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Assam Schedule VII, Form No. 133

Form No.(J) 3

District- Dibrugarh

IN THE COURT OF THE CIVIL JUDGE, DIBRUGARH, ASSAM

Present : Md. M.H. Barbhuiya, A.J.S., Ph. D.

Civil Judge, Dibrugarh

Wednesday, the 28th day of June, 2017

Title Appeal No. 54/12

1. Sri Nazim Ahmed Hazarika

Son of Late Rahimuddin Ahmed Hazarika

Resident of DibruwalDehingiaGaon

P.S. Barbaruah

District- Dibrugarh, Assam.

2. Sri Bubul Ahmed Hazarika

Son of Late Rahimuddin Ahmed Hazarika

Resident of DibruwalDehingiaGaon,

P.S. Barbaruah

District- Dibrugarh, Assam ……Plaintiffs/ appellants.

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-vs.-

Sri Islamuddin Ahmed Hazarika

Son of Aminuddin Ahmed Hazarika,

Resident of DibruwalDehingiaGaon

P.S.Barbaruah

District- Dibrugarh, Assam …… Defendant/ Respondent.

This appeal is coming on for final hearing on 15.03.17 and

24.04.17 in the presence of Mr. S. Dutta and Mr. V. Deka, learned

Advocates for the appellants and Mr. S.B. Sharma and Mr. M.S. Sharma,

learned Advocates for the respondent, and having stood for consideration

on this 28th day of June, 2017 the Court delivered the following

judgment.

JUDGMENT

The judgment and decree dated 30.06.2012 passed by the learned

Munsiff No. 1, Dibrugarh dismissing the suit is challenged in the instant

appeal.

The appellants/plaintiffs filed Title Suit No. 21/03 praying for a

declaration of their rights, title, interest and confirmation of possession

over the suit land as well as permanent injunction restraining the

defendant from selling out the suit land ―C‖ along with ancillary reliefs.

By the judgment and decree dated 19.11.05 the suit of the plaintiffs was

dismissed. Against that judgment, the plaintiffs filed Title Appeal No.

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51/05 before this court. After hearing the parties, the then ld. Presiding

Officer was pleased to remand the matter to the learned trial court with a

direction to frame an issue namely Whether the plaintiff has been

occupying the suit land by adverse possession and to decide the

suit afresh.

The learned trial court on receipt of the order of this court framed the

directed issue. The parties were afforded opportunities to adduce further

evidence. After affording all the opportunities such as adducing evidence

and hearing of argument, the learned Munsiff No.1, Dibrugarh again

dismissed the suit and the said judgment is impugned herein.

Mr. S. Dutta, learned counsel appearing for the appellants

referring to the Memorandum of Appeal submits that the learned trial

court decided all the issues except Issue No. 7 in favour of the plaintiffs,

and in this manner suddenly concluded that the plaintiffs are not entitled

to any relief. He submitted that the defendant who is the paternal uncle

of the plaintiffs/appellants got his name mutated in respect of the entire

land measuring 8B-3K-16Ls. and off late, he has started taking action for

dispossessing them from the land measuring 80ft x 43.5 ft mentioned in

schedule-B. He further submitted that the plaintiffs have been occupying

the suit land since 03.04.1960 and by this time their rights have become

perfect against the true owner, but the learned trial court failed to

consider that aspect of the matter. Pointing out the above, he submitted

that the judgment and decree passed by the learned trial court is liable to

be set aside and the decree as prayed may be allowed.

Mr. S.B. Sharma, the learned counsel appearing for the

respondent submits that the plaintiffs have taken two contradictory pleas

which is not permissible in law and on that ground itself, the appeal is

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liable to be dismissed. He further submitted that the plaintiffs did not

produce any material on the basis of which they are claiming as co-

owners or co-sharers of the suit land. He submitted that if the appellants

had any right over the suit land, they ought to have approach the Land

and Revenue Authority as per the Assam Land & Revenue Regulations,

1886, but there is nothing in the record to show that the appellants ever

knocked the door of any such authority.

He submitted that the appellants who were residing in some other

places were allowed to occupy the suit land as permissive occupants and

as a permissive occupants they cannot claim any right independent of the

true owner. He further submitted that the learned trial court wrongly

decided the Issue No. 3 and as such the judgment in Issue No. 3 may be

corrected by this court.

