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2006 DIGILAW 136 (GAU)

Gopal Ch. Banerjee v. State of Tripura

2006-02-06

B.SUDERSHAN REDDY, TINLIANTHANG VAIPHEI

body2006
JUDGMENT B. Sudershan Reddy, C.J. 1. The unsuccessful Plaintiffs in Title Suit No. 15 of 1992 on the file of the learned Civil Judge (Sr. Division), South Tripura District, Udaipur are the Appellants in this regular First Appeal. The appeal is directed against the impugned judgment and decree dated 30.9.1996 whereby the Trial Court dismissed the suit filed by the Plaintiffs-Appellants. 2. That in order to consider as to whether the judgment and decree suffers from any infirmities or error requiring our interference in exercise of our appellate jurisdiction, relevant facts may have to be noted. The Plaintiffs-Appellants herein filed suit with the following prayers: (a) To declare that the "record of rights" in respect of the lands described in the schedules "A" and "B" below be recorded in the names of the Plaintiffs and the Proforma Defendant No. 4 by deleting the name of the Government of Tripura from the appropriate columns of the "record of Rights" declaring the right, title and interest of the Plaintiffs and Proforma Defendant No. 4 over the suit land. (b) To set aside the decisions of the Defendant Nos. 2 and 3 in Case Nos. 18/LR/76 and the Revenue Appeal No. 5/83. (c) Issue mandatory injunction upon the Defendant No. 1 directing it to pay the adequate compensation to the Plaintiffs and the Proforma Defendant No. 4 for illegal and unauthorized possession of the "B" schedule land for a long time and to deliver possession of the said "B" schedule land to the Plaintiffs and Proforma Defendant No. 4 by removing all structures and impediments over the said lands. 3. The case, as pleaded by the Plaintiffs-Appellants, is that the Plaintiffs-Appellants and the Defendant Respondent No. 4 are the full blood brothers; their predecessor, late Satish Chandra Banerjee, during his life time purchased a vast extent of land in auction that was held on 10.2.1346 Tripura Era (for short 'TE'), measuring 8 drones, 10 Kanis, 5 Gandas, 2 Karas and 5 Dhurs appertaining to old Jote No. 11 of Mouja Sabroom, which was originally owned by one Akshay Kumar Guha. The auction itself was held for recovery of land revenue arrears pursuant to a certificate granted and after completion of auction, a Sale Certificate was issued vide Ext. 1 document. It is asserted that the possession of the property purchased under the Ext. The auction itself was held for recovery of land revenue arrears pursuant to a certificate granted and after completion of auction, a Sale Certificate was issued vide Ext. 1 document. It is asserted that the possession of the property purchased under the Ext. document No. 1 in auction sale has been delivered by the Government and during the settlement operation of 1347 TE, the land purchased under the Ext. document No. 1 was mutated in the name of the predecessor of the Appellants Plaintiffs, Satish Chandra Banerjee, in Jote No. 41 at Mouja Sabroom. Suffice it to note that the claim of the Plaintiffs-Appellants is that they have inherited the property as sons of the predeceased son of the original owner. It is also asserted that they were in possession of the said land jointly and the land revenue was also paid by them. The land of Jote No. 41 of Mouja Sabroom was duly recorded in the name of the Plaintiffs and the proforma Defendant No. 4 during the first settlement operation, but a substantial portion whereof was not recorded in the name of the Plaintiffs-Appellants and the proforma Defendant No. 4. The land, which was not recorded in the name of the Plaintiffs-Appellants and the proforma Defendant No. 4 has been described in schedule "A" and "B" of the plaint. That having wrongly recorded in the khas khatian, the Govt. has no right, title and interest over the suit land and that it was not possible for the Plaintiffs-Appellants and the proforma Defendant No. 4 to maintain physical possession over each and every plot of land purchased under Ext. document No. 1 inasmuch as substantial portion of land so purchased was vacant being tilla and jungle land and it was not possible for them to keep constant vigil over the suit land. The sum and substance of the pleadings is that the Government is in illegal possession and without any authority of law constructed Govt. offices thereon including school buildings, office buildings etc. 4. The sum and substance of the pleadings is that the Government is in illegal possession and without any authority of law constructed Govt. offices thereon including school buildings, office buildings etc. 4. It is specifically pleaded in the plaint that the Appellants and proforma Defendant No. 4 submitted objection under Section 43(1) of the Tripura Land Revenue and Land Reforms Act, 1960 (hereinafter, for short, called as "Act") to the competent authority against the illegal recording of the land of schedule "A" and "B" of the plaint and for the deletion of the name of the Government which was not conceded by the competent authority. The Defendant No. 3, however, initiated a proceeding for eviction of the