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2005 DIGILAW 842 (GAU)

Pranati Deb v. Dhirendra Ch. Roy

2005-12-19

A.B.PAL

body2005
A.B. PAL, J.— A dispute over correct identification of the suit land, its ownership and possession has taken a long journey to reach this Court in the present Second Appeal calling in question legality and correctness of a judgment and decree passed by learned Civil Judge (Jr. Division), Court No. 2, West Tripura, Agartala in Title Suit No. 29/1989 and affirmed by the learned District Judge, West Tripura, Agartala in Title Appeal No. 54/1996 in favour of the plaintiff-respondents herein. 2. The present respondents are the legal heirs of Dhirendra Chandra Roy, the original plaintiff, who filed Title Suit No. 24/1989 in the Court of Civil Judge (Jr. Division), Court No. 2, Agartala, West Tripura for a declaration of title, confirmation of possession and perpetual injunction against the defendants-appellants herein who are legal heirs of the original defendant, Late Shyamal Kanti Deb, in respect of the suit lands. 3. The subject matter of the suit is the lands measuring about one kani. The original plaintiff filed the suit on the premises that his father was allotted lands measuring 1 done 13 kanis by the owner Hem Chandra Debbarma by a registered patta with definite boundaries and since the date of allotment he had been in peaceful possession of the entire land within the said boundaries. The lands mentioned in the schedule of the patta appertained to Khatian Nos. 2044, 3134, 3135, 3136, 5196 and 3159 of Mouja Madhupur within the said boundaries. Later when actual measurement of the said lands was taken, the total area was found to be 19.06 acres, which correspond to 3 drones, 3 karas, 1 krantas and 6 dhurs as per the prevailing standard of measurement. Thus, within the said boundaries mentioned in the patta, an excess land of 1 drone, 3 kanis, 3 karas, 2 krantas and 6 dhurs were found which were in peaceful possession of the original plaintiff. The boundaries mentioned in the patta having the primacy, the original plaintiff claimed to be owner in peaceful possession of the entire land within that boundaries. The original plaintiff had one brother, one sister and mother, and after the demise of his father the above lands were amicably partitioned and the original plaintiff became owner of 1 drone of land as his share and after partition, took the exclusive possession of the same. The suit land is part of the land of his share. The original plaintiff had one brother, one sister and mother, and after the demise of his father the above lands were amicably partitioned and the original plaintiff became owner of 1 drone of land as his share and after partition, took the exclusive possession of the same. The suit land is part of the land of his share. Thakurdhan Deb, the father of Shyamal Kanti Deb, the original defendant was an employee in the Department of Settlement and Land Records. It is alleged that he manipulated the records and created a separate khatian in his name of the suit lands. This manipulation was done behind the back of the original plaintiff. Taking the opportunity of such illegal and erroneous entry into the records of rights the original defendant tried to dispossess the original plaintiff on 26.2.1989 giving rise to the present litigation. The attempt to dispossess was, however, repelled by the original plaintiff, who approached learned Civil Judge (Jr. Division), West Tripura, Agartala by filing the Title Suit as noted above for declaration of title, confirmation of possession and perpetual injunction. The suit was eventually decreed in his favour and the appeal preferred therefrom by the defendant in the court of the learned District Judge, West Tripura, Agartala was dismissed. Aggrieved, the appellants, being the legal heirs of the original defendant have come in this Second Appeal calling in question the concurrent findings of both the trial court and the first appellate court. 4. The defendant-appellants have put forward a different story of their own as may be gathered from their written statement and additional written statement. The contending version of the appellants, inter alia, is that the suit land originally appertained to kyami taluk No. 57 owned by one Monoranjan Rudra Paul. Thakurdhan Deb, the father of Shyamal Kanti Deb, the original defendant, purchased the suit land from Monoranjan Rudra Paul by a registered deed dated 12.3.1959 and since the date of purchase he had been in peaceful possession of the suit land by growing mesta and other crops. Thakurdhan Deb transferred the said land to his son Shyamal Kanti Deb by a registered deed of gift and since then the donee had been in peaceful possession of the same land. The khatian No. 3159 to which the suit land appertained was finally published in the name of Thukurdhan Deb on the strength of the sale deed. Thakurdhan Deb transferred the said land to his son Shyamal Kanti Deb by a registered deed of gift and since then the donee had been in peaceful possession of the same land. The khatian No. 3159 to which the suit land appertained was finally published in the name of Thukurdhan Deb on the strength of the sale deed. After the deed of gift was executed, the name of Shyamal Kanti Deb, the original defendant, found place in khatian No. 3159 in place of his father's name. 5. From what has been stated above, it would appear that the rival claims over the suit land originated from two different sources of ownership. While the plaintiff-respondents claimed that the suit land is a part of the land falling within the definite boundaries of the patta granted by Hem Chandra Debbarma in favour of their predecessor and after partition the said suit land fell into the share of the original plaintiff Dhirendra Chandra Roy, the definite case of ownership put forward by the defendants-appellants is that the lands appertained to kyami taluk No. 57 of Monoranjan Rudra Paul who sold the same to Thakurdhan Deb by registered kabala on 12.3.1959. Thus, the question that fell for adjudication before the learned trial court was whether the suit land appertained to