On the pleadings of the parties, the ld. trial Court framed the

following issues :

1) Whether the plaintiff has right to file the suit ?

2) Whether the defendant is the paternal uncle of the plaintiffs ?

3) Whether the land measuring 8B-3K-16Ls.is the ancestral property

of both the plaintiffs and the defendant ?

4) Whether the defendant got his name mutated in the records of

right by unfair means ?

5) Whether the plaintiffs parents took possession of 2 Kathas land

out of total 8B-3K-16Ls.in 1960 and constructed dwelling houses

thereon ?

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6) Whether the rented shop situated on the suit land belonged to the

plaintiffs ?

7) Whether the plaintiffs are entitled to any relief as prayed for ?

8) Whether the plaintiffs have been occupying the suit land by

adverse possession ?

All the issues such as Issues pertaining to the right to sue;

relationship of the plaintiffs with the defendant; ancestral property of the

suit land A; use of unfair means by the defendant in mutating his name;

possession of the suit land B by the predecessor of the plaintiffs in 1960;

construction of tenanted premises by the plaintiffs have been decided in

the positive. The plea of adverse possession was decided in the negative

and ultimately the suit was dismissed.

POINT FOR DETERMINATION IN THE APPEAL

1) Whether the learned trial court rightly passed the judgment dated

30.06.12 in Title Suit No. 85/03 or the same requires interference

by this court ?

2) Whether the learned trial court failed to appreciate the evidence

pertaining to the plea of adverse possession?

DISCUSSION, DECISION AND REASONS THEREFOR

I have heard Mr. S. Dutta, learned counsel appearing for the

appellants and Mr. S.B. Sharma, learned counsel appearing for the

respondent. Upon hearing the learned counsel for the parties and on

perusal of the records, I am of the humble view to hold as follows :

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During the course of argument the learned counsel for the

appellants submitted that the respondent cannot raise any objection on

the findings of the trial Court inasmuch as, they did not file any cross-

objection. Countering the above, the learned counsel for the respondent

submitted that the respondent have every right to raise objection in spite

of the fact that no cross objection was filed.

Order XLI Rule-22 of the Code of Civil Procedure (C.P.C.) Provides- Upon hearing respondent may object to decree as if he had preferred a separate appeal

(1) Any respondent, though he may not have appealed from any part of

the decree, may not only support the decree 21

[but may also state that

the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

25[Explanation.- A respondent aggrieved by a finding of the Court in

the judgement on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit the decree, is, wholly or in part, in favour of that respondent.]

(2) Form of objection and provisions applicable thereto- Such cross-objection shall be in the form of a memorandum, and !he provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

(3) Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.

(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

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(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.

Order XLI Rule-33 of C.P.C. provide- Power of Court of Appeal

The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or

objection 25

[and may, where there have been decrees in cross-suits or

where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:

28[Provided that the Appellate Court shall not make any order under

section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.]

A joint reading of both the provisions of law makes it clear that in

order to remove any difficulty and in order to dispose off the disputes in

between the parties finally, the appellate court can pass any decree

including on the points on which no cross-objection was filed. It is not

necessary that a point can be raised at the time of hearing only after

filing of cross objection.

In the case of M/S Bihar Supply Syndicate –vs.- Asiatic

Navigation and others, reported in AIR 1993 Supreme Court,

2054, the Hon’ble Supreme Court of India while discussing the scope of

Order XLI, Rule 22 and Rule 33 held-

24. We are in agreement with the High Court that the cross-objections filed by defendant No.3 in the appeal filed by defendant No.4 against the plaintiff were not maintainable. However, we are not in agreement with the High court that the provisions of O.41, R 33 of the Code of Civil Procedure were not applicable. The High Court noticed the decisions of this Court in Chaudhury Sahu ( dead)by 1.Rs.v. State of Bihar, AIR 1982 SC