Plaintiffs-Appellants and proforma Defendant No. 4 from the said two plots of land under Section 15 of the Act admitting the possession of the Plaintiffs-Appellants and the proforma Defendant No. 4. These proceedings have been initiated against them in consequence of the proceeding under Section 11(3) of the Act filed by the Plaintiff No. 2 on behalf of himself as well as in the interest of the other Plaintiffs-Appellants and the proforma Defendant No. 4. The proceedings under Section 11(3) of the Act according to the Appellants, was initiated on 12.04.1976 before the S.D.O. Sabroom claiming jote right over the suit land. The eviction proceeding initiated and the proceeding initiated under Section 11(3) by the Plaintiffs Appellants was enquired together and disposed of on 27.8.83 under Ext. document No. 6 and the same has been confirmed in the appeal under Ext. document No. 7. It is specifically pleaded that the cause of action arose on 30.7.1991 when the second Respondent Defendant rejected the Revenue Appeal No. 5 of 1983 and thereafter, when the Defendants Respondents received the notice under Section 80(1) of the Code of Civil Procedure. 5. Interestingly, the Plaintiffs-Appellants in the plaint prayed for declaration that the record of rights in respect of the land described in the plaint schedule "A" and "B" be recorded in the name of the Plaintiffs and the proforma Defendant No. 4 by deleting the name of the Government of Tripura from the appropriate column of the said record of rights and setting aside the judgment of the Case No. 18/LR/176 and the revenue Appeal No. 5/83 and for granting decree of mandatory injunction directing the Defendant Nos. 1,2 and 3 to pay adequate compensation to the Plaintiffs and the proforma Defendant No. 4 for illegal and unauthorized possession of the "B" schedule land for long time and to deliver the possession of the "B" schedule land of the Plaintiffs-Appellants and proforma Defendant No. 4 by removing construction and impediment over the said suit land and for granting perpetual injunction against the Defendant Nos. 1,2 and 3 from entering or interfering with the peaceful possession of the land described in schedule "A" of the plaint and other reliefs. 6. The Defendants-Respondents resisted the suit by denying all the allegations and averments made in the plaint. They have filed a joint written statement contending, inter alia, that the Plaintiffs-Appellants have no cause of action for filing the present suit inasmuch as the Plaintiffs-Appellants were never in possession of the suit schedule land. The suit filed by them is not maintainable under Section 11(4) of the Act and the suit is barred by law of limitation. 7. On the strength of the rival pleadings, the learned trial Court framed the following issues in the trial: 1. Is the suit is maintainable in its present form and nature? 2. Is the suit is properly valued and stamped? 3. Is the suit is barred by principles of waiver, estoppels and acquiescence ? 4. Is the suit is barred under T.L.R. and L.R. Act? 5. Is there any cause of action for the present suit? 6. Is the Plaintiff and proforma Defendant No. 4 have got any right, title and interest over the suit land? 7. Is the suit land covers by the land of Sale Certificate? 8. Are the Plaintiffs entitled to get decree as prayed for? 9. What other relief/reliefs the Plaintiffs are entitled to? 8. Altogether sixteen documents, namely, Ext. 1 to Ext. 16 have been exhibited on behalf of the Plaintiffs Appellants and only one witness has been examined. The Respondents-Defendants examined one witness on their behalf and got as many as 68 documents exhibited. 9. The learned trial Court upon consideration of both oral and documentary evidences came to the conclusion that the suit filed by the Plaintiffs-Appellants is not maintainable in its present form and nature. The trial Court also held that the suit filed under Section 11(4) of the Act is barred by limitation. These are the two major findings recorded by the learned trial Court. The trial Court also held that the suit filed under Section 11(4) of the Act is barred by limitation. These are the two major findings recorded by the learned trial Court. On rest of the issues also, the learned Trial Court recorded findings against the Plaintiffs-Appellants. Hence, this appeal filed by the Plaintiffs-Appellants. 10. In this regular First Appeal, the learned senior Counsel Mr. S. Talapatra, appearing on behalf of the Plaintiffs-Appellants, strenuously contended that the judgment of the trial Court is vitiated for more than one reasons requiring interference of this Court in exercise of the appellate jurisdiction. The learned trial Court pliantly misdirected itself and committed grave error in holding the suit as not maintainable in its present form. Learned Senior Counsel has made an attempt to contend that the suit was essentially the one filed under Section 11(4) of the Act and it does not suffer from any infirmities so as to be held as not maintainable in law. It is also contended that the trial Court while considering the suit on its merit altogether should not have ignored the very plea of the Respondents that they have got the suit land under gift from the predecessor in title of the Appellants. The Respondents Defendants having taken such plea miserably failed to establish its case and it would be enough to establish that the suit schedule properly was owned by the predecessor in interest of the Plaintiffs Appellants. It is submitted on the strength of the pleadings that the Plaintiffs-Appellants are the absolute owners of the suit land having inherited the same from the predecessor in interest and in the circumstances a declaration as prayed for ought to have been granted by the trial Court. 