S.C.Das, J.:— This civil second appeal, under Section 100 of the Code of Civil Procedure, is directed against the judgments & decrees, dated 06.05.1996 and 01.07.1996 respectively, passed by learned Additional District Judge, West Tripura, Agartala (first appellate Court) in Title Appeal No. 3/1994. In the said ap peal before the learned Additional District Judge, West Tripura, Agartala, the judg ments & decrees, dated 14.10.1993 and 22.11.1993 respectively, passed by learned Additional Munsiif, Sadar, in Title Suit No. 73 of 1975, was challenged but the first ap pellate Court upheld the judgment & decree, passed by the trial Court and hence this second appeal. 2. Ali Chand Mia, since deceased, predecessor of the present respondents, as plaintiff, instituted Title suit No.73/1975, against Vivekananda Deb (since deceased) predecessor of the present appellants, as defendant, in the Court of Civil Judge, Junior Division, Agartala, interalia, seeking declaration of title and khas possession (recovery of possession) of the land described in the first and second schedule of the plaint. The description of the suit land sc given in the schedules were as follows: "First Schedule District West Tripura, Pargana Agartala, P.S Sadar, Kotwali, Mouja Chandinamura appert aining to old tenancy jote No.293 of landlord sheristha, present settlement Khatian No.2069 included in plot No.210. Boundary North - Formerly Arab Ali, at present Surendra Nama, South - Plot No.24 of Map of commissioner in partition Suit (T.S. 13 of 1962), in western side Ali Chand Mia, the 2nd Schedule land; in eastern side Mia Chand Mia, at present Bibekananda Deb. East - formerly Satish Sarma, At present defdt, Bibekananda Deb. West - Ali Chand Mia, Pltff. western part of Plot No.210. With this boundaries - eastern part of plot No.210 area more or less 10(ten) gandas. Second Schedule Dist West Tripura, Pargana Agartala, P.S Sadar Kotwali, Mouja Chandinamurah appertaining to old jote No. 111 and in present settlement appertaining to Khatian No.33 comprising plot Nos.238/240 and included in plot No.24 of the map of Commissioner in partition suit No. 13 of 1962 Sub-Judge, Court, Agartala. Boundary North - Western part of 1st schedule land. South - Formerly Ali Chand Mia at present Nandalal Choudury. East - Formerly Mia Chand Mia at present Defdt. Bibekananda Deb, the eastern part of partition plot No.24.
Boundary North - Western part of 1st schedule land. South - Formerly Ali Chand Mia at present Nandalal Choudury. East - Formerly Mia Chand Mia at present Defdt. Bibekananda Deb, the eastern part of partition plot No.24. West - Partition plot No.25, owner Ali Chand Mia, pltff Within this more or less -14 (fourteen gandas) the western part of partition plot No.24 " 3. Pleadings of the plaintiff (respdts): It was interalia stated by the plaintiff that the land, described in first schedule of the plaint, was originally belonged to Thakur Dhirendra Chandra Dev Barma, a Sabayet of Sri Sri Laxmi Janardhan and Laxmi Gobinda, Deities and said Thakur Dhirendra Chandra Dev Barma accepting a petition of the plaintiff, dated 02.06.1961, granted registered Tatta' to the plaintiff for the land, described in first schedule, on 10.07.1961 and the plaintiff from the date of such execution of registered patta had been possessing title suit land and enjoying the usufruct thereof and was paying rent to the proper authorities. The said land was recorded in his name in parcha (khatian) No.2069, Plot No.210, measuring 13 gandas but actually it was measuring an area of about 16 gandas. The land described in second schedule of the plaint originally belonged to Abdul Soban, father of the plaintiff and second party defendant Mia Chand Mia. On the death of Abdul Soban they along with other heirs got the land and the plaintiff purchased the land of his co-sharers except his brother, Mia Chand Mia (second party defendant). He (plaintiff) instituted T.SNo. 13/1962 in the Court of Subordinate Judge, Agartala, for partition of whole ancestral property and the second party defendant was the defendant No. 1 in that partition suit, preliminary decree in the suit was passed on 15.07.1964 and thereafter, a Survey Commissioner was appointed for partition of the suit land by metes and bounds and the Survey Commissioner submitted his report with map and considering the report of the Survey Commissioner, final decree was passed, on 30.04. 1968 and the report of the Survey Commissioner with map was formed a part of the final decree.
