RSA 161/2000 BEFORE HON’BLE MR. JUSTICE BP KATAKEY This appeal by the predecessor-in-interest of the present appellants nam ely; Samsuddin is directed against the judgment and decree dated 3.6.2000 passed by the learned Civil Judge (Senior Division) Barpeta (now Civil Judge) in Title Appeal 27/1997 allowing the appeal and dismissing the suit of the plaintiff and decreeing the counter claim of the defendant, by setting aside the judgment and decree dated 28.5.1997 passed by the learned Civil Judge (Junior Division), Bar peta (now Munsiff) in Title Suit No. 7/1992 whereby and whereunder the plaintiff ’s suit was decreed and the defendant’s counter claim was rejected. 2. The predecessor-in-interest of the present appellants Samsuddin instituted Title Suit No. 7/1992 in the court of the learned Civil Judge (Junior Division) (now Munsiff) for declaration of right, title and interest and for co nfirmation of possession in respect of land measuring 2 bighas 1 katha 16 lechas , covered by Dag Nos. 102, 103 and 104 of KP patta No. 122 of village Katajhar u nder Gobardhana mouza in the district of Barpeta, Assam, contending inter alia t hat the land measuring 7 bighas 3 kathas 13 lechas covered by the aforesaid dags originally belonged to one Ayaton Nessa, in whose favour the annual lease was g ranted by the Govt. of Assam and on 11.3.1943 by an unregistered deed of sale (E xt. X) for a consideration of Rs. 200/- sold the land measuring 2 bighas 1 katha s 16 lechas out of the said land to Samsuddin, the original plaintiff, who after such purchase took over possession. It has further been contended in the plaint that though initially an eviction proceeding under Section 165 of Chapter X of the Assam Land and Revenue Regulation was initiated against the plaintiff for oc cupying the suit land which falls within the tribal belt, the said proceeding wa s dropped by the Deputy Commissioner having found that the plaintiff is possessi ng the land since before creation of the tribal belt. The further contention of the plaintiff in the plaint is that on 25.11.1991 the defendant had threatened t he plaintiff to dispossess him from the suit land, which necessitated filing of the suit for declaration of right, title and interest and confirmation of posses sion. 3. The respondent who is the defendant in the suit contested the cl aim of the plaintiff by filing written statement. A counter claim was also filed along with the written statement by the defendant claiming declaration of right , title and interest and recovery of khas possession. In the written statement-c um-counter claim the defendant while denying the claim of the plaintiff that the annual lease was initially issued in the name of Ayaton Nessa, has contended th at the annual lease was initially issued in the name of Dali Ram Boro, the broth er of the defendant and the said annual patta was subsequently converted to peri odic lease and thereafter on 28.5.1981 Dali Ram Boro sold the land measuring 7 b ighas 3 kathas 13 lechas comprised in Dag Nos. 102, 103 and 104 of KP patta No. 122 by a registered deed of sale. The defendant further contends in the said wri tten statement-cum-counter claim that while he was possessing the land after suc h transfer, the plaintiff forcibly dispossessed him from the suit land on 15.1.1 986 and also unsuccessfully filed an application for mutating the plaintiff’s na me in the Revenue Record. 4. The plaintiff filed the written statement against the counter cl aim filed by the defendant contending inter alia that there is no cause of actio n for filing the counter claim and that the counter claim is not maintainable. T he plaintiff also denied the case of the defendant as projected in the counter c laim. 5. The learned trial court on the basis of the pleadings of the par ties framed the following issues for consideration and decision: - 1.Whether there is cause of action for the suit? 1. Whether the suit is not maintainable in present form? 2. Whether the suit is not properly stamp? 3. Whether the plaintiff has right, title, interest and possession over the suit land? 4. Whether the defendant entitled to get a decree for khas possession in re spect of the suit land? 5. Whether the defendant is entitled to get compensatory cost of Rs. 1000/- u/s 35(A) of CPC? 6. To what other relief or relief, if any, the parties are entitled? Additional Issues 7. Whether the defendant has got right, title, interest and possession over the suit land? 8. Whether the plaintiff dispossessed the defendant from the suit land on 1 5.1.86 and whether the cause of action for the counter claim arose on that day? 6. The plaintiff in support of his claim examined three witnesses i ncluding the plaintiff himself as PW 2 and proved four documents namely; the cer tified copy of the draft chitta pertaining to the year 1958 in respect of Dag No s. 579/793/102 (Ext. 1); the certified copy of the draft chitta pertaining to th e year 1958 in respect of dag Nos. 579/793/103 (Ext. 2); the notice dated 23.9.1 988 issued by the Deputy Commissioner under Chapter X of the Assam Land and Reve nue Regulation, 1886 (Ext. 3) and the order dated 23.9.1988 passed by the Deputy Commissioner in the eviction/ejectment proceeding initiated under Chapter X of the said Regulation (Ext. 4). 