JUDGMENT
B.K. Sharma, J.
1. This second appeal is directed against the judgment and order dated 22.12.1995 passed by the Assistant District Judge No. 1, Guwahati in Title Appeal No. 26/92 partly affirming the judgment and decree dated 10.4.1992 and 4.5.1992 respectively, Passed by the then Sadar Munsiff, Guwahati in Title Suit No. 25/87 dismissing the suit filed by the appellants.
2. The facts material for the purpose of disposal of his appeal are that the appellants/plaintiffs No. 1 to 6 herein along with plaintiff No. 7 instituted Title Suit No. 25/86 in the Court of the learned Munsiff, Guwahati praying for a decree for declaration of their right, title and interest over the land described in the schedule to the plaint measuring 1 bigha, 0 katha and 4 Lechas.
3. The respondents herein as the defendants contested the suit by filing written statement contending, inter alia, that they had been possessing the suit land continuously for 40 years as tenants under the plaintiffs/ appellants and that Raiyati Khatian had been issued in their name. Referring to an earlier suit being Title Suit No. 288/85 filed by the same very plaintiffs for possession of the suit land, the defendants/respondents stated in the written statement that the same having been dismissed, the plaintiffs/appellants were not entitled to ‘any relief in the suit.
4. On the basis of the pleadings of the parties, the following issues were framed by the trial, Court :
(1) Whether there is cause of action for the suit ?
(2) Whether the suit is barred by law of limitation
(3) Whether the suit is properly valued and proper court fees have been paid ?
(4) Whether the defendants are tenants under the plaintiffs for a very long period and whether the defendants have right to enjoy the suit and as tenants ?
(5) Whether the Khatian is respect of the suit land was obtained legally
(6) Whether the plaintiffs were in possession of the suit land ?
(7) Whether the defendant No, 1 forcibly entered in to the suit land on 7.10.1982 ?
(8) What relief if any, the plaintiffs are entitled to ?
5. The plaintiffs/appellants examined two witnesses and produced the documents marked as Exht. 1, 2, 3, 4(1) to 4 (4) and 5 in support of their case. On the other hand, the defendants/respondents examined two witnesses and produced no documents in their defence.
6. On the basis of the evidence on record, the learned Munsiff dismissed the suit by judgment and decree dated 10.4.1992 and 4.5.1992 respectively. Being aggrieved, the plaintiffs/appellants preferred title appeal No. 26/92. The appeal was partly allowed by judgment and order dated 22.12.1995. The appellate Court held that the plaintiffs/ appellants were entitled to get declaration that they had ownership right in the suit property, but they were not so entitled to recover possession thereof. Thus, the judgment and decree passed by the learned Munsiff refusing the relief for recovery of possession was upheld and confirmed, but other part of the judgment and decree, i.e., refusal of declaration of ownership right of the appellants was set aside and consequently the suit was, partly decreed declaring that the appellants had their ownership right in the suit land.
7. Being aggrieved by the aforesaid appellate judgment and decree in so far as the same refused to grant the reliefs in respect of recovery of possession of the suit land, the present appeal was filed by the appellants. At the time of admitting the appeal, the following substantial question of law was framed :
Whether in the absence of any evidence produced by the defendants, in particular without ‘production of documentary proof of Khatian on which reliance has been placed by them, the trial Court and appellate Court could have dismissed the suit filed by the plaintiff on the ground that the appellant/plaintiff has not filed a suit for cancellation of the Khatian
8. The aforesaid substantial question of law framed by this Court while admitting the second appeal has a nexus with the issue No. 5 framed in the suit which was “whether the Khatian in respect of the suit land was obtained legally ?”
9. I have heard Mr. S. Medhi, learned Counsel for the appellants. Non appeared for the respondents. Mr. Medhi, referring to the substantial question of law as quoted above, submitted that in absence of any documentary proof produced on behalf of the defendants/respondents to demonstrate that Khatians were issued in their name in respect of the suit land, the trial Court and the appellant Court committed manifest error of law in holding that the defendants/respondents being the Khatian holders, till cancellation of such Khatian, the plaintiffs/ appellants cannot get the decree for possession of the suit land.
