ORDER : This second appeal is directed against the judgment and decree dated 09.08.2011, passed by learned Addl. District Judge, Court No.4, West Tripura, Agatala in Money Appeal No.01/2007, whereunder the learned Addl. District Judge set aside the judgment and decree dated 20.11.2006, passed by learned Civil Judge, Jr. Division, Court No.2, Agartala, West Tripura in Money Suit No.09/2005. 2. The second appeal has been admitted for hearing on the following substantial questions of law: i. Whether the first appellate court wrongly applied the provision of Section 110 of the Evidence Act? ii. Whether the finding of the first appellate court that the proforma-respondent and the appellant were in collusion is perverse? 3. Heard learned counsel Mr. P. Roy Barman for the appellant and learned counsel Mr. D.C. Nath for the respondent Nos. 1 to 4. There is was no representation on behalf of respondent No.5. 4. The appellant as plaintiff (hereinafter mentioned as plaintiff) instituted Money Suit No.09 of 2005 arraying the respondents as defendants (hereinafter mentioned as defendants) seeking declaration and realization of Rs.77,050/from the defendant Nos. 1 to 4, towards price of 15 nos. of iron joists which were seized from the possession of the plaintiff by defendant No.4. 5. The case of the plaintiff, in short, is that defendant No.5, a Contractor by profession, got a work order dated 25.08.2003 for demolition of one old building/structure and disposal of dismantled materials. While dismantling that building the defendant No.5 got 18 nos. of iron joists and out of these, defendant No.5 sold 15 nos. of joists to the plaintiff on 30.04.2004 for a price of Rs.77,050/. The plaintiff on purchase lifted the iron joists to his shop. It is the case of the plaintiff that on 10.01.2005 at about 17:10 hours defendant No.4, S.I. Shyamal Mura Singh of East Agartala P.S. raided the shop of the plaintiff and in spite of the claim and showing of documents of ownership of the old iron joists, the defendant No.4 seized 15 nos. of iron joists and lifted the same from the shop of the plaintiff. On 17.01.2005, the defendant No.4 through defendant No.3 submitted a report before the learned Chief Judicial Magistrate, West Tripura, Agartala, about the seizure made under Section 102 of the Code of Criminal Procedure. of iron joists and lifted the same from the shop of the plaintiff. On 17.01.2005, the defendant No.4 through defendant No.3 submitted a report before the learned Chief Judicial Magistrate, West Tripura, Agartala, about the seizure made under Section 102 of the Code of Criminal Procedure. On 01.03.2005, the plaintiff and defendant No.5 submitted an application before the Chief Judicial Magistrate claiming release of the seized iron joists in their favour and the learned Chief Judicial Magistrate passed an order asking report from the I.O., since on 24.02.2005 an order was already passed on the prayer of the Police Officer for auction sale of the seized iron joists. I.O. submitted the report and by order dated 10.03.2005, learned Chief Judicial Magistrate rejected the prayer of the plaintiff and hence, the plaintiff instituted the suit for recovery of Rs.77,050/- from defendant Nos. 1 to 4. 6. Defendant Nos. 1 to 4 submitted a joint written statement, inter alia, contending that on the basis of secret report that some iron joists suspected to be stolen property kept in the shop of one Santu Karmakar at Chanpurmath, the defendant No.4 raided the shop and seized 15 nos. of iron joists from the shop of said Santu Karmakar. It is contended by the defendants that the owner of the shop could not show any valid documents towards ownership of those iron joists and therefore, 15 nos. of iron joists were seized by preparing seizure list in presence of witnesses. Neither the plaintiff nor anybody else claimed the seized property on presentation of any valid documents and therefore, the defendant No.4 made prayer before the learned Chief Judicial Magistrate on 24.12.2005 for auction sale of the seized iron joists and accordingly, open auction sale was arranged on 04.03.2005 and the iron joists were sold at Rs.21,000/and that amount was deposited in the appropriate head of account of the State Govt. by treasury challan. The plaintiff and defendant No.5 made their claim before the Chief Judicial Magistrate by filing petition on 01.03.2005 but before that the order of auction sale was passed by the Chief Judicial Magistrate and accordingly auction sale was made on 04.03.2005. The plaintiff was never owner of the said iron joists and the plaintiff could not show his ownership of the said iron joists and therefore, the suit was not maintainable and was liable to be dismissed. 7. The plaintiff was never owner of the said iron joists and the plaintiff could not show his ownership of the said iron joists and therefore, the suit was not maintainable and was liable to be dismissed. 