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2014 DIGILAW 196 (TRI)

Hiran Bala Deb v. State of Tripura

2014-05-27

S.TALAPATRA

body2014
ORDER This is an appeal under Section 100 of the CPC by the plaintiffs against the judgment of reversal dated 08.12.2006 delivered in Title Appeal No. 21/2003 by the Addl. District Judge No. 3, West Tripura, Agartala. 2. The plaintiffs had instituted the suit seeking the reliefs as under: (i) Pass a decree declaring that the plaintiffs had acquired adverse title over the suit land by dint of their continuous and open possession for more than 50 years denying the right, title and interest of the defendants; (ii) pass a decree declaring that the plaintiffs had valuable right and interest over the suit land and were entitled to get full compensation for the land, building and fruit bearing trees over the suit land by dint of their adverse right, title and interest; (iii) pass a decree declaring that the non-reference of the claim of the plaintiffs to the learned L.A. Judge by the defendant No. 2 under Section 30 of the L.A. Act is perverse and unreasonable; (iv) pass a decree of mandatory injunction directing the defendant Nos. 1 and 2 or upon such other defendant as this learned court may deem fit and proper to determine/assess the full compensation for the suit land acquired by the defendant No. 2, as stated and to pay the same to them. 3. It has been pleaded in the plaint that the predecessor-in-interest of the plaintiffs, Kalachand Deb, since deceased, had started possessing a plot of land measuring 0.236 acres unauthorisedly, showing hostility to its true owner, the Govt. of Tripura in the Education Department. He was asked by a show cause issued in Case No. L.A.16/1963 under Section 15(1) of the Tripura Land Revenue and Land Reforms Act (TLR & LR Act) that unless he vacated the land he would be evicted from the unauthorisedly possessed land. The predecessor-in-interest of the plaintiffs did not take any cognizance of such notice. Thereafter, he parted with some parts and parcels of the land to one Kanai Lal Dey and one Amulya Sutradhar measuring.096 acres, but retained the remaining portion measuring.140 acres, as described in the schedule of the plaint. Kanai Lal Dey and Amulya Sutradhar somehow got allotment of that land and the records of right were duly mutated in their names. Thereafter, he parted with some parts and parcels of the land to one Kanai Lal Dey and one Amulya Sutradhar measuring.096 acres, but retained the remaining portion measuring.140 acres, as described in the schedule of the plaint. Kanai Lal Dey and Amulya Sutradhar somehow got allotment of that land and the records of right were duly mutated in their names. According to the plaintiffs, their predecessor-in-interest and they had been possessing that land till the land was acquired under the L.A. Case No. 6/1999. The land under their possession is comprised in plot No. 20623 measuring.140 acres. 4. The defendants, the respondents herein, did not dispute that position of fact, but they have denied that the plaintiffs have acquired the title by prescription. The defendants have also raised the question of maintainability of the suit since, after the award had been passed, the plaintiffs have prayed for reference under Section 30 of the Land Acquisition Act for deciding the appeal and apportionment of the award, but since the respondent No. 2 did not refer the matter to the Land Acquisition Judge for the above purpose, they had issued the notice of demand under Section 80(1) of the CPC and on expiry of the period of notice, they had instituted the suit claiming the reliefs as reproduced above. 5. The trial court, for obvious reasons had framed the issues as under: (I) Is the suit maintainable in law? (II) Have the plaintiffs acquired title over the suit land? (III) Are the plaintiffs entitled to get the full compensation for the suit land acquired by the defendant No. 2? (IV) Are the plaintiffs entitled to the decree as prayed for? (V) To what other reliefs the parties are entitled? 6. The plaintiffs have examined one witness and introduced six documents (Exbt. 1 to Exbt. 6) in the evidence including the show cause notice dated 15.05.1963 (Exbt. 1), notice dated 21.06.2000 issued by the respondent No. 2 under Section 9 in connection with L.A. Case No. 6/SS of 1999 (Exbt. 2) and the application for reference under Section 30 of the L.A. Act, 1894 (Exbt. 6). 7. Based on a decision of the Gauhati High Court in Asher Ali Vs. Sukhna Seikh & Ors., reported in 1992 AIR (GAU) 1, the trial court by the judgment and decree dated 19.05.2003, had discarded the jurisprudential objection as to the maintainability of the suit. 6). 7. Based on a decision of the Gauhati High Court in Asher Ali Vs. Sukhna Seikh & Ors., reported in 1992 AIR (GAU) 1, the trial court by the judgment and decree dated 19.05.2003, had discarded the jurisprudential objection as to the maintainability of the suit. It has been further held that the plaintiffs had acquired the title by prescription, inasmuch as it has been established by evidence that the plaintiffs were in possession for more than 30 years showing open hostility and thus in terms of the provisions of Article 65 read with Section 27 of the Limitation Act, the title has matured in favour of the plaintiffs by prescription and as consequence thereof, all the other reliefs were decided in favour of the plaintiffs. Due compensation has been directed to be given to the plaintiffs for the land as described in the schedule of the plaint. 