NARENDRA NATH HAZARIKA Vs. LOKESWAR GOGOI & OTHERS

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed in Title Appeal No. 25/77 by the learned Assistant District Judge, Jorhat on 30.11.78 affirming those passed by the learned Munsiff, Sibsagar in Title Suit No.2/74. The plaintiff-appellant instituted Title Suit No.2/74 against the defendant-respondents for declaration of his right, title and interest over the suit land described in Schedule to the plaint and for khas possession thereof by evicting the principal defendant. The plaintiff's case was that he became the owner of the suit land by purchase thereof and that the principal defendants were allowed to cultivate the suit land as 'Adhiar' and they delivered 'Adhi' paddy till 1967. Thereafter, the defendants having stopped delivery of 'Adhi' paddy to him. The plaintiff filed Adhi Case No.6 of 1969-70 for recovery of arrear paddy and for eviction of the defendants from the suit land before the Adhi Conciliation Board. The principal defendants contested the case before the Adhi Conciliation Board clearly denying that they were cultivating the land as Adhiar and they repudiated the title of the plaintiff and claimed their ownership over the suit land. The Adhi. Co conciliation Board however, decided the case in favour of the plaintiff. Against the said decision of the Adhi Conciliation Board the principal defendants filed Adhi Misc. Appeal No. 35/71 in the Court of the learned Assistant District Judge. The learned Assistant District Judge allowed the appeal and set aside the order of the Adhi Conciliation Board by judgment and order dated 26.6.72. The plaintiff thereafter filed Title Suit No.2/74 in the Court of the learned Munsiff, Sibsagar for declaration of right, title and interest over the suit land and for khas possession thereof after evicting the defendants. The defendants contested the Title Suit No.2/74 by filing written statement. In the written statement the defendants denied the contention of the plaintiff that they had been possessing the suit land as 'Adhiar'. In the written statement they repudiated the title of the plaintiff over the suit land and asserted their title over the suit land. On the pleadings of the parties, number of issues were framed. The learned Munsiff after conclusion of the hearing and on appreciation of evidences on records, by judgment and decree dated 20.6.77 passed in Title Suit No.2/74 declared the plaintiff's right, title and interest over the suit land. However, by the said judgment decided the Issue No. 13 against the plaintiff rejecting the prayer for a decree for khas possession on the ground that as per pleadings of the plaintiff, the principal defendants having come to occupy the suit land as 'Adhiar' they became tenants under the Assam (Temporary Settled Areas) Tenancy Act, 1971 and could not be evicted from the suit land.

(2.) Feeling aggrieved by the decision of the learned Munsiff in respect of Issus No.13, namely - "Whether the plaintiff is entitled to khas possession as claimed - - against him, the plaintiff preferred Title Appeal No.25/77 in the Court of the learned Assistant District Judge, Jorhat. No appeal nor any cross-objection was filed by the defendants against the judgment and decree passed by the learned Munsiff deciding other issues in favour of the plaintiff. The learned Assistant District Judge by the impugned judgment and decree upheld the decision of the learned Munsiff as regards Issue No. 13. The plaintiff, thereafter, has approached this Court in this second appeal.

(3.) The only question needs to be decided in this appeal is whether the principal defendants who renounced the lease and claimed title over the suit land and denied and repudiated the title of the plaintiff before the Adhi Conciliation Board as well as in the Title Suit are still entitled to be regarded as tenant and to protection under the Assam (Temporary Settled Areas) Tenancy Act, 1971 after the plaintiffs right, title and interest bad been declared over the suit land. In Chapter V of the Transfer of Property Act in section 111 (g) (1) it is provided that a lease of immovable property is determined by forfeiture in case lessee renounces his character as such, by setting up a title in a third party or by claiming title in himself. However, section 117 of the T.P. Act provides that none of the provisions of Chapter V applies to lease for agricultural purpose except so far (State) Government by notification (published in Official Gazette) declares of all or any such provisions to be so applicable. In the instant case the suit land is admittedly leased out to the defendants to cultivate the land as Adhiar for agricultural purpose and there is nothing to show that the Government notification has made section 111 (2) (g) of the T.P.Act applicable to leases for agricultural purpose. The Honourable Supreme Court in the case of Md. Amir Khan Vs. Municipal Board etc, AIR 1965 SC 1923 has concurred the decision of the Privy Council in the case of Maharaja of Jaipur Vs. Rukmini (AIR 1919 PC I) wherein it has been laid down that the principles embodied in section 111 (2) (g) of the T.P.Act are equally applicable to tenancies to which provisions of T.P. Act does not apply on the ground that the same being in consonance with justice, equity and good conscience.