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2011 DIGILAW 347 (GAU)

Purnalaxmi Debbarma v. Shyamacharan Debbarma

2011-04-19

A.C.UPADHYAY

body2011
JUDGMENT Arun Chandra Upadhyay, J. 1. All the five appeals aforenoted have been directed against the common judgment dated 9-9-99 passed by the learned Additional District Judge, West Tripura, Agartala. 2. The Plaintiff-Respondents instituted six suits, namely, Title Suit No. 150 of 1985, Title Suit No. 151 of 1985, Title Suit No. 152 of 1985, Title Suit No. 153 of 1985, Title Suit No. 154 of 1985 and Title Suit No. 155 of 1985, against the Defendant-Appellant and four others for declaration of their title over the suit land and for recovery of possession by evicting the Appellant and others. Late Harikanta Debbarma was the original owner of the suit land. The said Harikanta Debbarma during his life time amicably divided his property amongst his son, wife and two daughters. After the death of Harikanta Debbarma, his son, wife and daughters stepped on to his shoes to possess their respective allotted land. The wife and two daughters of late Harikanta Debbarma possessed their respective land jointly, whereas his son Sunil Debbarma possessed his land separately. Sunil Debbarma sold his allotted land to different persons and the wife and daughter of late Harikanta Debbarma jointly sold their shares to the Plaintiff-Respondent by registered deed of sale on 20-1-82. The Plaintiff-Respondent after purchase of the land from the wife and daughter of late Harikanta Debbarma mutated their names in respect of their purchased land without any objection from any quarter whatsoever and started possessing the land without any disturbance. The Plaintiff-Respondent alleged that the Defendant-Appellants along with her husband and three sons illegally trespassed into the suit land which were purchased by the Plaintiff-Respondent and forcibly dispossessed them there from. The Plaintiff-Respondent having no alternative instituted six suits as aforenoted against the Defendant-Appellant and others seeking relief of declaration of their title over the suit land and for recovery of khas possession. 3. The Appellants entered appearance and contested the suit by filing written statement alleging therein that they only mortgaged the suit land to the Respondent. But when the Appellant and others came forward to repay the loan amount, the Respondent refused to accept the same and also refused to concede recovery of the suit land in favour of the Defendant-Appellants. The Defendant-Appellants further stated that they sought justice in the Panchayat but the Plaintiff-Respondent did not obey the direction of the Panchayat. But when the Appellant and others came forward to repay the loan amount, the Respondent refused to accept the same and also refused to concede recovery of the suit land in favour of the Defendant-Appellants. The Defendant-Appellants further stated that they sought justice in the Panchayat but the Plaintiff-Respondent did not obey the direction of the Panchayat. The Appellant further raised the plea that the suit filed by the Plaintiff-Respondent is not maintainable in terms of the provision of Section 14of Tripura Agricultural Indebtedness Relief Act, 1979 since the land in question was mortgaged as defined under the Transfer of Property Act. On the pleadings of the parties, the learned trial Court framed the following issues: (i) Is the suit maintainable in its present form and nature? (ii) Whether the Plaintiff has any right, title, interest in the suit land? (iii) Whether the Plaintiff is entitled to get the decree for recovery of khas possession? (iv) Any other relief or relief? 4. Learned trial Court after careful consideration and discussions of the issues noted above decreed the suit of the Plaintiff. The Defendant preferred the appeal against the decision of the trial Court raising various grounds. The appellate Court of Addl. District Judge, West Tripura, vide his common judgment in all the Title Appeals Nos. 40 to 44 dismissed the appeals with costs, giving rise to these second appeals. 5. This Court on careful consideration of the grounds of appeal framed the following substantial question of law for just decision of the appeals: Whether the civil Court's jurisdiction is barred in view of Section 14 of the Tripura Agricultural Indebtedness Relief Act, 1979. 6. I have heard Mr. M. Kar Bhowmik, learned senior Counsel assisted by Mr. A.C. Debnath, learned Counsel for the Appellant. However, none appeared on behalf of the Respondents. 7. 6. I have heard Mr. M. Kar Bhowmik, learned senior Counsel assisted by Mr. A.C. Debnath, learned Counsel for the Appellant. However, none appeared on behalf of the Respondents. 7. Before we initiate the discussion on the substantial question of law raised in these appeals, it would be in fitness of things to extract herein the relevant provision of Tripura Agricultural Indebtedness Relief Act, 1979, which reads as follows: Section 2(d) "Debt" means any liability in cash or in kind secured or unsecured due from a debtor whether payable under a decree or order of any civil Court or otherwise and includes mortgage money the payment of which is secured by the usufructuary mortgage of immovable property but does not include:- (i) Any sum due to the Government, a cooperative society, a local statutory authority, or the LIC, or a Bank. (ii) Land revenue or anything recoverable as an arrear of land revenue. (iii) Liability arising out of breach of trust, or law in respect of wages or remuneration or in respect of maintenance of any rent due, or in respect of any property let out to a debtor. (c) Debtor means an individual or an undivided Hindu family who has borrowed or incurred any debt and belongs to any of the following categories, namely:- (i) Marginal farmer (ii) Landless