RSA 148/2010 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) Heard Mr. GP Bhowmik, learned counsel appearing for the appellants. Also heard Mr. B Banerjee, learned counsel for the respondents. 2. The appellants in the instant Regular Second Appeal being defendants in Title Suit No. 158/2007 have challenged the legality and validity of the judgme nt dated 26.02.2010 and decree dated 09.03.2010 passed in Title Appeal No. 53 of 2008 by the learned Civil Judge, Dhubri whereby and whereunder the learned App ellate Court allowed the appeal thereby reversing the judgment and decree date d 29.08.2008 and 03.09.2008 respectively passed in Title Suit No. 158 of 2007 (o riginal Title Suit No. 153 of 2003) by the learned Munsiff, Bilasipara, which came up for admission under order XLI Rule 11 of the Code of Civil Procedure (in short Code). 3. The substantial questions of law have thus been formulated as hereunder- (i) Whether the lower appellate Court is justified in passing the re versal judgment and decree when the suit is barred under Section 154(1) ALRR 188 6 and u/s 66 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971? (ii) Whether the lower appellate Court is justified for not holding t hat, against the order of cancellation of Tenancy Khatian by the Settlement Offi cer appeal lies to the Assam Board of revenue u/s 147, ALRR, 1886? (iii) Whether the lower appellate Court is justified in holding that t he status of the appellant (present respondent Nos. 1 to 6) remain unaffected; w hen in Ext- 3, the final Khatian; name of Salima Khatun (mother of the original plaintiff) was recorded as occupant and not as Raiyat and/or tenant when appella nt is not a cultivator? (iv) Whether there is perversity of finding of facts in holding that the plaintiffs/respondents are occupying tenants? 4. In order to answer the substantial questions of law as formulated, the C ourt has to go through the pleadings of the parties, the evidence on record and the relief sought for: The respondents herein are the legal representatives of Abu Bakk ar Siddique who had brought the suit seeking the following reliefs- a) A decree with declaration that the plaintiff has his right to get restor ed his tenancy right and tenancy Khatian over the suit land. Defendant No. 8’s o rder dated 31.03.2003 passed in Appeal No. 49/2001 having cancelled such tenancy right and tenancy Khatian of the plaintiff was out and out illegal arbitrary an d inoperative in law. b) A declaration that the plaintiff has his right, title and interest over the suit land to possess, enjoy and occupy the same as before, as recorded tena nts of defendant Nos. 1 to 6 and that neither defendants Nos. 1 to 6 nor their men, agents and servants have any right to dispossess him from the suit land. c) An order directing defendant Nos. 7 and 8 to make necessary corrections in the land records of the suit land having recorded therein the name of the pla intiff as tenants of defendant Nos. 1 to 6 accompanied by an order of issuing Ra iyati Patta (Raiyoti Khatian) to the plaintiff in respect to the suit land. d) A decree of a permanent injunction, restraining permanently defendant No s. 1 to 6, their men, agents or servants from dispossessing the plaintiff from t he suit land and also from disturbing in any way plaintiffs peaceful enjoyment a nd possession of same and also by restraining defendant No. 7 permanently from g iving any effect to his orders dated 29.03.2001 in Misc. Case No. 1/2001-2002 an d defendant No.8 from giving effect to his order dated 31.03.2003 in Appeal No. 49/2001. e) Any other relief to which the plaintiff is entitled under law, equity an d good conscience. 5. The reliefs as sought for was based on the pleaded facts that the mother of the plaintiff late Salema Nissa @ Saleman Nessa Bibi was a tenant upon the Schedule land mentioned in the plaint, measuring 4B 1K 9L under late Alpu Sarka r, uncle of the defendant nos. 1 to 6 and accordingly recorded as tenant under Alpu Sarkar at the time of survey and settlement operation of 1961-62. The mot her of the plaintiff Saleman Nessa died in the year 1984. Thereafter, the plaint iff applied for recording his name as tenant upon the suit land in place of the name of his mother and also for Raiyati Khatian. The Assistant Settlement Offic er (’ASO’ for short), Bagribari, on perusal of the land records allowed Raiyati Khatian to the plaintiff in respect of 3B 1 K 9L of land on the ground that 1 Bi gha of land has been eroded by river. Thereafter the defendant Nos. 1 to 6 filed a petition being Misc. Case No. 1/2001-2002 before the A.S.O. Bagribari for mut ation of their names over the suit land as heirs of Yasin Ali which was objecte d to by the defendants. But the A.S.O., Bagribari allowed mutation of the land i n favour of the defendant Nos. 1 to 6 by his order dated 29.08.2001, against whi ch an appeal being Appeal Case No. 49/2001 preferred before the Settlement Offic er, Dhubri and the Settlement Officer rejected the appeal canceling the tenancy right and Raiyati Khatian of the plaintiffs and hence the suit seeking the relie f as indicated above. 6. The defendant Nos. 1 to 6 on receipt of the summons have entered appeara nce and submitted their written statement which was not accepted being filed bey ond the prescribed period of limitation. However, liberty was granted to partici pate in the proceeding. During the trial the plaintiff has examined 2 (two) witn esses and exhibited several documents whereas the defendants have examined two w itnesses and exhibited certain documents. 