft khatian for the said land which
was subsequently cancelled. Botoi Sheikh the brother of said Kotoi Sheikh left the suit premises in the year of 1974 after cancellation of the khatian.
On the death of Kotoi Sheikh, his heirs, the present defendants respondents maintained the possession over the suit land covered by dag No. 164 as
licensee. Vide registered sale deed No. 1359 dated 10.11.1989(Ext.2), Adam Anthony sold land measuring 7 kathas 2 chataks to the plaintiffs
appellants leaving plaintiff appellant No. 1 out of the total land covered by dag No. 164. After sale the defendants respondent took permission from the
plaintiffs appellants for allowing them to possess the land with assurance that they would vacate the same as and when demanded by the plaintiffs
appellants. Later on plaintiff appellant No.1 who is the father of the plaintiffs appellants No. 2 to 4 purchased the rest of the land of dag No. 164 vide
registered sale deed No. 770 dated 17.5.1993(Ext. 3). The defendants respondents took the necessary permission from the plaintiff respondent No. 1
to continue the possession as a licensee with the condition that they would vacate the land whenever the same is demanded by the plaintiffs
appellants. The defendants respondents failed to comply with the demand of the plaintiffs appellants to vacate the said suit land and thereafter the
present suit was filed with the relief mentioned hereinabove.
The defendants respondents filed their joint written statement They disputed themselves to be the licensee under the plaintiffs appellants. It was
pleaded that the grandfather of the defendants respondents, Bhudai Sheikh took settlement of the entire suit land, both homestead and agriculture land
from the presecessor â€"in-interest of Adam and Martin Anthony about 8/9 years back and constructed permanent structure in a portion thereof and
living with his family members doing agricultural pursuits. The said grandfather also paid the rent for the said land to the owners regularly. But the
owners did not issue any receipts. The defendants respondents, their predecessors-in-interest were agriculturist and acquired the status of occupancy
tenants and they are entitled to their rights and protection under the Tenancy Act and hence they are not evictable under the law . They are the
holders of the draft khatian . Accordingly they sought for dismissal of the suit .
Upon pleadings the learned trial court framed the following issues:
Is there any cause of action for this suit?
Is the suit maintainable?
Is the suit barred by the law of limitation?
Whether the suit has been properly valued and stamped ?
Whether the suit is bad for defect of parties?
Whether the plaintiffs have right title and interest over the suit land ?
Whether the defendants are licensees under the plaintiffs, in respect of the suit land?
Whether the plaintiffs are entitled to any decree or any other relief(s) as prayed for?
The plaintiffs appellants examined two witnesses including the plaintiff appellant No.2 and exhibited the order dated 1.3.1969 passed in Tenants and
Adhiar Case No. 141 of 1968- 69 as Ext.1 wherein Smt Aradhana Anthony as the objector objected the entry of the name of Sri Kotoi Mia and others
as adhiar alongwith the Exts 2 & 3, the Registered Sale Deeds mentioned herein above. On the other hand, the defendants respondents adduced
evidence of three witnesses including the defendant respondent No. 1 as DW 1 and exhibited Ext.A to Ext. G. The learned trial Court decreed the suit
in favour of the plaintiffs appellants. The learned trial Court held the issue No. 6 in favour of the plaintiffs appellants thereby declaring their right, title
and interest over the suit land. The issue No. 7 with respect to the status of the defendants respondents as licensee, the learned trial court held the
same in the affirmative in favour of the plaintiffs respondents. While discussing the issue No. 7, the learned trial court took into consideration the
Ext.1, the order passed in Tenancy and Adhiar Case No. 141 of 1968-69 whereby the names of Kotoi Mia and others were cancelled due to the
objection raised by the previous owner Aradhana Anthony. Though it was argued that the defendants respondents possess the suit land as agricultural
tenant but the learned trial court came to the finding that the land is classified as ‘Bhit land’(residential) as apparent from the copy of Jamabandi
and as such question of tenancy is unacceptable. The rest of the exhibits were disbelieved by the trial court as they were not relevant and came to the
findings that the claim regarding tenancy by the defendants respondents could not be proved and on the basis of the admission of DW 1 that original
owner allowed his father to occupy the suit land, the trial court held that the defendants respondents are licensee.