11. Mr. D. Chakraborty, learned Counsel for the Respondents, inter alia, submits that the suit of the Plaintiffs-Appellants is hopelessly time barred. Learned Counsel for the Defendants-Respondents made an attempt to support the findings and conclusion recorded by the trial Court to the fact that the suit in the present form filed by the Plaintiffs-Appellants is not maintainable. 12. We have carefully considered the rival submissions made during the course of arguments of this appeal. We have also perused the pleadings and evidences of both oral and documentary on record. Whether the suit is maintainable: 13. 12. We have carefully considered the rival submissions made during the course of arguments of this appeal. We have also perused the pleadings and evidences of both oral and documentary on record. Whether the suit is maintainable: 13. We are now required to consider as to whether the suit filed by the Plaintiffs-Appellants in its present form is maintainable in law. The Plaintiffs-Appellants in the plaint did not specifically plead in detail as to what are those lands in respect of which they still retain possession as on the date of filing of the suit and what are those lands which were forcibly taken possession by the Govt. as alleged by them with reference to the year and date when the Govt. illegally took possession of those properties. They have merely given the details of land in the schedule attached to the plaint, which are stated to be now illegal possession of the Government. As observed by the learned trial Judge, there is no relief as such sought by the Plaintiffs-Appellants seeking declaration of their right, title and interest over the suit property including those which are alleged to have been forcibly taken away by the Defendants Respondents. There is no escape for the Appellants Plaintiffs from seeking the relief of declaration of right, title and interest in the property since the Respondents at every given point of time have been seriously disputing the title of the Plaintiffs-Appellants in respect of suit schedule properties. That in the absence of such a prayer to declare the title even in the face of such a serious dispute raised by the Respondents the relief for payment of compensation or in the alternative for possession of the schedule land cannot be ranted. The suit, as structured is totally misconceived. The evidence adduced by the Plaintiffs-Appellants is not sufficient to arrive at any conclusion as regards the title of the Plaintiffs-Appellants. The whole exercise is the result of the worst confusion, which has resulted in the Plaintiffs-Appellants misdirecting themselves deviating from the core question. It is true as pointed out by the learned senior Counsel for the Plaintiffs-Appellants that the Plaintiffs-Appellants challenged the decision of the Defendant Respondent Nos. 2 and 3 in Case No. 18/LR/76 and in Revenue Appeal No. 5 of 1983. It is true as pointed out by the learned senior Counsel for the Plaintiffs-Appellants that the Plaintiffs-Appellants challenged the decision of the Defendant Respondent Nos. 2 and 3 in Case No. 18/LR/76 and in Revenue Appeal No. 5 of 1983. Those are the proceedings initiated under Section 11(3) of the Act, but at the same time the Plaintiffs/Appellants have also prayed to declare the record of rights in respect of land described in Schedule "A" and "B" with the prayer to delete the name of the State of Tripura from the record of rights and incorporate therein their names. They have also prayed for issue of mandatory injunction requiring the Defendants-Respondent to pay adequate compensation or in the alternative for possession of the Schedule "B" land. 14. That a cumulative reading of averments made in the plaint do not suggest that the Plaintiffs-Appellants have merely challenged the legality and propriety of the orders passed by the Defendant Respondent Nos. 2 and 3 under Section 11(3) of the Act. In the circumstances, it cannot be said that the suit by the Plaintiffs-Appellants was purely one under Section 11(4) of the Act. Be that as it may, even if the suit filed is to be considered as the one to have been filed under Section 11(4) of the Act, it does not satisfy the requirement in law inasmuch as the Plaintiffs did not claim the relief of declaration of title. It would not be enough to challenge the correctness of the order passed under Section 11(3) of the Act in a suit filed under Section 11(4) of the Act. The expression "may institute a civil suit to contest the order" is to be given a proper construction. On a true and proper construction of Section 11(4) of the Act it appears to us that contesting of the order passed under Section 11(3) of the Act can necessarily be by way of filing of a proper civil suit seeking declaration of right, title and interest in the properties in respect of which orders have been passed under Section 11(3) of the Act. 15. In our considered opinion, in the suit as presented the Plaintiffs-Appellants could not have prayed for correction of the entries made in the record of rights since such suit is not comprehended under the provisions of Act as rightly pointed out by the learned Counsel for the Respondents. 