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2014 DIGILAW 232 (TRI)

Gauranga Chandra Paul v. Uma Deb

2014-06-20

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This second appeal under Section 100 of the Code of Civil Procedure is directed against the appellate judgment and decree dated 18.08.2006, passed by learned Additional District Judge, Court No. 2, Agartala, West Tripura in Title Appeal No. 24 of 2002, where-under, the learned Additional District Judge affirmed the judgment and decree dated 29.04.2002, passed by learned Civil Judge, Sr. Division, Court No. 1, Agartala, West Tripura, in Title Suit No. 73 of 1994. 2. Heard learned counsel Mr. D. K. Biswas for the appellants and learned Sr. counsel Mr. S. Deb assisted by learned counsel Mr. R. Dasgupta for the respondents. 3. The second appeal was admitted for hearing by order dated 02.03.2007 on the following substantial question of law:- Whether the law relating to Adverse Possession has been properly discussed by the learned court below or not? 4. At the time of hearing of the appeal on 13.06.2014, further, following substantial questions of law have been formulated: (I) Whether the suit has been abated as a whole for the death of the plaintiff No. 1? (II) Whether a relief of injunction or any other relief is admissible in a case where the claim of adverse possession fails? 5. Gauranga Chandra Pal, since deceased, (predecessor of appellant Nos. 1(a) to 1(f) and Nitai Chandra Pal, appellant No. 2, both full blood brothers (hereinafter mentioned as plaintiffs), jointly filed Title Suit No. 73 of 1994 in the Court of Civil Judge, Sr. Division, Court No. 1, Agartala, West Tripura seeking declaration that they acquired title by virtue of adverse possession in the suit land described in the schedule of the plaint and also prayed for permanent injunction restraining the defendants, their men and agents from entering into and/or disturbing the possession of the plaintiffs and further prayed for declaring the sale deed if any, executed by defendant No. 1 in favour of defendant No. 2 in respect of the suit land as null and void. 6. 6. Case of the plaintiffs' in short is that, they jointly entered into an oral agreement with defendant No. 1 to purchase the suit land at a consideration of Rs.19,000/- and accordingly paid the entire amount to defendant No. 1 who had assured to execute the sale deed within a week but unfortunately defendant No. 1 did not execute the sale deed and as a result, the plaintiffs entered into the suit land forcibly sometimes in January, 1968 and continued possession of the suit land without interruption and disturbance. Defendant No. 1 instituted objection case No. 191/1988 before the Assistant Settlement Officer against recording of the name of plaintiff No. 1 in the khatian but that objection was rejected by order dated 10.11.1988. Plaintiff No. 1 thereafter filed a case under Section 45 of Tripura Land Revenue and Land Reforms Act (TLR and LR Act) seeking to record his name as a forceful possessor of the suit land in Col. No. 24 of the Khatian and the Settlement Officer by order dated 01.12.1990 allowed the petition of the plaintiff and directed recording of name of the plaintiff No. 1 in Col. No. 24 of Khatian in the name of defendant No. 1 in respect of the suit land and the order stands good. Defendant No. 1 did not prefer any appeal against that order. Having failed to change the entry in the record of right, the defendant No. 1 collusively arranged a sale deed with defendant No. 2 who was a tenant and tried to dispossess the plaintiffs from the suit land. Defendant No. 3 summoned a meeting at the instance of the other defendants through the Chairman of Notified Area Authority of Teliamura on 15.05.1994 and a resolution was adopted in the meeting wherein the plaintiffs were compelled to put signatures and immediately thereafter the plaintiffs informed the Chairman of the Notified Area Authority that the resolution was not signed by the plaintiffs voluntarily and thereby recorded their objection. Thereafter on 23.05.1994, the defendant No. 2 made an attempt to enter into the suit land damaging the fencing and the plaintiffs reported the incident to Teliamura P.S. It is the case of the plaintiffs that they constructed houses in the suit land and doing their business as their source of livelihood and that they have acquired title over the suit land by adverse possession by dint of their overt acts hostile to the title of defendant No. 1. Since the defendants tried to dispossess the plaintiffs, the plaintiffs instituted the suit seeking declaration and permanent injunction. 