Gauhati High Court
RSA/115/2014 on 15 July, 2025
GAHC010123772014
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
RSA No. 115/2014.
1. Sri Gobinda Kalita,
On his death, his legal heirs,
1(a) Sri Moni Ram Kalita (son),
1(b) Sri Dwipen Kalita (son),
1(c) Smti. Sumitra Saikia @ Kalita (daughter),
1(d) Smti. Ranu Kalita (daughter).
2. Sri Prafulla Kalita,
S/o Late Jagat Kalita,
Vill. - Pub-Sitara,
Mouza - Panduri,
P.S. - Rangia,
Dist. - Kamrup (R) Assam,
...... Appellants.
-Versus-
Sri Sarat Ch. Kalita,
S/o Late Aribinda Kalita,
R/o Pub-Sitara,
Mouza - Panduri,
P.S. - Rangia,
Dist. - Kamrup (R) Assam.
...... Respondent.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the appellants :- Mr. B.K. Bhagawati.
Advocate for the respondent :- Mr. D. Choudhury.
Page 1 of 18
Date of Hearing :- 01.05.2025.
Date of Judgment & Order :- 15.07.2025.
JUDGEMENT & ORDER (CAV)
Heard Mr. B.K. Bhagawati, learned counsel for the appellants
and Mr. D. Choudhury, learned counsel for the respondent.
2. In this appeal, under Order 42, read with Section 100 of the
Code of Civil Procedure (CPC hereinafter), the appellants have
challenged the judgment dated 12.08.2013, passed by the learned
Civil Judge No. 3, Kamrup, Guwahati (first appellate court
hereinafter), in Title Appeal No. 10/2010, whereby the judgment and
decree dated 15.12.2009, passed by the learned Munsiff, Rangia
(trial court hereinafter), in Title Suit No. 21/2007, was upheld.
2.1. It is to be noted here that vide judgment and decree dated
15.12.2009, the learned trial court, had decreed the suit declaring
right, title and interest in favour of the plaintiffs/respondent herein,
over the suit land and khas possession of the same and also directed
that the khas possession of the land to be handed over the
plaintiffs/respondent herein.
3. For the sake of convenience and also to avoid confusion, the
parties herein this appeal, are referred to, in the same status, as
they appeared in the title suit.
Background Facts:-
4. The background facts, leading to filing of the present appeal,
are adumbrated herein below:-
Page 2 of 18
“The plaintiffs had instituted a title suit, being Title Suit No.
21/2007, for declaration of right, title and interest over the
suit land, described in the schedule of the plaint, which was
their ancestral property. The suit land was originally owned
and possessed by Late Lalit Ram Kalita, who was the father-
in-law of plaintiff No. 1 and grandfather of plaintiff No. 2 by
virtue of purchase in the year 1931 and at the relevant time,
it‟s Patta No. was 3 and the Dag No. was 313 and after
settlement, the Patta number was converted to 12 and the
Dag number was converted to 249.
After the death of Lalit Ram Kalita, his son, Arabinda
Kalita, the predecessor-in-interest of the plaintiffs, also
possessed the land by cultivating and paying land revenue
regularly.
After the death of Arbinda Kalita, till 2000, the plaintiffs
possessed the suit land by cultivating the same. Thereafter,
in the year 2001, the plaintiffs handed over the land to the
main defendants to cultivate the land as their tenant (Adhi).
Accordingly, the defendants cultivated the land and gave the
legitimate share of the crops to the plaintiffs till 2003.
Thereafter, in the year 2004, the main defendants grabbed
the entire crops of the suit land. Then, on 20.04.2005, the
plaintiffs told the defendants not to enter into the suit land
and thereafter, the plaintiffs started to cultivate in the same.
Thereafter, on 29.06.2005, when the plaintiffs entered into
the suit land for cultivating, the defendants ousted thePage 3 of 18
plaintiffs from the suit land and dispossessed the plaintiffs
from the same.