10. I have considered the submissions made by Mr. Medhi, learned senior counsel for the appellants and the materials available on record. In the plaint filed by the plaintiffs/appellants, while narrating the facts leading to the filing of the suit, they clearly stated in paragraph 7 that the defendant No. 1 obtained Khatian in respect of the land. In the written statement, the defendants/respondents also categorically stated that the defendant No. 1 got Raiyati Khatian in respect of the suit land and that they had been in the possession of the land for about 40 years. The plaintiff No. 1 in his deposition admitted long possession of the defendant/respondents of the suit land. In his cross examination, the witness stated in reference to an earlier proceeding under Section 145 Cr.P.C. pertaining to the suit land that the defendants submitted Khatians in the said proceeding and that he had preferred an appeal for cancellation of the Khatian.
11. P.W. 2 also stated about long possession of the suit land by the defendants/respondents. The defendant ‘No. 1 in his deposition stated about long possession of the land (40 years). In his cross-examination referring to the aforesaid 145 Cr.P.C. proceeding, he categorically stated about the production of Khatian. The other witness examined on behalf of the defendants/respondents also confirmed the long possession of the land. Thus, on reading of the said evidence available on record, it is evident that the defendant No. 1 and for that matter, the defendants/ respondents are holders of Khatian. P.W. No. 1 in his cross-examination categorically stated that the defendants/respondents submitted their Khatian in the aforesaid 145 Cr.P.C, proceeding and his preferring an appeal for cancellation of the same. The witnesses examined on behalf of the defendants/respondents also confirmed the possession. The plaintiffs themselves admitted in their plaint that the defendants/ respondents had the Khatian in respect of the suit land. In such a situation, there was no question of production of any further documentary evidence to establish proof of the Khatian issued in favour of the defendants/respondents.
12. Apart from the above, there is also no dispute that the same very plaintiffs instituted title suit No. 288/85 claiming possession of the land and the same was dismissed on 27.1.1988.
13. In view of the above admission regarding issuance of the Khatian in favour of the defendants/respondents and the own admission of the plaintiffs/appellants, there is no question of adducing further documentary proof. There is also no question of entertaining this appeal on the purported substantial question of law quoted above. Same cannot be said to be a substantial question of law and not even a question of law, on the given facts and circumstances of the case.
14. Learned trial Court exhaustively dealt with issue No. 5 quoted above. It noticed about the admission on the part of the appellants/plaintiffs about the issuance of the Khatian in favour of the defendants/ respondents. It also recorded in the judgment about the aforesaid statement made by PW 1 in his cross-examination. It was found by the trial Court that the Khatian was issued in favour of the defendant No. 1 and was still in force. Thus, on the basis of the own admission of the plaintiffs, the trial Court answered the issue No. 5 in favour of the defendants/respondents.
15. The appellate Court also dealt with the same in its impugned judgment and order. It noticed the long possession of the defendants/ respondents over the suit land and the occupancy right acquired by them. It also noticed that the defendants/respondents obtained tenancy Khatian in respect of the suit land and the institution of the earlier suit, i.e., title suit No. 288/85 by the same very plaintiffs against the defendants in respect of possession of the suit land and that the suit was dismissed on 27.1.1988. The appellate Court found that as per the own evidence of the plaintiff/appellants, it was an admitted position that the defendant No. 1 got Khatian in respect of the suit land and that the Khatian was submitted in the earlier proceeding. The appellate Court also noticed that as per the own evidence of the plaintiffs/ appellants, an appeal was preferred for cancellation of the Khatian.
16. When nothing could be brought on record as to the cancellation of the Khatian, both the Courts below had no option than to dismiss the suit so far as the declaration for possession is concerned. However, having regard to the ownership of the plaintiffs/appellants in respect of the land, the appellate court partially decreed the suit in favour of the plaintiffs/appellants as noticed above.
17. Above being the position of fact and law, I do not find any infirmity in the impugned judgment and order dated 22.12.1995. The substantial question of law quoted above cannot be said to be within the parameters of Section 100 of the C.P.C. Having regard to the aforesaid facts and circumstances, same cannot be said to be a substantial question of law. In any case in view of the aforesaid evidence on record, same cannot be answered in favour of the plaintiffs/appellants. It will be open for the plaintiffs/appellants to pursue their remedy as was pursued for cancellation of the Khatian, if such remedy is still available to them.
18. The Second appeal stands dismissed affirming the judgment and decree passed by the appellate Court, i.e., Addl. District Judge No. 1, Guwahati in title appeal No. 26/92.
19. The Registry shall transmit the case records to the Court below after observing necessary formalities.