Assam Schedule VII, Form No 132

HIGH COURT FORM NO. (J) 2

HEADING OF JUDGMENT IN ORIGINAL SUIT/ CASE

District: Dibrugarh

In the Original Court of the Munsiff No 1, Dibrugarh

Present:Nisanta Goswami, AJS

Wednesday, the 6thday of March 2013

Title Suit/ Case No 24/11

Phool Chand Sahu&Ors ………………… Plaintiffs

Versus

Chandra Devi Gupta &Ors …………….. Defendants

This suit/ case coming on for final hearing on 4/02/2013 in the presence of

Mr. S.K.Chakraborty ………………… Advocate for the plaintiffs

And

Mr. A.K. Dutta, Sr. Advocate

Mr. C.Chutia ………………………… Advocate for the defendants

And having stood for consideration to this day the Court delivered the following judgment:

JUDGMENT

  1. This is a suit for declaration, cancellation of sale deed and possession

PLAINTIFF’S CASE:

  1. The case of the plaintiff, in brief, is that Devi Teli had two sons viz. LeduTeli and JakhuTeli. During his lifetime Devi Teli purchased a plot of land measuring 1 Katha 5 Lecha from one HanifKhaliha. After the death of Devi Teli that property devolved upon his two sons. In the year 1933 an Annual Khiraj Patta, being AP No 4, was issued along with Dag No 21 of ChangmaiGoriaGaon under MancottaMouza. After the death of LeduTeli and JakhuTeli the suit land devolved upon their sons viz. Hari Prasad Sahu and HariharSahu respectively.
  1. After the death of Hari Prasad Sahu his share of land devolved upon his heirs viz. BabuaSahu, SabitriSahu and PanchamiSahu and after the death of HariharSahu his share of land devolved upon the plaintiffs viz. Phool Chand Sahu, Rajesh Sahu, GulchandSahu, BabluSahu, Lal Chand Sahu, SumitaSahu and MosondiaSahu.
  1. The plaintiffs have contended that during their lifetime HariharSahu requested Hari Prasad Sahu for making partition of the suit land but the later denied the same. Hari Prasad Sahu also took away the Annual Khiraj Patta and the relevant Sale Deeds. Subsequently in the year 2001 BabuaSahu returned the annual khiraj patta No 4 and 1 to HariharSahu. According to the plaintiffs during the life time of HariharSahu he used to pay the land revenues and thereafter the plaintiff Phool Chand Sahu has been paying the land revenues.
  1. In the year 2007 BabuaSahu along with Chanda Devi Gupta, BijoySahu and AjitSahu threatened the plaintiffs to vacate the suit properties. The plaintiffs made an enquiry and on 17/09/2010 they found that Hari Prasad Sahu mutated his name in the revenue records excluding HariharSahu and they converted the Annual Khiraj Patta No 4 into Periodic Patta No 97 with Dag No 32 and 21. This was done in collusion with the revenue staffs and without notice to HariharSahu. The plaintiffs further came to know that after the death of Hari Prasad Sahu, BabuaSahu got his name mutated in the revenue records although he has no possession over the suit land. After obtaining mutation BabuaSahu sold the entire land described in the Schedule attached with the plaint by executing two sale deeds in favour of Chandra Devi Gupta and BijoySahu and AjitSahu. After execution of the deeds Chandra Devi Gupta, BijoySahu and AjitSahu mutated their names.
  1. According to the plaintiffs the mutation of the names of the defendants was illegal. The plaintiff Phool Chand Sahu was paying land revenue till the year 2002.
  1. The defendant Chandra Devi took possession of 4 Lecha of land and the defendants BijoySahu and AjitSahu took possession of 5 Lecha of land in the suit dag and patta on the strength of a demarcation case which proceeded ex parte.
  1. The plaintiffs have instituted this suit with prayers inter alia for a decree declaring that the suit properties described in the Schedule A and Schedule B are the joint properties of the plaintiffs and defendants No 4,5 and 6, declaration that the Mutation Case No 35 of 1984-85 is illegal and liable to be cancelled, declaration that the mutation in favour of BabuaSahuis illegal and unlawful, for declaration that the Sale Deed No 2294/02 executed by defendant No 3 in favour of defendant No 1 and Sale Deed No 1364/02 executed by defendant No 3 in favour of defendant No 2 are illegal and inoperative, for declaration that the mutations in favour of defendant no 1 and defendant No 2 are illegal, for recovery of possession of A Schedule land and B Schedule land by evicting defendants No 1 and 2 respectively and for declaration that the plaintiff has acquired right, title and interest over the suit land.