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98 and Mahant Dhangir –v- ShriMadan Mohan, AIR 1988 SC 54 but felt that it could not grant relief to defendant No. 3. In the Constitution Bench decision of this Court in Pannalal –v- State of Bombay,( 1964) SCR 1980 ( AIR 1963 SC 1516) the facts were that the appellant therein had brought three suits claiming full payment with interest in respect of three hospitals constructed by him in execution of three separate contracts. The trial court decreed the suits for part of his claim against the State of Madhya Pradesh and held that other defendants were not liable, and accordingly dismissed the suits against them. On appeals preferred by the State of Madhya Pradesh the High Court set aside the decree against the state Government had allowed the appeals with costs. The plaintiff at that stage prayed for leave of the High Court to file a cross-objection and also for decrees to be passed against the Deputy Commissioner under O.41 R.33 of the Code of Civil Procedure, which was rejected and all the suits were dismissed. It was inter alia urged that the High Court ought to have granted relief against such of the other defendants as it thought fit under O 41, R.33 of the Code of Civil Procedure. This court held that the wide wording of O.41, R.33 empowers the Appellate Court to make whatever order it thinks fit, not only as between the appellants and the respondent but also as between a respondent and a respondent,. It could not be said that if a party who could have filed a cross-objection under O.41, R.22 did not do so., the appeal court could under no circumstances give him relief under the provisions of O.41, R.22 can be directed against the other respondents. On the facts of these cases the High Court refused to exercise its power under O.41, R.33 on an incorrect rule of the law and to the appeal must be remanded to the High Court for decision what relief should be granted to the plaintiff under O.41, R.33 of the Code of Civil Procedure.

31. We are of the view that on the facts and circumstances of this case it was a fit case for the High Court to have exercised power under Order 41, Rule 33 to set aside the decree passed by the trial court against defendant No.3 without having discussed any issue against defendant No.3 and to decide the case itself. We also thought of remanding back the matter to the High Court but we find that the facts are simple and lie in narrow compass and show total non-liability of defendant No.3 to the claim put forward by the plaintiff against it. As we have

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noticed earlier no cause of action is established against defendant No.3 who merely sold salt to the plaintiff and introduced defendant No.2,the Charter party to the plaintiff. The plaintiff thereafter directly dealt with defendant No.2 by paying the freight to defendant No.2 and by obtaining the bill of Lading in its own name. The property in goods had already passed on the plaintiff before it obtained the bill of Lading.

Similarly, in the case of Mahant Dhangir and another –vs.- Sri

Madan Mohan and others, reported in AIR 1988, S.C.54 the

Hon’ble Supreme Court of India while deciding the scope and ambit of

Order XLI, Rule 33 held –

12. xxxxxxxxxxxxxxxxxx Generally, the cross-objection could be urged against the appellant. It is only by way of exception to this general rule that one respondent may urge objection as against the other respondent. The type of such exceptional cases are also very much limited. We may just think of one or two such cases. For instance, when the appeal by some of the parties cannot effectively be disposed of without opening of the matter as between the respondents inter se Or in a case where the objections are common as against the appellant and co-respondent. The Court in such cases would entertain cross-objection against the co-

respondent. The law in this regard has been laid down by this Court as far back in 1964 in PannaLal v. State of Bombay, [1964] 1 SCR 980 at 991. After reviewing all the decisions of different High Courts, there this Court observed .

"In our opinion, the view that has now been accepted by all the High Courts that order 41, r. 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re-opened between the objecting respondent and other respondents, that an objection under 0.41 R. 22 can be directed against the other respondents, is

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correct. Whatever may have been the position under the old S 561 the use of the word "cross- objection" in 0.41 R. 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. As Rajamannar C.J said in Venkataswaralu v. Ramanna: "The legislature by describing the objection which could be taken by the respondent as a "cross-objection" must have deliberately adopted the view of the other High Courts. One cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a respondent, the cross- objection must be an objection by a respondent against the appellant." We think, with respect, that these observations put the matter clearly and correctly. That the legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a co-respondent is indicated by the substitution of the word "appellant" in the third paragraph by the words "the party who may be affected by such objection. "

15. But that does not mean, that the matter should be left without remedy against the judgment of learned single judge. If the cross-objection filed under R. 22 of 0.41 CPC was not maintainable against the co-respondent, the Court could consider it under R. 33 of 0.41 CPC. R. 22 and R. 33 are not mutually exclusive They are closely related with each other. If objection cannot be urged under R. 22 against co- respondent, R. 33 could take over and come to the rescue of the objector. The appellate court could exercise the power under R. 33 even if the appeal is only against a part of the decree of the lower court. The appellate court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. The sweep of the power under R. 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The words "as the case may require" used in R. 33 of O. 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice.

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What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of the judgment of the lower court. If these two requirements are there, the appellate Court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal. It is true that the power of the appellate court under R. 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.