8. The defendants, being aggrieved by that judgment and decree dated 19.05.2003 passed by the Civil Judge (Jr. Divn.), Agartala, West Tripura delivered in Title Suit No. 28/2002, preferred an appeal under Section 96 of the CPC in the court of the District Judge, West Tripura, Agartala. On transfer, the suit was heard by the Addl. District Judge, Court No. 3, West Tripura, Agartala. By the impugned judgment and decree dated 08.12.2006, passed by the Addl. District Judge, West Tripura, Agartala in Title Appeal No. 21/2003, the judgment and decree passed by the Civil Judge (Jr. Divn.), Agartala, West Tripura was reversed, holding that the plaintiffs had not acquired any title by way of prescription inasmuch as the required animus could not be proved by the plaintiffs. The first appellate court had also made a distinction between the words ’unauthorised occupier’ and ’forcible occupier’. Since in the record of rights, the plaintiffs or their predecessor-in-interest have been recorded as ’unauthorised occupier’, according to the first appellate court that could not carry the same meaning and connotation of ’forcible occupier’. However, no analysis had been provided over that aspect of the matter. In this appeal, the said judgment and decree dated 08.12.2006 is challenged. 9. Since in the record of rights, the plaintiffs or their predecessor-in-interest have been recorded as ’unauthorised occupier’, according to the first appellate court that could not carry the same meaning and connotation of ’forcible occupier’. However, no analysis had been provided over that aspect of the matter. In this appeal, the said judgment and decree dated 08.12.2006 is challenged. 9. At the time of admission of this appeal, the following substantial questions of law were formulated: (1) Whether a First Appellate Court being a Court of law and fact is under obligation to examine the pleadings of the parties and evidence on record before passing a revisional judgment? (2) Whether a First Appellate Court has got any authority or jurisdiction to take something for consideration which is no body’s case as per the pleadings and evidence on record? (3) Whether there is any difference between ’forcible occupier’ and ’unauthorised occupier’ as per law? (4) Whether a documentary evidence on record can be kept aside by First Appellate Court and a well discussed judgment of a Trial Court can be reversed by making out a third case? 10. As agreed to by the counsel of the parties, the substantial question of law has been reframed as under: Whether the distinction between ’forcible occupier’ and ’unauthorised occupier’ is adequate enough to render the evidence as regard animus possidendi redundant? 11. In addition thereto, Mr. G.S. Bhattacharjee, learned counsel appearing for the respondents has raised a jurisprudential objection under Order XLI Rule 22 of the CPC as regard the maintainability of the suit. 12. Mr. S.M. Chakraborty, learned senior counsel appearing for the plaintiff-appellants has submitted that the uninterrupted possession of the plaintiffs or their predecessor-in-interest has not been objected to by the defendants, the respondents herein. However, by filing a composite written statement they have questioned the nature of possession, holding that the title in favour of the plaintiffs has not been perfected by prescription. Therefore, the sole and substantive issue before the trial court was not whether the title had matured in favour of the plaintiffs on the day when by operation of Section 16 of the L.A. Act, 1894, the respondent No. 2 had taken possession of the land as described in the schedule of the plaint. Mr. Therefore, the sole and substantive issue before the trial court was not whether the title had matured in favour of the plaintiffs on the day when by operation of Section 16 of the L.A. Act, 1894, the respondent No. 2 had taken possession of the land as described in the schedule of the plaint. Mr. Chakraborty, learned senior counsel has criticised the impugned judgment, contending that the evidence as to the animus possidendi was not at all appreciated. He has further contended that the record of rights is one piece of evidence, but not the entire evidence for that purpose. The notice for eviction is another vital evidence. A conjoint reading of those evidence would unequivocally establish that at least since 15.05.1963 the plaintiffs or their predecessor were in possession uninterruptedly showing hostility against the true owner. The distinction as made cannot have any impact to out-weigh the said inference. Mr. Chakraborty, learned senior counsel has placed sufficient emphasis to say that unauthorised possession had turned into hostile possession by efflux of time, at least from 15.05.1963. Therefore, there is no infirmity in the declaration made by the trial court and, hence, the reversal judgment be set aside. 