JUDGMENT
I.A. Ansari, J.
1. This second appeal arises out of the judgment and decree, dated 2.3.01, passed by the learned Civil Judge (Senior Division), Nagaon, in Title Appeal No. 9/2000, upholding, in part, the judgment and decree, dated 23.12.99, passed, in Title Suit No. 59/98, by the learned Munsiff No. 1, Nagaon, whereby the learned trial Court had decreed the suit of the plaintiff-respondents.
2. The plaintiff’s case is, in brief, thus: The land, described in Schedule A to the plaint, has been in occupation of the plaintiff and proforma defendant No. 4 since the year 1935 and Annual Patta No. 263 was issued, in their favour, in respect of the suit land by the State government. Upon issuance of the Annual Patta, the plaintiff and the proforma defendant started paying revenue in respect of the land of Schedule ‘A’. Following an amicable family settlement, the land described in Schedule ‘A’, along with some other properties fell into the share of the plaintiff and the plaintiff became the sole possessor thereof including the suit land. On a small portion of the said land, the plaintiff constructed a farm house and a cow-shed, but the remaining portion of the land was retained by the plaintiff as his agricultural land and the plaintiff has been raising crops thereon. Though the defendant Nos. 1, 2 and 3 have no right, title and interest over the suit land, they tried to dispossess the plaintiff from the suit land in the last part of the year 1997. Apprehending disturbance, the plaintiff initiated a proceeding under Section 145 Cr.PC. which gave rise to MR Case No. 376/1997. The defendants appeared in the proceeding and denied the plaintiffs right, title and interest over the land of Schedule ‘A’. This apart, on 15.10.97, the defendants also entered into the land, where stood the farm house of the plaintiff and forcibly occupied the farm house constructed thereon. The portion of the land of Schedule ‘A’, wherefrom stands dispossessed the plaintiff, is described in Schedule ‘C and Schedule ‘B’ is the land, which is a part of the land of Schedule ‘A’ and has remained in occupation of the plaintiff. In this factual scenario, the plaintiff sought for, inter alia, a decree declaring plaintiff’s title to the land of Schedule ‘A’, confirmation of plaintiff’s possession over the land of Schedule ‘B’ and recovery of khas possession of the land of Schedule ‘C’ by evicting the defendants therefrom. The plaintiff also sought for a decree of permanent in-‘ junction restraining the defendants from disturbing the plaintiffs possession over the land of Schedule ‘A’.
3. The defendants contested the suit by filing their written statement, their case being, in brief, that the land, which is described in Schedule ‘C and covered by Dag No. 652 of Annual Patta No. 263, has been in their possession for the last 40 years without any disturbance, claim or protest from any corner, their land being situated on the western comer of the plaintiffs land and, on their land, the defendants have their cow-shed and a residential house, where the defendant No. 1 has been residing since long. The defendants have also been cultivating the land in their possession and growing paddy thereon. The rights, title and interest, if any, of the plaintiff to the suit land stood extinguished by adverse possession of the defendants.
4. The learned trial Court framed the following issues for determination in the suit:
1) In there any cause of action for the suit?
2) Whether the suit is maintainable in its present form?
3) Whether the suit is barred by adverse possession?
4) Whether the suit is bad for want of necessary parties?
5) Whether the plaintiff is entitled to the relief as prayed for in the suit?
6) To what relief/reliefs the parties are entitled to?
5. Having found that the plaintiff had succeeded in proving that he held the land, in question, on the strength of Annual Patta issued to him and that the defendants had not been able to prove their adverse possession, the learned trial Court held the plaintiff entitled to the decree as sought by him. The suit was accordingly decreed declaring thereby, inter alia, plaintiffs title to the land of Schedule ‘A’, confirming his possession over the land of Schedule ‘B’ and delivery of khas possession of the land of Schedule ‘C’ to the plaintiff by evicting the defendants therefrom. This decree came to be challenged by way of appeal by the defendants. This appeal gave rise to Title Appeal No. 9/2000 aforementioned. The learned appellate Court, having concurred with the findings reached by the learned trial Court, held that the plaintiff was entitled to declaration of his rights, possessory title and interest over the suit land. Instead of, therefore, upholding the declaration of title of the plaintiff to the suit land, the learned appellate Court declared that the plaintiff had the rights, title, possession and interest over the land of Schedule ‘A’. With this modification in the decree granted by the learned trial Court, the appellate Court dismissed the appeal and the impugned decree accordingly followed.
6. This second appeal has been admitted on the following substantial questions of law:
1) Whether the document exhibit 1 was legally admissible in evidence and the decision and findings of the learned court below based on the said documents are sustainable in law ?
2) Whether the suit is bad for want of necessary party?
3) Whether the decree declaring right, title and interest of the plaintiff over the annual patta land is sustainable in law?
