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2006 DIGILAW 340 (GAU)

Sukumar Saha v. Langti Chakma

2006-04-07

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. By this Second Appeal, the Appellant has called in question correctness and legality of the judgment and decree dated 21st March, 2005 passed by the Additional District Judge, North Tripura, Dharmanagar in Title Appeal No. 22/2004 dismissing the appeal. 2. I have heard Mr. A.K. Bhowmik, learned senior counsel, assisted by Mr. S. Ghosh, learned Counsel for the Appellant and Mr. P. Roy Barman, learned Counsel for the Respondents. 3. The Appellant herein instituted Title Suit No. 7/2004 in the Court of the Civil Judge (Junior Division), Dharmanagar, North Tripura for a decree of perpetual injunction restraining the Respondents herein from disturbing peaceful possession and enjoyment of the suit-tank by the Appellant measuring 0.92 acre appertaining to C.S. Plot Nos. 1146 and 1147 of Khas Khatian Nos. 1/18 and 1/17 within Mouja Dhanicherra. It is not in dispute that the suit property is owned by the State Government and has been accordingly recorded in Khas Khatian. The dispute is precisely over the possession of the said suit property. The Appellant claimed that originally, before excavation of the fishery tank, the land was in possession of one Rajdhar Sarkar, from whom he took over its possession 27/28 years back. Originally the land was classified as nal and lunga, which was later converted into a tank for the purpose of fishery by raising embankment on its four sides at a cost of Rs. 50,000/-. He reared fish in the said tank, which became his main source of income. There had never been any objection or resistance from the State Government to his peaceful enjoyment of the property as a possessor. Being a poor landless person, he applied for allotment of the said land to the District Magistrate and Collector, North Tripura, which was duly acted upon by way of making an enquiry followed by recommendation in his favour. The enquiry report clearly mentioned that the Appellant was in peaceful and uninterrupted possession of the suit property for 25/26 years. The Respondents have their lands around the said tank and led by greed had covetous eye on the said property. In order to grab the tank they planned to forcefully take over its possession. On 7.3.2004 in the afternoon, the said Respondents made attempt to dispossess the Appellant by entering into the suit tank and catching fish. The attempt was, however, foiled by timely intervention from the Appellant. In order to grab the tank they planned to forcefully take over its possession. On 7.3.2004 in the afternoon, the said Respondents made attempt to dispossess the Appellant by entering into the suit tank and catching fish. The attempt was, however, foiled by timely intervention from the Appellant. The Respondents, however, made no bones about their intention to apply force again for physically taking over the possession of the suit tank. Thus, the Appellant had to institute the suit for perpetual injunction as noted above. 4. The second Respondent herein, Smti Bangdi Chakma @ Malati Chakma contested the suit by filing written statement. None of the other four Respondents presented any written statement though at a later stage they made a prayer for adopting the defence taken by the second Respondent. The contention of the Respondents herein advanced in the written statement inter alia is that their predecessor Jangalya Chakma was the owner in possession of certain lands measuring 1.02 acre appertaining to C.S. Plot Nos. 1137, 1135, 1142 and 1145 under Khatian Nos. 343 and 344 of Mouja Dhanicherra as allottee,. After the death of Jangalya Chakma in the year 1994, his survivor, the Respondents herein, converted the said lands into a tank for the purpose of fishery and since then they have been in peaceful enjoyment of the same. A counter allegation that the Appellant herein made attempt to possess the tank by force leading to a proceeding under Section 145 Code of Criminal procedure, and filing of title Suit No. 11/2002 by them against the Appellant has been built in the said written statement. It is their further defence that the judgment delivered in the said Title Suit No. 11/2002 passed on 20.5.2003 by the same trial court declared right, title, interest and possession of the Respondents in the suit property and, therefore, the suit for perpetual injunction filed by the Appellant herein was not maintainable. 5. In the face of the above rival contentions, the learned trial court framed four issues relating to maintainability, possession and alleged attempt of dispossession of the suit property. From the documents and oral evidence adduced by the rival parties, it was found by the trial court that Title Suit No. 11/2002 was instituted by the Respondents herein claiming right, title, interest and possession over certain lands which are different from the suit tank of the present proceeding. From the documents and oral evidence adduced by the rival parties, it was found by the trial court that Title Suit No. 11/2002 was instituted by the Respondents herein claiming right, title, interest and possession over certain lands which are different from the suit tank of the present proceeding. The decretal lands of that