7. Defendant No.5 submitted written statement supporting the contention of the plaintiff that he got the work order of dismantling an old building of Law College and after dismantling the building he sold 15 nos. of iron joists to the plaintiff for a price of Rs.77,050/and he further contended that he was authorised by the work order to dispose the dismantled articles of the old building and accordingly, he sold the iron joists to the plaintiff. The plaintiff was owner of the iron joists which were seized by the police. 8. The trial Court considering the pleadings of the parties framed following issues: (i) Is the suit maintainable in its present form and nature? (ii) Whether the plaintiff is the owner of 15 Iron Joists which were seized from the shop of the plaintiff? (iii) Whether the plaintiff is entitled to get a decree of Rs.77050/(Rupees Seventy Seven thousand fifty) only from the defendants? (iv) Whether the plaintiff is entitled to get a decree as prayed for? (v) Any other relief/reliefs? 9. In the trial, the plaintiff examined himself as P.W.1. In support of his case the plaintiff proved the following documents: (i) Ext.1 – Original work order issued vide Memo. No.F.2295/EE111/222940 dated 25-08-03 by the Executive Engineer, Agartala, Division No.III, P.W.D., Govt. of Tripura. (ii) Ext.2-Certificate issued by the Assistant Engineer, Gorkhabasti. (iii) Ext.3-Certified copy of order passed by the Ld. Chief Judicial Magistrate, West Tripura, Agartala in Case No. East Agartala P.S. 777 dated 10-01-05. (iv) Ext.4-Inquiry Report submitted by defendant No.5 in connection with East Agartala P.S. G.D. entry No.774 dated 10-01-05. (v) Ext.5-A - certificate dated 23.08.2005 issued by the defendant No.5. (vi) Ext.6-Notice under Section 80 C.P.C. (vii) Ext.7-series-Postal Receipt of the notices served upon the various departments of Govt. of Tripura. 10. Defendant No.4 examined himself as D.W.1 but no documentary evidence adduced. 11. Defendant No.5 examined himself as D.W.2 and supported the case of the plaintiff. 12. The trial Court decided the issues in favour of the plaintiff and decreed the suit. 13. Aggrieved, the defendant Nos. 1 to 4 preferred Money Appeal No. 01/2007 before the learned Addl. District Judge and the learned Addl. 11. Defendant No.5 examined himself as D.W.2 and supported the case of the plaintiff. 12. The trial Court decided the issues in favour of the plaintiff and decreed the suit. 13. Aggrieved, the defendant Nos. 1 to 4 preferred Money Appeal No. 01/2007 before the learned Addl. District Judge and the learned Addl. District Judge by impugned judgment and decree dated 09.08.2011 allowed the appeal and set aside the judgment and decree passed by the trial Court. Hence, this second appeal. 14. This is an admitted position that 15 nos. of iron joists were seized on 10.01.2005 at about 7:10 hours by defendant No.4 from the shop of the plaintiff. The trial Court while deciding issue Nos. 2 and 3 held that the plaintiff was the owner of alleged 15 nos. of iron joists by purchase from defendant No.5 and the matter is proved by the plaintiff and defendant No.5 by adducing oral as well as documentary evidence. The appellate Court did not accept that finding of the trial Court and arrived at a finding that the plaintiff could not prove the case with all preponderance of probabilities and that the defendant No.5 with a view to facilitate the plaintiff in getting the iron joists helped him by supporting his case filing written statement and adducing evidence. The appellate Court has further held that the plaintiff could not prove his stock book etc. and that the facts and circumstances do not support the case of the plaintiff. 15. It is an admitted position that defendant No.4 raided the shop of the plaintiff on 10.01.2005 at 17:10 hours and seized 15 nos. of iron joists from the possession of the plaintiff by preparing a seizure list in presence of witnesses and took the seized articles in the custody of the defendant. On 17.01.2005 defendant No.4 submitted a report before the learned Chief Judicial Magistrate about the seizure of 15 nos. of iron joists and learned Chief Judicial Magistrate on 18.01.2005 passed the following order: “18.01.05 S.I. Shyamal Mura Singh of East Agartala P.S. has submitted a seizure list together with a report stating that he has seized 15 Nos. of Iron Joist u/s 102 Cr.P.C. Perused the same. Ask I.O. to submit a report in a final form at an early date.” 16. of Iron Joist u/s 102 Cr.P.C. Perused the same. Ask I.O. to submit a report in a final form at an early date.” 16. On 24.02.2005, the defendant No.4 submitted a prayer to the learned Chief Judicial Magistrate seeking an order to sale those seized articles by public auction since nobody appeared to claim the seized articles with documents of ownership. The prayer of the I.O. has been marked as Exbt.4 and learned Chief Judicial Magistrate on 24.02.2005 passed the following order: “24.02.05 I.O. of the case has submitted a report in view of the order dated 18.01.05 with a prayer for necessary order for disposal of the seized articles on auction and also for depositing the sale proceeds in the bank through Treasury Challan. Heard learned A.P.P. on the prayer of the I/O for selling the seized 15(fifteen) nos. of Iron Joist. I perused the prayer of the I/O. The I.O. is allowed to sell the seized iron joist on auction and the sale-proceeds be deposited through Treasury challan with intimation to this Court. Inform the I.O. for compliance.” 