Then, the plaintiffs had instituted one Misc. Case No.
85M/2005, under Section 145 of the Criminal Procedure
Code, before the Executive Magistrate, Rangia. But, the
same failed to yield any result. Then, being left with no other
option, the plaintiffs instituted the aforementioned suit with
the prayer mentioned herein above.
Thereafter, the defendants contested the suit by filing
written statement, wherein defendant No. 1 had taken a plea
that he had purchased the suit land, vide Sale Deed No.
3852/1968 and since 15.04.1970, he had the mutation over
the suit land and that the plaintiffs had the knowledge about
the registered sale deed, but, they had not prayed for
cancellation of the same and as such, the suit is liable to be
dismissed. Another stand taken by them is that the
defendants were Adhiars of the suit land and according to
Assam (Temporarily Settled Area) Tenancy Act, 1971 (1971
Act hereinafter), the Adhiars are protected from ejectment
and as such, the plaintiffs can only file a rent suit under the
said Act against the defendants. During the settlement of the
1923-28, the suit patta belonged to N.K.9 and the same was
transformed into N.K.12 and during the settlement operation
of 1957-64, the dag number of the suit land was transformed
from 347 to 249 of N.K.12 and the total dag contains 17
Bighas, 19 Lechas. During the course of the suit, Late Lalit
Kalita acquired 3 Bighas of land of patta as N.K. Patta No. 9Page 4 of 18
as per the Jamabandi and therefore, heirs of Late Lalit Kalita
acquired only land of 3 Bighas.
It is also stated that the plaintiffs had repeatedly filed
numbers of mutation cases over the suit land, and chitha
mutation of the suit land is suspended at present over the
suit land and the plaintiffs have failed to give the proper
boundaries of the suit land and that the defendants are
paying land revenue for the suit land since 1969 and
therefore, the plaintiffs have no title or possession over the
suit land.
Thereafter, the learned trial court, upon the
aforementioned pleadings of the parties had framed
following issues :-
“(i) Whether this suit is maintainable in its
present form?
(ii) Whether this suit is bad for non-joinder
of necessary parties?
(iii) Whether the plaintiff has right, title
and interest over the suit land?
(iv) Whether the plaintiff is entitled to the
releifs as claimed for?”
Thereafter, discussing the evidence, so adduced by both
the parties, and also considering the submissions of learned
counsel for both the parties, the learned trial court, vide
judgment and decree dated 15.12.2009, decreed the suit
declaring right, title and interest in favour of the plaintiffs
over the suit land and also for recovery of khas possession.
Page 5 of 18
Being aggrieved, the defendants had filed an appeal,
being Title Appeal No. 10/2010, before the learned first
appellate court. Thereafter, the learned first appellate court
had formulated following points for determination:-
“(i) As to whether the decision of the
learned court below, on issue No. 1, in
the impugned Judgment and Decree has
been arrived at erroneously without
appreciating the material evidence on
record and is not sustainable in law?
(ii) As to whether the decision of the
learned court below, on issue No. 2, in
the impugned Judgment and Decree has
been arrived at erroneously without
appreciating the material evidence on
record and is not sustainable in law?
and
(iii) As to whether the decision of the
learned court below, on issue No. 3, in
the impugned and Decree has been arrived
at erroneously, without appreciating the
material evidence on record and is not
sustainable in law?
Thereafter, the learned first appellate court considering
the record of the learned trial court and hearing learned
counsel for both the parties, found no merit in the appeal
and dismissed the same and thereby, upheld the judgment
and decree, so passed by the learned trial court in Title Suit
No. 21/2007.”
5. Being aggrieved, the defendants approached this court by filing
the present regular second appeal under Order 42 read with Section
Page 6 of 18
100 of the CPC, which was admitted by this court, vide order dated
20.08.2014, on the following substantial questions of law:-
“(i) Whether the suit of the plaintiff for
eviction of defendants is barred under
Section 54(2) of the Assam (Temporarily
Settled Areas) Tenancy Act, 1971?
