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2005 DIGILAW 816 (GAU)

Lal Mohan Sutradhar v. Niroda Sundari Majumder

2005-12-04

A.B.PAL

body2005
JUDGMENT A.B. Pal, J. 1. This second appeal impugning the judgment and decree dated 22.6.94 passed by the learned Addl. District Judge, Belonia, South Tripura in T.A. No. 1 of 93 has its origin in a dispute over correct identification of suit land between the contending parties, a factual dispute fuelled by legal intricacies and thus given a long run since 1984 when the Title suit was filed with the battle remaining unabated till now calling upon this Court to give finality. 2. The Respondents herein are Smt. Nirada Sundari Majumder and others who are the legal heirs of late Dhirendra Kumar Majumder who filed the suit for declaration of title and recovery of possession of the suit land. It is the case of the Plaintiff-Respondents that Dhirendra Kumar Majumder became the owner of the suit land by registered kabuliat covering lands measuring 5 kanis with specific boundaries. The said land appertained to jote No. 329. On the southern side of the said land, jote Nos. 307 and 158 were created in the name of Akshay Kumar Shilsharma and Hara Charan Shilsharma. Later, Hara Charan Shilsharma sold his jote lands of jote No. 158 to Maharani Shilsharma who again transferred the same to Defendant No. 12. The lands of jote No. 307 of Akshay Kumar Shilsharma situated on the adjacent northern side of jote No. 158 were sold to other Defendants. The Plaintiff-Respondent claimed that in the registered kabuliat of Akshay Kumar Shilsharma, plot No. 2795 was wrongly mentioned. The lands owned and possessed by him appertain to plot No. 2794. However, though Dhirendra Kumar Majumder became the owner of the suit land by registered kabuliat dated 25.7.56 situated on the adjacent northern side of jote No. 307 and possessed the same by constructing selling huts thereon, the Defendant-Appellants dispossessed his legal heirs, the Respondents herein, on 9.5.78 giving rise to the age long legal battle. This wrong recording of the suit lands in the record of rights of the contending parties came to notice of the Plaintiff-Respondents from khatian No. 759 of Akshay Kumar Shilsharma which contained plot No. 1646 showing the lands of the Plaintiff-Respondent appertaining thereto. Khatian 779 in the name of Dhirendra Kumar Majumder recorded plot Nos. 1645 and 1646/2628. This wrong recording of the suit lands in the record of rights of the contending parties came to notice of the Plaintiff-Respondents from khatian No. 759 of Akshay Kumar Shilsharma which contained plot No. 1646 showing the lands of the Plaintiff-Respondent appertaining thereto. Khatian 779 in the name of Dhirendra Kumar Majumder recorded plot Nos. 1645 and 1646/2628. After knowing about this wrong entries which provided the opportunity or excuse to the Defendant-Appellant to dispossess the original owners, the Plaintiff-Respondents after a failed attempt for correction of the record of rights in Revenue forum instituted T.S. No. 1/81 in the court of Sub Judge, Udaipur, Sourth Tripura which was dismissed for insufficient Court fees. Thereafter they filed the present suit for declaration of title and recovery of possession of the suit lands measuring 4 kanis 13 gandas wrongly recorded in the khatain No. 759 appertaining to plot No. 1646. 3. The suit was contested by the Defendant-Appellant contending, inter alia, that Dhirendra Kumar Majumder did never possess the suit lands appertaining to plot No. 1646 of Khatian No. 759 and there was no wrong entry into the record of rights. According to him, their predecessor Akshay Kumar Shilsarma became the owner of 5 kanis of land by a kabuliat dated 13.2.56 and the said lands appertain to plot No. 2795. He also possesses the northern portion of plot No. 2794 which was a barren land. Further contention of the Defendant-Appellant is that northern portion of plot No. 2794 was a khas land and the same was allotted to the legal heirs of Akshay Kumar Shilsharma. After allotment, the said land was sold to the Defendant No. 13 and since purchase the said Defendant had been in possession of the suit lands. 4. The suit was contested only by the first Appellant herein whose contention in the written statement is that he purchased the land from Akshay Kumar Shilsharma in the year 1970 and the said lands appertain to khatian No. 759. Since purchase he has been in possession of the suit land. But this Appellant also did not, at later stages of the proceeding, contest the case after filing written statement. Neither he cross-examined the witnesses of the Plaintiff-Respondents nor he adduced any evidence in support of his defence. Since purchase he has been in possession of the suit land. But this Appellant also did not, at later stages of the proceeding, contest the case after filing written statement. Neither he cross-examined the witnesses of the Plaintiff-Respondents nor he adduced any evidence in support of his defence. As a result, the suit was practically decreed exparte on 23.6.92 declaring the right, title and interest of the Plaintiff Respondents and directing recovery of the suit lands. 