Arup Kumar Goswami, J. - (1.) HEARD Mr. D. Mazumdar, learned Senior counsel, appearing for the appellant. Also heard Mr. S. Dutta, learned Senior counsel, appearing for the respondent No. 1.
(2.) THIS Second appeal is preferred by the defendant No. 1 against the judgment and decree dated 08.06.2006, passed by the learned District Judge, Cachar, Silchar, in Title Appeal No. 3/2002, affirming the judgment and decree dated 21.05.2002, passed by the learned Civil Judge, Senior Division No. 2, Cachar, Silchar, in Title Suit No. 15/1979, whereby the suit of the plaintiff was decreed. The Second appeal was admitted by an order dated 10.01.2007 to be heard on the following substantial questions of law: "1. Whether the finding of the lower Appellate court that the defendants are not tenants as defined in Section 3(17) of the Assam Temporarily Settled Areas Tenancy Act, 1971, is sustainable inasmuch as the said finding was arrived at on misconstruction of the said provision of law and without consideration of the evidence adduced by the defendants. 2. Whether the learned appellate court below acted illegally in decreeing the suit without setting aside the Khatian issued by the competent authority, and there being no pleading nor any issue framed in this regard. 3. Whether the judgment and decree passed by the lower appellate court are perverse in view of the fact that the said court did not consider the evidence of DWs 1, 2 and 3 and the documentary evidence particularly Ext -C adduced by the defendants."
(3.) THE plaintiff is a tea estate by the name of Derby Tea Estate, in the District of Cachar, and is engaged in special cultivation of tea. The pleaded stand of the plaintiff is that the defendants belong to one family and they are refugees from erstwhile East Pakistan and they were provided accommodation in a colony established by the State Government under a scheme for rehabilitation of refugees. The defendants have dwelling houses at Silchar and defendant No. 1 is a businessman. The defendants, without knowledge of the plaintiff, in collusion with Land Record staff, got their names entered in the Khatian as tenants under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (for short, 'Tenancy Act') in respect of the land described in the schedule to the plaint, comprising of Schedule -1 totaling 8 Bigha 12 Katha 2 Chhatak in Mouza Barjalanga, and 21 Bigha 18 Katha 15 Chhatak in Mouza Cleverhouse in various dags. The plaintiff was not aware of the surreptitious conduct of the defendants and coming to learn about the activities of the defendants sometime in the first week of 1977, the plaintiff, through its Manager, lodged objection but, despite lodging of the objection, final Khatians were issued in the names of the defendants and this came to the knowledge of the plaintiff in the first week of January, 1978. In respect of the Schedule -1 land, Khatian was issued in the name of defendant No. 1 and, in respect of Schedule -2 land, Khatian was issued in the names of the defendants, who are not agriculturists but traders. The defendants never held land under the plaintiff as tenants and at no point of time rent was paid by the defendants. It is further alleged that fraudulently and by misrepresentation of fact, Khatians were obtained in plain area in the midst of tilas and highlands claiming tenancy right, and enquiries revealed that the defendants and some other displaced persons, in the vicinity of Barjalanga Part -X, along with some ex -tea estate labourers of Derby Tea Estate joined hands together to grab land of the tea estate secretly and managed to prepare a good number of Khatians of land within the tea estate, which was kept by the plaintiff for their future plantation and other development works. For 4/5 years, jungles on plain areas at the foot of tilas and highlands were cleared but not much importance was attached by the plaintiff to such activity of the tea estate labourers as they usually cut trees for collection of firewood, house -construction materials, etc. and it was not realized that such activities were undertaken at the instance of the defendants. The defendants, taking advantage of the illiteracy and docile character of the tea labourers, had fabricated false documents from some labourers, who had no right, title, interest and possession on the land and, on the basis of the Khatians, are attempting to dispossess the plaintiff. Accordingly, the suit was filed for declaration of plaintiff's right, title and interest in respect of the land mentioned in the schedules of the plaint; for confirmation of possession of the suit land and, in the alternative, for recovery of possession in case the plaintiff loses possession in the meantime; permanent injunction; for declaration that the defendants are not tenants under the plaintiff in respect of Schedule -III(a) and Schedule -III(b) land and for cancellation of the two Khatians in Schedule -III. Schedule -III(a) refers to Khatian No. 99 in the name of defendant No. 1 in respect of 21 Bigha 12 Katha 9 Chhatak and Schedule -III(b) is in respect of Khatian No. 30 issued in the name of Haridas Roy, defendant No. 2 in respect of 6 Katha 6 Chhatak.;