labourer (iii) Tribal jhumia (iv) Rural artisan (f) Farmer means a person who is engaged in agriculture. (g) Landless labourer means a person who does not hold any agricultural land and whose principal means of livelihood is manual labour on agricultural land. (h) Marginal farmer in relation of a person not belonging to Scheduled Tribe means a farmer who owns or cultivates as share cropper land measuring not more than one hectare of nal or lunga or two hectares of other agricultural land and in relation of a person belonging to a Scheduled Tribe means a farmer who owns or cultivates as share cropper land measuring not more than two hectares of nal or lunga or four hectares of other agricultural land. Section 3(c) no Civil Court shall entertain any suit, appeal, or proceeding against a debtor for the recovery of any amount of such debt including interest, if any. Section 3(c) no Civil Court shall entertain any suit, appeal, or proceeding against a debtor for the recovery of any amount of such debt including interest, if any. Provided that where a suit, appeal or proceeding is instituted jointly against a debtor and any other person, nothing in this clause shall apply to the maintainability of a suit or proceeding in so far as it relates to such other person. Section 13: In any suit or proceeding, the burden of proving that the debtor is not entitled to the protection of this Act shall, not with standing anything in any other law for the time being in force, lie on the creditor. Section 14(1): No civil Court shall have jurisdiction in respect of any matter which the Tribunal or the Appellate Tribunal is empowered by or under this Act to determine. (2) No order passed or proceeding taken by any officer or authority under this Act shall be called in question in any Court of law. 8. Learned Counsel for the Appellant strenuously submitted that the agreement which is admitted by both the parties is an usufructuary mortgage. Therefore, the Civil Court would not have jurisdiction to entertain the suit filed by the Plaintiff-Respondents. Learned senior Counsel for the Appellant pointed out that in terms of provision of Section 14 of the Tripura Agricultural Indebtedness Relief Act, 1979, the Tribunal which has been empowered to deal with such dispute between the parties has the jurisdiction to decide the lis and not a Civil Court. Learned Counsel for the Appellant by drawing the attention of this Court to the written statement submitted by the Defendant contended that once a defence is raised by the Defendant alleging the transaction as a mortgage, the Civil Court would lose its jurisdiction to proceed with the case any further. 9. Learned Counsel for the Appellants, by referring to the preamble of the Tripura Agricultural Indebtness Relief Act, 1979, has submitted that this Act has been enacted to provide relief from indebtness to agricultural labourers, rural artisans and small farmers in the State of Tripura. Learned Counsel for the Appellant pointed out that as soon as the property in suit is claimed to be a mortgage by the Defendants, a civil suit for recovery of possession would not lie and a civil Court would have no jurisdiction to proceed with the trial of the suit. Learned Counsel for the Appellant pointed out that as soon as the property in suit is claimed to be a mortgage by the Defendants, a civil suit for recovery of possession would not lie and a civil Court would have no jurisdiction to proceed with the trial of the suit. In order to ascertain the intention legislature, it would be infitness of things to scan the provision of law, which prohibits a civil Court from exercising its jurisdiction. 10. Sections 13 and 14 of the Tripura Agricultural Indebtness Relief Act, 1979, provides bar to the jurisdiction of the Civil Court. The provision under Section 13 of the Act has made it clear that in any suit or proceeding, the burden of proving that the debtor is not entitled to the protection of this Act shall, notwithstanding anything in any other law for the time being in force, lie on the creditor, and no Civil Court shall have jurisdiction in respect of any matter, which the Tribunal or the appellate Tribunal is empowered by or under this Act to determine. On perusal of the Notification, dated 04.11.1980, issued by the Government of Tripura, Revenue Department, which has been placed before this Court by the learned Counsel for the Appellants, reveals that the Sub-Divisional Officer of each Sub Division has been appointed as Tribunal and the debtor has been given power to make an application in plain paper to the Tribunal having jurisdiction for the area, where the creditor has its ordinary place of business for delivery of movable property pleaded by the debtor. However, neither it has been contended nor it has been pleaded by the Defendant Appellant that applications were filed before the Tribunal by the Defendant-Appellants claiming such rights as envisaged in the Tripura Agricultural Indebtness Relief Act, 1979. 11. The Tripura Agricultural Indebtness Relief Act, 1979 (hereinafter the Act), defines debtors, farmers, landless labourers, marginal farmers, and also provides for their relief from indebtness. 12. Section 3(g) of the Act, specifically provides that every mortgage executed by such debtor in favour of the creditor shall stand redeemed and the mortgaged property shall be released by the creditor in favour of such debtor. However, nothing in the Section shall be construed to entitle any debtor to a refund of any part of a debt already repaid or recovered from him before the commencement of this Act. However, nothing in the Section shall be construed to entitle any debtor to a refund of any part of a debt already repaid or recovered from him before the commencement of this Act. It has also been clarified by in Explanation II of Section 3(g), that for the purpose of this Act, mortgage includes a transfer under an agreement express or implied for retransfer within a specified period on repayment of the consideration money. 