1968 and the report of the Survey Commissioner with map was formed a part of the final decree. According to that decree south eastern part of plot No.24 of the Commissioner's map measuring 6(six) ganda 3 (three) kara 9(nine) dhur had fallen in the share of second party defendant and the western and northern part of the plot measuring 14(fourteen) ganda 1(one) Kara 1(one) kranti and 13 (thirteen) dhurs had fallen in the share of the plaintiff. After the final decree was passed in the partition suit, the plaintiff started Title Execution Case No. 17/1968 in the Court of Subordinate Judge, Agartala, for getting delivery of possession of the decretal land and in due course possession was delivered to the plaintiff, through Court, on 07.12.1968 and the plaintiff accepted the delivery of possession and was enjoying the suit land along with other lands peacefully without any interference from any quarter. The said second schedule land appertains to old Jote No.111 and it was recorded in the name of plaintiff in Khatian No. 33, plot Nos.238, 239 and 240 measuring 14(fourteen) ganda 1 (one) kara 1 (one) kranti and 13 (thirteen) dhurs. It was further stated that the first schedule land was plaintiffs self-acquired land and therefore, it was left out of partition suit. Relation between the plaintiff and his brother, defendant No.2, got soured for various reasons and litigations and thereby defendant Nos. 1 and 2, in collusion, created a fictitious and fraudulent sale deed, executed by defendant No.2 in favour of defendant No. 1 purported to be a sale deed of suit land of the second schedule, on 13.05.1969 and armed with such fraudulent and fictitious deed defendant No.1 started to disturb the possession of the plaintiff in the suit land of second schedule and the plaintiff informed the Police, on 16.05.1969 and accordingly, NCR Case No.991(M)/69 was started under Section 144 of Cr.P.C. It was ultimately converted to a proceeding, under Section 145 of Cr.P.C and preliminary order was passed, on 16.07.1969. The Executive Magistrate referred the case, under Section 146 of CrPC, to the Civil Court. The Civil Court recomm ended that the defendant was in possession 2(two) months next before the initiation of the proceeding, on the basis of which the case was disposed of by order, dated 14.08.1972, in favour of the defendant.
The Executive Magistrate referred the case, under Section 146 of CrPC, to the Civil Court. The Civil Court recomm ended that the defendant was in possession 2(two) months next before the initiation of the proceeding, on the basis of which the case was disposed of by order, dated 14.08.1972, in favour of the defendant. Armed with that order, defendant No.1 dispossessed the plaintiff from the suit land of both first and second schedule, on 12th of Aswin 1376 B.S. which corresponds to 29th October, 1969 A. D. The plaintiff, therefore, prayed for declaration of title, recovery of possession and other consequential relief. 4.Pleadings of the Defendant (Appellants) Defendant No.1 contested the case by filing written statement, denying all the averments made in the plaint and further stated in Para 16, 17, 18, 19, 20 and 21 of the written statement that the suit land was taluki land and under the provisions of the TLR & LR Act, the suit land was vested in the Government, after the Article came into force and hence the plaintiff had no right to initiate the suit and get relief, as claimed in the suit. The suit land of First Schedule was tribal land and, as such, there could not be legal transfer of the land as per the provisions of TLR & LR Act, 1960. The suit land along with other lands had always been in possession of Mia Chand Mia and he possessed the land for more than 12 years and thus by adverse possession he acquired right, title and interest in the suit- land. It was not his father's property. From the said Mia Chand Mia (defendant No.2), answering defendant (defendant No.1) purchased the land by registered sale deed, dated 13.05.1969 and since then he had been possessing the land by growing paddy and different crops without any interpretation from the plaintiff or any other person. The plaintiff never possessed the suit land. The suit land does not appertain to Khatian No.33 Dag Nos.238,239 and 240 and it was not a land of old Jote No. 111. The descriptions of the suit land in the and second schedule of the plaint were vague and the defendant found it very difficult locate the suit land. There was no land of description in the locality.
