Afsana Bibi And Another vs P.K.Hassan Ali

Sabyasachi Bhattacharyya, J

The present second appeal is heard on the following substantial questions of law, formulated on February 27, 2019 by a Division Bench of this Circuit:-

"(i). Whether or not the Courts below erred in holding that Title suit No.59 of 2007 is not a suit filed under section 6 of the Specific Reliefs Act, 1963 and as such the limitation period of six months mentioned in such section will not apply?

(ii). Whether or not the learned First Appellate Court erred in law by misinterpreting and/or mis-reading the evidence on record and affirming the judgment and decree of the learned Trial Court?

(iii). Whether or not the learned First Appellate Court erred in law by affirming the judgment and decree of the learned Trial Court by failing to decide the legal issue as to the bar to the filing of suit in Civil court as laid down under section 204 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 and the Rules framed thereunder?"

Addressing the first and the third questions, which are somewhat inter-related, learned counsel for the appellant argues that the Appellate Court acted erred in law in partially affirming the decree of the Trial Court, since the Trial Court had no jurisdiction to take up the matter. Placing reliance on Regulation 204 of the Andaman & Nicobar Islands Land Revenue & Land Reforms Regulation, 1966 (hereinafter referred to as "the 1966 Regulation") no suit or other proceeding shall, unless otherwise expressly provided in the Regulation, lie or be instituted in any civil court with respect to any matter arising under and provided for by the Regulation.

It is next submitted that, since the proceeding for eviction of the appellant simpliciter fell within the purview of Regulation 161 of the 1966 Regulation, the bar to the jurisdiction of the Civil Court, as contemplated in Regulation 204 applies in full force. As such, the Tehsildar, and not the Civil Court, had power to take up for hearing and dispose of the matter.

Regulation 161 is quoted herein below:-

"161. (1) If after the commencement of this Regulation any tenant is disposed of any lands held by him otherwise than by process of law, he may within two years from the date of such dispossession, apply to the Tehsildar for his reinstatement in such land.

(2) On receipt of an application under sub-section [1], the Tehsildar shall, after making an enquiry into the respective claims of the parties, pass order on the application and when he orders the restoration of possession to the tenant, put him in possession of the land.

(3) The Tehsildar may, at any stage of the enquiry under sub-section 2, pass an interim order for delivery of possession of the land to the applicant, if he finds that the applicant was dispossessed by the opposite party within six months prior to the date of submission of the application under sub-section [1] and if possession is not delivered to the applicant, the Tehsildar shall cause the opposite party to be ejected.

(4) When an interim order has been passed under sub-section [3], the opposite party may be required by the Tehsildar, to execute a bond for such sum as he my be deem fit for abstaining from taking possession of the land until the final order is passed by him.

(5) If the person executing the bond under sub-section [4], is found to have entered into, or taken possession of the land in contravention of the bond, the Tahsildar, may forfeit the bond in whole or in part and may recover such amount from such person as an arrear of land revenue.

(6) If the order passed under sub-section 2 is in favour of the applicant, the Tahsildar shall also award a reasonable compensation to be paid to the applicant by the opposite party:

Provided that the amount of compensation shall not exceed ten times the land revenue payable in respect of the land for each year's occupation.

(7) Any compensation awarded under this section shall be recoverable as an arrear or land revenue."

Learned counsel submits that, although the suit also had the trappings of a proceeding under Section 6 of the Specific Relief Act, in view of Regulation 161 read with Regulation 240, only the Tehsildar had jurisdiction under Regulation 161 to decide the matter.

In this context, learned counsel for the appellant cites Regulation 2(13) which defines "land" to mean a portion of the earth's surface whether or not under water and includes all things attached to, or permanently fastened to anything attached to, such portion.

The suit property, being a flat in a building constructed on the suit land, is submitted to fall within the purview of "things attached to" land.

Arguing on substantial question of law No. (ii), learned counsel for the appellant submits that the first Appellate Court misread the oral evidence on record as well as the documentary evidence while affirming the Trial Court's decree as far as the status of the present appellants are concerned. The Trial Court had granted an eviction decree against all three defendants, but the first Appellate Court reversed the decision of eviction with regard to the defendant No. 3 but sustained the same in respect of the defendant No. 1 and 2, being the present appellants.

