Research › Search › Judgment

Tripura High Court · body

2014 DIGILAW 77 (TRI)

Matilal Das v. Kshetra Mohan Das

2014-02-13

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- This civil second appeal under Section 100 of the Code of Civil Procedure is directed against the Judgment and Appellate Decree dated 18.02.2005 passed by learned Additional District Judge, Court No. 2, West Tripura, Agartala in Case No. TA 56 of 2002 whereunder the learned District Judge dismissed the appeal and affirmed the original Decree dated 04.09.2002 passed by learned Civil Judge (Jr. Division), Court No. 1, Agartala, West Tripura in Case No. T.S. 47 of 1997. The second appeal has been admitted for hearing on the following substantial question of law:-- 1. Whether the Courts below have committed grave error of law in issuing the decree of perpetual injunction against the defendant who is in possession of the suit land? 2. Whether the Courts below have misread both the documentary and oral evidence in decreeing the suit? Heard learned counsel, Mr. P. Chakraborty for the appellants and learned senior counsel, Mr. A.K. Bhowmik assisted by learned counsel, Mr. R. Datta for the respondent. 2. Respondent as plaintiff instituted Title Suit No. 47 of 1997 in the Court of Civil Judge (Jr. Division), Agartala praying for decree of perpetual injunction restraining the defendants, their men and agents from entering into the suit land and from interfering with the possession of the plaintiff in the suit land. 3. The respondent as plaintiff (hereinafter mentioned as plaintiff), inter alia pleaded that the land described in Schedule A of the plaint originally belonged to one Smt. Lalana Debi and on 05.10.1970, the said Lalana Debi by executing a registered sale deed sold out A Schedule land to one Nani Gopal Singh, who in turn sold out the said land on 09.12.1970 to the plaintiff and Aswini Kumar Das (predecessor of the appellants) (hereinafter mentioned as 'defendants') and both plaintiff and Aswini Kumar Das thereby got right, title, interest and possession in the suit land. The plaintiff and Aswini Kumar Das were cousin brothers and they amicably partitioned the suit land and by way of amicable partition, the plaintiff got eastern half of the A Schedule land and Aswini Kumar Das got western half of the A Schedule land. B Schedule land i.e. the eastern half, which the plaintiff got by way of amicable partition is the suit land and the subject matter of the suit. B Schedule land i.e. the eastern half, which the plaintiff got by way of amicable partition is the suit land and the subject matter of the suit. A Schedule land was jote land, but in the last survey settlement operation, it was erroneously recorded in khas khatian in the name of the Government of Tripura and Nani Gopal Singh was recorded as the illegal occupier of the suit land. Since the plaintiff sought no relief against the State of Tripura for wrong recording of the suit land, he did not make the State of Tripura as party to the suit. Plaintiff alleged that he constructed his house on the suit land in the year 1970 and was residing there. He has another house at Jirania market where he has got some business and he used to reside in the house constructed on the suit land as well as in the house at Jirania. In course of his business, subsequently, he used to reside mostly at Jirania and his servants and care takers used to stay in his house on the suit land and he often used to visit the suit land and continued his possession. Some of the huts were in dilapidated condition and therefore, he took up the work of reconstruction of the huts in the first week of March, 1997 and at that time, on 07.03.1997, the defendants raised protest in the reconstruction of the huts and threatened him to dispossess from the suit land. On 31.05.1997, the defendants expressed in the locality that they will soon dispossess the plaintiff from the suit land and therefore, he instituted the suit for perpetual injunction against the defendants. 