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2006 DIGILAW 98 (GAU)

Chameli Debi v. Dipak Nath

2006-01-27

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. This second appeal is directed against the judgment dated 29.11.1995, passed by learned Additional District Judge, West Tripura, Agartala in Title Appeal No. 42 of 1994 affirming the judgment and decree passed by learned Assistant District Judge, West Tripura, Agartala on 27.4.1994 in Title Suit No. 4 of 1972 whereby right, title and interest of the plaintiffs, respondents herein, in respect of the suit lands were declared with a decree for recovery of possession by evicting therefrom the defendants, appellants herein. 2. The brief facts relevant for the present proceeding are that late Upendra Ch. Math was the owner of the suit land along with other lands from whom the plaintiff-respondents being his legal heirs inherited the same. It is the case of the plaintiff-respondents that late Upendra Ch. Nath allowed Jagabandhu Nath, the predecessor of the appellants herein to live on the suit land on condition to vacate the same whenever asked for by the owner. But when Jagabandhu refused to vacate, Upendra instituted Title Suit No. 132 of 1962 for recovery of possession and the proceeding ended in a compromise decree (for short 'sole-decree'). Jagabandhu admitted in that solenama the title of Upendra and agreed to vacate the suit land on condition Upendra's wife would transfer 16 gandas of lands, not being the suit lands in favour of Jagabandhu. After the suit was decreed, Jagabandhu filed Title Suit No. 5 of 1967 against Upendra for cancellation of the solenama on the ground of fraud. The suit was dismissed. The appeal and the second appeal preferred therefrom by him were also dismissed. Upendra put his decree into execution by instituting 5 Ex(T) of 1963 and on 18.9.1964 the decree was executed by evicting Jagabandhu. But on the same day after the process server of the executing court formally put Upendra into possession of the suit land, Jagabandhu dispossessed Upendra at dead of night. Having been dispossessed, thus, the legal heirs of Upendra, who was no more at the relevant time, filed Title Suit No. 4 of 1972 again for declaration of their right, title and interest over the suit land and for recovery of possession thereof. Having been dispossessed, thus, the legal heirs of Upendra, who was no more at the relevant time, filed Title Suit No. 4 of 1972 again for declaration of their right, title and interest over the suit land and for recovery of possession thereof. After a full dressed trial, contested by Jagabandhu, the learned trial court decreed the suit declaring right, title and interest of the legal heirs of Upendra with a decree for recovery of possession of the suit land after evicting Jagabandhu therefrom. The learned trial court passed an order perpetually restraining Jagabandhu from entering into the suit land or creating disturbance in the possession of the legal heirs of Upendra. As the decree was for recovery of possession, the order of perpetual injunction was incompatible and uncalled for, which has been set at right by the learned first appellate court. 3. Aggrieved by the judgment and decree of the learned trial court as noted above, Jagabandhu filed Title Appeal No. 42 of 1994, the judgment wherein has been assailed herein. Before the learned first appellate court, the appellants raised few technical questions such as (i) Title Suit No. 2 of 1962 was decreed in favour of Upendra on the basis of a solenoma. which contained a provision that 16 gandas of land, outside the suit land, owned by Upendra's wife would be transferred in favour of Jagabandhu and because of that provision alone the said sole-decree was required to be registered under Section17(2)(vi) of the Registration Act. As the same was not registered, it was contended that the sole-decree by itself did not confer right, title and interest on Upendra or his legal heirs, (ii) The sole-decree being in the nature of exchange attracted the provision of Section 118 of the Transfer of Property Act and for that reason it was to be registered under Section 119 of that Act. (iii) The learned trial court passed the decree against a dead person for the reason that Kumudini Devi, the plaintiff No. 1 in that suit died on 7.6.1989. (iii) The learned trial court passed the decree against a dead person for the reason that Kumudini Devi, the plaintiff No. 1 in that suit died on 7.6.1989. On the third point, the learned first appellate court, however, on perusal of the records found that the other plaintiffs being daughter of Kumudini Devi filed a petition on 24.6.1989 for deletion of her mother's name and as she was already on record being legal heir of Kumudini Devi, it cannot be said that the decree was passed in favour of a dead person. 