7. Defendant Nos. 1 and 2 contested the case by filing separate written statements denying the averments made in the plaint. Both the defendants categorically stated that there was no oral agreement between the plaintiffs and defendant No. 1 for the sale of suit land and no amount was paid by the plaintiffs to defendant No. 1 towards consideration and that the claim of the plaintiffs that they forcefully entered in the suit land and started possession over the suit land from January, 1968 is false. It is also stated by those defendants that the defendant No. 2 was a tenant of defendant No. 1 and subsequently defendant No. 2 purchased. 05 acres of land from the plaintiffs on payment of a consideration of Rs. 28,000/- and sale deed No. 1-2853 of 1989 was executed and registered and thereby defendant No. 2 owned and possessed the purchased land. It is also contended by the defendants that Khatian No. 60 in the name of defendant No. 1 was finally published on 01.03.1990 and in Col. No. 24 of the Khatian as against suit plot No. 2362 there was no entry that the plaintiffs were in forceful occupation of the suit land. It is further contended by the defendants that a resolution was adopted in the meeting dated 15.05.1994 and the plaintiffs voluntarily put their signatures and no force was applied. The defendants also denied the allegation made by the plaintiffs that they tried to dispossess the plaintiffs on 23.05.1994 and further asserted that the plaintiffs never possessed the suit land. 8. Defendant No. 3 did not file any written statement and did not contest the case. 9. The trial Court framed following issues:- 1. Whether the suit is maintainable and have the plaintiffs any cause of action for this suit? 2. 8. Defendant No. 3 did not file any written statement and did not contest the case. 9. The trial Court framed following issues:- 1. Whether the suit is maintainable and have the plaintiffs any cause of action for this suit? 2. Whether the plaintiffs are in continuous possession of the suit land since 1968? 3. Whether the Defendant No. 1 agreed to sell the suit land to the plaintiff and accepted Rs. 19,000/- being consideration but refused to execute the sale deed subsequently and whether sale deed to the Defendant No. 2 collusive? 4. Whether the Defendant No. 2 is a tenant under Defendant No. 1? 5. Whether the Defendants threatened the plaintiffs to dispossess from the suit land? 6. What other relief or reliefs the parties are entitled to get? 10. Plaintiffs examined themselves as P.Ws. 1 and 2 and proved 6 (six) items of documents in support of their case which were marked as Exhibit 1 to Exhibit 6. Defendant Nos. 1 and 3 examined themselves as D.Ws. 1 and 2 and proved 5 (five) items of documents which were marked as Exhibit A to Exhibit E. 11. The trial Court decided material issues i.e. Issue Nos. 2 to 5 against the plaintiffs and accordingly dismissed the suit with the finding that the plaintiffs failed to prove their adverse possession in the suit land. 12. Aggrieved, the plaintiffs preferred Title Appeal No. 24 of 2002 in the court of District Judge, West Tripura, Agartala and the learned Additional District Judge, Court No. 2, Agartala, West Tripura by impugned judgment dated 18.08.2006 upheld the judgment of the trial Court with the finding that the plaintiffs are in possession of the suit land but they failed to prove the claim of adverse possession. Aggrieved, the plaintiffs preferred the present second appeal. 13. It is an admitted position that defendant No. 2 died on 26.07.1998 and on the prayer of the plaintiffs the name of defendant No. 2 was struck off on 03.07.2001. Therefore, the plaintiffs had no case against defendant No. 2. 14. At the outset, learned Sr. counsel Mr. Aggrieved, the plaintiffs preferred the present second appeal. 13. It is an admitted position that defendant No. 2 died on 26.07.1998 and on the prayer of the plaintiffs the name of defendant No. 2 was struck off on 03.07.2001. Therefore, the plaintiffs had no case against defendant No. 2. 14. At the outset, learned Sr. counsel Mr. Deb argued that Gauranga Chandra Pal, plaintiff No. 1, died on 19.05.2002 when Title Appeal No. 24 of 2002 was pending before the First Appellate Court and his legal heirs were never substituted and so, the suit as a whole has been abated and the plaintiff No. 2 also has no right to continue the suit. Mr. Biswas, learned counsel for the plaintiff-appellants contended that the suit no doubt abated in respect of plaintiff No. 1 Gauranga Chandra Pal but plaintiff No. 2 has a right to continue the suit since the claim of the plaintiffs were inseparable and they jointly instituted the suit claiming same relief and therefore, the plaintiff No. 2 i.e. the appellant No. 2 herein, has right to continue the appeal. Since Gauranga Chandra Pal, plaintiff No. 1 died long ago when Title Appeal No. 24 of 2002 was pending in the First Appellate Court, and, his legal heirs were not substituted, the suit in respect of the plaintiff No. 1 has been abated but I find no reason to hold that the entire suit has been abated and that the appeal cannot be prosecuted by the appellant No. 2. Since the plaintiffs jointly instituted the suit seeking relief, inseparably, the appellant-plaintiff No. 2 may prosecute the appeal though it is abated in respect of plaintiff No. 1. 