The suit land does not appertain to Khatian No.33 Dag Nos.238,239 and 240 and it was not a land of old Jote No. 111. The descriptions of the suit land in the and second schedule of the plaint were vague and the defendant found it very difficult locate the suit land. There was no land of description in the locality. The first schedule land also does not belong to Khatian No. 2069, Plot No. 210 of survey and settlement operation. The defendant, therefore, prayed for dismissal of the suit. 5. Second party defendant did not participate in the trial and also did not put in written statement in the suit. Learned counsels of both side also submitted that the second party defendant did not participate in the suit before the trial Court as well as in the appellate Court. 6. Issues: The following issues were framed for disposal by the trial Court: "1. Is the suit maintainable in its present form and nature: 2. Whether the plot No. 238 and240 of Mouja Chandina Mura under Khatian No.33 appertain to old Jote No. 111 and is covered by decree in partition suit No. T.S. 13/62 of Sub-Judge, Agartala? 3. Whether the plaintiff is entitled to get a decree of right title interest of the suit land? 4. Whether the plaintiff is entitled to get a decree of recovery of khas possession? 5. Whether the plaintiff is entitled to get a decree as prayed for?" 7. Evidence adduced by the parties: In the course of trial, plaintiff Ali Chand Mia, examined himself, as PW.1 and also examined 3(three) more witnesses namely, PW.2, Prabir Kumar Chakraborty, PW.3 Abdul Aziz and P W.4, Dhan Miah. In support of his case, plaintiff also proved the following documents namely: Ext.1 - Registered Patta, dated 10.07.1961, executed by Thakur Dhirendra Chandra Dev Barma, Sebayet of Laxmi Janardhan & Laxmi Gobinda, in favour of the plaintiff. Ext. 2 - Finally published Parcha (Khatian No. 2065) in the name of plaintiff of the "Patta" land. Ext. 3 - Rent receipts of the settled land. Ext.4 - Receipts of payment of Nazrana of Patta' land. Ext. 5 - Rent receipts; Exts.6, 7 and 8 - Registered sale deed executed by Mamtaj Bibi, Bhanu Bibi and Amina Khatun (all sisters of the plaintiff and defen dant No.2), in favour of the plaintiff of their share of ancestral property.
3 - Rent receipts of the settled land. Ext.4 - Receipts of payment of Nazrana of Patta' land. Ext. 5 - Rent receipts; Exts.6, 7 and 8 - Registered sale deed executed by Mamtaj Bibi, Bhanu Bibi and Amina Khatun (all sisters of the plaintiff and defen dant No.2), in favour of the plaintiff of their share of ancestral property. Ext.9 - preliminary decree of Ts.13/ 1962 (Partition Suit). Ext. 10 & 11 - Survey Commissioner's Report with map in connection with preliminary /final decree of the partition suit. Ext. 12- Order/report of delivery of possession, in connection with execution of decree, in Title Execution No. 17/1968. Ext. 13 - Report of Peon (process server) in delivery of possession of the suit land of Title Execution Case No.17/1968. Ext. 14 - Receipts of Parcha in the name of plaintiff. Ext. 15 - Final Decree of TS. 13/1962. Defendant No. 1 examined himself, as DW.1 and also examined 4 (four) more witnesses namely, DW.2 Lal Mia, DW.3 Priyalal Deb, DW.4 Rajkumar Das and DW.5 Dhananjoy Deb. Defendant adduced no documentary evidence. 8. For fair appreciation of the factual and legal aspects, I have meticulously gone through the records and it is found that the suit was instituted by the plaintiff, on 20.05.1975 and learned Additional Munsiff by judgment & decree, dated 09.02.1979, decreed the suit in favour of the plaintiff. Against that judgment, the defendant preferred Title Appeal No. 3/1979 in the Court of District Judge, West Tripura, Agartala and the learned Additional District Judge, West Tripura, Agartala by order, dated 31.07.1982, after hearing, with the consent of learned counsels of both side passed the following order. "ORDER 31.07.1982: Shri A.M.Lodh, learned Advocate for the appellant and Shri S. C. Gupta, learned Advocate for the Respondent are present. The appeal is taken up hearing. At this stage Shri S. C. Gupta, learned Advocate for the respondent submits that the appeal should go back on remand as a local investigation is requisite for the purpose of elucidating the matter in dispute. A petition is also filed by the respondent, for the purpose. Heard the learned lawyers of both the sides. I have gone through the pleadings of both parties as found in the record of the Court below and also the impugned judgment.