4. As Jagabandhu could not call in question the decree in Title Suit No. 12 of 1962 passed on solenoma (compromise petition) after dismissal of his fresh suit, appeal and second appeal against the same, he chose to take shelter of the sheer technicalities only in order to perpetuate his illegal possession in the suit and, which he obtained by sheer show of physical might by driving out Upendra on the same day when Executing Court put the latter in possession. The learned first appellate court discussed the survey commissioners report according to which the suit lands were owned by the legal heirs of Upendra and relying on the above sole-decree found no illegality or material irregularity in the findings of the learned trial court except the part regarding perpetual injunction as discussed above and thereafter proceeded to answer the technical questions As has been rightly held by the learned first appellate court, the Title Suit No. 12 of 1962 was decreed on the basis of a solenama in which Jagabandhu admitted the right, title and interest of Upendra in the suit lands. The other stipulation therein was that Upendra's wife would transfer 16 gandas of land in favour of Jagabandhu for Rs. 2,000 being the consideration money. Therefore, the stipulation about transfer of 16 gandas of land for Rs. 2,000, though incorporated in the solenama, is actually a separate deal inasmuch as by the sole-decree itself the said land of 16 gandas, not being part of the suit land, did not stand transferred. 2,000 being the consideration money. Therefore, the stipulation about transfer of 16 gandas of land for Rs. 2,000, though incorporated in the solenama, is actually a separate deal inasmuch as by the sole-decree itself the said land of 16 gandas, not being part of the suit land, did not stand transferred. It was in the nature of an agreement following which a regular transfer deed was to be executed and registered and this being the position, in my considered view, the decree, which was passed on admission of title by Jagabandhu and also on the strength of other documentary evidence regarding title did not attract relevant provision of the Registration Act or the Transfer of Property Act for registration of the said decree. The argument that the failure to get the sole-decree registered did not confer any title on the legal heirs of Upendra, for the above reasons, has no substance. The appeal was accordingly dismissed affirming the judgment and decree of the learned trial court with the modification as noted above. 5. I have heard Mr. R. Dutta, learned Counsel for the appellants and Mr. P. Deb Roy, learned Counsel for the respondents. 6. The settled factual position being that the respondents being the legal heirs of Upendra are the original owners of the suit lands by virtue of the decree in T.S. 12 of 1962, which holds the field, no ground to assail their title can be entertained in a separate proceeding and for this reason alone the contention of the learned Counsel for the appellants herein remained confined to the technical questions noted above. The learned first appellate court has elaborately dealt with both the questions to show how such questions cannot have sustainability if the decree passed in T.S. 12/62 is considered in its entirety. Though it was a sole decree, the strength of the plaintiff-respondents case on the documentary evidence adduced received support from the admission of Jagabandhu that Upendra was the owner of the entire suit lands. The other part of the solenama being an assurance that Upendra's wife would transfer 16 gandas of land other than the suit land for a consideration of Rs. 2,000 has nothing to do with the merit of the said case or the suit land and proceeding from this premises. The other part of the solenama being an assurance that Upendra's wife would transfer 16 gandas of land other than the suit land for a consideration of Rs. 2,000 has nothing to do with the merit of the said case or the suit land and proceeding from this premises. The learned first appellate court dismissed both the contentions of technical grounds of the appellants after concurring with the findings of the learned trial court. There is no reason to take a different view from that of the learned first appellate court that the decree in T.S. 12/62 is not required to be registered either under the Indian Registration Act or under the Transfer of Property Act. Having lost in all the proceedings instituted by Jagabandhu for cancellation of the solenama he is precluded from raising any question, technical or factual, for assailing the decree in T.S. 12/62 conferring right, title and interest on the legal heirs of Upendra. It is the arrogance and sheer physical might of Jagabandhu or his legal heirs, the appellant herein, which compelled the respondents to knock the doors of the court again and again and it would be a mockery of justice delivery system if such utter disregard to the decree of a court is allowed to go with impunity. Can it be a sound legal proposition that every time a decree holder is dispossessed after getting possession of lands in execution of a decree for declaration of title and recovery of possession he is required to file another suit for similar relief Order XXI of the Civil Procedure Code has the elaborate answer Rule 35 and other related provisions of which could be pressed into service for second execution with police force for restoration of possession by ousting the imposter. The law of criminal trespass is an another and for protection in appropriate criminal proceeding against the defendant-appellants instead of filing a suit again for declaration of title, which was already earlier declared. 8. For the foregoing reasons and discussions, this second appeal has no merit and consequently, the same stands dismissed leaving the parties to bear their own cost.