Being aggrieved the defendants respondents preferred Title Appeal No. 4 of 2005 in the court of learned Civil Judge No.1, Cachar at Silchar and
vide judgment and decree dated 1.8.2007 reversed the findings of the trial Court thereby holding that the plaintiff respondent No. 1 is only entitled to
the decree for declaration of his right title and interest over the land, in Dag No. 164 to the extent of area of land as described in Ext. 3 dated
17.5.1993 i.e. registered sale deed. The learned First Appellate Court reversed the finding of issue Nos. 6 & 7 partially and wholly respectively and
accordingly held that the defendants respondents are not the licensee under the plaintiffs appellants rather they are the occupancy tenants as defined
u/s 4 of Assam (Temporarily Settled Areas)Tenancy Act 1971 and they are non evictable . The First Appellate Court also held that the Draft khatian
Ext.Ka and Kha could be presumed to be the khatian issued by the authority validly. It is pertinent to mention herein that the defendants respondents
during the pendency of the First Appeal filed an application for adducing additional evidence and on being allowed the defendants respondents
exhibited two draft khatians Ext.Ka & Kha purportedly issued in favour of the defendants respondents alongwith other two brothers wherein the
classification of the land has been shown as ‘Bhit’ meaning thereby residential land. But the First Appellate Court entering into the definition of
land u/s 3 (6) of the Assam (Temporarily Settled Areas)Tenancy Act 1971(in short the Act 1971) came to the conclusion that the said classified land
in Ext Ka and Kha falls within the said definition.
The plaintiffs appellants preferred this second appeal which was admitted on 26.11.2007 framing the following substantial questions of law:
1.Whether a certified copy of the sale deed exhibited without objection and proved can be accepted in evidence in absence of original which is
exhibited in another suit ?
2.Whether appellate court below erred in law in rejecting the certified copy of sale deed duly exhibited and proved when the respondents admitted
ownership of the appellant ?
3.Whether Khatian can be issued in respect of ‘bhit land’(homestead land) under the Assam (Temporary Settle Areas)Tenancy Act, 1971 and
whether on the basis of Khatian which is Katcha any right can be acquired ?
4.Whether any khatian issued without notice to the owner is valid more so when earlier khatian issued was cancelled on objection by the owner?
5.Whether a small portion of agricultural land of another dag is relevant for the purpose of granting khatian in respect of a much bigger plot of
homestead land as per provisions of Assam (Temporary Settle Areas)Tenancy Act, 1971 ?
6.Whether the finding of the appellate court below holding the respondents to be nonevictable tenants is perverse to the facts of the case inasmuch as
the appellants never stated or proved that they are paying any rent to the owners?
Mr.Sahewalla, the learned Senior Counsel submits that the learned First Appellate Court was clearly wrong in discarding the registered sale deed of
the year 1989 Ext.2, only on the ground that the same was a certified copy. The scribe of both the sale deeds Zamaluddin, P.W.2 had deposed that he
wrote the sale deeds as per the direction of the vendor and under such circumstances the First Appellate Court disallowed the mode of proof of Ext.
2, once the trial Court accepted the same without any objection. Accordingly the First Appellate Court was wrong discarding the same. Suit land is
admittedly classified as ‘Bhit’ land which means residential land and there is no question of doing any agricultural pursuits thereon and the
Khatian i.e. Ext.Ka & Kha could not have been issued inasmuch as the suit land was not used for any agricultural purpose. On the strength of said
Exts Ka & Kha the defendants respondents cannot acquire any right under the Act, 1971. Moreover the names of the plaintiffs appellants are
recorded in the Jamabandi Ext.4 and Ext Ka & Kha were issued without any notice/notices to the recorded pattadar. The said Ext Ka and Kha are
admittedly the draft khatians on the basis of which no presumption could be drawn until and unless the same are published finally. Thus the First
Appellate Court failed to consider the law holding the field and as a result the substantial questions of law are to be decided in favour of the plaintiffs
appellants.
Mr. S. P. Choudhury, learned counsel appearing for the respondents opposing the submission of the learned counsel for the appellants submits that
the Ext. 2 is a certified copy and under such circumstances the trial court ought not to have allowed the same to be marked as Exhibit. Moreover the
contents of the said Exts.2 & 3 were not proved as required under the law. Reverting to Section 3(6) of the Act, 1971 he submits that residential land
falls within the said definition if it relates to any agricultural pursuits and same has rightly been issued in the names of defendants respondents. The
validity of the khatian cannot be entered into by this Court inasmuch as Section 66 of the Act, 1971 bars the jurisdiction of the civil court to enter into
any matter covered under Chapter X of the said Act, 1971. Finally it is submitted that the substantial questions of law cannot be decided in favour of
the plaintiffs appellants and the second appeal is liable to the dismissed.
