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2011 DIGILAW 114 (GAU)

Tarani Reang v. Dhanbabu Reang

2011-02-10

A.C.UPADHYAY

body2011
JUDGMENT A.C. Upadhyay, J. 1. This Second appeal is directed against the Judgment & decree dated 28.10.2009, passed by the learned Additional District Judge, North Tripura, Kamalpur, in Title Appeal No. 04 of 2009, whereby the appeal preferred by the Defendant-Appellants, against the Judgment & Decree dated 25.07.2008 passed by the learned Civil Judge, Jr. Division, Kamalpur, Dhalai in Title Suit No. 02 of 2007 was dismissed. 2. I have heard Mr. D.R. Choudhury, learned Counsel for the Defendant-Appellants and Mr. P. Rathor, learned Counsel for the Plaintiff-Respondent. 3. The facts leading to filing of this second appeal may be stated in brief as follows: The Plaintiff-Respondent got allotment of the suit land measuring 2.43 acres being Lunga, Bastu class of land under C.S. Plot No. 106/453, 106/602 and 106/458, covered under Khatian No. 227 under Dhalai District. After the allotment, the Khatian was made in the name of Plaintiff-Respondent. Consequently, the Plaintiff-Respondent started possessing the said land by growing paddy and other crops in the allotted land. On 25.04.2003, the Defendant-Appellants dispossessed the Plaintiff-Respondent forcibly and illegally from the suit land. Consequently, Plaintiff-Respondent filed the suit for declaration of title and recovery of possession of the suit land. 4. The Defendant-Appellants entered appearance and jointly submitted written statement denying the right, title and interest of the Plaintiff-Respondent over the suit land and also denied that the Plaintiff-Respondent had ever come into possession of the suit land. The Defendant-Appellants also contended that since 18.09.1973, they have been all along in possession of the suit land along with other adjacent land, by right of purchase from one Gaya Charan Debbarma, by an unregistered sale deed. The Defendant-Appellants also claimed that the suit land having been in their possession for more than 12 years, without any interruption from the Plaintiff-Respondent and others, and within the knowledge of the Plaintiff-Respondent, the possession of the suit land of the Defendant-Appellants became adverse in the eye of law. Thus, Defendant Appellants claimed that the allotment orders made in favour of the Plaintiff-Respondent in respect of the suit land was illegal, void and beyond the provisions of Section 14 and 15 of the TLR and LR Act, as well as Rule 5 of the TLR and LR Rules, 1962. 5. The learned Trial Court framed following issues for just decision of the case: (i) Whether there is any cause of action? 5. The learned Trial Court framed following issues for just decision of the case: (i) Whether there is any cause of action? (ii) Whether the Plaintiff entitled to a declaration of right title and interest over the suit land? (iii) Whether the Defendants are liable to be evicted from the suit land? (iv) Whether the Plaintiff is entitled to get possession of the suit land? (v) To what relief(s) the Plaintiff is entitled? 6. After careful discussion of the issues in question, the learned Court decreed the suit in favour of the Plaintiff-Respondent. In the appeal, learned Additional District Judge, North Tripura, Kamalpur, discussed and held that even if the Appellants, who claimed to be in possession, for more than 33 years; that too would not create any adverse title in favour of the Appellant, since the Appellants were never aware of the true owner of the land in question. Therefore, the question of denial of title of the true owner never arose and accordingly, the Appellants could not have acquired any title by virtue of adverse possession. The learned appellate Court also held that being the rightful owner of the suit land, the Plaintiff-Respondent was entitled to get back possession of the land measuring 0.95 acre from which, he was dispossessed forcibly by the Defendants-Appellants. The appellate Court did not disturb the finding of the learned trial Court and accordingly, dismissed the appeal. 7. Learned Counsel for the Appellants vehemently submitted that the allotment in respect of the suit land and the creation of khatian in favour of the Plaintiff-Respondent are illegal, void and in violation of provision of Section 14 and 15 of Tripura Land Revenue and Land Reforms Act, 1960 (hereinafter 'Land Reforms Act, 1960) as well as Rule 5 of the TLR & LR Rules, 1962. By drawing attention of the Court to Section 14 and 15 of the 'Land Reforms Act, 1960', learned Counsel for the Appellants submitted that the collector may make allotment of land belonging to the Government, for agricultural purpose or for construction of dwelling house, in accordance with such Rules, as may be made in this behalf, in terms of the provision of the 'Land Reforms Act, 1960" and the Collector is duty bound to allot the land to the trespassers or the person in occupation of the land, before making the allotment in favour of a stranger. 8. 8. It would be pertinent at this stage to extract, herein below, Sections 14 and 15 of the Land Reforms Act, 1960, regarding allotment of land: 14. (1) The Collector may allot land belonging to the Government for agricultural purposes or for construction of dwelling houses, in accordance with such rules as may be made in this behalf under this Act; and such rules may provide for allotment of land to persons evicted under Section14. 