It is argued that the first Appellate Court relied upon exhibit-2 (the preliminary decree passed in connection with a partition suit, being Title Suit No. 06 of 2005) and exhibits 53 and 54 (final order and decree passed in the partition suit) as well as exhibit 47 (Survey Commissioner's report) to come to a finding that the suit property was exclusively allotted in favour of the plaintiffs/respondent. It is submitted verbally, as well as on the basis of the written notes of arguments filed by the appellants today, that there was nothing in the said exhibits to infer that the subject suit flat was ever allotted in favour of the plaintiff/respondent.

Learned counsel for the appellant further argues that the statements of the DW-1 (appellant No. 1) in her cross-examination as witness, as to her having found, while entering her room, that the door of the said room was locked by two locks, that she could not submit any document to show that her father had handed over possession of the said rooms, and that out of the two locks, one lock belonged to her father (defendant No. 3) and another to the plaintiff and that the appellant No. 1 broke both the locks and entered into the room and used to stay in a rented house at Aberdeen Bazaar previously, could not be taken in isolation to hold that the present appellants were trespassers in the scheduled property, while ignoring the other parts of the evidence. It is argued that the courts below overlooked the statement of DW-1 in her cross-examination that she had possession over the suit flat.

It is further argued on behalf of the appellant that it is well-settled that stray sentences in the cross-examination cannot be taken in isolation of the entire material evidence before the Court and the first Appellate Court acted de hors the law in misappreciating the oral evidence of the DW-1 and DW-3 and misinterpreting the documentary evidence, read in their entirety.

Learned counsel for the appellant cites a judgment reported at AIR 1988 SC 1626 [ P. Rami Reddy and others vs. State of Andhra Pradesh and another] wherein it was held, in paragraphs No. 21 and 22 thereof, that the expression 'land', in its legal sense, is a comprehensive expression which is wide enough to include structures, if any, raised thereon. The said expression was also held to include standing tress, buildings, fences, stones and waters as well as the earth we stand on.

In reply, learned counsel for the plaintiff/respondent cites a judgment reported at AIR 1976 MP 160 [Ramagopal Kanhaiyalal vs. Chetu Batte], wherein a full Bench of the Gwalior Bench of the Madhya Pradesh High Court held inter alia that a suit by a Bhumiswami for declaration of title and possession was maintainable before a Civil Court and not before the Revenue Court as per the local revenue code.

It is thus argued that, at the juncture when the suit was instituted, only a preliminary decree had been passed in the previous partition suit and the plaintiff/respondent was merely a co-owner in respect of the property. As such, in view of the defence taken by the defendants in their written statement, that the defendant No. 3, the father of the defendant Nos. 1 and 2/appellants, had inducted the appellants as licensees and that the appellant had constructed the suit flat with their own money, the ownership of the suit property had to be decided for adjudication of the relief of recovery of possession sought by the respondent.

Hence, in view of such civil dispute as to ownership being raised by the defendant themselves, an issue was framed thereon as well, which was entirely beyond the jurisdiction of the Tehsildar to adjudicate. Hence, the suit, although filed for recovery of possession, attained the character of a civil dispute regarding ownership and rights flowing therefrom as well, conferring jurisdiction on the Civil Court exclusively, and not the Tehsildar under Regulation 161 of the 1966 Regulation, to decide the matter.

It is next argued by the respondent that a constructed building could never be 'land' as envisaged in Regulation 2(13) of the 1966 Regulation. The definition of land in the said Regulation categorically defined land as a portion of the earth's surface and included all things attached thereto, or permanently fastened to any such attachment. The term "attachment" could not be raised to the level of a full-fledged building standing on the land. Since the jurisdiction of the Tehsildar under Regulation 161 is restricted to reinstatement on lands, it was beyond the ambit of Regulation 161 for the Tehsildar to decide the present dispute relating to a flat constructed on a building on the suit land.

Learned counsel for the plaintiff/respondent further argues that Regulation 2(12) defines "improvement" in relation to a holding to mean any work which materially adds to the value of the holding and which is suitable thereto and consistent with the purpose for which it is held and included the erection of buildings as well.