 9. Considered the submissions of the learned counsels. Perused the records and evidence including the exhibits. The learned First Appellate Court
while discussing the issue Nos. 6 & 7 examined the Ext. 2 and Ext. 3. Holding the ext. 2 to be a certified copy of the sale deed and without complying
the provisions of Section 65 of the Indian Evidence Act, the same could not be treated to be duly proved though the PW 1 stated that the original of
Ext. 2 was submitted in another eviction suit and as the plaintiffs appellants did not make any effort to call for the original of Ext. 2 and failed to name
the appellate court and appeal number in which the original deed was lying, further held that ext. 2 was filed without any proper explanation as to why
the original deed could not be produced. In my opinion this finding is a wrong finding. There are catena of decisions of both this High Court and the
Apex Court that once a document is marked and exhibited by the court, the same cannot be agitated subsequently in any other Higher courts so far
the mode of proof of said document is concerned. However the admissibility of said documents can be agitated in the higher court. It is apparent from
the discussion of the First Appellate Court that it held that there was noncompliance of Section 65 of Indian Evidence Act which goes to show that the
learned First Appellate Court has entered with respect to the mode of proof of said Ext. No.2 which cannot be accepted. Accordingly first substantial
question of law alongwith No.2 are decided in favour of the plaintiffs appellants.
The case of the plaintiffs appellants is that admittedly the defendants respondents are possessing the suit land prior to their purchase vide Exts. 2
& 3. Similar is the stand taken by the defendants respondents in their written statement. It is specifically pleaded by the defendants respondents that
their forefather, Bhodai Sheikh took settlement of the total land of the dag No. 164 alongwith other land both homestead and agriculture from the
predecessor- in-interest of the vendors of the plaintiffs appellants. They were residing with their family members doing agricultural pursuits. The said
Bhodai Sheikh paid rent for the land to the owners regularly. But the owners were not in the habit of issuing receipts. They are agriculturist and as
such they were recorded with the status of occupancy tenants and they are not evictable. On perusal of Ext. 1 i.e. the order dated 1.3.1969 passed in
Tenancy and Adhiar Case No. 141 of 1968-69 it is clear and apparent that the suit land is a ‘basti’ land and the predecessor-in-interest of the
defendants respondents Kotoi Sheikh and others took the said ‘Basti’ land on wage system. Against the said submission before the concerned
Asstt. Settlement Officer(ASO) the said Kotoi Sheikh as apparent from the said Ext. 1 relinquished the land and the witnesses of Kotoi Sheikh could
not set the terms of cultivation by Kotoi Sheikh and others nor there was any documentary evidence showing that the said Kotoi Sheikh and others
cultivated on ‘Bhagi’ system and no receipts could be shown. From the said order Ext.1 it is sufficient to draw the inference that Kotoi Mia, the
predecessor-ininterest of the defendants respondents was not an agricultural tenant within the purview of the 1971 Act nor a privilege tenants under
the earlier Tenancy Act of 1935. The DW 1, Md.Mubai Sheikh son of late Kotoi Sheikh in his cross examination deposed that they failed to show any
documents that Kotoi Mia was the tenant under Martin and Adam Anthony. He could not say that the contention of his father as tenant was rejected
vide order passed through Ext. 1. He could not say on what terms and conditions of occupation his father was allowed to stay under Adam and Martin
Anthony nor could he say his father ever paid rent to the said Anthony. They also never paid any rent. He admitted that there was a khatian which
was cancelled subsequently. On the basis of said materials on record, the learned  First Appellate Court came to the finding that the defendants
respondents were rightly issued Ext.Ka & Kha over the ‘Bhit land’ as per the definition of land u/s 3(6) of the said Act, 1971. This is a wrong
finding. Section 3(6) of Act 1971 stipulates that if any tenant being an agriculturist in pursuance of the said pursuits of the agriculture resides thereon
by constructing residence under such circumstances that falls within the agriculture land. But in the present case in hand the land is a residential one
which is evident from Ext. 1 and from the contents of the said Ext. 1 it is very much apparent that Kotoi Mia used to work under the vendors of the
plaintiffs appellants on wage basis . The defendants respondents failed to show any agriculture pursuit within the parameters of the Act, 1971 and
under such circumstances considering the matter as a whole the khatian cannot be issued in respect of ‘Bhit land’ if it is not connected with
agriculture pursuits. Accordingly the substantial question of law No. 3 is decided in favour of the plaintiffs appellants. Regarding substantial question of
law No. 4 the Rules under the Act, 1971 prescribes no such notices to be issued to the land owners before issuing any khatian to the tenants.
Accordingly this second appeal has its merit and same is allowed thereby setting aside the judgment and decree passed by the First Appellate Court
upholding the findings of the trial court.
Send back the LCR. No cost.
Prepare a decree.