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2015 DIGILAW 612 (TRI)

Parimal Chandra Deb v. Nipul Debnath

2015-07-31

S.C.DAS

body2015
ORDER : This second appeal under Section 100 of the Code of the Civil Procedure is directed against the appellate judgment and decree dated 11.10.2010 passed by the learned District Judge, North Tripura, Kailashahar, in Title Appeal No.16 of 2010 whereunder the original judgment and decree dated 19.06.2010 passed by learned Civil Judge, Jr. Division, Kanchanpur, North Tripura in Title Suit No.41 of 2008 was set aside. 2. Heard learned Sr. counsel Mr. D. Chakraborty for the appellant and learned counsel, Ms. P. Dhar for the respondents. 3. The appellant as plaintiff (hereinafter mentioned as plaintiff) instituted Title Suit No.41 of 2008 against the defendant-respondents (hereinafter mentioned as defendants) seeking declaration that the plaintiff is the permissive possessor of the land described in Scheduled A of the plaint and further prayed for recovery of possession of Schedule B land which is part of the land described in Schedule A of the plaint. 4. The plaintiff, inter alia, contended that the suit land described in Schedule A of the plaint has been recorded in Khatian No.15 of Mouja Uttar Machmara, C.S. Plot No.330 which corresponds to R.S. Plot No.542 measuring 0.09 acres belonged to one Girish Chandra Dey, S/o Gopal Chandra Dey who was a distant relative (uncle) of the plaintiff and said Girish Chandra Dey was in possession of the land and used to reside in a kuchha hut on the suit land. On 07.11.1970, said Girish Chandra Dey handed over possession of the A Schedule land to the plaintiff out of natural love and affection and asked the plaintiff to construct dwelling hut on the suit land and to reside thereon and thereafter he went out on a pilgrimage in different holy places of India and Girish Chandra Dey assured that on his return from pilgrimage he would execute a gift deed in favour of the plaintiff. The plaintiff thereafter reconstructed the huts on the suit land and was residing on the suit land with his mother Soudamini Deb. He used to pay revenue regularly and from the year 1984 and started residing on the suit land with his family on regular basis. Khatian No.15 was prepared and finally published on 31.03.1993 wherein in Col. No.24 the plaintiff and his mother were recorded as permissive possessor of the suit land and such entry in the record of right was never challenged by anybody. Khatian No.15 was prepared and finally published on 31.03.1993 wherein in Col. No.24 the plaintiff and his mother were recorded as permissive possessor of the suit land and such entry in the record of right was never challenged by anybody. His mother Soudamini Deb died on 29.08.1995 and after the death of the mother he has been possessing the suit land absolutely as a permissive possessor of Girish Chandra Dey. It is also contended by the plaintiff that Girish Chandra Dey did not return from pilgrimage and therefore, could not execute the gift deed as per commitment and nobody could say whereabouts of Girish Chandra Dey till the date of filing of the suit. It is the case of the plaintiff that defendant No.1 and defendant No.3 had been possessing some plots of land to the adjacent eastern side near road of the suit land which was Khas land and while widening the road this Khas land was occupied by the Govt. and thereafter on 10.11.2004, the defendant Nos. 1 and 3 in collusion with defendant No.2 occupied B Schedule land forcefully despite objection raised by the plaintiff and constructed two rooms on the B Schedule land and the rooms described in Schedule C to the plaint and thereby dispossessed the plaintiff from the suit land of Schedule B. The plaintiff thereafter on 10.11.2004 itself reported the incident to the O.C., Pacharthal P.S. who submitted a police report to the Sub Divisional Magistrate, Kanchanpur for drawing up a proceeding under Section 145 of Cr.P.C. and accordingly, SDM, Kanchanpur drawn up a proceeding under Section 145 of Cr.P.C. vide Case No.234 of 2005 and during inquiry of that proceeding the Revenue Inspector submitted reports on 20.08.2005 and 07.10.2005 supporting the case of the plaintiff that the plaintiff had been possessing the suit land but the SDM did not adjudicate upon the matter and kept it pending. In the meantime, the defendants on 25.07.2008 