4. Defendants contested the suit by filing a joint written statement inter alia stating that the suit land originally belonged to Lalana Debi and it was purchased by Nani Gopal Singh by a registered deed from Lalana Debi. Thereafter, plaintiff and Aswini Kumar Das (predecessor of the defendants) purchased the suit land from Nani Gopal Singh and got possession thereof. There was no amicable partition between the plaintiff and deceased Aswini Kumar Das. Thereafter, plaintiff and Aswini Kumar Das (predecessor of the defendants) purchased the suit land from Nani Gopal Singh and got possession thereof. There was no amicable partition between the plaintiff and deceased Aswini Kumar Das. It is alleged that after purchase, the plaintiff approached the revenue authority for mutation, but it was found that the suit land was recorded as khas land and therefore, the plaintiff got disinterested about the suit land and proposed to the seller i.e. Nani Gopal Singh to take back the suit land and to return the money. But Nani Gopal Singh did not agree and thereafter, Aswini Kumar Das paid Rs. 3,500/- to plaintiff towards the price of his share in the A Schedule land and the plaintiff handed over possession to Aswini Kumar Das of his part of the land and accordingly, Aswini Kumar Das got the possession of entire A Schedule land in the year 1972. The plaintiff, thereafter, never possessed the suit land and the story of his possession and alleged threat by the defendants were all false. The defendants, therefore, prayed for dismissal of the suit. 5. Considering the pleadings of the parties, the Trial Court formulated four issues namely:-- (i) Whether the suit is maintainable in its present form as per provision of Section34 of the Specific Relief Act? (ii) Whether the plaintiff is in possession of the suit land? (iii) Whether the plaintiff is entitled to the reliefs as prayed for? (iv) To what other relief/reliefs the parties are entitled? 6. In course of trial, plaintiff examined himself as P.W. 1 and also examined three more witnesses in support of his case. Plaintiff also exhibited khatian No. 1230 of Mouza Majlishpur and the registered deed of purchase by Nani Gopal Singh from Lalana Debi and the registered deed of purchase by the plaintiff and Aswini Kumar Das from Nani Gopal Singh. Defendant No. 4 examined himself as D.W. 1 and also examined three more witnesses in support of their case. No documentary evidence adduced by the defendants. The Trial Court decided all the issues in favour of the plaintiff and decreed the suit. Aggrieved, the defendants preferred Title Appeal No. 56 of 2002 and the appeal was dismissed by judgment dated 18.02.2005. Hence, this second appeal on the substantial question of law stated hereinbefore. 7. Learned counsel, Mr. No documentary evidence adduced by the defendants. The Trial Court decided all the issues in favour of the plaintiff and decreed the suit. Aggrieved, the defendants preferred Title Appeal No. 56 of 2002 and the appeal was dismissed by judgment dated 18.02.2005. Hence, this second appeal on the substantial question of law stated hereinbefore. 7. Learned counsel, Mr. Chakraborty has submitted that the Trial Court and the First Appellate Court failed to consider the oral evidence on record in respect of possession of the suit land and arrived at a wrong and perverse finding. The plaintiff handed over possession to the predecessor of the defendants on receipt of consideration money of Rs. 3,500/- and thereby, relinquished his right to the suit land, which is admittedly khas land and therefore, the plaintiff's suit for perpetual injunction against the defendants is a misconceived suit and the Trial Court and First Appellate Court misread the evidence on record and wrongly decreed the suit. 8. Learned senior counsel, Mr. Bhowmik, on the other hand has contended that Trial Court and the First Appellate Court considered the evidence on record very meticulously and arrived at a reasonable and proper finding which is not required to be disturbed by the Appellate Court on the ground of perversity since the decision has been taken after proper appreciation of the evidence on record. This is a second appeal challenging concurrent finding of the Trial Court as well as the First Appellate Court. In a second appeal, on the ground of perversity, the Appellate Court will proceed to interfere if it is found that the decision taken by the inferior Courts is either based on no evidence or that the evidence has not been considered or appreciated in its proper perspective. 