the registered patta of the predecessor of the plaintiff-respondents or the registered deed of Thakurdhan Deb, the predecessor of original defendant, that is to say, kyami taluk 57 of Monoranjan Rudra Paul. If it is found in the long run that the suit land belong to one particular source of ownership the contenders claiming ownership from the other source shall have no title to the same and thus this dispute would be bound to disappear on correct identification of the lands which is essentially a question of fact. 6. The learned trial court framed following issues for adjudication of the dispute, namely: "(1) Is the suit maintainable in its present form and nature; (2) Whether the plaintiff has any right, title, interest and possession over the suit land; (3) Whether the plaintiff is entitled to get a decree as prayed for; and (4) Any other relief of reliefs." While the original plaintiff examined four witnesses including himself and exhibited five documents, the original defendant examined six witnesses and produced three documents. The learned trial court considered that the second issue on the question of right, title, interest and possession is the crux of the rival contention and accordingly proceeded to determine the same on the basis of the documentary and oral evidence produce by the respective contenders. The learned trial court also appointed a Survey Commissioner by its order dated 7.8.1993 for identification of the suit land by making a field survey with reference to the registered deed of para of the plaintiff and deed of gift of the defendant. The report of the Survey Commissioner was submitted, whereupon both the parties were hand by the learned trial court. The Survey Commissioner was also examined in the witness box by both the parties and only thereafter the report of the survey Commissioner was accepted. The findings of the Survey Commissioner based on field verification unequivocally went in favour of the claim of the original plaintiff that the suit land appertained to the registered patta nullifying thereby the rival claims of the defendants-respondents that the same appertained to kyami taluk 57 or registered sale deed of Thakurdhan Deb. This finding of the Survey Commissioner about identification of the suit land was reinforced by the deposition of the witnesses produced by the original defendant inasmuch as they have described the boundaries of the lands claimed and possessed by the defendant by virtue of the registered sale deed originated from kyami taluk 57 which did not at all tally with the boundaries of the suit land. The witnesses of the plaintiff-respondents, on the other hand, testified to the fact that the plaintiff-respondents had always been in peaceful possession of the suit land. Learned trial court after careful perusal of the statements of witnesses, particularly regarding boundaries of the suit land and comparing the same with the report of the Survey Commissioner, came to the definite finding that the suit land appertained to the registered patta of the plaintiff-respondents, who have been in peaceful possession of the same. 7. In the appeal before the learned District Judge, the question of identification of the suit lands was again adumbrated but the same has been answered in tune with the decision of the learned trial court. 7. In the appeal before the learned District Judge, the question of identification of the suit lands was again adumbrated but the same has been answered in tune with the decision of the learned trial court. Following questions of law have been framed while admitting the present Second Appeal "(1) As to whether the learned court below was justified in interpreting Exhibits 1 to 4 read with 'A', 'B' & 'C'; and (2) As to whether the learned court below fell into serious error in overlooking the positive evidence in favour of the defendants." No other question of law was taken up during the course of hearing. 8. I have heard Mr. R. Chakraborty, learned counsel for the appellants and Mr. P. K. Dhar, learned counsel for the respondents. 9. As regards the first substantial question of law it would appear that Exbt. 1 is the certified copy of the finally published khatian No. 3161 of Mouja Madhupur standing in the name of Monoranjan Rudra paul, Exbt. 2 is the copy of the notice Of mutation to the plaintiff in connection with Objection Case No. MR. 3962 under Section 46(3) of the TLR & LR Act, 1960, Exbt. 3 is the certified copy of orders dated 7.2.94, 3.3.94 and 21.2.94 passed by the Assistant Survey Officer in Objection Case No. MR. 3962 under Section 46 of the TLR & LR Act, 1960, Exbt. 4 is the certified copy of the patta dated 21.9.1953 executed by Hem Chandra Debbarma in favour of Basanta Kumar Roy and Exbt. 5 is the certified copy of kubliat dated 21.9.1953 executed by Basanta Kumar Roy in favour of Hem Chandra Debbarma. Exbt. A is the certified copy of the finally published khatian No. 3159 standing in the name of Thakurdhan Deb, Exbt. B is the original registered deed of gift dated 18.6.1979 executed by Thakurdhan Deb in favour of his son Shyamal Kanti Deb and Exbt. C is the original registered deed dated 12.3.1959 executed by Monoranjan Rudra Paul in favour of Thakurdhan Deb. 10. It is not in dispute that the original plaintiff got certain lands by mutual partition of the total lands which were allotted to his father by Hem Chandra Debbarmma by a registered patta dated 21.9.195. On the same date kabiliyat was also executed in respect of the said lands completing the transaction thereby. 