Regulation 2(11) defines a "holding" to be a parcel of land separately assessed to land revenue.

As such, it is argued that a building comes within the contemplation of Regulation 2 (12) and is not covered by Regulation 2(13).

Learned counsel for the respondent argues that the Civil Court was well within its jurisdiction to decide the matter. In any event, the provision of Section 6 of the Specific Relief Act does not apply, since the question of title was also involved in deciding the suit.

On the substantial question of law No. (ii), learned counsel for the respondent argues that this Court ought not to interfere with the concurrent findings of fact arrived at by both the Courts below and as such the said question of law ought to be decided against the appellant. It is further argued that, at no point of time had the present appellants taken the stand that they are owners of the property. Rather, the appellants claimed to have constructed the suit flat and that they were inducted by the defendant No. 3, their father as permissive occupiers. Hence, the appeal, as per learned counsel for the respondent, ought to be dismissed.

Upon hearing both sides, for the ends of convenience, the substantial questions of laws Nos. (i) and (iii) are taken up together for adjudication first.

It is evident from the issues framed by the Trial Court, that one of the issues, being issue No.4, was, "Is the plaintiff sole owner of the subject property?" Both sides accepted such issue, led evidence thereon and argued on the same as well and thus, were well aware thereof.

Taking the conspectus of the suit in its entire prospective, the question of title was thus required to be adjudicated while deciding the suit. As such, it was correctly held by the Courts below that the plaintiff also claimed title of the schedule property, as the basis of his relief for recovery of possession. The declaration as to exclusive title of the plaintiff on the basis of the partition decrees was thus implicit in the prayer for recovery of possession and the suit has to be seen in such light.

There is substance in the argument of the respondent that, at the juncture when the suit was filed, the respondent was merely a co-owner of the property, in view of only a preliminary decree having been passed in the partition suit. As such, the eviction sought in respect of at least the defendant no. 3 was dependent on adjudication of the respective titles of the plaintiff/respondent and the defendants.

However, during pendency of the suit, the partition suit was decreed finally, thereby allocating the suit flat solely to the plaintiff/ respondent, which, in conjunction with the issue of title having been raised by the defendants, lent an ingredient of adjudication of title, as contemplated under Section 5 of the Specific Relief Act, read with Section 9 of the Code of Civil Procedure.

As such, the adjudication of the question of title of the parties became a necessary pre-requisite for deciding the claim of recovery of possession. Hence, the domain of the Civil Court was squarely attracted, as the Tehsildar, within the periphery of Regulation 161 of the 1966 Regulation, did not have the power to adjudicate title, which is all the more buttressed by the fact that Regulation 86 provides that the Civil Courts shall have jurisdiction to decide any dispute to which the Government is not a party relating to any right which is recorded in the Records of Rights.

That apart, the definition of "land", as provided in Regulation 2 (13) of the 1966 Regulation, defines it to mean a portion of the Earth's surface, whether or not under water, thereby categorically meaning land in its restricted sense. The subsequent addition of the expression, "all things attached to, or permanently fastened to anything attached to, such portion", only qualifies the character of land as a portion of the Earth's surface, which, by no stretch of imagination, can be said to be a flat or a building constructed on the land.

The expression "attached to" renders a superficial and temporary character to the attachment, whereas a building is not merely "attached" to a land but is embedded in or built/constructed on the land.

As such the respondent is justified in arguing that, at best, Regulation 2 (12), which defines "improvement", could include within its scope the construction of a building on the land. However, the expression "all things attached to" land cannot contemplate a building standing thereon.

Moreover, the objects of the Regulation have been expressed in the Regulation of 1966 itself to be, to consolidate and amend the law relating to land revenue, powers of revenue officers, rights and liabilities of holders of land, land tenures and other matters relating to land.

Even a cursory perusal of the entire provisions of the Regulation indicates that the Regulation of 1966 revolves around land and land revenue as we understand in its common parlance and a question of title has been left for decision to the Civil Court. The limited powers of the Tehsildar within Regulation 161, in any event, does not extend to buildings or flats constructed on a piece of land. As such, the bar stipulated in Regulation 204, which necessarily pertains to matters arising under and provided for by the Regulation of 1966, cannot debar a civil suit in respect of the disputes involved in the present lis.

