RSA 134/2000 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal by the defendant No.6 is directed against the judgment and d ecree dated 04.04.2000 passed by the learned Civil Judge (Sr. Division), Sibasag ar, in Title Appeal No.19/1993 dismissing the appeal preferred by the present ap pellant and by affirming the judgment and decree dated 22.09.1993 passed in Titl e Suit No.76/1985 by the learned Munsiff No.1, Sibasagar. 2. The respondents herein as plaintiffs instituted a Title Suit No.76/1985 in the Court of the learned Munsiff No.1, Sibasagar against the present appellan t as defendant No.6 apart from 11 other defendants praying for declaration of ri ght, title, interest and recovery of khas possession in respect of the land desc ribed in Schedule-Ka to Chha contending inter alia that though the defendants (i ncluding the present appellant/defendant No.6) were allowed to manage the suit l and in the year 1980 and in return used to pay sometimes money, sometimes crops or sometimes in kinds, they since 1984 stopped giving rice, paddy etc. and got t heir names mutated in the revenue records and denied the title of the plaintiff. In the plaint it has been pleaded that the present appellant/defendant No.6 and defendant No.7 were allowed to possess the land described in Schedule-Ga in ret urn of making payment of money or paddy or rice etc. and though he continued to do so from 1980 to 1983, they also did not make any payment thereafter and denie d the title of the plaintiffs and recorded their names in the revenue records. T he plaintiffs, therefore, instituted the suit as aforesaid. 3. The defendants contested the suit by filing their respective written sta tements. The appellant/defendant No.6 and the defendant No.7 filed their joint w ritten statement contending inter alia that they were the tenants in respect of Schedule-Ga land initially under Biren Gogoi, the husband of the plaintiff No.1 and the father of the plaintiff Nos.2 and 3, who during his lifetime transferred the land in their favour by putting his signature in the Chitha and accordingly they became the owner of the land described in Schedule-Ga. In the written stat ement they have also claimed that in any case they were the tenants under the pr edecessor-in-interest of the plaintiffs. 4. The learned Trial Court on the basis of the pleadings of the parties, fr amed the following issues for considerations and decisions:- (1) Is there any cause of action for the suit? (2) Whether the suit is bad for misjoinder and cause of action? (3) Whether the suit is maintainable? (4) Whether the suit is proper valued if not whether this court has jurisdic tion to the suit? (5) Whether the defendants acquire right, title and interest by way of purch ase of their respective land from late Biren Gogoi? (6) Whether the defendants prior to the purchase acquired tenancy right in t heir respective suit land? (7) Whether the plaintiffs have right, title and interest over the suit land ? (8) Whether the plaintiffs are entitled to decree as prayed for? (9) To what reliefs, parties are entitled? 5. During the course of the trial, the plaintiffs examined 4(four) witnesse s, who have been cross-examined and discharged. The plaintiffs have also proved 9(nine) nos. of documents which are marked as Exts.-1 to 9. The defendants exami ned 1(one) witness, namely, Sri Girin Hazarika on 13.08.1991, who was cross-exam ined by the plaintiff on that date and was discharged. 7(seven) nos. of document s being marked as Exts.-Ka to Chha were also proved through the DW-1. The examin ation-in-chief of another witness of the defendants’, namely, Tileswar Nath, a L atmandal (DW-2) was recorded on 13.08.1991 and 09.09.1991. During the examinatio n-in-chief the said witness has also proved 1(one) document being Ext.-Ja. The s aid witness, however, could not be produced for cross-examination and a number o f adjournments were granted for that purpose, as the summons could not be served on the said official witness and ultimately the case was fixed on 19.07.1993 fo r examination of the defendants’ witnesses which includes cross-examination of t he DW-2 on which date the evidence of the defendant side was closed by the learn ed Munsiff on the ground of non-issuance of summons to the witnesses and non-pre sence of the witnesses from the defendants’ side. Later on, on the same day thou gh a petition No.771/1993 was filed by the defendants praying for fixing another date for examination of their witnesses, the same has, however, been rejected o n the ground that the cause of absence of the witnesses is not genuine. The effe ct of such order dated 19.07.1993 is that the examination-in-chief of the DW-2 h as been expunged because of non-production of the said witnesses by the plaintif f. 6. The learned Trial Court upon appreciation of the evidences on record, de creed the suit of the plaintiff by holding that though from the evidence of the defendants it can be said that they possess the suit land till 1983 by paying re nt such as rice, paddy, money, etc. to the plaintiffs, which has been admitted b y the plaintiff also, payment of such rent in the form of money, rice and paddy etc. from time to time in return of allowing the defendants to manage the proper ty in the absence of the plaintiff, who is the lonely lady, would not constitute any tenancy. 