suit appertain to C.S. Plots No. 1135 and 1137 under Khatian No. 344 of Mouja Dhanicherra being bounded on the north by lands of C.S. Plot Nos. 1136 and 1131 (road), on the south by C.S. Plot Nos. 1145 and 1146, on the east by C.S. Plot Nos. 1134, 1138, 1141 and 1142, and on the west by C.S. Plot Nos. 1136 and 1146 (road). It would thus appear that the said judgment and decree in favour of the Respondents do not relate to C.S. Plot Nos. 1146 and 1147, which is the suit property in the case in hand. The said judgment further makes it clear that the suit property constitute southern boundary of the land of Respondents appertaining to plot Nos. 1135 and l137 as per the decree passed in their favour in the above Title Suit No. 11/2002. Thus, the defence of the Respondents claiming title over the suit tank on the basis of the judgment and decree in the said suit cannot stand as the same does not cover the suit tank in the case in hand. 6. It has, however, been observed by the learned trial court that the Khas Khatian covering the suit tank of plot Nos, 1146 and 1147 has no mention in the remarks column about possession of either party. But two other documents marked as exhibit 4 and 5 gave the indication that the Appellant applied for allotment of khash land, which was duly processed and recommended though no final order was passed. In the proceeding under Section 145 Code of Criminal Procedure no decision was rendered about the possession over the property and in one such proceeding the observation of the Executive Magistrate was that the petition being under Section 187(3) of the TLR and LR Act, 1960 the proceeding had to be dropped. It is noticed that the second Respondent Malati Chakma confined her claim to the lands covered by the decree in Title Suit No. 11/2002, which relate to plots No. 1135 and 1137 only. It is noticed that the second Respondent Malati Chakma confined her claim to the lands covered by the decree in Title Suit No. 11/2002, which relate to plots No. 1135 and 1137 only. In other words, the Respondents have no claim over the lands of C.S. Plots No. 1146 and 1147, which, as a matter of fact, constitute the suit tank. Upon consideration of the above materials on record, the learned trial court recorded its finding on possession over the suit tank in the following lines: Be that as it may, from the aforesaid discussion made above it appears to me that the Plaintiff Sukumar Saha was in possession of the suit property classified as null and lunga by way of converting it into a fishery at about 27/28 years back. Thus the Issue No. 2 is accordingly answered affirmative in favour of the Plaintiff and also against the Defendants. 7. After answering Issue No. 2 in favour of the Appellant herein, the learned trial court proceeded to hold that the Respondents herein made attempt to dispossess the Appellant on 7.3.2004 giving rise the cause of action for filing the suit for perpetual injunction. 8. Though claim of possession and cause of action advanced by the Appellant sailed smoothly, the same had fallen into rough weather when Issue No. 1 regarding maintainability of the suit was taken up for consideration. It has been observed that though the Appellant was in possession of the suit property for a period of 27/28 years, his application for allotment of the land was not finally disposed of presumably because the suit tank has fallen within the Tribal Areas Autonomous District. Under the TLR and LR Act the State Government cannot make allotment of any land falling in the Tribal District. The other technical question addressed by the trial court is that for obtaining a decree of perpetual injunction, the Appellant was required to prove his right to enjoy the land in view of the provision contained in Section 38 of the Specific Relief Act, 1963. The said provision provides as follows: 38. Perpetual injunction when granted- (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the Plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. The said provision provides as follows: 38. Perpetual injunction when granted- (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the Plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the Defendant invades or threatens to invade the Plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases namely- (a) Where the Defendant is trustee of the property for the Plaintiff; (b) Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) Where the invasion is such that compensation in money would not afford adequate relief; (d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings. The above provision was understood by the learned trial court to mean that the Appellant herein was required to satisfy the court about his right to the suit property or right to enjoyment of that property. The relevant part of the observation reads as follows: In the case at hand, the Plaintiff by adducing oral/documentary evidence could not satisfy the court his right to property or right to enjoyment of the property through which this Court can grant a relief as prayed for. So on the face of evidence on record I do not find any scope to grant a decree for perpetual injunction in favour of the Plaintiff over the suit land against the Defendants, although the Plaintiff has been able to establish his possession over the suit property. (Emphasis supplied) Thus, the suit for a decree of perpetual injunction was found to be not maintainable and accordingly, the same was dismissed by the trial court. 