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Taseruddin Sarkar & Others v. Salimuddin Seikh & Others

Taseruddin Sarkar & Others
v.
Salimuddin Seikh & Others

(High Court Of Gauhati)

Second Appeal No. 36 Of 1969 | 24-07-1972


1. This appeal is on behalf of the plaintiffs and is directed against the judgment and decree passed by the District Judge, Goalpara, at Dhubri in Title Appeal No.13 of 1967 (Dhubri)/16 of 1966 (Goalpara).

2. As many as 45 plaintiffs have jointly instituted this suit under Section 103 of the Goalpara Tenancy Act. The facts in brief are as follows:-

An area of 76B of land which is the suit land belonged to the Gauripur Raj Acquired Estate. Plaintiffs Nos.1 to 43 have been in possession of this land. The authorities in recognition of their possession realised Tauzi Bahir revenue from them. They applied to the Deputy Commissioner for settlement of the land. At the time of preparing the draft-khatian for the land, a dispute arose, namely Dispute Case No.1/49 between the parties relating to 52 bighas and odd out of the aforesaid 76 bighas comprised in old Dag No.86 (new Dag No.72) of village Ghageralga. In this dispute case, the A.R.O. after enquiry found the plaintiffs to be in possession whereupon the defendants filed a revision petition, which was rejected. Then the defendants filed another objection before the A.R.O. who registered it as Objection Case No.602/60. This was in respect of 57 bighas and odd land of the same dag. There was another objection case, namely, Case No.1003/60 in respect of 5B-4K-16L of village Baroibari. Both the cases were heard together and the plaintiffs and the defendants were shown as petitioners and objectors respectively. The land of the aforesaid two cases are the land of the present suit. The plaintiffs further allege that they are in possession of the land; even then the A.R.O., who heard the cases has held the defendants to be in possession of the suit land, and prepared Khaitan in the names of the defendants. They, therefore, have filed the instant suit praying for correction of the khatian and recording their names in respect of the suit land, and for confirmation of their possession.

3. Defendants Nos.1 to 10 and 13 have filed a joint written statement and contested the suit. They have pleaded, inter alia, that the suit is not maintainable in the present form and that the suit is bad for mis-joinder of parties and causes of action and also for non-joinder of necessary parties. They have also denied plaintiffs possession of the suit land. They have alleged that the land at Ghagerala is 57B-10K-2 Dhurs in respect of which one late Masatulla and others were the jotedars under the Gauripur Raj Estate and defendants Nos.2 to 12 took settlement of 46? bighas from the predecessor of Masatulla and his co-sharers and plaintiff No.44 Bahajuddin took settlement of the remaining 11 bighas 2 kathas and 11 lessas. Accordingly, they have alleged, two khatians one in the names of defendants Nos.1 to 12 and the other in the name of Bahajuddin, were issued by the revenue authority showing them as tenants under the aforesaid jotedars. In respect of the land of village Baroibari, they have admitted that it was the land of the aforesaid Acquired Estate, but they aver that it was in possession of defendants Nos.1, 2 and 13 and that annual patta was issued in their favour under the Assam Land Revenue Regulation. Their case is that in respect of the Baroibari land, there cannot be any proceeding under the Goalpara Tenancy Act. They claim to be in possession of the aforesaid 46 bighas of land of village Ghageralga. They have alleged that the plaintiffs committed rioting on 19-3-58 and tried to take forcible possession thereof, whereupon a criminal case, namely, G.R. Case No.145/58 was instituted and in that case, plaintiffs No.11, 14, 21 and 23 were convicted under Sections 147/327/149 Indian Penal Code and sentenced to R.I. for two years each and also to pay a fine of Rupees 500/- each. Their conviction and sentence were upheld on appeal. They allege that the plaintiffs in collusion with Shri R.C. Bhattacharyya, Surveyor of the Estate, filed some applications for settlement, obtained a false report from the said. Surveyor and on the basis of that, they paid some Tauzi Bahir revenue without ever having any occupation of the land. They further allege that defendants Nos.11 and 12 were in possession of a portion of the aforesaid 46 bighas; but later on they gave up possession. Defendants Nos.11 and 12 filed a separate written statement supporting the case of the plaintiffs.

4. Plaintiff No.44, Bahajuddin, later filed a petition withdrawing from the suit as plaintiff and supported the case of the contesting defendants.