7. Being aggrieved, all the defendants, namely, defendant Nos.1 to 11, whic h includes the present appellant/defendant No.6, preferred Title Appeal No.19/19 93 in the Court of the learned Assistant District Judge, Sibasagar, which appeal has been dismissed by the learned First Appellate Court vide judgment and decre e dated 04.04.2000 by holding that no evidence was led by the defendants relatin g to tenancy and the evidence as led by the plaintiffs do not demonstrate creati on of any tenancy between the plaintiffs and the defendants, though the plaintif fs have admitted that the defendants possess the suit land by giving paddy, rice , etc. to them till 1983. That apart according to the learned First Appellate Co urt, after the alleged purchase of the suit land, the defendants did not give an ything to the plaintiffs, though possessed the suit land. The grounds taken in t he said appeal by the defendants that the learned Trial Court was not justified in passing the order dated 19.07.1993 expunging the evidence of the defendants, has been negated by the learned First Appellate Court on the ground that the def endants thereafter participated in the proceeding of the suit and as such cannot subsequently challenged the said order in an appeal. Hence the present appeal b y the defendant No.6. 8. The appeal was though admitted for hearing vide order dated 04.12.2000 b y a Single Bench of this Court, since such admission was without formulating the substantial questions of law, this Court on 10.02.2009 after hearing the learne d counsel appearing for the parties decided to hear the appeal on the following substantial questions of law: I. Whether the order passed by the learned Trial Court expunging the eviden ce of DW can be taken up as a ground in the appeal in challenging the decree pas sed, in view of the provisions contained in Section 105 of CPC? & II. Whether any tenancy has been created in favour of the defendants by acce pting the paddy, etc. receipt of which has been admitted by the plaintiffs in th e plaint? 9. I have heard the learned Sr. counsel for the appellant as well as the le arned counsel for the respondent Nos.1, 2 and 3. 10. Referring to the substantial questions of law formulated by this Court v ide order dated 10.02.2009 as well as the judgment and decree appealed against i t has been submitted by the learned Sr. counsel for the appellant that in view o f the provisions contained in Section 105 of the Code of Civil Procedure the lea rned First Appellate Court was not justified in not going into the question as t o whether the order dated 19.07.1993 passed by the learned Trial Court was valid , only on the ground that the defendant No.6/appellant participated in the proce eding after passing of the order dated 19.07.1993. According to the learned Sr. counsel, since the order dated 19.07.1993 expunging the evidence of the defendan ts’ witness is not an appealable order under Order XLIII Rule 1 of the CPC, the defect or irregularity in that order can be taken as a ground in the appeal that may be filed against the ultimate decree passed by the learned Trial Court. In the instant case according to the learned Sr. counsel, it is evident from the ju dgment passed by the learned First Appellate Court that the challenge to the leg ality and validity of the order dated 19.07.1993 passed by the learned Trial Cou rt has been negated solely on the ground that the defendant No.6/appellant has p articipated in the suit after passing of such order. 11. Relating to the 2nd substantial question of law formulated, it has been submitted by the learned Sr. counsel that it is apparent from the averments made in the plaint as well as from the judgment passed by the learned Trial Court th at there was an arrangement between the parties for payment of rent in the form of money, rice, paddy, etc. and as such the defendant No.6 with defendant No.7 a re tenants, in respect of Schedule-Ga property, within the meaning of Section 3( 17) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (in short the 197 1 Act) and they, according to the plaintiffs themselves, being in possession of the said land for a period of 3(three) years, have acquired the status of the oc cupancy tenant within the meaning of the said Act, as such could not be evicted except on the ground that the land has been used in such a manner which renders it unfit for the purpose of the tenancy, which according to the learned Sr. coun sel is not the ground on which the plaintiffs have sought the eviction of the de fendant Nos.6 and 7. The learned Sr. counsel further submits that the learned Fi rst Appellate Court also did not recorded any finding that handing over the poss ession of the land by the plaintiffs to the defendant Nos.6 and 7 for its cultiv ation amounts to personal cultivation within the meaning of Section 3(10) of t he 1971 Act. The learned counsel submits that in view of the aforesaid position, the learned First Appellate Court, in view of Section 3(17) as well as Sections 4 and 5 of the 1971 Act ought to have held that the defendant Nos.6 and 7 being occupancy tenants are not evictable on the ground on which they are sought to b e evicted by the plaintiffs. 