7. The defendant also examined four witnesses including himself as DW 1 and also proved four documents namely; the registered deed of sale dated 28 .5.1981 executed by Dali Ram Boro in favour of the defendant (Ext. Ka); the cert ified copy of the order dated 16.10.1989 passed in Mutation proceeding No. 375/1 988-89 initiated at the instance of the defendant (Ext. kha); the land revenue p aying receipts showing payment of land revenue by the defendant in respect of th e suit land (Ext. Ga 1 - Ga 7); the annual patta issued in the name of Dali Ram Boro in respect of the land measuring 7 bighas 3 kathas 13 lechas, part of which is the suit land (Ext. Gha) and the certified copy of the Jamabandi issued by t he Revenue authority containing the order of conversion of annual lease to a per iodic one in the name of Dali Ram Boro (Ext. Ungo). 8. The learned trial court on the basis of the evidences on record decreed the suit of the plaintiff by holding that the plaintiff has acquired the right, title and interest over the suit land in view of Ext. 1 and 2 i.e. the c ertified copies of the draft chittas and confirmed the possession. 9. Being aggrieved, the defendant preferred Title Appeal No. 8/1995 in the court of the learned Civil Judge (Senior Division), Barpeta, which was a llowed vide judgment and decree dated 30.5.1996 by setting aside the judgment an d decree dated 10.3.1995 passed by the learned trial court and remanding the sui t to the learned trial court for fresh decision. The case was, thereafter, heard and decided by the learned court vide judgment and decree dated 28.5.1997 by de creeing the suit of the plaintiff and dismissing the counter claim filed by the defendant. 10. The defendant challenged the said judgment and decree dated 28.5 .1997 passed by the learned trial court in Title Suit 7/1992 in the court of the Civil Judge (senior Division), Barpeta in Title Appeal No. 27/1997 which has be en allowed by the learned first appellate court vide judgment and decree dated 3 .6.2000 by dismissing the suit of the plaintiff and decreeing the counter claim of the defendant and thereby reversing the judgment and decree passed by the lea rned trial court. During pendency of the Title Appeal No. 27/1997 the original p laintiff Samsuddin died and in his place the appellants were substituted. Hence the present appeal. 11. The appeal was admitted for hearing vide order dated 2.4.2001 on the following substantial questions of law: - 1. Whether the Annual Patta in respect of the suit land can be converted into P eriodic Patta in the name of other persons without notice to the annual pattadar ? 2. Whether the unregistered sale deed (i.e. Ext. X) is not admissible in evidenc e for collateral purposes to prove possession of the plaintiff over the suit lan d? 3. Whether the learned lower Appellate Court was right in decreeing the counter claim of the defendant without taking into consideration the Ext. ’Ungo’ (Jamaba ndi) in respect of the suit land and thereby the title and possession of the def endant over the suit land? 12. I have heard Mr. N Dhar, learned counsel for the appellants/plai ntiffs and Mr. RK Jain, learned counsel appearing for the respondent/defendant. 13. Mr. Dhar, learned counsel for the appellants/plaintiffs referrin g to the first substantial question of law formulated by the aforesaid order dat ed 2.4.2001 has submitted that under the provision of the Assam Land and Revenue Regulation, 1986 for conversion of the annual lease to a periodic lease in the name of annual patta holder no notice is required to be issued. It has however b een submitted that if the right to use the annual patta is transferred to any ot her person by the annual patta holder such transferee shall have the right to us e the property till the same is converted to periodic lease in the name of the a nnual patta holder and thereafter the transferee of the annual patta would cease to have any right over the land in question. 14. Relating to the second substantial question of law it has been s ubmitted by Mr. Dhar that though the unregistered deed of sale for a considerati on of more than Rs. 100/- cannot confer any right on the purchaser in respect of any land, such document i.e. the unregistered deed of sale (Ext. X) can be cons idered for collateral purpose i.e. to prove the possession of the land in questi on. In the instant case it is evident from Ext. X that the original plaintiff pu rchased the land from Ayaton Nessa in the year 1943, and since then the original plaintiff was in possession and therefore, the trial court below ought to have decreed the possessory right of the plaintiff over the suit land though may not decree the title on the basis of the unregistered deed of sale (Ext. X). 15. The learned counsel further submits that by Ext. X document the case of the defendant that the plaintiff disposed him on 15.1.1986 has been beli ed which part of the evidence has not been taken into consideration by the learn ed first appellate court while recording the finding that the plaintiff disposse ssed the defendant on 15.1.1986. It has further been submitted that the learned trial court though has disbelieved the story of the defendant that he was dispos sessed from the suit land on 15.1.1986 upon consideration of the evidence of DW 1 and 2, the learned first appellate court did not at all consider the evidence of DW 1 and 2 in the matter of possession of the land by the plaintiff though th e first appellate court being the final court on fact is required to discuss all the evidence on record both oral and documentary, more so when the first appell ate court reversed the finding of the learned trail court. 16. With regard to the third substantial question of law formulated Mr. Dhar has submitted that it being the settled position of law that the entry in the revenue record does not confer any title, the learned first appellate cou rt ought not to have decreed the counter claim of the defendant by decreeing his right, title and interest on the basis of the jamabandi (Ext. Ungo). 