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2015 DIGILAW 411 (TRI)

Matilal Das v. Kshetra Mohan Das

2015-06-23

DEEPAK GUPTA

body2015
ORDER : 1. These two regular second appeals are being disposed of by a common judgment since actually only one appeal need to be filed. Both the appeals arise out of the same judgment passed by the trial Court as well as by the learned lower appellate Court. 2. The plaintiff filed a suit praying that the defendant be restrained from interfering in the possession of the plaintiff in the suit land by issuing a decree for permanent prohibitory injunction in favour of the plaintiff and against the defendants. The schedule is as follows: “SCHEDULE Within District West Tripura, P.S. Jirania, Mouja-Nalgaria, at present Mouja-Majlishpur, lands described below: (a) Under Kahatian No. 1296 C.S Plot No. 2823 classed as Nul measuring an area of .54 acre i.e. 1 kani 7 gandas in the southern portion of the plot butted and bounded: In the North by : Smt. Namita Bhowmik. In the South by : Priyanath Banerjee; at present colony. In the East by : Barada Sutradhar and colony; In the West by : Jogendra Sarkar. B. Under Kahatian No. 1290 (a) C.S Plot No. 2744 classed as homestead at present used for growing paddy plants and vegetables etc. measuring an area of .30 acre butted and bounded: In the North : by Plaintiff, Hemanta, Monoranjan & Others. In the South : by Plaintiff & Jogendra Sarkar. In the East : by Hemanta, Monoranjan & Others. In the West : by Plaintiff. (b) C.S. Plot No. 2806 classed as Nul measuring an area of 1.04 acre butted and bounded: In the North : by Monoranjan Debnath. In the South : by Harendra Das & Others. In the East : by Plaintiff. In the West : by Maran Debnath & Others. (c) C.S. Plot No. 2745 classed as Nul at present used pond measuring an area of 0.23 acre butted and bounded: In the North : by Hemanta Bhowmik and Monoranjan Bhowmik. In the South : by Plaintiff. In the East : by Hemanta, Monoranjan & Others. In the West : by Plaintiff. (d) C.S. Plot No. 2807 classed as Nil measuring an area of 0.79 acre butted and bounded: In the North : by Plaintiff and the defendants in CS Plot No. 2750. In the South : by Girindra Debnath and Harendra. In the East : by Plaintiff and Jigendra Sarkar. In the West : by Plaintiff. (d) C.S. Plot No. 2807 classed as Nil measuring an area of 0.79 acre butted and bounded: In the North : by Plaintiff and the defendants in CS Plot No. 2750. In the South : by Girindra Debnath and Harendra. In the East : by Plaintiff and Jigendra Sarkar. In the West : by Plaintiff” The schedule property consists of four different plots under Khatian No. 1296, CS Plot No. 2823, Khatian No. 1290, CS Plot No. 2744, CS Plot No. 2806, CS Plot No. 2745 and CS Plot No. 2807. Therefore, there are five different plots of land in two separate khatians. 3. The trial Court came to the conclusion that the plaintiff was owner in possession of land comprising Khatian No. 1290, CS Plot Nos. 2744, 2745 and 2807. With regard to CS Plot No. 2806 the trial Court held that though the plaintiff had purchased the land but title had not transferred in favour of the plaintiff and the defendant was in possession of the land. With respect to Khatian No. 1296, Plot No. 2823 the trial Court held that the defendant was in possession of the land but the plaintiff was the true owner of the land. The learned trial Court decreed the suit of the plaintiff in respect of all the survey numbers except Plot No. 2806 on the ground that the plaintiff had failed to prove his title on Plot No. 2806. As far as Plot No. 2823 is concerned though the trial Court held that the defendants were in possession of the said land it went on to hold as follows: “Permissive possession is no possession and as and when permission withdrawn the person in possession deemed to have been ousted from the possession.” 4. Both the parties filed appeals against the said judgment. The learned lower appellate Court allowed the appeal filed by the plaintiff and dismissed the appeal filed by the defendants. The learned lower appellate Court also held as follows: “Defendants are in possession of the C.S. plot No. 2806 but it is presumed from the entires of the settlement made in the 24 col. and khatian No. 1290 that said defendants are the permissive occupant. The learned lower appellate Court also held as follows: “Defendants are in possession of the C.S. plot No. 2806 but it is presumed from the entires of the settlement made in the 24 col. and khatian No. 1290 that said defendants are the permissive occupant. The khatian No. 1296 against C.S. plot No. 2823 also shows such similar entries leading to an inference of the court that the defendants possess the suit property at any point of time on behalf of the plaintiff. Such possession cannot be construed as a possession in the strict since of the term. It cannot be said that such possession creates any right to the defendants.” 5. Both the appeals have been filed by the defendants. According to me the following substantial question of law arises in these appeals: “Whether a decree for perpetual injunction restraining the defendant from interfering in the land can be granted when it is found that the defendant is in possession of the land?” Both the Courts below in respect of CS Plot Nos. 2823 and 2806 have found that the defendants are in possession of the land. However, they have decreed the suit only on the ground that the possession is permissive in nature and as soon as the permission is withdrawn then the possession is deemed to be of the owner of the land. Such finding is totally erroneous, illegal and not based on any legal principle. Even a trespasser of a land cannot be evicted from the land except in accordance with procedure established by law. If the rule of law is to prevail in the country then the rule of the jungle must give way to the rule of law. Otherwise people will forcefully starts graving lands and not come to Courts. 6. However, since the Courts had dealt with the matters in a very casual manner, I have with the assistance of the learned counsel for the parties again gone through the revenue record and I find that in the final khatian published in respect of survey Plot No. 2823 the name of the defendants is not mentioned in the column of possessor. They are only found to be in possession of CS Plot No. 2806. 7. They are only found to be in possession of CS Plot No. 2806. 7. In this view of the matter, the appeals are partly allowed and the suit of the plaintiffs is decreed and the plaintiffs are held to be owner of the lands comprised in CS Plot No. 2823 under Khatian No. 1296 and CS Plot Nos. 2744, 2745 and 2807 under Khatian No. 1290 and he is held entitled to decree for perpetual injunction restraining the defendants from interfering in this possession. However, as far as CS Plot No. 2806 under Khatian No. 1290 is concerned the plaintiff is not found to be in possession, his title on the said land is also not clearly established and therefore, his suit regarding this survey number is dismissed. 8. Both the appeals are disposed of in the aforesaid terms. No order as to costs. Send down the LCRs forthwith.