Thus, from the statutory provisions and the interpretation given by

Hon’ble Supreme Court of India, it is made clear that raising any

objection, in an appeal by the respondent who did not file cross-

objection, it is not necessary in all times that unless the cross-objection is

filed the respondents are debarred from raising any objection in the

appeal.

On perusal of the materials available on the records, particularly,

the patta issued by the Settlement Officer, Dibrugarh- Lakhimpur District

on 02.01.74, it appears that a plot of land measuring 8B-3K-16 Ls. stood

in the name of Islamuddin Ahmed Hazarika and Kutubuddin Ahmed

Hazarika, both of them are sons of Amiruddin Ahmed Hazarika.

The certified copy of jamabandi marked as Exhibit B also reflects

that names of those two persons/pattadars were mutated in the revenue

records and those records were prepared in the year 1974. Neither in the

Periodic Patta marked as Exhibit A, nor in the certified copy of the

jamabandi marked as Exhibit B, the name of the plaintiffs/appellants or

their predecessor appeared.

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The plaintiffs/appellants contended that the suit land being owned

by their grand-father. They are also equally entitled through their

respective shares over the suit land, but the plaintiffs failed to produce

any documentary evidence in support of their contentions.

The plaintiffs have produced a possession certificate issued by the

Circle Officer, Dibrugarh East Revenue Circle to the effect that the plot of

land measuring 2 Kathas covered by Dag No. 898, P.P.No. 03, situated at

DibruwaL DehingiaGaon, Jamirah, is under the permanent possession of

Smti. Putuli Hazarika.

As the Assam Land & Revenue Regulations, 1886, does not

provide any provision that such a certificate would confer any title of a

person over a plot of land. Similarly, the plaintiffs have submitted some

agreements marked as Exhibits 3 and 4 executed by Nazimuddin

Hazarika with his tenants wherein it is written that Nazimuddin Hazarika

is the owner of a plot of land etc.etc., but those documents which are

procured by him cannot confer any title in respect of the suit land in

favour of the plaintiffs.

The patta was issued in the year 1974 and accordingly, mutation

was also recorded in the same year.

Rule 41 of the Assam Land & Revenue Regulations, 1886,

provides-

Entries in record and their effect 41. (1) Entries in the record made under

section 40 shall be founded on the basis of actual possession and all

disputes regarding such entries, whether taken up by the Settlement-

officer of his own motion or on the application of a party concerned shall

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be investigated and decided by him on that basis and all persons not in

possession, but claiming the right to be so, shall be referred by him to

the proper Court. (2) Every entry in the record-of-rights made under this

section shall, until the contrary is proved, be presumed to be correct.

Determination of class of tenants and the rent.

Rule 50 of the aforesaid Regulations further provides-

Liability of persons succeeding to estates to give in formation of

succession.

50. After the commencement of this Regulation — (a) Every proprietor

or land-holder succeeding to any estate, or share in an estate, whether

by transfer or inheritance, obtaining possession of the same; (b) Every

joint proprietor or joint land-holder, of any estate assuming charge of the

estate or of any share therein on behalf of the other proprietors or land-

holders thereof; (c) Every person assuming charge of any estate of a

proprietor or land-holder, or of any share therein as manager; and (d)

Every mortgage obtaining possession of any estate of a proprietor of

land-holder, or of any share therein; shall, within six months from the

date of taking possession or assumption of charge, apply to the Deputy

Commissioner of the district on the general registers of which the estate

is borne for registration of his name as such proprietor, land-holder,

manager or mortgage, and of the nature and extent of the interest in

respect of which the application is made. Note – (1) District Officer are

responsible that the registers (jamabandis in the case of ordinary

raiyatwai lands) are maintained to date by the entry of all changes in

proprietary possession. (2) They should get information from the

Registering Officer regarding all deeds affecting rights in land which are

produced before them for registration, a clerk being deputed once a

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week, if necessary, to extract the required information from the Sub-

Register’s books, Where separate registration clerk is entertained, the

required information should be furnished monthly by the Sub-Registrar in

the following form:— (i) Name of sub-registry officer (ii) Name and

address of transferor (iii) Name and address of transferee (iv) Name and

number of estate; its pargana and mauza (v) Specification of share

transferred (vi) Date and description of deed (vii) Date of registration

(viii) Remarks. (3) It is the duty of the mandal or patwari to bring to

notice all changes which he discovers in the course of his annual tours.