9. In the case at hand, it is undisputed fact that the plaintiff and Aswini Kumar Das (predecessor of the defendants) jointly purchased the land described in Schedule A of the plaint and got possession of the suit land from their vendor. The plaintiff claimed that after purchase, there was an amicable partition between him and his cousin brother Aswini Kumar Das (the predecessor of the defendants) and he got eastern part of the A Schedule land and the Aswini Kumar Das got western part of the A Schedule land. The plaintiff claimed that after purchase, there was an amicable partition between him and his cousin brother Aswini Kumar Das (the predecessor of the defendants) and he got eastern part of the A Schedule land and the Aswini Kumar Das got western part of the A Schedule land. He constructed his house in a part of the suit land described in Schedule B of the plaint and was possessing the same. In support of his possession, he examined three witnesses. Defendants contended that after purchase, the plaintiff approached the revenue authority for mutation, but the suit land was recorded as khas land and therefore, mutation was not allowed and since the mutation was not allowed, plaintiff got disinterested in respect of the suit land and approached the vendor to return the consideration money, but the vendor did not agree and thereafter, in the year 1972, Aswini paid Rs. 3,500/- to the plaintiff in respect of the consideration money and the plaintiff handed over his possession to Aswini. Defendant No. 4 examined himself as D.W. 1 and three witnesses in support of his possession. The oral evidence in respect of physical possession of the suit land has been carefully scrutinized and appreciated by the Trial Court, which is affirmed by Appellate Court and I find no reason at all to re-appreciate the oral evidence of the parties since no perversity is found in the appreciation of evidence already made by the inferior Courts. Plaintiff and Aswini purchased the suit land by registered deed. The defendants tried to project that Aswini returned Rs. 3,500/- to the plaintiff and got possession of the suit land from plaintiff. Aswini died some times 10 years before the suit was instituted by the plaintiff. Bereft of documentary evidence, even no cogent oral evidence adduced by the defendants about return and/or payment of Rs. 3,500/- by Aswini to plaintiff and handing over of possession by plaintiff to Aswini. Under such circumstances of the suit, I find nothing to arrive at a conclusion that the Trial Court and the Appellate Court arrived at a wrong finding in respect of the possession of the suit land. 10. The Supreme Court in the case of Gurdev Kaur & Ors. v. Kaki & Ors. reported in 2006 AIR SCW 2404, in Para 60 of the judgment observed:-- In judicial hierarchy finality is absolutely important because that gives certainty to the law. 10. The Supreme Court in the case of Gurdev Kaur & Ors. v. Kaki & Ors. reported in 2006 AIR SCW 2404, in Para 60 of the judgment observed:-- In judicial hierarchy finality is absolutely important because that gives certainty to the law. Even in the interest of litigants themselves it may not be unreasonable to draw a line in respect of the two different categories of litigation where procedure will say at a certain stage that questions of fact have been decided by the lower Courts and the matter should be allowed to rest where it lies without any further appeal. This may be somewhat harsh to an individual litigant; but, in the larger interest of the administration of justice, this view is juristically sound and pragmatically wise. In Para 68 and 69 of the judgment, the Court has observed thus:-- Even prior to amendment, the consistent position has been that the Courts should not interfere with the concurrent findings of facts. After 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as 'substantial question of law' which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become 'third trial on facts' or 'one more dice in the gamble'. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be heard only on that question. 11. 11. The present suit is for perpetual injunction against the defendants, who alleged to have tried to invade upon the possession of the plaintiff in the suit land. Purchase by the plaintiff since not disputed, repurchase by Aswini Kumar Das as claimed by the defendants since found to be not established by cogent evidence, the Trial Court and the Appellate Court rightly arrived at a finding that the plaintiff is entitled to perpetual injunction against the defendants. It is not material to consider the title of the suit land in the given facts and circumstances of the case. The plaintiff has got every right to protect his possession to the suit land as against the defendants even if the title of the suit land belonged to the State Government. I find no force in the argument advanced by learned counsel, Mr. Chakraborty and the appeal therefore, stands, dismissed with cost. Send down the L.C. record along with copy of the judgment.