A petition is also filed by the respondent, for the purpose. Heard the learned lawyers of both the sides. I have gone through the pleadings of both parties as found in the record of the Court below and also the impugned judgment. I also feel that a local investigation is requisite for the purpose of elucidating whether the plot No.210 of Mouja Chandinamura under Khatian No.2069, as described in First Schedule of the plaint, is a part of old Jote No.293 and is covered by the plaintiffs registered patta dated 10.07.1961 A.D. It is also necessary to find out by local investigation whether plot No.238 and 240 of Mouja Chandinamura under Khatian No.33 appertains to old Jote No. 111 and is covered by decree in Partition Suit No. 13 of 1962 of Subordinate Judge's Court, Agartala and as such I am led to hold that the impugned judgment and decree should be set aside and the suit should go back on remand. Accordingly, it is hereby ordered that the appeal is allowed on contest. The judgment and decree passed by the learned Munsiff on 09.12.1979 are hereby set aside and the suit is sent back on remand for fresh trial. The plaintiff-respondent is directed to apply for local investigation before the Court below within the time fixed by the learned Munsiff, failing which the suit shall stand dismissed with full costs. If a Commission for local investigation is issued, the report of such Commission shall be the evidence on record and the learned Munsiff shall proceed to determine the suit on the basis of the report of the Commissioner and the evidence on record, subject to all just exception. The parties are at liberty to adduce further evidence, if any. The Court below may also recust the issues on record, if necessary, before hearing the suit finally. The parties are directed to appear before the Court below by 28.08.1982. I make no order as to costs in the present appeal.
The parties are at liberty to adduce further evidence, if any. The Court below may also recust the issues on record, if necessary, before hearing the suit finally. The parties are directed to appear before the Court below by 28.08.1982. I make no order as to costs in the present appeal. Sd/- (Sukdeb Roy) Additional District Judge, West Tripura, Agartala." In view of the aforesaid order, learned Civil Judge, Junior Division, recasted the issues and formulated the same afresh, as already reproduced above in Para b, and appointed Survey Commissioner, directing to have a local investigation of the suit land and accordingly, Survey Commissioner submitted report, on 13.07.1972, with map and the Commissioner was also examined before the Court and cross-examined, on behalf of the defendant and the Commissioner's report was provisionally accepted. 9. Taking into consideration, the Commissioner's report and the evidence on record, learned Civil Judge, Junior Division decreed the suit in favour of the plaintiff and the judgment & decree so passed by the trial Court was challenged in the Court of Additional District Judge, West Tripura, Agartala, in Title Appeal No.3/1994 and by the impugned judgment, dated 06.05.1996, the first appellate Court affirmed the judgment& decree, passed by the lower Court. 10. Against the judgment, passed in second appeal, the defendant (appellants), preferred Civil Appeal No.6318/2003 before the Hon'ble Supreme Court and the Hon'ble Supreme Court disposed the appeal by Order, dated 5th August, 2010 observing thus: “ORDER This Appeal, by special leave, has been filed against the impugned judgment of the Gauhati High Court, Agartala Bench dated 03.09.2002 whereby Regular Civil Second Appeal No.30 of 1996 filed by the defendant (appellant herein) has been dismissed and the judgments and decrees passed by the Courts below affirmed. We have heard the learned counsel for the parties at considerable length and perused the records. It is not, in our view, necessary to set out the factual matrix in which the controversy arises as the same has been done in the judgments delivered by the Courts below. Besides after making their submissions at some length, learned counsel for the parties agreed that the judgment under appeal could be set aside and the matter remitted back to the High Court for a fresh disposal of the case in accordance with law.