5. Aggrieved, the first Appellant Lal Mohan Sutradhar filed T.A. No. 1 of 93 assailing the judgment and decree of the learned trial court only on two grounds, namely, jurisdiction of the trial court and limitation. As regards jurisdiction,' it was contended before the appellate court that the Plaintiff-Respondent filed a case before the Collector that the Plaintiff-Respondents filed a case before the Collector under the Tripura Land Revenue & Land Reforms Act for rectification of the record of right and, therefore, during the pendency of such Revenue proceeding, the learned trial court had no jurisdiction to hear and adjudicate the same dispute with regard to the suit land. Reliance was placed in support of this contention on the decision of the Supreme Court reported in AIR 1975 SC 2238 . This contention on jurisdiction has been negatived by the learned first appellate court after coming to a finding that the declaration of title and recovery of possession is a subject matter within the exclusive domain of the civil court and no Revenue authority is competent to decide the question of title. As the dispute over the lands created a cloud over the title. As the dispute over the lands created a cloud over the title of the Plaintiff-Respondents, the civil court is competent to adjudicate the issue which has nothing in common with the question of correction of record of rights by the revenue authority. The second contention of the Appellant with regard to the limitation has also been answered by the learned first appellate court. The contention of the Appellant was that the Plaintiffs could not prove by adducing proper evidence the date when they had been dispossessed form the suit land which is a crucial issue for determining whether the suit was within time. The contention of the Appellant was that the Plaintiffs could not prove by adducing proper evidence the date when they had been dispossessed form the suit land which is a crucial issue for determining whether the suit was within time. According to the Appellant, the suit land was all along in his possession and a part of the suit land was acquired by the Government by gazette notification dated 20.5.80 showing the Appellant in possession of the suit land. As the suit was not filed within a period of 12 years from the date of dispossession, the Appellant contended that the same should have been dismissed on that ground alone. The learned first appellate court while deciding this question considered the report of the Survey Commissioner appointed by the learned trial court and the certified copy of the order dated 16.1.80 of the Collector, South Tripura passed in Revenue case No. 31 of 78 and both the documents made it clear that the suit lands appertaining to plot No. 1646 was wrongly recorded in the name of the Appellant. That apart, all the witnesses including the Plaintiff-Respondent unequivocally deposed on 18.2.92 that 12/13 years back, the Plaintiffs-Respondents were dispossessed from the said lands indicating thereby that sometime in the year 1978 or 79, the incident of dispossession had taken place. As already noticed above, none of the witnesses on the side of the Plaintiff-Respondents was cross-examined by the Appellant and, therefore, the appellate court had no reason to disbelieve their version. The dispossession having taken place in 1978/79 and the suit having filed in 1984, it was comfortably held that the suit was instituted within time and, therefore, the contention advanced on the ground of limitation was rejected. 6. Learned first appellate court placed-much importance on the report of the Survey Commissioner which received no challenge from the Appellant and was accordingly accepted by the learned Tribunal. According to the said report, the suit land was owned and possessed by the Plaintiff-Respondent before they were dispossessed in the year 1978. The two questions on the ground of jurisdiction and limitation raised before the appellate court having thus answered the appeal was dismissed affirming the judgment and decree of the learned trial court. 7. According to the said report, the suit land was owned and possessed by the Plaintiff-Respondent before they were dispossessed in the year 1978. The two questions on the ground of jurisdiction and limitation raised before the appellate court having thus answered the appeal was dismissed affirming the judgment and decree of the learned trial court. 7. Being aggrieved by the concurrent findings of the courts below, the Appellant filed the instant second appeal which was admitted on 11.1.96 formulating the following questions of law: Whether the suit is maintainable on fixed court fee where the Plaintiff specifically paid for recovery of possession on the ground of dispossession. The Appellant may raise any other point of law at the time of hearing. Later, one more substantial question of law was added, namely, Whether mere filing of a document tantamounts to acceptance in evidence without formal proof. As regards the question of Court fee which formed one of the issues before the learned trial court, it was submitted on behalf of the Appellant that since the suit is for declaration of title and recovery of possession, the same should have been held under Section 8 of the Suits Valuation Act, 1887 and the Court fee was required to be paid under Section 7(V) of the Court Fees' Act, 1870. But the Plaintiff-Respondents paid Court fee under Section 7(IV)(c) of the Court Fees' Act and as such the suit was under valued. The decision rendered by the trial court on this issue is as follows: 5. The Plaintiffs instituted the suit for recovery of khas possession based on title. The Plaintiff stated that they are dispossessed form the suit land on 9.5.78 by the Defendants and since then the Defendants have been possessing the suit land. This suit is brought by the Plaintiffs in the year 1984 i.e. after six years from dispossession and the suit is properly valued and stamped as per Section 7(IV)(c) of the Court Fees' Act. So, the above two issues are decided in favour of the Plaintiffs. 