13. Mr. G.S. Bhattacharjee, learned counsel appearing for the respondents has submitted that the apex court in Commissioner, Bangalore Development Authority & Anr. Vs. Brijesh Reddy & Anr., reported in (2013) 3 SCC 66 as regards the exclusion of the power of the Civil Court to take cognizance of any disputes under Section 9 of the CPC in the matter relating to the land acquisition proceeding has observed that the Civil Court has got no jurisdiction to any matter pertaining to the land acquisition proceeding. The passages as reproduced hereunder have been relied in particular by Mr. Bhattacharjee, learned counsel appearing for the respondents: 18. It is clear that the Land Acquisition Act is a complete Code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136with self imposed restrictions on their exercise of extraordinary power. 19. No doubt, in the case on hand, the Plaintiffs approached the civil court with a prayer only for permanent injunction restraining the Defendants 1 and 2, i.e., BDA, their agents, servants and any one claiming through them from interfering with the peaceful possession and enjoyment of the schedule property. It is true that there is no challenge to the acquisition proceedings. However, in view of the assertion of the BDA, in their written statements, about the initiation of acquisition proceedings ending with the passing of award, handing over possession and subsequent action etc., the said suit is not maintainable. This was rightly concluded by the trial court. For proper compensation, the aggrieved parties are free to avail the statutory provisions and approach the court concerned. All these aspects have been clearly noted by the trial court and ultimately rightly dismissed the suit as not maintainable. On the other hand, the learned Single Judge of the High Court though adverted to the principles laid down by this Court with reference to acquisition of land under the Land Acquisition Act and Section 9 CPC committed an error in remanding the matter to the trial Court on the ground that the plaintiffs were not given opportunity to adduce evidence to show that their vendor was in possession which entitles them for grant of permanent injunction from evicting them from the scheduled property without due process of law by the defendants. In the light of the specific assertion coupled with materials in the written statement about the acquisition of land long ago and subsequent events, suit of any nature including bare injunction is not maintainable, hence, we are of the view that the High Court is not right in remitting the matter to the trial court for fresh disposal. 20. In the light of the specific assertion coupled with materials in the written statement about the acquisition of land long ago and subsequent events, suit of any nature including bare injunction is not maintainable, hence, we are of the view that the High Court is not right in remitting the matter to the trial court for fresh disposal. 20. Having regard to the fact that the acquisition proceedings had been completed way back in 1960-70, the plaintiffs who purchased the suit land in 1995 cannot have any right to maintain the suit of this nature particularly, against Defendants 1 and 2, namely, the BDA. The High Court clearly erred in remanding the matter when the suit was not maintainable on the face of it. The High Court failed to take note of the fact that even in the plaint itself, the plaintiff-respondents herein have stated that the suit land was acquired and yet they purchased the suit land in 1995 and undoubtedly have to face the consequence. The possession vests with the BDA way back in 1969 and 1978 and all the details have been asserted in the written statements, hence the remittal order cannot be sustained. [Emphasis added] 14. On the aspect of acquisition of title by the plaintiffs on prescription, Mr. Bhattacharjee, learned counsel appearing for the respondents, has contended that mere long possession does not necessarily mean that it is adverse to the true owner. He has further submitted that a person who claims adverse possession should show the date on which he came into possession, the nature of his possession, the knowledge of the factum of possession of the true owner, denial of the possession and the possession being open and undisturbed. To buttress the same, Mr. Bhattacharjee, learned counsel has placed reliance on Chatti Konati Rao & Ors. Vs. Palle Venkata Subba Rao, reported in (2010) 14 SCC 316 . Mr. Bhattacharjee has also referred a decision of the Gauhati High Court in the similar line, reported in 2013 AIR (GAU) 93: Jayanta Saha & Ors. Vs. Tarun Kumar Saha, where it has been held that, in terms of Article 65 of the Limitation Act the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff, but commences from the date when the possession becomes adverse to the true owner. Vs. Tarun Kumar Saha, where it has been held that, in terms of Article 65 of the Limitation Act the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff, but commences from the date when the possession becomes adverse to the true owner. It has been further observed in Jayanta Saha that: The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the Old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession. 