In such view of the matter, substantial question nos. (i) and (iii) are decided against the appellants and in favour of the respondent by holding that the Civil Court had jurisdiction to decide the matter irrespective of the bar under Regulation 204 of the 1966 Regulation as well as the provisions of Section 6 of the Specific Relief Act, 1963, which were not applicable to the present case, as adjudication of title was necessarily implicit in the relief of recovery of possession claimed in the suit.

As regards substantial question no. (ii), both the Courts below concurrently found that the respondent is the exclusive owner of the suit property and consequently passed a decree of recovery of possession.

Even if the arguments, as to stray statements from the cross-examination of DW 1 having been chosen by the Courts below, is taken into consideration, even the best case of the appellant was mutually destructive. In the same breath, the appellants claimed that they were inducted in permissive occupation by the defendant No. 3, who was initially a co-owner of the property, on the one hand, and that the appellants constructed the suit flat, on the other.

Even if it is assumed that the appellants had constructed the flat by themselves (which is not the case here, since no evidence in support thereof was adduced by the appellants), such construction, in the absence of permission from all co-owners, would not create any right, title or interest of the appellants.

That apart, in view of the admitted position that the appellants were mere licensees under the defendant No.3 and in view of the legal position that the respondent became the exclusive owner of the suit flat in exclusion of the defendant No.3 upon the final decree of partition being passed, the evidence relied on by the appellants becomes academic and irrelevant for the purpose of adjudication of the matter.

As such, there is no occasion for this Court, sitting in second appeal, to upset the concurrent findings of both the Courts below on facts.

Hence, substantial question No. (ii) is also decided in favour of the respondent and against the appellants.

In view of the aforesaid findings, there is no merit in the second appeal.

Hence, it is

ORDERED

that SA No. 003 of 2019 is dismissed on contest, thereby affirming the order of the first Appellate Court. However, it is made clear that this judgement and decree will not prevent the plaintiff/respondent from obtaining possession pursuant to the final decree of partition in respect of the allocation of the respondent, solely and exclusively.

There will be no order as to costs.

Let a formal decree be drawn up on the basis of the ordering portion of this judgement.

Urgent certified copies of this judgment and the consequential decree, if applied for, be supplied to the parties upon compliance of usual formalities.

(Sabyasachi Bhattacharyya, J.)

IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction

Circuit Bench at Port Blair

Appeal from Appellate Decree being SA No. 003 of 2019.

Appeal preferred on the 26th day February, 2019 from the judgment and decree of Sri Raju Mukherjee, Learned Additional District Judge, Andaman & Nicobar Islands, Port Blair dated 31.12.2018 passed in Title Appeal No. 003 of 2017 and thereby modified the judgment and decree dated 07.09.2015 passed by Sri Raja Mukherjee, Learned Civil Judge Junior Division- 1, Port Blair in Title Suit No. 059 of 2007.

Smt Afsana Bibi,

Wife of Shri Haider Ali, Resident of Prem Nagar Village,

Under Port Tehsil, District of South Andaman.

Shri Haider Ali, Son of Late Ali,

Resident of Prem Nagar Village,

Under Port Blair Tehsil, District of South Andaman

... Plaintiff/Appellant

- Versus -

Shri P. K. Hassan Ali,

Son of Late Kunjamutti Hajee, Resident of Prem Nagar Village, Under Port Blair Tehsil,

District of South Andaman ...

Defendant/Respondent

The Appeal is Valued at Rs. 46,000/- (Rupees Forty Six Thousand only).

Upon the hearing of the appeal in a Single Bench before

The Hon'ble Justice Sabyasachi Bhattacharyya, one of the Judges of this Court,

Heard and the judgment delivered on the 23rd day of December, 2019.

It is ordered and decreed that SA No. 003 of 2019 is dismissed on contest, thereby affirming the order of the First Appellate Court. However, it is made clear that this judgment and decree will not prevent the plaintiff/respondent from obtaining possession pursuant to the final decree of partition in respect of the allocation of the respondent, solely and exclusively.

There will be no order as to costs.

(Dated: This Twenty third day of December, Two Thousand Nineteen.);