4) Whether the decision of the lower appellate court in respect of issue No. 6 is vitiated because of mis-reading of evidence and mis-interpretation of the provisions of law/Assam Land & Revenue Regulation of 1886?
5) Whether the findings of the lower appellate court holding that the suit is not barred under Article 64 of Limitation Act, 1963 is perverse and contrary of law?
7. I have heard Mr. K.K. Mahanta, learned Senior counsel for the defendant-appellants, and Mr. A.K. Goswami, learned Senior counsel, appearing on behalf of the plaintiff-respondent.
8. While considering the present appeal, what needs to be noted, at the very outset, is that though the plaintiff has sought for recovery of possession, his claim for recovery of possession was not based on possession alone; rather, he sought for declaration of his title on the basis of the Annual Patta, which the plaintiff claimed to have been granted in his favour, as indicated hereinabove. The person, who holds land on the strength of an annual patta, is a settlement-holder. As defined in Section 3(h) of the Assam Land and Revenue Regulations, 1886 (in short, the Regulations’), a ‘settlement holder’ means any person, other than a proprietor, who has entered into an engagement with the Government to pay land revenue, and includes a landholder.
9. What may also be noted is that though, within the expression, ‘settlement-holder’ is included a ‘land-holder’, a person acquires the status of land-holder in terms of the provisions of Section 3 (h) of the Regulations. It is Section 11 of the Regulations, which embodies the rights of the ‘settlement-holders’. According to Section 11, a ‘settlement-holder’, who is not a land-holder, shall have no rights in the land held by him beyond such as are expressed in his settlement lease.
10. Thus, a ‘settlement-holder’, within the meaning of Section 11, is a person, other than a proprietor, who has entered into an engagement with the Government to pay land revenue and it includes a land-holder. All that the definition of settlement holder requires to make a person a settlement holder is that there should be an engagement with the Government to pay land revenue by the person and that such person shall not be a proprietor. The engagement confers the status of a settlement-holder, but a settlement-holder can have no greater rights than those expressed in the settlement lease as provided under Section 11. See Abdul Gani v. Settlement Officer reported in AIR 1955 Assam 45.
11. The correct interpretation of Section 11, as held in Jainur Ali v. Mst. Chafina Bibi AIR 1951 Assam 20, is that when an annual patta-holder purports to transfer his possessory rights, in such a land, for consideration, the transferee takes good title to the property subject only to paramount title of the Government that is to say, if the Government chooses, it may, at the expiry of the period of the annual patta, refuse to grant an annual patta to the transferee. That, however, is a matter between the Government and the transferee and not a matter between a transferor and transferee.
12. What emerges from the above discussion is that an annual patta, until cancelled, confers good title upon the person to whom the patta is issued to hold and possess the land settled with him. Such a person is entitled to possess the land to the exclusion of all others including a trespasser.
13. There is no dispute before me that a person, holding annual patta, is a settlement-holder and is entitled to possess the land, which has been settled in his favour. In fact, the very case of the plaintiff was that on the strength of the annual patta issued to him, coupled with the fact that he has had been in possession of the land, in question, he was entitled to a declaration of his status as a person entitled to hold the entire land of Schedule ‘A’, which includes the land described in Schedule ‘C. Notwithstanding the fact that in their written statement, the defendants disputed the assertion of the plaintiff that the annual patta had been issued in the name of the plaintiff and proforma defendant No. 4 and that in terms of the family settlement reached between them, the plaintiff has had been in exclusive possession of the land of Schedule ‘A’, the fact remains that in his evidence, the categorical assertions of the plaintiff are that the annual patta, as mentioned hereinbefore, had been issued, this annual patta was cancelled, because of non-payment of revenue, but the same was subsequently restored. It is also asserted by the plaintiff, in his evidence, that the process for allotting him periodic patta in respect of the land of Schedule ‘A’ had been initiated and direction to issue periodic patta had been given, but on account of the fact that he had not been able to pay the requisite premium, the periodic patta had not been issued. The sum total of the evidence, so given by the plaintiff, was that he holds the annual patta in respect of the land of Schedule ‘A’. The evidence, so given by the plaintiff, remained wholly unshaken. In such circumstances, the plaintiff was, undoubtedly, entitled to the declaration of his status as a person entitled to hold and possess the land, in question, and the plaintiff’s right to receive this declaration could have been dislodged only by proof of adverse possession of the suit land by the defendants.