9. The Appellant filed Title Appeal No. 22/2004 before the Additional District Judge, North Tripura, Dharmanagar, against the said judgment and decree of the learned trial court though the same was in his favour with regard to his possession over the suit property. But his long possession proved to be of no avail when came to confront the question of maintainability of the suit. But his long possession proved to be of no avail when came to confront the question of maintainability of the suit. On the other front, the Respondents also filed a Cross Appeal No. 1/2005 against the finding of the learned trial court that they were not in possession of the suit land. Learned appellate court dismissed the cross appeal confirming the finding of the trial court that the Respondents were not in possession of the suit land. As regards the appeal of the Appellant herein, the first appellate court recorded a reverse finding in respect of both possession and maintainability. It was noticed by the first appellate court that the remarks column of the Khas Khatian has not mentioned anything about possession of the appellate giving rise to the presumption to be taken under Section 43 of the TLR and LR Act that the Appellant was not really in possession of the suit land. The appellate court wondered if the Appellant was not in possession of the suit property for 27/28 years after Rajdhar Sarkar, why his name was not mentioned in the remarks column of the Khas Khatian even in the revisional survey. As regards exhibit 4 and 5, it is the observation of the said court that these two documents proved nothing about the possession of the Appellant over the suit land. The oral evidence in favour of possession of the Appellant over the suit property was ignored by the first appellate court on the ground that documentary evidence like Khas Khatian with no remarks about possession should be allowed to prevail over the oral testimony. Thus, the said court came to hold that the Appellant failed to prove his peaceful possession over the suit property which is a sine qua non for a decree for perpetual injunction. 10. After recording a reverse finding that the Appellant failed to prove his possession over the suit tank, the first appellate court proceeded to address the question of maintainability and found that the same was wrongly decided by the trial court. According to him, the issue about maintainability was totally a non-issue and should not have been addressed at all. 10. After recording a reverse finding that the Appellant failed to prove his possession over the suit tank, the first appellate court proceeded to address the question of maintainability and found that the same was wrongly decided by the trial court. According to him, the issue about maintainability was totally a non-issue and should not have been addressed at all. The relevant part of the observation reads as follows: The learned trial court below formulated the issue regarding the maintainability of the present suit but on perusal of the pleading of the parties i.e. the written statement filed by the Respondent reveals that no specific pleading has been put forward to show that the present suit is barred by provisions of any specific law or due to specific fact. The suit is not maintainable or there is a certain defect in the form of the present suit. Though evasive statement is made at para 1 to 8 of the written statement but no provision of law or any specific fact is put forward for defeat of the suit of the Appellant. As provision of Order 7 Rule 11 of Code of Civil Procedure the plaint should be rejected when it does not disclose the cause of action or not properly valued or stumped or where the suit appears from the statement in the plaint to be barred by any law, etc. But on perusal of the record of the learned court below it appears that the suit was admitted for trial as it was filed in time, duly stamped and have the cause of action. So, the issue No. 1 is an unnecessary issue. Dealing with the question of maintainability in view of the provision of Section 38(3) of the Specific Relief Act, the first appellate court observed that as the Appellant could not prove his possession over the suit land, the prayer for a decree of perpetual injunction had no merit and, therefore, the question of maintainability became a non issue. Finally, like the cross appeal of the Respondents, the appeal of the Appellant also suffered dismissal with the finding that neither the Appellant nor the Respondents were in possession of the suit land. 11. Though, the Appellant herein has put under challenge the said judgment and decree of the first appellate court, the Respondents herein choose to drop out from the battle there. 