5. The learned Sub-Judge framed only one issue in the suit, namely, whether the records of rights are liable to be corrected and if so in whose favour; and after trial, he dismissed the plaintiffs suit. On appeal, the decree was upheld by the learned District Judge, and hence this second appeal.

6. Only two points have been urged before me by learned Counsel for the appellants. (1) that the District Judge was wrong in holding that after acquisition of the estate, the records of rights were governed by the Assam Land Revenue Regulation and not by the Goalpara Tenancy Act. (2) that the learned District Judge committed an illegality in dismissing the plaintiffs suit on the ground of non-joinder of parties.

7. It will be convenient to dispose of the second point first. Ext.J is the Khatian in question in respect of the Suit Dag No.72. This document discloses that in respect of the same dag, two kharians have been issued, namely, khatian No.58, to the jotedars, Taheruddin and 8 others who are the heirs of Masatulla; and Khatian No.59, in the names of defendants No.1 to 12 as tenants under the said jotedars. In this suit, the aforesaid 9 jotedars who held khatian No.58 in respect of Dag No.72 have not been made parties. The plaintiffs in this suit do not claim to be tenants under the Jotedars. Their specific case is that they were tenants under the Gauripur Raj Acquired Estate. Therefore their real grievance and cause of action is against the jotedars and in respect of Khatian No.58. The jotedars, Taheruddin and the 8 others, are therefore necessary parties and the suit cannot proceed without them as defendants.

8. Learned Counsel for the appellants refers to Order 1, Rule 9, Civil Procedure Code which provides-

"No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it."

It is well settled that a suit is maintainable in the absence of proper parties in whose presence the suit should be decided in order to avoid further litigations; omission to join them is not fatal to the suit. But a suit will be defeated if necessary parties are not joined as no effective decree can be passed in the absence of such parties. In the instant case, as I have already observed, the real cause of action is against the omitted parties, namely the jotedars, rather than the contesting defendants who are the sub-tenants of the jotedars. Under Order 1, Rule 9, Civil Procedure Code the Court cannot deal with the matter in controversy as the rights and interests of the holders of Khatian No.58 are not before the Court and omission to join them as defendants is fatal to the plaintiffs suit. Both the Courts below have concurrently held, and in my opinion rightly, that the suit was bad for non-joinder of parties.

9. With regard to the first point, it may not be necessary to decide whether the case is governed by the provisions of the Assam Land Revenue Regulation. The plaintiffs have brought the suit under Section 103 of the Goalpara Tenancy Act and therefore we are to examine whether they can get any relief under the provisions of the Goalpara Tenancy Act.

10. This suit involves two dags, namely, Dag No.3 of village Baroibarigaon. This land is covered by annual patta No.2 in the names of Ganga Prasad, Salimuddin and Abdul Kasem to whom the revenue authority granted annual patta. The relevant portion of Section 103 of the Goalpara Tenancy Act is as follows:

"103. (1) In proceedings under this chapter, a suit may be instituted before a Revenue Officer at any time within four months from the date of certificate of the final publication of the record-of-rights under sub-section (2) of Section 99, for the decision of any dispute regarding any entry, which a Revenue Officer has made in, or any omission which he has made from, the record, whether such dispute be-

(a) between landlord and tenant, or

(b) between landlords of the same or of neighbouring estates, or

(c) between tenant and tenant, or

(d) as to whether the relationship of landlord and tenant exists, or

(e) as to whether land held rent-free is properly so held; or

(f) as to any other matter, and the Revenue Officer shall hear and decide the suit:

Provided that the Revenue Officer may, subject to such rules as may be prescribed, transfer any particular case or class of cases to a competent Civil Court for trial:

* * * *"

In the instant suit, the dispute is with regard to the issue of khatian No.58, issued under Section 99 sub-section (2) of the Goalpara Tenancy Act. A record of rights is to contain the particulars mentioned in Section 98 of the G.T. Act. The relevant portion of Section 98 may be quoted:-

"98.(1) When an order is made under Section 97, the particulars to be recorded shall be specified in the order, and may include, either without or in addition to other particulars, some or all of the following, namely:-

(a) the name of each person in occupation of the land whether as proprietor, permanent tenure-holder, jotedar, raiyat or under-raiyat and of any other person who has, under this Act or otherwise, an interest in the land;

(b) the class or classes to which each tenant belongs, that is to say, whether he is-