7. The learned trial Court dismissed the suit holding that since the plaint iff has failed to file an appeal before the proper forum i.e. Revenue Board, Ass am against the order of cancellation of Raiyati Khatian, passed by Settlement Of ficer, Dhubri, the suit is not maintainable. In regard to ownership as provided under the provisions of Assam Temporary (Settled Areas) Tenancy Act, 1971 (Tenan cy Act, 1971 for short) the trial court has held that as the plaintiff has faile d to prove that his mother acquired the ownership right from Alpu Sarkar or that he acquired the same from the legal heirs of late Aplu Sarkar, the plaintiff ha s failed to prove his case and hence dismissed the suit on two counts. 8. Being aggrieved with the judgment and decree passed by the learned trial Court, the plaintiff took up the matter on the file of the First Appellate Cour t and the First Appellate Court has held that the suit being a declaratory suit, the same is maintainable and after going through the evidence on record has hel d that Ext-1 Praja Pattan coupled with the working Khatian Ext-2 and the certifi ed copy of the Khatian No. 26 as well as the revenue payment receipts-cum-Dakhi la would clearly demonstrate that the mother of the plaintiff was the original tenant under Alpu Sarkar which was an old document having a duration of more th an 60 years and there is no rebuttal evidence challenging the validity of Ext- 1 referring Sections 5 and 6 of the Tenancy Act, 1971 which provides that the rig ht of tenancy is a heritable one and Section 54 of the said Act provides that no tenant shall be ejected from his holding except in execution of an eject ment decree passed by a competent civil Court and the relevant provisions of t he Code shall apply to such proceedings. The appellate Court has further referre d the provisions of Section 4(2) of the Assam Land Holding Act, 1974 wherein it has been specifically provided that every person holding any land as tenant of another person in the area shall continue to hold the same with the status of a tenant as per provisions of the Assam (Temporarily Settled Areas) Tenancy Act 1971 and thus held that the status of the appellant as tenant remained unaffe cted thereby allowed the appeal holding that the appellant has been able to es tablish their tenancy right over the suit land and therefore cancellation of th e Tenancy Khatian by the Settlement Officer is erroneous under the law and the a ppellate court’s decision is under challenge before this Court. 9. Mr. Bhowmick, learned counsel appearing for the appellants and supportin g the judgment of the learned trial Court would contend that the respondents her ein have filed the suit against the cancellation of Raiyoti Khatian by the Sett lement Officer, Dhubri against which an appeal would lay before the learned Assa m Board of revenue and hence the suit is barred under Section 154 (1) of Assam Land and Revenue Regulation (’ALRR 1886’ for short) and/or Section 66 of the Te nancy Act, 1971, more so, when in Ext-3, the final Khatian, the name of Salema K hatun was recorded as occupant and not as a Raiyat or tenant, the finding of the appellate Court is perverse requiring inteference under Section 100 of the Code . 10. On the contrary, Mr. Banerjee, learned counsel appearing for the respond ents would contend that Ext- 3, the final Khatian was issued in the year 1961-62 under the provisions of the Assam (Temporarily Settled Districts) tenancy Act 1 935 and section 4(2) of the Tenancy Act, 1971 provides that any person who was r ecorded in the record of rights as a privileged tenant under the provisions of t he Assam (Temporarily Settled Districts) Tenancy Act, 1935 shall henceforth be r ecorded as occupancy tenant and thus supported the judgment of the learned appel late Court holding that it is a declaratory suit and the suit is maintainable. Mr. Banerjee therefore has submitted that the finding so arrived at by the learn ed appellate court do not require to be interfered with. 11. Considered the submissions made by the learned counsel appearing for the parties. Perused the pleadings along with the evidence on record as well as the judgment delivered by both the learned Court below. The argument advanced by Mr . Bhowmick, learned counsel appearing for the appellants do not hold good requir ing interference with the findings of the learned trial Court. Admittedly it is a declaratory suit, more particularly, in view of Exts 1, 2, 3, 4, 5, 6, 7 and 8 as well as Ext-6, Order of Mutation case No. 19 dated 17.08.1964 whereby the na me of the mother of the plaintiffs was mutated. Therefore on the basis of Exts- 1, 2, 3, 4 and 5 she was recorded as Praja Pattan. Original Khatian, Dakhila and rent receipts which are admittedly prior to passing of the Tenancy Act, 1971 an d Section 4(2) of the Tenancy Act 1971 provides that any person who w as record ed in the record of rights as a privileged tenant under the provisions of the A ssam (Temporarily Settled Districts) Tenancy Act 1935 shall be recorded as an oc cupancy tenant and hence the Court do not find any perversity in the judgment a nd decree passed by the learned lower Appellate Court holding that the declarato ry suit is not barred under the provisions of Section 154 of the Assam Land Rev enue Regulation 1886 or under Section 66 of the Assam (Temporarily Settled Areas ) Tenancy Act, 1971. The same is, therefore, affirmed. 11. In the result, the Court finds that there is no substantial question of law as formulated requiring any interference and hence the Regular Second Appeal is found to be devoid of any merit and the same is dismissed.