17. It is evident that though the iron joists were seized from the possession of the plaintiff on 10.01.2005, the plaintiff did not appear before the Magisterial Court during the period from 10.01.2005 to 24.02.2005 and did not claim the release of the seized articles. On 01.03.2005 plaintiff and defendant No.5 submitted a petition for the first time before the learned Chief Judicial Magistrate seeking release of the seized articles and learned Chief Judicial Magistrate on 01.03.2005 passed the following order: “01.3.05 Record is put up today on the basis of a spl. Petition. Heard Ld. Counsel appearing for the petitioners namely Samir Chandra Saha and Santi Karmakar for releasing the seized 15 nos. of Iron Joist since they are the real owners of the seized Iron Joist. Also heard Ld. A.P.P. In support of the ownership the petitioners also submitted some papers. Perused the papers. It appears that on the basis of the prayer of the I/O, the I/O was already allowed to sell the said seized Iron Joist on auction and the I/O was also directed to deposit the sale proceed through Treasury Challan and so it is not clear to this Court whether the Iron Joist were already sold or not. However, I/O is directed to send the report whether the said seized 15 nos. However, I/O is directed to send the report whether the said seized 15 nos. of Iron Joist were already sold on auction or not on 10-03-05. Inform the I/O for compliance.” 18. On 10.03.2005 report was submitted by I.O. pursuant to the order dated 01.03.2005 but neither the plaintiff nor the defendant No.5 appeared before the Chief Judicial Magistrate to move their petition and learned Chief Judicial Magistrate passed the following order : “10.03.05 In view of the order dt.01.3.05, I/O of the case has submitted a Bidder list and Treasury challan alongwith a report stating that the seized articles have been sold on auction and the sale proceeds amounting to Rs.21,000/have also been deposited to the bank through Treasury challan. Seen the report. Ld. A.P.P. is present. These papers be kept with the case record.” 19. After the above order was passed by the Chief Judicial Magistrate, the plaintiff issued notice under Section 80 C.P.C. on 25.04.2005 and thereafter instituted the suit. 20. The first point which fell for consideration is whether a civil suit was maintainable while relief was otherwise available as per the procedure prescribed in the Criminal Procedure Code. It is an admitted position that the articles (15 nos. of iron joists) were seized under Section 102 of Cr.P.C. and was produced before a criminal Court and the Criminal Court passed an order on the prayer of the police officer for auction sale of the said articles and it was accordingly sold on auction. Thereafter the plaintiff appeared before the criminal Court and submitted an application seeking release of the seized articles but in the meantime those were already sold on auction. 21. Chapter XXXIV of Cr.P.C. deals with the provision in respect of disposal of property seized in course of criminal proceeding. Section 452 of Cr.P.C. prescribes the procedure for disposal of property at the conclusion of trial. Sub section (1) of Section 452 of Cr.P.C. reads as follows: “452. 21. Chapter XXXIV of Cr.P.C. deals with the provision in respect of disposal of property seized in course of criminal proceeding. Section 452 of Cr.P.C. prescribes the procedure for disposal of property at the conclusion of trial. Sub section (1) of Section 452 of Cr.P.C. reads as follows: “452. Order for disposal of property at conclusion of trial.(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.” 22. The case of the plaintiff is covered by Section 452. The petition filed by the plaintiff on 01.03.2005 is to be presumed to have filed under Section 452 of Cr.P.C. While that petition was rejected by the learned Chief Judicial Magistrate, the plaintiff would prefer an appeal under Section 454 of Cr.P.C. before the appropriate appellate forum of the Criminal Court but the plaintiff opted for a regular civil suit and did not avail the scope prescribed in Section 454 of Cr.P.C. 23. A civil Court is competent to try all suits of civil nature unless otherwise barred. Section 9 of the Code of Civil Procedure prescribes that the Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The Criminal Procedure Code has not prescribed any restriction in filing a civil suit regarding a property seized in course of a criminal proceeding but while the Criminal Procedure Code prescribes certain procedure regarding disposal of property seized in connection with criminal proceeding, a party to the proceeding or even a third party is bound to follow the provisions of the Criminal Procedure Code. 24. It is the basic law that a Criminal Court cannot decide title to a property seized in connection with a criminal proceeding. 