The only substantial question of law formulated in this appeal is as follows:
" The appeal is admitted and shall be heard on the substantial question of law that whether the findings of the learned Court below in regard to the title of the respondents is not sustainable in evidence on record."
2. The plaintiff filed a suit for declaration and recovery of possession. The defendant filed the written statement denying the title of the plaintiff as well as the plea of dispossession set up by the plaintiff. The learned Munsiff at Barpeta dismissed the suit ie TS 36 of 1985. There was an appeal ie TA1 of 1989 before the learned Assistant District Judge at Barpeta. The issue Nos 4 and 5 are as follows:
"4. Whether the plaintiff has right, title and interest over the suit land 5. Whether the defendants have purchased the suit land on 25.3.57 and since then they are in possession over it"
3. The learned lower appellate Court took up both the issues for discussion together and having considered both oral and documentary evidence, came to the finding as follows:
"When the patta stands in the joint names of the plaintiff and defendant, it can safely be held that the plaintiff acquired his right and title on the suit land and the plaintiff are not expected to prove their title on the suit land by producing or proving any sale deed. The defendant Amiya Dutta examined herself as DW 1. She has also admitted in her evidence the fact of purchasing the same land which was in face given to the plaintiff Balindra Narayan. Towards the close of her cross examination, she clearly stated that the suit Dag Nos 1310 and 1311 stand in the joint names of her husband and the plaintiff, Balindra Narayan, She further stated that this land was originally gifted to Balindra Narayan but they (the defendants) purchased it. Thus, the very evidence of DW 1 lends support to the plaintiff's claim that they have title over the suit land."
4. The lower appellate Court further found as follows :
"Thus, taking into consideration of the entire evidence on record both oral and documentary, I find that the plaintiffs have right, title and interest over the suit land and the defendants purchased the suit dags and possessed the same excepting the suit land. Both these issues are accordingly answered in favour of the plaintiffs and against the defendants."
5. So, the question of law which has been formulated is not substantial question of law at all. It relates to appreciation of evidence only and it is settled law that in second appeal this Court cannot reappreciate the evidence.
6.1 have heard Mr. BM Sarma, learned counsel for appellant and Mr. J. Das, learned counsel for respondents. Mr. Sarma, learned counsel contends as follows:
(i) That non-production of the deed of purchase by the plaintiff must be deemed to be fatal for establishing the title of the plaintiff;
(ii) Mere entry in revenue record does not prove/establish the title of the plaintiff.
7. Regarding first contention of Mr. Sarma, learned counsel, it can be said that it is always not necessary to produce the sale deed to establish the title of a person. Title of a person can be established by adducing other evidence and it was the other evidence which was taken into consideration by the lower appellate Court and came to the finding that the plaintiff has established his title.
8. Regarding entry in the revenue record, Mr. Sarma, learned counsel relies on the following:
1. (1997) 1SCC 734 (State of UP vs Amar Singh & others). That was a case from Allahabad High Court. There the Supreme Court pointed out that the mutation entries usually do not confer title to the land. Title is derived from the sale deed properly stamped and registered. That was a case with regard to the acquisition of ceiling surplus land and the land holder claimed exemption on the basis of mutation entries and that was not accepted by the Supreme Court holding that the mutation entries cannot create title. That case does not help the appellant. Further under the Assam Land and Revenue Regulation, there is provision how mutation entries are to be made, how Jamabandi are to be granted and how chithas are to be corrected and prepared. These provisions have been there. If these records of right are prepared and maintained in accordance with law or in consonance with the provisions of the said Regulation, they have certainly evidentiary value to establish the title of a person, otherwise the whole Assam Land and Revenue Regulation and the provisions of issue of Patta and also the Jamabandi shall be otiose and irrelevant. That cannot be the purpose of the Assam Land and Revenue Regulation.
2. AIR 1995 SC 2185 (Major Pakhar Singh Atwal & others vs. State of Punjab & others). That was a case from Punjab & Haryana. That was a case regarding enhancement of compensation under the Land Acquisition Act and in that case the Collector relied on the mutation entries to declare the compensation and the Supreme Court pointed out that no witness having been examined in proof of the prevailing market value of the lands or in the neighbourhood, only the mutation entries cannot be relied upon.
3. AIR 1994 SC 227 (Guru Amarjit Singh vs. Ratan Chand). That also is a case from Punjab. In para 2, the Supreme Court pointed out that entries in the Jamabandis are not proof of title. There the Supreme Court was considering a different Land Revenue Regulation and not the Assam Land and Revenue Regulation.
4. AIR 1997 SC 2181 (State of Himachal Pradesh vs. Keshav Ram & others). This was a case from State of Himachal Pradesh and the Supreme Court pointed out in connection with that case that an entry in the revenue by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. But as indicated above, the position under the Assam Land and Revenue Regulation is absolutely different. Chithas and Jamabandis are considered to be the documents of title under the Assam Land and Revenue Regulation.
5. (1995) 3 SCC 426 (Nagar Palika, Jind vs. Jagat Singh, Advocate). That also was a case from Punjab and Haryana High Court and there the Supreme Court was considering the Punjab Land and Revenue Regulation.
9. Under the Assam Land and Revenue Regulation a person who is a patta holder is deemed to be a land holder and he has permanent, heritable and transfe rable right of use and occupancy in his land subject to section 9 of the Assam Land and Revenue Regulation and if a persons in order to establish his title produces a patta that must be given due weightage inasmuch as a patta is issued in accordance with the provisions of section 17 read with the Rules and that must be considered to be a document of title and this is always considered to be a document of title. Further the record of rights as provided under section 40 and 41 of the Assam Land and Revenue Regulation shall always be deemed to be the correct unless the contrary is proved and that presumption which is attached to the record of rights under section 40 arid 41 must be given due weightage and that is what was done by the learned lower appellate Court. Regarding mutation entries it can be said that though the mutation entries may not be the basis of title yet that mutation entries cannot be brushed aside and it must receive due consideration at the hand of the Court. Of course, it must be ascertained that the mutation entries were done properly. If it is found that the mutation entries was not done properly and/ or if it is collusive and fraudulent, that mutation entries will not create any right.
10. That being the position, there is no merit in this second appeal and accordingly the same shall stand dismissed. Stay order if any passed earlier shall stand vacated,