Besides after making their submissions at some length, learned counsel for the parties agreed that the judgment under appeal could be set aside and the matter remitted back to the High Court for a fresh disposal of the case in accordance with law. This appeal is, accordingly, allowed, the judgment under appeal set aside and the case remitted back to the High Court for a fresh disposal in accordance with law. It is clarified that this order shall not be taken as expression of any opinion on the merits of on any of the contentions that may be open to the parties. Since the matter is very old, we request the High Court to dispose of the appeal as expeditiously as possible. No costs. Sd/-(Markandey Katju) Sd/-(T.S.Thakur)" In view of the above order of the Apex Court, the appeal is again taken up and I have heard learned senior counsel, Mr. A.M. Lodh, assisted by Mr. A. Lodh, for the appellant and the learned counsel, Mr. Debabrata Chakraborty, for the respondents. 11. While admitting the second appeal, by order, dated 18.09.1996 only one substantial question of law was formulated namely, "whether a Sebavet can transfer the property of deity, if so under what circumstances". It was stipulated in the order that there are other law points also, which required to be decided in the appeal but no more specific question was formulated by that order. Subsequently, on the prayer of the learned counsel of the appellant, by Order, dated 05.12.2011, another substantial question of law was formulated namely, "how far the Survey Commissioner's Report can be treated as evidence." 12. Decision on substantial question of law: While deciding the second appeal, this Court is not required to re-appreciate the evidence on record. However, for fair appreciation and decision of the substantial question of law, formulated by this Court, I have meticulously gone through the relevant evidence and materials on record. On the first substantial question of law, learned senior counsel, Mr.
However, for fair appreciation and decision of the substantial question of law, formulated by this Court, I have meticulously gone through the relevant evidence and materials on record. On the first substantial question of law, learned senior counsel, Mr. Lodh, has submitted that admittedly, the first schedule land belonged to Sri Sri Laxmi Janardhan and Laxmi Gobinda, Deities and Thakur Dhirendra Chandra Dev Barma was Sebayet of those deities and transfer of such 'Debbottar' property without legal necessity connected with the interest of deity was illegal and by such illegal transfer, made by Sebayet, the plaintiff, earned no right, title and interest over the suit land and the decree passed by the Courts below, therefore, was illegal. Learned counsel relied on the decision of the Apex Court in the case of Sarangadeva Vs. Ramaswami reported in AIR 1966 SC 1603 and submitted that the ratio of the decision is squarely applicable in the present case as there is no recital in the deed that the transfer was effected for the interest of the Deity or for the interest of the worshippers of the deity. On the other hand, learned counsel, Mr. Chakraborty, appearing for the defendant-respondents, has submitted that the defendant was a stranger. The land was taluka land of Thakur Dhirendra Chandra Dev Sarma, who might have dedicated himself to the worship of Sri Sri Laxmi Janardhan and Laxmi Gobinda, Deities, and so from his taluki land of his absolute ownership, he has issued the registered patta in favour of the plaintiff and delivered possession of the land of first schedule. The plaintiff, therefore, acquired right, title and interest over the land of First Schedule. The defendant in the written statement made no pleading that the land was Debbottar property and that the transfer thereof was, therefore, illegal and no issue was also framed by the trial Court as no such pleading was raised by the defendant in their pleadings. The said transfer was never challenged by the successors/heirs of Thakur Dhirendra Chandra Dev Barma or any worshiper of the Deities and, therefore, defendant being a stranger had no right at all to disposes the plaintiff to grab the property forcibly.