(ii) Whether a suit for eviction against the
tenant/defendant could be filed on the
ground of default in payment of rent without
filing a suit, under Section 34 of the Assam
(Temporarily Settled Areas) Tenancy Act,
1971?”
Submissions:-
6. Mr. Bhagawati, learned counsel for the appellants/defendants
submits that the learned courts below have not framed any issues in
respect of the tenancy, under Sections 54(2) and 51 of the 1971 Act
and also under Section 34 of the 1971 Act, though there was
pleadings of the parties and evidence of the plaintiffs to suggest that
the appellants/defendants were tenants under them. Mr. Bhagawati
further submits that no notice was issued to the defendants and no
rent suit was instituted as required under Section 34 of the 1971 Act.
Mr. Bhagawati also submits that the case ought to have been filed
under the 1971 Act and the defendants cannot be ejected from the
suit land by filing title suit. Further submission of Mr. Bhagawati is
that the plaintiff has to establish its own case and it cannot depend
upon weakness of the defendant‟s case. Also Mr. Bhagawati submits
that the substantial questions of laws, as framed at the time of
admission of the appeal, are involved and under the given facts and
Page 7 of 18
circumstances, the same have to be answered in affirmative and
under such circumstances, it is contended to allow this appeal.
6.1. Mr. Bhagawati, in support of his submission, has referred to
following decisions:-
(i) Union of India vs. Vasavi Cooperative Housing
Society Limited and Others, reported in (2014) 2
SCC 269;
(ii) Smti. Debbarma (dead) through Legal
Representatives vs. Prabha Ranjan Debbarma and
Others, reported in 2023 0 Supreme (SC) 9/AIR 2023
SC 379; and
(iii) Nagar Palika Jind vs. Jagat Singh, reported in
(1995) 3 SCC 426.
7. Per-contra, Mr. Choudhury, learned counsel for the
respondent/plaintiff submits that the appellants/defendants have
taken two contrary stands, in the title suit before the learned trial
court and also before the learned first appellate court. Mr.
Choudhury further submits that on one hand they had taken a stand
that they had purchased the suit land and on the other side they had
stated that they are the occupancy tenants under the plaintiffs. Mr.
Choudhury further submits that in the impugned judgment, the
learned first appellate court, in paragraph No. 11, had clearly
decided the title in favour of the plaintiffs and that the appellants
were stopped from taking any contrary stand before this court in
second appeal and that the learned first appellate court had rightly
affirmed the judgment and decree, so passed by the learned trial
court and the same warrants no interference of this court. Mr.
Choudhury further submits that no question of law, let alone a
Page 8 of 18
substantial question of law, is involved here in this appeal and
therefore, it is contended to dismiss the appeal.
Consideration of this Court:-
8. Having heard the submissions of learned counsel for both the
parties, I have carefully gone through the memo of appeal and the
substantial questions of law and the documents placed on record and
also the judgments passed by learned courts below and also carefully
gone through the decisions referred by Mr. Bhagawati, learned
counsel for the appellants. Also I have gone through the relevant
provisions of law.
9. It is to be noted here that the Sections 34, 35 and 36 of the
Assam (Temporarily Settled Areas) Tenancy Act, 1971 provides for:-
“34. When Rent Due For Payment:-
(1) Cash-rent shall become due for
payment a fortnight earlier than
the corresponding land revenue
which is payable by his land lord
becomes due for payment, or where
such landlord is not liable to pay
the revenue, would have become
payable had it been assessed to
revenue.
(2) Crop-rent shall become due for
delivery within 60 days from the
date of harvesting the crop. Rent
not paid when it falls due shall be
deemed to be an arrear.
35. Arrear of Rent:-
Page 9 of 18
No arrear of rent shall be realisable
otherwise than by a rent-suit filed in
the competent Civil Court.