11. Though, the Appellant herein has put under challenge the said judgment and decree of the first appellate court, the Respondents herein choose to drop out from the battle there. Thus, their claim of title and possession over the suit tank stood nullified both in the trial court as well as in first appellate court. The Appellant, however, stands on the different footing as he is backed by a finding of possession from the trial court which has been reversed by the first appellate court. The suit having been found maintainable by the first appellate court, the main question that has been agitated in this second appeal is about the reverse finding on possession of that court on the ground that such finding is perverse, grossly unjust inasmuch as it is against the documentary and oral evidence available on record. Thus, having regard to the nature of the controversy, the only substantial question of law framed at the time of admission on 4.5.2005 reads as follows: Whether the judgment of the first appellate court reversing the judgment and decree of the court of first instance is perverse on the ground that it ignored the report about the possession in Ext. 5 and relied only on the absence of remarks in column 24 of the record of rights? 12. The claim of possession of the Respondents herein having paled out of consideration in the present second appeal, it is to be seen whether the reverse finding about possession of the Appellant in the suit tank is in total disregard of the documentary and oral evidence and, therefore, suffers from perversity. The consideration that figured prominently in the impugned judgment is absence of any remark in column 24 of the record of rights about possession of the Appellant, which according to the first appellate court must be taken to be the final evidence on the issue. Though Section 43 of the TLR and LR Act provides that the entries in the record of rights shall be presumed to be correct till rebutted, it is to be seen whether the other document and materials on record constitute a rebuttal evidence. Apart from the witnesses who spoke in favour of the Appellant that the suit land was in peaceful possession of the Appellant for a long 27/28 years, Ext. 5 undoubtedly substantiates and corroborates the oral evidence in that regard. Apart from the witnesses who spoke in favour of the Appellant that the suit land was in peaceful possession of the Appellant for a long 27/28 years, Ext. 5 undoubtedly substantiates and corroborates the oral evidence in that regard. The enquiry report in response to the letter dated 22nd August, 2002 by the District Magistrate and Collector to the Sub-Divisional Magistrate is marked as Ext. 4. The enquiry report of the Sub-Divisional Magistrate dated 7.9.2002 is quoted below: Government of Tripura Office of The Sub-Divisional Magistrate Kanchanpur: North Tripura Revenue Section No. 705-07.F.5 (03ySDM/KCP/REV/2002 Dated 7/9/2002 To The District Magistrate and Collector, Kailashahar, North Tripura Dist. Subject: Sending of enquiry report. Sir, Kindly find enclosed herewith, the factual enquiry report submitted by the Tehasildar, Machmara T.K. alongwith view of the undersigned regarding the above subject, which will speak for itself. That Sir, one Sri, Sukumar Saha S/o Sukhalal Saha of Ugalcherra has been possessing the land measuring 0.92 acres of mouja Dhanicherra in present C.S. Plot Nos. 1146 and 1147-under recorded Govt. Khas Khatian Nos. 1/71 and 1/18 since 25/26 years before. Under the above circumstances, it is clear that, Sri Saha possessing Govt. khas land since long and he can apply for allotment of land Under Section 14of TLR and LR Act, 1960. This is for favour of your kind information and necessary action please. Sd/- Sub-Divisional Magistrate Kanchanpur, North Tripura. Enclo: 1. Ration card copy. 2. CRC Copy. 3. Affidavit copy. 4. Khas khatian Nos. 1/71 and 1/18-1. 5. Trace map. 6. Allotment proposal order-2. 7. Original petition+3. 8. Ref. No. FII-I(30yDMN/92/2922-23 dt. 22.8.2002. 9. Pleader record. 13. It would appear from the above report that the Appellant was physically found to be in possession of the land measuring 0.92 acres of Mouja Dhanicherra in the present C.S. Plots No. 1146 and 1147 recorded in Government Khash Khatian Nos. 1/71 and 1/18 since 25/26 years before. It is not in dispute that exactly this land constitutes the suit tank. In my considered view, the oral evidence as well as this enquiry report should not have missed the consideration of the learned appellate court and should have been treated as sufficient evidence to rebut the presumption about absence of any remark about possession in the above two khas khatians. In my considered view, the oral evidence as well as this enquiry report should not have missed the consideration of the learned appellate court and should have been treated as sufficient evidence to rebut the presumption about absence of any remark about possession in the above two khas khatians. It is to be remembered that though absence of any remarks about possession in the record of rights does not provide any support to the Appellant herein about his claim of possession, it also has to be kept in mind that such absence of remarks alone does not necessarily be understood to have conclusively proved that he was not in possession of the suit property. The learned appellate court therefore, acted with gross illegality by ignoring the oral and documentary evidence discussed above which formed the basis for the learned trial court to record a finding that the Appellant herein was in peaceful possession of the suit property for 27/28 years. There has been no good reason for the first appellate court to ignore the findings of