14. Before proceeding further, it is pertinent to point out that when a person seeks declaration of his possessory title on the strength of annual patta, such a suit falls under Article 65 of the Limitation Act, 1963, and not under Article 64, for, Article 64 is attracted, when a suit for possession is based on previous possession; whereas Article 65 is attracted, when a suit for possession is based on title. Even a person, who holds an annual patta in respect of a plot of land, is entitled to declaration of his status as a person entitled to hold and possess the land settled with him by the Government to the exclusion of all others. In the case at hand, there is no dispute that the entire land, in question, was Government’s Khaas land and, hence, when the Government had settled the land by issuing annual patta in favour of the plaintiff, the plaintiff was entitled to possess the same to the exclusion of all others. This right of the plaintiff could have been dislodged only by setting up and proving that the defendants’ possession of the suit land constituted an adverse possession.
15. In the present case, though the defendant had taken the plea of adverse possession in their written statement and the issue No. 3 was framed for determination of the question as to whether the suit was barred by adverse possession, the defendants did not raised this issue at the trial. Hence, the learned trial Court held, while discussing issue No. 3, that the suit is not barred by adverse possession. The observation of the learned trial Court that the defendants had not pressed the issue of adverse possession, at the trial, was not denied or disputed by the defendants, when they preferred the appeal. Neither, in their memorandum of appeal nor during the course of hearing of the appeal, it was asserted, in the learned first appellate Court, that the plea of adverse possession had been pressed by the defendants at the trial. When the defendants had abandoned the plea of adverse possession, the consequence was that the plaintiff was entitled to possess, by evicting, if necessary, the defendants from the suit land.
16. It may also be pointed out that it has been noted by the learned trial Court and also by learned first appellate Court that though the defendants are shown to have been in possession of the suit land, the fact remains that there is nothing in the evidence to show that the defendants’ possession was in assertion of their own rights, title or interest or that their possession was in denial of the rights, title and interest of the plaintiff. Situated thus, there can be no escape from the conclusion that the defendants abandoned and did not prove their plea of adverse possession. In these circumstances, the plaintiff was entitled to the declaration of possessory title over the suit land and the learned appellate Court committed no error in modifying the decree suitably, as indicated hereinabove, and in upholding the decree granted by the learned trial court.
17. Bearing in mind what have been indicated above, let me, now, turn to the substantial questions of law, which have been framed in the present appeal.
Whether the document exhibit 1 was legally admissible in evidence and the decision and findings of the learned court below based on the said documents are sustainable in law?
18. In the case in hand, the question as to whether the Exhibit No. 1 was or was not an admissible piece of evidence is no longer material inasmuch as the oral evidence adduced by the plaintiff is to the effect that he had annual patta in respect of the land and though the same was once cancelled, it stood restored, and these assertions of the plaintiff have not been shaken by the defendants. Viewed thus, it is clear that this question is of no relevance, far less a substantial question of law.
Whether the suit is bad for want of necessary party?
19. Though it has been agitated, in this appeal, that the State Government was a necessary party to the suit, what needs to be noted is that a necessary party is one against whom a relief is claimed and in whose absence, no effective decree can be passed. In the case at hand, the plaintiff has not sought for any relief against the Government nor is the presence of the State Government necessary for passing an effective decree. The test as to whether a decree is effective or not depends on the question as to whether the decree is executable or not. In the case at hand, the decree, as sought for by the plaintiff, was neither a decree, which could not have been made or passed without impleadment of the State Government, nor was it a case, wherein a decree, if granted, could not have been executed without impleading the State Government. Situated thus, I do not find that the suit was bad for not impleading the State Government as a party to the suit.
Whether the decree declaring right, title and interest of the plaintiff over the annual patta land is sustainable in law?
20. I have already held that a person is entitled to declaration of his status as a person entitled to hold and possess the land settled with him under an annual patta. In such circumstances, there can be no escape from the conclusion that a suit for declaration based on annual patta is sustainable so long as such declaration entitles the plaintiff to hold and possess the land.
21. Whether the decision of the lower appellate court in respect of issue No. 6 is vitiated because of mis-reading of evidence and misinterpretation of the provisions of law/Assam Land & Revenue Regulation of 1886?
22. Because of the conclusion reached above that the plaintiff was entitled to the decree, as stands modified by the learned first appellate court, I do not find that this question needs any further discussion. This question is, therefore, answered in the negative.
Whether the findings of the lower appellate court holding that the suit is not barred under Article 64 of Limitation Act, 1963 is perverse and contrary of law?
23. Though the learned first appellate Court has concluded that the suit was not barred under Article 64, the fact remains that the nature of the case, as set up by the plaintiff, and the nature of the reliefs, which he had sought for, clearly indicate that it was a suit, which, as pointed out above, was covered by Article 65 and not by Article 64 and this suit was not barred by period of limitation. This question, therefore, stands answered accordingly.
24. Because of what have been discussed and pointed out above, I do not find that any question of law, far less substantial question of law, have been raised in the present appeal. This appeal is wholly without merit and is, therefore, dismissed with cost.
Send back the LCR.