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- RSA No. 36 of 2003
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RSA No.36 of 2003 Page 1 of 7
( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH )
Md. Luthfur Rehman Barbhuiya, Son of Haji Muzamil Ali Barbhuiya, Resident of Gangpar Dhumkar, P.O, P.S. & District: Hailakandi, Assam.
….. Appellant /Petitioner
-Versus- 1.
The Kachari Maszid, Represented by Sri Jalal Uddin Choudhury, The Mutawali of the said Maszid, Ward No.2, Lala Road, Hailakandi Town, P.O. & District : Hailakandi, Assam.
2.
Md. Salim Uddin Laskar, (On the death of Pollution Control Board, Assam, Bamunimaidam, Guwahati- 781021, Kamrup, Assam.
……… Respondents/ Defendants.
BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY
For the Appellant /Petitioner : Mr. B. Chakraborty , Advocate.
For the Respondents/ Defendants : None appears.
Date of hearing : 07.02.2014
Date of judgment : 07.02.2014
RSA No.36 of 2003 Page 2 of 7
This Second Appeal has been preferred by the plaintiff, namely, Md. Luthfur Rehman Barbhuiya, against judgment and decree dated 14.05.2002 passed by the learned District Judge, Hailakandi in Title Appeal No. 8 of 2000 affirming the judgment and decree dated 30.06.2000 passed by the learend Civil Judge (Senior Division), Hailakandi in Title Suit No. 25 of 1989, whereby his suit was dismissed. The plaintiff filed the suit praying for declaration that he is a non-evictable tenant under Cachari Masjid and also for injunction restraining the defendants and their agents from interfering with his peaceful possession. It is the case of the plaintiff that the suit land described in schedule to the plaint originally belonged to one Gulai Mia Laskar who donated the land to one Gulam Raja Choudhury by a registered gift deed dated 23.03.1907 who constructed the present Masjid on the land and thereafter, created one Wakf Estate by his land measuring 39 Bigha 12 Katta 9 Chattaks of land on 15.08.1928 for the benefit of this Masjid. The Masjid was managed by a Mutawalli of the Wakf Estate establishment. It is pleaded in the plaint that one Munsi Ali Mazumder obtained settlement of the suit land from Mutawalli in 1952 and on taking settlement constructed a pucca permanent structure thereon within 5 years of his settlement and continued partnership business in that house with his brother Tobarak Ali. Subsequently, both the brothers got separated and the suit land fell in the share of Tobarak Ali who on turn obtained direct settlement from Mutawalli on 08.11.1960 by executing a kabuliyat. Tobarak Ali sold the suit land and structure to Abul Hussain Mazumdar on 08.08.1979 by a registered sale deed, who on turn transferred the whole property to the present plaintiff on 06.07.1983 by a registered sale deed. It is the case of the plaintiff that Tobarak Ali having made the permanent structure over the land in question and the same having been transferred to the petitioner the right of occupancy of tenancy given to Tobarak Ali naturally came down to the plaintiff through Abul Hussain Mazumdar. The plaintiff, therefore, is also a non-evictable tenant under Assam Non-Agricultural Urban Areas Tenancy Act, 1955 and is, therefore, entitled to protection against eviction. But, the Masjid committee sought to interfere with his possession for which petitioner’s right, title and interest as a non-evictable tenant became RSA No.36 of 2003 Page 3 of 7
clouded. Under such circumstances, filing of the suit became necessary. The plaintiff suit was numbered as Title Suit No. 25 of 1989 in the Court of the learned Civil Judge (Senior Division), Hailakandi.
2.
On being summoned the defendants appeared and submitted a written statement. In the written statement the specific allegation of the Masjid committee was that the plaintiff or his predecessor did not make construction of permanent structure on the land in question within 5 years of tenancy and that the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, did not apply to the case in question. Hence, the plaintiff has not acquired the right of non- evictable tenant under the Masjid Committee. 3.