15. In our considered opinion, in the suit as presented the Plaintiffs-Appellants could not have prayed for correction of the entries made in the record of rights since such suit is not comprehended under the provisions of Act as rightly pointed out by the learned Counsel for the Respondents. It was perfectly open to the Plaintiffs Appellants to challenge the proceedings under Section 11(3) of the Act since Section 11(4) of the Act specifically provides for filling of such a suit by any person aggrieved by the order made under Section 11(3) of the Act to institute a civil suit "to contest the order" but within a period of six months from the date of order. 16. Now the question that falls for our consideration is whether the suit filed by the Plaintiffs-Appellants is the one under Section 11(4) of the Act? We have already noted the prayer portion and averments made in the plaint. The Plaintiffs-Appellants are not clear as regards the cause of action for filing of the suit. In one way, they seek relief of correction of entries made in the record of rights and pray to delete the name of the Government from the record of rights substituting their names in place of the Government, on the other hand they also prayed for a mandatory injunction requiring the Defendants/Respondents to pay adequate compensation as well as for recovery of possession. Section 11(4) of the Act do not provide for grant of any such relief. If the suit is to be considered of having been filed under Section 11(4) of the Act, we fail to appreciate as to how the Plaintiffs Appellants would be entitled to recover the possession of the land as prayed for by them. Even if the order passed under Section 11(3) of the Act is to be held bad in law, for the grant of relief of recovery of possession, the Plaintiffs Appellants are required to make specific plea and prayer for declaration of title and recovery of possession and lead evidence in support thereof. In the absence of specific plea and the prayer, no relief could be granted for eviction of the Defendants-Respondents and to put the Plaintiffs-Appellants into possession of the suit schedule land. The Plaintiffs-Appellants sought for too many reliefs and made it a rag bag suit making it into a misconceived one. In the absence of specific plea and the prayer, no relief could be granted for eviction of the Defendants-Respondents and to put the Plaintiffs-Appellants into possession of the suit schedule land. The Plaintiffs-Appellants sought for too many reliefs and made it a rag bag suit making it into a misconceived one. It is difficult to discern as to what exactly is the cause of action pleaded by the Plaintiffs-Appellants in the plaint. It is in these circumstances, the trial Court, in our considered opinion, rightly came to the conclusion that the suit in the present form is not maintainable in law. It is neither a simple suit filed by the Appellants contesting the order passed under Section 11(3) of the Act nor a suit for declaration of title, recovery of possession, nor a simple suit for rectification of the entries made in the revenue record. Each one of them would provide a distinct and separate cause of action for which purpose a specific plea is required to be taken with a specific prayer. Be that as it may, there is no iota of any acceptable evidence in support of any of the pleas except the self-serving statement of one of the Plaintiff himself. The documents filed do not in any manner establish the identity of suit lands and of their purchase under document No. 1. In the circumstances, we do not find any error to have been committed in coming to the conclusion that the suit in the present form is not maintainable. 17. It is obligatory on the part of the Plaintiffs Appellants to plead specifically as to when they have lost the possession of the schedule "B" properly and whether they are entitled to recovery of possession or in the alternative for payment of compensation in accordance with law. It is not clear from the averments made in the plaint as to whether they were claiming for damages for the use and occupation of "B" schedule land by the Government in accordance with law or the mesne profits. The Plaintiffs Appellants themselves are not clear in this regard leaving the Court to suspect that the Plaintiffs-Appellants have indulged in speculative litigation. Under the circumstances, we are not inclined to interfere with the findings of the trial Court and accordingly, hold that the suit at the present form is a misconceived one and not maintainable. 