The procedure to be followed in registering these changes after local

investigation instead to by inquiry in Court is described in the Land

Records Manual. The obligation of the mandal or patwari to report

changes does not absolve private persons from liability under section 50

and 51.

Thus, from the above, it is clear that any person who is claiming

any right in respect of any land must approach the Settlement authority

for registering his/ her name. Similarly, it has also came into light that

the records of rights i.e the jamabandi is prepared on the basis of actual

possession. Of course, if cogent evidence can be produced that the

mutation was recorded by way of committing foul play, definitely, merely

records of rights in the jamabandi may not be sufficient to hold so.

The appellants/plaintiffs contended that the suit property belonged

to their grand-father of the respondent/defendants fraudulently got his

name mutated in the revenue records, but there is nothing in the record

that they approached the appropriate authority i.e the District Collector

(Deputy Commissioner) or the Settlement Officer for getting their names

mutated or cancellation of the names of the respondent/defendant.

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As the appellants/defendants did not challenge the patta or

mutation as on today, nor moved any petition before the appropriate

authority, it cannot be held on the basis of the possession certificate that

they are the owners of the suit land.

Similarly, in order to bring the correct fact the appellant/plaintiffs

did not implead the Land & Revenue Regulations authority in the District

nor examined any of such authority as a witness to get support on their

contentions. As such, considering the entire facts and circumstances, I

am of the considered view to hold that the learned trial court erroneously

decided the Issue No. 3 in favour of the plaintiffs. Accordingly, the

decision on this issue is set aside. To the contrary, it is held that the land

measuring 8B-3K-16 Ls. is not the ancestral property of the

plaintiffs/defendants.

Although my learned predecessor set aside the earlier judgment

and remanded the suit to the learned trial court with a direction to frame

the issue namely whether the plaintiff has been occupying the suit land

by adverse possession /

The learned counsel for the appellants fairly submits that that he

did not pray any right of adverse possession and for which there is no

prayer in this regard.

Similarly, P.W.1 in his cross-examination on the additional

evidence clearly stated that he did not claim any right over the suit land

by way of adverse possession inasmuch as, he has claimed his right over

the ancestral property.

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Thus, it is clear that appellants/plaintiffs have failed to

substantiate the fact that they have been in use and occupation of the

suit land adverse to the right of the true owner.

On perusal of the cross-examination of the respondent/defendant

as D.W.1, it appears that the respondent/defendant admitted that his

grand-father Faizuddin Ahmed Hazarika left behind 2 sons namely,

Amiruddin and Sarifuddin. Amiruddin left behind 2 sons i.e. Islamuddin

and Kutubuddin. Similarly, Sarifuddin left behind Faizuddin, Rahimuddin

and Muhibuddin. He further admitted that the father of the plaintiffs was

his cousin. He also admitted that the land covered by Patta No. 3 was

inherited by his father from his grand-father. This witness also admitted

that the appellants/plaintiffs came into occupation of the suit land in the

year 1978.

As stated above, the right, title and interest, if any, have been lost

by the appellants/plaintiffs on the basis of limitation, waiver and

acquisition, but as they are in occupation of the suit land and the

respondent/defendant clearly admitted that the land in P.P.No. 3 was the

ancestral property, the appellants/plaintiffs have certain rights.

Considering the complex situation, I am of the considered view to

allow the following reliefs to the appellants/plaintiffs :

O R D E R

A) The appellants/plaintiffs and the respondent shall make an

endeavor to settle the dispute amicably within a period of 2 months from

today.

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B) If the respondent/defendant fails to sit for negotiation, the

appellants/plaintiffs may approach the Land and Revenue Regulations

authority in the District for getting their names registered in the revenue

records on the basis of the fact that the said land is a part of their

ancestral property.

C) Till finalization of the matter by the parties or by the Land &

Revenue Regulations authority as the case may be,

respondent/defendant is hereby restrained from alienating the suit

property or from creating any charge therein.

D) The parties are directed to bear their respective costs of litigation.

E) Prepare a decree accordingly.

Given under my hand and seal of the court on this 28th day of

June, 2017.

Dictated & corrected by me,

Civil Judge, Dibrugarh Civil Judge, Dibrugarh

Typed by :A.K.Chakravarty, steno.