15. (1) Any person who occupies or continues to occupy any land belonging to Government without lawful authority shall be regarded as a trespasser and may be summarily evicted there from by competent authority and any building or other construction erected or anything deposited on such land, if not removed within such reasonable time, as such authority may from time to time fix, for the purpose, shall be liable to be forfeited to the Government and to be disposed of in such manner as the competent authority may direct: 9. Learned Counsel for the Appellants has pointed out that the provision of Rule 6 of the Tripura Land Revenue and Land Reforms (Allotment of Land) Rules, 1962 has been framed in exercise of power of Section 98 of Tripura Land Revenue and Land Reforms Act, 1960 read with Section 14 of the Act, which entitles a trespasser to claim the land in his possession. According to the Appellant's counsel, even as a trespasser, in respect of the suit land in question, the Appellants ought to have been allotted the suit land. 10. On scrutiny of the provision of Rule 6 of the Tripura Land Revenue and land Reforms (Allotment of Land) Rules, 1962, it appears that in allotting the land for agricultural purpose, the collector shall follow the following order of preference, namely - (i) Jhumia (ii) An under-raiyat who has been evicted from any land on the ground that it is required for personal cultivation of the raiyat and who is landless; (iii) A landless agricultural worker; (iv) An individual evicted under Section 15 who does not come under any of the categories mentioned in the foregoing clauses and who does not hold land exceeding two standard acres in area; (v) An individual not holding land in excess of two standard acres in area; (vi) Any other person. 11. 11. The Appellants apparently neither could establish such rights over the suit land nor did he fall under any of the categories indicated above. To seek advantage of the provisions as contained in law, an individual has to satisfy the requirement of statutory provisions, before the appropriate forum. In order to do so, such person has to prima facie establish before the authority concerned regarding availability of such qualification or right acquired by him. Unfortunately, in the present case, such was not the claim of the Appellants. The Appellants claimed adverse possession over the suit land, on careful scrutiny of the papers and documents relied on by the Appellants, it transpires that the Appellants miserably failed to prove that the land in question was ever purchased by him and they were in occupation of the land in question, since long before the allotment to the Plaintiff to acquire a right of adverse possession against the real owner. The Plaintiff Respondent has categorically stated in the plaint that he was dispossessed from the suit land in question on 24.03.2003 by the Defendant-Appellants. 12. Learned Counsel for the Appellants by relying on a decision of the Hon'ble Supreme Court reported in AIR 2003 SC 1905 (Bondar Singh and others, Appellants v. Nihal Singh and others, Respondents) submitted that even an unregistered sale deed can be looked into for a collateral purpose, such as to see nature of possession of party over suit land. The relevant extract of the decision may be quoted herein below: 5. The main question as we have already noted is the question of continuous possession of the Plaintiffs over the suit lands. The sale deed dated 9-5-1931 by Fakir Chand, father of the Defendants in favour of Tola Singh, the predecessor interest of the Plaintiff, is an admitted document in the sense its execution is not in dispute. The only defence set up against said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of Plaintiffs. Under the law a sale deed is required to be property stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. Under the law a sale deed is required to be property stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the Plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the Plaintiffs over the suit land was not illegal or unauthorized. 13. However, in the decision cited by the learned Counsel for the Appellants, the sale deed in question was at least exhibited and placed before the Court for examination. However, in the present case, no such sale deed was either ever exhibited or any sale to the Appellants was ever proved by adducing cogent evidence. Therefore, the proposition of law sought to be applied by the learned Counsel by the Appellants cannot be pressed into service in the given facts and circumstances. 14. Mr. Rathor, learned Counsel for the Plaintiff-Respondent by relying the provisions of Section 11of the TLR & LR Act, 1960, submitted that where any property or any right in or over any property is claimed by or on behalf of the Government, or by any person, as against the Government and the claim is disputed, such dispute shall be decided by the Collector whose order shall, subject to the provisions of this Act, shall be final. 