10. It is not in dispute that the original plaintiff got certain lands by mutual partition of the total lands which were allotted to his father by Hem Chandra Debbarmma by a registered patta dated 21.9.195. On the same date kabiliyat was also executed in respect of the said lands completing the transaction thereby. On the other hand, it is also not in dispute that the original defendant got certain lands by way of gift deed from his father Thakurdhan Deb, who became owner of the same by virtue of a sale deed executed by Monoranjan Rudra Paul, the original owner. There having been no dispute about genuineness of the documents referred to above, the question of any error in interpreting them is only a misplaced submission. The admitted position being set out, the interpretation of those documents, which are not the subject matter of the present controversies cannot, in my considered view, form a substantial question of law. The only question, which surfaced from rival pleadings, is about correct identification of the suit land, in other words, whether the suit land belonged to the lands falling within the boundaries of the registered patta of the predecessor of plaintiff-respondents or it appertained to the lands of kyami taluk No. 57 of Monoranjan Rudra Paul. For deciding the question of identification of the said land it was rightly considered necessary to appoint a Survey Commissioner whose report was strongly in favour of the claim that it appertained to the lands falling within the boundary of the registered patta of the plaintiff-respondents. This findings of the Survey Commissioner having been accepted after hearing the parties and the same having been supported by the statements of the witness produced by both plaintiff-respondents and defendant-appellants, there is no scope to raise any question about correctness or otherwise of the finding of the Survey Commissioner on the basis of which, supported by other materials on record, the suit has been decreed by the trial court and affirmed by the first appellate court. 11. As regards the second substantial question of law, whether the courts below fell into serious error in overlooking the positive evidence in favour of the defendants, it may be noticed from the above discussions that both the courts below committed no error in overlooking the positive evidence as because there is no such positive evidence in favour of the defendants. As regards the second substantial question of law, whether the courts below fell into serious error in overlooking the positive evidence in favour of the defendants, it may be noticed from the above discussions that both the courts below committed no error in overlooking the positive evidence as because there is no such positive evidence in favour of the defendants. All the positive evidence including statement of witnesses produced by the original defendants are strongly in favour of the original plaintiff and, therefore, it cannot be held that there has been any error of law in analyzing or evaluating the materials on record for arriving to the findings by the courts below. 12. The learned counsel for the appellants failed to show how the impugned judgments of the learned courts below are perverse and why a finding different from that of theirs should be taken in the Second Appeal. The scope of interference in the Second Appeal against the concurrent findings of the courts below is very limited as has been held by the Apex Court in a line of decisions. One such decision may be referred to for the purpose of this case, which is between Hamida & Ors. Vs. Md. Kahlil, reported in AIR 2001SC2282. The observation of the Apex Court in para-6 is reproduced below: "6. The High Court has upset the finding of fact recorded by the first appellate Court, taking a different view merely on re-appreciation of evidence in the absence of valid and acceptable reasons to say that the findings recorded by the first appellate Court could not be sustained either they being perverse or unreasonable or could not be supported by any evidence. The High Court neither framed a substantial question of law nor any such question is indicated in the impugned judgment as required under Section 100 of the Code of Civil Procedure. The approach of the High Court, in our view, is clearly and manifestly erroneous and unsustainable in law. Para 10 of the impugned judgment reads : "The appellate Court although has decided the issue of personal necessity but from the judgment it appears that the appellate Court has not decided this issue in its correct perspective. Since the trial Court has not recorded any finding on the issue of personal necessity, the finding recorded by the appellate Court cannot be said to a concurrent finding of fact. Since the trial Court has not recorded any finding on the issue of personal necessity, the finding recorded by the appellate Court cannot be said to a concurrent finding of fact. I am, therefore, of the definite view that in such circumstances, this Court can reappreciate the evidence and scrutinize the findings recorded by the appellate Court, under Section 100 C.P.C. when admittedly this issue was not decided by the trial Court. The sons of the plaintiff for whose requirement the plaintiff sought eviction, have not been examined. The nephew of the plaintiff was examined as a witness who supported the case of the plaintiff. The plaintiff has also not led any evidence to the effect that the house property where the plaintiff resides, is not sufficient for their own use and occupation. There is also no evidence to the effect that suitable alternative accommodation is not available to the plaintiff for meeting the requirement. I am, therefore, of the view that the finding recorded by the appellate Court on the issue of personal necessity cannot be sustained in law for want of sufficient evidence." As can be seen from the para extracted above, the High Court thought that it would re-appreciate the evidence and scrutinize the findings recorded by the first appellate Court under Section 100 CPC. This approach is plainly erroneous and against law. The High Court was also wrong in saying that the plaintiff did not lead sufficient evidence to establish his bona fide requirement. As observed by the first appellate Court and noted above already, there is evidence of the plaintiff, his nephew and the neighbour. The finding of fact recorded by the first appellate Court based on evidence could not be interfered with by the High Court, that too in the absence of any substantial question of law that arose for consideration between the parties." 13. For the discussion made above, this Second Appeal is found to be devoid of any merit and consequently the same is dismissed with no order as to cost.