On the basis of the aforesaid rival contentions of the parties, as many as 8 issues were framed by the learned Trial Court and the same are quoted below:
“1) Is there any cause of action of the present suit? 2) Is the suit maintainable in its present form? 3) Whether the suit is barred under the provisions of Wakf Act? 4) Whether the suit is barred by limitation? 5) Whether the suit is bad for mis-joinder and non-joinder of essential parties? 6) Whether the suit is properly drafted, verified, valid and stamped? 7) Whether the lease and transfer of the suit property to the plaintiff is valid as per the provisions of the law? 8) To what relief, if any, the plaintiff is entitled?” 4.
The plaintiff examined as many as 5 witnesses and exhibited 17 documents. The defendant on the other side examined one witness, the then Mutuwalli of the Walk Estate. 5.
The plaintiff did not produce and/ or exhibit the sale deed by which Tobarak Ali sold the suit land and property to Abul Hussain Mazumdar, but only exhibited or sale deed dated 23.03.1907 exhibited by Abdul Hussain Mazumdar in favour of the plaintiff as Exhibit-4. Exhibits-1, 2 & 3 are the original receipts executed by the earlier Mutawalli Abul Khaleque Laskar on
RSA No.36 of 2003 Page 4 of 7
receipt of rent from the plaintiff. Exhibits-5 & 8 are the receipts of municipal taxes and Exhibits-9 to 15 are also receipts regarding payment of rent to the municipal office. Exhibit-16 is the wakf of deed dated 02.10.1928 and Exhibits 17 is the gift deed dated 22.03.2007 whereby the land was gifted by Gulai Mia Laskar in favour of Gulam Raja Chaudhury. Exhibit-4 sale deed contains recital to the effect that the land holds 23/2 (half) of structure measuring 19 ft by length and 7 ½ ft by breadth with CI shifted roofing of wooden frame consisting of 12 ft frontage. This sale deed was executed on 22.03.1907 and was registered on 06.07.1983. So the existence of permanent structure of land as on 26.03.1986 was proved. But admittedly Masjid Committee tenanted the property to Munsi Ali Mazumdar in 1952 then his brother Tobarak Ali who obtained direct settlement from the Masjid Committee on 08.11.1960 and as such to get the benefit of non- evictable tenant it was incumbent upon the plaintiff to plead and prove that the permanent structure was constructed within a period of 5 years from 08.11.1960. The learned Trial Court under such circumstances by judgment and decree dated 30.06.2000 dismissed the Title Suit No. 25 of 1989 against the plaintiff holding that the land is neither covered by Assam Non- Agricultural Areas Tenancy Act, 1955, nor did the plaintiff succeeded to prove construction of permanent structure within a period of 5 years of creation of the tenancy. As against this judgment of dismissal passed by the learned Trial Court the plaintiff preferred Title Appeal No. 08 of 2000 in the Court of learned District Judge, Hailakandi. The learned District Judge after hearing both sides and on perusal of the materials available on record dismissed the appeal on 14.05.2002 upholding the view of the learned Trial Court that the plaintiff could not prove that permanent structure was made within a period of 5 years of creation of the tenancy and that the provision of Assam Non-Agricultural Urban Areas Tenancy Act, 1955, does not apply to the present case in view of the provision of Section 2 of the Said act. As against these 2 judgments the present Second Appeal has been preferred by the plaintiff. This Court admitted the second appeal on 08.04.2003 on the following substantial questions of law:
RSA No.36 of 2003 Page 5 of 7
by virtue of Section 2 of the Assam Non-Agriculture Urban Areas Tenancy Act, 1955, as the suit land was not registered with the Wakf Board? 2) Whether the plaintiff acquired the right of non-evictable tenant by virtue of Sctions 2, 3 & 5 of the Assam Non-Agriculture Urban Areas Tenancy Act, 1955, having derived the tenancy rights under a special Act? 3) Whether the learned Courts below committed materials irregularity and acted perversely in not holding the plaintiff entitled to be protected under Section 5 of the Assam Non-Agriculture Urban Areas Tenancy Act, 1955? 4) Whether the learned Courts below committed irregularity and acted perversely in overlooking the clear admission made by the defendants in their evidence that the plaintiff took possession of the suit land by a registered deed and constructed pucca construction within 5 years there from giving him the benefits of Section 5 of the Assam Non-Agriculture Urban Areas Tenancy Act, 1955?” 6.