15. It appears that, the Appellants, in terms of the provisions of law as provided under Section 11(3) and (4) of the Land Reforms Act, 1960, did not approach the appropriate forum. If the Defendant-Appellants were aggrieved by any order of allotment made by the Collector and if at all they had grievance under the law in which such order was passed, they ought to have approached the appropriate forum for redressal of their grievances. It would neither be possible nor legal for this Court to address such issues, when there is no specific legal provision in favour of the Appellants, which would entitle him to claim his right in this proceeding in the facts and circumstances. 16. Learned Counsel for the Plaintiff-Respondent relying on a decision of this Court reported in Uttam Kumar Sen and Ors. 16. Learned Counsel for the Plaintiff-Respondent relying on a decision of this Court reported in Uttam Kumar Sen and Ors. v. Gita Das Choudhury and Ors.: (1998) 1 GLR 145, submitted that in terms of Land Reforms Act, 1960, record of right shall be presumed to be correct unless and until that has been rebutted. The decision of this Court in this context is depicted in Para 6, 7, 8 and 9: 6. Mr. S. Deb, the learned senior counsel appearing on behalf of the Appellants has at the very outset contended that the judgment of the courts-below are perverse inasmuch as there was practically no proof to show that the Plaintiff acquired title, to the suit land. It is argued by Mr. Deb that record of rights namely, khatian on the basis of which the courts-below made their findings is perverse as record of rights cannot confer title to any one in respect of any land. It is, however, not in dispute that finally published khatian as exhibited in this case indicates that the Plaintiff is in possession of the land. Section 43 of the Tripura Land Revenue and Land Reforms Act, 1960, which is relevant for the purpose may be extracted as under: 43. Publication of the record of rights (1) When a record of rights has been prepared, the Survey Officer shall publish a draft of record in such manner and for such period as may be prescribed and shall receive and consider any objections which may be made during the period of such publication, to any entry therein or to any omission there from. (2) When all objections have been considered and disposed of in accordance with the rule made in this behalf, the Survey Officer shall cause the record to be finally published in the prescribed manner. (3) Every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct 7. The above provision clearly indicates the record of rights shall be presumed to be correct unless and until that has been rebutted. 8. The entry in the record of rights is admissible in evidence under Section35 of the Evidence Act. The above provision clearly indicates the record of rights shall be presumed to be correct unless and until that has been rebutted. 8. The entry in the record of rights is admissible in evidence under Section35 of the Evidence Act. The principle on the basis of which it has been accepted to be admitted is that law reposes the confidence in public officers entrusted with public duties that it be presumed that they will discharge their duties with accuracy and fidelity. The Privy Council in Kesho Prasad v. Mr. Bhagjogna Kuer, AIR 1937 PC 69 (76) has pointed out that entries on such Government records are evidence of title mainly because they are good evidence of possession but if contrary to the facts as to possession at the time they were made they carry little, if any, weight. 9. Keeping the above legal position in view, the finally published khatian marked as Ext. 1 must be construed to have authenticity as to the possession of the Plaintiff in the suit premises. 17. In view of what has been discussed above, applying the same principle of law as discussed in Uttam Kumar Sen (supra), I am of the considered view that there is no scope to linger the discussion on concurrent finding on law and facts by the learned Courts below. The Appellants miserably failed to establish adverse possession over the suit land. The provision of law under the Land Reforms Act of 1960, and the rules made there under, sought to be applied to achieve a preferential right of allotment of the suit land as a trespasser, could not be established by the Appellants. On the face of clear title of the Plaintiff-Respondent, over the suit land, by way of allotment by the Govt. and consequent issuance of khatian in the name of Plaintiff-Respondent, there is no scope to deny the relief sought for by the Plaintiff-Respondent. On proof of subsequent illegal dispossession and trespass into the suit land by the Defendant-Appellants, there is also no scope to entertain a proposition that the allotment in respect of the suit land and creation of khatian in favour of the Plaintiff Respondent was in violation of the provision of Section 14 and 15of Tripura Land Revenue and Land Reforms Act, 1960. That being the position, the finding of the learned trial Court as well as the learned appellate Court being basically correct, there is no substantial question of law to be formulated in this second appeal for just decision of the suit. 18. Since no substantial question of law is involved, accordingly, the appeal stands dismissed at the admission stage. Appeal dismissed.