DEFENDANT’S CASE:

  1. The defendant No 1,2,4,5, 7 and 8 contested the suit by filing written statement. The defendants No 4 and 5 admitted the claims of the plaintiffs and they prayed to pass a decree in favour of the plaintiff. the defendant No 2 has stated in his WS that he along with his brother AjitSahu purchased a plot of land measuring 15 Lechas under Dag No 32 of PP No 97 of ChangmaiGoriaGaon under MancottaKhanikarMouza, District Dibrugarh from defendant No 3 vide Sale Deed No 1364/03. Before purchase of the land the defendants made enquiry in the office of the Circle Officer and Deputy Commissioner and it was found on enquiry that the defendant No 3 inherited the property from his father Hari Prasad Sahu and his name was mutated in the revenue records in the year 1998. It was also found that PP No 97 and Dag No 32 in respect of land measuring 1 Katha 5 Lechas was issued in the name of the father of defendant No 3 viz. Hari Prasad Sahu. After purchasing the land the defendants took possession of the land and their names were mutated vide Mutation Case No 119/03-04 dated 29/01/2004. According to the contesting defendant the land belonging to the plaintiff falls under Dag No 307 of PP No 65 of the suit land. The defendant No 2 has denied that the plaintiffs have right, title and interest over the suit land and the defendant has prayed to dismiss the suit with cost. The defendant No 1 has also added that she purchased a plot of land measuring 10 Lechas in Dag No 32 of PP No 97 from the defendant No 3 vide Sale Deed No 2294 of 2001. Regarding the title of defendant No 3 the defendant No 1 has narrated the same story which was narrated by defendant No 2. The defendant No 1 has also prayed to dismiss the suit with cost.
  1. The defendant No 7 and 8 have averred in their WS that a plot of land measuring 1 Katha 5 Lechas of ChangmaiGoriaGaon, MankotaKhanikarMouza, District Dibrugarh covered by Annual Patta No 4 Dag No 32 was recorded in the name of Hari Prasad Sahu on the basis of the available land records. Subsequently the land was converted into Periodic Patta No 97 vide Conversion Case No 35 of 1984-85. After the death of Hari Prasad Sahu the land was mutated in the name of his son BabuaSahu by right of inheritance. BabuaSahu sold 10 Lechas of land to Chandra Devi Gupta and another 15 Lechas of land to BijoySahu and AjitSahu and their names were accordingly mutated. The defendant No 7 and 8 have denied the other averments of the plaintiffs and prayed to dismiss the suit with cost.

ISSUES IN THE SUIT:

  1. On the basis of the rival pleadings of the parties the following issues were framed in this suit:

i)Is there any cause of action for the suit?

ii)Is this suit maintainable?

iii)Whether the suit properties described in the Schedule A and B are the joint properties of plaintiffs and defendant No 3,4 and 5?

iv)Whether the mutation case No 35 of 1984-85 and correction made on 20/05/85 is illegal, inoperative and liable to be cancelled?

v)Whether the Sale Deed No 2294 dated 26/12/2002 executed by defendant No 3 in favour of the defendant No 1 is illegal and inoperative?

vi)Whether the plaintiff is entitled for recovery of possession of the suit property described in Schedule A?

vii)Whether the mutation of defendant No 1 in Mutation Case No 236 of 2002-03 is liable to be cancelled?

viii)Whether the Sale Deed No 1364 of 2003 executed by defendant No 3 in favour of defendant No 2 AjitSahu is illegal?

ix)Whether the Mutation Case No 119/03-04 and correction made on 5/04/05 in favour of defendant No 2 is illegal and inoperative?

x)Whether the plaintiff is entitled to the reliefs claimed for?

xi)To what reliefs the plaintiffs are entitled for?