8. This suit is brought by the Plaintiffs in the year 1984 i.e. after six years from dispossession and the suit is properly valued and stamped as per Section 7(IV)(c) of the Court Fees' Act. So, the above two issues are decided in favour of the Plaintiffs. 8. This decision which was affirmed by the first appellate court, however, was not found to be correct by this Court and by judgment and order dated 13.12.02 in the present second appeal, this Court (B.B. Deb, J) remitted back the case to the learned trial court under Order XLI Rule 25 Code of Civil Procedure with the following directions: (I) The learned trial court is to realize the deficit court fees from the Plaintiff treating the valuation of the suit to be Rs. 4,000/- for the purpose of jurisdiction and court fee as well; (II) The learned trial court is to allow the parties to cross-examine the Survey Commissioners, if found available; (III) Learned trial court is to allow an opportunity to the Plaintiff to prove the certified copy of the order dated 16.1.80 passed by the Collector, south Tripura District in Revenue case No. 31 of 78. 9. After receiving the case record on remand, the learned trial court complied with the above direction realizing the deficit Court fees and providing opportunity to the parties to cross-examine the Survey Commissioner and to prove the certified copy of the order dated 16.1.80 passed by the Collector, South Tripura District in Revenue case No. 31 of 78. After compliance, the learned trial court returned the case records to this Court, but by an order dated 25.8.03, this Court again returned the case records to the learned trial court for recording its findings on the basis of the additional evidence recorded by it. Learned trial court recorded its findings on 24.11.03 and observed that as no issue on question of fact did crop up from the additional evidence so recorded and as the original issues already decided by the trial court was affirmed by the appellate court, there leaves no room for further adjudication and new findings are called for. The Survey Commissioner has been cross-examined by the Appellant herein though the Plaintiff Respondents preferred not to cross-examine him. It was noticed that the first report of the Survey Commissioners which was marked as Ext. The Survey Commissioner has been cross-examined by the Appellant herein though the Plaintiff Respondents preferred not to cross-examine him. It was noticed that the first report of the Survey Commissioners which was marked as Ext. A conducted by one Krishna Kumar Debnath was not accepted by the court and later another Survey Commissioner was appointed whose report was accepted and which formed the basis for the judgment and decree. Following the direction of this Court, the second Survey Commissioner was cross-examined by the Defendant-Appellant and nothing came out form that cross-examination to discredit the findings contained in the report. Thus, the Survey Commissioner's report which was accepted and the order of the Collector which was formally proved, together supported the decision of the learned trial court as well as the first appellate court that the suit land was wrongly recorded in the khatian of the Defendant-Appellant and the same was owned and possessed by the Plaintiff-Respondent till their dispossession in 1978 and consequently they are entitled to a decree of declaration of title and recovery of possession. 10. Learned Counsel for the Appellant whom I heard at length failed to show how the position that has emerged from the decisions of the learned trial court and the learned first appellate court had changed after the case was remanded back for the purpose of realizing Court fees, cross-examination of the Survey Commissioners and taking into formal proof the order of the Collector. The substantial questions of law framed for disposal of the present second appeal have been answered by realizing the Court fee and by taking into evidence with full proof the order of the Collector. As already observed by the courts below to which I fully subscribe, both the report and the order have provided strong support to the claim of the Plaintiff-Respondents over the suit lands. No new substantial question of law has been adumbrated during the course of hearing by the learned Counsel for the Appellant. As both the substantial questions of law stand answered in favour of the Plaintiff-Respondents for the reasons discussed above there remains nothing more to adjudicate in the present second appeal and consequently the same is found to be devoid of any merit. 11. The second appeal is, thus, dismissed leaving the parties to bear their own cost. Appeal dismissed.