(i) a permanent tenure-holder, and, if so, whether his rent is liable to enhancement or not,

(ii) a jotedar and, if so, whether ho has acquired a right of occupancy in his holding,

(iii) a raiyat and, if so, whether he holds at fixed rates or not, whether he is a settled raiyat or not, and whether he is an occupancy raiyat or a non-occupancy raiyat,

(iv) an under-raiyat, and, if so, whether he is of the kind described in Sec.43, or

(v) a tenant within the meaning of sub-section (1) of Section 17;

(c) if the person in occupation is not a tenant within the meaning of this Act, or if the person has an interest in the land which is not comprised within any of the classes mentioned in clause (b)-

the character of such occupation or of such interest;

(d) * * * *"

In this connection, relevant provisions of the Assam State Acquisition of Zamindaries Act, 1951 (Assam Act XV11I of 1951) may be referred to.

Section 3 provides for notification declaring the vesting of a tenure. It provides that the State Government may from time to time declare that the estate or tenure of proprietor or tenure-holder specified in the notification shall stand transferred to and vest in the State free from all encumbrances. Provided that where the names of the proprietors or the tenure-holders cannot be obtained without an unreasonable amount of delay or expense it shall be sufficient compliance if the notification contains only such particulars as are available in the touzi ledger.

(2) .... .... .... .... .... ....

Section 4 declares the consequences of the notification issued under Section 3. It, inter alia, provides that notwithstanding anything contained in any law for the time being in force or in any agreement or contract, express or implied, on the publication of the notification referred to in sub-section (1) of Section 3, all rights and interests of the proprietor including his interests in .... .... .... .... .... .... .... shall save as otherwise expressly provided in this Act, cease and such estate or tenure including such rights shall vest absolutely in the State free from all encumbrances in accordance with the provisions of this Act with effect from the first day of the agricultural year next following the date of the publication of such notification.

Sub-section (6) of Section 4 provides:

"(6) Until further legislation by the State Legislature in this behalf, every raiyat or non-agricultural tenant holding land in any estate or tenure, which has vested in the State, shall hold the same directly under the State on the same terms and conditions as immediately before the date of vesting and all rents, cesses, royalties and other dues accruing in respect of lands comprised in such estate or tenure after the date of vesting shall be payable to the State Government and all such dues shall be recoverable as arrears of land revenue;

Provided that the State Government shall be entitled to apply the Assam Land and Revenue Regulation, 1886 (Regulation I of 1886) in any area if the tenants residing in it apply in writing to exchange their rights under the Goalpara Tenancy Act, 1929 (Assam Act I of 1929) . . . . . . . . . . . . for corresponding rights under the Assam Land and Revenue Regulation, 1886:

* * * *"

11. Alter the acquisition of Gauripur Raj Estate, under Section 4 of the Assam Act XVIII of 1951, of the rights and interest of the proprietor or tenure holders have absolutely vested in the State Government and under sub-section (b) of the said section unless the State Legislature has passed necessary legislation in this behalf, the State Government shall apply the provisions of the Assam Land and Revenue Regulation, if the tenants in question apply in writing that their rights under the G.T. Act be governed by the corresponding provisions of the Assam Land Revenue Regulation. While it is not necessary in this case to examine whether the State Government has done so in this particular case, it will be legitimate to presume that the annual patta issued in respect of Dag No.3 of Baroibarigaon was issued under the provisions of sub-section (b) of Section 4 of the Assam Act XVIII of 1951.Section 103 of the G.T. Act does not provide for the cancellation of an annual patta issued in respect of the land of Baroibari, Learned Counsel of the appellants has not invited my attention to any other provisions of the G.T. Act under which annual patta can be cancelled. The learned Courts below have concurrently held that the annual patta could not he cancelled under the provisions of the G.T. Act and therefore in my opinion they were right in dismissing forthwith the plaintiffs suit holding that it was not maintainable so far as the land of Baroibarigaon was concerned.