36. Rent Suit:-
The procedure for such rent suit shall be
according to the provisions of the Civil
Procedure Code, 1908 and the plaint
shall, in addition to matters mentioned
in rules 1, 2, 4, 5 and 6 and sub-rule
(2) of Rule 9 of Order VII in the first
Schedule to Code of Civil Procedure,
1908, specify the area of the land to
which the suit relates and where fields
are numbered in the village papers, the
number and area of each field and, in
suits for arrears, the amount of the
yearly rent which is payable. Where the
land to which the suit relates does not
form one or more fields numbered in the
village papers the plaint shall contain a
sufficient description of the land and
its boundaries.”
9.1. Section 54(2) in Assam (Temporarily Settled Areas) Tenancy
Act, 1971 provides for Procedure of Ejectment. It read as under:-
“No suit for ejectment of a tenant on the
grounds mentioned in Section 51 (1) (2) (a) and
(b) shall be entertained unless the landlord has
first served a notice on the tenant requiring
him to remedy, or to pay compensation for the
misuse or the breach complained of and the
tenant has failed to comply with it within one
month of the receipt of the notice.”
Page 10 of 18
10. It also appears that the plaintiff/respondent herein had
instituted a title suit, being Title Suit No. 21/2007, for declaration of
right, title and interest over the suit land, described in the schedule
of the plaint, which was their ancestral property, for being owned
and possessed by Late Lalit Ram Kalita, the predecessor-in-interest
i.e. the father-in-law of plaintiff No. 1 and grandfather of plaintiff No.
2, by virtue of purchase in the year 1931. The dag number at the
relevant time was 323 and Patta No. was 3 which, after settlement,
becomes 249 and 12 respectively. After the death of Lalit Ram Kalita,
his son, Arabinda Kalita, the husband of the plaintiff No. 1 and father
of plaintiff No. 2, also possessed the land by cultivating and paying
land revenue regularly, till his death in the year 2000. Then the
plaintiffs possessed the suit land by cultivating the same. Then in the
year 2001, the plaintiffs handed over the land to the main
defendants to cultivate the land as their tenant (Adhi) and they had
cultivated the land and gave the legitimate share of the crops to the
plaintiffs till 2003. Then in the year 2004, the main defendants
grabbed the entire crops of the suit land. However, on 20.04.2005,
the plaintiffs told the defendants not to enter into the suit land and
thereafter, the plaintiffs started to cultivate in the same and on
29.06.2005, when the plaintiffs entered into the suit land for
cultivation, the defendants ousted and dispossessed the plaintiffs
from the suit land.
10.1. It also appears that the defendants had taken two
contradictory stands in their written statement. The first stand is that
defendant No. 1 had purchased the suit land, vide Sale Deed No.
3852/1968 and since 15.04.1970, he had the mutation over the suit
land and they are paying land revenue for the suit land since 1969
Page 11 of 18
and that the registered sale deed had never been challenged and the
plaintiffs have no title or possession over the suit land. The other
stand is that the defendants were Adhiars of the suit land and
according to Assam (Temporarily Settled Area) Tenancy Act, 1971,
they are protected from ejectment and as such, the plaintiffs can
only file a rent suit under the said Act against the defendants.
10.2. In the backdrop of above pleadings of the parties the learned
trial court had framed issue No. 1 as to Whether this suit is
maintainable in its present form? Thereafter, discussing the
contention of the parties in the light of the evidence so adduced, it
had arrived at a finding that the suit is maintainable and that it was
not a suit for ejectment of tenants as the defendants were adhiars
for less than three years and moreover, the title of the plaintiff is
clouded as the defendants are claiming title on the strength of
registered sale deed No. 3852/68 and mutation.