I have heard Mr. B. Chakaraborty, learned counsel for the appellant. None appears for the respondents although names of the learned counsel have been shown in the cause-list. 7.
Coming to the first substantial question of law as referred to above Mr. Chakraborty has fairly submitted that this substantial question of law does not arise out of pleadings and/ or materials of the case. The learned Courts below hold that provisions of Assam Non-Agricultural Urban Areas Tenancy Act, 1955 does not apply to the case in hand. However, learned Trial Court in Paragraph-20 of the judgment has disclosed that by operation of Section 2(C) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 the provisions of the act is not applicable to the present suit. 8. I have perused Section 2 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955. It does not deal with registration of any Wakf Estate. Section 2(c) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, shows that the provisions of the act shall not apply to any holding which contains one or more buildings owned by the land lord and which has been let out to any person. It is clear from the written statement as well as from the evidence of both the parties that apart from the suit holding, there are RSA No.36 of 2003 Page 6 of 7
other structures on the same land including RCC structures which are let out to various tenants. It is on these grounds the learned Trial Court held that Section 2(c) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, applies to the present case and there by the act itself becomes inapplicable. This being the position, the first substantial question of law does not require any adjudication inasmuch as it does not arise out of materials of the case. 9.
The second, third & fourth substantial questions of law deal with the professed right of the plaintiff under Section 5 of the Assam Non- Agricultural Urban Areas Tenancy Act, 1955. It is concurrent finding of both the Courts below that the plaintiff failed to produce any evidence and to prove that the permanent structure was made on the suit land within a period of 5 years of tenancy. As stated above, the tenancy originally started in 1960 when the Masjid Committee settled the land with Tobarak Ali with the vendors of the vendor of the present plaintiff. Tobarak Ali, thereafter, on 1979 sold his tenancy right to Abul Husain Mazumdar who on turn on 1983 sold the same to the plaintiff. Thus, the tenancy was originally created in the year 1960 and as such, it was incumbent on the part of the plaintiff to bring on record such evidence so as to establish that permanent structure, if there be any, was made before the year 1965. Perhaps production of sale deed executed by Tobarak Ali in favour of Abul Hussain Mazumdar would have been given some help to the plaintiff. This is because in Exhibit-4, the sale deed was executed by Abul Hussain Mazumdar in favour of the plaintiff contain on recital that the permanent structure stand on the suit land measuring 19 ft of length and 7 ½ ft of breadth with CI sheet roofing and wooden structure. The defination of permanent structure has given in Section 3 (D) of the aforesaid act satisfies the conditions for the suit property to become a permanent structure but the question arises as to when the structure was made. Sale deed proved that as on 20.06.1983 that is the date when it was transferred to the plaintiff, there was a permanent structure but it does not prove that within 5 years of tenancy the tenant created it on 1960 and this structure continued. The plaintiff has miserably failed to prove by documents or otherwise that the structure was made within 1965. Since this has existence in Exhibit-4 , it is likely to be mentioned that had there been permanent structure within a period of 1965, RSA No.36 of 2003 Page 7 of 7
the same must have been mentioned in the sale deed on 1979 by the Tobarak Ali to the Abul Hussain Mazumdar as pointed out above. The plaintiff did not produce any documents and withheld it and as such it became liable to adverse presumption against him under Section 114 (g) of the Indian evidence Act. Learned counsel for the petitioner has failed to prove that the concurrent findings of the learned courts below that plaintiff did not prove construction of permanent structure on the suit land within a period of 5 years is not perverse. Apart from that I have perused the evidence and I do not find any ground of perversity in regard to such findings. More over even if plaintiff succeeds to prove that he constructed a permanent structure but yet he cannot claim of benefit of Section 5 of the Assam Non- Agricultural Urban Areas Tenancy Act, 1955, in view of the fact that both the learned Courts below have come to finding that the Act itself is not applicable to the suit land. On consideration of the totality of circumstances, all these 4 substantial questions of law are decided against the appellant/ plaintiff that the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, does not apply to the suit land and that the plaintiff could not prove construction of permanent structure on the said land within a period of 5 years of the original tenancy. 10. Consequently, the Second appeal is of no merit and it is accordingly dismissed. 11.
No order as to cost.
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