The said transfer was never challenged by the successors/heirs of Thakur Dhirendra Chandra Dev Barma or any worshiper of the Deities and, therefore, defendant being a stranger had no right at all to disposes the plaintiff to grab the property forcibly. It was further argued that the defendant in their written statement pleaded that the first schedule land being a tribal land, transfer thereof by Thakur Dhirendra Chandra Dev Barma, being a tribal, to the plaintiff being a non-tribal, was illegal in view of the provision prescribed in TLR & LR Act and while such pleading was set up by the defendant, the defendant was estopped by conduct from raising a point of' Debbottar property' before the appellate Court. It was also argued that admittedly, it was taluki land of Thakur Dhirendra Chandra Dev Barma, as Sebayet of the deity and the talukas were vested with theGovernmentaftertheTLR&LRAct, 1960 came into force and, therefore, the plaintiff being a Pattadar (Kabuliat holder) under the Talukdar of a taluki property earned Rayoti right, in view of the Khatian allowed in favour of the plaintiff. Learned counsel referred the decision of Kapur Chand Vs. Ganesh Datta reported in 7993 SC 1145 and submitted that the defendant -appellant being a stranger, has no right to question the validity of the settlement of land on the ground that it was made by a Sebayet. Ext. 1, is the registered Patta, dated 10.07.1961, clearly shows that it was executed in favour of the plaintiff by Thakur Dhirendra Chandra Dev Sarma, as Sebayet, Sri Sri Laxmi Janardhan and Laxmi Gobinda, deities. The recitals of the deed also demonstrate the fact. Thakur Dhirendra Chandra Dev Sarma, in the recitals of the deed, explained that the taluka land absolutely belonged to him as Sebayet of the deities. There is nothing in the deed that the transfer was effected for any legal necessities of the deities or for the purpose of the worshipers to facilitate worship of the deities. The deed was executed, on 10.07.1961 and the plaintiff was dispossessed from the land, on 29.10.1969. There was no pleading on the part of the defendant that to protect the interest of the deities, the plaintiff was dispossessed from the land and that after such dispossession of the plaintiff, the defendant in any way worshiping or maintaining the deities.
The deed was executed, on 10.07.1961 and the plaintiff was dispossessed from the land, on 29.10.1969. There was no pleading on the part of the defendant that to protect the interest of the deities, the plaintiff was dispossessed from the land and that after such dispossession of the plaintiff, the defendant in any way worshiping or maintaining the deities. The defendant was purely a stranger or trespasser having no right at all to claim right, title and interest over the suit land. There was no iota of evidence that Mia Chand Mia, defendant No.2, the Vendor of the defendant No.1 acquired title to the land of first schedule in any manner. The said Mia Chand Mia, though, made 2nd party-defendant in the suit did not turn up to contest the case or to support the execution of deed in favour of defendant No.1 for consideration. The plaintiff alleged that it was a deed, fraudulently executed with a view to grab the land of the plaintiff. While the land was admittedly a taluki land, the taluk was vested with the Govern ment after the TLR & LR Act came into force and the plaintiff being a Pattadar (kabuliet holder) of the land got settlement of the same by way of finally published Khatian, created in his name, definitely was in a better position /right to hold the land of first schedule than that of defendant No. 1. The Apex Court in the case of Sudhangshu Mohan Deb Vs. Niroda Sundari Debidhup & Ors. reported in (2004) 4 SCC 389 has held thus: "From perusal of Sections 134,135 and 133 of the Act it will be seen that after the notified date no one except the State Government is left with any right, title or interest in the subject lands. Once the lands vested in the State Government, the State Government is free to deal with the same in any manner it decide This may include a decision on the part of the State Government to grant tenancy rights with respect to the lands or any portion thereof in favour of any party on payment of land revenue." Section 43 of the Act conveys the consequence of publication of Khatiayan. It will be seen from Section 43 that once a Khatiayan is finalised and its publication takes place, it is presumed to be correct until the contrary is proved.