12. We are now concerned only with Dag No.72 of village Ghageralga. Both the Courts below have concurrently found that the defendants are in possession of this land and the plaintiffs are not in possession thereof. P.W.1 is an employee of the acquired estate. He has proved Ext.1 - a Register of petitions for the settlement of land. Exts.1(1) and 1(2) are the entries of applications Nos.2385 to 2428 praying for settlement of khas lands at Ghageralga. The names of the plaintiffs appear in those entries and they appear to have filed applications on 7-2-58 praying to get settlement of "khas lands". The learned Assistant District Judge has held that there are 38 applications filed by the plaintiffs on 7-2-58. P.W.1 could not say if Shri R.C. Bhattacherjya, the Surveyor made any enquiry or survey on these petitions. Ext.6 is a report by Shri R.C. Bhattacherjya. This document is dated 9-8-58. His report is in connection with an enquiry and survey on the petition dated 6-8-58 of Abdul Hamid Bepari and other plaintiffs. In this report, it was mentioned that the petitioners were possessing about 76 bighas of land and the report suggested that Tauzi Bahir rents, might be realised from the occupants and on the basis of Ext.6, the Manager passed an order vide Ext.5 dated 11-8-58 for realising the Tauzi Bahir rents and on that very day, the plaintiffs paid Tauzi Bahir rents vide Exts.2(1) to 2(40) and P.W.1 granted those receipts. The learned Assistant District Judge has held that the Exts.2(1) to 2(40) and Ext.6, do not prove the possession of the plaintiffs as Shri R.C. Bhattacherjya, the Surveyor, who submitted the report Ext.6, was not examined in the case. The learned Assistant District Judge has also observed that Ext.6 was a suspicious document, hurriedly prepared, and the hurried payment of the Tauzi Bahir rents was also suspicious. Ext.7 is a report from the Manager of the Gauripur Acquired Estate. The learned Assistant District Judge has found that Exts.6 and 7 disclose that the land in question had been settled with Masatulla in 1350 B.S. Other documents proved in the case, are Ext.4, a bid list by which Masatulla got 57 bighas 12 dhurs on bid made by Gauripur Estate in 1350 B.S., Ext.C, the petition of Masatulla with 5 other persons, Ext.D, the order of the proprietor, (i.e. the Zamindar) made in 1351 B.S. in respect of the settlement of 57 bighas of land to Masatulla; Ext.E, the order dated 8-9-50 B.S. by which Masatulla paid Rs.312/12/-; Ext.B, a Rent Roll and Ext.B(1) the entry in Ext.B showing that 57 bighas of land had been settled in the name of Masatulla and five others. The learned Assistant District Judge came to the conclusion that these documents prove that Masatulla and 5 others got settlement of 57 bighas of land and after their death, their heirs have been shown as settlement-holders (jotedars) and the revenue authority has issued khatian No.58 to them in respect of Dag No.72 of village Ghageralga. During the last re-settlement operation of 1961, the revenue authority has issued khatian No. 58 to the aforesaid jotedars and confirmed the settlement made in 1350 B.S. in the names of Masatulla and others. The issue of raiyats khatian No.59 to the contesting defendants have not been questioned by the holders of khatian No.58. The learned Assistant District Judge has also found that Bahajuddin got khatian No.60 in respect of the land in his occupation in Dag No.72. Ultimately both the courts below came to the concurrent finding that the plaintiffs have completely failed to prove any right, title or interest in respect of Dag No.72 of village Ghageralga. On the contrary, the contesting defendants have established that they are the raiyats and khatian No.59 was duly issued to them under the jotedars to whom khatian No.58 was issued and that the contesting defendants are in possession of the land.

13. In order to get relief under Section 103 of the G.T. Act the plaintiffs must negatively establish that the issue of the impugned khatian is in violation of Section 98 or any provision of the G.T. Act and that the holders of the impugned khatian are not entitled to get it, and positively establish that they themselves are entitled to the khatian. Their application under Section 103 of the G.T. Act which is treated as the plaint in the suit is to contain averments with regard to which of the particulars mentioned in Section 98 of the G.T. Act have been wrongly entered in the impugned khatian.Both the courts below have concurrently found that the plaintiffs have not pleaded in the plaint, far less established by evidence, the nature of their alleged tenancy rights and have completely failed to make out any case, under Section 103, G.T. Act; they have neither any interest in the suit land of Dag No.72, nor any possession thereof. In my opinion, the plaintiffs suit was rightly dismissed.

14. In the result, this appeal has no merit and is dismissed with costs.

Appeal dismissed.

Advocates List

For the Appellants D.K. Sarma, J.N. Sarma, Advocates. For the Respondents J.C. Choudhury, J.M. Choudhury, Advocates.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MR. JUSTICE BAHARUL ISLAM

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