DISCUSSION, DECISION AND REASONS THEREOF:

  1. During the course of the trial the plaintiff side adduced evidence of one witness and exhibited nine documents. The defendant side adduced evidence of five witnesses and exhibited seven documents.
  2. I have heard the learned counsels for both the parties and perused the materials on record
  3. Now let me discuss and decide the issues one after another

Issue No (i):

CAUSE OF ACTION

  1. The plaintiffs have averred that the suit land is their ancestral land. The plaintiffs are in possession of the suit land and the plaintiff Phool Chand Sahu has been paying the land revenue. In the year 2007 the defendants BabuaSahu,Chanda Devi Gupta, BijoySahu and AjitSahu threatened the plaintiffs to vacate the suit properties. The plaintiffs made an enquiry and on 17/09/2010 they found that Hari Prasad Sahu mutated his name in the revenue records excluding HariharSahu and they converted the Annual Khiraj Patta No 4 into Periodic Patta No 97 with Dag No 32 and 21. The plaintiffs further came to know that after the death of Hari Prasad Sahu, BabuaSahu got his name mutated in the revenue records although he has no possession over the suit land. After obtaining mutation BabuaSahu sold the entire land described in the Schedule attached with the plaint by executing two sale deeds in favour of Chandra Devi Gupta and BijoySahu and AjitSahu. After execution of the deeds Chandra Devi Gupta, BijoySahu and AjitSahu mutated their names. The bundle of these facts suggests that there is a cause of action for this suit. This issue is decided in favour of the plaintiffs.

Issue No (ii):

MAINTAINABILITY

  1. This issue was framed on the basis of the averments made in the written statements of the defendants. However the defendants have not averred specifically as to why the suit is not maintainable. There is nothing on the records which suggests that the suit is not maintainable in law and facts. This issue is decided in favour of the plaintiffs.

Issue No (iii)& (iv):

WHETHER THE SUIT PROPERTIES ARE JOINT PROPERTIES

  1. These two issues are taken up together for discussion for the sack of convenience. The plaintiffs have averred that the suit properties described in the Schedule A and B are the joint properties of plaintiffs and defendant No 3,4 and 5 and the mutation case No 35 of 1984-85 and correction made on 20/05/85 is illegal, inoperative and liable to be cancelled.
  1. In support of their claim the plaintiffs have filed a copy of the annual khiraj patta No 4 issued in the name of LeduTeli and JakhuTeli. A land covered by Annual Patta is not heritable. Section 1(2)(c ) of the Settlement Rules under the Assam Land and Revenue Regulation 1886 provides that an Annual lease means a lease granted for one year only and it confers no right in the soil beyond a right of user for the year for which it was given. It confers no right of inheritance beyond the year of issue. It confers no right of transfer or of subletting and shall be liable to cancellation for any transfer or subletting even during the year of issue. However, the state government may allow renewal of the annual lease automatically in some cases. The plaintiffs cannot claim to have inherited the suit land merely because an Annual Patta was issued in the names of their ancestors. The plaintiff side has also exhibited some revenue paying receipts [Exhibit 2(i) to Exhibit 2(viii)] which shows that land revenues were paid up to the year 1976. Sometimes the revenue was paid in the name of Hari Prasad Sahu and sometimes it was paid in the name of HariharSahu (predecessor of the plaintiffs). These documents are not sufficient to establish title over land, specially, when there are some other documents on record to prove the contrary.
  1. Exhibit 9 shows that vide Mutation Case No 35 of 1984-85 the suit land was converted from Eksonato periodic and the Periodic Patta No 97 was issued. The patta was originally issued in the name of Hari Prasad Sahu. The plaintiffs have not adduced any evidence to prove that the mutation was done illegally and the same is liable to be cancelled. It is the prerogative of the State Government to issue periodic patta in the name of any person. In the absence of any evidence to the contrary this Court is competent, u/s 114 of the Evidence Act, to presume that official acts of the State Government have been regularly performed. A person cannot claim a periodic patta, as a matter of right, merely because an annual patta was issued in the name of his ancestor.
  1. The predecessor of the defendant No 3,4 and 5 got patta in respect of the suit land and thereafter they sold the land to defendant No 1 and 2. Situated thus, there is nothing to infer that the suit land is the joint property of the plaintiff and the defendants. These two issues are decided against the plaintiffs