15. Learned counsel Mr. Biswas appearing for the appellants at the very outset has submitted that the plaintiffs instituted the suit for declaration of their title over the suit land by way of adverse possession as well as for permanent injunction restraining the defendants from entering into and/or disturbing the possession of the plaintiffs. He has fairly submitted that in view of the decision of the Apex Court in the case of Gurdwara Sahib vrs. Gram Panchayat Village Sirthala & Anr., reported in (2014) 1 SCC 669 , the plaintiffs cannot maintain a suit for ownership by adverse possession but the claim of the plaintiffs for permanent injunction is maintainable. He has fairly submitted that in view of the decision of the Apex Court in the case of Gurdwara Sahib vrs. Gram Panchayat Village Sirthala & Anr., reported in (2014) 1 SCC 669 , the plaintiffs cannot maintain a suit for ownership by adverse possession but the claim of the plaintiffs for permanent injunction is maintainable. It is submitted that the trial Court and the Appellate Court arrived at a definite finding that the plaintiffs were/are in possession of the suit land and so they are entitled to permanent injunction against defendant No. 1. Learned counsel, therefore, declined to insist on substantial question of law No. 1 formulated on 02.03.2007 but argued at length on substantial question of law No. 2 formulated on 13.06.2014. 16. Learned Sr. counsel Mr. Deb appearing for the defendant-respondents submitted that the trial Court arrived at a definite finding that the plaintiffs failed to prove their title by adverse possession and accordingly, issue No. 2 was decided against the plaintiffs with a definite finding that the plaintiffs failed to prove their continuous possession from 1968. Learned counsel referred Exhibit A, B & C in support of his contention and has submitted that those documents show that the suit land was transferred by defendant No. 1 to defendant No. 2 and again defendant No. 2 retransferred it to defendant No. 1. It is also contended by Mr. Deb, learned Sr. counsel that Exhibit D is a finally published khatian which does not reflect any entry about possession of the plaintiffs in any manner and hence, the decision of the trial Court and the Appellate Court should sustain. 17. Trial Court decided issue Nos. 2, 3, 4 and 5 together and the finding is not clear rather it is confusing. The court held that the plaintiffs failed to prove their continuous, uninterrupted adverse possession in the suit land from the year 1968 and therefore, refused to grant relief. Trial Court discarded the documentary evidence of Exhibit 1, 2 and 3 and accepted Exhibit D but the finding of the trial Court in respect of appreciation of those documents has been reversed by the appellate Court and I am of considered opinion that the appellate Court arrived at a correct finding. The plaintiffs contended that they entered into possession of the suit land forcefully in the month of January 1968 and thereafter they continued their possession. The plaintiffs contended that they entered into possession of the suit land forcefully in the month of January 1968 and thereafter they continued their possession. Exhibit 1 shows that defendant No. 1 filed an objection before Assistant Settlement Officer claiming that the second party i.e. defendant No. 1 was a permissive possessor but in the khatian at the attestation stage the name of the defendant was recorded as forceful possessor. Defendant No. 1 therefore, sought correction of the record. The Assistant Settlement Officer after hearing both side and considering their documents rejected the objection of the defendant No. 1 and directed that the record of entry of forceful occupation shall maintain. Exhibit 2 shows that the plaintiff No. 1 filed Case No. 2 of 1990 under Section 45 of the TLR and LR Act and a detailed order was passed wherein also the Assistant Settlement Officer directed that the entry of forceful occupation in Col. No. 24 of the khatian No. 60 as against plot No. 2362 shall maintain. Exhibit 3 shows that the Joint Director of Settlement and Land Record directed Sub Divisional Officer, Khowai to prepare the ROR accordingly. Exhibit D is the finally published khatian in the name of defendant No. 1 on 15.10.1990. The khatian do not reflect any entry in Col. No. 24 against plot No. 2362. If we carefully go through Exhibit 1 to 3 and Exhibit D together, we cannot ignore Exhibit 1, 2 and 3 and cannot just jump to a conclusion about Exhibit D to draw a presumption since all those are acts of Revenue Officer as a public servant. No doubt there is a presumption of correctness of the khatian published finally. But on perusal of the Exhibit 1, 2 and 3 it shows that at the attestation stage there was entry of adverse possession in the name of plaintiff