were conspiring to dispossess the plaintiff from the entire suit land and hence, the plaintiff instituted the suit seeking declaration of his permissive possession and recovery of the B Schedule land. 5. The defendant Nos. 1 and 3 submitted a joint written statement denying all the averments made in the plaint. It is contended by the defendants that Girish Chandra Dey and his cousin brother Ananda Mohan Deb owned the suit land and other lands measuring 0.19 acre. 5. The defendant Nos. 1 and 3 submitted a joint written statement denying all the averments made in the plaint. It is contended by the defendants that Girish Chandra Dey and his cousin brother Ananda Mohan Deb owned the suit land and other lands measuring 0.19 acre. Girish Chandra Dey after staying for a few years in the suit land left for Srimangal in erstwhile Pakistan now Bangladesh wherefrom he originally belonged. Thereafter the suit land along with other land came in possession and ownership of Ananda Mohan Deb wherein he was residing with his other brothers Upendra Kumar Deb, Nagendra Kumar Deb and Manindra Deb along with other members of the family. The plaintiff with his mother and his other brothers were also staying there with their father Upendra Kr. Deb. The cunning plaintiff surreptitiously behind the back of others included his name and his mother’s name in the record of right as a permissive possessor and even excluded his brother’s name from the record of right. It is also contended by the defendants that the defendant No.1 has been doing his business in the shop upon a portion of the suit land for last 20 years denying right, title, interest of others adversely and further contended that to avoid future dispute, the defendant No.1 purchased the part of the suit land by an unregistered sale-deed dated 20.07.1404 B.S. from defendant No.3 on payment of a consideration of Rs.7200/and had been possessing the suit land and doing business in the shop. The plaintiff illegally managed to obtain reports in his favour in connection with the proceeding initiated under Section 145 of Cr.P.C. and the plaintiff has no right, title, interest or possession in the suit land. 6. The defendant No.2 did not file any written statement and the suit proceeded ex parte against defendant No.2. 7. Considering the pleadings of the parties, the learned Civil Judge, Jr. Division framed 5 (five) issues namely: (1) Whether the suit is maintainable in its present form and nature? (2) Has the plaintiff any cause of action to institute the instant suit? (3) Whether the story of possession and dispossession of the plaintiff from the suit land is true? (4) Whether the plaintiff is entitled to get any decree as prayed for? (5) Whether the plaintiff is entitled to any other relief/relieves as prayed for? And if so, upto what extent? 8. (3) Whether the story of possession and dispossession of the plaintiff from the suit land is true? (4) Whether the plaintiff is entitled to get any decree as prayed for? (5) Whether the plaintiff is entitled to any other relief/relieves as prayed for? And if so, upto what extent? 8. In course of trial plaintiff examined himself as P.W.1 and also examined two more witnesses namely P.W.2, Sri Mohan Lal Kapali and P.W.3 Sri Sujit Kumar Deb. 9. In support of his case, the plaintiff proved the following documents: (i) Ext 1 : Land receipts dated 23.05.1378 B.S. (ii) Ext 2 : Land receipts dated 17.01.2007 (iii) Ext 3 : Land receipts dated 12.10.2007 (iv) Ext 4 : Certified copy of the Khatian No.15 of Mouja : North Machmara, Tehshil: Machmara, Revenue Circle: Kanchanpur. (v) Ext 5 : Certified copy of the trace map of Mouja North Machmara, Sheet No.1(part) under Machmara, Revenue Circle: Kanchanpur, appertaining to Dag No.542. (vi) Ext 6 : Certified copy of the enquiry report dated 29.07.2005 in connection with the Case No.234/05/53840 Dated 29.07.2005. (vii) Ext 7 : Certified copy of the enquiry report No.32/RI/KCP/Rev/Circle/2005 dated 07.10.2005. 10. Defendant Nos. 1 and 3 examined themselves as D.W.1 and D.W.3 and also examined two more witnesses namely D.W.2 Sri Monojit Deb and D.W.4 Sri Chandraday Chakraborty (Deed writer). In support of their case the defendants proved the following documents. (i) Ext A: Unregistered Sale Deed dated 20.07.1404 B.S. executed by Sri Pradip Deb in favour of Sri Nipul Debnath. (ii) Ext A/1 : Signature of Sri Manojit Deb in the unregistered Sale Deed dated 20.07.1404 B.S. (iii) Ext A/2: Signature of Sri Pradip Deb in the unregistered Sale Deed dated 20.07.1404 B.S. (iv) Ext B: Original Porcha bearing No.80 of Mouja: North Machmara. (v) Ext C (series) : Two coupons. (vi) Ext D (series): Three Land Revenue Receipts. 