Issues No (v) & (viii):

WHETHER SALE DEEDNO 2294/02 AND 1364/03 ARE INOPERATIVE

  1. These two issues are taken up for discussion together for the sack of convenience. The plaintiffs have claimed that the Sale Deed No 2294 of 2002 executed by defendant No 3 in favour of the defendant No 1 and the Sale Deed No 1364 of 2003 executed by defendant No 3 in favour of defendant No 2 Ajit Sahu are illegal and inoperative and are liable to be set aside. The claim of the plaintiffs proceed from the premise that the plaintiffs have acquired right, title and interest over the suit land by way of inheritance, they are the joint owners of the suit land along with the defendant No 3,4 and 5 and that the defendant No 3 has no right to sell the suit land without the concurrence of the plaintiffs.
  1. It has become clear from the discussion in the previous issue that the plaintiffs have failed to prove their joint ownership in respect of the suit land. PW 1 Phool Chand Sahu, who is also the plaintiff of this case, has stated in his affidavit that he paid land revenue up to the year 2002 but he was not aware as to whether the suit land was converted into periodic patta. This happened because of his illiteracy. This Court is not persuaded with this evidence of the plaintiff witness. The revenue receipts exhibited by the plaintiff side reveal that the land revenue was paid only up to the year 1975-76. Even if it is accepted that the plaintiff has paid land revenue up to the year 2002, there is no explanation as to why he stopped payment of the revenues thereafter. Mere payment of revenue doesn’t have in establishing title though it may be considered as a prima facie proof of possession. In some cases possession helps in proving title. However, in the present case the plaintiff side has not adduced any persuasive evidence to prove that they are in possession of the suit land.
  1. The learned counsel for the plaintiff has submitted, and rightly so, that if someone purchases land from an annual patta holder he cannot acquire a valid title even when the annual patta is subsequently converted into periodic patta. The ld. Counsel has referred to Mustt. Safatun Nessa & Ors v. Gitarani Kundu & Ors (1987) 2 GLR 64 and Tanuram Keot v. Padoram Kalita (1983) 1 GLR 497 in support of his submissions. I have perused both the decisions of the Honble High Court and found that factual backgrounds of those cases are not similar to the facts of our case. In both the cases referred by the ld. Counsel the purchase of land was made prior to the conversion of the land to periodic patta. In other words the suit lands were under annual patta at the relevant time and the periodic patta was issued after the sale was made. In our case the conversion of annual patta into periodic patta was made in the year 1984-85 and the sale were made subsequent thereto i.e. in the year 2002 and 2003. As such the ratio of the cases referred by the ld. Counsel for the plaintiff does not apply in the present case.
  1. Apart from this, the provision of Section 41 of the Transfer of Property Act also applies to the present case. Section 41 of the Transfer of Property Act provides that where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it; provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. DW 1 Chandra Devi Gupta, who is one of the purchasers of the suit land, has stated in her cross examination that she verified the Jamabandi before purchasing the suit land and that she is not aware of the original owner of the land. DW 4 Bijoy Sahu has deposed similarly. Now, a man of ordinary prudence is not supposed to verify beyond the revenue records specially when the Jamabandi contains a note that the land was converted from annual patta into periodic patta. This implies that the person named in the Jamabandi is the original pattaholder. Possession may sometimes be considered as a constructive notice and the possession obligates the intending purchaser to make an enquiry above the ownership of the property. However, in the present case the plaintiffs have not adduced sufficient persuasive evidence to prove that they were in actual possession of the suit property when the sale in question was made. There were no visible options available to the defendant No 1 and 2 to enquire and ascertain the true ownership of the suit land. The defendant No 3 was the ostensible owner of the land the defendant No 1 and 2 were the purchasers in good faith. Hence the interest of the defendant No 1 and 2 is protected u/s 41 of the Transfer of Property Act.
  1. It appears from the above discussions that there is nothing to infer that the Sale Deeds in question were illegal and inoperative. These two issues are decided against the plantiff.

Issue No (vii) & (ix)