No. 1 as against plot No. 2362, Khatian No. 60 and the Assistant Settlement Officer in the capacity of Collector directed that the record shall maintain. Exhibit 2 shows that on a petition filed by the plaintiff under Section 45 of the TLR and LR Act, it was clearly directed that the entry of adverse possession should maintain and that direction was given on 15.10.1990. The finally published khatian i.e. Exhibit D also was finally published on 15.10.1990. Exhibit 2 shows that on a petition filed by the plaintiff under Section 45 of the TLR and LR Act, it was clearly directed that the entry of adverse possession should maintain and that direction was given on 15.10.1990. The finally published khatian i.e. Exhibit D also was finally published on 15.10.1990. It is, therefore, clear that Exhibit D was published finally defying order dated 15.10.1990 whereas it is clearly held by the Collector (Settlement Officer) that the entry of adverse possession of plaintiff No. 1 in the khatian of defendant No. 1 shall maintain. The appellate Court, therefore, correctly appreciated the documentary evidence and arrived at a conclusion that the presumption of correctness of the khatian in the circumstances cannot be drawn where it is clearly held by the competent authority that the entry of adverse possession should maintain. 18. Exhibit A, B and C shows that defendant No. 1 executed a sale deed in favour of defendant No. 2 and there was an agreement to return the land in the event the amount was paid back and subsequently defendant No. 2 executed a return deed (Exhibit C) and thereby re-conveyed the sold out land to defendant No. 1. It is, therefore, not at all clear as to whether those deeds were acted upon or not. The purpose of executing the sale deed by defendant No. 1 in favour of defendant No. 2 with a separate agreement of re-conveyance and subsequent re-conveyance deed of defendant No. 2 to defendant No. 1 has not been made clear by the defendants to arrive at a conclusion that possession was handed over by the defendant No. 1 to defendant No. 2 and again by defendant No. 2 to defendant No. 1. 19. The trial court recorded an evasive finding in respect of possession. The court has recorded that the plaintiffs failed to prove their adverse possession in the suit land. The appellate Court arrived at a clear finding that the plaintiffs are in possession of the suit land. In para 14 of the judgment the appellate Court held-- 14. Further more, the defendant No. 1 made no specific case to convince the Court as to the manner in which he possessed the suit land whereas the plaintiffs made it a clear case of their possession by oral and documentary evidence and the manner in which they are occupying the same. Further more, the defendant No. 1 made no specific case to convince the Court as to the manner in which he possessed the suit land whereas the plaintiffs made it a clear case of their possession by oral and documentary evidence and the manner in which they are occupying the same. This Court in appeal, therefore, is of opinion that the plaintiffs are in possession of the suit land. 20. As I find the appellate Court properly appreciated the pleadings and evidence on record and arrived at a correct finding. I have no hesitation to uphold the finding of the appellate Court on the issue. 21. The plaintiffs instituted the case for declaration of their title by adverse possession as well as for permanent injunction. It is a settled law that the claim of adverse possession may be raised by a defendant in a suit as a shield and a claim of title by adverse possession by the plaintiff is not maintainable. The Supreme Court in the case of Gurdwara Sahib (supra) settled the law and has clearly held that declaration of ownership of land on the basis of adverse possession cannot be sought by a plaintiff adverse possessee but can be used as a shield to defend such possession by squatter as a defendant. The court also held that where an injunction is sought in such a case, such injunction can be granted and the Apex Court upheld such an order passed by the lower Court. 22. In the present case, the appellate Court arrived at a definite finding that the plaintiffs are in possession of the suit land but the plaintiffs failed to prove their adverse possession. Since the plaintiffs are in possession of the suit land they cannot be evicted save due process of law and therefore, they are entitled to get an injunction in their favour as prayed for in the suit. Their claim of title by adverse possession, since not maintainable, has been rightly refused by the Courts below. 23. The appeal, therefore, is partly allowed. 24. The defendant-respondents are restrained from entering into and/or disturbing the possession of the plaintiffs in the suit land save and except due process of law. 25. Parties are to bear their own costs. 26. Send back the L.C. records along with the copy of this judgment.