17. Mr. Jain, learned counsel for the respondent/defendant on the ot her hand supporting the judgment and decree passed by the learned first appellat e court has submitted that it is evident from the materials available on record and as discussed by the learned first appellate court that though the plaintiff claimed that annual patta was issued in the name of Ayaton Nessa, he could not p rove the same and on the other hand the defendant by proving the annual patta (E xt. Gha) could prove that the same in respect of the land measuring 7 bighas 3 k athas 13 lechas, part of which is the suit land, was issued in the name of Dali Ram Boro, which was subsequently converted to periodic patta as is evident from the jamabandi (Ext. Ungo), which was admitted into evidence without any objectio n from the plaintiff’s side. 18. Mr. Jain further submits that since the very basis of the claim of the plaintiff for declaration of right, title and interest based on the plea that the annual patta was initially issued in the name of Ayaton Nessa, he could not prove the same and as such the plaintiff is not entitled to the decree decl aring the right, title and interest and accordingly the learned first appellate court has rightly dismissed the suit of the plaintiff in that respect, more so w hen by Ext. X the unregistered deed no sale can be effected in view of Section 5 4 of the Transfer of Property Act read with the provisions of the Registration A ct. 19. It has further been submitted by the learned counsel for the res pondent/defendant that since the defendant could establish his title by proving the sale deed (Ext. Ka) as well as the annual patta issued in the name of his ve ndor (Ext. Gha) and conversion of such annual patta to periodic one (Ext. Ungo), and the claim of the defendant in the counter claim being for declaration of ri ght, title and interest based on title, the date of dispossession of the defenda nt by the plaintiff is not material as under Article 65 of the Limitation Act, 1 963 the suit for possession immovable property or interest therein based on titl e can be instituted within 12 years from the date when the possession of the def endant become adverse to the plaintiff and in the instant case it is not the cas e of the plaintiff in the written statement filed against the counter claim of t he defendant that he has acquired the prescriptive title by adverse possession. 20. 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. 21. It appears from the judgment and decree passed by the learned tr ial court that the suit of the plaintiff was decreed based on the certified copy of the draft chitta. No title can be decreed on the basis of the draft chitta. Though the plaintiff claimed that the suit land originally belonged to Ayaton Ne ssa, who sold the same by unregistered deed of sale (Ext. X) on 11.3.1943 to him , the plaintiff could not prove that the annual lease was issued in favour of Ay aton Nessa and she had the right to transfer. On the other hand the defendant by proving the annual patta (Ext. Gha) could demonstrate that the annual patta in respect of the said land was issued in favour of Dali Ram Boro who has subsequen tly by Ext. Ka transferred the entire land to the defendant. The defendant also could prove the fact of conversion of said annual lease to a periodic one in fav our of Dali Ram Boro by proving the Jamabandi (Ext. Ungo), prior to such transfe r by Ext. Ka to the defendant. Ext. Unga i.e. Jamabandi was admitted into eviden ce without there being any objection from the side of the plaintiff and the plai ntiff has also not challenged the contents of the Ext. Ungo i.e. the jamabandi. 22. It thus appears that the annual patta was issued in the name of Dali Ram Boro and subsequently converted to periodic one in his name. The unregi stered deed of sale which is the basis for claiming the title by the plaintiff, could not confer any title on him on two grounds namely; -i) he could not prove that Ayaton Nessa was the annual lease holder and - ii) no title can be conferre d by a deed which is not registered in respect of the land the value of which is more than Rs. 100/. 23. An unregistered deed of sale though cannot confer any title, the same, however, can be considered for collateral purposes i.e. to demonstrate th e period of possession of the person after transfer. In the case in hand accordi ng to the plaintiff after the purchase of the land vide Ext. X he has been in po ssession of the said land since 11.3.1943. It is not the case of the plaintiff i n their written statement against the counter claim that he has been possessing the land adverse to the interest of the defendant i.e. the true owner by denounc ing his title. That being the position whether the defendant was in possession s ince 1.9.1943 or he came to possess the suit land on 1.5.1986 is not material. H ence non discussion of the evidence of DW 1 and 2 on the possession of the defen dant over the suit land is also not material and will have no effect on the deci sion of the learned first appellate court since the claim of the defendant in th e counter claim is for possession based on title. 24. In view of the aforesaid discussions, I am of the view that the learned first appellate court has rightly dismissed the suit of the plaintiff an d decreed the counter claim of the defendant. 25. The appeal is, therefore, dismissed. No cost.