11. Considering the pleadings and evidence on record, learned trial Judge decided all the issues in favour of the plaintiff and accordingly decreed the suit as prayed by the plaintiff. 12. Aggrieved, defendant Nos. (v) Ext C (series) : Two coupons. (vi) Ext D (series): Three Land Revenue Receipts. 11. Considering the pleadings and evidence on record, learned trial Judge decided all the issues in favour of the plaintiff and accordingly decreed the suit as prayed by the plaintiff. 12. Aggrieved, defendant Nos. 1 and 2 filed Title Appeal No.16 of 2010 in the Court of District Judge, North Tripura, Kailashahar and the learned District Judge by impugned judgment and decree dated 11th October, 2010 allowed the appeal and thereby reversed the judgment and decree passed by the trial Court and consequently set aside the judgment and decree passed by the trial Court. 13. While deciding the appeal, learned District Judge held that the plaintiff acquired no title over the suit land by dint of permissive possession and so in the absence of claim of title, a suit under Section 34 of the Specific Relief Act was not maintainable and the learned District Judge further held that the plaintiff did not proceed to recover possession under Section 6 of the Specific Relief Act but prayed for a proceeding under Section 145 of Cr.P.C. and since that proceeding was pending and not yet decided by the Sub Divisional Magistrate, the plaintiff’s suit under Section 34 of the Specific Relief Act was simply not maintainable. On that ground the learned District Judge set aside the judgment and decree passed by the trial Court. 14. Challenging the judgment and decree of dismissal passed by the learned District Judge, this second appeal is filed and the second appeal has been admitted for hearing on the following substantial questions of law: 1. Whether the learned Appellate Court committed error by holding that permissive possessor has no possessory right against anybody except the true owner? 2. Whether the learned First Appellate Court committed error by reversing the Judgment & Decree, granted in favour of the plaintiff/appellant, on the ground that the plaintiff was not entitled to get the decree on the basis of his claim of permissive possession? 15. Appearing for the plaintiff-appellant learned Sr. counsel Mr. Chakraborty has submitted that the learned District Judge out of sheer misconception of law has arrived at the conclusion that the suit is not maintainable on the ground that the plaintiff has no title. 15. Appearing for the plaintiff-appellant learned Sr. counsel Mr. Chakraborty has submitted that the learned District Judge out of sheer misconception of law has arrived at the conclusion that the suit is not maintainable on the ground that the plaintiff has no title. He has submitted that plaintiff claimed his status of permissive possession and claimed recovery of possession since he has been dispossessed and in support of his claim, the plaintiff placed documentary as well as oral evidence which was rightly appreciated by the trial Court whereas the appellate Court out of misconception of law has allowed the appeal and set aside the judgment and decree passed by the trial Court. According to Mr. Chakraborty, learned Sr. counsel, the plaintiff and the defendants admitted the fact that the suit land belonged to Girish Chandra Dey and the Khatian was rightly prepared in the name of Girish Chandra Dey. The defendants’ contention that the suit land and other land belonged to Ananda Mohan Deb has not been proved in any manner and therefore, the claim of the defendants has no basis. Defendant No.1 once claimed adverse possession and again claimed title by dint of purchase from defendant No.3 pursuant to an unregistered deed of purchase dated 20.07.1404 B.S. and so the defendants practically has no leg to stand and the trial Court rightly decreed the suit. 16. On the other hand, learned counsel Ms. Dhar appearing for the defendant-respondents submitted that the suit is barred by Section 6 of the Specific Relief Act since the plaintiff did not claim for recovery of possession within six months from the date of his dispossession. She has also submitted that the real owner Girish Chandra Dey has not been made a party in the suit and therefore, the suit is not maintainable. The appellate Court rightly considered the issue of maintainability and rightly allowed the appeal. In the second appeal there is no substantial question of law to interfere in the judgment passed by the appellate Court. 