It will be seen from Section 43 that once a Khatiayan is finalised and its publication takes place, it is presumed to be correct until the contrary is proved. The final khatiyan stands published in favour of the appellant which gives the appellant right to remain in possession of the suit land. This is a fresh right created in favour of the appellant by the State Government in whom the entire land had vested by virtue of Sections 134 and 135 of the Act. The claim of the appellant based on finalisation of Khatiyan in his favour in 1974 is fully justified." It is no doubt a settled law that property belonged to deity or idol termed as "Devottar property" cannot be, alienated in absence of any legal necessity or bonafide need for the interest and/or in order to protect the interest of the deity or idol. A Sebayet cannot transfer or alienate the property belonging to the deity for his personal interest or on any other ground except that of the interest or necessity of the deity. In the case in hand, the recitals of the deed (Ext. 1) shows that Thakur Dhirendra Chandra Dev Sarma, being Sebayet, issued the Patta and thereby settled the taluki land of first schedule in favour of the plaintiff, on payment of Nazarana and the recitals also shows that the land belonged to the deities and it further shows that the executor of the deed was the absolute owner of the taluka and while the law was so settled, after coming into force of the TLR & LR Act 1960, all talukas while vested in the Government and the pattadars were given khatians by the Government, the plaintiff otherwise acquired a good title, irrespective of the fact that it was belonged to deities or not, whereas, the defendant has nothing to show or to rebut the claim of the plaintiff. Further the pleading of the defendant in the plaint identically was that the transfer by the tribal to non-tribal was prohibited by TLR & LR Act. There was no pleading that being a Debbottar property the transfer was illegal. There was also no case of the defendant that he has any better right and he acquired title to the land in a manner better than the plaintiff.
There was no pleading that being a Debbottar property the transfer was illegal. There was also no case of the defendant that he has any better right and he acquired title to the land in a manner better than the plaintiff. In view of the forgoing discussions, I find no merit on the point raised, on behalf of the appellant and it is decided in negative. 13. The next substantial question of law, as raised on behalf of the appellant is regarding the evidence of the report of the Survey Commissioner. Learned counsel, Mr. Lodh, has submitted that the Survey Commissioner's report is vague and uncertain and on the basis of the report no prudent decision can be arrived at for the 2nd schedule land. Learned counsel pointed out that there was nothing to take the decision that second schedule land was a part of the Jote No. 111 and, therefore, the decree passed by the trial Court and affirmed by the first Appellate Court was wrong and illegal. Learned counsel, Mr. Chakraborty, on the contrary, has submitted that the report of the Survey Commissioner was an evidence recorded during trial and in second appeal, there is no scope of re-appreciation of that evidence while such evidence has already been considered by the trial Court and the first appellate Court. Learned counsel also relied on the decision of the Hon'ble Apex Court in the case of Subhaga & Ors. Vs. Shobha & Ors. reported in (2006) 5 SCC 466 and argued that this Court in the second appeal cannot interfere with the concurrent finding of fact and in view of the evidence and materials on record, no such interference also warranted. I have considered the rival contention of the learned counsel of both sides. I have already reproduced earlier the order, passed by the Additional District Judge, on 31.07.1982 in TA.3/1979 while remanding the case to the trial Court for local investigation of the suit land, directing specific point to be determined and that order was a consenting order, based on the submission of the learned counsel of the defendant.