10.3. In respect of Issue No. 3 i.e. whether the plaintiff has
right, title and interest over the suit land, the learned
trial court had held that on the strength of Exhibit-1 and 2, the
certified copies of Jamabandi and also Exhibit-5, the Land Holding
Certificate issued by Circle Officer, held that the plaintiffs have right,
title and interest over the suit land. It has also found that the
defendants had on the strength of Exhibit-„Gha‟, the registered Sale
Deed No. 3852/68 claimed their titles, but in fact the sale deed is of
dated 10.06.68 and its number was 3686 by which he had purchased
the land from one Shanti Lahkar from the same dag, yet, the sale
deed includes as many as 9 dags and does not indicate the land in
each dag and that the defendant had deposed that due to jungle the
Page 12 of 18
vendor could not hand over the possession to him. Thereafter, the
learned trial court had arrived at a finding that the defendant could
not prove his right over the suit land.
10.4. And these finding of the learned trial court, in respect of the
issues so framed, stands upheld in the impugned judgment of the
learned first appellate court.
11. It appears that though no issue has been framed in respect of
alleged tenancy by both the learned courts below, yet, both the
courts below had directed a discussion to the said issue. The learned
trial court had discussed the same in issue No.1 and the learned first
appellate court had discussed the same in the point No. 1, in
paragraph No. 11. The learned first appellate court had discussed
the issue as under:-
“In course of appeal hearing, the learned
advocate for the appellants/defendants argued
that as per claim of the plaintiffs, the
defendants were cultivating the suit land as
their tenants (adhiars) from 2001 to 2003, and
therefore the defendants were admittedly non-
occupancy tenants at least, if not occupancy
tenants, and in view of the provisions contained
in Section 51(2) of the Assam (Temporarily
Settled Areas) Tenancy Act, 1971, a non-
occupancy tenant cannot be ejected from the land
of his tenancy except in execution of a decree
for ejectment passed on any one or more of the
grounds mentioned in sub-clauses (a) to (d).
According to the learned advocate, neither of
the grounds mentioned in sub-clauses (a) to (d)
is attracted to the facts of our case and as
such it was open to the plaintiffs to only
institute a rent suit against the defendants.
Page 13 of 18
According to the learned advocate, the
plaintiffs instituted a declaratory suit against
the defendants rather than filing a rent suit
and the learned Court below totally overlooked
the fact that a declaratory suit is barred under
the Assam (Temporarily Settled Areas) Tenancy
Act, 1971. But, I’m not convinced with the
submissions of the learned advocate for the
defendants. The issue of maintainability of the
suit was framed taking into consideration the
pleadings of both the sides. The defendants, in
their written statement, took dual stand
inasmuch as on one hand they stated that as per
claim of the plaintiffs they were tenants
(adhiars) under them and under the Assam
(Temporarily Settled Areas) Tenancy Act. 1971,
they were protected against ejectment, and on
the other hand they took the stand that the
defendant no. 1 had purchased the suit land way
back in the year 1968 vide a registered sale
deed. Taking this fact into consideration, the
learned trial Court rightly observed that the
title of the plaintiffs is clouded as the
defendants are claiming right, title and
interest over the suit land on the basis of
registered sale deed and mutation. Had the
defendants not taken the stand of possession of
the suit land on the strength of purchase and
mutation, the matter would have been different
altogether. The maintainability of the suit has
to be decided not only considering the case of
the plaintiffs but also the case of the
defendants. I am of the considered view,
therefore, that the learned Court below has
rightly decided the issue at hand in the
affirmative. It will not be out of place to
mention here that the submission of the learned
advocate for the defendants that a declaratory
Page 14 of 18
suit is barred under the Assam (Temporarily
Settled Areas) Tenancy Act, 1971, is not tenable
as because in the reported case, Mustt. Sunaban
Bewa vs. Manishab All Shaikh, (1990) 1 GLR 190,
it was held by the Hon’ble Gauhati High Court
that the suit for declaration of right, title
and interest and recovery of possession is not
barred under Section 66 of the Act.”