17. It is an admitted position that Girish Chandra Dey is/was the owner of the suit land and Khatian was prepared in his name. Defendant Nos. 1 and 3 by filing written statement contended that the suit land along with other lands measuring 0.19 acres was jointly owned by Girish Chandra Dey and his cousin brother Ananda Mohan Deb. 17. It is an admitted position that Girish Chandra Dey is/was the owner of the suit land and Khatian was prepared in his name. Defendant Nos. 1 and 3 by filing written statement contended that the suit land along with other lands measuring 0.19 acres was jointly owned by Girish Chandra Dey and his cousin brother Ananda Mohan Deb. But there is no documentary evidence to show that Girish Chandra Dey and Ananda Mohan Deb jointly owned 0.19 acres of land and the suit land is a part and parcel of that land. Exhibit 4, Khatian No.15 of Mouja North Machmara which is proved by the plaintiff clearly shows that it was a Khatian prepared and finally published on 31.03.1993 wherein Girish Chandra Dey has been recorded as the rayat of the land recorded in Plot No.542, previous plot No.330 measuring 0.09 acres and in Col.No.24 of the Khatian the name of Soudamini Deb and the plaintiff has been recorded as the permissive possessor of the suit land. The plaintiff contended that in the year 1970 he was put in possession of the suit land by Girish Chandra Dey and his mother and himself had been residing on the suit land as was permitted by Girish Chandra Dey. Girish Chandra Dey went out on a pilgrimage to the holy places of India and did not return. Before his going out on pilgrimage he made commitment to execute a deed of gift but since he did not return, the deed of gift could not be executed. The plaintiff also asserted that he with his mother was residing on the suit land from the date of taking over of possession and thereafter from the year 1984 he had been residing on the suit land with his family. The plaintiff further contended that the defendant No.1 and 3 had been possessing Khas land by the side of the road to the eastern side of the plaintiff’s land and while widening the road they were out of possession of their shop huts and thereafter on 10.11.2004 they forcefully entered into the possession of B Schedule land and constructed two huts thereon and thereby dispossessed the plaintiff. P.Ws 2 and 3 supported the case of the plaintiff. P.Ws 2 and 3 supported the case of the plaintiff. It is also an admitted position that the plaintiff reported the incident to the O.C., Pecharthal P.S. on 10.11.2004 itself and on the basis of a police report a proceeding under Section 145 of Cr.P.C. vide case No.234 of 2005 was registered in the Court of SDM, Kanchanpur but that proceeding has not been decided as yet though in course of inquiry two reports submitted by the Revenue Inspector were collected and those are marked as Exhibit 6 and Exhibit 7. The defendant No.1 contended that he had been possessing the part of the suit land constructing a shop hut thereon and doing business for last 20 years. The defendant Nos. 1 and 2 also taken a stand that defendant No.1 purchased that plot of land on 20.07.1404 B.S. by an unregistered deed on payment of an amount of Rs.7200/. The trial Court considered the contradictory stand of defendant Nos.1 and 3 and held that the defendants neither able to prove adverse possession nor able to prove title because there is nothing to show that defendant No.3 acquired title over the suit land and no title was passed by dint of the unregistered deed which is marked as Exhibit A. 18. On a careful consideration of the pleadings and evidence on record, I am of considered opinion that the factual aspects of the pleadings and the evidence on record had been rightly considered by the trial Court and the trial Court rightly decided the issues in favour of the plaintiff and rightly decreed the suit. The decision of the learned District Judge