12. The learned counsel appearing for the respondent Nos.1, 2 and 3 on the o ther hand supporting the decree passed by the learned Courts below has submitted that a concurrent finding has been recorded by both the courts below to the eff ect that the defendant Nos.6 and 7 were not tenants under the plaintiffs within the meaning of 1971 Act. It has further been submitted that from the tenure of t he judgment passed by the learned Trial Court, it appears that though the defend ant Nos.6 and 7 were allowed to cultivate the land described in Schedule-Ga to t he plaint by the plaintiff No.1, who being an widow, it amounts to personal cul tivation as defined in Section 3(10) of the 1971 Act and hence no tenancy withi n the meaning of the said Act has been created so as to get the protection under the provisions of the said Act by the said defendants. It has also been submitt ed by the learned counsel that no khatian has been issued in favour of the said defendants in respect of the ’Ga’ schedule land. 13. I have considered the submissions of the learned counsel for the parties and also perused the judgments and decrees passed by the learned courts below. 14. It is evident from the judgment passed by the learned First Appellate Co urt that though the defendants had challenged the order dated 19.07.1993 passed by the learned Trial Court expunging the evidence of their witnesses, the same h as not been gone into, solely on the ground that after passing of such order, th e defendants participated in the proceeding i.e. in the suit, which disentitle t hem to challenge the order. 15. Sub-section (1) of Section 105 of the Code of Civil Procedure provides t hat save as otherwise expressly provided, no appeal shall lie from any order mad e by a Court in exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affect ing the decision of the case, may be set forth as a ground of objection in the m emorandum of appeal. 16. The order dated 19.07.1993 passed by the learned Trial Court expunging t he evidence of the defendants’ witnesses is not appealable under Order XLIII Rul e 1 of the CPC. The expunction of the evidence definitely has the affect on the decision of the case and, therefore, such an order can be put to challenge in an appeal that may be filed against the decree passed in the suit, which was done by the defendants. Even if the defendants participated in the suit after passing of such an order by the learned Trial Court it would disentitle the said defend ants to challenge such order in the Appellate Court, which is evident from the l anguage of Section 105 of the CPC. 17. As noticed above, the learned First Appellate Court has refused to go in to that aspect of the matter, on the ground that the defendants have participate d in the proceeding of the suit after passing of the order dated 19.07.1993. The said view of the learned First Appellate Court, in view of the provisions conta ined in Section 105(1) of the CPC is not correct in law. The learned First Appel late Court ought to have gone into the question relating to the defect or irregu larity in the order dated 19.07.1993, which was set up as a ground in the appeal filed by the defendants against the ultimate decree passed in Title Suit No.76/ 1985. 18. The learned First Appellate Court while deciding that no tenancy was cre ated in respect of the land in question in favour of the defendants, has also no t gone into the definitions of personal cultivation , rent and tenant as fined in sub-sections (10), (13) and (17) respectively of Section 3 of the 1971 Act. If the conduct on the part of the plaintiffs in handing over the possession of the land to the defendants for the purpose of cultivation and in return acce ptance of sometimes money, sometimes paddy, comes within the definition of rent and tenant under the Act, the defendant No.6 has to be held to be a tenant, provided the plaintiffs could prove that such cultivation by the defendant No.6 was personal cultivation within the meaning of Section 3(10) of the said Act. As discussed above, the said aspect of the matter has not been gone into by the learned First Appellate Court and consequently whether the defendant No.6 was an occupancy tenant or non-occupancy tenant within the meaning of 1971 Act has als o not been gone into. 19. In view of the aforesaid position, the judgment and decree dated 04.04.2 000 passed by the learned First Appellate Court in Title Appeal No.19/1993 is se t aside. The case is remanded to the learned First Appellate Court for deciding the Title Appeal afresh after hearing the concerned parties. The hearing of the appeal would, however, be confined to the present defendant Nos.6 and 7, as the defendant No.6 has only filed the appeal before this Court and the decree in res pect of defendant Nos.6 and 7 is inseverable as the plaintiffs claim that they a re jointly possessing the ’Ga’ schedule land and the other defendants though wer e appellants in the Title Appeal have accepted the judgment and decree passed by the learned First Appellate Court and they were possessing the different lands described in Schedules-’Ka’, ’Kha’ and ’Gha’ to ’Chha’. The hearing of the appea l would be relating to Schedule-Ga land only, as in respect of the land covered by other schedule the decree passed has attained finality. Since the suit was in stituted in the year 1985, the learned First Appellate Court is directed to deci de the appeal within 60 days from the date of receipt of the records. The Regist ry is directed to send down the records forthwith so as to reach the learned Fir st Appellate Court on or before 11.10.2010. The appellant/ defendant No.6 and th e defendant No.7 as well as the respondents/plaintiffs shall appear before the l earned First Appellate Court on 12.10.2010 for taking necessary order from the s aid Court. 20. The appeal is accordingly allowed to the extent as indicated above. No c ost.