11.1. Thus, having examined the impugned judgment and decree
so passed by the learned first appellate court, while examined in the
light of the materials available on the record and also in the light of
the submissions, so advanced by learned counsel for both the
parties, this court is of the view that the suit of the plaintiffs is not
barred under Section 54(2) of the 1971 Act. The question of issuance
of notice under sub-section 2 of Section 54 of the Assam
(Temporarily Settled Areas) Tenancy Act, 1971, would have
arisen if the suit was filed for ejectment under the provision of the
said Act.
11.2. It was also not a suit for recovery of rent or suit for eviction
rather it was for declaration of right, title and interest and for
recovery of possession of the suit land. Nowhere in the plaint, the
plaintiffs had made any statement and averment for recovery of rent
or for eviction. That being so filing of suit under Section 34 of the
said Act, does not arise at all.
11.3. The learned first appellate court had relied upon a decision of
this Court in Mustt. Sunaban Bewa vs. Manishab Ali Shaikh,
reported in (1990) 1 GLR 190, wherein it was held that the suit for
Page 15 of 18
declaration of right, title and interest and recovery of possession is
not barred under Section 66 of the Act.
12. This court, in the case of Nur Islam and others vs.
Troloikhya Nath Hazarika, reported in (1989) 1 GLR 187,
on the basis of the decision of the Hon‟ble Supreme Court in Magiti
Sasamal versus Pandab Bissoi, reported in AIR 1962 SC 547,
held that the question of relationship of landlord and tenant between
the parties can be decided by a Civil Court and is not barred under
Section 66 of the aforesaid Act. In that case also the suit was filed
for a declaration of right, title and interest and confirmation of
possession and the plea taken that the suit was barred under Section
66 was rejected.
13. As already discussed, the appellant had two different pleas in
the written statement. While dealing with the issue of inconsistent
pleas being taken by the litigants Hon‟ble Supreme Court in Suzuki
Parasrampuria Suitings Pvt. Ltd. vs. Official
Liquidator of Mahendra Petrochemicals Ltd. (In
Liquidation) & Ors., reported in (2018) 10 SCC 707, had
deprecated this practice of taking inconsistent pleas by a litigant to
merely prolong the litigation, in the following words:
“12. A litigant can take different stands at
different times but cannot take
contradictory stands in the same case. A
party cannot be permitted to approbate
and reprobate on the same facts and take
inconsistent shifting stands. The
untenability of an inconsistent stand in
the same case was considered in AmarPage 16 of 18
Singh vs. Union of India, (2011) 7 SCC
69, observing as follows:-
50. This Court wants to make it clear
that an action at law is not a game
of chess. A litigant who comes to
court and invokes its writ
jurisdiction must come with clean
hands. He cannot prevaricate and
take inconsistent positions.”
13.1. A similar view was taken in Joint Action Committee of
Air Line Pilots’ Assn. of India vs. DG of Civil
Aviation, reported in (2011) 5 SCC 435, observing:
“12. The doctrine of election is based on the
rule of estoppel-the principle that one
cannot approbate and reprobate inheres in
it. The doctrine of estoppel by election
is one of the species of estoppels in
pais (or equitable estoppel), which is a
rule in equity….. Taking inconsistent
pleas by a party makes its conduct far
from satisfactory. Further, the parties
should not blow hot and cold by taking
inconsistent stands and prolong
proceedings unnecessarily.”
14. In view of the aforementioned discussions and findings, this
Court is unable to record concurrence with the submission of Mr.
Bhagawati, the learned counsel for the appellants. This court is
satisfied to hold that none of the substantial questions of law, as
formulated by this court, flows out of the impugned judgment and
decree of the learned appellate court as well as from the judgment
and decree so passed by the learned trial court.
Page 17 of 18
15. In the result, I find no merit in this appeal and accordingly,
the same stands dismissed.
16. Send down the record of the learned trial court with a copy of
this judgment and order.
JUDGE
Comparing Assistant
Page 18 of 18
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