13. Though learned senior Counsel appearing for the Appellants submitted that as soon as the issue of existence of a mortgage is raised by the Defendants, a Civil Court would have no jurisdiction to proceed with the matter any further, however, the provisions of Section 13, which entrusts the Plaintiffs the burden of proving that the debtor is not entitled to the protection of this Act, postulates abundantly for an examination by the Civil Court, the rival claim of the parties as to whether the transaction between the parties had some elements, which would indicate that some amount of considerations either in cash or in kind has been given to the agricultural labourers or rural artisans, or small farmers, as per provision of the Act. Therefore, when in a suit is filed in a Civil Court and an issue is raised that the Defendants fall within the definition of the agricultural labourers, artisans or small farmers, within the definition of the Act and the documents executed between the parties are instruments as covered by the provisions of this Act, a Civil Court is required to examine the issue and decide the truthfulness of the claim so made by the Defendant. Therefore, when an issue relating to application of the Act is raised in a Civil Court, it would be incumbent upon the Court to examine as to whether the provisions of the Act would apply in the facts and circumstances of the case or not. As a matter of fact, a Civil Court after having taken up a Civil suit for hearing cannot abruptly jump to a conclusion by giving up hearing, and throw away the suit without giving adequate opportunity to both the sides of hearing. As a matter of fact, a Civil Court after having taken up a Civil suit for hearing cannot abruptly jump to a conclusion by giving up hearing, and throw away the suit without giving adequate opportunity to both the sides of hearing. If law prohibits continuance of a suit on the happening of a certain incident or on the existence of certain facts or due to bar created by statute, parties to the litigation shall have to establish existence of such contingency before the Civil Court to avail such relief in accordance with law. 14. On scrutiny of the records it appears, both the trial Court as well as the 1st appellate Court, discussed and decided that the bar imposed by Section 14 of the Act is not applicable in the facts and circumstances of the case. 15. In deciding the issue framed in this second appeal as to whether the Civil Court's jurisdiction is barred in view of Section 14 of the Tripura Agricultural Indebtness Relief Act, 1979, it would be pertinent to look into the relevant documents produced by the parties in the suit. Apparently, the Civil Court's jurisdiction is ousted only if a mortgage was created in the property by the Defendants. On perusal of the concurrent findings of the Courts below, though it has been stated by the Appellants that the property, in question, was mortgaged in favour of the Respondents, but it appears that Exbts. 1 to 6 executed by the Defendants clearly and categorically refers to complete transfer of their share by way of sale on receipt of consideration by registered sale deed, and therefore, the transaction cannot be anything but a sale within the meaning of sale as defined under the Transfer of Properties Act. However, the bar imposed by Section 14 of the Act would not apply if the transaction is a sale of immovable properties between the parties. On the other hand, though the Appellants emphasized to have signed a mortgage deed, but failed to come up by adducing cogent and reliable evidence that the papers Exbts. D1 to D6 were executed in accordance with law. On the other hand, though the Appellants emphasized to have signed a mortgage deed, but failed to come up by adducing cogent and reliable evidence that the papers Exbts. D1 to D6 were executed in accordance with law. The sole witness Jamini Kanta Bhowmik examined as DW 4 by the Appellants to prove the said documents came forward to depose that some portions of the said deeds were written by him as per the directions of the Appellant's husband but the vital portion of the said deeds were not written by him. DW 4 further stated that the Respondent did not execute the said deeds in his presence. The Respondent also denied to have executed any of the deeds indicated above. 16. The existing evidence on records, and the concurrent finding of facts recorded by the trial Court as well the lower appellate Court, and apparent failure of the Appellants to adduce evidence on record to prove that the suit land, in question, was mortgaged in favour of the Respondents, and failure of the Appellants to show any other documents to establish that any mortgage was created on the property, in question, to attract the provisions of Section 14 of the Tripura Agricultural Indebtness Relief Act, 1979, disentitles the Appellants to the relief sought for. Therefore, there is no scope to limit and/or oust the jurisdiction of a Civil Court since the property, in question, was not a mortgage but apparently a 'Sell' made by the Appellants to the Plaintiffs Respondents. Therefore, in view of the above, without lingering the discussions any further, I am of the considered view that the provisions of Section 14 of the Tripura Agricultural Indebtness Relief Act, 1979, would not apply in the facts and circumstances of the present case. 17. Accordingly, the substantial question of law formulated in connection with this case, for just decision of the case, is decided in the negative against the Appellants. Consequently, all the appeals aforenoted stands dismissed. Petition dismissed.