24. It is the basic law that a Criminal Court cannot decide title to a property seized in connection with a criminal proceeding. A careful reading of the provisions contained in Section 451 to 459 of the Code of Criminal Procedure clearly demonstrate that the Criminal Court has been authorised to decide regarding entitlement to possession of the property and therefore, it has no power to decide the ownership of the property. The Criminal Court whether it is the Magisterial Court before which the seized property was produced or the appellate forum can only decide as to the person entitled to the possession of the seized property and no doubt while looking into the entitlement, the Criminal Court can also see the title to the property but cannot decide the title over the property seized in a criminal proceeding. 25. A Civil Court of competent jurisdiction is having with a plenary power to decide the title/ownership of any property. A careful reading of order dated 10.03.2005 makes it clear that learned Chief Judicial Magistrate made an observation in the last line of the order that adjudication of ownership to the articles is necessary and therefore, it cannot be said that the civil suit was not maintainable for not following the procedure prescribed in Cr.P.C. In the last line of the order, the learned Chief Judicial Magistrate observed : “since the articles has already been sold on auction as per Court’s order, it cannot be handed over at present to the claimant without adjudication of the ownership to the articles as seized”. 26. In view of the above order of the learned Chief Judicial Magistrate, in my considered opinion a civil Court is only the competent Court to decide the ownership and so, the suit instituted by the plaintiff cannot be said to be impliedly barred for not preferring an appeal under Section 454 of the Code of Criminal Procedure. 27. In my considered opinion, in respect of property seized in course of a criminal proceeding, a Criminal Court cannot decide title/ownership of the property and the Criminal Court only can decide in respect of entitlement to the possession of the property seized in criminal proceeding. If the question of title or ownership appears in respect of a seized property in a criminal proceeding, a civil Court of competent jurisdiction is the only competent Court to decide the issue. 28. If the question of title or ownership appears in respect of a seized property in a criminal proceeding, a civil Court of competent jurisdiction is the only competent Court to decide the issue. 28. It is an admitted position, as already stated hereinbefore, 15 nos. of iron joists were seized from the possession of the plaintiff from his shop by defendant No.4 under Section 102 of Cr.P.C. Though the seizure was made on 10.01.2005 at about 17:10 hours, no seizure report was submitted to the Court of learned Chief Judicial Magistrate on the date of seizure or on the following day of the seizure. Section 102(1) of Cr.P.C. prescribes that any police officer may seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which creates suspicion of the commission of any offence. Sub Section (3) of Section 102 prescribes that— “Every police officer acting under Sub section (1) shall forthwith report the seizure to the Magistrate having jurisdiction………” 29. In the present case seizure was made on 10.01.2005 at 17:10 hours but no report was submitted to the Chief Judicial Magistrate even on the following day. The report was submitted only on 17.01.2005 and the first order was passed by learned Chief Judicial Magistrate, as already reproduced hereinbefore, on 18.01.2005. The reports submitted by defendant No.4 has been marked as Exbt.4 and no reason assigned in that report as to why the report was not submitted immediately after the seizure. This is a serious noncompliance of the legal provisions on the part of a police officer. On 24.02.2005 defendant No.4 submitted prayer before the Chief Judicial Magistrate seeking auction sale of the seized property stating that nobody appeared claiming possession of the property with documents. There is nothing in detailed in the report which is marked as Exbt.4 as to what investigation was conducted to ascertain whether it was stolen property or it was property involved in connection with any offence. It is not expected that a property in possession of any citizen would be seized by the police officer at the whims and caprice. A seizure should be made only in the event a reasonable apprehension exists about involvement of the property in an offence or suspected to have been involved in an offence. 30. The conduct of the plaintiff also is not encouraged. A seizure should be made only in the event a reasonable apprehension exists about involvement of the property in an offence or suspected to have been involved in an offence. 