in the appeal that the suit is not maintainable under Section 34 of the Specific Relief Act is really shocking. The plaintiff instituted the suit for protection of his right as a permissive possessor. It is a settled law that even a trespasser can protect his right against a trespasser but not against the rightful owner. The defendant No.3 could not prove his title in any manner over the suit land. Exhibit B a Porcha Khatian No.80 of Mouja Machmara is neither a certified copy of Porcha nor a finally published Khatian and even it cannot be read as to what was actually written and Exhibit B has no evidentiary value at all to discard the entries made in Exhibit 4. Exhibit B a Porcha Khatian No.80 of Mouja Machmara is neither a certified copy of Porcha nor a finally published Khatian and even it cannot be read as to what was actually written and Exhibit B has no evidentiary value at all to discard the entries made in Exhibit 4. The defendant No.3 could not prove his title over the suit land in any manner. Defendant No.1 is a trespasser since he could neither prove his adverse possession nor title by dint of Exhibit A. The plaintiff asserted his claim to protect his right as a permissive possessor. Section 9 of CPC prescribes that a Civil Court has jurisdiction to try all suits of civil nature excepting suits of which their cognizance was either expressly or impliedly barred. The learned District Judge has observed that the suit was not maintainable under Section 34 of the Specific Relief Act and therefore, the Civil Court was barred to decide the suit. Section 34 of the Specific Relief Act prescribes thus: “34.Discretionofcourtastodeclarationofstatusorright.Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such, suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.--A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.” 19. Here in this suit the plaintiff claimed his permissive possession over the suit land. His specific case is that he was put in possession by Girish Chandra Dey in the year 1970 (07.11.1970) and thereafter he and his mother had been possessing the suit land and his mother died on 29.08.1995. He has been dispossessed by the defendants on 10.11.2004 and that fact has been proved with overwhelming evidence. The plaintiff, therefore, has acquired a legal character as a permissive possessor and he has a right to protect his such legal character as a permissive possessor against any intruders. He has been dispossessed by the defendants on 10.11.2004 and that fact has been proved with overwhelming evidence. The plaintiff, therefore, has acquired a legal character as a permissive possessor and he has a right to protect his such legal character as a permissive possessor against any intruders. The learned District Judge as it appears suffered from misconception of law that except there is a claim of title, a suit under Section 34 of Specific Relief Act is not maintainable. Such observation of learned District Judge is absolutely contrary to the provision of law and in my considered opinion any legal status or character may be a subject matter of a civil suit and any person may approach the Civil Court seeking declaration of such status or right under Section 34 of Specific Relief Act. 20. The plaintiff alleged that he has been dispossessed on 10.11.2004. No doubt he would approach the Civil Court under Section 6 of the Specific Relief Act for recovery of possession but the plaintiff on the date of dispossession itself reported Pecharthal P.S. and a police report was submitted on the basis of which SDM, Kanchanpur drawn up a proceeding under Section 145 of Cr.P.C. which was registered as Case No.234 of 2005. The Revenue Inspector submitted report in favour of the plaintiff in connection with that proceeding but the proceeding has not been decided as yet by SDM, Kanchanpur. Pendency of that proceeding cannot be a bar for the plaintiff in instituting a regular civil suit seeking declaration of his status as a permissive possessor and for recovery of possession. A prayer for recovery of possession under Article 64 of the Limitation Act based on previous possession is maintainable. There is nothing in Section 6 of the Specific Relief Act that unless a person pray for recovery of possession under Section 6 of the Specific Relief Act he cannot proceed for declaration under Section 34 of Specific Relief Act