18. The Plaintiffs Appellants themselves are not clear in this regard leaving the Court to suspect that the Plaintiffs-Appellants have indulged in speculative litigation. Under the circumstances, we are not inclined to interfere with the findings of the trial Court and accordingly, hold that the suit at the present form is a misconceived one and not maintainable. 18. However, we are not inclined to agree with the trial Court that the suit even if it is to be treated as the one filed under Section 11(4) of the Act as it is hit by limitation. Had it been a simple suit filed under Section 11(4) of the Act, it is well within the limitation and is not barred by limitation. The question of applicability of the provisions of Limitation Act as such would not arise since Section 11(4) of the Act says that the suit contesting the correctness of the order passed under Section11(3) of the Act is required to be filed within a period of six months of such order. No one can contest the correctness of the order without knowing the contents of the order passed by the authorities for which purposes certified copy is required to be obtained and filed as one of the document in the suit. The time spent by the parties/aggrieved person in obtaining the certified copy is required to be excluded for such purpose that is the meaning to be ascribed to the expression used "within the period of six months", otherwise, it would become impossible for an aggrieved individual to file a suit and no suit can be initiated contesting the correctness of the order passed under Section 11(3) of the Act. The view taken by the trial Court in this regard is erroneous and we accordingly hold that the time spent in obtaining a certified copy is required to be excluded for the purpose of calculating the limitation of six months as provided in Section 11(4) of the Act. The question as to the applicability and if so, the extent of provisions of Limitation Act as such is to required to be examined in detail. The submission made by the Govt. Advocate in this regard is unsustainable. The submission made by the learned Govt. The question as to the applicability and if so, the extent of provisions of Limitation Act as such is to required to be examined in detail. The submission made by the Govt. Advocate in this regard is unsustainable. The submission made by the learned Govt. Advocate that the suit being the original proceeding and the time spent for obtaining certified copy of this order cannot be excluded is not acceptable to us on fair construction of Section 11(4) of the Act, but this finding of ours as to the maintainability of the suit would not help the Plaintiffs-Appellants in any manner whatsoever since we have come to the conclusion that the suit filed by the Plaintiffs-Appellants is not a simpliciter as the one filed under Section 11(4) of the Act. 19. In view of the our finding on both the issues, it is unnecessary to discuss and consider the correctness of the findings recorded by the trial Court on other issues since no relief could be granted to the Plaintiffs Appellants in the suit as presented by them in the trial Court. 20. However, before parting with the case, we are constrained to observe that the plaint has been subjected to obvious interpolation in the prayer portion. The following words are added, "declaring the right, title and interest of the Plaintiffs and proforma Defendant No. 4 over the suit land". We hold this interpolation in the relief as prayed for does not fit into structure of the suit as presented with the reference to the cause of action as pleaded. Such interpolation obviously appears to have been made after disposal of the suit in order to meet the finding and conclusion recorded by the trial Judge holding that the suit as presented is not maintainable in the absence of specific prayer seeking declaration of right, title and interest of the Plaintiffs-Appellants in the schedule land. That at any rate even after such interpolation, there is no prayer for recovery of possession of "B" schedule land. Had there been such a specific plea and prayer, it would have been open to the Defendants-Respondent to resist the suit on the ground of limitation. We wish to say nothing more in this regard. Notwithstanding the strenuous submission by the learned senior Counsel for the Plaintiffs Appellants, no relief can be granted to the Plaintiffs-Appellants in this suit. Had there been such a specific plea and prayer, it would have been open to the Defendants-Respondent to resist the suit on the ground of limitation. We wish to say nothing more in this regard. Notwithstanding the strenuous submission by the learned senior Counsel for the Plaintiffs Appellants, no relief can be granted to the Plaintiffs-Appellants in this suit. We, once again, affirm and reiterate the view taken by the learned trial Judge that the suit as has been presented is totally a misconceived one and is not maintainable. It is the Plaintiffs-Appellants who are to blame themselves for landing in such a situation. 21. For the aforesaid reasons, we find no merit in this First Appeal and the same shall accordingly stand dismissed. Parties are directed to bear their own costs. Appeal dismissed