the revenue authority as well as the learned trial court below. Another serious error of law committed by the said court is in its view that absence of any remark about possession in the Khas Khatian is alone a final evidence to override all other oral and documentary evidence on the question. It needs no authority to put on record that every entry is khatians has only presumptive value which is subject to rebuttable evidence. Section 43(3) of the TLR and LR Act which speaks of presumptive value of every entry in the Khatian does not speak of similar presumptive value to absence of any entry or remark. Section 43(3) provides: 43. (3) Every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct. But the learned first appellate court assigned not only presumptive but final, conclusive and overriding value to absence of any remark in column 24 of the Khatian in question about physical possession over the suit property and thereby, in my considered opinion, stepped beyond its parameters entailing a failure of justice. The impugned judgment on the question of possession therefore, suffers from perversity and stands quashed affirming thereby the finding of the learned trial court about possession of the Appellant in the suit land. 14. The impugned judgment on the question of possession therefore, suffers from perversity and stands quashed affirming thereby the finding of the learned trial court about possession of the Appellant in the suit land. 14. As regards the question of maintainability, it is to be noted that Section 38(3) of the Specific Relief Act speaks of not only 'right to property' but also 'enjoyment of property' which, if invaded, the person having enjoyment of such property may also apply for a relief in the form of a perpetual injunction under Section 38 of the Specific Relief Act. It is not correct, as has been viewed by the learned trial court, that the Plaintiff must prove his right to enjoyment of the suit property to justify the prayer for permanent injunction. The words "right to enjoyment of property" used in Section 38(3) of the Specific Relief Act are to be understood by 'right to property' or 'enjoyment of property'. Because of the disjunctive 'or' used in between, there is no reason to read the same by 'right to enjoyment of property'. By not reading the word 'or' the trial court made the above erroneous finding. What thus emerges from the above is that it is not necessary to prove right to enjoy property for a perpetual injunction. If merely enjoyment of property is proved the Plaintiff is entitled to make a prayer for perpetual injunction. In the present case, there is no claim by the Appellant that he acquired any right or title to the suit property against its owner, the State Government. But it was admitted by the State functionary in their report that the Appellant was in enjoyment of the suit property by possessing the same for 25/26 years. The Appellant instituted the suit for perpetual injunction when his possession and enjoyment of that property was threatened to be invaded by the Respondents. It has been seen above that the Respondents were under a mistaken belief that by virtue of the decree in their favour in T.S. 11/2002 the suit property belong to plots No. 1135 and 1137 of which they were the owner. Whether the Appellant has acquired any right by long possession and enjoyment of the suit property against the State Government is a question not to be decided in the present proceeding. Whether the Appellant has acquired any right by long possession and enjoyment of the suit property against the State Government is a question not to be decided in the present proceeding. The fact remains that the suit property is in Khash Khatian of the State Government of which the Appellant is only in possession and enjoyment for a long uninterrupted period. Though, he has not claimed and may not have acquired any right against the State Government, his enjoyment of the property cannot be invaded or infringed by any person except the Government. A careful reading of Section 38of the Specific Relief Act would go to show that it is not only right to property, but enjoyment of property also, if infringed, the person aggrieved thereby may seek the remedy of perpetual injunction under that provision. In that view of the matter, his prayer for perpetual injunction against the Respondents, who were neither the owner, nor in possession of the suit land was maintainable under Section 38 of the Specific Relief Act and, therefore, the finding of the learned trial court on this ground is not sustainable in law. 15. In view of the discussion and observation foregoing, this second appeal has merit and, therefore, the same is allowed. The judgment and decree of the first appellate court impugned herein are hereby set aside. The findings of the learned trial court that the Appellant was in possession of the suit land for a long period of 27/28 years is hereby affirmed. The suit of perpetual injunction is found maintainable. The Respondents, who are neither found to be owner nor the possessor of the suit tank are hereby restrained from entering into the suit tank or disturbing peaceful possession of the Appellant therein in any manner. There shall be no order as to cost. 16. Send down the case records immediately. Appeal allowed