30. The conduct of the plaintiff also is not encouraged. Though seizure was made on 10.01.2005 from the possession of the plaintiff, the plaintiff unexpectedly remained silent and did not approach the Court of law for releasing the seized articles claiming his entitlement. The plaintiff and defendant No.5 approached the learned Chief Judicial Magistrate only on 01.03.2005 and there is nothing to show that before 01.03.2005 the plaintiff or defendant No.5 ever made any claim about the entitlement to the possession of the seized property. However, the plaintiff has proved that defendant No.5 got work order for dismantling of an old building and for disposal of the materials of the old building. The work order is marked as Exbt.1. Exbt.2, is a certificate issued by the Asstt. Engineer, Incharge of the work, that the Contractor was entitled to sell the iron joists after dismantling the building. Defendant No.5 in his deposition stated that he sold the iron joists to the plaintiff on 30.04.2004. So, the plaintiff has proved his case that he was entitled to the possession of the seized property being the owner of the same by purchase from defendant No.5 and defendant No.5 was authorised to sell the iron joists after dismantling the building. The observation of learned Addl. District Judge that the plaintiff failed to prove his case is totally unsustainable. While it is an admitted position that 15 nos. of iron joists were seized from the possession of the plaintiff and the plaintiff claimed ownership of the same, burden is on the defendant to prove that the plaintiff was not owner of the property. Section 110 of the Evidence Act reads as follows: “110. Burden of proof as to ownership.—When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.” 31. Learned Addl. Section 110 of the Evidence Act reads as follows: “110. Burden of proof as to ownership.—When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.” 31. Learned Addl. District Judge, as it appears, did not look into the legal provision and arrived at a finding that the plaintiff failed to prove his case though the plaintiff by adducing oral and documentary evidence established his claim that he was the owner of the seized property. 32. Let us now decide whether the plaintiff was entitled to get Rs.77,050/as claimed in the suit. It is already mentioned hereinbefore that the plaintiff also did not appear before the Criminal Court in time claiming possession of the seized property. The seized property was sold on auction after an order passed by a court of competent jurisdiction. The plaintiff did not make the auction purchaser a party in the suit to get the seized property back in his possession. The plaintiff claimed price of the 15 nos. of iron joists as Rs.77,050/and asserted that he purchased the iron joists from defendant No.5 with that price. Defendant No.5 issued a letter dated 25.08.2005 showing the price of the iron joists at the relevant point of time. This is not a money receipt issued by defendant No.5 but in his evidence defendant No.5 stated that he sold the iron joists at a price of Rs.77,050/. The evidence of the plaintiff as well as defendant No.5 in respect of price of iron joists is not convincing at all. 33. Exbt.1, the work order shows that the total cost of dismantling the building was Rs.56,798/and the defendant No.5 was entitled to dispose the dismantled articles of the building. No prudent man can accept the price of 15 nos. of iron joists were Rs.77,050/. The auction sale was conducted by police pursuant to the Court’s order and it was sold at Rs.21,000/. It cannot be said altogether that the auction sale was done without following the legal procedure. No challenge was made to the auction sale. Judicial and official act is presumed to be correctly done unless otherwise is proved. The auction sale was conducted by police pursuant to the Court’s order and it was sold at Rs.21,000/. It cannot be said altogether that the auction sale was done without following the legal procedure. No challenge was made to the auction sale. Judicial and official act is presumed to be correctly done unless otherwise is proved. So, the auction sale is to be presumed to have properly made and the price of the auction sale the plaintiff is entitled to get since the plaintiff was entitled to the possession of the seized property being owner of the same. 34. In view of the discussions made above, the suit is partly decreed. The plaintiff is entitled to get an amount of Rs.21,000/(rupees twenty one thousand) which was the price of the auction sale of the seized articles and the defendant Nos. 1 to 4 are bound to pay that amount of Rs.21,000/to the plaintiff with 6% interest from the date of seizure i.e. 10.01.2005. 35. Accordingly, the appeal is partly allowed. The judgment and decree, dated 09.08.2011, passed by the learned Addl. District, Court No.4, West Tripura, Agartala in Money Appeal No. 01 of 2007 is set aside. The judgment and decree, dated 20.11.2006, passed by the trial Court in Money Suit No. 09 of 2005 is also modified. 36. The plaintiff is entitled to get the auction sale price of Rs.21,000/(rupees twenty one thousand) from the defendant Nos. 1 to 4 with 6% interest from the date of seizure i.e. 10.01.2005. The payment with interest should be made within 90 (ninety) days from today failing which the amount shall carry interest @ 12% per annum from the date of seizure i.e. 10.01.2005. 37. Prepare appellate decree accordingly. 38. Send back the L.C. records along with a copy of this judgment.