15. The trial court, as stated, relied on a decision of the Gauhati High Court in Asher Ali, where it has been observed that, a person claiming a part of the compensation awarded by the Collector in the land acquisition proceeding under the Land Acquisition Act, 1894 is entitled to file a civil suit. 16. As stated, the apex court in Brijesh Reddy has observed that, the Land Acquisition Act is a complete Code in itself and is meant to serve the public purpose. By necessary implication, the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by catapulting a challenge in the High court in a proceeding under Article 226 of the Constitution. It has been further held that the civil court is bereft of jurisdiction to give declaration or grant bare injunction on the invalidity of the procedure under the said Act. The only right available to the aggrieved person is to approach the High Court under Article 226 or the apex court under Article 136, which in exercise of the extraordinary jurisdiction may cause a judicial review. 17. There cannot be any amount of doubt that Asher Ali and Brijesh Reddy have decided in two distinct circumstances. The only right available to the aggrieved person is to approach the High Court under Article 226 or the apex court under Article 136, which in exercise of the extraordinary jurisdiction may cause a judicial review. 17. There cannot be any amount of doubt that Asher Ali and Brijesh Reddy have decided in two distinct circumstances. In Brijesh Reddy, the suit was filed questioning the validity of the declaration made under Sections 4 and 6 of the Land Acquisition Act, 1894, whereas in Asher Ali, the dispute was regarding the title and share of the compensation. 18. In the Land Acquisition Act, 1894, there is no expressed provision, barring the jurisdiction of the Civil Court from taking cognizance of any matter emanating from or related to the land acquisition proceeding. The apex court in Brijesh Reddy has declared the law in respect of certain aspects, which according to the apex court, cannot be adjudicated by the Civil Court on taking cognizance under Section 9 of the CPC. By necessary implication, the jurisdiction under Section 9 of the CPC has been excluded. The Civil Court is bereft of jurisdiction to give declaration or even bare injunction on the premises of invalidity of the procedure under the said act. Even though it has been observed by the apex court that the Land Acquisition Act is a complete code in itself, but according to this court, the jurisdiction of the Civil Court under Section 9 of the CPC as regard the declaration of the title and the consequential relief that may entail, has not been completely taken away by necessary implication. Thus, the jurisdiction as to declare the title by prescription and the consequences that may entail cannot be held to have been excluded by necessary implication. The jurisdiction of the civil courts are not completely taken away as to the cognizance of any dispute which might have any relation or which might emanate from any matter under the land acquisition proceeding. In view of Section 30 of the Land Acquisition Act, such jurisdiction becomes co-terminus. The Civil Court has the jurisdiction to declare the title by prescription or the consequence that would entail for such declaration. 19. In view of above, this court holds that the jurisdiction as exercised by the trial court was co-terminus to the jurisdiction of Section 30 of the Land Acquisition Act, 1894. The Civil Court has the jurisdiction to declare the title by prescription or the consequence that would entail for such declaration. 19. In view of above, this court holds that the jurisdiction as exercised by the trial court was co-terminus to the jurisdiction of Section 30 of the Land Acquisition Act, 1894. The option, however, lies with the aggrieved person to choose the forum. By necessary implications, the said jurisdiction as co-terminus to Section 30 of the Land Acquisition Act, 1894 cannot be held to have been taken away. 20. As corollary to such observations, the suit has been rightly declared maintainable by the trial court. Such finding has been affirmed by the first appellate court. So far the finding of the first appellate court in respect of the adverse possession is concerned, it is entirely untenable inasmuch as the plaintiffs have proved that since 15.05.1963 they have animus possidendi open and uninterrupted and thus on the day of taking possession by the respondent No. 2 in exercise of the power under Section 16 of the Land Acquisition Act, the title by prescription in favour of the plaintiffs had existed. It is further necessary to observe that there is distinction between ’forcible occupier’ and ’unauthorised occupier’, but that is not the end of all the matters. But, the nature of possession has to be gathered and identified from the evidence, led by the person claiming such title on the basis of animus possidendi. In this suit, the plaintiffs had produced the notice for eviction issued to their predecessor. This notice has quite unambiguously established the knowledge of the true owner and the possession of the predecessor of the plaintiffs and the plaintiffs themselves was open and uninterrupted all the time. In view of this, the trial court has correctly observed that the title in favour of the plaintiffs had been perfected by way of adverse possession. As consequence of such declaration, the plaintiffs are entitled to the other reliefs, even though those reliefs might have relation to the land acquisition proceeding. 21. Having held so, the appeal stands allowed. The impugned judgment and decree dated 08.12.2006 passed by the first appellate court is set aside and the judgment and decree of the trial court dated 19.05.2003 delivered in T.S. No. 28/2002 is restored. Prepare the decree accordingly.