or for consequential relief for recovery of possession. I find no force in the argument advanced by learned counsel Ms. Dhar. The Supreme Court in the case of Rame Gowda Vs. M. Varadappa Naidu reported in (2004) 1 SCC 769 has considered the law about settled possession and has held that peaceful possession is protected in Indian law. I find no force in the argument advanced by learned counsel Ms. Dhar. The Supreme Court in the case of Rame Gowda Vs. M. Varadappa Naidu reported in (2004) 1 SCC 769 has considered the law about settled possession and has held that peaceful possession is protected in Indian law. Settled possession gives right to possession such that even rightful owner may only recover it by taking recourse of law. A person in settled possession is entitled to protect his possession. We may gainfully refer here Para 8 of the judgment which runs as follows: “8. It is thus clear that so far as the Indian Law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” 21. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” 21. The principle of law enunciated in the case of Rame Gowda (supra) has been reiterated by the Apex Court in the case of Subramanya Swamy Temple Vrs. V. Kanna Gounder, reported in (2009) 3 SCC 306 and the Court in Para 12 of the judgment has held— “12. If, thus, the temple was in prior possession of the land which would be evident from the classification made by the State Government and recognition of its right there over, it also had right to initiate proceedings in a civil court for eviction of a rank trespasser. In a case of this nature, the court was required to consider as to who was in prior possession. Only in the event the respondent was in a position to show that he had a better title, he could continue with the possession. The only defence taken by him was that the suit land pertains to Survey No.144 and not Survey No.370/1. Such a contention has been negatived by the trial court as also by the first appellate court. A finding of fact had been arrived at. Having regard to the concurrent finding of fact as regards the possession of the parties, vis-a-vis, their respective title in and over the suit land. The High Court, while exercising its jurisdiction under Section 100 of the Code of Civil Procedure, was required to formulate a substantial question of law which might have arisen for its consideration. No question of law was framed far less any substantial question of law relating to identification of the property. The High Court, therefore, in our opinion completely misdirected itself in passing the impugned judgment.” 22. In the case at hand, the plaintiff claimed possession from the year 1970. He pleaded that he has been put in possession by the original owner Girish Chandra Dey. It is admitted by the defendants in their evidence that Girish Chandra Dey was the original owner of the suit land. So the plaintiff’s possession from 1970 has been proved with overwhelming evidence which is supported by the entries made in Exhibit 4 i.e. the Khatian finally published on 31.03.1993. The entries made in the Khatian have not been challenged. It is admitted by the defendants in their evidence that Girish Chandra Dey was the original owner of the suit land. So the plaintiff’s possession from 1970 has been proved with overwhelming evidence which is supported by the entries made in Exhibit 4 i.e. the Khatian finally published on 31.03.1993. The entries made in the Khatian have not been challenged. It is alleged that the plaintiff managed to make the entries collusively with the Settlement staff but such entries has not been challenged and it has a presumptive value. The plaintiff, therefore, proved his possession and also proved that he has been dispossessed by the defendants on 10.11.2004. Therefore, the plaintiff is entitled to protect his right as a permissive possessor and also entitled to the recovery of possession from the defendants. The trial Court rightly decreed the suit in favour of the plaintiff. 23. The judgment and decree dated 11.10.2010 passed by learned District Judge in Title Appeal No.16 of 2010 is set aside and quashed. The judgment and decree passed by the trial Court in T.S. 41 of 2008 is restored and upheld. 24. The second appeal is accordingly allowed. 25. Parties to bear their own costs. 26. Send down the L.C. records along with a copy of this judgment and decree.