I have already reproduced earlier the order, passed by the Additional District Judge, on 31.07.1982 in TA.3/1979 while remanding the case to the trial Court for local investigation of the suit land, directing specific point to be determined and that order was a consenting order, based on the submission of the learned counsel of the defendant. On perusal of the LC records, I find that pursuant to the order, passed by the Additional District Judge, on 31.07.1982, learned trial Judge passed the order, dated 17.03.1983 appointing Survey Commissioner (Court witness No.1 Pran Gopal Saha) to determine the following 2(two) points: "(i) Whether the plot No.210 of Mouja Chandinamura under Khatian No.2069, is part of Jote No.293 and as covered by the plaintiff, registered patta, dated 10.07.1961. (ii) Whether the Plot Nos.238 and 240 of Mouja Chandinamura, Khatian No.33 pertains to old Jote No. 111 and as covered by decree in partition No. 13/62 of the Court of Subordinate Judge, Agartala." The Survey Commissioner, accordingly, on being appointed by the Court, undertaken local survey and issued notice to both sides to participate in the physical verification process but the defendant did not participate though the order was a consenting order, passed by the Court. The Survey Commis sioner submitted a detailed report with the map of the plot of land and the report was in affirmative. The Survey Commissioner considered all the relevant documents including that of the Commissioner's report submitted in the partition suit instituted by the plaintiff in the year 1962. The Survey Commissioner was examined before the Court, as a Court Witness and was thoroughly cross-examined on behalf of the defendant but the evidence of the Commis sioner was not shaken in any manner. I find, the report was cogent, based on actual verification of the land pursuant to the records placed before the Survey Commissioner. Order 26, Rules 9 and 10, deals with the Commissions for local investigation.
I find, the report was cogent, based on actual verification of the land pursuant to the records placed before the Survey Commissioner. Order 26, Rules 9 and 10, deals with the Commissions for local investigation. Sub-rule 2 of Rule 10 prescribes thus: "Report and depositions to be evidence in suit -The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he was made the investigation." The Commissioner's report is no doubt to be accepted, as an evidence on record and this Court while in a second appeal cannot re-appreciate the Survey Commissioner's report which has already been appreciated by the trial Court and the first appellate Court The Hon'ble Apex Court in the case of Subhaga (supra) has held that property can be identified either by plot number or by boundaries, even if there is any discrepancy, normally, the boundaries should prevail. It is not necessary to survey all adjacent lands to find out whether an encroachment was made in the property concerned. In the reported case, Survey Commis sioner's report was accepted regarding the boundary of the suit property by the trial Court and the first appellate Court but it was interfered in the second appeal and under such circumstances, the Apex Court has held that there was nothing to disturb the Survey Commissioner's report regarding identity of the suit property. The Survey Commissioner's report is an evidence collected during trial. Such evidence is not required to be re-appreciated or scrutinized in second appeal while it was already appreciated by the trial Court and the first appellate Court unless the party challenging it could show that there was perverse report given by the Survey Commis sioner. In the present case, I find the plaintiff and defendant No.2 and their other sisters inherited the property on the death of their father. Exts.6, 7 and 8 shows that the plaintiff purchased share of his 3(three) sisters.
In the present case, I find the plaintiff and defendant No.2 and their other sisters inherited the property on the death of their father. Exts.6, 7 and 8 shows that the plaintiff purchased share of his 3(three) sisters. The Plaintiff instituted Partition Suit No. 63/1962 against second party defendant, Mia Chand Mia, his brother, and the suit was decreed in favour of the plaintiff. Final decree was passed in the partition suit after determining his share by the Survey Commissioner and the Survey Commissioner's report submitted and proved in the instant suit. There is record of delivery of possession in favour of the plaintiff of the second schedule land, pursuant to the partition suit and subsequent execution case. Khatians were prepared and finally published in the name of the plaintiff. The defendant could not show a single scrap of paper to dilute the documentary evidence of the plaintiff. Under such circumstances, I find no merit in the argument advanced on behalf of the appellants. The Survey Commissioner's report was fairly accepted by the trial Court and there is nothing to interfere in it. 15. Having found no merit in the appeal, in view of the discussions made above, the appeal is dismissed with cost to the plaintiff (respondents). The Judgments & decrees, passed by the Courts below are affirmed. 16. Send back the LC records along with a copy of this judgment. 17. Prepare appellate decree accordingly. _____________